Gerbes Super Market, Inc.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gerbes Super Market, Inc. - and Retail Store Em- ployees Union, Local 782, Chartered by Retail Clerks International Association. Case 17- CA-6037 April 11, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 9, 1974, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, the General-Counsel filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed. 1 The dismissal of this complaint does not, of course, bar any relief Gerald Francis might otherwise be entitled to as a result of the decision of Gerbes Super Market, Inc., 213 NLRB No 112 (1974) DECISION STATEMENT OF THE CASE' PETER E. DONNELLY, Administrative Law Judge: The origi- nal charge herein was filed by Retail Store Employees Union, Local 782, Chartered by Retail Clerks International Associa- tion, herein called Charging Party or Union, on April 24, 1974, and the complaint was issued by the General Counsel of the National Labor Relations Board on June 12, 1974, alleging that Gerbes Super Market, Inc., herein called Re- spondent or Employer, violated Section 8(a)(3) and (1) of the Act by its discriminatory treatment of Gerald Francis in his working conditions, causing Francis to quit his employment. An answer thereto was timely filed by Respondent on June 19, 1974. Pursuant to notice the hearing was held before the Administrative Law Judge at Versailles, Missouri, on July 30, 31, and August 1, all in 1974. General Counsel's motion to correct the transcript is granted except as to those changes which substantially alter the state of the transcript 1. FINDINGS OF FACT The Employer is a Missouri corporation operating retail stores in the State of Missouri, including a grocery and var- iety store located in Versailles, Missouri. In the course and conduct of its business operations, the Employer has an an- nual gross volume of sales in excess of $500,000 and annually purchases goods and materials valued in excess of $50,000 directly from sources located outside the State of Missouri. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II LABOR ORGANIZATION The complaint alleges and Respondent in its answer admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III ALLEGED UNFAIR LABOR PRACTICES The complaint alleges in substance that, beginning some- time in December 1973, Respondent transferred Francis to a more onerous job, reduced his work hours, thereby causing him to quit, all because of his activity on behalf of the Union. A. Facts Gerald Francis was first employed by Respondent in Octo- ber 1972, at Respondent's Versailles, Missouri, store. He was hired as a clerk in the hardware department. The store also has departments selling groceries, produce, and meat. Francis was a part-time student employee. As a student employee he participated in a student work program called "Cooperative Occupational Education" (herein called COE). Under this program, participating high school students were allowed to leave school at noon rather than 3:30 p.m., the normal end of the schoolday. When Francis was hired the janitorial or cleanup work was shared by the student employees on a rotating basis. In March 1973, however, this procedure changed when Lyman Moore, another part-time student employee was hired to do the janitorial work. This work included mowing the grass in front of the store, filling the pop machines and ice machine, sweeping, cleaning the two bathrooms, emptying trash cans, and a more complete late night cleanup about once a week, which included scrubbing and waxing the floor with a ma- chine. The late night cleanup required two people in order to operate the machine. Francis sometimes assisted Moore in doing the late night cleanup. In July 1973, Francis contacted Robert Reeds, business representative for the Union, and was thereafter active in an effort to organize Respondent's Versailles, Missouri, store. A letter demanding recognition, dated August 10, 1973, was sent to the Respondent listing Francis along with 17 other employees as having authorized the Union to represent them. By letter dated August 22, 1973, the Union again requested recognition. This letter was signed by Francis along with 17 other employees. A strike subsequently occurred on August 23, 1973, lasting until August 31, 1973. Francis did not work during the strike. After the strike Francis accepted reinstate- ment on November 11, 1973. He returned to the hardware 217 NLRB No. 67 GERBES SUPER MARKET, INC. 395 department in his prestrike job as a clerk.2 When Francis was reemployed he was not a participant in the COE program although he was still a part-time student employee. Since he was not in the COE program he was not available for work until about 4 p.m. each day. Francis did not reenter the COE program although he applied to do so, since he could not assure Mr. Moutray, a teacher administering the COE pro- gram, that he would be able to work the requisite 20 hours per week to qualify for the program. When he began to make 20 hours a week he again reapplied and at this time was told it was too late in the year to be admitted. Francis again applied in January at the start of the second semester and was again told by Moutray that it was too late in the year.' At the time that Francis was reemployed, in November 197.1, Moore was performing the janitorial work as he had been prior to the'strike. This situation prevailed until Larry Walsh was hired in late November or early December 1973, to do the janitorial work. At that time Moore was transferred to the produce department and also did some sacking work. In about the middle of January 1974, Walsh left when his work at the store conflicted with another job which Walsh held doing janitorial work at the local high school. When