Spies Super Market of Pierre, Inc.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Discount Corporation, d/b/a Spies Super Market of Pierre, Inc. and Retail Clerks Local 1665, Retail Clerks International Association , AFL-CIO. Cases 18-CA-3988 and 18-RC-9618 June 20, 1974 DECISION, ORDER, AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 15, 1974, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, The Discount Corporation, d/b/a Spies Super Market of Pierre, Inc., Pierre, South Dakota, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DIRECTION It is hereby directed that the Regional Director for Region 18 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballot of Donald Templeton and, thereafter, prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballot. In the event that the revised tally of ballots shows that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue the appropri- ate certification of representative. However, in the event the revised tally of ballots shows that the Petitioner has not received a majority of the valid ballots cast, the following shall be applicable. It is hereby ordered that the election conducted herein on September 13, 1973, be, and it hereby is, set aside. [Direction of Second Election and Excelsior footnote omitted from publication.] DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: The hearing in this consolidated matter was held in Pierre, South Dakota, on January 29, 1974. The unfair labor practices phase of this case was initiated by charges and amended charges filed by the Union on September 26 and December 28, 1973. The General Counsel issued a complaint on December 28, 1973, alleging violations of Section 8(a)(1) and (3) of the Act, and Respondent filed an answer denying the violations alleged. The representation portion of this case is based on a petition filed by the Union on June 22, 1973, pursuant to which an election was held on September 13, 1973. The election results showed that in a voting unit of approxi- mately 20 employees, 8 votes were cast for the Union, 8 votes were cast against the Union, and 1 ballot was challenged. The Union filed objections to the conduct of the election and the Regional Director issued Supplemen- tal and Second Supplemental Decisions. The Regional Director concluded that the challenged ballot and Objec- tions I and 4 raised substantial and material issues which he directed to be resolved in a consolidated proceeding with the present unfair labor practice case. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER The Discount Corporation d/b/a Spies Super Market of Pierre, Inc., is a South Dakota corporation engaging in the retail sale of foodstuffs and general merchandise in Pierre, South Dakota. Respondent's yearly sales and out-of-state purchases exceed $500,000 and $50,000, respectively. All parties agree and I find that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Local 1665, Retail Clerks International Association, AFL-CIO, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND REPRESENTATION ISSUES These consolidated cases present identical issues, name- ly, whether Respondent unlawfully interrogated employees and threatened to eliminate or reduce certain job classifica- tions for union reasons and whether it also discharged Donald Templeton for unlawful reasons. Templeton cast the ballot which was challenged by Respondent upon the claim that Templeton had quit his employment by the election day. Berdell Spies is Respondent's president and Donald 211 NLRB No. 107 SPIES SUPER MARKET OF PIERRE Stowe its secretary-treasurer. Lee Jensen and Neil Barth are manager and assistant manager, respectively, of the Pierre Store involved in this proceeding. A. Store Manager Jensen 's Activities Store Manager Jensen had several preelection conversa- tions with employees concerning the upcoming election. On an occasion 2 or 3 weeks before the election, employees Diane Bartels and Cindy Taylor asked Jensen whether they could exchange their respective days off , and Jensen said they could. During this conversation, according to credible testimony of Taylor and Bartels, Jensen inquired whether they had decided how they were going to vote and he told them that, should the Union come in, they would be unable to change working days once the weekly work schedule was posted. Jensen also told them he would seek a wage increase for those employees who voted against the Union. Jensen had other contemporaneous conversations with Taylor, and he inquired on one such occasion whether the union representative had seen her yet. During a "casual" conversation with employee Jessie Hall, Jensen remarked that he felt that "working conditions would be tightened a great deal" if the Union came in. A week or two before the election, Jensen asked employee Patricia Dehne how Dehne thought "the election would go" and how she thought the students (high school students working for Respondent) felt about the election. Jensen told Dehne that part-time work would have to be cut back if the Union won the election with the result that "more would be required of the people that worked there ." In the latter part of August, according to employee Roxie Frey's credible testimony, Jensen asked how Frey felt about the Union and Frey replied she didn't know. Jensen repeated the question, and this time Frey said that unions have both good and bad points, whereupon Jensen told her "to be sure and vote any way." B. President Spies' Speeches President Spies conducted two preelection meetings for employees during working hours on or about September 10. Some employees attended one meeting and the other employees attended the second . According to credible accounts thereof, Spies told the employees that Respon- dent would not increase its payroll should the Union come in, and that the Union's higher wage scale would therefore cause a substantial cutback in the number of part-time employees ; Spies also mentioned that the Union "didn't want older employees around either." Spies testified, in effect, that his comments