Thriftco Stores

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Klauser Corporation d/b/a Thriftco Stores and Retail Store Employees Union, Local No. 367, affiliated with Retail Clerks International Association, AFL- CIO. Case 19-CA-5984 August 22, 1973 DECISION AND ORDER BY CHAIRMEN MILLER AND MEMBERS JENKINS AND KENNEDY On January 24, 1973, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief , and the Respon- dent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: Contrary to my majority colleagues, I would find that when employee Richard Kirkwood attempted to assert his right to be paid the contract rate for the work he was performing, Respondent first unlawfully threatened him with discharge and then later discrimi- natorily removed him from the contract unit in order 1 We have noted our colleague's dissent, but are persuaded that the Admin- istrative Law Judge's findings are fully supported by the record and that they compel the conclusions he reached For example, the dissent finds Respondent's claim that Kirkwood was incapable of performing the full scope of the work of senior apprentice clerk to be "specious " But, as the Administrative Law Judge points out, there is record evidence to support it Two managers had so advised General Manager McGowan, Kirkwood had failed to follow instructions with respect to routine tasks, and, despite instruc- tion, Kirkwood was not able properly to place incoming merchandise at the proper locations This evidence was not, as the Administrative Law Judge pointed out, controverted by either General Counsel or the Charging Party Thus we have concluded that on such issues as this we are prepared to accept the evidentially supported findings of the Administrative Law Judge rather than the view of the facts advanced by our colleague to avoid paying him the wage rate to which he was entitled. Kirkwood had two separate periods of employment at Respondent's Villa Plaza store. The first occurred while Kirkwood was attending high school and his employment was arranged pursuant to a special edu- cation program conducted by the high school. Under this program, Kirkwood was permitted to work part time in the morning during school hours with the initial understanding that he would not be paid for his work. At the time these arrangements were being made, Respondent's store manager, Rinehart, was ap- parently told by school officials that Kirkwood need- ed exposure to work, but was not capable of becoming an experienced retail clerk. In any case, Respondent hired Kirkwood in December 1969 and assigned him to the performance of work which was covered under a collective-bargaining agreement between Respon- dent and the Union, although the Union was never notified of Kirkwood's employment. After working approximately 2 months without pay, Kirkwood asked that he be paid a salary and Respondent started paying him $1.60 an hour, which was far below the contract rate for bargaining unit work. Kirkwood graduated from high school in June 1970, but he con- tinued to work at the Villa Plaza store until August 1970, when he voluntarily terminated his employment to attend vocational school. Kirkwood again sought employment at the Villa Plaza store in the summer of 1971, after he had decid- ed to quit vocational school. He was rehired in August 1971, and returned to his former duties, working ap- proximately 20 hours each week at $1.75 per hour. In September 1971, Kirkwood requested more work and his hours were increased to approximately 31-1/2 hours per week. Some time in the early part of 1972, Kirkwood learned, apparently for the first time, of the pay scales set forth in the collective-bargaining agree- ment between the Respondent and the Union. Realiz- ing that he was being paid a wage rate which was considerably below the contract rate for such work, Kirkwood made several requests for a pay increase with no results. Finally, in April or May 1972, Kirk- wood asked Kingsberry, the new manager of the Villa Plaza store, about his previous requests for more mon- ey. Kingsberry replied that he had not considered that request and Kirkwood then asked if he could join the Union. Kingsberry told Kirkwood that if he joined the Union, Respondent would have to discharge him since it could not afford to employ him. Thereafter, Kirkwood complained about his wage rate to the Union and on June 8, 1972, he filed a written grievance, which alleged, in substance, that he was performing work covered by the collective-bar- gaining agreement and was being paid below the con- 205 NLRB No. 120 KLAUSER CORPORATION tract scale of $4 an hour for senior apprentice clerk. Nine days later, on June 17, 1972, Store Manager Kingsberry informed Kirkwood that he was being transferred to Respondent's Lake Crest store because of a financial need to cut back on the number of