Bi-Lo, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1967

163 N.L.R.B. 1009 (N.L.R.B. 1967)

CONCLUSIONS OF LAW
BI-LO, INC. 1009
1. KONO-TV-Mission Telecasting Corporation is, and
at all material times has been, an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers,
Local 2206, AFL-CIO/CLC, is, and at all material times
has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees employed by the Respondent in its
engineering department, including transmitter operators,
control operation technicians, projectionists, audio
operators, video switchers, and camera control operators,
employed by the Respondent at its studio at San Antonio,
Texas, and also including the employees at Respondent's
transmitter site in the San Antonio vicinity, excluding all
employees employed in Respondent's production
department, its general office staff, announcers, office
clerical employees, watchmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate.for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Union is, and at all times since July. 20, 1965, has
been, the exclusive representative of all employees in the
above-described unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, within the meaning of Section 9(a) of the Act.
5. The General Counsel has failed to establish by a fair
preponderance of the evidence that the Respondent is
engaging in or has engaged in unfair labor practices within
the meaning of Section 8(a)(1) or (5) of the Act.
ORDER
Upon the basis of the above findings of fact and
conclusions of law, and on the entire record in this-case,
the Respondent's motion to dismiss the complaint in its
entirety is granted.
Bi-Lo , Inc., and Amalgamated Meat Cutters &
Butcher Workmen of North America,
Local 442, AFL-CIO. Case 11-CA-3007.
April 12,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 22, 1966, Trial Examiner John H.
Eadie issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging 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 and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
163 NLRB No. 138
powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in this case, and
hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Bi-Lo, Inc., Green-
ville, South Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.2
1 The Respondent's exceptions to the Trial Examiner's
Decision are in large part directed to his credibility resolutions
We will not overrule a Trial Examiner's credibility resolutions
unless a clear preponderance of all the relevant evidence
convinces us that they are incorrect. Such a conclusion is not
warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A 3). We also find no merit in the
Respondent's charge of bias and prejudice on the part of the Trial
Examiner.
2 Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's
Decision:
Note: We will notify John C. George and Charles E. Hilton if
presently serving in the Armed Forces of the United States of
their right to full reinstatement, upon application, in accordance
with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed
Forces
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN H. EADIE, Trial Examiner: This proceeding was
held before me in Greenville, South Carolina, on August 2
through 4, 1966, on the complaint of the General Counsel
and the answer of Bi-Lo, Inc., herein called the
Respondent.' The complaint alleges violation of Section
8(a)(1) and (3) of the National Labor Relations act, as
amended. The Respondent's answer admits the
jurisdictional allegation of the complaint, but denies the
commission of any unfair labor practices. After the
hearing the General Counsel and the Respondent filed
briefs with me.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation with offices at
' The charge was filed on April 8, 1966. An amended charge
and a second amended charge were filed on April 18 and 29, 1966,
respectively. The complaint issued on May 19, 1966.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greenville, South Carolina. It operates a chain of retail
food stores and is engaged in the retail sale of groceries,
produce, meat, and other goods At the times material
herein the Respondent operated 16 stores and had
approximately 700 employees
During the year ending 1965, the Respondent sold and
distributed groceries, produce, meat , and other goods, the
gross value of which exceeded $500,000. During the same
period of time, the Respondent received goods valued in
excess of $50.000 and transported them to its places of
business in South Carolina directly from States of the
United States other than the State of South Carolina
The complaint alleges, the Respondent's amended
answer admits, and I find that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of
North America, Local 442, AFL-CIO, herein called the
Union, is a labor organization which admits to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A Sequence of Events, Interference, Restraint, and
Coercion
During the latter part of March 1966, John George,
assistant market manager of Respondent's store 4, wrote
to the Union in Atlanta, Georgia. A few days later he
received a telephone call at the store from Roy Williams, a
representative of the Union. As a result of this call, George
and David Jones, also an employee in the market or meat
department of store 4, that same day had lunch with
Williams and Robert Johnson, business agent of the
Union. They arranged for a meeting to be held on April 3 at
the Holiday Inn in Greenville.
On Saturday, April 2, Jones at first told George that he
would not be able to attend the union meeting. Later he
told George that he had changed his mind and would
attend. That night George called James Crenshaw, market
manager in store 14,2 and asked him to come to his home
the following day. When they met on Sunday, George told
him about the union meeting and asked him to attend.
Crenshaw wanted to know which employees were going to
be there George mentioned the names of Jones and
employees William Oscar Bryant, Charles Hilton, and
James Phillips. When Crenshaw agreed to attend, they
arranged to meet about 3 p.m. at the Pleasantburg
Shopping Center.'' At the appointed time George went to
the shopping center where he met Bryant. They went to
Hilton's house and picked him up. George, Bryant, and
Hilton then returned to the shopping center where they
met Crenshaw. When neither Jones nor Phillips appeared,
the four employees left the shopping center and went to
the Holiday Inn. Their meeting with the union
representatives lasted about 1 hour.
Neither George nor Bryant worked on April 4 as it was
their day off George Tumblin, the market manager in
store 4, was off from work on Tuesday, April 5 About
8 a.m the following day while Bryant was checking in,
David Coker, assistant manager of store 4,4 stopped and
asked him if he was "part of this union mess," saying that
if he was, he (Bryant) would lose his job. Coker then said
that Paul Jordan, a part-time employee in the meat
department, had signed a union card and would "probably
lose his job on that account "' About 10 a.m that same
morning Bryant had a conversation with Tumblin
Tomblin asked him if he was "a part of this union mess"
and if "John George was the instigator of this." Bryant
refused to answer the questions. Either before or after the
above conversation, Tumblin asked employees Jordan,
Grady Oxner, Larry Dillard, Clyde Simpson, and John
Baldwin if they had signed union cards. Except for Jordan,
all denied signing cards.
Shortly after George returned from lunch on April 6,
Tumblin called him to the back of the store and asked him
what he knew "about this union " George admitted that he
was involved in organizing the employees. Tumblin said
that "the job was running smoothly" since George had
come to the store, and asked him if he cared about his job.
George replied that he did. Tumblin told him that if he
would "squeal" about the other employees involved with
him in the union campaign, he (George) would receive a
raise of $5 and be made a market manager. George refused
to do this. Tumblin told him that Frank Outlaw, president
of Respondent, had said that he would close every store
before he would let one of his stores "go union," and that
he was coming down "personally" to discharge him
(George). t'
Shortly after the above conversation Tumblin received a
telephone call He then told George that he was needed
over at store 12 immediately. When George stated that he
could not go to that store because he did not have his
automobile with him, Tumblin replied that Jones would
take him.' After George left the store, Tumblin told Bryant
that John De Young, Respondent's meat supervisor, had
called him, that he (Tumblin) had "to abide by the
supervision", and that George "probably ... would quit"
as he would have to work every night until 10 p.m.
