Big T Food Store

National Labor Relations Board - Board Decisions

Nov 22, 1972

200 N.L.R.B. 409 (N.L.R.B. 1972)

BIG T FOOD STORE 409
Tonnor Brothers Foods, Inc. d/b/a Big T Food Store
and Retail Clerks Union Local 37, Retail Clerks
International Association, AFL-CIO
Tonnor Brothers Foods, Inc. d/b/a Big T Food Store
and Retail Clerks Union Local 37, Retail Clerks
International Association, AFL-CIO
Allied Workers International Union and Retail Clerks
Union Local 37, Retail Clerks International
Association , AFL-CIO
Allied Workers Union Local 100, affiliated with Allied
Workers International Union and Retail Clerks
Union Local 37, Retail Clerks International
Association, AFL-CIO. Cases 25-CA-4499,
25-CA--4617, 25-CB-1249, and 25-CB-1309
November 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 28, 1972, Trial Examiner Wellington A.
Gillis issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent Employ-
er filed a brief in opposition to the exceptions of the
General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
against Tonnor Brothers Foods, Inc. d/b/a Big T Food
Store, hereinafter referred to as the Respondent Employer,
and on August 26 and November 5 against Allied Workers
International Union, and Allied Workers Union Local 100,
affiliated with Allied Workers International Union, respec-
tively; upon the consolidated complaint issued on Novem-
ber 19, 1971, and amended on January 10, 1972, by the
General Counsel for the National Labor Relations Board,
hereinafter referred to as the Board, against the Respon-
dent Employer and Respondent Unions, alleging violations
of Section 8(a)(1), (2), and (3), and Section 8(b)(1)(A) and
(2) and Section 2(6) and (7) of the National Labor
Relations Act, as amended (61 Stat. 136), and upon timely
answers filed by the Respondents denying the commission
of any unfair labor practice.
At the hearing, all parties were represented by counsel,
and were afforded full opportunity to examine and cross-
examine the witnesses, to introduce evidence pertinent to
the issues, and to engage in oral argument. The parties
waived the filing of briefs and argued orally on the record.
Upon the entire record in this case, and from my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corp. v.
N.LR.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT EMPLOYER
Tonnor Brothers Foods, Inc. d/b/a Big T Food Store, a
corporation with a place of business at Chesterton,
Indiana, is engaged in the business of selling meat,
groceries, and related items at retail. During the 12-month
period immediately preceding the issuance of complaint,
the Respondent Employer sold and distributed products,
the gross value of which exceeded $500,000, and during the
same period of time, the Respondent received goods
valued in excess of $50,000 transported to the Chesterton
store in interstate commerce directly from States other
than the State of Indiana. The parties admit, and I find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: This case was
tried before me on January 25 and 26, 1972, at Valparaiso,
Indiana, and is based upon separate charges filed by Retail
Clerks Union Loc - 37, Retail Clerks International
Association, AFL-CIO, hereinafter referred to as Retail
Clerks or Local 37, on August 26 and November 10, 1971,
200 NLRB No. 70
II. THE LABOR ORGANIZATIONS INVOLVED
The parties admit, and I find , that (a) Retail Clerks
Union Local 37, Retail Clerks International Association,
AFL-CIO, (b) Allied Workers International Union, and
(c) Allied Workers Union Local 100, affiliated with Allied
Workers International Union, are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
While the consolidated complaint, with specificity,
charges the Respondent Company with conduct constitut-
ing unlawful assistance to the Respondent Local Union,
involving the organizing of the Respondent's employees,
the overriding issue presented by the pleadings, upon
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the case against both Respondents rises or falls, is
whether Roy H. thompson, assistant store manager and
head of groceries, is a supervisor within the meaning of the
Act.
B. Facts
While the Respondent herein is incorporated, the
business is in fact owned by Harold G. Tonnor, and his
two silent partner brothers, Donald J. and George J.
Tonnor, with Harold the company president and store
manager.' A second store in Peoria, Illinois, was sold in
December 1971, leaving the Chesterton store as the sole
Respondent operation.
The Chesterton store has been owned by the Tonnor
brothers since its purchase in 1961. Physically, it is small in
size, operating with an average employee complement,
excluding the meat department, of 16 employees, approxi-
mately 8 of whom are part-time high school students?
During the period here in question, August 1971,3 and, on
the payroll for the period ending August 7, the Respondent
had in its employ under Tonnor, Roy Thompson, assistant
manager and head of groceries, Orley Vern Cooley, head
of produce, Richard Pawlak, head of frozen foods, Mary
Ann Betz, head checker, and, in addition, 3 full-time
checkers (cashiers), 2 part-time checkers, 6 part-time
packers or stockboys, and an office girl.