employees. Respondent's Lake Crest store was not covered under the collective-bargaining agreement between Respondent and the Union. In his new as- signment, Kirkwood performed virtually the same work that he had been doing at the Villa Plaza store and his rate of pay remained at $1.75 per hour. A few days after his transfer to the Lake Crest store, Kirk- wood had a conversation with Respondent's general manager, McGowan. During this conversation, Mc- Gowan asked Kirkwood to "call the Union off," and promised that if Kirkwood did this, he (McGowan) would help him get a better job in one of Respondent's stores. Kirkwood agreed to consider the offer, but later he informed McGowan that he had decided not to "call off" the Union. On June 26, 1972, McGowan offered Kirkwood the choice to two other jobs, both of which were outside the coverage of the collective-bargaining agreement. Kirkwood elected to take the maintenance job offered at the Villa Plaza store which provided for 16 hours of work a week at $2.50 per hour. In my judgment, these facts speak for themselves. There is no evidence that at the time Kirkwood was rehired, Respondent was misled into believing that he was still a participant in the high school special educa- tion program. For that matter, there is also nothing in the collective-bargaining agreement which would per- mit Respondent to hire students enrolled in special education programs. Likewise, there is no evidence that the Union was even aware of Kirkwood' s initial employment or his reemployment, much less that they authorized a special exemption in Kirkwood's case. Thus, Kirkwood's status at the time of his reemploy- ment certainly must be considered as that of a regular employee. Further, it is undisputed that Kirkwood was performing work covered under the collective- bargaining agreement, but at a wage substantially be- low the contract rate. The main thrust of Respondent's defense to these unfair labor practice charges is the claim that Kirkwood was incapable of performing the work of senior apprentice clerk, the classification to which he was entitled under the col- lective-bargaining agreement, and thus Respondent was forced to transfer him outside the bargaining unit. To me, such a claim is specious. Respondent was perfectly satisfied with Kirkwood's performance of unit work when it could obtain his services for $1.75 an hour. Kirkwood is no less competent because Re- spondent may now be required to pay him the higher contract rate for the same work. 667 Kirkwood had the right to insist on being paid the contract rate for the work he was doing, and admit- tedly in asserting such a contract right, Kirkwood was engaging in protected concerted activities. Respon- dent attempted to discourage Kirkwood from engag- ing in such activities by first threatening to discharge him and later discriminatorily transferring him out of the contract unit. Such a response is plainly violative of our Act and I would so find.' 2 Bunney Bros Construction Company, 139 NLRB 1516 DECISION STATEMENT OF THE CASE JERROLD H . SHAPIRO, Administrative Law Judge: The hearing in this case held on December 12, 1972, is based upon charges filed by the Union named above on August 4, 1972, and a complaint issued on October 17, 1972, on behalf of the General Counsel of the National Labor Rela- tions Board, herein called Board, by the Acting Regional Director of the Board, Region 19. The complaint alleges that Klauser Corporation d/b/a Thriftco Stores, herein called Respondent or the Employer, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. Respondent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record,' from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Klauser Corporation d/b/a Thriftco Stores is a corpora- tion organized under the laws of the State of Washington where it operates retail grocery stores from which it annual- ly receives gross revenues exceeding $500,000 and for which it annually purchases supplies originating from outside the State of Washington valued in excess of $50,000. The Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union, Local No. 367, affiliated with Retail Clerks International Association, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 1 The transcript of the record is hereby corrected in accordance with General Counsel's unopposed Motion To Correct Transcript 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE QUESTIONS PRESENTED There are two ultimate questions framed by the plead- ings. 1. Whether Respondent's store manager Kingsberry told employee Kirkwood that if he joined the Union, the Re- spondent could not afford to employ and would discharge him. If this statement was made, did the Respondent violate Section 8(a)(1) of the Act. 2. Whether in violation of Section 8(a)(1) and (3) of the Act the Respondent transferred