Later that same day in the presence of employee Fred
Simpson, Tumblin asked Bryant if Eunice George, the
wife of John George, had been "at the meeting" and if she
had any part in the Union. Bryant replied that Eunice
George did not have "any part whatsoever in the Union."
On Wednesday, April 6, Crenshaw worked all day at
store 14. About 6:30 p.m. De Young and Milton Gillespie,
Respondent's director of store operations, came to the
store and discharged him. Concerning the conversation,
Crenshaw testified without contradiction as follows:
They went straight to the back room and called me
back there, and I believe Mr. Gillespie was the one
that called me to come back and come in there, and I
went back in the stockroom with him, and they told
me that there wasn't anything personal between me
and him, they just had to let me go, and Mr. Gillespie
told me, I asked him why, at the time I asked him why
they were going to let me go, and he didn't say, he said
2It is undisputed that market managers are supervisory
employees within the meaning of the Act
' The Respondent did not have a store at the above location
4 The Respondent admits that store managers and assistant
store managers are supervisory employees within the meaning of
the Act
Coker admitted that he asked Bryant if he had signed a union
card , but denied the above statements attributed to him by
Bryant Tomblin testified that he had asked Jordan if he had
signed a union card and that Jordan had admitted signing one
s
Tumblin admitted that he had questioned George about the
Union, but denied the above statements attributed to him by
George
' Jones took George 's job as assistant market manager after the
latter 's transfer to store 12
BI-LO, INC.
something about a percentage had been bad, or
something, and I said, well, how about just letting me
have a job cutting meat? And he said, no, you go on
home, don't say nothing to nobody, and later, Monday
or Sunday, you feel free to call me any time, and if
you're ready to come back and be 100 per cent BI-LO,
we'll probably give you your job back.
Hilton worked as a stock man at store 5. About 8:15 a.m.
on April 7 Gillespie came to the store and told Hilton not to
"check in" any more salesmen. After talking to James
Alverson, the store manager, Gillespie left the store. Later
Alverson told Hilton not to go to lunch at noon. Gillespie
returned to the store about 11 a.m. with Block, another
supervisor. They went to a "back room" with Alverson
where they remained for about 1 hour. Alverson then left
the store with them. As soon as Alverson returned to the
store he told Hilton that Gillespie wanted him (Hilton) to go
immediately to store 7 at Honea Path.8 When Hilton asked
if the transfer would be "permanent," Alverson replied,
"yes." Hilton also asked if Gillespie had mentioned
anything about a wage increase or transportation money.
To each question Alverson answered, "no." Hilton
reported to store 7 about 2:20 p.m. that same day.
About 3 p.m. on April 8 Tumblin had a conversation
with Dillard and Baldwin. Tumblin told them that Jordan
had signed a union card; that any employee who signed a
card would lose his job; and that if anyone solicited them
to sign a card, they should "report it immediately."9
During the night of April 8 Gillespie and Outlaw
appeared at store 4. Outlaw talked in private with Jones
"at great length." As Gillespie and Outlaw were leaving
the store, Tumblin and Jones went with them. Jones
returned and talked to Bryant. He told Bryant to confess to
Outlaw that he had been involved with the Union, and that
Outlaw would then forget about it. Jones left Bryant and
joined Outlaw. He then returned to Bryant and said that he
(Bryant) would have to give him an answer; and that if he
would "confess," he would "not be dealt with severely."
Bryant replied that he would give "no answer." Tumblin
then left Outlaw and Gillespie and talked to Bryant. He
told Bryant that he had "to have an answer," and that
"Mr. Outlaw had vowed that he would fire anyone that had
signed a union card." Bryant replied that he had not
signed a card. Tumblin said that he believed him that he
would "relate the message to Mr. Outlaw," and that the
Union would not be mentioned to him (Bryant) again.
Tumblin stated that Jordan had admitted signing a union
card and would "lose his job on that account." When
Bryant urged him "not to cause Jordan to lose his job" as
he was "only a kid" and "could not vote on this," Tumblin
answered that he had "orders from the supervision that
would be carried out."
When Hilton reported for work at the store in Honea
Path on Monday, April 11, he was discharged by Block
and Gillespie. He was not given any reason for the
discharge. Gillespie told him that they had tried to locate
him on Saturday but could not. In addition to the pay due
him, Gillespie gave him $5 to "take care of any
inconvenience about going to Honea Path."
8 The record discloses that Honea Path is about 35 miles from
Greenville
0 Bryant testified that he overheard Tumblin make the above
statements Dillard and Tumblin denied the remarks attributed to
Tumbhn Baldwin did not appear as a witness at the hearing.
Dillard , a part -time employee, testified that as he was reporting
for work on Friday afternoon Tumblin asked him and Baldwin if
they had signed union cards, that he (Dillard) replied that he
1011
John George had his day off on Monday. He was
scheduled to start work at noon on April 12. He arrived at
the store about 11:20 a.m. While he was sitting in his car in
the parking lot, John Summey, a meat supervisor,
De Young, Block, and Gillespie arrived in two
automobiles. Summey gave George his paycheck and told
him that he was discharged. He was not given a reason for
the discharge.
Eunice George worked in the meat department in
store 11. She worked in excess of 40 hours per week. On
April 9, M. E. Gentry, the market manager, cut George's
hours to 21 per week. When she reported for work on
April 14, she was discharged by Robert Watson, the store
manager.
On or about July 15 Tumblin spoke in private to Bryant.
Speaking of the pending hearing herein, Tumblin asked
him if he would be "for Bi-Lo or the Government." Bryant
replied, "I would have to be subpoenaed to appear in
Court." Tumblin then said that "other employees that had
signed union cards would be dismissed." On July 22
Tumblin again spoke to Bryant in the presence of Green,
Henderson, and several other employees. He told Bryant
that if he testified "in behalf of the Government," he
would "go to Mr. Jones' home on Sunday" and "dig up
personal things" about him (Bryant). 10 Bryant quit his job
the following day.
The conversations, related above, between Coker,
Tumblin, Bryant, and John George are based upon the
credited testimony of Bryant and George. Denials and
testimony to the contrary by Coker, Tumblin, Dillard, and
Green are not credited. In addition to Bryant and John
George, Tumblin admitted that he interrogated the other
employees named above concerning the union cards. Such
interrogation by Tumblin is found to be violative of Section
8(a)(1) of the Act. Coker interrogated Bryant and made
threats of reprisal. Tumblin questioned both Bryant and
George concerning their union activity and that of other
employees, made threats of reprisal to each of them
because of such activity, made a promise of benefit to
George if he would inform on the adherents of the Union;
and threatened Bryant with reprisal if he testified at the
Board hearing. All of the above conduct is found to be
violative of Section 8(a)(1) of the Act.