During the summer of 1971, Thompson, concerned over
recent indiscriminate firing in the store by Tonnor,
discussed with Vern Cooley his uneasy feelings and the
need for getting job security for themselves. In reply to
Cooley's inquiry as to whether he knew of any union
representative, Thompson spoke of Jack P . Baggett,
business manager of Local 100 and president of the
International, whom he had known for some 20 years.
Apparently with Richard Pawlak's concurrence, Cooley
contacted Baggett by telephone on August 2. Cooley told
Baggett that they did not have a union at the store, that
they were interested in an independent union, and asked
Baggett to meet with him and Thompson, That evening,
Baggett met with Thompson and Cooley, in the latter's
apartment above the store.4 They took union authorization
cards from Baggett and said that they would get them
signed. These were 3-part membership cards, with one part
to be retained by the local Union, one part to be forwarded
to the International, and a third, authorizing a checkoff, to
be given to the Employer. Baggett told Thompson and
Cooley, that when they secured enough signed cards to call
him and he would arrange a meeting.
Within the next day or two Thompson and Cooley
passed out union cards to all the employees, Thompson
telling each one individually that they were trying to
organize the Union as protection against being fired and
1 As will appear later, the operation of the business is left entirely to
Harold Tonnor, with the two brothers' participation limited to a monthly
board meeting and to rare emergency situations
2 The four meat department employees, including the head meatcutter,
Bill Kunst, are covered under a separate contract with the Amalgamated
Meat Cutters Union and are not involved in this proceeding.
a Unless otherwise noted, all dates hereinafter set forth refer to 1971
4 Cooley'rents this apartment from the Respondent for $125 per month.
5 Thompson approached employees Charles Poparad, Keith Fisher,
that the employees would get a raise if they joined the
Union .5
On August 5, Cooley called Baggett , indicating that he
had 15 application cards signed . Baggett arranged to have
a meeting with the employees that night at Cooley's
apartment. At the 7:30 meeting, with a majority of the
Respondent 's employees in attendance, including Pawlak,
Thompson and Cooley handed 15 cards over to Baggett, all
bearing an August 5 date. The 16th, belonging to Cooley,
had been misplaced , and, bearing an August 8 date, was
subsequently turned over to the Union. Baggett then went
over various aspects of a proposed contract, including the
wage scale which provided all employees with increases.
After a number of questions the employees unanimously
agreed that Baggett should proceed to negotiate the
contract with the Respondent Company.
During the day, August 5, prior to the meeting, assured
by Cooley of an employee majority, Baggett had author-
ized his son , Jack David Baggett, president of Local 100, to
send a letter to the Respondent requesting recognition.
Tonnor received this letter the following day, August 6,
and immediately called a meeting of his employees in the
store.6 Tonnor, upset over the matter , told his employees
that he was very disappointed because of their calling a
union in, that they had been getting along fine and he did
not know that there were any problems, that they should
have told him. He also told the employees that if he got
together with the Union that they (the employees) as well
as the store would have to abide by the contract.
After the meeting, still upset, Tonnor went back to his
office and, around 3:30 p.m ., called Baggett . Tonnor
acknowledged receipt of the letter requesting recognition,
requesting proof of his majority. Baggett told him he had
15 or 16 employees signed up , threatening a picket line if
he did not execute a contract. Tonnor, desiring to avoid a
picket situation such as he had gone through in 1961,
agreed to recognize Local 100 and arranged to meet with
Baggett on the morning of August 9.
On that occasion, with the younger Baggett and the
union vice president, George Dorsey , also present, Baggett
gave Tonnor the cards. After Tonnor examined them, he
was presented with a contract, which contained a union-
security clause. They went over the 3-year contract,
paragraph by paragraph, making a few changes, at the
conclusion of which, both parties signed. After its
execution, Tonnor was left the dues-checkoff portion of the
union authorization cards of the employees whose cards
had been submitted.
Pursuant to the 15 employee checkoff authorizations, the
Respondent commenced deducting union dues from
employees' pay and transmitting them to the Union.
Initiation fees were waived for employees who joined at
this time. The Respondent, however, collected initiation
Richard Pawlak , Mary Ann Betz, Don Highsmith , Jeff Kohler, Paula
Brindza, Sandra Thomas, Fred Alumbaugh, and Patricia Harvil.
