Kimbell Corp.

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kimbell Corporation and Retail Clerks Union, Local 1680, Retail Clerks International Association, AFL-CIO. Cases 16-CA-3404, 16-CA-3459, and 16-RC-4978 and the General Counsel filed briefs and I have given them due consideration.' Upon the entire record in this proceeding, I hereby make the following: June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On March 26, 1969, Trial Examiner Phil W. Saunders issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner' s Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'In finding in agreement with the Trial Examiner that the complaint should be dismissed , we find it unnecessary to adopt the Trial Examiner's holding that Respondent in ejecting union business agent Reid from its store was lawfully enforcing a valid no-solicitation rule TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PHIL W. SAUNDERS, Trial Examiner: Upon charges filed by Retail Clerks Union, Local 1680, Retail Clerks International Association, AFL-CIO, hereinafter called the Union, the General Counsel issued a complaint dated November 15, 1968, against Kimbell Corporation, herein called the Respondent or the Company, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Hearings were held before me in Ardmore, Oklahoma, on January 7, 8, and 9, 1969, and' all parties were represented and were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to argue orally. The Company FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation duly organized under and existing by virtue of the laws of the State of Texas, maintaining its principal office and place of business in Fort Worth, Texas, and retail stores in Ardmore, Oklahoma, where it is engaged in the wholesale and retail grocery business. During the past year in the course and conduct of its business operations, Respondent sold and distributed products the gross value of which exceeded $500,000. During the same period of time, Respondent received goods valued in excess of $50,000 which were transported to its place of business in Ardmore, Oklahoma, directly from states of the United States other than the State of Oklahoma. During the same period of time, Respondent shipped and transported products valued in excess of $50,000 from its place of business in Ardmore, Oklahoma, directly to states of the United States other than the State of Oklahoma. It is admitted and I find that Respondent is and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The main issues in this case are as follows: A. Whether or not Respondent by its conduct during the election campaign violated Section 8(a)(1) of the Act. B. Whether or not the discharge of Gordon Fultz violated Section 8(a)(3) of the Act. C. Whether or not the Respondent refused to recognize and bargain with the Union in violation of Section 8(a)(5) of the Act. On or about July 24, 1968, the Union began efforts to organize two of Respondent's stores in Ardmore, Oklahoma.' On August 7, 1968, the Union filed its original Representation Petition with the Board, and which followed the Union's letter to the Company on August 5, 1968, stating it represented a majority of its employees and offered to show the Company signed authorization cards, and requested recognition. On August 9, 1968, the Respondent acknowledged receipt of the Union's letter . Respondent's supervisor, Jerry Brownlee notified the Union that he did not believe they represented a majority of the employees, and the only recognition the Company could give would be after the Union won a Board-conducted election.' On August 12, 1968, the 'The original charge in Case 16-CA-3404 was filed by the Union on August 14, 1968, and a first amended charge was filed by the Union on August 30, 1968. The charge in Case 16 -CA-3459 was filed by the Union on October 28, 1968. 'These two stores will hereinafter be referred to as Foodway and Village stores. 'On the morning of August 9, 1968 , Brownlee, who has the responsibilities for Respondent's operations in Texas and Oklahoma, flew 177 NLRB No. 84 KIMBELL CORPORATION Company discharged Gordon Fultz, and pursuant to a Decision and Direction of Election, an election was held at Respondent's stores on October 17. On October 22, 1968, the Union filed objections to the election. On November 15, 1968, the Regional Director overruled four objections, and the amended complaint in this proceeding includes and encompasses the remaining objections along with the 8(a)(5) charge and allegation. The complaint alleged the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. The Respondent's illegal conduct in October 1968, may be summarized as follows: (1) Interrogation, (2) promise of benefits, (3) announcing and publishing new benefits, and (4) forceful eviction of a union representative from its store. Brownlee testified that in the 2 weeks or so before the October 17 election, he talked to almost every employee, individually, in the Ardmore stores. Brownlee stated that in so doing he informed employees the Company did not feel the Union would be to their benefit, but that he did not ask employees anything about the Union as he had been told or instructed not to do so. He testified that in his conversation, some of the employees volunteered their sentiments about the Union, and if and when they did so he would then discuss the Union. Brownlee further related that in these talks with employees in October and prior thereto-he learned that some employees in the two stores in question here, had several questions regarding fringe benefits, and on occasions he would attempt to supply answers to such inquiries. Two employees at the Village store mentioned union contracts with other grocery stores in the area, and informed him that such agreements provided a higher pay scale than the Respondent was paying. Brownlee testified he then found out these other two union stores were actually paying the same pay scale as the Company, and on his next visit he showed the two employees the union contracts of the organized stores, but he did not discuss the contracts with them. Albert Bethune testified that prior to the election Brownlee talked with him. He stated Brownlee asked him how he liked his work, inquired if he had any suggestions on improving the operations of the Village store. Bethune then told Brownlee he did not understand his insurance coverage. Bethune stated that 2 or 3 days before the election Brownlee asked him what he thought the Union could do for him. Brownlee admitted making such an inquiry in a joking manner, but stated it was in response to the remark Bethune had made previously that he did not know what the Union could do for him. Harry Williams testified that before the election Brownlee had three visits with him. He stated that Brownlee asked him if he had any questions about the Union and his working conditions, and if he wanted the Union to come in. The General Counsel points out that to inquire of an employee what he thought the Union could do for him was a not-too-subtle probe for information about union to Ardmore, from his office in Fort Worth, and conferred with Crockett Fox, the Respondent's area supervisor; R. L. Seagroves, the Foodway store manager; Earl Younger, the Village store manager ; Lawrence Gee, the Foodway market manager and Bob Wilson He found out there had been some union activity, but did not find out which employees were involved Brownlee testified that he then instructed Fox and the other mentioned supervisors not to take any action or have any discussion with the employees about the union matter After this conference in Ardmore, Brownlee flew back to Fort Worth and mailed the Company 's reply to the -Union's request for recognition , as aforestated. 