Cascio's Food Mart

CASCIO'S FOOD MART 19 Ben V. Cascio, d/b/a Cascio's Food Mart and Retail Store Employees Local Union No. 782. Case 17-CA-4757 May 22, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO August 31, and Respondent's answer is dated September 8. The issues are whether Respondent , Cascio's Food Mart,2 herein called the Employer, ( 1) unlawfully interfered with the rights of its employees in violation of Section 8(a)(1) of the National Labor Relations Act and (2) discharged Dixie Nicely on June 30 in violation of Section 8(a)(3),of that Act.3 Upon the entire record , including my observation of the witnesses, and after due consideration of the brief filed by the Employer, I make the following: On December 8, 1971, Trial Examiner Arnold Ordman issued the attached Decision in this pro- ceeding. Thereafter, both the General Counsel and the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent herewith. The Trial Examiner has discredited all the evidence offered by the General Counsel that Respondent had threatened to impose arduous working conditions or had threatened layoff or reduction of hours because of the filing of a grievance by Nicely. The Trial Examiner, however, found that the Respondent did violate Section 8(a)(1) when it asked Nicely if she had instituted a union grievance against the Respon- den, and why she had done so. We find that this inquiry, standing alone, did not rise to the level of an 8(a)(1) violation. However, even assuming that this single, isolated incident may have constituted a technical violation, we do not believe that in the circumstances of this case the issuance of a Board order would be warranted or would effectuate the policies of the National Labor Relations Act. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(k) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARNOLD ORDMAN , Trial Examiner: This case was tried in Kansas City, Missouri , on October 13, 1971.1 The charge was filed by the Union on July 8, complaint issued on FINDINGS AND CONCLUSIONS I. JURISDICTION The Employer, a sole proprietorship in Independence, Missouri, is a retail store doing more than $500,000 worth of business a year, and annually purchases more than $50,000 worth of goods and merchandise directly from enterprises located outside Missouri. The Employer ad- nuts, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Employer also admits, and I find, that the Union, named in the caption, is a labor organization within the meaning of Section 2(5) of the Act. 11. ALLEGED UNFAIR LABOR PRACTICES A. Background The Employer has a total complement of about 89 employees. During the period relevant here, the Employer had a collective-bargaining agreement with the Union covering the store employees other than those in the meat department who are represented by a different labor organization . Ben V. Cascio is the owner and manager of the Employer and is the individual alleged in the complaint to have engaged in the unfair labor practices there alleged. Dixie Alice Nicely, also called Dixie Nicely, a member of the Union who worked as a checker and was covered by the collective-bargaining agreement, is the employee alleged to have been discriminatorily discharged and to have been the victim of other unfair labor practices. 1 All dates herein are in 1971 unless otherwise stated 2 The complaint in this proceeding was amended at the hearing to show the name of the Respondent as it appears herein 3 At the opening of the hearing the Employer moved to dismiss the portion of the complaint alleging the discriminatory discharge of Nicely on the ground that the collective-bargaining agreement contained a grievance- arbitration procedure under which the validity of the discharge could be determined Citing Collyer Insulated Wire, 192 NLRB No 150 ( 1971), and a speech by Chairman Miller reported at 78 LRRM 28 (1971 ), the Employer urged that the Board should defer to the arbitral process here The speech, of course, has no value as a legal precedent and, in any event, merely explicates the Collyer decision Analysis of that decision, in the light of the disposition of the entire case, does provide a basis for a plausible argument to support, not a dismissal , but a deferral of Board proceedings pending arbitral action However, the expressed rationale for the Board's determina- tion to defer to the arbitral process in Collyer was much tighter than the disposition of the entire case would suggest The rationale was predicated on the circumstance that Collyer turned in substantial part on a tight question of interpretation of contractual language and its meaning, which is "the very stuff of labor arbitration." That is not the situation in the instant case where the simple issue as presented in the pleadings is whether a discharge occurred and, if so, whether it was for discriminatory reasons in violation of the Act Accordingly, the motion to dismiss the allegation of an 8(a)(3) violation in the discharge of Nicely was denied 197 NLRB No. 6 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint is laudably precise. It alleges, in sub- stance, that the Employer, acting by and through Ben Cascio, interrogated an employee on June 24 concerning her union and other protected concerted activities by telephone at the employee's home; threatened an employee on June 24 by telephone at her home that the store would be sold because of the employees' activities; threatened an employee on June 24 by telephone at her home with more