Payless Drug Store of Port Angeles, Inc.

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Payless Drug Store of Port Angeles , Inc. and Retail Store Employees Union Local 381, Retail Clerks International Association, AFL-CIO. Case 19-CA-6376 April 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS a Washington corporation engaged in the retail sale of general merchandise at Port Angeles, Washington. Re- ,apondent, Reenie Shoe Company, is a Washington corpora- tion engaged in the retail sale of shoes and related shoe products in the sole leased department within the facility of Respondent Payless at Port Angeles, Washington. Both Respondents annually enjoy a volume of business in excess of $500,000 and purchase goods and services from outside the State of Washington valued in excess of $50,000. I find that the operations of Respondents affect commerce within the meaning of Section 2(6) and (7) of the Act. On December 27, 1973, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief to the Board in support of the Decision of the Administrative Law Judge. 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 Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard at Port Angeles, Washington, on October 9 and 10, 1973. The amended complaint, issued August 28 and based upon charges filed April 24 and August 27, 1973, by Retail Store Employees Union Local 381, Retail Clerks International Association, AFL-CIO, herein the Union, alleges that Respondent, Payless Drug Store of Port Angeles, Inc., herein Payless, has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.' Briefs have been duly submitted. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent, Payless Drug Store of Port Angeles, Inc., is I Reem Shoe Company, also spelled in the complaint as Reeme, is named in the caption of the complaint as a Party in Interest, and is also referred to as Respondent Reeme. 2 The initial complaint alleged only certain violations of Section 8(a)(1). II. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union Local 381, Retail Clerks International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; the Issues Respondent opened its Port Angeles store on October 3, 1972, and in approximately February 1973, the Union commenced an initial organizational campaign. Meetings started in March and a demand for recognition was made on or about April 7. An election was agreed to but postponed because of the instant charges. The General Counsel alleges various acts of interference, restraint, and coercion, contends that these also constituted a refusal to bargain, and seeks a bargaining order.2 B. Sequence of Events There is much evidence pro and con in this case, but perhaps best illustrative of the weakness of the General Counsel's case is his allegation of surveillance of union activities. 1. Al Reed enjoys the title of security supervisor for Respondent, but the record is barren of any indication that he is a supervisor within the meaning of the Act. Be that as it may, he visits various of Respondent's stores in a security capacity, protecting against theft of merchandise by customers and presumably by employees as well. Thus, he spent some 4 to 5 days in the Port Angeles store during a relevant 6- to 8-week period in 1973. On March 15, 1973, Reed was fortunate or unfortunate as the case may be to join another employee, Ghiorso, at a local tavern for a beer. Ghiorso, on this occasion, announced that he planned to attend a union meeting and invited Reed to do likewise. Reed expressed reluctance, Ghiorso opined that the meeting would not take more than 10 or 15 minutes, and proposed that they thereafter partake of another beer. Reed ultimately agreed to attend and did so. Some four union representatives and several employees were present. Reed was offered and accepted a cup of coffee and, shortly thereafter, left with Ghiorso for their second beer. While it Upon appeal, the Regional Director was directed by the Office of Appeals of the General Counsel to add additional violations of Section 8 (axl) and a refusal to bargain within the meaning of Section 8(aX5) of the Act. 210 NLRB No. 33 PAYLESS DRUG STORE OF PORT ANGELES, INC. appears that management learned of the attendance of Reed at this meeting and directed him not to do so again, the simple answer is that the record will not support a finding that he was a supervisor or a representative of management or indeed that he was engaged in surveillance of union activities. I see no support for the General Counsel's contention herein. 2. The General Counsel has placed much stress upon a meeting of store employees on March 8. It is undisputed that the initial theme of this meeting was a discussion by Store Manager Duane Vernon concerning an impending sales promotion program and contest with prospective benefits for participating store employees. Three witnesses for the General Counsel, Sandra Chapman, Patricia Lack, and Donna Hugo, in essence testified that, during the course of this meeting, Vernon stated that he would rather close the store than negotiate with the Union. However, three other witnesses for the General Counsel testified flatly to the contrary. Ellis Ewing recalled nothing being said by Vernon about the closing of the store, John Kalbfleisch recalled nothing on this topic, and John Noonan remembered only a comment at a later meeting that, in the event of a strike, supervisory personnel might not be able to keep the store open. Supplementing the foregoing was the testimony of other witnesses, namely, Linda Hendrickson, Alice Schnase, Betsy Jacobs, Juanita Jacobs, and Joel Norris, all to the effect that they recalled no such threat on this occasion. I find that the evidence does not preponderate in favor of the General Counsel on this issue. 