Affiliated Food Stores, Inc.

National Labor Relations Board - Board Decisions

May 6, 1964

146 N.L.R.B. 1419 (N.L.R.B. 1964)

AFFILIATED FOOD STORES, INC. 1419
Affiliated Food Stores, Inc. and Dallas General Drivers, Local
No. 745, affiliated with The International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amerr
ica. Case No. 16-CA-1895. May 6, 1964 .
DECISION AND ORDER
On February 5, 1964, Trial Examiner James A. Shaw issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision
and the entire record in this case, including the Respondent' s excep-
tions, and hereby adopts the findings, conclusions ,' and recommenda-
tions of the Trial Examiner.
ORDER.
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Affiliated
Food Stores, Inc., its officers, agents, successors , and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.3
' In the circumstances of this case, we deny the General Counsel 's motion to strike the
exceptions.
2In the absence of exceptions thereto we adopt pro forma the Trial Examiner 's conclu-
sion that the Respondent did not independently violate Section 8 ( a) (1) of the Act in con-
nection with the interviews with Usrey and Gordy in Keener's office.
' The notice attached to the Trial Examiner 's Decision is hereby amended by adding
the following sentence immediately below the signature at the bottom of the notice:
NOTE.-We will notify the above -named employee , if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from ' the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed, the General Counsel 'of the National Labor Relations
Board, for the Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued a.complaint on September 20, 1963, against Affiliated Food Stores, Inc., herein
called the Respondent , alleging that it had engaged in certain unfair labor practices
affecting commerce within the meaning of Section 8(a) (1) and ( 3) of the National
146 NLRB No. 166.
1420 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The Respond-
ent's answer denies the allegation of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held in Dallas, Texas, on October 31, 1963, be-
fore Trial Examiner James A. Shaw. All parties were represented by counsel and
were afforded opportunity to adduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Briefs have been received from the. Respondent and the
Charging Party, and they have been carefully considered by me.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT AND CONCLUSION
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that:
2. 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 Texas,
with principal office and-place of business, hereinafter called the plant,:in the
City of Dallas, Texas, engaged in said location in the wholesale sale and dis-
tribution of grocery products.
3. Respondent, during the past calendar year, which period is representative
of all times material herein, in the course and conduct of its business operations,
purchased, transferred and delivered to its Dallas, Texas, plant, produce and
other goods and merchandise, valued in excess of $50,000, directly from.States
of the United States other than the State of Texas.
In the circumstances described and set forth above I find that the Respondent here-
in is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Dallas General Drivers Local No. 745, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is;
and has been at all times material herein , a labor organization within the meaning
of Section 2(5) of the Act.
Foreword
No proper understanding of the issues herein could be had without first setting
forth herein a picture of the Respondent's business operations and its organizational
setup. With that in mind let us first dispose of the nature of its business and its
contacts with the public at large.
The Respondent herein, Affiliated Food Stores, Inc., is owned by 860 independent
retail grocers, and is primarily engaged in the distribution and wholesaling of foods
and other merchandise usually found in grocery stores. Its average yearly business
is in excess of $125,000,000. In the course and conduct of its business at times ma-
terial herein it employs approximately 600 persons. We are concerned herein pri-
marily with the employees in the warehouse and its truckdrivers who deliver the
merchandise from the warehouse to affiliated grocery stores in the Dallas, Texas, area.
At times material herein management of the Respondent's business operations was
vested in the board of directors, nine in number at the time of the hearing herein,
who in turn entrusted active management of its affairs to David A. Keener, general
manager.
In addition to Keener, the complaint alleges, the answer admits, and I find that the
following persons were likewise supervisory employees at times material herein:
Joseph W. Low, personnel director; J. D. Rexroat, warehouse operations director;
Raymond Johnson, assistant warehouse foreman; and O. D. Owens, dock foreman.
In addition to the foregoing the record shows and I find that Bob Thompson was
likewise a supervisory employee within. the meaning of the Act at times material
herein.
HI. THE UNFAIR LABOR PRACTICES
A. The issues
The issues we are concerned with herein stem from an organizational drive by
the Charging Union among the Respondent 's employees , that began , insofar as this
record is concerned , sometime during the latter part of June 1963. One of the most
active participants for the Union among the employees in the warehouse was one
Larry Gordy, an order puller, who was discharged by the Respondent on July 6,
1963. Shortly thereafter on July 10, 1963, the Union filed the charges herein in
which it alleged that Gordy had been discharged because of his activities in its
. 0
AFFILIATED FOOD STORES, INC. 1421
behalf among the Respondent's employees. In due course the Regional Director
issued the complaint, upon which this proceeding is predicated, on September 20,
1963, which alleged, as indicated above, that the Respondent herein had engaged
in conduct violative of Section 8(a) (3) and (1) of the Act by discharging Gordy.
In addition, it further alleged that the Respondent had engaged in certain conduct
that was independently violative of Section 8(a)(1) of the Act. Thereafter the Re-
spondent, as indicated above, filed its answer in which it denied the commission of
any of the unfair labor practices.
B. The alleged violations of Section 8(a)(3) and (1) of the Act
The most important issue we are concerned with herein stems from the discharge
of Larry Gordy by the Respondent on July 6, 1963. The issue as to Gordy is most
baffling for reasons that will be apparent below. Suffice it to say at this point that
in order to understand the issue as to him. his entire tenure of employment must, of
necessity, be considered in view of the reasons advanced by the Respondent at the
hearing herein in justification of its action. Consequently further comment in this
regard follows below.
Larry Gordy was hired by the Respondent as a truckdriver sometime in March
1961, and was so employed until the latter part of. March 1963, when he was taken
off his truck and transferred to the warehouse where he worked as an order puller
until July 6, 1963, when he was discharged under the circumstances set forth in more
detail below.
Since the circumstances under which Gordy was relieved of his job as a truckdriver
and transferred into the warehouse as an order puller are part and parcel of the Re-
spondent's contention that Gordy was discharged for cause and not because of his
union activities, I of necessity feel compelled to dwell at some length on the incident
that led up to Gordy's change in status from a truckdriver to a warehouse employee
in the latter part of March 1963.
Sometime on either March 26 or 27, 1963, Gordy was returning to Dallas in his
truck from Tyler, Texas, on U.S. Highway No. 80. While driving near Wills Point,
Texas, he attempted to pass another truck on the highway and was arrested by a
Texas State highway patrolman for doing so in -a "no passing zone." According to •,
Gordy he did not pass the other truck in a "no passing zone" and expressed his
resentment to the patrolman in no uncertain and abusive language. The upshot of
the incident was that the patrolmen took him into Wills Point, Texas, where he was
arraigned before a justice of the peace. He pleaded not guilty to the charge. He
was unable to put up bond' for his release and as a consequence he was taken to
Canton, Texas, the county seat of Van Zandt County, and incarcerated in the county
jail. Shortly thereafter he was granted permission to call the Respondent's office in
Dallas and inform his superiors of his predicament. In the course of his conversa-
tion he told some representative of the Respondent that a $200 bond would have to
be posted for his release from jail.' What happened thereafter is. best told in the
following excerpt from Gordy's testimony:
The WITNESS: I related to them that 'a $200 bond would have to be posted
for my release from the county jail and then they took me to a cell and approxi-
mately two to two and one-half hours later the jailer released me and said that
my fine had been paid.