about part-timers were in response to employee questions from the floor. C. Donald Templeton 's Termination Templeton was a "student" employee, by which is meant, as stated above, that he worked for Respondent while still in high school. At the time of this hearing in January 1974, he was a junior or in his third year of high school. Templeton began working for Respondent in May 1973, putting in about 20 hours weekly; during some summer weeks he worked as many as 40 hours; and at the 767 time of his termination in September he was working about 14 hours weekly, but only on weekends. Three weeks or so before the September 13 election, Templeton gave Assistant Manager Barth 2 weeks' notice that he was quitting. Manager Jensen was on vacation at the time. Upon Jensen's return 3 days after Templeton's mentioned notice, Jensen requested Templeton not to leave and it was thereupon arranged that Templeton would continue working for Respondent, but only on weekends. Templeton worked successive weekends until the weekend immediately following the election of September 13, as discussed hereinafter. The complaint alleges that Respondent unlawfully discharged Templeton on September 10. Respondent denies having discharged Templeton and claims, rather, that the latter quit. Templeton's ballot at the September 13 election was challenged by Respondent on the ground that Templeton's employment had been severed by that date. Apart from this severance matter, no other question is raised concerning Templeton's employee status or his eligibility to vote. Templeton's termination is enmeshed in the one of the aforementioned meetings conducted by Spies and attended by Templeton on September 10. In explaining to the employees why they didn't need a union, Spies told the employees on that occasion that Respondent was paying "the best wages or one of the best wages in town" and that Respondent had a student trainee plan under which trainees receive a beginning hourly rate of $1.36 with a raise to $1.60 after 3 months of satisfactory performance. Templeton spoke up at that point and said he had been working some 4 or 5 months and had not received a raise. Spies responded that Templeton should have received a raise. Spies then told the employees that "if the union came in, we'd be making less money because of the union dues each month." Templeton thereupon stated that $1.36 was an "unfair" rate and that a friend of his was receiving higher wages at another local establishment. Spies then suggested that if anyone was unhappy with his wage, he could look elsewhere. According to Templeton's and employee Mark Linderman's credible testimony, Temple- ton told Spies that he had obtained other employment and had quit work weekdays for Respondent and that he was with Respondent weekends only. Templeton, Linderman, and other witnesses credibly testified contrary to Spies' testimony, that Templeton did not say he had completely quit Respondent's employ. Shortly after the meeting, according to Spies' and Jensen's testimony, Spies informed Store Manager Jensen that Templeton had quit. This, according to Jensen, was the only time Spies had ever told Jensen whom Jensen should or should not hire. Respondent challenged Templeton's ballot at the Sep- tember 13 election purportedly on the ground that he was no longer in Respondent's employ. Jensen posted the weekly work schedule immediately after the election, and Templeton's name was not on the list. When Templeton reported for his regular weekend work the following night, Jensen told Templeton he had quit. Templeton told Jensen that he had not quit and was ready to go to work. (Jensen had, in fact, asked Templeton on Wednesday, the day before the election, what days Templeton wanted to work 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the upcoming weekend. Templeton said Friday and Saturday nights and Sunday, and Jensen agreed.) Jensen was asked to explain why if there had been some confusion concerning Templeton's having quit, the matter wasn't resolved when Templeton did show up for work. Jensen's only explanation was that Spies had said Templeton had quit and, as indicated earlier, that Jensen took his (Spies) comment to mean that Templeton was not to be restored to employment. Spies did not claim that Jensen misinterpret- ed his no-rehire directive, and Spies also did not explain why he gave such instruction to Jensen. Respondent urges that Templeton indicated on four separate occasions that he intended to, and then did, quit his employment. The first occasion, according to Respon- dent, was the time 3 weeks before the election, that Templeton gave a 2 weeks' notice of quitting to Barth. The second incident mentioned by Respondent was the occasion of Jensen's return from holiday when Jensen dissuaded Templeton from quitting and arranged for Templeton to remain on a weekend basis. The third incident was the September 10 meeting on which occasion Respondent claims Templeton told Spies he had quit. The fourth occasion was a purported report to another employer "in early September" that he had quit his employment with Respondent. Respondent adduced the testimony of Mrs. Mary Ward to support its contention respecting the aforementioned fourth occasion. Mrs. Ward is vice president of Snappy Delivery, Inc., another local concern. Templeton had worked occasionally for Snappy Delivery during the summer on days he was not working for Respondent. School resumed in late August, and Mrs. Ward testified that Templeton inquired of her son early in September concerning the availability of weekday (not weekend) employment with Snappy Delivery, and Mrs. Ward recalled Templeton's explanation that Respondent's late hours on weekdays would interfere with his studies at school. Mrs. Ward testified that she and her son advised Templeton not to leave Respondent and that Templeton said he had already quit. Templeton testified that he did speak with Mrs. Ward and son concerning weekday employment, but he denied having said he had quit Respondent's employ entirely. Even if Mrs. Ward