Luke's Supermarket, Inc.

LUKE'S SUPERMARKET 763 Luke's Supermarket, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local 539. Cases 7-CA-12772 and 7- RC-13390 March 16, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On August 31, 1976, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions 1 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 We agree with the Administrative Law Judge's finding that Robert Spicer was a supervisor at the time of his employment with Respondent. We further agree with his recommendations that the challenge to Spicer's ballot be sustained, and that the allegations in the complaint concerning Spicer be dismissed. Spicer was hired to be the manager of Respon- dent's meat department by Donald Bolstetter, president and owner of Respondent. At that time, Bolstetter told Spicer that he had the authority to direct the meat department employees. In this regard, Spicer would tell the employees to grind and trim meat, fill the meat trays, and wait on customers. The employees testified that they generally were aware of the things that needed to be done because a daily routine had been established under Spicer's direction. However, if they needed something to do or if they had any difficulties in their work, they would go to Spicer. On occasion, Spicer would ask the supervisor of the grocery department to help him out when the meat department was particularly busy, and this supervisor had been directed by Bolstetter to comply with Spicer's request. 1 In the absence of exceptions, we adopt proforma the Administrative Law Judge's findings that Respondent engaged in independent 8(a)(1) violations. 2 As the Administrative Law Judge inadvertently omitted from his recommended Order the Board's traditional language requiring the Respondent to cease and desist from in any like or related manner infringing upon employee rights, we shall modi fy his recommended Order and notice by providing suchlanguage. 228 NLRB No. 91 While the majority of Spicer's time was spent in preparing meat for sale and in directing employees, he had additional responsibilities as well. He and Bolstetter would determine how much meat the store would need to purchase for sale, and Spicer would then place the orders with various meat suppliers. If a meat supplier not regularly contacted by the store came into the store seeking an order for meat, he would discuss the matter with either Spicer or Bolstetter. Spicer frequently dealt with state meat inspectors. A portion of Respondent's business consists of preparing sides of meat for customers to freeze at home. Spicer would take these customer orders and prepare the meat. Spicer would also assist in setting the prices on meat, particularly when he was aware that there was a large supply of a certain item and he determined that a lower than regular price would help sell the product more quickly. Spicer also assisted Bolstetter in preparing newspa- per advertisements. For the most part, employees would speak with Bolstetter regarding various personnel-related mat- ters, such as wage increases, work schedules, and vacations. Several employees testified that if they wanted to leave work early they would contact either Spicer or Bolstetter, whoever was in the store at the time. One employee testified that if he were sick and could not come into work he would inform either Spicer or Bolstetter. On at least one occasion, Spicer called an employee in to work on his day off. When Spicer was out with an injury, he was requested by Bolstetter to "come in and just kind of point [a] finger in supervising." Bolstetter testified that he stated to Spicer at this time, "I know you can't work but you can supervise." Considering all the circumstances, we are of the opinion, contrary to our dissenting colleague, that Spicer did in fact responsibly direct employees in their work.3 The fact that Spicer did not have authority in personnel-related matters is, in our opinion, not critical to a finding that he nonetheless exercised supervisory authority. It appears that Respondent's store is not large, and that Bolstetter takes an active part in its daily management. We do not think it uncommon in such a situation to find that he would be the person to whom employees would go for wage increases, schedule changes, and vacations. If Spicer were found not to be a supervi- sor, the meat department employees would, in effect, be without close daily supervision which, considering 3 Our colleague cites testimony indicating that, during the period of Bolstetter's illness, the employees looked to Bruce Mackie for supervision. However, Bolstetter testified that Mackie never had any supervisory authority at any time. Furthermore, Mackie himself stated that Bolstetter did not give him any authority during this period. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complexities of operating a supermarket, and his involvement in his other retail enterprises, Bolstetter could not effectively provide.4 Spicer's authority to direct employees, as well as his involvement in ordering meat, dealing with salespeople and inspectors, and preparing newspaper advertisements, convinces us that Spicer was a supervisor at the time of his employment. 