B. Surveillance on April 3
Bryant testified that on April 3 he drove around the
parking lot of the Pleasantburg Shopping Center several
times looking for Crenshaw; that John George and Hilton
were riding in his automobile at the time; that Hilton
stated that he saw a car with Nancy Hines" in it ; that he
(Bryant) looked and saw "a lady that resembled Nancy";
and that on another trip around the parking lot he saw
Gillespie's automobile and told George and Hilton. Hilton
testified that he saw Hines sitting in a car parked in front
of a drug store at the shopping center.
In this connection George was questioned and testified
as follows;
Q. (By Mr. Eubanks) Tell me in detail when you
would not sign a card as he did not know anything about the
Union, and that Tumblin said, "Well, good "
10 Tumblin and Green denied the above statement attributed to
Tumblin by Bryant Henderson did not appear as a witness.
Dillard, who was not identified as having been present during the
conversation, also denied the remarks attributed to Tumblin
" Hines is the cashier and bookkeeper at store 5
295-269 0-69-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came into the parking lot with Mr. Bryant and Mr.
Hilton, tell me what you saw and who you saw. Be
most specific about it, where everybody was sitting,
and that sort of thing.
A. Well, we came into the parking lot, and parked.
We parked in front of the Colonial Drugstore. I
believe the name of it was Colonial, and we was
looking for James. These other boys didn't know what
kind of automobile James drove, or had never met
James, and I observed Nancy Hines, John DeYoung
and Mr. Milton Gillespie.
Q. Well, where was Mr. John DeYoung and where
was Milton Gillespie?
A. Mr. Gillespie was approximately 150 foot from
the Winn-Dixie Store. Mr. DeYoung was
approximately 200 or 250, somewheres in that
neighborhood, to the right of that.
Q. To the right of that?
A. That's right, and James stopped his automobile
dust a few cars from Mr. John DeYoung, and I got
James and told James, let's go, and we got in Oscar's
car and said, let's move out, and went from there to
the Holiday Inn.
Crenshaw testified during direct examination that he
drove to the shopping center with his wife, and that he
thought he recognized "Mr. Gillespie's car with him in it."
During cross-examination Crenshaw testified that, after he
returned from the union meeting, his wife told him that she
saw De Young at the shopping center but was not sure;
that he recognized Gillespie and his car; and that there
were two lanes of cars parked between Gillespie's car and
his as he drove by.
Hines testified that it was possible for her to have been
at the Pleasantburg Shopping Center on April 3 as she
"quite frequently" went there; that she had not heard
anything about a union meeting; and that she did not recall
seeing Gillespie and De Young at the shopping center on a
Sunday.
Gillespie denied that he spied on the employees at the
shopping center on April 3. He testified to the effect that
he could not have Teen at the shopping center at the time
in question as he was visiting his mother in Seneca at or
about 2:30 p.m.
De Young denied that he was at the Pleasantburg
Shopping Center between 2 and 3 p.m. on April 3. He
testified that at that time he was at the Greenville General
Hospital. His wife, Mary De Young, testified that on
April 3 she and her husband were at the hospital from 2
until 5 p.m.
In view of Hines' testimony, I credit the testimony of
Bryant, Hilton, and George to the effect that she was at the
shopping center on April 3. Both George and Crenshaw
testified that they saw Gillespie. George was the only
witness who tesified that he saw De Young. As related
above, Crenshaw at first testified that he only "thought"
he recognized Gillespie and his car. However, Bryant
testified that he saw Gillespie's car and that he so
informed George and Hilton.
Although George impressed me as a credible witness, it
may be that he was mistaken in his identification of
De Young. Since his testimony in this connection was not
supported by Bryant and Hilton, I do not credit him as to
De Young. I find that Gillespie was present at the
shopping center and that the Respondent engaged in
surveillance. The facts concerning Crenshaw's discharge
on April 6 and later treatment by the Respondent confirm
this conclusion. When Tumblin interrogated Bryant and
George on April 6, Crenshaw was not mentioned. The
evidence indicates that Jones kept the Respondent
informed as to the union activity. But he was not present at
the union meeting and apparently had no way of knowing
about Crenshaw's involvement. As pointed out in the
General Counsel's brief, the only way that the Respondent
could have known about Crenshaw was through
surveillance at the shopping center. Further, Gillespie
admitted that about 1 week before Hilton's discharge he
had heard that he was an adherent of the Union. It is
difficult to understand how he got this information unless
he was at the shopping center, since Hilton also was not
mentioned in the conversations related above.
Accordingly, I find that on April 3 the Respondent
engaged in surveillance of the employees' union activity in
violation of Section 8(a)(1) of the Act.
C. The Transfer and Discharge of John C. George
In its answer the Respondent denied that market or
meat managers are supervisory employees within the
meaning of the Act. Early in the hearing the Respondent
amended its answer so as to admit this allegation of the
complaint. As to the supervisory authority of assistant
market managers , the Respondent during the hearing at
first took no position . Later it contended that these
employees also are supervisors within the meaning of the
Act. The Respondent' s answer raised no such affirmative
defense to the alleged discrimination against George.
Considerable testimony was adduced on this issue.
Crenshaw testified that his day off was on Tuesday; that
he left instructions for his assistant on Monday "what for
him to do the next day, when to cut, what to cut"; that the
assistant did not have authority to hire, fire, or discipline
employees; that if the assistant had any problems with the
employees, he notified the store manager; that he, not the
assistant , scheduled the hours of work and days off of the
employees; that the assistant "actually all he was, was
head meat cutter, to cut all the beef that was cut, or see
that it was cut"; that he (Crenshaw) made all
recommendations for wage increases in the market; and
that if the assistant had an apprentice meatcutter working
with him, he (Crenshaw) might at times ask the assistant
about the progress of the apprentice.
Bryant testified that he was an apprentice meatcutter
under George; that George was "the cutting room
manager" and his "instructor"; that George was in charge
of the market on Tumblin's day off; that on such days it
was George's responsibility to see to it that the employees
performed their jobs; and that if employees wanted time
off from work, permission had to be obtained from
Tumblin, the store manager, or some other supervisor.
John George testified that he did not have authority to
hire or fire employees; that he received instructions from
Tumblin on Saturday for the work to be performed on
Tuesday, Tumblin's day off; that if he had any problems
with employees on such day, he checked with the store
manager or his assistant ; that he (George) merely carried
out Tumblin's orders; that Bryant and Jones worked with
him in the cutting room; that the employees in the meat
department were told that he was in charge on Tumblin's
day off; and that he did not have as much authority as
Tumblin on such days.
Eunice George testified that she worked as a meat
weigher and wrapper in the market department in
store 11; that M. E. Gentry and V. P. Mitchell were the
manager and assistant manager , respectively, of the
BI-LO, INC. 1013
market department; that she had ben told that Mitchell
was in charge of the department on Gentry's day off; and
that Mitchell assigned work to employees on such days.