arduous working conditions because of the employees' activities; promised an employee on June 30 to refrain from discharging her if she would refrain from engaging in protected activity; and on June 24 and June 30, threatened an employee with discharge for continuing to engage in such activity. Finally, the complaint alleges that the Employer, acting by and through Ben Cascio, discrimina- torily discharged Dixie Nicely on June 30 and refused to reinstate her until July 2. The thrust of the complaint's allegations has to do with Cascio's conduct on June 24 and June 30. The evidence relating to that conduct is set forth below. B. The Conduct on June 24 The sequence of events material here really began in May 1971.On May 22, the Employer posted a notice to the employees that beginning May 24 the workday would be cut from 8 hours to 7. This reduced the workweek from 40 hours to 35 hours and the Employer made an accommoda- tion by opening the store 1 hour later and closing it 1 hour earlier. The employees were quite naturally perturbed by this cut in their working hours and discussed it extensively. On the evening of May 26, at a union meeting, employee Dixie Nicely and several of her female coworkers talked with Harry Hess, secretary-treasurer of the Union, to consider possible action.4 Hess furnished the women with a union grievance form which he had prepared and urged them to sign the grievance. However, the women stated that they did not want to sign the grievance until they talked to the full-time male stockers who were also affected by the cut in hours. When the stockers refused to join in signing a grievance, the women refused to sign. However, they assured Nicely that they were behind her 100 percent, if she went ahead and filed a gnevance.5 No further action was taken in regard to filing a grievance until June 24. Early that afternoon Nicely called Hess on the telephone and asked what could be done about the cut in hours. She complained further that some of the girls had received vacation pay which did not include an increase to which they were entitled. After some discussion during which Nicely assured Hess that the other girls were behind her 100 percent, a decision was made that the Union would file a grievance on behalf of the employees. 4 Nicely testified that the employees with her at the talk with Hess were Lois Latz, Lillie Mae Sutton , Marlene Decavelle, and Ruth Anderson S Employee Marlene Decavelle, a witness for the Employer, denied on direct examination that she ever told Nicely that she supported the grievance or would back Nicely 100 percent, if Nicely filed the gnevance. On cross-examination , however, Decavelle substantially qualified that testimony by admitting that she fully backed Nicely's effort "in getting our 40 hours back " I find that Decavelle, like the other women , did assure Nicely of her support and backing 6 Nicely and Hess fix the date of these calls as June 24 Bledsoe fixed the Immediately after the phone call, Hess dictated the grievance letter charging the Employer with violations of the collective-bargaining agreement in cutting work hours and in making inadequate vacation payments. The letter further stated that the grievance was being filed "on behalf of Lois Latz, Bonnie DeWinter, Lillie Sutton, Marlene Decavelle, Dixie Nicely and all other employees who were full-time on and prior to May 24, 1971." The names listed were given to Hess by Nicely when he asked for names of full-time checkers. The grievance letter was dated June 24 and mailed at 4 o'clock that afternoon to the Employer. Copies were also mailed to the employees named in the grievance. Earlier that morning and before her telephone call to Hess, Nicely had talked to Lillie Mae Sutton and Lois Latz about filing the grievance. Lillie Mae Sutton later that day called Jerry Bledsoe, the Employer's assistant manager, and told him that a grievance had been filed using her name, that she had nothing to do with it, and that she had not authorized the use of her name. Bledsoe relayed this information to Ben Cascio. Cascio, who was apparently also informed that Dixie Nicely was the moving force behind the grievance, called Dixie Nicely at her home to find out what the story was and why she was filing a grievance. This call took place a few hours after Nicely had finished talking to Hess about filing! the, grievance .6 According to Nicely, the conversation was as follows: Cascio identified himself and then said, "I want to know one thing. Did you call the union on me?" When Nicely admitted that she had, Cascio commented, "Well, if you're dissatisfied with your job, why don't you quit?" Nicely replied that she did not want to quit and complained that "I don't think you done us full-time girls quite right by cutting our hours without cutting the part-time help out first." Cascio retorted that he had cut everybody's hours, that the raise which the Union had negotiated was costing him over $800 a week, that he could not stand it, and that Nicely was the only one yelling about the cutting of hours. When Nicely responded that others were dissatisfied also, Cascio said five different employees had told him that Nicely was the only employee protesting.? Nicely recalled that Cascio also talked about selling the store and leaving all the employees without jobs, that Cascio asked her whether she would be satisfied with her old hours at her old rate of pay and suggested, when Nicely refused to commit herself, that Nicely was looking out