was of the opinion that Templeton said he had quit Respondent entirely, rather than weekdays only, the fact is that Templeton had quit working for Respondent on weekdays, and it was only weekday employment that he was inquiring about at Snappy Delivery. Templeton did work for Snappy Delivery the weekend immediately following the election but that was after Jensen told him on Friday that he was no longer employed by Respondent.) use the word "quit" in his remarks to Spies concerning weekday employment. Even if Spies did believe Templeton had quit, Spies did not explain why he, in effect, instructed Jensen not to rehire Templeton and it is this instruction that, in fact, brought about the termination. Were it not for such instruction, Jensen obviously would have permitted Templeton to work once Templeton explained that he, Templeton, had not quit-for only 3 weeks earlier Jensen had asked Templeton not to leave Respondent's employ and arranged to have Templeton continue working on weekends and on the day before the election Jensen had agreed with Templeton concerning Templeton's work schedule that weekend. If Spies, on the other hand, did not believe Templeton had quit, then the "quit" explanation was concocted out of whole cloth for the purpose of getting rid of Templeton. It appears, therefore, that Spies desired to be rid of Templeton under both alternatives and he gave Jensen the appropriate implementing instruction. What motivated Spies' instruction? So far as this record establishes, the explanation is to be found in the events of the preelection meeting conducted by Spies. Spies sought at that meeting to persuade employees that it was not in their interest to support the Union in the upcoming election. Templeton ,openly declared his disagreement with Spies at the meeting, and I can only conclude that Spies was motivated to sever and that he terminated Templeton's employment because of the prounion character of Templeton's remarks. Res- pondent has thereby violated Section 8(axl) and (3) of the Act. On the basis of Jensen's and Spies' other conduct recited above, I also find that Respondent has further violated Section 8(a)(l) of the Act by coercively interrogat- ing employees concerning union matters and by threaten- ing economic reprisal for union considerations. CONCLUSIONS OF LAW 1. Respondent is an employer within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) and (3) by discharging Donald Templeton and has further violated Section 8(a)(1) by coercively interrogating employees concerning union matters and by threatening to curtail or eliminate certain job classifications for union reasons. 4. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. 5. Objections I and 4 are established in Case 18-RC-9618 and such conduct warrants setting aside the election of September 13, 1973. Conclusions Although I have found that Templeton had not quit on or about September 10 and that he did not tell Spies at the September 10 meeting that he had severed his employment with Respondent, it is possible that Spies might have believed Templeton had said so, because Templeton did THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating and making whole Donald Templeton, in order to effectuate the policies of the Act. All backpay computations shall be in accordance with F. W. Woolworth I Although Templeton could apparently always have weekend employ- employment with Respondent because Respondent was open on Sunday ment with Snappy Delivery, he testified that he preferred weekend whereas Snappy Delivery was not. SPIES SUPER MARKET OF PIERRE 769 Co., 90 NLRB 298, and Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend in the representation case that Templeton's ballot be opened and counted, and that the Union be certified if a revised tally shows the Union to have won the election. If the revised tally shows otherwise, it will be recommended that the election be set aside and a second election conducted. Upon the foregoing findings, conclusions, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The Discount Corporation, d/b/a Spies Super Market of Pierre, Inc., Pierre, South Dakota, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with elimination or curtail- ment of certain job classifications for union reasons. (b) Coercively interrogating employees concerning union or organizational matters. (c) Discharging or otherwise discriminating against employees for activities or sympathies for Retail Clerks Local 1665, Retail Clerks International Association, AFL-CIO, or any other union. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Donald Templeton reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole, as set forth in "The Remedy" section above, for any loss of earnings suffered as a result of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its store in Pierre , South Dakota, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that Templeton 's ballot be opened and counted and that the Union be certified if a revised tally shows the Union to have won the election. Otherwise, it is recommended that the September 13, 1973, election be set aside and a new election conducted. 2 In 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, recommendations, 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. 3 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL reinstate Donald Templeton and make him whole for earnings lost since his discharge. WE WILL NOT threaten to terminate or curtail any job classifications for union reasons. WE WILL NOT interrogate employees concerning union matters or Board elections. WE WILL NOT discharge or discriminate against employees in any other way to discourage or in reprisal for union activities or sympathies. Our employees are free to join or assist Retail Clerks Local 1665, Retail Clerks International Association, AFL-CIO, or any other union. THE DISCOUNT CORPORATION D/B/A SPIES SUPER MARKET OF PIERRE, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South 4th Street, Minneapolis, Minnesota 55401, Telephone 612-725-2611.