829 activities; maintains these visits with the employees were for the purposes of soliciting information about the Union; that Respondent's correspondence to the employees' made it very clear that the Respondent was opposed to a union; and argues that in the face of such opposition, the effect upon the employees of being "visited" by an official as high in Respondent's hierarchy as Brownlee, and discussing the Union with him, could be no other than unlawful interference. In regards to the testimony of Bethune, it is apparent that Bethune voluntarily told Brownlee that he had not had time to think much about the Union and did not know what it could do for him. Brownlee's responsive remark to Bethune as to what the Union could do for him, must have come up in an informal joking manner as Bethune had just previously proposed the same question or subject matter himself. Based upon the demeanor of the witnesses, and their respective testimony in relation to this incident, it is apparent to me this inquiry was mere banter or jesting on Brownlee's part and Bethune must have been aware of this. I find no violation in this dual interchange of mutual inquiries. See T. N. T. Trailer Ferry, Inc., 152 NLRB 1495.' Although I believe Brownlee technically overstepped the bounds of permissible action when he inquired of Williams about the Union, as aforestated - I do believe this must be deemed an isolated or single incident of interrogation, and when viewed in the total context of this record insufficient to warrant a violative 8(a)(1) finding. The complaint alleges that on October 10, 1968, Brownlee promised employees economic benefits, including wage increases, if they refrained from union activity. Henry Williams testified that prior to the election Brownlee was talking to him about working conditions, and then told him "when all of this was over with" he was going to try to improve the working conditions in the store. Ronnie Southerland testified that he talked with Brownlee 2 or 3 days before the election, and during the talk there was some discussion about another grocery store paying more than Respondent. According to the testimony of Southerland, Brownlee then stated that he could not make any promises to him or anybody else and that his hands were tied until the union business was over with . Brownlee • stated that he did not make any statements to Williams or Southerland that when the Union was out of the way their wages could or would be increases, and also testified these two employees were making the same wages as paid in union organized grocery stores. Brownlee went on to state that he was reviewing with employees improvements the Company had been making in working conditions and fringe benefits, but had made it clear that such efforts were in no way linked with the union activities of the employees. The General Counsel argues that it may logically be inferred that by stating "after the Union business is over," Brownlee meant it was to be resolved favorably for the Company. However, this record shows that it was Williams and Southerland who initiated the subject of the difference in the wages being paid to the sack boys under union contract stores from that which the Company was G. C Exhs 10 and 11. 'Brownlee stated he was told by counsel not to ask employees about the Union. From this record, and my observation of his demeanor while testifying - I believe Brownlee heeded such instructions Other than noted above, no other employee testified that he asked them about their union efforts, whether they belonged to the Union, or even what they thought about the Union, and even though Brownlee admittedly talked to all of the employees involved 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paying. Furthermore, the statement attributed to Brownlee by Southerland cannot be categorized as a promise of benefits, even taking Southerland's version, as he admitted Brownlee stated he could not make such a promise to him while the union campaign was going on. In essence, Brownlee merely informed Southerland of the Respondent's restrictions during the organizing campaign. From this record as a whole, and my observations of the demeanor of the witnesses while testifying, I believe and credit Brownlee's denial. Brownlee had no reason to make such statements to Williams or Southerland as they were being paid the same pay scale as set forth in the union contracts of organized grocery stores. It is further alleged in the complaint that on or about October 10, 1968, Brownlee offered, promised, granted, announced and published to its employees improved hospitalization policies, sick leave, and other benefits or improvements, if they refrained from union activities. When Brownlee initially assumed his position and responsibilities with the Company in May, 1967, he reviewed the classifications and pay scales of employees, and by his evaluations ascertained certain deficiencies in pay compensations and in the fringe benefits plans. Brownlee then chartered a long-range course of changes in efforts to correct these shortcomings in past practices or policies. Brownlee stated that upon his arrival on the job, the Company had no up-to-date manual or any booklet containing policies of the Company, and the first current manual was put out on January 1, 1968. He also stated that certain changes were then needed to clarify the January manual, and as a result the Company issued a new manual on policies in July 1968. In October 1968, during the organizational attempts by the Union, the Company passed out to employees a blue book' which summarized the fringe benefits to employees. This blue book contains paragraphs on hospitalization insurance, life insurance and disability payments, on-the-job injuries, sick leave, holidays, vacations, retirement, time off, and maternity leave of absence. The blue book also has statements on problems and suggestions, and qualifications and opportunities for advancements. Brownlee testified that when the revised manual was issued on July 1, 1968, as aforementioned herein, supervisors and store managers were instructed to see that employees were familiar with its contents, but when he talked to the employees at Village and Foodway in October, he learned that these employees still had many questions regarding fringe benefits, and as a result the blue book was put out in simple and understandable language. Dortha Watterson testified that in January, 1968, she was unable to work at the Village store due to illness, but she did not receive sick pay. She stated that no supervisor had ever explained employees fringe benefits to her. Watterson testified she never inquired of any supervisor as to why she did not receive sick pay for the 2 days in January. Gordon Fultz testified that during the 6 1/2 years he was employed by Respondent he had never seen the policy manual which outlined Respondent's benefits, and this included a 3-month period when he was a store manager. Bethune testified he had