Mitchell testified that he was in charge of the market
department on Gentry's day off; that he had "full charge"
in the cutting room and could fire a meatcutter "if he
didn't suit [him]";12 that he had never fired a meatcutter;
that he did not have the authority to hire a meatcutter; that
on Gentry's day off he had authority to discipline
employees; and that Gentry made out the work schedule.
Tumblin testified that George was in charge of the
market department on his day off; that all of the
employees were notified to this effect; that George had the
authority to "discipline" employees; and that George had
authority to direct the work of all employees in the
department even when he (Tumblin) was present.
Alan Page testified that he worked as a part-time
employee on the counter in the market department of
store 4; that George was in charge of the department on
Tumblin's day off; that on such days George gave orders to
employees in the market; that George "gave orders" to
and "disciplined" the meatcutters; and that during
Tumblin's day off, employees asked George if they wanted
to get off early from work.13
Dillard testified that he worked as a counter clerk in the
market department of store 4; that Tumblin told him that
George was in charge of the department during his day off;
that on such days George assigned work to the employees
and "several times" reprimanded him and "the other boys
out on the counter";'`' and that when Tumblin was
present, George directed the work of employees.
Concerning the assistant manager's authority, Gillespie
was questioned and testified as follows:
Q. Now who is in charge of the meat department in
the BI-LO stores?
A. The market manager and the assistant market
manager.
Q. What authority does the assistant market
manager have?
A. Well, the assistant market manager is the same
thing as the assistant store manager; if you don't have
one there, you have got the other; and that's the only
way we could operate our business today.
Q. Does he have any authority in the meat
department when the meat market manager is out?
A. Yes, sir.
Q. And who does he have authority over?
A. He has authority over all of the cutting room
men; in other words, the assistant market manager is
actually the cutting room boss; that is his end of it; he
is foreman over the cutting room, over the meat
cutters.
Q. On the days that the meat market manager is on
his day off, who is in charge of the meat department?
A. The assistant meat market manager.
Q. What sort of authority does the assistant meat
market manager have?
A. He would have full authority.
Q. What do you mean by full authority?
A. He is the manager of the market when the
manager is out.
Q. Does he have authority to discipline
employees?
A. Yes, sir.
Q. To direct their work?
A. Yes, sir.
Q. Can he grant them time off?
A. Yes, sir. Usually there is a schedule there and
the manager and the assistant manager take part
together in making up the schedule.
Q. On the day that the meat market manager is not
there, if an employee wanted to get off early, an
employee in the meat department, who would he go
to?
A. I would say the assistant meat market manager
would have authority to let him off.
De Young gave substantially the same testimony in this
connection as Gillespie. De Young further testified that to
his knowledge "all" employees have been told that the
assistant market manager is in charge of the market when
the manager is not present, and that he "on occasion told
some personally."
It is clear from the above testimony that George was "in
charge" of the market on Tumblin's day off. However, on
such days he merely relayed to the employees Tumblin's
orders. Respondent's witnesses testified to conclusions to
the effect that assistant managers could "discipline"
employees and could "exercise full authority" of the
market manager. Except for the dubious testimony of Page
and Dillard, these witnesses cited no examples of such
authority. Indeed, the testimony of Watson indicates that
the supervisory authority of the market managers
themselves is limited. Under all of the circumstances I
find that George was not a supervisory employee within
the meaning of the Act.
As related above, George was transferred to store 12
during the middle of the day on April 6. He reported there
to Bobby Chapman, the market manager. Chapman first
assigned him to waiting on customers at the counter, and
then told him "to clean up" as Outlaw was on his way to
the store. George worked until 10 p.m. that night cleaning
the counters and the cutting room.15 George performed the
same work on Thursday. Chapman again told him that he
wanted the meat department cleaned up because Outlaw
was coming to the store.
George worked from 12 noon until 10 p.m. on Friday.
Concerning his work and conversations with Chapman, he
testified without contradiction as follows:
Friday I showed up at 12 o'clock, walked in, clocked
in and got ready for work, and I asked Bobby, I said,
what do you want me to do? He said, hop the counter
12 Robert Watson , store manager of store 11 , testified that the
market manager could "relieve [employees ] of their duties but
not discharge them", and that an employee in the meat
department could not be discharged without his approval.
Tumblin testified that he had authority to discharge employees
"under certain circumstances", and that he had in fact
discharged at least one employee
13 During cross - examination Page testified that Tuesday was
his day off, that "occasionally" he worked on Tuesday, that he
had never seen George discharge, lay off, or send an employee to
the store manager for improperly performing work, and that on
one occasion George told him "to speed up and get on the job "
" During cross -examination Dillard testified to the effect that
Tuesday was his day off, and that on Tuesday afternoon after
school he usually spent "maybe two or three hours" visiting in the
cutting room
15 George's hours at store 4 were from 8 a.m until 7 p in on
Tuesday and Wednesday, until 7 30 p in on Thursday, and until
8 30 p in on Friday and Saturday.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right now, and I hopped the counter . After the dinner
hour was over with , I asked Bobby, I said, Now, do
you want me to cut some meat ? Which I had picked
up a boning knife, they needed some boning done
there; he said, no , he said, George , the same situation,
Mr. Outlaw 's coming again , and I want you to clean
up. Which he then got me the bucket of water and the
brush and the sponge , and I continued cleaning up.
I asked Bobby Chapman, I said, what is this here? He
said, well, I was informed to make you janitor, and
that he didn't like it, but it was his duty, and he was
carrying his duty out, which I accepted.
George worked on Saturday. He noticed that his name
was not on the work schedule. He asked Chapman, if he
was supposed to work at store 12 the following week.
Chapman told him that he should report for work at noon
on Tuesday.
As related above, Hilton was discharged at the
beginning of the work day on April 11. George was off from
work that day. Together they visited store 4 about 2 p.m.'°
Hilton talked to employees James Phillips and Dale Cross
and got them to sign union cards. After Hilton had talked
to these employees for a few minutes, Coker walked up to
him and said, "Mr. Gillespie said he doesn't want you in
the store." George went to the cutting room and talked to
Tumblin. Concerning the incident involving George,
Tumblin was questioned and testified credibly as follows:
Q. Will you tell us what happened on that Monday
afternoon?
A. Well, I was in the cutting room, and he
appeared in the cutting room, and he come around the
counter, and he said, "Hello"; and he said, "I'm
drunk"; and he said, "This is the first time you have
seen me drunk."
I said, "Yes, it is, George." "I haven't seen you
before."
He said, "Well, I Just wanted to come in here and
show you. You see my block over there?"
I said , "Yes."
He said, "Well, I will be back on it; just leave it for
me," and I think he said two to six weeks; I don't
remember how many weeks he said; but that's what
he said.
And I laughed; I didn't throw him out; I didn't have
to; I Just sort of rooted him on out.