Kirkwood from one store to another and changed his job duties from retail clerk to janitor because Kirkland had grieved to the Union about Respondent's failure to pay him the hourly rate of pay called for by the Respondent's collective-bargaining agree- ment with the Union. IV THE ALLEGED UNFAIR LABOR PRACTICES A. The Government's Case Respondent operates several retail grocery stores in the State of Washington including its Villa Plaza store located in Pierce County. The employees employed in this store, commonly known as retail clerks, are represented by the Union for purposes of collective bargaining in a multi-em- ployer bargaining unit composed of employers, including Respondent, who do business within the geographical con- fines of Pierce County. The most recent multiemployer col- lective-bargaining agreement which covers the Villa Plaza store was negotiated on behalf of the employers by Allied Employers, Inc., an employer association, and is effective from April 1, 1971, until April 1, 1974. The agreement cov- ers all of the employees who handle and sell merchandise at the Villa Plaza store, between 20 and 25, and contains the standard union-security provision which requires unit em- ployees to join the Union after 30 days of employment. Richard Kirkwood, the alleged discriminatee, began work at the Villa Plaza store in December 1969 at which time he was a high school student enrolled in a special education program. Briefly stated under this program the school places the student on a job during normal school hours without pay for which he receives school credit. It was pursuant to such a program that Kirkwood was initially employed in December 1969. Kirkwood was employed at the Villa Plaza store from December 1969 until August 1970 at which time he volun- tarily terminated his employment. He performed bargaining unit work: "Bagged" and carried out groceries for custom- ers; Clean up work, i.e. swept and hosed down sidewalk in front of store before it opened;' and, Worked in the back room checking in deliveries, i.e. checking the supplies deliv- ered against the invoices to make sure each item had been delivered. He worked from 8 a.m. to 12 p.m. on Monday through Friday, the high school releasing him from school for work. For the first 2 months he received no pay but then asked store manager Samuel Rinehart if he could get paid. Rinehart went to his superior, general manager Michael 2 The testimony of union representative Hayes that "light housekeeping duties" performed by all clerks is bargaining unit work is undisputed McGowan, and told him that even though students em- ployed under the special education program did not usually get paid, that Rinehart felt the Employer should compen- sate Kirkwood for his work as he was doing a fine job and it would give him more incentive and help him out financial- ly. McGowan stated that if Rinehart was able to work the payment to Kirkwood into the portion of the store's budget allocated to labor, he could pay Kirkwood. Rinehart begin- ning in or about February 1970 paid Kirkwood the mini- mum wage of $1.60 an hour which he continued to receive until he terminated his employment. Kirkwood graduated from high school on June 6, 1970, and thereafter continued to work at the Villa Plaza store keeping the same hours, receiving the same pay, and performing the same work. Kirkwood terminated his employment in late August 1970 for the reason that he had enrolled at the Clover Park Voca- tional School where he received instruction in the laundry and drycleaning program. Kirkwood explained to Rinehart that he was quitting work because he was enrolling in this school. Kirkwood dropped out of the vocational school on June 13, 1971, and thereafter on a number of occasions asked assistant manager Grant Smith if there were any job open- ings at the Villa Plaza store. Smith said no. Thereafter, on August 11, 1971, store manager Rinehart over the phone contacted Kirkwood and asked him if he was available for work, explaining that the employee who checked the sup- plies delivered to the store against the delivery invoices had been terminated. Kirkwood accepted and began work the next day, August 12, 1971. Kirkwood initially worked only 20 hours a week from 8 a.m. to 12 p.m. Monday through Friday. In late September 1971, however, at his request, he was given additional hours and from that time worked 32- 1/2 hours each week, Monday through Friday, from about 8 a.m. to 3 p.m. with 1/2 hour off for lunch. Kirkwood did substantially more than just check in supplies, in fact over 50 percent of his time was spent bagging and carrying out groceries to customers' automobiles. He also did light housekeeping work, swept and hosed down the sidewalk in front of the store, and on occasion stocked shelves. Kirkwood was reemployed at the hourly rate of $1.75. Thereafter, he made an unsuccessful attempt to get an in- crease in pay under the following circumstances. In or about February 1972, Kirkwood learned about the Union and its collective-bargaining agreement covering the retail clerks and determined he was not receiving the rate of pay called for by this agreement. This was true. Accordingly, in or about February 1972, Kirkwood asked store manager Ger- ald Kingsberry 3 for a raise in pay. Kingsberry stated he would consider the request. In about April or May 1972, Kirkwood asked Kingsberry if he had considered his re- quest for more money. Kingsberry said no, whereupon Kirkwood asked if he could join the Union. Kingsberry answered if Kirkwood joined the Union, the Respondent could not afford to employ Kirkwood and would have to discharge him. The findings in this paragraph pertaining to Kirkwood's request for more money and Kingsberry's re- plies are based upon Kirkwood's credible testimony. I have 3 Kingsberry became the manager of the Villa Plaza store in late August 1971 replacing Rinehart who left the Respondent's employ KLAUSER CORPORATION rejected the testimony of Kingsberry. Of the two, Kirk- wood, while testifying on this particular matter, impressed me as the more credible witness. Also, the reliability of Kingsberry's testimony relating to Kirkwood's request for money was tarnished by Kingsberry's false testimony that in February 1972 he granted Kirkwood's request for more money and increased his hourly rate of pay from $1.75 to $2. Respondent's payroll records show no such increase but corroborate Kirkwood's testimony that he received no more than $1.75 an hour. Kirkwood, denied an increase in pay, complained to the Union and on June 8, 1972, met with Ronald Hayes, the Union's grievance director, and filed a written grievance which in substance alleged that he was doing bargaining unit work and not being paid the rate of pay called for by the Union's contract with the Respondent. Hayes indicated that the Union would process Kirkwood's grievance. Shortly after June 8, a union business representative, Charles Edmonds, informally advised Respondent's general manager, McGowan, that the Union intended to process a grievance over Kirkwood's employment and advised Mc- Gowan to check into the matter. On June 14, 1972, Mc- Gowan received a copy of a letter from the Union addressed to Allied, the Employer's bargaining representative, griev- ing over Respondent's treatment of Kirkwood. In pertinent part the letter stated: We are in receipt of a grievance from Mr. Richard Kirkwood, a current employee of the Klauser Corpora- tion, Tacoma, Washington. Mr. Kirkwood advises that he was originally hired in August of 1971 and works an average of approximately 32-1/2 hours per week. Mr. Kirkwood, whose job duties include those of Courtesy Clerk, Backroom Man, and Stocker, is presently being paid $1.75 per hour. When Mr. Kirkwood questioned his store manager, Gerald Kingsbury, [sic] relative to a wage adjustment and Union benefits, Mr. Kirkwood was told that the Company could not afford any in- creases, and further, that if Richard was to contact the Union regarding the matter, he would be fired immedi- ately. In accordance with the terms of the current collective bargaining agreement, we request that Mr. Kirkwood be immediately advanced to his proper classification (Senior Apprentice Clerk) and be made whole for all wages lost as a result of the Employer's failure to ob- serve the Union Contract... . On Saturday, June 17, 1972, Kingsberry notified Kirk- wood that effective Monday, June 19, he was transferred from the Villa Plaza store to the Respondent's Lake Crest store, told Kirkwood that the decision to transfer him had been made by general manager McGowan and that the reason for the transfer was, "to cut back on employees, they had to make up some money." The Lake Crest store is outside the Union's geographical jurisdiction and it is not located within the geographic boundary of the multiem- ployer collective-bargaining agreement , Pierce County. On Monday, June 19, 1972, Kirkwood began work at the 669 Lake Crest store and remained there for 4 days, June 19 through June 22, worked from 8 a.m. to 5 p.m. doing ba- sically the same work which he had been doing at the Villa Plaza store and received the identical hourly rate of pay. It took him 20 more minutes to get there from home compared to Villa Plaza. On Wednesday, June 21, the Union's grievance director, Hayes, and its executive director, Rich, met with Respondent's general manager McGowan and discussed the Union's grievance, namely, that Kirkwood be made whole for all wages lost by the Respondent's failure to ob- serve the contract and that he immediately be advanced to the contractual classification of senior apprentice clerk which at that time paid $4 per hour. McGowan in