I asked him exactly what he meant by my fine had been paid and I told him
that I had wanted bond posted and he said that he knew nothing of it, but that
my fine had been paid and so I was released.
Therefore, I went or rather I hitchhiked to Wills Point, Texas, and picked
up my truck and returned to the Dallas warehouse.
And upon returning I was told that John Rexroat, the superintendent there,
that he wished to speak with me and I went to his office and he informed me
that he was taking me off the trucks and putting me inside the warehouse in the
capacity of an order puller.
I was quite, I wouldn't say depressed, but disappointed and I related that to
him at that time. That's all the incidents that happened that day.
As indicated above, Gordy was very much upset as a result of the above incident.
As I see it, particularly from Gordy's demeanor while he was testifying, be
was not only upset because of his arrest, but because some unknown person had
gone to the justice of the peace without either his knowledge or consent and pleaded
him guilty of the offense he was charged with. His feelings in this regard are
1 Gordy was unable to identify the person to whom he talked in the Respondent 's office.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understandable , at least to me , for the following reasons. In the first place this was
his -third arrest and "conviction" for traffic violations in a year 's time and under the
laws of Texas he would automatically lose his driver 's license which he did as a
result thereof in May 1963 . Secondly, he was greatly incensed by the fact that he
had been denied a trial as a result of the "guilty" plea made by an unidentified person
in his absence and without either his permission or knowledge before the justice of
the peace , which of course was a denial of his constitutional rights as an American
citizen . In my opinion it was the latter that perturbed him the most.
At the hearing herein the Respondent took the position that it had nothing to
do with the "guilty" plea being made on Gordy' s behalf before the justice of the
peace. Its position in this regard is , in essence , found in the following excerpt from
the testimony of David A. Keener, its general manager:
Q. (By Mr . CORENBLETH.) In your conversation with Mr . Gordy did the
question come up about his being arrested and about the fine being paid, and
his license being taken away from him?
A. Yes, sir.
Q. What did he say about that?
A. Well, this was his reasoning for his dissatisfaction with the company and
the reason that his attitude hadn't been proper.
Mr. TooMEY: I object to that answer and ask that it be stricken.
Mr. CORENBLETH : I'm asking what Mr . Gordy said , that's what I'm asking.
TRIAL EXAMINER : That's all the question is, Mr . Witness , just answer what
Gordy said.
Q. (By Mr . CORENBLETH .) What Gordy told you.
TRIAL EXAMINER : That's all we want . Strike the other.
The WITNESS: He told me at that time that he knew one of the reasons he
put up such a strong argument to the arresting officer was that he knew that he
had all of the traffic tickets he could receive without losing his license and it
was his intention to retain an attorney and fight the case.
I asked him how had we violated anything there , that we had not pleaded him
guilty or done a darn thing except get our equipment back in possession, and
I explained to him then that after his call that we went to our sheriff 's depart-
ment here in Dallas and asked the sheriff 's department to investigate and find
out what it would take to get our truck back in our possession.
As pointed out above , Gordy after he was released from jail hitchhiked a ride back
to Wills Point , picked up his truck which he had left parked at a filling station, and
returned to the warehouse in Dallas. Upon his arrival he was instructed to report
to John Rexroat , the warehouse superintendent , which he did. In the course of their
conversation Rexroat told him that ". . . he was taking me off the trucks'and putting
me inside the warehouse in the capacity of an order puller ," where he worked until
July 6, 1963.2 In passing , I desire to point out that the Respondent required Gordy
to repay the money for the fine it paid the justice of the peace in Wills Point , Texas.
At thispoint I desire to point out that the primary purpose of inserting the above
'resum8 of Gordy's testimony as to his arrest and what transpired thereafter was
because his testimony in this regard was made without hesitation , or reluctance, and
in an earnest and forthright manner . In other words , his demeanor while testifying
as to the incident was such that he impressed me as an honest and forthright witness..
Consequently I credit his account of what transpired at the time of his arrest in toto.3
It must be borne in mind that much of his testimony was in effect an honest appraisal
of his own shortcomings , which is indeed a rarity in these troublesome times. Since
it will be apparent below that the credibility of the witnesses who testified at the
hearing herein , particularly as to what transpired at the meeting between Gordy and
representatives of the Respondent on July 6 , 1963, is without question the most
important and quite frankly pestiferous issue that we are concerned with herein, then
the purpose of my reference to Gordy's arrest should be understandable.
Another compelling factor to me in resolving the credibility issue regarding Gordy's
account of what transpired at the time of his arrest is that the testimony of Keener,
particularly as regards the circumstances under which Gordy's fine was paid, was
quite -frankly most evasive when viewed in the light of all the surrounding circum-
stances. For example, Keener testified to the effect that the only role the Respond-
ent played in the incident was the request it made to the sheriff of Dallas County "to
investigate and find out what it would take to get our truck back in our possession." 4
2 See supra in re excerpt from Gordy 's testimony in this regard.
8 See infra for further comment.
A See supra for an excerpt from Keener 's testimony.
AFFILIATED FOOD STORES, INC. 1423
Since the Respondent admittedly put up the money for the fine, and requested Gordy
to reimburse it under the circumstances mentioned above, it is inconceivable that
Keener, the general manager of the Company, particularly in view of Rexroat's
testimony in this regard, knew little or nothing about the circumstances under which
the fine was paid to the justice of the peace at Wills Point, Texas, as is clearly
evidenced by the following excerpt from Rexroat's testimony in this regard:
Q. All right. Relate those, what went on between you and Mr. Gordy then?
A. I left word with the supervisor that as soon as Mr. Gordy reported in off
this particular run that I needed to see him, I believe he should have been back
early that afternoon and it must have been 5:30 or 6:00 o'clock before he came
back and I asked him to give me an accounting of what happened and he did
and we talked for several minutes there and I discussed his attitude toward-
well, his attitude in general and told him that I felt like that he was an excep-
tionally good worker and all, he made his deliveries real well, but he just-he
had had a few tickets before and he told me that this would probably cause
him to lose his license and I told him that I had received the call that be and
the truck were tied up, I believe in Wills Point, and that they were going to bold
the truck there until-until we-until we could make arrangements.to get it
released.