6 The letter, on Local 100 stationery, and addressed to Tonnor , stated,
"Please be advised that the above union now represents the majority of your
employees and that we expect to be contacted by you within the next twelve
hours to negotiate a contract concerning wages, hours , and other fringe
benefits. If we do not hear from you, pickets will be established at your
store. If you want to see proof that we represent the majority of your
employees, we have the necessary applications filed by your employees."
BIG T FOOD STORE 411
fees as well as dues for several new employees subsequently
hired. Because of the filing of the charges herein and
receiving notice from the Board, the Respondent, as of
October 4, stopped the further deduction of union dues.
Analysis and Conclusions
The complaint alleges, and the General Counsel asserts,
that, because of the- unlawful activity of Supervisors
'Thompson and Cooley in organizing the Respondent's
employees, specifically, (a) in attending and participating
in the August 5 union meeting, (b) in urging employees to
attend the union meeting, (c) in soliciting on behalf of the
Respondent Union employees to sign union authorization
cards, (d) in securing from employees signed union
membership cards and checkoff authorizations, resulting in
the Company recognizing, and entering into a union-
security contract with, a minority union, and thereafter
unlawfully collecting dues and initiation fees, the Respon-
dent Company and the Respondent Unions have violated
Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the
Act, respectively. In essence, the General Counsel's overall
position, simply stated, is that the majority showing of the
Union is tainted solely because of the personal involve-
ment of Thompson and Cooley. It is quite clear that the
General Counsel is not asserting collusion between the
Company and the Respondent Union or that at the time
there existed a Midwest Pipe7 situation involving recogni-
tion requests by two unions. In fact, as to the former, it is
apparent that Tonnor knew nothing of the activity until it
had been a fait accompli, and, as to the latter, it is also
apparent that the ' Charging Union's interest in the
Respondent's employees commenced at some point of time
subsequent to the uncontroverted events cited above.
Accordingly, as recognized by all, the real question here
is whether the union activity among Respondent's employ-
ees was in fact bona fide activity of its employees or was
prompted by the supervisory hierarchy, giving rise to the
crucial determination as to the supervisory status of
Thompson, Cooley, and Pawlak. While considering the
issue gas to all three, for reasons that will become apparent,
it is Thompson, alone, upon whom the General Counsel
must rely to prove his case.
From 'the outset, the evidence makes it abundantly clear
that the, management of this store is in the hands of one
man, Harold Tonnor, from whom all direction flows. It is
also apparent that the name of the store belies the fact,
that, although operating along the lines of a modern day
supermarket, it in fact is a small operation more closely
resembling the traditional neighborhood grocery store. At
the time of the events herein, the store hours were 8:30 a.m.
to 9 p.m., Monday through Saturday, and 9 a.m. to 6 p.m.
on Sunday. During the course of a normal workweek,
Tonnor was physically present in the store every day of the
week except Wednesday afternoon from the opening in the
morning until 5:30 p.m., with Thompson and Pawlak
alternating in staying late to close up the store. Pawlak, as
head of frozen foods, was mainly responsible for that
department by himself, with no other employee assigned to
7 Midwest Piping and Supply Co. Inc., 63 NLRB 1060.
8 Thompson was discharged shortly after the events herein, was rehired
work there. Cooley had the same responsibility for the
produce department, with one part-time high school stock
boy assisting when needed. Thompson, who was hired by
Tonnor in 1969, "to help him run the store," while carrying
the title of assistant manager, was mainly responsible for
groceries. Assisting him in this capacity were five part-time
stock boys, whose functions consisted of helping to stock
the shelves, unloading trucks, packing bags, and perform-
ing other odd jobs around the store.
In carrying out their day-to-day duties in their respective
sections, Cooley and Pawlak, often interchanging when
necessary, signed for stock, unpacked and uncrated stock
when it arrived, priced items, stocked the shelves, waited
on customers, swept floors, and carried out garbage and
refuse. Neither had authority over other employees. Apart
from Pawlak's $3.78 per hour wage and Cooley's commis-
sion of 12 percent of the gross sales of the produce
department, there was little else connected with their
positions in the store which is indicative of supervision.
Thompson, on the other hand, a man in his late fifties,
was in charge of the store when Tonnor was not there,
which, as indicated, was on Wednesday afternoons, and
evenings after 5:30 p.m.8 He was paid $3.07 per hour plus a
$60 per week bonus, and had a desk, as did the office girl,
in Thompson's office.