never seen a policy manual in the store until the evening of January 7, 1969. This record shows that on January 1, 1968, the Company announced in writing their sick leave policy of 1 week each year.' Brownlee stated that prior to the above •G. C Exh 8 date the Company also had a sick leave policy, but it was an unwritten policy. He further testified there had been no change in the Respondent's policy on hospitalization insurance since present coverage and premiums went into effect on June 1, 1968. Brownlee also testified that life insurance provisions and disability payments were upgraded earlier in 1968, and specifically denied there had been any changes in fringe benefits or wages - other than regular scheduled increases - subsequent to the start of the Union's organizational campaign on July 24, 1968. The Company introduced testimony through Pat Price' to the effect she had received sick leave pay in 1967, and Respondent's Exhibits 5 through 8 and the testimony of Brownlee, shows that Watterson was paid 2 days of sick leave in January 1968. It is the position of the General Counsel that the Company announced and circulated its blue book in early October 1968, for the purpose of affecting the outcome of the election on October 17, and thereby violated Section 8(a)(1) of the Act. In support of this position, the General Counsel points to certain language and sentences in the blue book, and in relation thereto argues as follows: In the Hospitalization Insurance paragraphs, the booklet states that these benefits have been "recently improved in our continuing program of upgrading your company benefits." Brownlee attempted to clarify this statement at the hearing, but he neglected to state whether he clarified it with each employee who was given a booklet. From the testimony of witnesses, it is apparent this point was not clarified for the rank-and-file employees. This booklet in the same section later states, "We know that hospital charges are constantly rising and we are keeping the plan under study for improving it." In the pragraph entitled Retirement, the first sentence states, "Another one of our improved employee benefits ...." It is important to note that nowhere in the booklet is there a statement that the benefits set out therein are not newly granted benefits, but simply a restatement of existing benefits." It appears to me there is lacking a sufficient preponderance of evidence by the General Counsel to adequately support the allegation that the Company announced and promised improved employee benefits. The fringe benefits the employees had subsequent to the advent of the Union and have up to the present - were the same benefits they had prior to July 24, 1968. From the evidence in this record the employees had sick leave benefits as early as 1967, and the testimony by Watterson that she did not receive sick leave pay in January 1968, was successfully refuted by the Company, as aforestated. As pointed out, there was some testimony the employees were not fully aware of the sick leave policy and possibly hospitalization benefits, but such policies did exist. The Company may have been negligent in not going over this information with the employees, but this cannot support a finding that the employer did not have such benefits. Brownlee stated that the improved hospitalization plan was made June 1, 1968, and a letter was sent to all employees advising them of such change. This fact is in no way denied, and adequately demonstrates the increased benefits in hospitalization took place prior to any union activity. Since no changes in employee benefits were made after July 24, 1968, when the union drive got under way, the crux of the argument by the General Counsel must hinge on the October publication of the blue book. 'Resp Exh 3 This exhibit is a page extract from the policy manual or booklet issued by the Company on January 1, 1968. KIMBELL CORPORATION 831 However, all the fringe benefit plans had been in existence and put in writing and were operative before this publication , and the employees had some knowledge of their existence. Under such circumstances the mere restatement in the blue book of policies previously announced in writing in January and July 1968, cannot be deemed an offer or promise of improved benefits for the purpose of affecting the election. From this record as a whole, it is readily apparent that starting back in 1967, Brownlee instituted and then continued to make a very determined effort to implement improved relationships, policies, and communications with employees, and the summarization of already operative benefit plans in the blue book in simplified and understandable language, must fall within this long range scope of his persistent endeavor. Paragraph 6, subsection (d) of the complaint, alleges as follows: On or about October 17, 1968, the Respondent by its officers and agents, Buck Seagroves, Crockett Fox and Jack Cross, forcefully and violently evicted representatives of the Union from its store in order to induce its employees to refrain from becoming or remaining members of the Union or giving any assistance or support to it. Danny Reid, a business agent of the Union, and two of his helpers went to the Respondent's Foodway store on the morning of the election. They were then told by Supervisor Fox and Store Manager Seagroves, that they were not wanted in the store. The supervisors were informed the Union had "interest in the store" and their people would be in and out of the store all day long. Reid and the two others then drove over to the Respondent's Village store. Upon arrival they were met by Store Manager Younger and Jack Cross, and informed they were not wanted and to leave. The union delegates replied that they were going to stay. Respondent's attorney, Edward Kemble, then appeared and he also asked them to leave the store. Reid testified that at this time one of the store checkers were stationed in a nearby check stand. The union representatives left, consulted with their attorney, and Reid then returned to the Village store. He was met at the door by Jack Cross, and Reid stated, "He put his hand on my chest and took me by the arm and turned me around and shoved me out the other door." Employee Lowella Wells, testified that when Reid came in the door, Cross "pushed him out the other door," but she could not hear what they were saying. Reid stated that Supervisor Younger was close-by when this incident occurred. Reid called the police and filed charges against Cross for assault. The next development shows that Reid then went back to the Foodway store where he was met at the door by Seagroves and who again told him that he was not wanted. Reid informed Seagroves he was going to be at the store all day long. Seagroves then went down to the police station and filed charges against Reid for disturbing the peace, but Reid posted bond and returned to the Village store. He then had a short conversation with Younger about arrangements for employee Bethune to be the Union's observer at the election, and also talked with Respondent's attorney, Kemble about this matter. Manager Younger then filed charges against Reid for disturbing the peace, and shortly thereafter two policemen - one in uniform and one plainclothesman - came into the store and took Reid with them. Reid testified that at the time Lowella Wells was on the scene, and