response told the union representatives that Kirkwood was not capa- ble or able to perform the duties of a retail clerk, that Kirkwood was a student enrolled in a special educational program who did not have the aptitude to do the work of a retail clerk, that the Respondent was helping Kirkwood and if the Union pursued its claim, McGowan would have to lay Kirkwood off. The foregoing is based on Hayes' undemed testimony. Hayes first testified these remarks were all that he recalled was said by McGowan. Hayes was then asked what the response of the Union's representatives (Hayes and Rich) was and answered, "we advised McGow- an that we would check it out." Counsel asked, "check what out" and Hayes testified that McGowan had said Kirkwood was not working as a retail clerk but had been employed strictly as a janitor and that was what the union representa- tives were going to check out. I do not credit this testimony which was not corroborated by Rich. I realize it was not denied. However, I received the impression from the man- ner in which Hayes testified on this point that the testimony was contrived. This belief is reinforced by the record as a whole. There is no evidence that the Union's representatives checked out the allegation supposedly made by McGowan that Kirkwood had performed only janitorial work. To the contrary, the record shows that the investigation conducted by the Union was aimed solely at discovering whether, as McGowan claimed, Kirkwood was enrolled as a student in a training program and whether he was capable of doing the work of a retail clerk. Finally, the letter from Hayes to McGowan dated June 27 summarizing the results of the Union's investigation makes no mention of any alleged claim by McGowan that Kirkwood had been employed solely as a janitor. Based on the foregoing, I find that Mc- Gowan at the meeting of June 21 did not contend that Kirkwood had been employed solely as a janitor. On Thursday, June 22, Kirkwood, who as described above had been transferred to the Lake Crest store on June 19, was notified to report to the Company's Parkland store the next day to meet with McGowan. They met on June 23 and McGowan stated he wanted "to help" Kirkwood. Kirk- wood, who was planning on getting married in the near future, asked if he could take time off from work to get marred. McGowan said "yes." McGowan asked Kirkwood to call the Union off of his back and stated if Kirkwood did this, that McGowan would help him get a better job in one of the Company's stores. Kirkwood agreed to consider the matter. Kirkwood considered McGowan's proposition and on 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either Saturday, June 24, or Sunday, June 25, returned to McGowan's office and told McGowan that he had decided not to call off the Union. Thereafter, McGowan notified Kirkwood that he wanted to meet with him again, and they met on or about Monday, June 26, at which time McGowan told Kirkwood he wanted to employ him as a janitor for 3 nights at one store and 2 days at another. Kirkwood replied he would think about the offer. He notified McGowan 2 days later he would accept the day work, whereupon Mc- Gowan told him to report to the Villa Plaza store. On Wed- nesday, June 28, Kirkwood reported to the Villa Plaza store at which time manager Kingsberry told him he would be doing maintenance work at the store for 4 days a week, 4 hours a day, at the rate of pay of $2.50 per hour. After taking time off for his honeymoon, Kirkwood began work Mon- day, July 10, and is employed doing only maintenance-type work (cleaning up) 4 days a week, 4 hours a day, at $2.50 per hour. This type of work is not covered by the union contract. On July 10, 1972, Hayes using the phone told McGowan that the Union, as previously stated in its letter dated June 27, intended to press Kirkwood's grievance. McGowan took the position that the Union had not checked out the matter thoroughly and indicated the Company would fight the grievance, causing the Union to spend its money and warned that if the Union did pursue the matter, that Kirk- wood would be laid off because of an economic cutback. B. The Respondent's Case Respondent's case-in-chief must be viewed in the context of the provisions in the collective-bargaining agreement which pertain to job classifications and rates of pay. The agreement with the Union contains one basic job classifica- tion, "clerk." For each 3 months of experience, up to 1 year, an employee covered by the agreement automatically re- ceives an increase in his hourly rate of pay. An employee with 1-year experience automatically arrives at the top of the wage scale,' is classified as a "journeyman clerk" and is paid $4.57 per hour. There is one exception to this scheme of things, employees classified as "courtesy clerks." A cour- tesy clerk, as defined in the