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 as modified below and hereby orders that the Respon- dent, Luke's Supermarket, Inc., Sebewaing, Michi- gan, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Insert the following as paragraph 1(c): "(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the Regional Director for Region 7 shall issue a revised tally of ballots and the appropriate certification for the election held in Case 7-RC-13390. MEMBER FANNING, concurring in part and dissenting in part: I agree with the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) by unlawfully interrogating employees, unlawfully solic- iting grievances, and unlawfully threatening to sell its business if the Union won the election. However, contrary to my colleagues, I would reverse the Administrative Law Judge and find that Spicer was an employee, count his ballot, and remand the case to the Administrative Law Judge to decide the 8(a)(1) and 8(a)(3) allegations involving Spicer. The Administrative Law Judge's reasons for finding Spicer to be the supervisor of the meat department are not clearly articulated. Certain incidents are, however, listed by him apparently to support this finding. These are: Spicer on occasion granted Eremia permission to leave early, once reported an employee for theft, once told Hoppe to get a haircut, once reprimanded Hoppe for tardiness, once called Burley into work on his day off, ordered meat, and helped write Respondent's advertisements. Two employees are quoted as saying that Spicer We agree with our colleague that the record shows that Bolstetter did spend quite a bit of time in the meat department , where he assisted in filling the meat counter, straightening the cooler, and finding work for the "would run the show" and was the "boss" of the meat department. Finally, the Administrative Law Judge emphasizes that Bolstetter, Respondent's owner, told Spicer, after a month's absence due to an injury, to come to work during the week of the election and "just kind of point [his] finger in supervising." Employees Farver, Koch, Hoppe, and Burley each testified that Bolstetter, not Spicer, set the meat department employees' work schedules, lunch hours, and vacations and decided whether to permit employees to leave early. The Administrative Law Judge ignored this testimony when evaluating Eremi- a's statement that she occasionally asked Spicer to let her leave early. Further, her testimony referred to a period during which her husband was ill. She stated that when she would ask to leave early because of her husband's illness she "asked either Bob [Spicer] or Don [Bolstetter], whichever one was there, and I never had a problem. They knew the conditions at home and they would let me go." The testimony of the other four meat department employees indicates that Bolstetter would have initially decided whether to permit Eremia to leave early because of her husband's illness. After that, as long as her reason for wanting to leave early was the same, Spicer, by permitting her to do so, was only following Bolstet- ter's orders, without exercising independent judg- ment. As Eremia said, "[t ]hey knew the conditions at home and they would let me go." The incidents involving Hoppe and Spicer's report of stealing were apparently mentioned to show his authority to discipline employees. The Administra- tive Law Judge, however, fails to mention that Bolstetter told Spicer that Hoppe's tardiness was none of his business, and that Spicer's complaints about Hoppe's hair and his reports about the thefts were ignored. Thus, contrary to what the Adminis- trative Law Judge might have us infer, these incidents show only that Spicer could not effectively recommend the discipline of employees. The testimony that Spicer was the "Boss" of the meat department, "would run the show," and Bolstetter's self-serving statement that Spicer would "point [his] finger in supervising" during the week of the election were apparently mentioned to show Spicer could "responsibly direct employees." But the test is not what the alleged supervisor is called but whether he actually "responsibly directs employees." The record does not support a conclusion that Spicer responsibly directed the meat department employees. Bolstetter hired Spicer as a meatcutter and so, not suprisingly, 90 percent of Spicer's time was spent employees to do However, during the time he spent in the meat department, he was also involved in preparing newspaper advertisements, determining how much meat to order, and figuring the store's profit LUKE'S SUPERMARKET cutting meat. The remainder of his time was spent grinding hamburger, making sausage, serving cus- tomers, ordering meat, and helping write advertise- ments. While a few employees testified that Spicer sometimes told them what to do, such purported instructions, both before and after his injury, were of a routine nature. Thus, Spicer told employees to grind hamburger, make sausage, keep the meat trays filled, and serve customers. These instructions did not require the exercise of independent judgment, since any employee could look at a meat tray and ascertain that there was not enough hamburger to satisfy a customer's request or see that a customer was waiting. Moreover, as another meat department employee testified, "after a while you know what you are supposed to do, you don't need anybody to tell you." That this was true is supported by the fact that nobody was hired to replace Spicer immediately after his discharge because, according to Eremia, the employees "all knew what had to be done ...." 5 In conclusion, Spicer did not have the authority to discipline, assign, or responsibly direct employees. Nor was evidence introduced to show Spicer had the authority to, or could effectively recommend that, the Respondent hire, transfer, suspend, lay off, recall, promote, discharge, or reward meat department employees. The Respondent was only able to show a single instance when Spicer called an employee in to work during his 6 years as a meatcutter. This one- shot exercise of supervisory authority, however, does not establish supervisory status. Clearly, Spicer was an employee 6 and his ballot should have been counted. I would also remand the case to the Administrative Law Judge to make findings, includ- ing credibility findings, on the allegation that Spicer's discharge violated Section 8(a)(3), and on the 8(a)(1) allegations involving Spicer. 5 My colleagues' finding that the meat department would have been without immediate daily supervision if Spicer were found not to be a supervisor is incorrect. Bolstetter admitted that he spent "quite a bit" of time in the meat department, and Spicer testified that from 80 to 85 percent of the time that he was on duty Bolstetter was also present . Even during the period of Bolstetter's absence because of illness, from early September 1975 until mid-November 1975, Spicer was not given supervisory powers. Koch's testimony indicates that during this 2-1/2-month period the employees looked to Mackie, Bolstetter's father-in-law, for supervision. It is therefore clear that the meat department employees were under the immediate daily supervision of either Bolstetter or Mackie , but not Spicer. 