With respect to nonpersonnel functions, the record
indicates that Thompson did just about everything from
ordering stock for the shelves in the grocery department to
cleaning out the restrooms. He worked alongside the stock
boys unloading trucks, cleaning incinerators, mopping the
floors, packing groceries, taking groceries out to autos, and
going to the bank occasionally. While he, like a number of
others, had a key to the store, and also possessed the safe
combination, Thompson had no access to financial books
or records, did not sign checks, and was not accountable
for profit and loss within the store or the grocery
department. In ordering stock, which was always checked
by Tonnor, Thompson was limited to replenishing the
shelves. He had no authority to add new products, to
discontinue brands, or to set prices, all of which was done
by Tonnor. Thompson estimated that during the course of
his 44-hour week, roughly 37 hours were spent performing
physical work and 7 hours devoted to making out grocery
and produce orders.
With respect to personnel matters, the record reveals that
Tonnor, and Tonnor alone, exercised the authority to hire,
fire, promote and discipline employees. In the one instance
where Thompson, in need of help, attempted' to hire a
person, Tonnor, the very next day, fired him, censuring
Thompson severely as not having the authority to hire. As
to Thompson's authority over the stock boys, it is apparent
that such was pretty much limited to routine matters.
Employee hours and work schedules were set by Tonnor
and posted on the bulletin board. In the event that an
employee wanted to switch hours, or to take a day off,
deviating from these schedules, Thompson would convey
the request to Tonnor, who, ascertaining from Thompson
that there was someone to cover, would normally grant the
change.
through the efforts of the Union, and then, a few weeks later, voluntarily
quit his employment.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Thompson initialed timecard corrections and was
responsible for making sure that stock boys were perform-
ing' work in the grocery department, occasionally moving a
boy from one task to another without consulting Tonnor,
for the most part these boys had certain routine jobs to do
and, after some initial direction from Thompson following
their employment, needed no direct supervision from
anyone As noted above, more often than not, Thompson
would work alongside these boys performing the same
physical work as they. In the evenings, after Tonnor had
left for home, always remaining on call within telephone
reach of his store, Thompson, if a problem arose, would
call Tonnor and get authority to do whatever was
necessary, such as keeping a boy late to help unload a
truck. On the one occasion during his 2-year tenure with
the Respondent that Tonnor was absent for a few days and
Thompson was left in charge, Tonnor, before leaving, had
the payroll and remittance checks signed in advance, the
work schedules set up, and sales items prearranged, leaving
little, if anything, requiring independent judgment to
Thompson.
Thus, it is quite apparent that Tonnor, who personally
was on the floor all but 3 hours of every day, was the one
person who supervised the entire running of the store, that,
notwithstanding the unwritten title of assistant manager,
Thompson was little more than a glorified stocker, as he, in
his testimony, referred to himself, and that Thompson
possessed no authority, nor was he looked upon by other
employees as having authority, over any employee in the
store, other than that, the exercise of which, was purely
routine in nature .9
As Thompson, like Cooley and Pawlak, was not
possessed with the authority required by Section 2(11) of
the Act 10 as necessary to establish supervisory status, and
thus to render the Respondent Company responsible for
9 To the extent that a small portion of the testimony of stock boy Charles
Poparad might possibly lead to a contrary inference, I credit Tonnor and
Thompson, upon whom I rely for the findings herein
10 Sec. 2(11) of the Act provides that-
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment
his actions , I find that the conduct of Thompson , as well as
that of Cooley and Pawlak, alleged in the complaint as
unlawful, was in fact legitimate employee union activity,
and that, as a result, the Respondent Company, in
recognizing the Respondent Union and thereafter entering
into a collective-bargaining contract , did in fact recognize
the majority representative of its employees . In view of this
determination, it follows, and I find, that the General
Counsel has failed to prove by a preponderance of the
credible evidence the allegations of the consolidated
complaint against any of the Respondents . Accordingly, I
shall recommend that the consolidated complaint against
the Respondent Company in Cases 25-CA-4499 and
25-CA-4617, and against the Respondent Unions in Cases
25-CB-1249 and 25-CB-1309, be dismissed.
Upon the basis of the foregoing findings of fact and
conclusions of law , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company, Tonnor Brothers Foods,
Inc. d/b/a Big T Food Store, is engaged in commerce
within the meaning of Section 2(6) and' (7) of the Act.
2. The Respondent Unions, Allied Workers Interna-
tional Union, and Allied Workers Union Local 100,
affiliated with Allied Workers International Union, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. None of the Respondents has engaged in any unfair
labor practices as alleged in the consolidated complaint 11
RECOMMENDED ORDER12
It is recommended that the consolidated complaint
herein be dismissed in its entirety.
it That the record does not support a finding of a violation herein would
appear to give rise to a just result as well, for it is less than desirable to upset
a good collective-bargaining relationship where, as here, everyone, other
than an outside union, is happy with that relationship , including the entire
employee unit complement.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.