Q. He walked out voluntarily, didn't he?
A. Yes, sir.
Q. Did you say anything to him after that?
A. No, sir.
As related above, George was discharged when he
reported for work on April 12. The check presented to him
by Summey was dated April 9.
Gillespie testified to the effect that De Young was
" Both Hilton and George admitted that they had been
drinking before they got to the store George testified that he had
had "three or four beers "
11 Concerning his conversation with Tomblin, De Young
testified , " I was just trying to find out if there were some of them
that belonged to the union , talking union, what 's happened, just
get your market straightened out [Tumblin] just told me that
he had heard that there were some of them in the market talking
union "
18 De Young at first testified that he did not get any reports
about George visiting stores where he did not work and later
testified to the above in answer to a leading question
1" Bobby Porter, a supervisor of the Respondent, gave
responsible for the decision to discharge George.
De Young testified, in substance, that he learned of
George's interest in the Union from Tumblin;17 that
George's transfer to store 12 was "temporary"; that prior
to the transfer Tumblin had complained to him that
George "had let down on his job" and asked to have him
transferred or "let out of the company"; that Block and
Claude Garret, the manager of store 4, had asked him to
transfer George to store 12; that he transferred George
during the middle of a shift because Tumblin had reported
to him that George was causing "some disturbance" in the
store by distracting employees from their work by talking"
and because they "felt that John was the root of the
disturbance"; that Block had told him that George was
"unreliable on the job" as he might leave during the
middle of a day and not return until the next morning; and
that after George's transfer Garret called him on Monday
and reported that George had returned to the store
"causing trouble."'s Concerning his final reason for
discharging George, De Young testified, "I guess on John
George, my patience just run out with him. I had to
transfer him to another store hoping that he was going to
do better; after he left the store and goes back to the store
that I had transferred from, he starts a disturbance."
Tumblin testified that he had a conversation with
De Young concerning George about "four to six weeks"
before George's transfer. As to his complaints to De Young
at the time, Tumblin testified, "Well, my day off when I
would come in, and about half the work would be done that
was supposed to be done; and the counter man had told
me that there was too much going on, talking, messing
around, and not working."
Mitchell testified that during the summer of 1965 John
George' came to store 11 and caused Eunice George to
leave work; that at the time Eunice George told John
George that her hours had been cut; that John George said
that he did not "give a damn" about the Respondent; and
that John George was not an employee of the Respondent
at that time.1s Gentry testified that on a Saturday at
sometime during 1965 when both he and Eunice George
were working at store 5, John George came to the store
wearing Bermuda shorts; that John George was "slightly
intoxicated"; and that when John George started waiting
on customers, his wife told him to leave the store.20
James Hendley, assistant market manager at store 6,
testified to the effect that on the Monday after George's
transfer he saw him and another man talk to Harry Hill, an
employee in the meat department, for about 20 minutes;
that he reported this to Block and Langford, the market
manager; and that when Langford gave him a description
of Hilton, he (Hendley) was able to identify him as the
other man with George.21
Dillard testified to the effect that for about a month
before his transfer George talked a lot and his work "was
substantially the same testimony as Mitchell concerning this
incident John George testified that during August 1965, he took
his wife off the job because the Respondent kept changing her
scheduled work day, that he was not employed by the Respondent
at the time, and that he was later rehired by the Respondent
t" It is not clear from Gentry's testimony if John George was
employed by the Respondent at the time of the above incident
11 De Young testified that he had not received any report about
George visiting store 6 George denied being in store 6 or talking
to Hill on the date in question Hilton also denied being at the
store Hill was not called as a witness I find it unnecessary to
resolve this issue of fact since De Young denied receiving a report
of the alleged incident
BI-LO, INC. 1015
kind of falling off." Simpson, also called as a witness by
the Respondent, testified that he was "head counter man"
in the meat department at store 4; that he had an
opportunity to observe Gedrge's work prior to his transfer;
that George's work appeared "satisfactory" to him; that he
did not hear any complaints about George; and that
George "got along ... all right" with both employees and
customers.
The statements of Tumblin and Chapman, related and
found above, disclose that the Respondent's motive for
transferring and discharging George was discriminatory.
The undisputed evidence shows that he was a "real good"
meatcutter, that all meat department employees except
the manager helped to clean up, and that a thorough
cleaning of a meat department was not an everyday
occurence. George performed no meatcutting while he was
at store 12. Instead he was scheduled for late hours and
assigned to menial tasks for almost all of his working time.
That the incident at store 4 on April 11 was an
afterthought is shown by the fact that George's check was
dated April 9. Other incidents involving George and
testified to by the Respondent's witnesses took place when
George did not work for the Respondent. It does not
appear from De Young's testimony that such incidents
were reported to him. In any event, the Respondent
rehired him after they occurred.
Accordingly, from all the evidence, I find that the
Respondent transferred George on April 6 and discharged
him on April 12, 1966, in violation of Section 8(a)(3) of the
Act.
D. The Transfer and Discharge of Charles E. Hilton
When Hilton first was employed by the Respondent, he
worked as a stockman in the grocery department at
store 4. He was transferred to store 5 and continued to
work as a stockman. His supervisor there was James
Alverson, the store manager. When he was transferred to
store 7 on April 7, he worked under the supervision of
Hosea Streitman, the store manager.
Hilton was transferred to store 7 during the middle of
the day. About 5 p.m. on April 7 he advised Streitman that
he already had worked 44 hours before the transfer.
Streitman told him to work until 7 p.m. that night and to
report the following morning at 9 a.m. Hilton worked from
9 a.m. until 1 p.m. on Friday. As he was leaving, he asked
Streitman for his work schedule for the following week.
Streitman told him to report for work on Monday and that
he would work out a schedule for him then. Gillespie and
Outlaw entered the store as Hilton was leaving. As related
and found above, Hilton was discharged by Gillespie when
he reported for work on Monday, April 11.
Hilton testified that he was never reprimanded or
warned about his work; that about 6 or 8 weeks before his
discharge Alverson told him that Gillespie had praised the
appearance of his (Hilton's) section;22 and that during the
latter part of March 1966, Alverson told him to keep his
section up as he wanted him as assistant store manager
when Walter Hammett (the assistant at the time) was
transferred.23 Hilton admitted that when he worked for 3
or 4 weeks under Coker at store 4, Coker complained to
him that the shelves were not properly stocked; and that
Alverson at times questioned him as to why he did not
have certain items on the shelves. He testified that on each
occasion he gave them satisfactory explanations , such as
the items in question being out of stock at the warehouse
or ordered but not delivered. Bryant testified without
contradiction that he had worked under Alverson for a
long period of time; that about a month after Hilton had
been transferred to store 5 , he went there to visit
Alverson ; and that Alverson told him at the time that he
was very "pleased" with Hilton 's work . Bryant also
testified that he had had an opportunity to observe Hilton's
work at store 4 , and that in his opinion Hilton was a very
good employee.