6 See St Louis Bagel Bakers, Inc., 224 NLRB 307 (1976). The fact that Spicer helped to order meat and write newspaper advertisements and dealt with salespeople and meat inspectors is irrelevant to the question of his supervisory status. APPENDIX 765 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate any of our employees concerning their union activities or unlawfully solicit employee grievances in such a manner as to interfere with their rights guaran- teed by the National Labor Relations Act, as amended. WE WILL NOT unlawfully threaten to sell our supermarket operation if our employees choose a union as their bargaining agent. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. LUKE'S SUPERMARKET, INC. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed in Case 7-CA-12772 by Amalgamated Meat Cutters & Butcher Workmen of North America, AFL- CIO, Local #539, herein referred to as the Union, was served on Luke's Supermarket, Inc., the Respondent herein, by registered mail on February 21, 1976. A complaint and notice of consolidated hearing was issued on April 7, 1976. On the same date a Report on Challenged Ballots was issued by the Regional Director for Region 7 in Case 7-RC-13390, together with an order consolidating Cases 7-CA-12772 and 7-RC- 13390 for hearing. On January 14, 1976, an election had been conducted in Case 7-RC-13390 among the Respondent's employees who were employed in a meat department unit. The ballots of employees Robert Spicer and Helen Eremia were chal- lenged by the Respondent and the Union respectively. The Respondent claimed Spicer was a supervisor within the meaning of the Act. In his Report on Challenged Ballots, the Regional Director found that the challenges were of sufficient number to affect the results of the election and, in that the circumstances surrounding the eligibility of the challenged voters raised substantial and material factual issues including credibility resolutions which could best be resolved after a hearing thereon, the Regional Director ordered that these matters and those raised in Case 7-CA- 12772 be heard and considered simultaneously by an Administrative Law Judge. The complaint in Case 7-CA-12772 charged that the Respondent had unlawfully discharged Spicer on or about January 23, 1976, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended , herein referred 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to as the Act, and had engaged in certain violations of Section 8(a)(1) of the Act. The Respondent filed a timely answer denying that it had committed any of the unfair labor practices alleged. The consolidated case came on for hearing at Bad Axe, Michigan, on June 30, 1976, and July 1, 1976. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. No party chose to file a brief. FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has maintained its only office and place of business at 8856 Unionville Road, in the city of Sebewaing, and State of Michigan. Respondent is, and has been at all times material herein, engaged in the retail sale of groceries, meats, and related products. During the year ending December 31, 1975, which period is representative of its operations during all times material hereto, Respondent's gross revenues from the sale of meats, groceries, and related products exceeded $500,000. During the same period of time Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Sebewaing store natural gas valued in excess of $1,000 from the Consumers Power Company, 90 percent of which gas was received by Consumers Power Company at its Michigan plants directly from points located outside the State of Michigan, and it purchased in excess of $25,000 worth of groceries from suppliers which had received the goods sent on to Respondent from directly outside the State of Michigan. Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. CASE 7-RC-13390 The Challenged Ballots The challenge to employee Helen Eremia's ballot was withdrawn by the Union at the commencement of the The facts found herein are based on the record as a whole and the observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses , and the teachings of N.LR B v Walton Manufacturing Company & Loganville Pants Co, 369 U S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or hearing. The ballot was opened and it was reported by the Regional Director that Eremia had voted "no." Thus, the tally stood four votes for the Union and four votes against it. Hence Robert Spicer's ballot became determinative of the results of the election. The Respondent operated a supermarket divided into grocery produce and meat departments. James Christner, an admitted supervisor within the meaning of the Act, headed the grocery department. Spicer, who was assigned to the meat department, according to the Respondent, performed duties which rendered him likewise a supervisor within the meaning of the Act. In support of this claim it was disclosed that Spicer was hired in October 1969 to "manage" the meat department. At the time he was told by Donald Bolstetter, president and owner of the Respondent, that "he was in charge." On January 29, 1975, and at other times Spicer was pictured in a Respondent advertisement carried in the Huron Daily Tribune, a Bad Axe, Michigan, newspaper, as a "meat manager." 