I called, I believe it was the J.P.'s office to find out what the fine was, I don't
remember the amount, I got with Mr. Flaherty and we sent a check, I believe
we sent a check down to the sheriff's office here and had them to call the office
down there in order to get the equipment released.
I told Mr. Gordy about all this and be felt that we did the wrong thing by
getting the truck released because he said that he had been in this predicament
before and he could have gotten out of it. [Emphasis supplied.]
Other than the foregoing I see no reason for further comment as regards the
above incident, except to point out that the Respondent made no contention at
the hearing herein that Gordy's conduct while he was employed as a truckdriver was
the reason for his discharge on July 6, 1963.
The July 6, 1963, Incident
As indicated above Gordy became active on behalf of the Union among the ware-
house employees sometime in either the latter part of June or early in July 1963.
On the afternoon of July 5, 1963, he talked to one Michael Dennis Usrey, a food
checker, and persuaded him to participate in the Union's campaign to organize the
warehouse employees. Usrey agreed to meet with Gordy the next morning, July 6,
1963, in the Respondent's parking lot, which they did about 15 minutes before
working time. What transpired at that time is best told in the following excerpt
from Usrey's credible testimony:
Q. (By Mr. WELDON.) What happened, Mr. Usrey, on July 6th?
A. That morning, approximately fifteen minutes before work, we arrived on
the parking lot and I was sitting in my car and Larry came over and got in the
car with me and he handed me approximately fifteen of these application blanks
and at that time or right after he handed them to me, I looked over to my left
and noticed that there was a fellow had came out of the warehouse to get some-
thing out of his car.
This was Robert Slocacek and he came over and he got something out of his
car. Now, I don't know whether he overheard us talking or whether he saw
anything, I have no idea , but he remained a good time and we then went on into
the warehouse and went to work.
And then approximately 9:30 I was called into Mr. Rexroat's office.
Q. All right.
You were called into Mr. Rexroat's office by whom? -
A. Raymond Johnson.
Q. And you went to Mr. Rexroat's office?
A. Yes, I did.
Q. Who else was at that meeting?
A. I went to Mr. Rexroat's office and asked him if be wanted to see me and
he said yes, to come with him, and we went into Mr. Keener's office and present
there were Mr. Keener and Joe Low, and Mr. Rexroat introduced me to Mr.
Keener and we all sat down.
Raymond Johnson, at the time the incident of July 6, 1963, occurred, was assistant
warehouse superintendent, and as such had supervision over the warehouse. Ac-
744-670-6 5-vol. 146--91
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to Johnson 's credible testimony he was advised by O. D. Owens, the dock
foreman , on the morning of July 6 , 1963, that Gordy and Usrey were talking too
much on the dock . Shortly thereafter he went to Rexroat and told him "that there
was too much conversation going on on the dock," 8 and that Gordy and Usrey were
the employees involved in this conversation . Rexroat instructed Johnson to "get
hold of Mr. Usrey and bring him to my office."
At this point - 1 desire : to point , out that Owens testified that while he . observed
Usrey and Gordy . conversing he did not hear what they were talking about .6
Usrey, in accordance to Johnson 's instructions , went to Rexroat 's office. When
he entered the office Rexroat told him "to come with him ," and they went into
Keener's office , where they met with Keener and Joe Low. What transpired there-
after is likewise best told in the language of Usrey, whose testimony in this
regard is fully credited by me: 7
Q. All right.
Would you'tell us what was said at the meeting , please?
A. Well, Mr. Keener said that my name had come up involving the passing
out of these union cards, and he asked me if 'that was so and I told him no, that
that . was not true ; and he said that he had looked at my personnel record and
that I had a good record and he was surprised that my name had come up being
involved "in any of this , and he proceeded to tell me his opinion of the Teamsters
Union. • •
He named the Teamsters Union in particular , be said that he had no objection
to some unions but that the Teamsters Union in particular was a bad union.
He said that he could take me to the Kroger warehouse and that warehouse in
particular also and he could show me the low caliber of employees that they
had there -since they went union , and he told me everything that he knew that
he thought was wrong with the union and how the officials had misappropriated
the funds of the union and taken them for their own use.
Q. Did he mention the strike of 1956?
A. Yes, sir , he did . He mentioned , he said that be would never sign a union
contract with a check -off, he said that was the main thing that he had against
the union in their contracts was because the union would take my money and
wouldn ' t give a damn about me after they got my money.
He said that • they would promise you everything until they got your money. ,and then they wouldn 't try . to help you. He said that in approximately: 1956
there was a union-there was a strike and it lasted approximately eighteen
months and - that these truck lines--one of the truck lines ' managers had called
him at some point during that time and had this hot cargo and asked what did
he want done with it and he said that . he told his truck line manager that he
could either ship it back where he got it or he could stick it up his ass.
Q. Was there any mention of Local 745 of the Teamsters in particular?
A. He, mentioned Mr. Roseborough . He referred to him as Rosie a number
of. times 'and said that-that 's the part I understand he said-that Mr. Rose-
borough and some of his henchmen had come into his office unannounced and
burst into his office and pounded on his desk and demanded that he sign a
union contract.
As indicated- above, Keener asked Usrey in substance , early in their conversation,
as to whether or not he was involved in union activity, such as passing out cards and
thg like. Usrey told him that he bad not. His testimony in this regard is fully
credited by me, not only because he impressed me as an honest witness, but also for
the reason that he had not had an opportunity to engage in such activity at the time
he was called into Keener 's office. This unquestionably was a true statement by
Usrey because he received his first application cards from Gordy just a short time
before he was called into the office around 9:30 a.m., which was a little over 2 hours
after he received them, and they were still in his pocket while he was being inter-
viewed by Keener . This brings us up to what I consider the most important incident
that occurred during the course of the meeting between Usrey and the top hierarchy
of the Respondent, Keener, Low, and Rexroat. Usrey's account of what transpired
at the time in question is likewise best told in the following excerpt from his testi-
mony, which is also fully credited by me:
:Quotes from Johnson's testimony.
a The pertinency of this observation will be apparent below.
'Keener in the course of his testimony at the hearing herein conceded that. IIsrey's
account of what transpired at the meeting was essentially correct, and that it was similar
to what he told the employees at a meeting on July 9, 1963.
AFFILIATED FOOD STORES, INC. 1425
Q. What else was said to you at that session? Was anything said about these
cards?
A. Right near the last of our conversation ,. he asked. me again was I sure that
I was not involved.
TRIAL EXAMINER: About what?
The WITNESS: He asked me was I sure that I was not involved in this and
I hesitated a moment because I knew that he knew it because he named. Larry
Gordy and he named another person. as a driver, I believe he called the name
Ward, and 1 knew that he knew I had them.