Dortha Watterson stated that she saw a policeman go out of the store with Reid on this occasion. Reid again posted bond, and this time returned to the Foodway store where he was met by Seagroves and Gee (the meat market manager). Seagroves asked Reid to leave, and after some conversation Attorney Kemble walked up and asked Reid if he wanted to be arrested again . After some conversation with Kemble, Reid walked away and began shopping in the store. He found some merchandise that he desired to purchase. Subsequently, two policemen arrived (one in uniform and the other in plain clothes) and arrested Reid. As Reid was leaving the store, he asked Seagroves to check his merchandise for him. Seagroves said, "No," took the merchandise out of his hands, and told him that he did not have to sell him the merchandise. Reid went to the police station and again posted bond. Reid further testified that during the interval between the organizational campaign beginning on July 24, 1968, and up until the October 17 election, he was in and out of the Foodway and Village stores in order to converse with employees about the Union and to solicit authorization cards, but stated he never stayed more than 15 or 20 minutes at any one time. Reid admitted he knew about the "no solicitations" signs at both stores and had been previously warned in September about violating the same. The signs read that there should be no solicitation without prior approval of the manager. It is pointed out by the General Counsel that to forcefully evict and have the union representative arrested in front of rank-and-file employees would normally be calculated to discourage these employees from supporting the Union, and that such conduct has a particularly damaging effect when it occurs, as here, on the day of the election. The Board in Walton Manufacturing Company, 126 NLRB 697, has specifically set forth its test for lawfulness of rules against solicitation for nonemployees on employer property as follows: 3. No-solicitation or no-distribution rules which prohibit union solicitation or distribution of union literature by nonemployee union organizers at any time on the employer's property are presumptively valid, in the absence of a showing that the union cannot reasonably reach the employee with its message in any other way, or a showing that the employer's notice discriminates against the union by allowing other solicitation or distribution. It is also well recognized that a retail department store, because of the nature of its business, is further privileged to ban union activity, even on nonworking time, in those areas of the store open to the public. See May Department Stores, 59 NLRB 976, enfd. 154 F.2d 533 (C.A 8), cert. denied 345 U.S. 905. The two stores in question here are retail grocery stores. There is no testimony in this record that other means of contacting employees were unavailable to the Union, and furthermore, the only actual or stated purpose which the Union had on October 17, was to solicit the help of employee Bethune. It is obvious the Union did not resort to any other means of communications , but merely sought to establish some sort of contact with Bethune, by the coming into the stores. Since the Board's test makes such a rule as here valid, the burden of overcoming this presumption by competent evidence is on the party seeking to establish that the rule is invalid. The General Counsel has failed to meet that burden.' 'See Salyer Stay Ready Filter Corp, 136 NLRB 1210 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There remains for disposition the question of whether Cross, Seagroves, and Younger were enforcing the Respondent's rule when Cross forcibly ejected Reid from the Village store and when Seagroves and Younger had him arrested, or whether their conduct was such that it constituted interference with their employee's Section 7 rights. As pointed out in Salyer Stay Ready Filter Corp., supra, - there can be no question that the Respondent, having a legitimate rule, and had a concomitant right to enforce the rule.' At both stores Reid was asked to leave, and when he refused to do so, the Company could then take necessary steps to remove Reid from the premises. Under the controlling circumstances present here, the physical ejection of Reid by Cross, and complaints by Store Managers Seagroves and Younger which then resulted in his arrests and peaceful removal from the stores by the police, must be deemed as lawful enforcement of the Company rule, and necessary action, without unreasonable force, to accomplish the task at hand. Furthermore, I cannot infer from these incidents, even though the action occurred in sight of a few of the Respondent's employees, that its purpose was calculated to discourage employees from supporting the Union as contended by the General Counsel. The course taken by the Company, under these particular circumstances, must be tipified as more-or-less immediate and on the spot reactions to the situation they were confronted with, and the subsequent arrest of Reid and his removal by the police, was no more than a continuation of the action started in the Respondent's stores when Reid refused to leave and was initially ejected by Cross. The above analysis is also intermingled with the admissions of Reid that he knew about the no-solicitation signs in both stores - Store Manager Seagroves had previously pointed out the signs to him, and that a few weeks prior to the election Brownlee had asked him to leave the backroom of the store. Thus, the Union cannot claim the day of the election was the first occasion on which the no-solicitation rule was called to their attention. There is also no evidence in this record that the Company allowed or permitted other types of solicitation in the stores while placing a ban on solicitations by the Union. The General Counsel's positions and argument relative to Jack Cross, also hinges to some extent on the allegation that Cross was a supervisor within the meaning of the Act. There is no credited evidence whatsoever, to substantiate this allegation. Reid merely suggested that he knew Cross as a maintenance supervisor, but there was no testimony in ascertainment of his actual duties, authority, or responsibilities. Cross was present when Younger told Reid he was not wanted in the store, and Younger was also present when Cross ejected Reid from the store. From these facts it can be assumed that Cross was acting under the direction of management and as an agent of the Respondent, but this in no way alters my prior discussion and analysis, as the Company had justifiable grounds in acting as it did in directing Reid's removal. I find that the Respondent had a valid no-solicitation rule and that by ejecting Reid from the stores the Company agent and managers were lawfully enforcing the rule. 