Coker testified that when Hilton worked at store 4, he
had to get after Hilton "about speeding up and getting his
department ready by Wednesday night "; that Hilton did
not stock "some items"; that although he told Hilton to
order such items, he did not do so; that Hilton said that
such items did not sell or that he did not have space for
them ; that on one occasion Hilton said , "I've worked like
this all my life, I'm not going to change now"; that the
Respondent had a rule that employees would not engage in
prolonged conversation with customers ; that "on several
occasions" he warned Hilton about talking to customers;
that Hilton was "about the worst " stockman that he had
ever had under his supervision ; that the Respondent had a
policy of transferring an unsatisfactory employee to
another store in the hope that he would improve ; and that
he complained to Gillespie about Hilton's work about 2
weeks before Hilton 's transfer to store 5.
Alverson testified that Hilton was transferred to his
store about January ; that during the first week after the
transfer he reprimanded Hilton " in front of everybody" for
having his section "halfway stocked "; that Hilton's work
thereafter improved for about a month ; that complaints of
customers about Hilton were "over two to one" compared
to other employees ; that these complaints had to do with
"being out of merchandise on the shelves "; that on one
occasion on a Friday morning (Hilton 's day off) he and
Gillespie had to order "thirty or forty cases ... pertaining
to . . . salad dressings , pickles, jams and jellies , fruits,
juices and also canned vegetables " in order to fill up
Hilton 's section ; that almost every week he was "always
pushing to get [Hilton] to finish his section" by
Wednesday; that on such occasions he either helped
Hilton or did the necessary work himself; that Hilton was
"among the worst" of employees he ever had under his
supervision ; that he "quite often" talked about Hilton to
Gillespie; that about 3 weeks before April 7 he and
Gillespie discussed the possibility of either discharging or
transferring Hilton ; that about 11 a.m. on the day that
Hilton was transferred to store 7 he, Block , and Gillespie
discussed Hilton ; and that Gillespie told him that store 7
was "short on help" and that he should tell Hilton at noon
of his transfer.
Hines testified that Hilton was "awfully slow getting the
stock up," and that he talked to other employees and
customers "usually about fifteen or twenty minutes, not
always, though ." She also testified that "about a month or
so" before his transfer to store 7 she smelled " liquor on his
breath" after he returned from lunch.
Hammett testified that he was Hilton 's immediate
supervisor when Alverson was not present ; that the "only
11 Gillespie testified that he may have said "some encouraging Hilton of the possibility of the lob "if he would improve and bong
things" to Hilton
13 Alverson admitted this conversation but testified he told
his end of the store up "
1016 DECISIONS OF NATIONAL
problem" that he had with Hilton was that "he just didn't
get the sections filled up"; that on one occasion Alverson
and Gillespie had to get the catalogue and make out an
order for Hilton's section ; that Alverson told him
(Hammett) that Hilton was "drinking too much" and
"ought to do better" ; that every Tuesday when Alverson
was off he saw Hilton talking to people whom he presumed
to be customers and to John George24 " anywhere from 45
minutes to an hour"; that in his opinion he had "bag boys
[couldi do better stocking"; and that on Hilton 's day off
when he came to the store with his wife to shop, he could
tell from his breath that Hilton had been drinking.
David Page , a part -time bagboy at store 4 , testified that
he had worked with Hilton; that Hilton was "lazy, slow, sat
down and talked and killed time"; that at times he had
observed Hilton talking to customers "ten to fifteen
minutes" ; that "almost every week " he helped Hilton
stock his section "so he could get through and clean up
and get out on time Wednesday "; and that when Hilton
came to the store on his day off, he could tell he had been
drinking "by the smell."
Streitman testified that Hilton came to his store "as a
temporary transfer" because he needed help; that he
notified Gillespie to this effect; that he assigned Hilton to
performing stock work; that Hilton "walked around not
doing anything"; that it took Hilton "approximately 2-1/2
to 3 hours" to stock the dried bean section when it should
have required only about " an hour to an hour and a half";
that he did not tell Hilton to report for work on Monday;
that as Hilton was checking out on Friday Gillespie came
to the store; and that he told Gillespie that he did not like
Hilton "worth a damn" and did not want him " any more."
Gillespie testified to the effect that the only reason for
Hilton's transfer to store 7 and his discharge was his
failure to "keep his section stocked "; and that he had no
reports about Hilton's drinking , talking to employees or
customers , or visit to store 4 on April 11. Gillespie
admitted that about a week prior to Hilton's discharge he
had heard that he was an adherent of the Union . Gillespie
further testified that Hilton was transferred from store 4 to
store 5 because of the complaints of Coker and Claude
Garret , the store manager of 4; that 2 or 3 weeks before
Hilton's transfer to store 7 it was decided to either transfer
or discharge him; that when Streitman asked for help, he
decided to give Hilton another chance ; that on April 8
Streitman told him that he did not want Hilton as he was
"not worth a damn"; that he had Hilton's final check on
Saturday but was not able to locate him; and that he did
not tell Hilton the reason for his discharge.
The Respondent ' s witnesses testified at length about
Hilton's drinking habits and his talking to employees and
customers . But Gillespie admitted that he had no reports
about such conduct and that they had nothing to do with
his discharge . Hilton's alleged failure to stock ..:s section
properly was the sole cause for the transfer and discharge,
according to Gillespie. I believe and find that this reason
was merely a pretext.
Hilton, like John George , was transferred during the
middle of the day. Although Honea Path is about 35 miles
from Greenville , Hilton had received no prior notice of his
transfer. Alverson told him that it was "permanent"; and
24 The undisputed evidence shows that George's day off was on
Monday Hammett testified that he saw Hilton talking to George
during working hours "just about every week" on Tuesday
"anywhere from thirty minutes to an hour at a time "
LABOR RELATION BOARD
did not warn him that the transfer was for the purpose of
giving him another chance to prove himself. In my opinion,
these facts do not comport with the Respondent's
contention that such was the purpose of the transfer.
The record indicates that Hilton was not as poor an
employee as he was painted by the Respondent's
witnesses. According to Hammett, it would appear that
Hilton spent most of his time talking and not working.
Hammett testified that Hilton talked to George for long
periods of time almost every Tuesday. However, it is
difficult for the Trial Examiner to believe this in view of
the undisputed evidence that George was working at
store 4 at such times. Also, in one breath Alverson
testified that Hilton was one of the worst employees that
he had ever had under his supervision. In the next breath
he admitted that he had held out to Hilton the possibility of
becoming assistant store manager. Assuming arguendo
that Hilton was lax in stocking the shelves, the
Respondent tolerated the situation for a long period of
time and took no action until it learned that he was an
adherent of the Union.