contract, must be under 18-1/2 years of age and work less than 24 hours a week. The em- ployees meeting this standard acquire no seniority as regu- lar employees and the Employer is allowed to pay them $2.42 per hour. In short, under the contractual scheme of things, the Respondent, once an employee is employed, must make sure that the employee has the aptitude and ability to learn the more complicated unit work such as operating a cash register or using the order code system in stocking shelves. It does not make good business sense for the Respondent to pay permanent employees the top rate of pay ($4.57 an hour) for doing such menial tasks as "box boy" work. General manager McGowan in this regard testi- fied that when a courtesy clerk reaches the age of 18-1/2, the Respondent in its normal course of business decides whether the employee is qualified for promotion and if not immediately terminates the employee to prevent the em- 4 There is one higher classification which is not, however, relevant to this case ployee from becoming a permanent unit employee whose rate of pay would be automatically increased as the requisite number of hours of work experience were acquired under the contract. It is in this context that the transfer and change of Kirkwood's job duties by Respondent must be judged. Kirkwood when he began work for Respondent in De- cember 1969 was 18-1/2 years old and a high school student enrolled in a special education program in contrast to the regular study program. The Union's executive secretary, Rich, testified that the special education program in which Kirkwood was enrolled is "for the people [who] are not quite up with the school." The program attempts to provide expe- rience in a work environment for a student who has a limit- ed aptitude for the usual high school curriculum. The student is placed by the school on a job during normal school hours for which he receives credit toward his diplo- ma. Kirkwood's initial employment by the Respondent took place under the following circumstances. A teacher, Mr. Hope, at Kirkwood's high school notified Store Manager Rinehart that he had a student, Kirkwood, who needed work experience. Hope explained to Rinehart that Kirk- wood was in the school's special education program and was available for employment in the morning during school hours and there would be no pay involved. He specifically told Rinehart that Kirkwood needed exposure to work but was not capable of becoming an experienced retail clerk, stating that he did not believe Kirkwood had the aptitude to learn how to handle a cash register. Nevertheless, Hope stated that Kirkwood needed exposure to a work situation, pointed out that the Respondent at one of its other stores was using students who like Kirkwood were enrolled in the special education program, and asked Rinehart to take on Kirkwood. Rinehart told Hope to have Kirkwood come for an interview. At the interview Rinehart, impressed by Kirkwood's appearance and eagerness to learn, employed Kirkwood for part-time work in the morning during school hours with the understanding that he would not be paid. There is no evidence or contention that Rinehart employed Kirkwood to fill a specific job vacancy. Briefly stated, I find that Respondent initially hired Kirk- wood primarily as a favor to the high school in order to give Kirkwood work experience in connection with the school's special education program in which Kirkwood was enrolled. If Kirkwood had not been connected with this education program, Rinehart testified he would not have employed him, "because I would not feel he was capable of being a regular retail clerk." I credit this testimony. The circum- stances surrounding Kirkwood's hire by Rinehart, particu- larly Hope's comments to Rinehart, lends support to this testimony. Also, Rinehart, who is no longer employed by Respondent, was an impressive witness. Rinehart did admit that Kirkwood was a good worker during his employment under Rinehart's supervision. However, as described earlier in the decision, Kirkwood for the most part performed the least skilled jobs. In this regard, Rinehart testified that, based on his observation of Kirkwood, "I [didn't] think he [was] capable of carrying on the duties that a retail clerk must do, such as running the checkstand [referring to the cash register], giving change. Sometimes you get into a situ- ation where you could become very frustrated, and I don't KLAUSER CORPORATION think [Kirkwood] is capable of handling that situation." Rinehart's opinion is corroborated by the testimony of his successor, Kingsberry, who testified that based upon his observation of Kirkwood at work that it was his opinion that Kirkwood was not capable of progressing from the menial unitjobs into the more skilledjobs, including the job of cashier. The decision to transfer Kirkwood