Q. (By Mr. WELDON.) In addition, did he name these people?
A. He said they were involved in.passing out these cards, so I knew that he
knew I had them anyway, so I hesitated a moment and I said, "Well, hell," and
I reached into my pocket.and took the cards out that I had and I laid them on
his desk and Mr. Rexroat then picked them up and looked at them and Mr. Low
looked at them and I mentioned that they were all blank as I had not approached
anyone as yet with them. .
Q. Did you leave those cards with them at the.end of the.meeting?
A. Yes,. I did.. He asked' me if I wanted, them ;back. and •I ; told him that I
didn't, and he could have them . [Emphasis supplied.] _
Shortly after Usrey turned the union application cards over to Keener, he was ex-
cused and was told to go on back to his working place. In passing; I desire to point
out that the interview in question was conducted in an amicable and friendly manner,
and the Respondent's representatives were impressed and pleased by Usrey's conduct,
particularly when he gave Keener the union cards.
We now come to the case of Larry Don Gordy, the alleged discriminatee herein,
who has been referred to at considerable length hereinabove. At times material
herein Gordy was employed in' the warehouse as an-order puller, where he was as-
signed to work after the truck incident in the latter part of March 1963. • As also
indicated above, Gordy was one of the first employees of the Respondent to join
the Union, and become active in its behalf among its employees.8 Between June 29
and July 6, 1963, Gordy successfully solicited approximately 30 employees to join
the Union, one of whom was Usrey.9 The Respondent, by means none too clear
in the record, became aware of Gordy's activities on behalf of the Union the same
time that it was informed as to Usrey in this regard. By that observation I have
reference to Usrey's testimony regarding the July 6, 1963, incident.'8
Gordy was ordered to report to Rexroat's office by his foreman, Bob Thompson,
around 10 a.m. on July 6, 1963, which he did. Upon arrival there Rexroat took him
into Keener's office where the interview we are now concerned with occurred.
Rexroat and Joe Low were also present throughout the interview and participated at
times in the interrogation of Gordy. According to Gordy the interview lasted for
about 2 hours. The record clearly shows that Keener was the most active and out-
spoken participant for the Respondent during the. interview. Typical of Keener's
antipathy toward the Union and illustrative of the atmosphere that prevailed when
Gordy entered. his office is found in the following excerpt from Gordy's credible
testimony:
Q. Who spoke first?
A. Mr. Keener spoke first, and he put this question to me, "What is good
about the Teamsters Union and why do we need a union at this warehouse?"
I began to explain to him my reasons for wanting a union there, secure jobs,
security, pay raises, et cetera. He asked me if I didn't think the company had
always been fair to its employees, and I tried to relate a couple of experiences
where I didn't think they had been.
Since Gordy's testimony as to what Keener said about the Union during the course
of the interview in question is in essence the same as that of Usrey, which has been
referred to above at considerable length, I see no point in repeating it in this section
-of the report. .Suffice it to say that there'is no issue in this regard, particularly in
view of Keener's testimony to the effect that Usrey's account of what he said about
the Union during his interview was essentially correct.
The most important matter discussed during the interview we are now concerned
with was Keener's reference to Gordy's "generally bad attitude towards the Com-
pany." 11 The importance of this testimony is that the major defense of the Respond-
8 See supra.
8 See supra.
10 See supra. -
11 Quotes from Gordy's credible testimony.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent to the case as to Gordy is that he was discharged because of his "attitude" toward
the Company, which is.clearly evidenced by a mere cursory examination of Keener's
testimony in this regard. As a matter of fact the record herein is replete with the
phrases "attitude" and/or "loyalty towards the Company," particularly in the testi-
mony of Keener and Low.12
Gordy further testified that among other matters discussed during the course of
the meeting in Keener's office was his behavior at the time of his arrest in March
1963, which has been referred to at considerable length above. While it is true
that the Respondent makes no contention that Gordy's arrest was one of the grounds
for his discharge, nevertheless, Keener referred to it in his testimony as an example
of Gordy's "attitude" toward the Company.13
As indicated above, Joseph W. Low, the personnel director, was also present in
Keener's office throughout the meeting with Gordy. The importance of his testi-
mony is twofold. In the first place he testified that Gordy's account of what trans-
pired at the meeting in question was substantially correct, except as to one important
matter which occurred when Gordy was leaving the office after the interview was
over, and secondly, as regards the question of "loyalty" toward the Company.
The issue as to "loyalty" toward the Company was raised in the testimony of Joseph
Low, the personnel director, who as indicated above was present throughout the
meeting and interrogation of Gordy as to his union activities in Keener's office on
July 6, 1963. Though Low's testimony was somewhat vague and illusory at times as
regards what transpired at the meeting in question, I am convinced that in the final
analysis his reference to Gordy's "loyalty" was actually posed as a question to him by
Low as to whether or not he would be loyal to the Company if be was put back
to work. From this I am convinced and find that the purpose of Low's interrogation
of Gordy in this regard wasto put Gordy on record as to whether he would be loyal
toward the Company and not the Union if he was permitted to return to his job.
This finding is predicated upon the record as a whole and after due consideration
of the testimony of all the witnesses who testified at the hearing herein.
As pointed out above the interview and interrogation of Gordy in Keener's office
lasted for approximately 2 hours. From what I am able to glean from the record,
particularly from the testimony of Keener, the most important incident that occurred
insofar as the issue as to Gordy is concerned was at the termination of the, meeting
and after Gordy had been excused by Keener and was on his way out of the office.
What transpired and was said by Gordy at the time in question will be discussed and
disposed of below.
At this point I desire to point out that at the time Gordy and Usrey were inter-
viewed by Keener, July 6, 1963, the Respondent had a rule against "solicitation" of
"funds or memberships of any organization or for any purpose whatsoever on com-
pany time ... unless prior approval has been given by your supervisor." The rule
in question is set forth in an employee handbook which is given to employees at the
time they are hired.14 While I am convinced and find that both Usrey and Gordy
were aware of such a rule, they inadvertently disregarded it at times material herein.
This is clearly evidenced in the testimony of both at the hearing herein. It should
also be noted that the rule in question sets forth certain penalties for employees who
violate it. Even so I am convinced that though Gordy violated the rule in question
this was not the reason for Gordy's discharge. His reasoning is predicated upon
the fact that the Respondent itself did not advance it as such for its action either at
the hearing herein or in its brief, but on the other hand specifically stated at the hear-
ing through the testimony of its general manager, Keener, that Gordy was discharged
because of his "attitude" toward the Company, as evidenced by what he said when
he left his office after his first interview on July 6, 1963.
This brings us back to what transpired toward the end of the meeting in Keener's
office, the issue that we are now concerned with. Gordy's version of what transpired
at this time is likewise best told in the following excerpt from his testimony on
rebuttal :
Q. Now, let's get to the matter of the parting words. I don't ask you in sub-
stance what was said, exactly what was said and who said them?
A. Yes, sir. My final parting words came as I rose from my chair and
walked toward the door. I was asked a question by the General Manager,
David Keener.