Accordingly, I conclude and find that the Respondent's
conduct in transferring Hilton on April? and in
discharging him on April 11, 1966, was violative of Section
8(a)(3) of the Act.
E. The Reduced Hours and Discharge of Eunice I. George
George first was employed by the Respondent in
November 1964. She worked in the meat department of
store 5. She quit her job on July 8, 1965, but was rehired by
the Respondent on August 22, 1965. She then worked in
the meat department of store 11. For the most part she
weighed and wrapped meat. About January 1966, she
received a wage increase of 10 cents per hour. Gentry, the
market manager, was her supervisor. Robert Watson was
the store manager.
Starting on about March 14, 1966, George was off from
work because of an operation. Employee Carol Tuck
commenced working in the meat department on March 5,
quit her job on or about March 19. Monday was George's
day off from work. She returned to work on March 22. On
that day or shortly thereaft -,r she had a conversation with
Gentry. He told her that he was "glad" to see her back at
work; that he had had "an awful lot of headaches" with
Tuck; and that Tuck had made "an awful lot of mistakes"
with "chuck roasts going out at 18 and 28 cents."
As related above, on April 9 George was notified that
her hours of work were to be cut to 21 per week. Prior to
this time she had been working an average of about 46
hours per week. When George asked Gentry the reason for
the cut, he answered, "Well, the payroll had to be cut."
She was permitted to work on April 12 and 13 for a total of
only 8-1/4 hours. The weekly hours of Brian Fantl and
William Hill, the two employees who had been working
with her, were not cut 'i uck was rehired on Monday,
April 11, and worked a total of 42-3/4 hours for that
week.25
On April 12 Watson went to the meat department and
talked to George. He told her that he had found "eight
dollars worth of meat prices wrong on the packages." She
' Timecards of Tuck, Fantl, and Hill were received in
evidence There was no appreciable change in the weekly hours of
Fantl and Hill before and after April 9 Tuck worked 45 , 42-3/4,
and 47-1 /4 for the weeks ending April 23 , 30, and May 7,
respectively
BI-LO, INC. 1017
replied, "Well, I wasn't the only wrapper, there were three
of us." Watson did not speak to Tuck or Hill about the
errors.26 When George reported for work on April 14, she
was discharged by Watson who told her, "I hate to do this,
but I'm ordered to ...... He did not give her any reason for
the discharge.27
Mitchell, the assistant market manager at store 11,
testified that Gentry told him that the hours in the meat
department were going to be cut in order "to cut down on
the overhead"; that the hours of George, Hill, and Fantl
were cut;26 that when Gentry notified George of her
reduced hours, she said that her husband would come to
the store and "whip somebody's ass about it";29 that
George then went into the cutting room and sat on the
table, saying that she would "sit out the clock"; that, at the
time, his work and that of the other employees was
"caught up"; that on that same day Hill's hours were cut
to 20 per week; and that while George was still employed,
Tuck was working "part-time."30 Concerning the error in
weighing on or about April 12, Mitchell testified, "Well,
the girl ... that runs the register, she brought a package
back to the meat counter, and . said, Mr. Mitchell,
there's an error in this here ... don't nobody get no two T-
bone steaks for $.49, and we put in on the scales and
weighed it, and it was a dollar and forty-nine cents." He
further testified that George and Hill were doing the
weighing at the time, and that there was no way to identify
the one who had made the error.
Gentry testified that on April 9 the hours of George, Hill,
and Fantl were cut; that hours of Hill were reduced
"approximately five or six" and those of Fantl "four or
five"; that the hours of some other employees in the
"whole general store" also were reduced; that the
reduction in hours was made because the payroll was
exceeding the permissible percentage compared to
volume; that when he informed George about her reduced
hours, she threatened that her husband would come to the
store; that she then sat down on the table in the cutting
room; that although he asked her to get back to work, she
continued to sit on the table for "35 or 40 minutes";31 that
the error in weighing of the meat occurred on Tuesday, his
day off; that when he reported for work on Wednesday
morning, Watson showed him "one particular package"
that had been priced incorrectly; that when Watson asked
him who had made the error, he identified "the
handwriting" as that of George;32 that he heard of other
packages that also had been incorrectly priced on
Tuesday; that on Wednesday after his conversation with
Watson he reprimanded George for the error, telling her
"Eunice, you know what happened yesterday ... now this
is something we cannot tolerate";33 that the decision to
discharge George was made "between Mr. Watson and
myself"; and that the reason for her discharge was "her
work not being satisfactory ... her meat pricing."
Concerning the reason for rehiring Tuck, Gentry was
questioned and testified as follows:
Q. (By Mr. Eubanks) Now, why was it necssary to
bring Mrs. Tuck in for forty hours a week, when you
were cutting the hours of the other employees?
A. That's a good quetion. Well, my reason was, it
was more or less Mrs. George had gotten to the place
where she just , everything worried her ... not only
that, misweighing packages.''"
Watson testified that the hours of employees in his store
were reduced because "the payroll was running high"
compared to sales; that the hours of seven employees in
the store were cut from 6 to 10 hours; and that of this
number his own weekly hours were cut 10, and those of an
office girl, the cashier, Hill, and Fantl were cut
approximately 8. Concerning the reason why Tuck was
rehired on April 11, Watson testified:
Well, she had previously worked for us, and I tried to
keep her, and she had left; I try to keep good help;
and I tried to have it so that I could keep in contact
with her; and the reason she was hired back was that I
could put two girls in the market, cut out the overtime
on both of them; and save money; and get the same
amount of work done.
As to the reasons why he discharged George, Watson
testified, "Well, to begin with, there had been two
occasions when she had left [work] without letting me
know anything about it....35 She had been warned on
different occasions and especially when the market was
condemned about the correct weighing of packages... .
When the hours were cut, it was reported to me that she
made the statement that `George would whip somebody's
ass over it.' All right, at the time she sat down at the table
back there for about 45 minutes to an hour and refused to
work ... and then she made a phone call and went back to
work."
In my opinion, the Respondent's defense to George's
discharge stands or falls on the facts surrounding the
reduction of her weekly hours. Contrary to the testimony
of Gentry and Watson, the Respondent's own 'records
is George testified without contradiction to the effect that Tuck
and Hill also were wrapping and weighing meat at the time in
question
1, George testified credibly to the above conversation with
Watson He denied telling her that he had been ordered to
discharge her He testified that the error on the meat prices was
brought to his attention on April 12 or 13, and that he told George,
"we couldn't tolerate the meat packages being marked like that "
He testified that this conversation took place on April 13
is As noted above, the timecards of Hill and Fantl do not
disclose that their hours were reduced
t" George admitted making the above remark
3i The timecard of Tuck for the week ending April 16 shows
that she worked in excess of 9 hours per day on April 11 and 12,
and that she worked for 6 hours on April 13
31 George denied that she refused to work but admitted that she
sat down for "five or ten minutes "
32 During cross-examination Gentry testified that Watson told
him that George had misweighed some packages, and that both
Watson and Mitchell told him that the misweighed packages had
been shown to George by them on Tuesday Watson testified, "I
saved one package of meat and gave it to Mr Gentry to check the
writing on the package, I felt that it was Mrs George's and I
wanted him to check to be sure that it was, and he said that it
was
33 Gentry testified to the above during cross-examination He
testified during direct that he did not talk to George about the
error after his conversation with Watson.