Walsh left, Moore went back to the janitorial work while at the same time performing duties in the produce department. Another part-time student, named Lawrence -King, and Francis helped Moore on the late night cleanup. However, this arrangement was unsatisfactory since the janitorial work left Moore too little time to perform his duties in the produce department. About the middle of January 1974, Gary Blomberg, store manager,4 assigned Francis to the janitorial work. Blom- berg's stated reason for selecting Francis was that the labor overhead in the general merchandise (hardware) department was high. His selection of Francis instead of Lawrence King, who also worked in hardware, was a policy decision based on the fact that King was not fully trained in the hardware department and by selecting Francis instead of King, Blom- berg would be able to have two fully trained men in hardware once King was fully trained. Another reason for selecting Francis was that Francis was not a COE student and as such was unavailable for work until about 4 p in. King was a COE student and was available at about 12:30 or 1. King's availa- 2 Unfair labor practice allegations arising out of this organizational effort and strike were heard before Administrative Law Judge Ramey Donovan on February 5, 6, and 7, 1974, resulting in a Board Decision (213 NLRB No. 112 (1974)) concluding, inter aka, that Gerald Francis was an unfair labor practice striker and that his reinstatement on November 11 was insuf- ficient because he was reemployed at reduced hours. That issue is not involved in the instant case The single issue before me, as defined in the complaint, is whether or not the Respondent, subsequent to the above reinstatement, discriminated against Francis in January 1974, by transfer- ring him and reducing his hours, thereby constructively discharging him on or about April 20, 1974. 3 Francis also states that Moutray told him that his failure to go back to work during the strike was a reason for his not being allowed into the program However this allegation is unsupported by any corroborating evi- dence and even if true, no responsibility can be assigned to the Respondent for Moutray's statements 4 The testimony clearly shows that Gary Blomberg, the store manager, and Bill Combs, the assistant store manager , exercise sufficient indicia of supervisory authority to conclude they are supervisors within the meaning of Sec 2(11) of the Act as alleged in the complaint The record is insufficient to conclude that Allan Morris, hardware manager, is also a supervisor and no finding therefore is made as to Morris' supervisory status. bihty in the early afternoon before 4 or 5, when cleanup began, would have been wasted had King been assigned to the janitorial work. At the time of his assignment to the janitorial work, Fran- cis told Blomberg that he did "not like the idea too good." At this time Blomberg advised Francis that the assignment would not be permanent, less than a year, and that Moore would show him how to do the janitorial work. Blomberg told him that the work would entail cleaning floors, mopping, changing the ice machines, cleaning pop machines, cleaning the restrooms, changing towels, and emptying trash and ash- trays. He was told that on Sunday he would sack groceries. At his own request Francis was not scheduled to work Friday evenings since he wanted this time off to be with his girl- friend. With respect to the nature of the work, Francis testified that, while it was not more demanding work physically nor any dirtier, he considered it to be a "downgrading job," a "low job." Moore testified that other jobs like stocking and unloading trucks were dirtier jobs than the janitorial work, and that the janitorial work was no more difficult physically. Moore further testified that, while he did not necessarily dislike the job, he did not see any progress in it for himself, even though he did not mind it himself since it was one of the easiest jobs in the store. For a few weeks after Francis ' assignment to janitorial work, Moore helped him until they had an altercation outside the store in early March 1974.5 Thereafter Francis per- formed the janitorial duties himself, with late night cleanup help from King. With respect to the allegation that Respondent reduced Francis' work hours when it transferred him from the hard- ware department to janitorial work, Francis testified that in November and December 1973, while in the hardware de- partment, he was working about 25 to 30 hours a week and that beginning January 1974 through April 1974, while doing the janitorial work, he was working 10 to 15 hours a week. General Counsel introduced into evidence certain of the Re- spondent's pay records which show the following hours worked for some of the relevant payroll ending dates as fol- lows; 12/1/73-18.9 hours; 12/29/73-23.1 hours; 1/5/74- 22.4 hours; 2/9/74-6.Q hours;' 7/20/74-29.1 hours; 1/12/74- 20.2 hours; 1/26/74-19.98 hours; 2/2/74-31.7 hours; 2/16/74- 21 hours. Francis did the janitorial work until about April 20, 1974. At this time he went to Blomberg and asked him if Mark Tucker, a newly hired part-time student employee could be assigned to the janitorial work since he had been told that his assignment would not be permanent. Blomberg replied in the negative, telling Francis that he wanted Tucker to learn the sacking job at the front end of the store first.7 Francis states that after this conversation he left and went back to work but grew more angry as the day went on and 5 While the General Counsel appears to be assigning responsibility for the fight to the Respondent through Blomberg's incitement of Moore, the record does not support this contention. 