'The Supreme Court has held that a no-sohcitation rule is not necessarily invalid even when enforced in a context of employer unfair labor practices and antiunion solicitation. See Nutone, Inc, and N.L R.B v Avondale Mills, 357 U.S 357, 362-363. Gordon Fultz was employed by the Respondent for approximately six and one-half years, and in 1967 Fultz was a manager at another Respondent' s store in Ardmore for approximately three months before it closed. At the time of his discharge he was working at the Foodway store and had the title of assistant manager. In late July 1968, Fultz signed an authorization card for the Union, actively solicited 9 or 10 other employees to sign authorization cards, and attended all the Union meetings. Fultz testified that in July 1968, he was working as a stocker-checker at the Foodway store and that Bob Wilson was the assistant manager of this store. He stated that a week or so after the organizational campaign began -Wilson inquired about the " union deal," and informed Fultz he knew such a compaign was going on. Fultz testified that when he reported to work on August 12, Seagroves informed him they were to report to the home of Respondent's area supervisor, Fox. Upon their arrival Seagroves and Fox engaged in some conversation about another employee, and then Fox asked Fultz if there were "any disturbances" among the employees at the Foodway store. Fultz replied that he knew of none. According to the testimony of Fultz, Fox then told him that he had heard Fultz had been "kicking" about his salary. Fultz replied that he had complained, and then explained to Fox why. Fox then offered Fultz the manager's job at the Respondent's store located in Hugo, Oklahoma, at an increased salary. Fultz related he then told Fox there had been a rumor to the effect the store at Hugo was going to close, and the Foodway store was receiving merchandise from Hugo. Fox replied they had until October 1968, to improve the volume of business at this store. Fultz then asked to have a few days to think the matter over, but Fox told him he had to know something that day. Fultz testified that on the way back to the Foodway store he asked Seagroves what would happen to him if they closed the Hugo store, and Seagroves replied he did not know. Fultz stated that after returning to the Foodway store he was confronted by Doug Bates, supervisor for the Company in West Texas, and he informed Bates he was not taking the Hugo job. Bates subsequently informed Fox of Fultz' decision . Fox then called Manager Seagroves and told him to talk to Fultz, and to tell him if he did not take the Hugo job, the Respondent did not have a job for him at the Foodway store. According to Fultz, Seagroves then asked him if he was going to take the Hugo job, and Fultz testified he told Seagroves he was not going to Hugo, and Seagroves then told him he did not have a job at Foodway. Follwing this conversation Fultz himself called Fox to ascertain his status, and Fox asked him, "You are not going to take the store?" Fultz said, "No." Fox replied "You don't have no job there." Fultz testified he then told Fox it seems "funny" to him that after six and one-half years his work was suddenly unsatisfactory. Fox stated, "Well, we've got to cut expenses," and after some additional conversation , Fox informed Fultz that he was fired. Fultz then called Brownlee in Fort Worth and told him he had been discharged. Fultz testified Brownlee then informed him "we wanted you to go to Hugo and we felt that you let the Company down and we felt that you would be an asset down there." Fultz also stated that within a week or so following his discharge the Respondent's store in Hugo was closed , and that the first time he heard anything about the store managership in Hugo was on August 12. Fox testified that on or about July 7, 8, or 9, 1968, Brownlee came to Ardmore to confer with him with regards to a possible management change in the store at KIMBELL CORPORATION Hugo as they had just reviewed the annual fiscal reports ending June 30, 1968. Brownlee insisted that a management change in Hugo was necessary, and they then discussed the available men, under the jurisdiction of Fox, who could handle this job. Fox stated he felt Fultz would be the best qualified person to take the job as he had prior experience as a store manager . Brownlee and Fox also discussed who would take Fultz' place at Foodway, and Fox advised that Bob Wilson, who had previously worked for the Company, had stated to him that he would like to come back to work. Fox testified that 2 or 3 days later he talked to Fultz, and informed him of the possibility of a store manager's job, and Fultz then told Fox he would be interested as he needed more money. Fox further related that on or about August 1, 1968, he again spoke with Brownlee about the management change at the Hugo store. On this occasion he informed Brownlee that Wilson progressing satisfactorily at the Foodway store,'° and that Fultz would be moved to Hugo, but would delay the change until he (Fox) was released from the hospital. Fox went on to testify that on August 12, 1968, Brownlee again called him and inquired about the Hugo change, and Fox then told Brownlee that in his visit to Ardmore on August 9, as aforestated, he had instructed supervisors to make no change or statements without prior approval from Brownlee, but after concluding his telephone conversation he then called Seagroves and had him bring Fultz to his house, as previously setforth herein. Fox stated he then informed Fultz of his promotion to the Hugo store, and that he would start him out at $140 a week, a $40 raise over his present salary. Fultz asked Fox whether it was true the Company was going to close down this store, and he then advised Fultz there was a possibility that they would, but they felt like he could "turn the store around." Both Fox and Brownlee affirmatively stated they had no intention of closing the Hugo store at the time the job was offered to Fultz. Fultz then told Fox he needed to talk to his wife and Fox asked him to let him know something that day, and also advised him that Bates was on his way up to Ardmore from Texas, and that he would help Fultz get the Hugo store open the following morning . Fox went on to testify that late in the afternoon of August 12, Bates came to his home and informed him that he had spoken to Fultz, and Fultz had advised him he was not going to go to Hugo. Fox then called Brownlee and told him of this, and Brownlee asked Fox to talk to him and try to get him to change his mind. Brownlee further informed Fox that if Fultz would not take the job to release him. Fox stated this was the first time in 30 years of experience of anyone not accepting a store manager job. Fox then called Seagroves at Foodway and asked him to check with Fultz and that if he did not want the Hugo store to tell him the Company did not have a job for him. Fultz then called Fox and advised him he did not want to go to Hugo, and that he had bought a place in Ardmore that day. Later that evening Fultz called him again and asked Fox if he realized he was firing him while under a doctor's care, and Fox stated that he was not aware of this. Fultz also told Fox he would see him in court. Fox stated that in the past the Company had used their Foodway store as training grounds for store managers, that employees were aware of this, and Fultz had previously gone into a store managership from Foodway. "Apparently Wilson had been hired in the interval between the middle of July and August 1, 1968. 