12 See infra in re Low's testimony regarding loyalty toward the Company.
'a See anpra in re the "guilty plea" by an undisclosed person for Gordy, without his
.knowledge or consent in the justice of the peace court in Wills Point, Texas.
It See General Counsel's Exhibit No. 3, page 13.
AFFILIATED FOOD STORES, IN C. 1427
His question was, "If you need any more Union applications, I have plenty,"
and it was said in jest, at least I thought it was said in jest and as I opened the
door I turned back to Mr. Keener and, answered him in this way, "If I think that
I may need the Union applications I will be back to get them, but on my own
time." [Emphasis supplied.]
Mr. TooMEY: No further questions.
When Gordy left Keener's office after the first meeting on July 6, 1963, he was
under the impression that the atmosphere had cleared up and that Keener and the
others who were present were in a friendly and amicable mood at the time. That
he was in error in this regard will be apparent below.
According to Keener he was "flabbergasted," so to speak, at what Gordy said when
he left his office. Since his version of what Gordy said when he left his office con-
stitutes the most important credibility issue we are confronted with herein I am
convinced that it should be set forth in toto hereinbelow.15
Q. All right.
Now, then, when Mr. Gordy-you were saying that you told him that he
could do these things and he started out, did Mr. Gordy make any statement to
you as he left-make any statement as he left the room?
A. Yes, he did.
Q. What did he say?
A. As he got to the door he was in apparent good frame of mind when he
left, when we ended the conversation and he stated that he would go on back
to his job and that he was going ahead with his activities but he would see that
we wouldn't catch him next time.
Q. And then he left?
A. He left.
Q. What did you do then?
A. Well, I dropped my eyeteeth and turned around and looked at Johnnie
Rexroat and Joe Low and asked them if they had heard what I had heard and
was their opinion my opinion, and they were both surprised as I was and we
were in general agreement and then we held a conversation if in anybody's
opinion, the young man could be salvaged in his job.
Mr. TooMEY: I'm going to object to this on the basis that Gordy was not
present at this time.
TRIAL EXAMINER: All right.
Q. (By Mr. CoRENaLEnI-I.) You stated that you were all greatly surprised.
What did you consider this conduct on the part of Gordy when he left, how did
you consider that?
A. I considered it very insubordinate.
Q. And you decided then that you would discharge him?
A. That's right.
Q. And you didn't actually discharge him?
A. Instructed Johnnie Rexroat to discharge him.16
In the main, Keener's testimony as to what Gordy said when he left the meeting
was corroborated by that of Low and Rexroat.
Gordy's version on cross-examination as to what he said when he left Keener's
office was as follows: 17
Q. When you left that meeting and were walking toward the door what state-
ment did you make?
A. Actually I made a statement in answer to a statement that Mr. Keener
had made.
The statement that Mr. Keener had made was that if I needed any additional
union applications that he had plenty and my answer to him was, and I took this.
16 See infra regarding Gordy's testimony on cross-examination and accompanying foot-
note. I have inserted the two excerpts from Gordy's testimony for credibility purposes as
will be apparent below.
11 It is to be noted that I did not sustain the General Counsel's objection. My remarks
In this regard were merely for the purpose of noting the exception on the record when it
was made by counsel for the General Counsel. [Emphasis supplied.]
17 It Is to be noted that Gordy's testimony in this regard was taken before Keener testi-
fied at the hearing herein. See also Gordy's testimony on rebuttal, supra, which is, for
all Intents and purposes, the same as found in the excerpt from his testimony that we are
now concerned with.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in jest , and I believe he said it in jest , and my answer to him was that if I did
need them that I would be back to get them on my own time.
Q. Now, isn't it a fact that at that time you told Mr. Keener that you would
continue to solicit but he woudn't catch you next time?
Mr. WELDON: Objection. He just answered that question.
TRIAL EXAMINER: Overruled.
Mr. CORENBLETH: What are you objecting to?
Mr. WELDON: I'm objecting to your question which is not an accurate
restatement.
Mr. CORENBLETH: I don 't have to have an accurate restatement, I'm asking
him whether he said it.
TRIAL. EXAMINER: Overruled. He asked him if he said it.
Mr. WELDON: Mr. Trial Examiner, he has just answered that question as to
what be said.
TRIAL EXAMINER: This is a new question as I understand it.
Mr. CORENBLETH: Read it to him and let him answer.
TRIAL EXAMINER: Read it to him.
1. understood it to be a new question.
(Question read.)
A. No, sir, I definitely did not. [Emphasis supplied.]
As.clearly indicated above I am faced with a credibility issue as to just what Gordy
said as he.was leaving Keener's office after the meeting in question. After long- and
careful consideration I.credit Gordy's account of what transpired and was said by
him' at the time in question. As indicated at some length above, Gordy impressed
me as an honest and forthright witness. He admitted his shortcomings in a manner
that deeply impressed me. In other words his demeanor while testifying left a
favorable impression upon me. As to Keener's version, I am convinced that he was
in error in this-regard.. Quite frankly his testimony regarding Gordy, and in par-
ticular his reference to his "attitude" toward the Company, became so repetitious
that he impressed me as having been seized with an obsession toward Gordy in this
respect. Another persuasive factor in my resolution of this pestiferous credibility
issue is the fact that though Keener, Rexroat, and other supervisors testified at
considerable length as to Gordy's shortcomings, each of them eventually conceded
that despite all of his faults he was in the long run a good worker. For example,
Rexroat and other supervisory employees testified as to his riding the "ponies" too
fast in the warehouse and endangering his fellow workers by his conduct. Even so
he was neither discharged nor disciplined for his carelessness. And finally Rexroat
himself was forced to admit that he did a good job in the warehouse, where he was
assigned after he was taken off the trucks and worked at all times material herein.
As a matter of fact this record shows that he was given incentive pay throughout his
assignment in the warehouse for exceeding the quota assigned to order pullers. Quite
frankly Keener's repetitious reference to Gordy's "attitude" left the impression on me
that he, if one may paraphrase the Bard of Avon, protested "too much, methinks," Ie
in this regard.. .
After long and careful consideration I am convinced and find that Gordy's version
as to what transpired and was said by him at the meeting in question was a true ac-
count thereof. In the circumstances I credit Gordy's version as to what he said
when he left Keener's office after the first meeting on July 6, 1963, in its entirety and
discredit that of Keener, Low, -and Rexroat for reasons that should be apparent.
Further evidence of the importance of Gordy's remarks when he left Keener's
office after his first interview is found in the following excerpt from Keener's
testimony:
Q. (By Mr. TOOMEY.) Let's clarify one thing, at any tine in this first interview
with Gordy were you finally satisfied with him?