only for herself. Cascio's closing remark, according to Nicely, was "Well, Dixie, I just called to let you know that I didn't appreciate your turning me in to the union." Cascio's version of the conversation was somewhat different. He confirmed that he asked Nicely whether she filed a grievance and why, and that Nicely replied it was because of the cut in hours. Cascio confirmed also that he date of his call from Sutton as June 25 Cascio was quite uncertain about the precise date, but testified positively that it was a few days before he received the gnevance which Hess had sent by registered mail. From the total pattern of the events set forth in the record, I am satisfied that the telephone calls here described were made on June 24. r I believe Nicely was confused in recalling that Cascio told her in this conversation that five different employees reported to him that Nicely was the only employee protesting At the time of this conversation , Cascio knew only of employee Sutton's position Later, he did speak to some of the other employees involved. CASCIO'S FOOD MART had spoken of his cost increase of $831 per week because of the pay raise and that he either had to sell the store or get the wages down because, the profits were very low. In reply to Cascio's question as to why Nicely was filing the grievance and "involving these girls," Nicely said, accord- ing to Cascio, "it was all their idea." Cascio denied saying to Nicely, "Did you call the union on me?" He also denied saying that if Nicely did not like her job, why didn't she quit. He acknowledged that he had spoken of selling the store, but said this remark was made in the context that inability to make a profit because of the pay raise could require a sale of the store. Finally, he denied saying to Nicely that he did not appreciate her turning him in to the Union. As already noted, the complaint alleges that Cascio in the course of this conversation of June 24 violated Section 8(a)(1) of the Act by interrogating Nicely concerning her union and other protected concerted activity, by threaten- ing her with discharge and other economic reprisals if she continued to engage in such activities, and further by threatening to sell the store or to impose more arduous working conditions because of these same activities. It is uncontroverted that Cascio intended to, and did, inquire of Nicely not only whether she had instituted a union grievance against the Employer, but also why she had done so. Such inquiries cannot be exonerated on the ground that Cascio was seeking to identify and resolve the grievance which, incidentally, he had admittedly not even yet received. Moreover, resolution of the grievance, which Cascio was admittedly seeking, was a matter to be taken up with the Union as the designated representative of the employees and not with Nicely or any of her fellow employees. In these circumstances, I find that Cascio's questioning of Nicely concerning her institution of the union grievance and the reasons therefor was coercive interrogation concerning a protected activity and a violation of Section 8(a)(1) of the Act. Henry Colder Company, 163 NLRB 105, 125-128 (1967), affirmed in this respect, 416 F.2d 750 (C.A. 7, 1969). I find inadequate support in the record to warrant a finding that Cascio in the telephone conversation of June 24 threatened Nicely with discharge or other economic reprisals or threatened to sell the store or impose more arduous working conditions because of Nicely's union or other protected concerted activities. Counsel for the General Counsel did not explicate, except by brief reference in his opening statement at the hearing, the evidence upon which he relies in that regard. That brief reference was to Cascio's alleged comment that if Nicely were not satisfied with herjob, why didn't she quit. Cascio denied making this remark, but even assuming it was made, I would not regard it in the total context of the conversation as a threat of discharge. Similarly, Cascio's comment about selling the store is flimsy foundation for a finding of a threat. Nicely could not recall in what connection the comment was made. Cascio testified positively that he made the comment in connection with the discussion of his possible options to meet the increased costs arising out of the pay raise. B As already noted, Latz, Decavelle, and Sutton, together with Nicely, had met with Hess on May 24 to discuss the cut in hours Nicely testified 21 The evidence in support of the allegation that Cascio threatened to impose more arduous working conditions rests presumably on his alleged inquiry of Nicely as to whether she would be satisfied with her old hours at her old rate of pay. Nicely had difficulty in recalling the statement at all, and Cascio denied that he made it. Here again I find difficulty in construing the alleged statement, even if it was made, as a threat. C. The Events of June 30 The day following the June 24 telephone conversation between Cascio and Nicely, Cascio talked separately to Lois Latz, Bonnie DeWinters, and Marlene Decavelle. Each of these employees disclaimed any involvement in the grievance.8 Several days later, on June 30 about 9 a.m., Cascio called Nicely from her checkout stand to his office in back of the store admittedly to find out more about the grievance and how it could be resolved. By this time, Cascio had received the grievance letter from the Union. Cascio was also, as he testified, "very mad" as a result of the information he had received