2 In May 1974 in a Sebewaing, Michigan, newspaper he was labeled as the "head meat cutter." In this regard Spicer testified that "at times" he was "under the impression" that he was the meat manager. Employer John Farver described Spicer's work: "He would be the general - let's say foreman like, or he would run the show. He would help us out. Tell us what to do a little bit. If we were standing around, he would put us to work." When employee Helen Eremia was hired Bolstetter told her that Spicer "would tell [her] what to do and the days to come in. Eremia referred to Spicer as "boss of the meat department." Eremia also said that she asked Spicer on occasion to leave early which he granted. Employee Howard Hoppe was told several times by Spicer to get a haircut. In the summer of 1975 Spicer also "chewed out" Hoppe for arriving late for work.3 Hoppe complained to Bolstetter who told him not to let it "bother" him and to "do" his job. Spicer summoned employee William Burley for work other than during his normal working hours. Spicer also reported an employee's thefts. Spicer ordered most of the meat which the Respondent sold. About 90 percent of his time Spicer spent cutting the meat. (The meat was generally purchased as whole carcasses.) In addition he filled the counter, ground hamburger, and "made a little sausage now and then." He also participated in the zomposition of the Respondent' s advertisements. On December 18, 1975, Spicer injured his hand while at work and he did not work again until the week of the election. Although at this time Spicer had not completely recovered from his injury, Bolstetter had asked him to "come in and just kind of point [his] finger in supervising" so that Bolstetter would have "some time to work up front." Spicer discontinued working at the end of the week. because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted. 2 The advertisement in the Bad Axe newspaper was placed by Spicer. 3 Spicer admitted the incident. When Spicer reported the late arrivals of Hoppe to Bolstetter, Bolstetter replied, "That's none of your business. I'll take care of it - I'll take care of him." LUKE'S SUPERMARKET At the time of the election 11 persons worked in the meat department. The fact that Bolstetter asked Spicer to "point his finger in supervising" together with the indicia of supervisory authority detailed above is enough to bring Spicer's authority within the definition of a supervisor as set out in Section 2(11) of the Act and it is so found. Thus, it is recommended that the challenge to Spicer's ballot be sustained. IV. CASE 7-CA-12772 The Unfair Labor Practices Since it has been found that Spicer is a supervisor within the meaning of the Act, the 8(a)(3) allegations and those 8(a)(1) allegations which concern Spicer must be dismissed. During the middle of October 1975, employees James Christner, Judy Koch, Arnie Kunish, Brenda Beers, and John Farver met at Spicer's house with representatives of the Union with the idea of organizing the meat department. Later a meeting was held at James Christner's home for the purpose of organizing the remaining employees. Immedi- ately thereafter Bolstetter summoned certain employees individually to his home where he queried them in regard to the meetings. Bolstetter had learned of the meetings and that they concerned the Union from his father-in-law, Bruce Mackie, who worked at the store. Employee Farver was asked by Bolstetter whether he had any "gripes or any problems." Farver replied that he objected to working on Sunday. Bolstetter informed Farver that he would have to work on Sundays only until another employee returned to work. Bolstetter also said that "he did not figure a third party was needed, that we could negotiate ourselves." Bolstetter admitted that he had met with Hoppe, Farver, Spicer, and Christner and inquired about their complaints.4 Bolstetter testified that he "tried to convey" to the employees that "if they had a problem....... [he] would help work it out." Bolstetter's interrogations and solicitations of grievances carrying with them the implied promise that the grievances would be remedied were unlawful since they had a tendency to coerce employees in the selection of a bargaining agent and to impress upon employees that there was no need to choose a union to rectify working conditions and gain benefits and were in violation of Section 8(a)(1) of the Act. Northwest Engineering Company, 148 NLRB 1136, 1139-40 (1964), and Franklin Parish Broadcasting, Inc., 222 NLRB 1133 (1976). On another occasion Bolstetter told Farver that if the "Union would go through he probably would sell the store" and run a sports shop. In the forepart of December, James Christner told employee Donald Schweim that the store would be sold if the Union came in. Schweim asked Bolstetter if what he 4 In respect to the subject of insurance Bolstetter testified he told the employees, "Well, let's talk about it. If you want something else it's no big deal." s 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, 767 was told by Schweim was true; Bolstetter responded that he would sell the store. About 10 days after the election Schweim talked to Bolstetter again. Among other things Bolstetter said that "he would sell the store, perhaps not right away, but perhaps in a year or so." Bolstetter admitted that he told Schweim that he would sell the store if the Union prevailed; ("a chance that I would sell, or that I would.") Bolstetter testified that he said the same thing to Farver. These threats to sell the store were clearly in violation of Section 8(a)(l). Cf. Masdon Industries, Inc., 212 NLRB 505 (1974); Franks Flower Express, 219 NLRB 149 (1975). CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, Luke's Supermarket, Inc., Sebewaing, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concerning union matters and unlawfully soliciting employee grievanc- es in such a manner as to interfere with employee rights guaranteed under the Act. (b) Unlawfully threatening to sell its supermarket operation if its employees choose a union as their bargaining agent. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its Sebewaing, Michigan, store copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for 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 6 In the event that the Board's Order is enforced by a Judgment of a (Continued) 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 7, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it 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 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 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."