A. Yes, sir.
Q. And at what point did you change your mind?
A. On his parting remark.
Q. Just on his parting remark? .
A. Yes, sir. ,
After all the folderol as-to just what -Gordy said as he was leaving Keener's office
at the time in question I am convinced that regardless of what he said the resultant
effect upon Keener would have been the same for reasons which will be apparent
below.
is See "Hamlet," act III, scene 2, line 242.
AFFILIATED FOOD STORES, INC. 1429
Shortly after Gordy returned to work, his supervisor, Raymond Johnson, told him
that Rexroat wanted to see him in his office. When he entered the office Rexroat
informed him that he was being discharged and said, "Here's a check for a full
week's work." Gordy refused to take the check and requested permission to see
Keener. What transpired thereafter is in my opinion likewise best told in the follow-
ing excerpt from Gordy's testimony:
Q. Did you see Mr. Keener?
A. Yes, sir. It was just a few moments later, and we went into, Mr. Keener's
office and Mr. Joe Low was there, he was also at the first meeting, and Mr.
Rexroat and Mr. Keener.
I asked Mr. Keener what problem has arisen, I thought we had come, to a
settlement that I would go back to work, but not solicit union membership on
company time and property, and he said that he had seen no evidence in my
attitude change and that he was firing me, discharging me because of my attitude
toward the company and my job, so to speak.
Q. Was there anything further said at that time?
A. Yes, sir. I told him that of course I tried not to be fired and tried. to talk
my'way out of it and we discussed some more of the union and Mr. Low at that
time asked me if I thought so much of union jobs why didn't I go to a -union
establishment and go to work.
.Q. Who is Mr. Low?
A:' Mr. Low is the personnel•nianager. '
My answer was that' l already had 'two and' a half years with this company
and I didn't wish to leave and within a period of 43 more days I had a two-
week military obligation to fulfill, and at that time I also had a two-week
vacation from the company.
-At that time Mr. Keener ordered my vacation check brought down and made
up and then Mr. Keener began to philosophize on his theory about the union,
about the different' situations in the world, about bow I should have acted in
certain cases and then I was led from his office by a member of the personnel
staff, I just remember his name as Johnson, and I was not allowed to use the
phone and was escorted from the premises.
As I interpret the record there is little if any variation between Keener's testimony
of what transpired on Gordy's-visit to his office after Rexroat had discharged him,
and that of Gordy. The gist of his account of the incident was to the effect that
they "rehashed" what "we had been talking about" in their previous conversation.
Even -so, his testimony in this regard contains certain statements that I deem of
importance because they go right to the heart of my ultimate disposal of the issue
herein as to Gordy. For that reason I feel that the following excerpt from Keener's
testimony should be inserted herein. It follows below:
Q. All right.
Now, what's the next time you saw Mr. Gordy?
A. Sometime later after Johnnie Rexroat had brought him to his office and
they had had a conversation and Mr. Gordy had requested permission to come
to see me.
Q. All right.
So he came to see you. Now, tell us what the conversation was between you
and Mr. Gordy, who was present then?
A. Joe Low, Johnnie Rexroat, Gordy and myself.
We rehashed what we had .been talking about and I.told him that we were
sincere in telling him that no man had ever been fired for this kind of activity
and the fact that we had talked to Usrey and that that man was not being fired
and about his parting remarks, it indicated to us that his attitude wouldn't be
such that he could continue with employment and at that time then he told us
that he had said it in jest and that our conversation had been light at the end of
our general conversation and that what he said he meant as a jest and then
going back generally as testified before was the type of conversation that I.bad
with him on -this- second occasion.. [Emphasis supplied.]
Concluding Findings as to the Discharge of Larry D. Gordy
After long and careful consideration of the case as to Gordy I am convinced that
he was discharged because of his membership in and activities on behalf of the
Charging Union. The most persuasive factor in my ultimate 'conclusion and finding
in this regard is found in the testimony of Keener himself as regards Gordy's remarks
at the close of the meeting in his office on the morning of July 6, 1963, which were
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the effect that he had not abandoned the Union and that he would continue his
activities on its behalf. As indicated above, Keener's reaction to Gordy's parting
remarks, and as was clearly evidenced by his demeanor while testifying in this regard,
was to the effect that he and the other representatives of the Company who were
present at the meeting were not only shocked by what Gordy said, but convincing
evidence to them that their efforts to change his "attitude" toward the Company and
rehabilitate him in this regard that morning had been in vain; and that the only
redress it had in the circumstances was to discharge him at once, which it did in the
mode and mariner described above. A most persuasive factor to me in reaching this
conclusion was Keener's reference to Usrey and what had happened to him as a result
of the meeting with him earlier that same morning regarding his union activities; to
wit: . that that man was not being fired," for engaging in such activity.19
When'Keener's testimony is considered in the light of his account of what transpired
at the time Usrey was interviewed and interrogated in his office earlier that morning
as to his union activities, which has been referred to and disposed of at some length
hereinabove, then my interpretation of Keener's testimony regarding the effect of
Gordy's parting remarks upon him and others present at the meeting in question
should be understandable for the following reasons. It should be borne in mind that
Keener in his testimony as regards the Usrey incident, testified to the effect that
during his conversation with Usrey regarding the Union and his opposition to it,
Usrey interrupted him and said, "Well, hell," he was not sold on it anyway and pulled
some papers out of his pocket and threw them on his desk and said, "Here, I'll even
give them to you." The papers referred to were the union authorization or application-
for-membership cards that Gordy had given Usrey earlier that morning. while they
were in the parking lot.20 The foregoing is considered in the light of the fact that
shortly after Usrey gave Keener the union cards he was excused from the meeting,
and departed in a friendly and amicable atmosphere. The importance of the fore-
going in my disposal and conclusions in the case as to Gordy is that Usrey by his
turning the union cards over to Keener and stating that he was "not sold on the
idea," convinced Keener, Low, and Rexroat that he was through with the Union and
that they had been successful in their efforts to "rehabilitate" him as to his "attitude"
and "loyalty" toward the Company; but that Gordy on the other hand had not
responded to their efforts in this regard, and had clearly indicated to them that
he would continue his activities on behalf of the Union among the Respondent
employees.
It was in the light of all of the foregoing and the record considered as a whole that
I reached the conclusion that Gordy was discharged by the Respondent for his mem-
bership in and activities on behalf of the Union, and that Keener so indicated in his
own testimony regarding Gordy's remarks when be left his office after the interview
on the morning of July 6, 1963; and that its conduct was violative of Section 8(a) (3)
and (1) of the Act.21
Another persuasive factor to me in arriving at my conclusions and findings as to
the discharge of Gordy was Low's testimony regarding his interrogation of Gordy
on "loyalty." Though his testimony is at times vague and self-contradicting, never-
theless I am convinced and find that he himself injected the subject of loyalty into
the interrogation of Gordy, and that his purpose in doing so was to impress upon
Gordy the Respondent's opposition to the Union, and that it considered those who
exercised -their rights under the Act and joined the Union as disloyal employees.