from Sutton, Latz, DeWinters, and Decavelle disclaiming invovvment in the grievance in which their names were listed. According to Cascio, he said to Nicely, "Dixie, I'm very displeased with the way you're using these girls' names, and you're lying to me. All these girls, I've talked to each one of them, and they don't want to have anything to do with the filing of this grievance." When Nicely responded, "Well, it was all their idea," Cascio took issue, saying he had talked to all of them. Cascio testified that Nicely then said, "Well, if they're not going to do anything, then I won't do anything," at which point Cascio suggested that if that was the situation she ought to telephone Hess. After several futile efforts to reach Hess on the telephone, Nicely left word at the union office to have Hess call her back at the store and returned to her work station. Nicely also testified to this conversation. Her testimony was that Cascio opened the conversation by raising the grievance issue and told Nicely that all four girls denied having anything to do with the grievance. Nicely replied that the other girls named in the grievance (presumably not including DeWinter) had gone with her to talk to Hess about the cut in hours. Cascio then said, according to Nicely, "Well, we had a meeting last night, and we decided to let you go." Commenting that Nicely was a "trouble- maker," Cascio then added "If you get on the phone over there and call the union office and talk to Mr. Hess, have him call the grievance off, you can go back to work now." Nicely agreed that there were several futile telephone calls and that she left word at the union office for Hess to call her back. Cascio denied saying that there was a meeting at which it was decided to let Nicely go or that she was a troublemak- er. He further denied offering to keep Nicely on thejob, if she succeeded in getting the grievance dropped. Cascio that she had never had any discussion with DeWinters in this regard. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also denied that he had ever discharged Nicely or told her that she should not file grievances.9 Further events on June 30 and on the following day throw some light on the matters in issue. When Hess did not return the telephone call, Nicely called him during her lunchbreak, told him that the other girls "were not behind [her], that she was in this thing alone, and dust threw my life away, what could I do." She also told Hess that Cascio said she was fired, if she did not drop the grievance.10 Hess advised Nicely not to drop the grievance and Nicely responded that she "would like to think this over." Nothing more was said that day. On the following day, July 1 about 8 a.m., Nicely called Jerry Bledsoe, the Employer's assistant manager, told him that Cascio had said she was fired unless she dropped the grievance, and stated that she was not going to drop the grievance. She asked Bledsoe what she should do. Bledsoe, who had no knowledge of the previous day's conversation between Cascio and Nicely, told her she would have to talk to Mr. Cascio and that in the meantime he would have to get somebody to substitute for her. Nicely then called Hess and narrated her conversation with Bledsoe. Hess told Nicely she had to go back to work, to call Bledsoe back and so advise him. Nicely did so, but Bledsoe told her he had already gotten a replacement for her for that day. Nicely asked Bledsoe if she could be put on sick call and Bledsoe advised her to talk to Cascio before she returned to work.11 Nicely immediately reported this conversation to Hess also and acceded to his suggestion that Hess and Nicely go to the store together. This was done. They arnved at the store before Cascio. When Cascio appeared, Hess and Nicely engaged in a long discussion with Cascio concern- ing the grievance and the question of Nicely's discharge. Essentially, Nicely and Cascio repeated what had tran- spired in their conversation the previous day, but with the differing versions already set forth. Cascio, who denied that he had discharged Nicely the previous day, agreed during the discussion to let Nicely return to work immediately, provided he did not have to pay call-in pay to her replacement. Hess said call-in pay was required by the collective-bargaining agreement and Cascio dropped the offer. Hess and Nicely left after the close of the discussion with all parties agreeing that Nicely would return to work the following day. Nicely did so and at the time of the hearing was still in the Employer's employ. The record is silent on the question of whether a request for backpay was made for Nicely for the day she lost.12 No grievance was filed in that regard. The conversation between Cascio and Nicely on the morning of June 30, as to which we have two sharply different versions, is the basis for the allegations in the complaint that Cascio threatened discharge on June 30 and did discharge Nicely because of her protected grievance activity and that Cascio promised to refrain from discharg- ing Nicely, if she would drop that activity. The disposition of these allegations turns largely on credibility. If, as Nicely testified, Cascio told her that a decision had been made at a meeting to let her go and that she was a troublemaker and if, as Nicely also testified, Cascio said she could go back to work immediately, if she called Hess and got him to drop the grievance, then clearly the allegation of discriminatory discharge is substantiated as is the promise to