833 Brownlee also gave considerable testimony in regard to Fultz and his statements were in general corroboration to the testimony of Fox. Brownlee further stated that on the night of August 12, when Fultz called him in Fort Worth and advised he was not going to Hugo, he also inquired what would happen to him if the Hugo store closed. In response to this question Brownlee advised Fultz they were not planning to close the Hugo store, and second, the Company would take care of Fultz, "just like we did when we closed the No. 8 store in Ardmore when he was manager." Brownlee went on to state that the $140-a-week salary he offered Fultz as base pay, was a little higher than they were paying the manager at the Foodway in Ardmore because of the fact that the Hugo store had been a problem and it would take some time to improve the sales, and Fultz would not draw the usual store manager's bonus. Brownlee indicated that some merchandise from the Hugo store had been transferred, but stated this was due to the fact that the storeroom in Hugo was filled up and he had to get the merchandise in a store where it would sell. He also testified he was never able to find a man to take over the Hugo store, and it closed shortly after October 1, 1968. It is the position of General Counsel that the discharge of Fultz was motivated by a desire on the part of the Respondent to rid itself of the leading union adherent in its stores, and thereby undermining the Union in its organizational efforts. The General Counsel also points out that Fultz secured 10 of the 18 authorization cards, that Brownlee isolated the union activity to be mainly concentrated in the Foodway store, that Fultz was considered a valuable employee by the Company, and that the pretextual nature of Respondent's defense is reflected in the "shifting" reasons given for Fultz' discharge. The Company maintains that Fultz was terminated because he would not accept the responsibility they had asked him to accept. There were some questions raised with reference to the supervisory or nonsupervisory status of Fultz. Fultz denied he had been told he was the assistant manager, denied that he had told any employee this, and refuted the contention he had authority to hire or fire employees. Fox stated that Fultz was the assistant manager of the Foodway store, and he could recommend the hiring and firing of employees. However, Respondent did not produce any valid or credited incident showing that Fultz exercised this alleged supervisory authority, and it was finally admitted by Fox that Seagroves had the ultimate responsibility for the Foodway store. The Respondent also admitted that Fultz' work with the payroll at the Foodway store was in the form of clerical duties - merely adding hours worked by the employees and that final pay computation were done in Fort Worth. Simply because a man is given a title of assistant manager does not of itself make that employee a supervisor within the meaning of the Act. The testimony in this record clearly established that Fultz was nothing more than a rank-and-file employee at the time of his discharge." The Respondent gained official knowledge of the union activity on August 8, 1968, when Brownlee received the Union's letter requesting recognition. To establish knowledge of the specific employees involved in union activity - the General Counsel relies on the fact that the following day Brownlee made a personal visit to Ardmore, "The General Counsel withdrew his trial amendment to paragraph 6 of the complaint alleging that Robert Wilson was a supervisor or agent within the meaning of the Act. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conferred with supervisors and Bob Wilson relative to the organizational efforts, as aforestated . Brownlee stated that in his conferences on August 9 he merely ascertained there had been some union activity , and the Union had secured a small number of supporters . On the morning of August 9, Fox was released from the hospital, and, therefore, had no personal knowledge of any union activity and so informed the other present at the conference in his home . Fox then inquired of Meat Market Manager Gee and Bob Wilson if they knew anything about organizational efforts , and both replied in the negative.'2 Based upon this record there is no evidence that the Company had any reliable knowledge of Fultz' activity for the Union prior to his discharge . To establish this essential element, the General Counsel also relies on the testimony of Fultz that in late July or early August, 1968, Bob Wilson asked Fultz about "the union deal." Fultz testified he then replied, "that's done blowed over a long time ago." Although Wilson indicated he knew union activity was going on, there is no evidence he had ascertained in any way the identity of the employee leaders or that he was in any position to actually know Fultz' participation for the Union . This record does not show Wilson attending any meetings of the Union or signing an authorization card." The General Counsel further maintains that the extensive card signing activity by Fultz is also indicative of Company knowledge and a subsequent discriminatory discharge . The General Counsel points to the testimony that at least six authorization cards secured by Fultz were obtained from employees while on Respondent's premises. It appears to me this theory is extremely difficult to successfully maintain, as Fultz himself agreed that he was careful and secretive in signing employees "so that Mr. Seagroves did not know about it." Against a solid array of substantial credible testimonial evidence supporting Respondent ' s contention that Fultz was dismissed for cause, as indicated above, there is a dearth of evidence to support the theory of General Counsel - who of course carries the burden of proof here - that Fultz was dismissed because of his union membership, sympathy or activities , or to discourage union membership . It is of course obvious that mere union membership and activities do not insulate an employee from discharge for other reasons Union membership and activities is not a shield behind which a discharged employee can take refuge and claim discrimination . . The burden remains upon the General Counsel to prove that the reason for the discharge was the employer's anti-union hostility. An employer is not obliged to treat a union member differently or with greater deference than any of his other employee . Poor performance , misconduct and insubordination, for example, do not have to be tolerated merely because the offenders are among the plant's most active union supporters. An employer's stated opposition to unionization is not in itself sufficient evidence to sustain a finding that an employee was discharged because of discrimination against a union." N.L.R.B. v. Bangor Plastics, Inc., 392 F.2d 772, 777 (C.A. 6). The evidence overwhelmingly establishes that the Company had an immediate and pressing problem with its store managership in Hugo and in the judgment of "There is no allegation in the complaint that this single conversation with Bob Wilson in August, was violative of the Act "Wilson was not called as a witness in the trial before me Brownlee and Fox, the only capable man to adequately handle this difficult economic situation with Fultz. There is no showing by the General Counsel that this problem was not real - or that it was manufactured, trumped-up, or pretextual on Respondent's part, nor is there a showing of any unlawful discriminatory application in the selection of Fultz for this job. The re-establishment of increases sales at the Hugo store loomed large in importance to the Company, and such is confirmed by witnesses and by the fact that the Hugo store did