Alleged Independent Violations of Section 8(a) (1) of the Act
The disposition•of this section of my Decision has been most baffling for reasons
that should be obvious. By this observation I have reference not only to the vague-
ness of the specific allegation in the complaint, and the evidence in the record that
presumably was offered in support thereof, but the fact that counsel for the General
Counsel made no reference to this phase of the case at hand either at the hearing
herein in way of oral argument or thereafter by filing a brief in support of his case-
in-chief. In such circumstances I find myself on the horns of a dilemma, so to
sneak, as to just what specific conduct of the Respondent by and through its agent,
Keener, was the predicate for the allegation in question. He has reference to para-
graph 7, subsection (a) and in particular as to "D. A. Keener-July 6, 1963."
What happened on July 6, 1963, has been discussed at considerable length above,
particularly regarding the interrogation of Usrey and Gordy in Keener's office. As
16 Quotes from Keener's testimony.
20 See supra for excerpts from Keener's and Usrey's testimony.
a See aupra'regarding Keener's testimony as to the effect of'Gordy's parting remarks
upon him.
AFFILIATED FOOD STORES, INC. 1431
I see it the alleged independent violations of Section 8(a)(1) that we are now
concerned with stem from what transpired in Keener's office at the time these two
employees were being interviewed, and interrogated by Keener, for the most part,
with Low and Rexroat standing by. Though the record shows that the latter partici-
pated but very little in the interrogation of Usrey, it shows to the contrary as to
Gordy, particularly his interrogation by Low as to the "loyalty" issue.
Usrey and Gordy were called into Keener's office after Owens, one of the dock
supervisors, complained to one of his superiors, Raymond Johnson, that they had
been talking together too much on the dock during their working time. As a conse-
quence of Owens' complaint, Rexroat, the warehouse superintendent, instructed
Johnson to bring Usrey into his office. As pointed out above, Usrey reported to
Rexroat, who took him into Keener's office. What transpired at that time has been
discussed at great length above, and I see no necessity for reiteration thereof. The
sole purpose for referring to the incident at this time is to point out that what
transpired at the time he was interviewed in Keener's office on July 6, 1963, is the
only incident in this record that occurred on July 6, 1963, that could possibly be the
predicate for the specific allegation in the complaint that we are now concerned with.
At the time Usrey and Gordy were interviewed in Keener's office, July 6, 1963, the
Respondent had in effect a rule that "Solicitation of funds or memberships on behalf
of any organization or for any purpose whatsoever on company time is forbidden,
unless prior approval has been given by your supervisor." 22 This rule is set forth in
an "Employees Handbook," that is given to each employee when he enters the Re-
spondent's service, and had been in effect for several years before the incident we
are concerned with herein occurred. In addition both Usrey and Gordy admitted
that they had been given the handbook, and that they had at least casually glanced
through it, and knew that there was such a rule. Gordy -admitted that he had passed
out union cards to other employees in the warehouse on company time. As indi-
cated above Usrey on the date in question, July 6, 1963, had not yet engaged in any
union activity on company time. As also pointed out above, Keener did most of the
talking at the interviews of both Usrey and Gordy. In addition I have inserted
excerpts from the testimony of Keener, Usrey, and Gordy that are replete with what
Keener said about the Union during the interviews in question. Without doubt
Keener's past experience with the Charging Union herein was the principal subject
matter at the interviews we are concerned with. In the final analysis, Keener's
remarks about the Union and his personal animus toward it and its officers were
nothing more than a recitation of what had happened back in 1956, and his personal
opinion of the Union. At no time did he make any threats against either Usrey or
Gordy, promise them benefits, or make any statements which I consider independently
violative of Section 8 (a) (1) of the Act 23 Keener had a right to express his opinions
as to the Union, as long as they contained: no threats of reprisal or promises of
benefits to either Usrey or Gordy or the employees of the Respondent as a class.24
In such circumstances, and the fact that I have found derivative violation of Section
8 (a) (1) (and (3)) of the Act in the case as to Gordy, I will ignore this particular
allegation below in my Recommended Order. My reasoning in this regard is predi-
cated on the theory that my recommendation as to the discharge of Gordy, particu-
larly as to the derivative 8(a)(1), is broad enough to effectuate the policies of the
Act in this.particular instance.
A further factor to me in reaching the above decision was that in my considered
opinion the Respondent's "no solicitation" rule was valid on its face and legally
adaptable to the Respondent's business, which in many respects is similar to that
of a retail establishment. This is clearly evidenced in the testimony of both Gordy
and Usrey as to pulling of orders and checking them as they are loaded on the trucks
for delivery to at least 800 grocery stores in the Dallas area; In other words the
Respondent's business is of such a nature that the employees have little or no time
to engage in other activities during their working hours 25
We now come to the allegation in paragraph 7 subparagraph (a) of the complaint,
that the Respondent by O. D. Owens, one of its supervisors, "interrogated its em-
ployees at its plant concerning their union memberships, activities and desires," on
or about July 11 and 12, 1963. As. will be shown below, the case as to Owens
differs in many respects from that of Keener as to independent violations of Section
8(a)(1) of the Act.
12 See General Counsel's Exhibit No. 3, page 13.
23 See supra regarding my findings as to Gordy.
2' On or about July 9, 1963, Keener made similar statements to all of the employees at
the meeting in the warehouse. The General Counsel made no reference thereto either in
his complaint or at the hearing herein as being violative of the Act.
25 See Marshall Field f Company, 98 NLRB 88.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, O. D. Owens was a dock foreman for the Respondent and
Usrey's supervisor at times material herein. Moreover, it was he who complained
to Raymond Johnson, the truck manager, about Usrey and Gordy talking too much
on the morning of July 6, 1963, which as pointed out above was the incident that led
up to their meeting with Keener later on that same morning.
The issue we are now concerned with involves an incident that occurred on the
morning of July 11, 1963.
According to Bobby Joe Callaway, a grocery checker for the Respondent at all
times material herein, his supervisor, O. D. Owens, came to him on the morning of
July 11, 1963, and asked him if he was going to a union meeting that was to be held
that evening. Callaway told him that he was. At that point Owens proceeded to
tell Callaway about an unfortunate experience he had had with a union in Garland,
Texas, some years before. Even so, Callaway went to the union meeting that night.
On the next morning Owens went to Callaway and interrogated him about the
meeting and particularly as to the employees of the Respondent who were present.
The gist of Callaway's testimony in this regard is found in the following excerpt from
his testimony, which for reasons set forth is fully credited by me:
Q. (By Mr. TOOMEY.) Mr. Callaway, there was some talk about going to a
meeting , what meeting was this you referred to?