3. There is also an allegation, tailored to the March 8 meeting and later meetings, that Vernon threatened to drag out negotiations until the Union was forced to strike. But the evidence in support thereof is less than convincing. Thus, Ellis Ewing testified that Vernon told them that he wished to give the employees sufficient time to decide what they wanted. Patricia Lack testified that Vernon said negotiations could drag out and this might result in a strike, although she later testified that she did not recall just how the matter arose. According to John Kalbfleisch, Vernon said that negotiations could be carried on for a long time. As Respondent points out, Lack's testimony reflects a prophecy rather than a threat of recrimination. Here again, witnesses Betsy Jacobs, Juanita Jacobs, Tom Ghiorso, and Joel Norris recalled nothing being said about the dragging out of negotiations. Indeed, as Betsy Jacobs put it, Vernon told them that he would negotiate to the best of his ability to obtain the best contract if a majority of the employees desired a union. This ties in with the testimony of Vernon, an impressive witness, that he told the employees on March 18 that if a majority selected the Union, he would negotiate a contract from scratch because wage rates in Port Angeles reflected a lower cost of living than that in Seattle. 4. The General Counsel alleges that Respondent promulgated a rule forbidding employees to discuss the Union during coffee breaks and lunch periods. Here, as well, the testimony of the witnesses for the General Counsel leaves much to be desired. Donna Hugo recalled only that Manager Vernon told 135 the employees at a regular employee meeting that he wished there to be no arguing and fighting in the lunchroom. This ties in with the testimony of Vernon that on a Saturday morning he heard employees yelling and arguing in the lunchroom for some 25 minutes whereas a normal break lasts no more than 15 minutes. He went to the lunchroom, unaware of the topic of discussion, told the employees that they had exceeded their breaktime, and added that if they were emotionally upset they could not properly service customers in such a state. Patricia Lack recalled nothing being said by management about discuss- ing the Union on company premises and, indeed, recalled that the Union was discussed extensively during coffee breaks. Sandra Chapman recalled that she voiced her irritation to Vernon on one occasion about being questioned by co- workers during her lunch period about the Union. Vernon told an assemblage that he did not wish employees to be harassed during their breaks or lunch periods, that store time was for the Employer, and that he did not want anyone discussing the Union or anything else "during working hours." She recalled that the Union was consist- ently discussed by employees during their break periods. The General Counsel has relied on the testimony of Ellis Ewing, a rather vague witness. He claimed that at a meeting on March 8 Vernon told them not to talk about the Union during "store hours," not to talk about the "fish in the sea," and not to discuss the Union during breaks or lunch periods. Vernon recalled one occasion, at a store meeting, when Ewing stated, on the sales floor, that he had invited an employee to attend a union meeting that night. Vernon responded that he did not care if the fish were biting or whether there was a union meeting that night, but that, on the sales floor, the prime responsibility of the employee was to service the customer. Here as well there is a plethora of evidence to support Respondent. Teresa Moulton flatly recalled that, during March and April, Vernon told the employees at meetings that they could entertain their own views about the Union, they were not to discuss this topic during working time on the sales floor, and that it was "fine" to do so on their own time. She specifically recalled that the Union was frequent- ly discussed during coffee breaks in March and April. Betsy Jacobs recalled that at the March 8 meeting, and perhaps on other occasions, Vernon stated that the employees could discuss the Union on their own time, such as during lunch or on coffee breaks, but not to do so on the sales floor during working hours. In addition, Sue Williams testified that they were told during March and April that they could discuss the Union as they chose, but not to do so during working time. She as well heard the Union frequently and openly discussed in the lunchroom during breaks. Floorman Tom Ghiorso, previously referred to herein as the one who invited Reed to a union meeting, recalled that at meetings in March and April, Vernon asked them to refrain from discussing the Union on the sales floor, that there was business to be transacted in that area, but that it was their own choice to discuss the Union off work, in the lunchroom, or during breaks. I see little support herein for the General Counsel. The evidence heavily preponderates, and I find, that Respon- 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent promulgated a rule restricting union discussions to nonworking time and also forbidding same on the sales floor during working time. Moreover, the record is entirely devoid of any evidence of disparate application of this rule to union topics and not to others. 