close its doors in early October 1968. In order to find that Fultz was unlawfully terminated - I would have to draw an inference that the Company offered the Hugo job to Fultz knowing this store would be closed down, and with a further inference that after closing it down the Company would have then discharged Fultz. As pointed out, both Brownlee and Fox testified they had no intention of closing the Hugo store if Fultz could make it a profitable venture. Brownlee assured Fultz he would take care of him if in fact the store was closed, just as the Company had previously done in 1967 when they closed another store in Ardmore where Fultz had been the manager. This assurance by Brownlee was not specifically denied by Fultz although he could not remember it. Therefore, I would have to make an additional inference that the Company would not have transferred Fultz back to one of their operating stores if and when the Hugo store closed, and Brownlee's affirmative promise and credited testimony he would in fact take care of Fultz, together with the fact that the Company had previously transferred Fultz in a like situation, is sufficient proof to rebut any inference that the Respondent would not have so transferred Fultz if the Hugo store had to be closed. I am not prepared to pile one inference upon another in order to reach a conclusion that there was substantial evidence, nor am I required to do so. There is also some indications in this record that the discharge was discriminatory because some other person could have been transferred to the Hugo store.1" This record shows that other than the store located at Purcell, Foodway was the only one to have Assistant Managers (Fultz and Wilson) and as pointed out, on August 12, 1968, there were only three assistant managers in the jurisdiction supervised by Fox - those being Wilson and Fultz at the Foodway store in Ardmore, and Shockley at Purcell. Neither Shockley nor Wilson had any previous store manager experience, and Fultz was the only one that had such experience." There was also an attempt to show that Shockley was transferred from the store in Purcell to Foodway to take Fultz' place. However, this record shows that Shockley was not transferred, but resigned his job at Purcell and came to Ardmore to attend a special school. His services then became available to Foodway, and he was hired in late August 1968, due to the above factors and also because Foodway was short of help as several young package boys had returned to school. The General Counsel argues that the August 12 discharge of Fultz is "highly suspicious" due to its timing - just a few days after the Company received notice from the Union. However, reliable evidence in the record shows "Fox had 10 stores in Oklahoma under his supervision or jurisdiction. The Foodway store has about 18 employees, and the number of employees and other stores are located in the following Oklahoma towns . Purcell, 9; Village Ardmore, 9; Healdon, 6; Marietta , 6; Sulphur, 6; Wilson, 5, Midell, 4; and Davis, 4 employees. "Wilson had been out of the grocery business for several months prior to being rehired by the Company KIMBELL CORPORATION that initial considerations to place Fultz in Hugo were undertaken on or about July 10, 1968, before any union activity, and it is also clear that Fox did not want to transfer Fultz until Wilson had an opportunity to get acquainted with the work at Foodway. Fox then indicated the change could have been made in early August, but explained he wanted to postpone the final decision until he was released from the hospital, as aforestated. The record reveals some testimony by Fultz that the transfer to Hugo would have placed a considerable burden on him . As pointed out, Brownlee sent area Supervisor Bates from West Texas to Ardmore on the date in question for the purpose of helping Fultz to make the move, and on the night of August 12, when Fultz called Brownlee in Fort Worth, he concluded his conversation with Brownlee by telling him he wanted to go to West Texas and work for Bates. This requested transfer to Texas by Fultz would certainly be a greater distance and burden in family moving arrangements than the approximate 100 miles involved from Ardmore to Hugo. An employer does not violate the Act by expecting too much of employees. Provided no violation of the Act is involved, no offense against the Act is committed by an employer who discharges an employee even at will or whim. Act, Sec. 10(c); N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26; N.L.R.B. v . Waterman S. S. Corp., 309 U.S. 206 218-219; N. L. R. B. v. Finesilver Manufacturing Company, 400 F.2d 644 (C.A. 5); Betts Baking Co. v. N.L.R.B., 380 F.2d 199, 203 (C.A. 10); N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505-507 (C.A. 6) cert. denied, 389 U.S. 843; N.L.R.B. v. Soft Water Laundry, Inc., 346 F.2d 930, 934 (C.A. 5); N.L.R.B. v. Redwing Carriers, Inc., 284 F.2d 397 (C.A. 5); Dieckbrader Express, Inc., 168 NLRB No. 113; Kayser-Roth Hosiery Co., Inc., 166 NLRB No. 56; Guyan Machinery Company, 155 NLRB 591. In the instant case, it cannot be said the Company was requiring Fultz to do too much. The Company was not asking Fultz to take a less desirable position at a loss in pay, but exactly to the contrary. He would have been transferred to a store managership and at a considerable increase in salary-even higher than other store managers were receiving. An employee has no right to insist upon employment on terms prescribed solely by him. In the final analysis, the Respondent has shown a real economic necessity and reason for the transfer of Fultz; it has shown that the decision was based on background qualifications and experience after careful evaluation or deliberations; and this record further shows that the Company had no specific prior knowledge of Fultz' individual union activities. I find that it has not been established by substantial credible evidence , as required, that Respondent discharged Fultz because of his union membership, sympathy, activities, or support, or in order to discourage union membership. This, the measure and limit of the issue here, has simply not been proved. By letter dated August 5, 1968, the Union informed the Respondent it represented a majority of its employees, excluding meat department employees , in its Foodway and Village stores, and offered to prove its majority status by a cross check of signed authorization cards . In this letter the Union requested recognition for all employees in the grocery and produce departments, specifically excluding one store, manager, meat department employees, guards, watchmen , and supervisors as defined in the Act. By letter dated August 9 , 1968, Brownlee informed the Union as to the proper ownership of the two stores in question, and then denied the request for recognition on the basis the 835 Company did not believe the Union represented a majority of its employees, and its doubt as to the appropriateness of the requested unit. 16 On the record in the instant case, I am unable to conclude that the Respondent acted in rejection of the collective-bargaining principle or to gain time in which to undermine the Union and dissipate its purported majority. As the Board stated in Hercules Packing Corporation, 163 NLRB No. 35, "The burden is upon the General Counsel to establish that the employer in bad faith