6 This pay period includes the days of the hearing noted in footnote 1 7 While Francis testified that Blomberg told him to get out if he did not like it, Blomberg's account of the conversation contains no such language. I conclude that even if such a remark was made it is insufficient to affect the disposition of this case. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 2 p.m. at his lunchtime, he walked up to Blomberg, who asked "Are you leaving?" to which Francis replied, "Yes." Blomberg asked, "For the rest of the day?" and Fran- cis replied, "Yes," adding "Well, I won't be coming back." Blomberg asked, "Is this for good?" and Francis replied, "Yes." Blomberg replied, "O.K., fine." Thereafter Francis punched out and left the store. By letter dated July 1, 1974, Francis was made an offer of reinstatement which he accepted sometime about mid-July 1974. Francis is presently employed' as a clerk in the hard- ware department! B. Discussion and Analysis It is undisputed that Francis was active on behalf of the Union and that he participated in a strike against the Re- spondent in August 1973. It is equally apparent based on the record herein that Store Manager Blomberg was aware of his activity and the fact that Francis was an active union adher- ent. However, when allegations of illegal discrimination are made, there must also be a showing that the discriminatory treatment was undertaken because the employee had engaged in such privileged activity. In applying this criteria to Fran- cis' transfer to janitorial work in the instant case, the facts must establish first that the transfer was discriminatory and secondly that Respondent's motivation for the transfer was based on considerations proscribed by the Act. As to the first consideration, Francis concedes that the janitorial work was no dirtier or more demanding physically than other jobs in the store. However, it does not follow that simply because one job is no more strenuous or dirty than another that it may not be more onerous. In the instant case, Francis was moved from a clerk's job in the hardware depart- ment to janitorial work which involved, inter alia, cleaning floors, dumping trash, and cleaning toilets and restrooms. Francis described it as a "downgrading" or "low" job. I agree. In comparing the nature of the work performed by Francis as a clerk in the hardware department with the janitorial work, I conclude that the janitorial work was more onerous. With respect to the allegation that Respondent reduced Francis' work hours when he was transferred to janitorial work, I conclude that this allegation is not supported by the evidence. Those timecards in evidence, noted above, while not complete records for the relevant periods of time, do not support the conclusion that Francis' hours were reduced, and the record herein does not otherwise support this contention. There remains for consideration the central issue as to whether or not Respondent's transfer of Francis to janitorial work was discriminatorily motivated resulting in his con- structive discharge. Respondent contends that it was neces- sary to reassign the janitorial work to someone other than Moore since it interfered with Moore's primary duties in the produce department. Respondent explains that the overhead was high in the hardware department which made this a desirable place to economize. Within the hardware depart- ment it appears that two employees were considered for the janitorial assignment; one was Lawrence King, a recent hire, and the other, Francis. Respondent selected Francis rather than King since King was being trained in the hardware department and on completion of his training both he and Francis would be fully trained hardware department em- ployees. It is also noted in this regard that King, as a COE student, could work in the early afternoon. Francis, since he was not a COE student, could not begin until about 4 p.m. Since the janitorial work began about 4 or 5 p.m., a better utilization of both King and Francis was realized by assign- ment of Francis to the janitorial work and using King for early afternoon work for which he was available and Francis was not. For these reasons, Respondent decided to assign the janitorial work to Francis. The reasons are plausible. Obvi- ously Respondent could have resolved the matter differently and perhaps more efficiently, but I cannot conclude on the facts of this case that the assignment of Francis was anything other than a legitimate exercise of business judgment. While the General Counsel and Union urge that the transfer was discriminatory, the state of this record does not permit any proper inference of illegal motivation, despite the unfair labor practice findings made by the Board as noted in footnote 1. The facts upon which any such inference could be made do not appear in the record herein. The General Counsel has failed to meet his burden in this regard. In summary, I cannot conclude that Francis' transfer to janitorial work was discriminatory within the meaning of the Act. Therefore his subsequent departure from the Company was not justifiable so as to constitute a constructive discharge, but was rather a voluntary quit. Hecht's Inc., 174 NLRB 951 (1969). 8 General Counsel alleges that this reinstatement is at substantially re- duced hours compared to his prestrike employment and should be deemed violative of Sec. 8(a)(1) and (3) of the Act. This matter was not fully litigated at the hearing and is otherwise beyond the scope of the issues framed by the complaint and the complaint was not amended to include such allegations. Accordingly, no findings thereon are made herein. CONCLUSION OF LAW Respondent has not engaged in any conduct violative of the Act. [Recommended Order for dismissal of complaint omitted from publication.]