5. Respondent has a plan whereby employees enjoy a working condition permitting them to purchase store products at a discount by use of a company discount book. The General Counsel contends that Respondent, in its resistance to the Union, advised employees that their spouses could no longer use the employee discount books. But the record is clear, and it is undisputed, that there always has been a large sign posted in the employee lunchroom that "Employees only" are authorized to write up their respective purchases. There is evidence that the rule was violated in some instances and Manager Vernon uncontrovertedly testified that, prior to the March 8 meeting, he personally reproached 4 out of approximately 40 employees about violating the rule. Ellis Ewing testified that employees are given a discount book with the employee's name therein; the rule forbidding purchases by spouses is explained therein, but he personal- ly broke the rule from the first day of his employment. John Kalbfleisch recalled only that at the March 8 meeting, Vernon explained the workings of the discount procedure in terms of an existing employee benefit. Ewing did recall being told after March 8 by Vernon, as well as by Assistant Manager Andrew Striefel, that it was contrary to company policy for spouses to write up purchases under the discount procedure. Prior thereto, his wife had exercised this privilege extensively. He admitted violating the rule from his first day of employment and has since then been discharged for an unrelated cause. Patricia Lack recalled that Manager Vernon complained about spouses using the discount book. She conceded that she was aware of the rule and that her spouse had never used the discount book. The testimony of Alice Schnase, a checker in customer service, discloses that as early as February 25 she learned that spouses were violating the rule. She spoke to Vernon about this, and he registered genuine shock, explaining that this was contrary to store policy. Vernon declared that he wished this stopped and this has since been done. Betsy Jacobs recalled that the handling of employee discounts was discussed at a number of meetings of employees prior to March 8. Juanita Jacobs, hired in October 1972 and no longer in the employ of Respondent, flatly recalled that upon her hire Vernon explained at an employee meeting that spouses were not allowed to sign for discount purchases. I find that the evidence does not preponderate in favor of the position of the General Counsel herein. 6. The General Counsel attacks the time clock proce- dure. He relies upon testimony that department heads were not required to clock in or out on time . But both Ellis Ewing and John Noonan, in behalf of the General Counsel, flatly testified that they were instructed, upon their initial hire, to use the time clock. Both testified that they were lax in observing this procedure thereafter. The simple answer is that the vast majority of employees and department heads followed the timecard punch-in procedure. There is ample evidence that employees were instructed by management that they were to utilize the timecard procedure and to punch in and out no less than 5 minutes before and after the appropriate punch-out time; manifestly, this ties in with Fair Labor Standards Act procedures. I see little here to assist the General Counsel. 7. The General Counsel alleges that Respondent made forms available to employees whereby they could resign from the Union. While this is troublesome, here again, the simple answer is, as employee Sue Williams testified, that she and another named employee asked Manager Vernon how to withdraw from the Union . Vernon responded that he would consult with his attorney and duly advise her. Vernon uncontrovertedly testified, and I so find, that after checking with his counsel, he announced to employ- ees at a regularly scheduled employee meeting that such a request had been made, that he had checked with his attorney, that a form reflecting resignation from the Union had been prepared, and that copies thereof were available on the desk at the close of the meeting . It is uncontroverted that 10 such forms had been prepared and were duly made available on the desk after the meeting . The record does not disclose if any of these were utilized . I am not convinced that this supports a finding in favor of the General Counsel that Respondent arranged withdrawal of union membership unlawfully within the meaning of the Act, particularly where this activity was initiated by employees ; I therefore recommend dismissal of this allegation. See North American Aviation, Inc., 163 NLRB 863, and Clark Control, Division of A. O. Smith Corpora- tion, 166 NLRB 266. 8. The General Counsel has also alleged a refusal to bargain based upon the alleged violations of Section 8(a)(1). As found, these have been dismissed in their entirety. I see no need therefore to treat with the question of appropriate unit and majority representation therein and recommend the dismissal of this allegation of the complaint. CONCLUSIONS OF LAW 1. Payless Drug Store of Port Angeles, Inc., is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union Local 381 , Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(aX5) and (1) 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: PAYLESS DRUG STORE OF PORT ANGELES, INC. 137 ORDERS The complaint is dismissed in its entirety. 3 In the event no exceptions are filed as provided by Sec 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.