declined to recognize and bargain with the Union." Upon consideration of the entire record, I find that the General Counsel has not sustained his burden. While an employer's right to a Board election is not absolute, it has long been established Board policy that an employer may refuse to bargain and insist upon such an election as proof of a union's majority unless its refusal and insistence were not made with a good-faith doubt of the Union's majority." An election by secret ballot is normally a more satisfactory means of determining employees' wishes, although authorization cards signed by a majority may also evidence their desires. Absent an affirmative showing of bad faith, an employer, presented with a majority card showing and a bargaining request, will not be held to have violated his bargaining obligations under the law simply because he refused to rely upon cards, rather than an election as the method for determining the Union's majority. Whether an employer is acting in good faith or bad faith in questioning the Union's majority is a determination which of necessity must be made in the light of all the relevant facts of the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct. Where a company has engaged in substantial unfair labor practices calculated to dissipate union support, the Board, with the Court's approval, has concluded that the employer insistence on an election was not motivated by a good-faith doubt of the Union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the Union. As previously detailed herein, the Respondent committed no violative 8(a)(1) or 8(a)(3) unfair labor practices. This factor is of utmost importance is ascertainment of good or bad faith, and highly relevant when looking at the entire scope of Respondent's conduct. After Brownlee received the Union's demand for recognition, he called two employees to find out if there was any basis for the letter, and then on the next day, August 9, went to Ardmore and made further inquiries there, as aforestated, about this matter. In regards to his conference at Ardmore on August 9, 1968, Brownlee "The described unit in the complaint was found to be appropriate by the Regional Director in his Decision and Direction of Election after a representation hearing was held in Case 16-RC-4979, and this is essentially the same unit the Union requested recognition of in its letter and in its Petition for Election, as aforestated Since it has been uniformly held that insubstantial variations in the unit described by a Union in its request for recognition does not destroy the validity of an otherwise valid demands, the inconsequential change here in the language describing the unit is of no effects The Company also raised the argument at the trial and in its brief, to the effect that the Union did not , in its letter nor at any other time, ever request the Respondent to bargain It is well established that a demand for recognition constitutes a request to bargain , and that no particular form of words are necessary to appraise the employer of a demand to bargain. "Joy Silk Mills, Inc. 85 NLRB 1263, 1264, enfd. 185 F.2d 732 (C A D.C.), cert denied 341 U S. 914 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated the following: We were a little surprised, very much surprised, when we got this letter from the Union to start with, and in my inquiries to Mr. Fox and their answers to him were that there were no union activities as far as he knew. I wanted to go a little further. I wanted to find out and so we talked to the store managers, these 2 employees, to try and find out if in fact there was any kind of union activity. We did find out there had been some activity and that it was apparently a very closely guarded secret and that these people had pledged friendships and so forth and promises. They hadn't said anything about it and really didn't want to discuss it then so we dropped the subject. We needed to know if there was any basis to think that the Union might have a majority of the employees. Brownlee further stated: We were just trying to find out if the Union had been in the stores or had contacted our employees. That's what we were interested in finding out. Brownlee also testified that at the August 9 conference - Fox, and Store Managers Seagroves and Younger, indicated that they knew nothing of the Union, and based on such information they could not believe there was any substantial interest in the Union. Upon completion of the Ardmore meeting - Brownlee then consulted with his attorney and passed along the above information - that there was no possible way the Union could have a majority. Brownlee then sent his reply letter to the Union. 18 Up to this point or date in the sequence of events, it is obviously apparent the Company had reasonable grounds to entertain their doubt as to the Union's majority. From August 9 until October, the Company did absolutely nothing in regards to the Union, and the complaint inself duly reflects that all alleged misconduct other than the discharge of Fultz, did not take place until October. As specifically detailed earlier herein, I have found no violative conduct in the October period preceding the election. In October, Brownlee also had individual conversations with almost every employee, but "Brownlee noted that the Union's demand letter stated their willingness to let him check the authorization cards, but testified the Company not want to know who had signed the cards and that an election was the best method to settle the matter yet this record shows there was only one isolated incident where he overstepped permissible bounds of inquiry and if the Company had any intentions to undermine the Union or to destroy its majority, as so alleged in the complaint, these occasions certainly presented an excellent opportunity. Brownlee testified that in his October talks and conversations with employees, he told them they should vote whatever way they wanted, and that nobody would know how they voted as it would be a secret election conducted by the Board. He then concluded this line of testimony by stating, "I never made an anti-union talk. I think I was just the opposite. I think I probably leaned over backwards to be fair...." This record is in overwhelming support of Brownlee's testimony, and his most unusual and remarkable candor. In the concluding summary of this case, there is no evidence that the Company completely rejected the collective-bargaining principle or refusal to bargain with the Union, or that it refused to recognize and bargain in order to gain time to undermine and destroy the Union's majority. The Respondent's desire to invoke the procedures of the Board for an election, and in the absence of unfair labor conduct and for all other reasons given herein, are more consonant with my finding that the Company had a good-faith doubt of the Union's majority. Accordingly, I shall also dismiss the 8(a)(5) allegation of the complaint." CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety.20 "In view of my dismissal of the 8(a)(5) allegation , it is unnecessary to consider any of the issues and contentions relating to the authorization cards and the Union's majority status Discussions and conclusions on the cards could in no way alter my findings herein "In accordance with the above objections 1, 2, 3, 5, 8, 10, and 11 in 16-RC-4978 are overruled.