34 There is no evidence that George had misweighed any
packages for some months prior to April 12 It is undisputed that
during the summer of 1965 a case of meat was condemned by a
State inspector for improper weighing, that George, Hill, and
another employee were the weighers at the time, and that Gentry
reprimanded the employees involved Gentry admitted that all
employees had made mistakes in weighing
35 It is undisputed that during 1965 George was off from work
for some few days when she went to Atlanta, and that she again
was off from work during about October 1965 when her scheduled
hours were changed Watson admitted that he rehired her after
each incident
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show that the hours of Fantl and Hill were not reduced.36
Also, contrary to Watson's testimony, the rehiring of Tuck
did not eliminate overtime. Starting on April 11 and
through the week ending May 7, she worked
approximately the same number of weekly hours as
George prior to April 9. On April 11, George's day off,
Tuck worked 9-1/2 hours. On April 12 Tuck and George
worked 9-1/4 and 4-1/4 hours, respectively. In short, the
evidence as a whole in this connection shows that George
was the only employee in the meat department whose
hours were cut and that the rehiring of Tuck added to
rather than reduced the Respondent's payroll costs
(provided that the Respondent planned to keep George on
the payroll).
George testified that she did not engage in any union
activity other than to sign a union card at her home on
April 4. The Respondent had no way of knowing about
this. However, the conversation between Bryant and
Tumblin on April 6, related above, tends to show that the
Respondent suspected that George was involved with the
Union. In any event, the Respondent knew that her
husband, John George, was the leading adherent of the
Union. For all of the above reasons I find that the
Respondent's action on April 9 in reducing Eunice
George's hours of work was violative of Section 8(a)(3) and
(1) of the Act.
Other than the incident involving the condemned case
of meat during the summer of 1965, there is no evidence
that George made any mistake in weighing prior to
April 12. Alverson testified that she did "a good job" while
she worked under him at store 5. Gentry admitted that her
work was "pretty good" before April 9. That Mitchell and
Gentry did not consider George's conduct on April 9 to be
of a serious nature is shown by their admissions to the
effect that they did not reprimand her at the time because
it occurred near the end of the work day and the work in
the department was "caught up." Although Gentry had
told George on or about March 22 that Tuck had made "an
awful lot of mistakes" in weighing, Tuck was rehired on
April 11. Tuck and Hill also were weighing when the
mistake was made on April 12; but Watson spoke to
George only. Mitchell, contrary to Gentry, testified that
there was no way to identify the person who had made the
mistake by looking at the package. Further, it appears that
Watson told Gentry that George had made the error before
asking him to make the identification.
In making the above findings, particularly with respect
to conversations between George, Gentry, and Watson, I
have credited George's testimony. She appeared to me to
be a reliable and credible witness. As noted above, there
are contradictions and conflicts in the testimony of the
Respondent's witnesses. Accordingly, from the above and
from the entire record I reject the reasons advanced by the
Respondent for the discharge. I find that the Respondent
by discharging Eunice George on April 14, 1966, violated
Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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
certain unfair labor practices, it will be recommended that
it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent reduced the
hours of work of Eunice I. George and discharged her,
John C. George, and Charles E. Hilton. Accordingly, it will
be recommended that the Respondent offer them
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, and make them
whole for any loss of pay suffered by reason of the
discrimination by payment to each of them of a sum of
money equal to that which he or she would have earned as
wages from the date of the discrimination to the date of
reinstate ment, less his or her net earnings during such
period in accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with interest
on such sum, such interest to be computed in accordance
with the formula prescribed by the Board in Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
3. By discriminating against John C. George,
Charles E. Hilton, and Eunice I. George because of their
activities on behalf of the Union, thereby discouraging
membership in the Union, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, I
recommend that the Respondent, its officers, agents,
successors, and assigns, shall be ordered to:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any other
labor organization of its employees, by reducing the hours
of work of, transferring, or discharging, employees or
otherwise discriminating against them in regard to their
hire and tenure of employment or any term or condition of
employment.
(b) Interrogating its employees concerning their
membership in or activities on behalf of the Union, or
making threats of reprisal or promises of benefit of such
activity.
36 Fantl was a part-time employee
DIT-MCO, INCORPORATED 1019
(c) Keeping the union activity of its employees under
surveillance.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the above-named labor organization, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer John C. George, Charles E. Hilton, and
Eunice I. George immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights or privileges,
and make them whole in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify John C. George and Charles E. Hilton if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its stores in Greenville and Honea Path,
South Carolina, copies of the attached notice marked
"Appendix."37 Copies of said notice, to be furnished by
the Regional Director for Region 11, after being duly
signed by the Respondent or its authorized
representatives, shall be posted by Respondent
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 to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.311
WE WILL NOT discourage membership in
Amalgamated Meat Cutters & Butcher Workmen of
North America, Local442, AFL-CIO, or any other
labor organization of our employees, by
discriminating in regard to their hire or tenure of
employment , or any term or condition of employment.
WE WILL NOT interrogate our employees
concerning their membership in or activities on behalf
of the above Union or make threats of reprisal or
promises of benefit because of such activity.
WE WILL NOT keep the union activity of our
employees under surveillance.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form labor
organizations , to join or assist the above Union, or any
other labor organization , to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion. or to refrain from any or all such activities.
WE WILL offer John C. George, Charles E. Hilton,
and Eunice I. George immediate and full
reinstatement to their former or substantially
equivalent positions , without prejudice to their
seniority or other rights and privileges , and make
them whole for any loss of pay suffered as a result of
the discrimination against them.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any labor
organization.
BI-LO, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive day's
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1624 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 723-2911.
31 In the event that this Recommended Order is 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
notice In the further 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 "
3" In the event that this Recommended Order is 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 Respondent has taken to comply herewith "
APPENDIX
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
Relations Act, as amended, we hereby notify our
employees that:
DIT-MCO, Incorporated and International
Union, United Automobile, Aerospace &
Agricultural Implement Workers of
America, UAW-AFL-CIO, Petitioner. Case
17-RC-4660.
April 12, 1967
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
Pursuant to Decision, Order, and Direction of
Second Election issued by the National Labor
Relations Board on April 28, 1965,i a second
election by secret ballot was held under the direction
and supervision of the Regional Director for Region
i Not published in NLRB volumes.
163 NLRB No. 147