out of the bargaining unit was made by General Manager McGowan, whose testi- mony regarding his motive for engaging in this conduct is not controverted by the record as a whole. Also, when he gave this testimony he appeared to be telling the truth. McGowan testified that he transferred Kirkwood out of the bargaining unit to the Lake Crest store and then changed his duties from unit work to nonunit janitorial work because he wanted to try to find a position for Kirkwood that was commensurate with his ability and aptitude. McGowan be- lieved that Kirkwood had neither the aptitude nor ability to satisfactorily perform the tasks of a journeyman clerk, a classification which Kirkwood would automatically be enti- tled to if he continued in the bargaining unit.5 McGowan testified Kirkwood did not have the ability to satisfactorily perform the duties of a cashier or to satisfactorily restock shelves using the Employer's order code system. McGowan, at the hearing, explained, "if you were to ask [Kirkwood] today, if a lady brought up ajar of baby food that was eight for ninety six cents and she brought up one how much would you charge her, brought up two what he would charge her, or three, you would find that he would not be able to perform that." His opinion that Kirkwood lacked the ability and aptitude to satisfactorily fill the position of a journeyman clerk, McGowan testified, was based on: (1) Manager Rinehart and Manager Kingsberry had told him that they did not believe Kirkwood was so qualified; (2) McGowan knew that Kirkwood initially had been hired through the local high school under its special program for slow learners; (3) on various occasions when McGowan assigned Kirkwood to perform a routine task, Kirkwood failed to follow his instructions; and (4) despite constant instruction, Kirkwood could not properly place the incom- ing merchandise he was checking in the proper area within the back of the store. The testimony of Rinehart, Kingsberry, and McGowan concerning their belief that Kirkwood lacked the aptitude or ability to perform satisfactorily as a journeyman clerk was not controverted by the General Counsel or the Charg- ing Party. C. Discussion and Ultimate Findings Respondent employed Kirkwood to perform work cov- ered by its contract with the Union, but did not pay him the contractual rate of pay. Kirkwood filed a grievance with the Union. The Union demanded that Respondent classify 5 The Union in its letter to the Respondent of June 12 , 1972, demanded, among other things, "that Kirkwood be immediately advanced to his proper classification (senior apprentice clerk ) " This classification calls for 9 to 12 months experience and pays $4 an hour The next classification in the automatic scheme of things is "journeyman clerk" and calls for over 1-year experience and pays $4 57 an hour 671 Kirkwood as a bargaining unit employee covered by the union contract, pay Kirkwood the rate of pay called for by the contract, and reimburse him for moneys not paid in the past. Upon its receipt of this grievance, the Respondent immediately removed Kirkwood from the bargaining unit and reassigned him from unit work to nonunit janitorial work. The General Counsel contends that in removing Kirkwood from the coverage of the contract the Respon- dent was motivated by its animus toward him because he sought the assistance of the Union in processing a grievance and because he attempted to implement the wage provisions of the union contract. The Respondent in its answer to the complaint denies this and affirmatively alleges that it had an oral agreement with the Union exempting Kirkwood from the coverage of the union contract, that Kirkwood was transferred and his duties changed so as to remove him from the contractual bargaining unit only after the Respondent learned that the Union considered Kirkwood to be covered by the Union contract, and that the Respondent thereafter failed and refused to employ him as a bargaining unit em- ployee for the reason that he "was not competent to perform bargaining unit work as a regular employee." Based upon the facts set out in detail in the section of this decision dealing with the Respondent's case-in-chief I find that Respondent has established that in transferring Kirk- wood out of the bargaining unit covered by the union con- tract that it was motivated by a belief that he was not competent to perform bargaining unit work as a regular employee.6 The testimony of McGowan, Rinehart, and Kingsberry on this issue were internally consistent and largely in agreement with one another. Nor, is their testimo- ny controverted by the record as a whole and it is supported by the Respondent's effort to keep Kirkwood in its employ in a nonunit position more commensurate with his abilities rather than abruptly terminate him. While the timing of Kirkwood's