A. We were having a Teamsters meeting that Thursday night.
Q. Now, on or about July 12, did you have another conversation with Mr.
Owens?
A. Yes. Mr. Owens came up to me the following day, July 12th, and asked
me if I had gone to the meeting the night before and I said yes, that I had gone
to the meeting the night before.
He.asked me if there were very many people there and I said yes, that we
had a good turn-out, and he said that most of the people there were from inside
the warehouse, weren't they, and I said, "Well, O. D., we had people from
everywhere," and he said, "Well, there weren't any of our people there, were
there?" meaning the truck drivers and dock personnel, and I said, "0. D., we had
people from everywhere," and then he asked me if there was anybody from
produce and again I told him that we had people from everywhere.
Owens denied Callaway's testimony regarding the above incidents on July 11 and
12, 1963, in toto. His testimony in this regard was unconvincing to me not only
at the time he testified at the hearing herein, but more so after reading it in the light
of the record considered as a whole. Quite frankly, he did not impress me as an
honest and forthright witness. A most convincing and persuasive factor to me in
this regard was Owens' demeanor while testifying at the hearing herein, not only as
to this particular incident but other matters as well. In the circumstances, I fully
credit Callaway's testimony regarding the above incident and discredit Owens' denial
thereof.
Conclusionary Finding
Having found that Owens engaged in the conduct attributed to him by Callaway,
I conclude and find that the purpose of Owens' interrogation of Callaway as to the
names of employees of the Respondent who attended a union meeting on the night of
July 11 , 1963; was to ascertain the identity and activities of its employees on behalf
of the Union . Such conduct clearly constitutes interference with the right of the
employees to engage in, or to refrain from engaging in , concerted activities for their
mutual aid and protection , in violation of Section 8(a) (.1) o f the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in connec-
tion with the operations of the Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a) (1) and (3) of the Act, I shall -recommend below that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
As the discriminatory discharge-of an employee strikes at the heart of basic rights
guaranteed employees by Section 7 of the Act, I shall recommend an order below
AFFILIATED FOOD STORES, INC. 1433
which will have the effect of requiring the Respondent to refrain in the future from
abridging any of the rights guaranteed employees by said Section 7.26
Having found that the Respondent discharged Larry D. Gordy in violation of Sec-
tion 8 (a)( 1 ) and (3) of the Act, -I shall recommend that the Respondent offer Larry
D. Gordy immediate and full reinstatement to his former or a substantially equivalent
position,27 without prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered by reason of the said dis-
charge by payment to him of a sum of money equal to the amount of wages he
would have earned but for the discharge between the date thereof and the date of a
proper offer:of reinstatement to him as aforesaid, together with interest thereon at the
rate of 6 percent per annum; and that the loss of pay and interest be computed in ac-
cordance with the formula and method prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Healing Co., 138 NLRB 716; to which
the parties hereto are expressly referred.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, Imake the following:
CONCLUSIONS OF LAW
1. The Company is, and has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
2. Larry D. Gordy was on July 6, 1963, and had been at all material times prior
thereto, an employee of the said Company within the meaning of Section 2(3) of
the Act.
3. Dallas General Drivers Local No: 745, affiliated with The International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is and has
been at all materials times a labor organization within'the meaning of Section 2(5)
of the Act.
4. By discharging the said Larry D. Gordy on July 6, 1963, as found above, the
Company has engaged in unfair labor practices within the meaning of Section 8(a) (3)
of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed' them by Section 7 of the Act, as found above, the Company has
engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Affiliated Food Stores, Inc.,
its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Dallas General Drivers
Local No. 745, affiliated-with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or. in any other labor organization, by dis-
charging, or in any other manner discriminating against, any individual in regard to
.his, hire, -tenure. of employment, or any term or condition of employment.
(b)' In ,any other manner interfering with, restraining, or coercing employees in
the right to self-organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choosing, to engage in con-
certed activities for the purpose of..cpllective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
•. 2. Take -the following affirmative, action which, it is found,' will effectuate the
policies of the Act:
(a) Offer to Larry D. Gordy immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice • to` his seniority and other rights
and privileges, and make him whole.in the manner and according to the method
set forth in.sec'tion V, above, entitled "The Remedy."
2BN.L.R.B. v...Entwistle Mfg. Co., 120 F.. 2d.532 .(C.A. 4).;.AfayDepartment. - Store v-.
N.L.R.B., 326 U.S. 376; Bethlehem Steel : Company v . N.L.R.B., 120 F. 2d 641 (C.A.D.C.).
7.In accordance with the Board' s past Interpretation , the expression "former, or.a.sub-
stantially equivalent, position" is Intended to mean "former. position wherever possible,
but if such position is . no longer In existence , then .to a substantially equivalent position."
The Chase National Bank of the City of. New . Pork, San Juan, Puerto Rico , Branch,
65 NLRB 827.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve until compliance with any order for reinstatement or backpay made
by the National Labor Relations Board in this proceeding is effectuated, and make
available to the said Board and its agents , upon request, for examination and copy-
ing, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records relevant to a determination of the amount of back-
pay due, and to reinstatement and related rights provided in any terms of any such
order.
(c) Post in conspicuous places at its principal place of business described above,
including all places where notices to employees are customarily posted, copies of the
attached notice marked "Appendix A." Copies of said notice, to be furnished by
the Regional Director of the Sixteenth Region of the National Labor Relations Board,
shall, after being signed by a duly authorized representative of the Company, be
posted by it immediately upon receipt thereof, and maintained by it for 60 consecu-
tive days thereafter in such conspicuous places. Reasonable steps shall be taken
by the said Company to insure that said notices are not altered, defaced, or covered
by any other material.28
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Decision , what steps the Respondent has taken to comply herewith.29
It is further recommended that, unless on or before 20 days from the date of its
receipt of this Decision the Respondent notify the said Regional Director that it will
comply with the foregoing recommendations, the National Labor Relations Board
issue an order requiring the Respondent to take the action aforesaid.
s In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" In the said notice. In the additional event that the Board's Order is
enforced by a decree of a United States `Court of Appeals, the words "A Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"A Decision and Order."
='° In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , In writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership of any of our employees in Dallas
General Drivers Local No. 745, affiliated with The International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any labor
organization , by discharging , or in any other manner discriminating against,
any individual in regard to his hire , tenure of employment , or any term or con-
dition of employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce employ-
ees in the exercise of their right to self-organization , to form , join, or assist any
labor organization , to bargain collectively through representatives of their own
choosing , to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection , or to refrain from any or all such
activities.
WE WILL offer Larry D . Gordy immediate and full reinstatement to his former
or a substantially equivalent position , without prejudice to his seniority and
other rights and privileges , and reimburse him for any loss of pay he may have
suffered by reason of the fact that we discriminated against him.
AFFILIATED FOOD STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor,'Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice or
compliance with its provisions.