restore Nicely's employment, if she terminated her grievance activity. However, Cascio flatly denied making these statements and flatly denied threaten- ing to discharge or discharging Nicely or offering to cancel the discharge, if Nicely called off the grievance. Based on the demeanor of the witnesses and also on the surrounding circumstances, I find that Cascio presented the more accurate version of his June 30 conversation with Nicely. I believe both tended to overstate the conversation as they recalled it. Cascio, concededly "very mad" at what he deemed to be Nicely's misrepresentations, probably spoke even more strongly than he testified he did. On the other hand, I consider it unlikely that he threatened to discharge or discharged Nicely on June 30 when he could have done so several days earlier when he learned of Nicely's supposed duplicity in using the names of her coworkers on the union grievance. Moreover, if he had decided to discharge Nicely on the morning of June 30, he could have done so forthwith instead of letting her return to her work post for the remainder of the day. Such a delay might have been explicable, if the purpose of the delay were to see if Nicely would get rid of the grievance. But there is no indication that Cascio made any effort to find out whether Nicely had succeeded in that endeavor or not, a circumstance which casts doubt on this assumption. Furthermore, there is no indication in the record that Cascio had informed Bledsoe, his assistant manager, of the discharge of Nicely, a step he would undoubtedly have taken to enable Bledsoe to obtain a replacement for Nicely. It is obvious that Bledsoe knew nothing of the situation until Nicely called him the following morning and, even under these circumstances, Bledsoe assumed that Nicely would return to work the following day, July 2. Cascio, too, assumed that Nicely would go back to work July 2 and was prepared to let Nicely work July 1, if he could escape the contractual requirement of paying Nicely's replacement 4 hours call-in pay. Finally, it appears that Nicely did report to work on July 2 and has worked regularly thereafter. This totality of conduct is hardly consistent either with a threat to discharge Nicely or, even more significantly, with an actual discharge of Nicely. I believe that Nicely misinterpreted or misunderstood the purport of Cascio's remarks which, because of his admittedly strong feelings in the matter and Nicely's own sensitivity to the fact that she had been '9 Joseph J Dolci, comptroller for the Employer, occupied an office adjoining that of Cascio and testified that he heard snatches of the conversation On his own admission, however, he did not hear much or most of the conversation and his testimony does not contribute in any significant way to resolve the discrepancies between the Cascio and Nicely versions 10 This statement is, of course, hearsay as to what Cascio actually said to Nicely It is set forth here as background only 11 Nicely testified that she was not sick, but did not otherwise explain why she asked to be put on sick call 11 While the conversation of July I between Hess, Nicely, and Cascfo was quite long and occasionally quite heated , counsel for the General Counsel disavowed at the hearing any claim of an 8(a)(1) violation flowing from the conversation that day The complaint likewise makes no allegations regarding the conversation on July I CASCIO'S FOOD MART 23 abandoned by her coworkers, would be a quite under- standable reaction. There remains for consideration only Cascio's asserted statement, which he denies, that he would keep Nicely on the job, if she called Hess and got him to drop the grievance. However, it is clear that Nicely was herself in doubt as to whether to press the grievance once she was told that her coworkers disavowed any involvement in the grievance. Indeed, she communicated her indecision in this regard to Hess even after Hess urged her not to drop the grievance. Under these circumstances I find it more credible to believe that Nicely did say to Cascio, as the latter testified, that "if [the other girls are] not going to do anything, then I won't do anything," and that Cascio interpolated at this point that Nicely should call Hess. While the wisdom of this suggestion might be somewhat doubtful, it is not alleged as an unfair labor practice. I find that Cascio did not condition Nicely's continued employ- ment on her dropping the grievance. D. Concluding Findings In sum, I find that the Employer, by and through its owner and manager, Ben V. Cascio, coercively interrogated employee Dixie Nicely concerning her filing of a union grievance and her reasons therefor in violation of Section 8(a)(1) of the Act. I find further that in all other respects the allegations of the complaint alleging violations of Section 8(a)(1) and. (3), of the Act are not established. CONCLUSIONS OF LAW 1. By coercively interrogating Alice Dixie Nicely on June 24, 1971, concerning her union and other protected concerted activities, the Employer engaged in an unfair labor practice within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 2. The Employer did not violate the Act in the other respects alleged in the complaint. REMEDY In order to effectuate the policies of the Act, I find it necessary to order the Company to cease and desist from the unfair labor practice found and from like or related unfair labor practices and to take certain affirmative action [Recommended Order omitted from publication.]