transfer out of the unit shortly after the filing of his grievance and the Respondent's displeasure over the grievance gives rise to suspicion , these circumstances do not amount to evidence of discriminatory motivation capable of overcoming the economic justification shown by Respon- dent for its conduct. Therefore, I shall recommend the dis- missal of the allegations in the complaint that Respondent violated Section 8(a)(1) and (3) of the Act by transferring Kirkwood to the Lake Crest store and thereafter assigning him to janitorial work at the Valley Plaza store. In arriving at this conclusion I have considered the state- ment by Store Manager Kingsberry to Kirkwood that if he joined the Union, the Respondent could not afford to em- ploy him and would have to discharge him. Kingsberry, however, played no part in the eventual decision to dis- charge Kirkwood. The statement was made in the context 6 I have not discussed or judged Respondent's further contention that the evidence establishes either an oral agreement with the Union exempting Kirkwood from the coverage of the union contract , or that the Respondent in good faith believed there was such an agreement These issues, in my opinion, are not relevant to a decision of the ultimate issue in the instant case, the motive of Respondent in transferring Kirkwood out of the bargaining unit Assuming the Respondent violated the terms of its union contract in its employment of Kirkwood , this does not mean that Respondent lost the right to transfer Kirkwood out of the contractual bargaining unit for legiti- mate business reasons Here, Respondent has demonstrated that its transfer of Kirkwood out of the unit was meted out for legitimate business reasons. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Kirkwood's request for more money and was made in response to Kirkwood's inquiry, whether in order to get more money he could join the Union. In my opinion the statement in the context in which it was made is ambiguous and is not inconsistent with the lawful manner in which Respondent treated Kirkwood. As set out above, Respon- dent discharged Kirkwood as a clerk for the reason that he was not qualified to receive the high rate of pay which went with the classification journeyman clerk, a classification which in the immediate future would automatically be be- stowed upon Kirkwood if the Union had its way. In this connection Kingsberry credibly testified: Q. What did it mean to you if [Kirkwood] joined the Union? What did you believe that would mean as far as his employment was concerned, if you had any be- lief? A. At the particular time, or even now, he would have to be paid on a progressive scale calculated on the number of hours he worked per week, per year. He would have to be given a periodic increase of pay. Based on the foregoing, I find that Kingsberry's statement itself or taken in conjunction with the record as a whole does not establish that the Respondent's treatment of Kirk- wood, as alleged in the complaint, was unlawfully motivat- ed. In addition, I do not believe, as alleged in the complaint, that Kingsberry's statement (if Kirkwood joined the Union, the Respondent could not afford to employ him and would have to discharge him) interfered with, restrained or coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. Viewed in the context of this case, the statement is too vague to constitute an unambigous threat of discharge based on the act of Kirk- woodjoining the Union, rather than as a threat of discharge if Respondent was forced by the Union to reclassify Kirk- 7 McGowan admitted at the hearing that in not classifying and paying Kirkwood in accordance with the union contract the Respondent was acting in complete violation of the contract if the Union had not orally agreed to exempt Kirkwood wood to a position for which he was not qualified and which would cost the Respondent more money. In sort, the warn- ing is too ambiguous to be outlawed by Section 8(a)(1) of the Act. In any event, in the circumstances of this case, including the fact that Respondent has a collective-bargain- ing agreement with the Union which contains a union-se- cunty clause requiring union membership after 30 days and there is no evidence that Respondent is generally discourag- ing unit employees from joining the Union, I am of the opinion it would not serve any useful purpose to issue a cease-and-desist order based on this isolated bit of conduct. Accordingly, for these reasons I shall recommend that this portion of the complaint be dismissed. CONCLUSIONS OF LAW 1. Klauser Corporation d/b/a Thriftco Stores is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local No. 367, affiliat- ed with Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint is dismissed in its entirety. 8In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes