C & E Stores, Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1976

221 N.L.R.B. 1321 (N.L.R.B. 1976)

C & E STORES 1321
C & E Stores, Inc., C & E Supervalue Division and
Retail Clerks Union Local # 1059, Retail Clerks
International Association , AFL-CIO. Case 9-CA-
9010
January 2, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On September 19, 1975, Administrative Law Judge
Leonard M.-Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent, Charging
Party, and the Acting General Counsel, hereinafter
General Counsel, filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs I and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge with the additions and modifications described
below, and to adopt his recommended Order as
modified herein.
1. The Charging Party excepted to the failure of
the Administrative Law Judge to find that Respon-
dent violated Section 8(a)(1) of the Act on December
11, 1974, by Store Manager Moore's interrogating
employee Retter about a scheduled union meeting,
which thereby created the impression of surveillance
of employees' union activities. While we agree, for
the reasons set forth below, that Moore's conduct
constituted a violation of Section 8(a)(1) of the Act,
our finding is predicated on the coercive nature of
the remarks rather than ' on a finding that these
remarks created the impression of surveillance.3
According to the uncontradicted testimony of
employee Retter,
1 Subsequent to'the issuance of the Administrative Law Judge' s Decision
herein, General Counsel filed a motion with the Board requesting that this
case be remanded and consolidated for heanng with a separate case, 9-CA-
9364-1,-2,-3, involving the same parties and the same unit of employees.
Respondent has filed a memorandum in opposition to this motion.
Inasmuch as there exists no substantial reason to delay the issuance of our
decision herein pending the processing of Case 9-CA-9364, the General
Counsel's motion is hereby denied
General Counsel 's unopposed motion to correct the Administrative Law
Judge's inadvertent reference in his Decision to October 3, rather than
December 3, as the date on which Store Manager Moore spoke to
employees Buck and Miller about,the union meeting is hereby granted.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board' s established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
221 NLRB No. 218
Mr. Moore approached me and ... proceeded
by saying "What do you know about a union
meeting tonight?" I said "Nothing." He said,
"You mean you don't know nothing about any
meeting tonight to decide whether the employees
will go out on strike?" And I said, "No, I never."
He said, "Well," he said, "There's supposed to be
one. So I thought like you and any other
employee would know about it. So are you sure
you didn't know anything about it?"
The Administrative Law Judge did not mention
this conversation in his Decision. However, it
appears that the Administrative Law Judge's failure
to treat with the above conduct was a mere oversight
since the above testimony stands undenied on the
record. We also note that the Administrative Law
Judge found, over Moore's denials, that he similarly
engaged in coercive interrogations of other employ-
ees; namely, Buck and Miller. Consequently, we find
that Moore did interrogate Retter, as that employee
testified. Furthermore, as the purpose of Moore's
question was to force Retter to reveal his knowledge
about the Union and its activities, we find that he
engaged in conduct proscribed by Section 8(a)(1) of
the Act, and that he thereby violated the Act.
2. General Counsel and the Charging Party
contend that the strike which commenced on
December 12, 1974, was an unfair labor practice
strike. The Administrative Law Judge, although he
found that Respondent committed numerous viola-
tions of Section 8(a)(1) prior to the strike,4 concluded
that it was an economic rather than an unfair labor
practice strike. For the reasons set forth below, we
find merit in the contentions of the General Counsel
and the Charging Party.
According to credited testimony, and the Adminis-
trative Law Judge's findings, a union meeting was
held on December 11, 1974, at which the employees
voted to strike. Prior to the vote, Union Organizer
Marcaletti discussed reasons for which the employ-
ees might strike, and advised against a strike unless it
could be based on unfair labor practices. The
Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951). We have
carefully examined the record and find no basis for reversing his' findings
3 Although the complaint alleged that Moore 's conduct violated the Act
by creating the impression of surveillance , we are not precluded from
finding a violation under an alternative theory It is well established that
where, as here , the facts underlying the violation are fully developed at the
hearing, an unfair labor practice finding can be based on the issues litigated
as well as those specifically alleged in the complaint 'See, e g ., Phillips
Industries, Incorporated 172 NLRB 2119 (1968), fn 2
4 The Administrative Law Judge found , and we agree , that Respondent
violated Sec 8(a)(1) of the Act by. creating the impression of surveillance of
the employees' union activities, promulgating and enforcing an unlawful no-
solicitation rule, reprimanding an employee for violating an unlawful no-
solicitation rule, requesting employees to observe and report on the union
activity and sentiment of fellow employees, and interrogating employees
regarding the union activities and sentiments of fellow employees
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees thereupon wrote out the incidents which
they thought constituted unfair labor practices.
These incidents were then discussed, and the conclu-
sion was reached that the Employer had committed
unfair labor practices against the employees. The
employees then voted to strike, and the following day
commenced a strike.
Despite this evidence, the Administrative Law
Judge concluded that the strike was economic in
character because of the failure of "Marcaletti or the
employees [to] specify the incidents which provoked
the strike." We think it is clear from the record that
at least part of the motivation behind the strike was a
reaction to the Employer's persistent interference
with the employees' union activities. Thus, as
described more fully above, at the prestrike meeting
the employees concluded that Respondent's conduct
in response to their organizing efforts violated their
rights and constituted unfair labor practices, a
conclusion with which both the Administrative Law
Judge and we agree. Therefore, we disagree with the
Administrative Law Judge that greater specificity
than that set forth above is required to establish that
the strike was not in any way caused by the
Employer's unfair labor practices.5 Rather we are
satisfied that the strike which commenced on
December 12 was at least in part the direct result of
the Respondent's interference with the employees'
protected activities. 'Accordingly, we find that the
strike was an unfair labor practice strike from its
inception and that the strikers, therefore, are entitled
to the protection accorded such employees.
AMENDED CONCLUSIONS OF LAW
We make the following additional conclusion of
law:
"4. The strike which commenced on December
12, 1974, was an unfair labor practice strike from its
inception."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, C & E Stores, Inc., C & E Supervalue Division,
Athens, Ohio, its officers, agents, successors, and
assigns , shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for subparagraph 1(g):
"(g) Interrogating employees regarding the union
activity or union sentiment of fellow employees or
their knowledge about union meetings."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
s Larand Lei surelies, Inc, 213 NLRB 197 (1974); Juniata Packing
Company, 182 NLRB 934, 935 (1970).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the, chance to
give evidence, the National Labor Relations Board
found that we, C & E Stores, Inc., C & E Supervalue
Division, violated the National Labor Relations Act,
and ordered us to post this notice and to keep our
word about what we say in this notice.
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest
or protection
To refuse to participate .in any or all of
these things.
The Board has ordered us to promise you that:
WE WILL NOT interfere with your rights.
WE WILL NOT create the impression that your
union activities are under our surveillance.
WE WILL NOT unlawfully interfere with our
employees' union or concerted activities.
WE WILL NOT tell striking employees that they
have been discharged because of their participa-
tion in a strike.
WE WILL NOT tell striking employees that we
will reinstate them if they abandon a strike.
WE WILL NOT ask employees to observe and
report to us the union activity or union sentiment
of their fellow employees.
WE WILL NOT question employees regarding the
union activity or union sentiment of their fellow
employees, or their knowledge of union meetings.
WE WILL NOT promulgate or enforce an
unlawful no-solicitation rule.
C & E STORES, INC. C &
E SUPERVALUE DIVISION
DECISION
STATEMENT OF THE CASE
LEONARD M . WAGMAN, Administrative Law Judge:
Upon a charge filed by Retail Clerks Union Local # 1059,
Retail Clerks International Association , AFL-CIO, herein
called the Union, on December 16, 1974 , and upon an
C & E STORES
amended charge filed by the Union on February 27, 1975,
the General Counsel of the National Labor Relations
Board, by the Regional Director of the Board's Region 9,
issued the complaint herein on February 28, 1975, against
C & E Stores, Inc., C & E Supervalue Division, herein
called Respondent, alleging that Respondent had engaged
in unfair labor practices -within the meaning of Section
8(a)(1) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), herein called the Act.
Respondent filed an answer denying the allegations of
unlawful conduct recited in the complaint.
Pursuant to notice, a hearing was held before me at
Athens, Ohio, on April 14 and 15, 1975, at which the
complaint was amended to allege additional violations of
Section 8(a)(1) of the Act. Respondent denied the
additional allegations. The General Counsel and Respon-
dent filed timely posthearing briefs.
Upon the entire record in this case, my consideration of
the briefs, and from my observation of the witnesses, I
make'the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation, operates a retail
grocery store in Athens, Ohio. During the 12-month period
preceding issuance of the complaint, which Respondent
admits was a representative period, Respondent had a
gross volume of business in excess of $500,000. During the
same period, Respondent purchased goods valued in
excess of $5,000, which it received directly at its Athens,
Ohio, store, from points located outside the State of Ohio.
Respondent concedes, and I find, that it is, and has been,
an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in operations affecting com-
merce as defined in Section 2(6) and (7) of the Act.
Accordingly, I find that it will effectuate the policies of the
Act to assert jurisdiction over the Respondent.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local # 1059, Retail Clerks Interna-
tional Association, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Background and the Complaint
On December 4, 1974, the Union began an organizing
campaign among Respondent's grocery department em-
ployees. On that date, Unison Organizers Ronald Marcalet-
ti and Charles Ward met with 10 of Respondent's grocery
department employees and obtained signed authorization
cards from 9 of the assembled employees. During the next
1 The parties stipulated, and I find that as of December 9, 1974, 16
employees were included in the grocery department. The parties dispute the
status of a 17th person, Head Cashier Theresa A. Turrill. The parties also
stipulated that, as of December 9, the store included a meat department of
three employees.
2 My findings to this point as to the Union's organizing activity, its
1323
3 days, the Union obtained signed authorization cards
from three more of Respondent's grocery employees.
On December 9, Marcaletti, accompanied by Ward and
a representative of the Meat Cutters Union, appeared in
Respondent's store, confronted Manager Danny L. Moore
with the Union's claim that it represented a majority of the
store employees, and requested collective bargaining.'
Moore declined to discuss recognition or bargaining with
his visitors. A few minutes later, Charles L. Jeffers,
Respondent's president and general manager, appeared.
Marcaletti repeated his claim that the Union had achieved
representative status among Respondent's employees and
requested bargaining. Jeffers refused discussion and
invited Marcaletti and his companions to leave the store.
Two days later, Respondent's grocery employees voted
to strike. On December 12, following Marcaletti's second
unsuccessful attempt to meet with Charles L. Jeffers, the
grocery employees commenced a strike which remained in
effect at the time of the hearing in the instant case.2
The complaint, as amended at the hearing, alleges that in
response to the union campaign and the employees' strike,
Respondent committed unfair labor practices in violation
of Section 8(a)(1) of the Act, which included interrogating
employees about their union activity and sentiment and
the union activity of fellow employees, creating the
impression that it was keeping its employees' union activity
under surveillance, offering , reinstatement to induce an
employee to abandon the strike, recruiting employees to
inform Respondent about the union activity and sentiment
of fellow employees, promulgating and applying a discrimi-
natory no-solicitation rule which prohibits union solicita-
tion, threatening to discharge an employee for engaging in
a lawful strike, and by recruiting and interviewing job
applicants between December 5 and 12.
It is also alleged that, on or about December 4, the
Union achieved majority status in an, appropriate unit of
Respondent's employees, and that thereafter Respondent
violated Section 8(a)(1) of the Act by refusing to recognize
and bargain collectively in good faith with the Union as
representative of that unit. To remedy the alleged viola-
tions of Section 8(a)(1) of the Act, the General Counsel
seeks a bargaining order. Finally, the complaint alleges
that the strike by the grocery employees "was caused and
has been prolonged by Respondent's unfair labor prac-
tices."
B. Alleged Interference, Restraint, and Coercion
1. Incidents involving Store Manager Moore
On October 3, Store Manager Moore spoke to grocery
department employees Karen Buck and Marck Miller
about the union 'meeting which was scheduled for the
following evening. In the first incident Moore called Buck
away from her cash, register and conducted her to the
store's produce section. There, he asked if she knew
requests for recognition and bargaining , and the strike are based on a
composite of the undisputed testimony of Union Organizers Marcaletti and
Ward, employees Nancy Bartlett , Karen J. Buck , Marck Miller, Jimmy
Retter, Pauley Forsyth, Patricia Dotson, and Christopher R. Hurst, and of
Manager Moore.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything about the meeting that was to be held the next
night. Buck'answered that she knew of the meeting but not
its location. Buck also asked Moore if he asked anyone, else
about the meeting.Moore said he had. Finally, when Buck
asked if Moore wanted her to learn where the union
meeting would be held, he replied, "No. I'll And out other
ways."
In the second incident, Moore approached employee
Marck Miller as Miller was working in the, store's dairy
aisle and inquired about the meeting. When Moore asked
Miller what he knew about the union meeting, the
employee said he knew nothing about it. At this, Moore
"just stood there looking at [Miller] for quite a while."
Miller protested that he "didn't know that much about it."
When Moore asked Miller if he would attend the union
meeting, Miller said he didn't know. Miller asked if "Mr.
Jeffers" (Charles Jeffers) knew, about the meeting and if the
employees would be fired. Moore replied that Jeffers knew
about the meeting, and that he, Moore, didn't know
whether the employees would be fired or not.3
I find that Moore's questions to Buck and Miller, in
which he sought information about the Union's December
4 meeting, carried the unmistakable message that Respon-
dent was interested in learning all it could about that event,
including its time ''and location. That message was
amplified by Moore's 'response to Buck's offer to provide
him with the meeting's location, i.e., "No. I'll find out other
ways." In short, I find that Moore's questions and remarks
strongly suggested Respondent's intent to keep the meeting
under surveillance to identify potential union supporters
among its employees. Accordingly, I further find that by
these coercive questions and remarks Respondent violated
Section 8(a)(1) of the Act. Murcole, Inc., 204 NLRB 228,
234 (1973).
On or' about December 9, Moore assisted President
Charles Jeffers in distributing to grocery employees the
following letter on a letterhead captioned "C and E Stores,
Inc.," and signed by Mr. Jeffers:
To: ALL GROCERY EMPLOYEES
We understand a union has called a meeting for the
purpose of deciding whether there will be a strike.
We think this is ridiculous.
The law provides a method to determine whether or
not there is a union. That is by a secret ballot election.
This company will not be blackmailed'into recogniz-
ing a union.
We believe the union should proceed under the law
and file a petition with the NLRB.
If there' is a strike a company may hire replacements.
If you are replaced you could lose your job.
3 Although he admitted conversing with the two employees on
December 3 about the impending union campaign; Moore denied
questioning employees Buck and Miller . I was not persuaded by his denials.
For, when pressed for details as to what he said to Buck, Moore testified
that he couldn't remember . Nor was his memory of much help in recalling
It seems silly to run that risk when there is an orderly
way to proceed.
The General Counsel urges that the letter's first sentence
showed Respondent 's awareness of a scheduled union
meeting and thus created the impression of surveillance of
its employees' union activity. While Moore testified that he
distributed the letter to grocery employees, Respondent
denies guilt of the alleged violation.
I find the evidence does not support the General
Counsel's contention. First, there is no evidence to show
that, at the time of the letter's distribution, the scheduled
union meeting had not become a matter of common
knowledge and conversation among the employees., Thus,
there is little support for the inference that the 'remark
about the meeting would lead the employees to believe that
Respondent had used some form of espionage to learn of
the meeting. Nor is there anything in the letter to suggest
an intent to maintain surveillance over the comtemplated
union meeting. I therefore reject the General Counsel's
contention that the quoted letter violated Section 8(a)(1) of
the Act. Inter-Polymer Industries Inc., 196 NLRB 729, 735
(1972), petition to review denied 480 F.2d 631 (C.A. 9,
1973).
On December 9, Moore issued the following reprimand
to grocery employee Christopher R. Hurst: -
It has come to our attention that you have been
soliciting union membership on company time. We
understand this is in violation of fair labor practice.
Please refrain from this activity on company time.
Signed: C. Jeffers
I find from Hurst's undisputed testimony that the issuance
of the reprimand followed the union organizers' visit to
Respondent's store that same day, during which Hurst
introduced them to Moore and Jeffers.
On cross-examination, Moore conceded that Respon-
dent issued the reprimand because he, Moore, had heard
that Hurst was soliciting for the Union. I also find from
employee Patricia Dotson's undisputed testimony that N.
Evelyn Jeffers, who is Charles Jeffers' wife and who
supervises Moore and the store, has on at least two
occasions distributed flyers to employees at the store on
company time. Moore also admitted that Mrs. Jeffers'
niece sold Girl Scout cookies to employees at the store
without interference from Respondent.
The complaint alleged, and the answer denied, that the
Respondent's no-solicitation rule violated Section 8(a)(1)
of the Act because it was promulgated and enforced to
suppress employee solicitations on behalf of the Union. I
fmd substantial record support for that allegation.
The Respondent's hostility toward the Union's organiz-
ing efforts was evidenced by its resort to conduct violative
of Section 8(a)(1) of the Act, as found elsewhere in this
decision. Against this background of union animus, the
his remarks to Miller. In contrast, Buck's and Miller's full and forthright
accounts persuaded me that the two employees were reliable witnesses.
Accordingly, I have based my findings as to these incidents on their
testimony.
C & E STORES 1325
timing of the reprimand's presentation to Hurst immediate-
ly after he had revealed his involvement with the Union,
and the limitation of the prohibition to solicitation for a
union strongly suggest that Respondent's purpose was to
suppress union activity among its employees. That Respon-
dent's concern was not the store's discipline is shown by
Mrs. Jeffers' indulgence in occasional solicitation among
her employees during company time on behalf of her
church. In sum, the evidence convinces me, and I fmd, that
this no-solicitation rule was part of Respondent's campaign
to eradicate union activity among its employees, and thus
violated Section 8(a)(1) of the Act. The Wm. H. Block
Company, 150 NLRB 341, 342-343 (1964).
I also find Respondent's no-solicitation rule unlawful on
the further ground that its language exceeded the bounds
permitted under the Act. Board law permits a retail store
operator to prohibit employee-solicitation on behalf of a
union in selling areas during both working and nonwork-
ing time. However, the Act does not permit a store
operator to prohibit such solicitations during nonworking
time, including lunch and coffee breaks, in nonselling
areas. Daylin Inc., Discount Division d/b/a Miller's Discount
Dept. Stores, 198 NLRB 281 (1972) enfd. 496 F.2d 484,
486-488 (C.A. 6, 1974). Here, Respondent's rule prohibited
employees from soliciting for the Union "on company
time," a term which "can easily be interpreted as . a
restricition on solicitation during breaktime ..." Florida
Steel Corporation, 215 NLRB No. 23 (1974). Further, by
not stating that its application was limited to selling areas,
the rule left the strong implication that it applied to
nonselling areas as well. Therefore, considering that there
is no record evidence showing that such a broad proscrip-
tion was necessary to maintain store discipline, I find this
rule unduly restrictive of employees' rights under Section 7
of the Act, and therefore violative of Section 8(a)(1) of the
Act for this additional reason.
In his testimony, Moore conceded that on December 5
and 6, after he and Charles Jeffers became aware of the
Union's campaign, Respondent placed help-wanted adver-
tisements in the "Messenger," a local newspaper. In each
instance the advertisement announced:
WE ARE TAKING APPLICATION IN ALI; DEPARTMENTS.
PREFER GROCERY STORE EXPERIENCE. SEE DAN MOORE AT
C & E CENTER ATHENS
I also find from Moore's testimony that as of December 5
the store had need for three more employees. However,
from December 5 until December 12; Moore admittedly
interviewed and took applications from approximately 100
job seekers in the grocery store, in full view of the
employees working there. During the approximately 6
months prior to December 5 and 6, Moore interviewed
approximately 25 grocery store job applicants. Between
December 12, 1974, and April 15, 1975, Moore interviewed
8 to 10 job applicants for the grocery store. Although the
record does not show where he conducted these interviews,
Moore testified that most of them occurred in the store's
produce department.
At the ' hearing, counsel for the General Counsel, over
Respondent's objection, amended the complaint to allege
that by placing the help-wanted advertisement and having
Moore interview and take applications from "the large
number of job applicants," in front of store employees,
Respondent impliedly 'threatened- its employees with
replacement if they supported the Union, and thereby
violated Section 8(a)(1) of the Act. Respondent contends
that this allegation should be stricken from the complaint
on the ground that it was untimely made to Respondent's
surprise so that Respondent could not adequately prepare
its defense. The Respondent also contends that even if the
amendment remains in the complaint the conduct com-
plained of did not violate the Act. In support of this
position, Respondent argues that the conduct complained
of was normal practice and would not have impressed the
employees as an implied threat.
I find no merit in Respondent's belated claims of
surprise and prejudice. At the hearing, Respondent did not
raise surprise or prejudice in opposition to this amend-
ment. Instead, counsel for Respondent opposed the
amendment solely on the ground that the alleged conduct
did not violate the Act. Thus, it appears Respondent
recognized that it was sufficiently informed to raise a
defense and waived any claim of surprise or prejudice.
In any event, I find no merit in Respondent's complaint.
Respondent through its own witness, Moore, provided all
of the testimony regarding the newly alleged violation.
Thus, Respondent plainly knew the evidentiary basis of the
allegations. Further, Respondent has not proffered any
additional evidence to rebut Moore's testimony or to
provide excuse for its conduct. Thus, there has been no
showing that Respondent would have benefited from an
adjournment. Accordingly, I reaffirm my previous ruling at
the hearing in which I granted General Counsel's motion
to amend the complaint.
I fmd, however, that the General Counsel has failed to
sustain his burden, of proving that the placing of the
advertisements and the subsequent interviews amounted to
an implied threat of reprisal against employees who
supported the Union. Specifically, the evidence fails to
establish that the placing of the two advertisements or the
interviewing were departures from Respondent's usual
recruiting procedures. Further, while the ratio of 100
applicants to three jobs appears unusual, there is no
showing that Respondent's effort to obtain them went
beyond the two want-ads. Thus, I -cannot find that
Respondent went out of its way to set up a parade of job
seekers.-Nor is there any showing that Respondent
engineered the flow of applicants. In these circumstances,
it appears unlikely that Respondent's grocery 'employees
would pay much attention to the advertisements or the
flow of job applicants in their midst. Nor were they likely
to view Respondent's recruiting activity as a threat where,
as here, there were no accompanying threats of discharge
or layoff because of the employee support for the Union's
organizing campaign. I shall therefore recommend dismiss-
al of the amendment to the complaint.
In the final alleged incident involving, the store's
manager, I fmd from employee Marck Miller's credited
testimony that on December 12, as Miller was leaving work
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to, join the impending strike, Moore asked him if he knew
he was fired and could be replaced .4 I find that, by his
rhetorical question, Moore restrained, coerced, and inter-
fered with Miller in the exercise of his right to join the
strike, and thereby violated Section 8(a)(1) of the Act.
Valley Oil Co., 210 NLRB 370 (1974).
2. Incidents involving President Charles Jeffers
On December 6, Charles Jeffers carried on separate
discussions with store employees Karen J. Buck, Marck
Miller, and Patricia Dotson .5 In the conversation with
Buck, Jeffers expressed disapproval of the union activity
among the store employees. He also asked Buck if she
feared losing her job. When she said, "Yes," he asked for
and- received her reasons. She said that other employees
had lost their jobs without knowing why. She added her
view that "the union would help secure my job." Jeffers
replied that production rather than a union would secure
herjob.
According to employee Miller, Jeffers said he didn't
think the employees needed a union, adding his observa-
tions that unions exploited employees for their money, did
nothing for them, and were made up of criminals. Without
specifying how, 'Jeffers complained that the employees had
"broken the law," and assured Miller that he had retained
counsel to oppose the Union.
In his conversation with employee Dotson, Jeffers
expressed suspicion of the Union's motives asserting that
money was its sole concern. He also complained that the
store was losing money. Jeffers also declared that his office
was open to the employees for discussions with him, and
that he thought their wages "could be settled other ways
besides the union."
It appears that these were the only conversations spread
upon the record m support of the complaint's allegation
that `Jeffers violated Section 8(a)(1) of the Act by
interrogating employees. However, as I find no interroga-
tion by Jeffers in any of these exchanges, this allegation
must fall for lack of 'proof. I shall therefore recommend
dismissal of this portion of the complaint.
On January 2, 1975, striking employee Marck Miller,
who was also picketing the store, handed his sign to
another, picket and approached Charles Jeffers on the
street . Miller asked Jeffers if he could have his job back.
Jeffers replied that he didn't need any help, but that if
Miller would abandon the picket line and if business
improved, he might call Miller. By thus imposing abandon-
ment of the picket line as the price of reinstatement,
Charles, Jeffers interfered with Miller's right to engage in
concerted activity and thereby violated Section 8(a)(1) of
the Act .6
3. ' Incidents involving Head Cashier Theresa
Turrill
General Counsel contends that, at all times material to
this case , Respondent 's head cashier , Theresa Tumll, has
been a supervisor within the meaning of Section 2(11) of
the Act, and that she engaged in conduct violative of
Section 8(a)(1) in December 1974. Respondent urges that
Turrill is not a supervisor and that, even if she be found a
supervisor, her conduct did not violate Section 8(a)(1) of
the Act.
As defined in Section 2(11) of the Act, the term
supervisor denotes:
Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, 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 merely routine or clerical in
nature, but, requires the use of independent judgment.
It is settled that this section is to be read in the disjunctive,
and that possession of any one of the enumerated powers
establishes supervisory status. Ohio Power Co. v. N.L.R.B.,
176 F.2d 385, 387 (C.A. 6, 1949), cert. denied 338 U.S. 899;
Great Central Insurance Company, 176 NLRB 474, 475
(1969).
Turrill, who has been in Respondent's employ for
approximately 8-1/2 years, "oversees the girls at the
[checkout I registers." She is responsible for the perfor-
mance of seven cashiers in the operation of the store's
checkout counters and their cash registers. ,When Turrill
observes that a cashier is idle during a slack period, she
assigns the employee to other tasks on her own initiative.
She also uses her judgment to recall cashiers from other
tasks to, the checkout counters to service customers. Turrill
has authority and uses her ownj,udgment to grant time off
to cashiers for illness or other reasons. Similarly, Turrill is
empowered to rearrange lunch schedules, taking into
consideration the flow of store business and the requesting
cashier's need.
Turrill's duties include maintaining discipline among the
cashiers. Whenever she sees a cashier engaged in idle talk
or not performing assigned work, she intervenes and
directs the employee to work. During three or four lunch
hours, each week, and at such other times when Mrs. Jeffers
and Manager Moore are both absent, Turrill is in charge of
the store.
The foregoing array of facts persuades me that Turrill's
authority and performance satisfy Section 2(11) of the Act.
I find Turrill has authority responsibly to direct at least
Respondent's seven cashiers in their work and that exercise
of that authority requires her to use independent judgment.
Accordingly, I find that, at all times material to this case,
Head Cashier Turrill has been ,,a supervisor within the
meaning of Section 2(11) of the Act.
The earliest alleged 8(a)(1) violation involving Turrill
occurred around mid-day on December 4. While lunching
with employee Patricia Dotson at a restaurant that day,
Turrill asked Dotson if she had "heard anything about a
union getting in." When Dotson said no, Turrill mentioned
4 Moore testified that he reminded Miller that he could be replaced 5 My findings regarding the three conversations are based on the three
However, Moore was not given an opportunity to deny that he told Miller employees' testimony.
that he was fired. As Miller impressed me as being more conscientious than 6 My findings as to this incident are 'based upon Miller's testimony,
Moore about reporting his full recollection, I have credited Miller's version. which is undemed by Mr. Jeffers.
C & E STORES 1327
rumors that employees Bartlett and Irvin were assisting the
Union. Dotson denied knowledge regarding the rumors. At
this, Turrill instructed her to "look around and see what
[she] could find out from the other employees." I find this
attempt to use Dotson as an investigator to seek out and
inform Respondent of the union activity and sentiment of
the grocery employees violated Section 8(a)(1) of the Act.7
After lunch, on December 4, Dotson returned to the
store and questioned employees including Marck Miller
about the Union's campaign. Miller told her about the
union meeting scheduled for that evening , including its
location . Dotson immediately reported her findings to
Turrill. Later that same afternoon, as Marck Miller was
leaving the store, Tumll told him: "Use your head. Don't
go to the meeting tonight."
I find, as alleged, that Turrill's admonition to employee
Miller regarding the very same union meeting about which
Dotson had questioned him earlier in the afternoon, was
violative of the Act. For in this context, Turrill's remark to
Miller was likely tb leave Miller with the thought that
Respondent had learned of his intention through informa-
tion provided by its informer, Dotson. Thus was Turrill's
remark likely to create the impression that Respondent was
maintaining surveillance over its employees' union activity.
I therefore find that Turrill's admonition violated Section
8(a)(1) of the Act.
I also find from Dotson's undisputed testimony that, on
December 5, Turrill again violated Section 8(a)(1) of the
Act by instructing Dotson "to listen around with the other
employees to see what they had to say and who all was
doing the talking down their aisles." For here, Turrill was
prevailing upon employee Dotson to act as, an informer
regarding the union sentiment of fellow employees.
The complaint also alleges that, on or about December
10, Turrill again requested Dotson to attend a union
meeting as Respondent's observer. However, I find from
Dotson's credited and undisputed testimony that Turrill
told Dotson not to attend the meeting , because she feared
for Dotson's safety. Accordingly, as the alleged request has
not been established, I shall recommend dismissal of this
allegation.
4. Incidents involving Vice President N. Evelyn
Jeffers
As found above, on the afternoon of December 4, when
employee Patricia Dotson had learned of the union
meeting scheduled for that evening, she reported her
7 My findings regarding this violation are based on Dotson 's undemed
testimony
8 Evelyn Jeffers denies that she asked Dotson to monitor union activity
and report to her . However , her denial does not withstand scrutiny In her
testimony, Mrs. Jeffers admitted being awakened and receiving Dotson's
call at or about 12 30 a in on December 5 without voicing any complaint to
Dotson Considering the late hour, it seems unlikely that an employee would
make such a late night phone call to a high level supervisor 's home without
some kind of prearrangement with the supervisor I also note that Mrs
Jeffers testified that she did not complain about being disturbed by the call
This omission also suggests the possibility that the call was not a surprise I
also note, a substantial inconsistency between Mrs Jeffers' testimony that
she "didn't care" and "didn't want to know" who attended the December 4
union meeting, and her testimony showing rapt attention followed by
dissemination of Dotson's information first to President Jeffers as soon as
she hung the phone up, and then to Manager Moore later that same
discovery to Head Cashier Turrill. I find from Dotson's
uncontradicted testimony that, along with her report,
Dotson remarked: "I don't know whether to go to the
meeting or not." Turrill replied: "Well, wait and I'll find
out from Evelyn." Turrill's reference was to Respondent's
vice president, N. Evelyn Jeffers, President Jeffers' wife,
who also supervised Respondent's store.
Soon after Turrill's exchange with Dotson, Evelyn Jeffers
appeared at Dotson's register, led Dotson some distance
down an aisle, and then instructed her to "go to the
meeting and to see who all was there and what was said."
Mrs. Jeffers also instructed Dotson to telephone her right
after the meeting. Dotson attended the union meeting on
the evening of December 4, and, upon returning home at
about midnight, telephoned Mrs. Jeffers. In the ensuing
conversation, Evelyn Jeffers "just wanted to know who all
was there." Dotson completed her report in about 15
minutes.8 I find that Vice President Jeffers violated Section
8(a)(1) of the Act, first by asking her to attend the 'union
meeting for the purpose of providing Respondent with the
names of the employees present, and then by asking
Dotson to identify the employees who had attended .9
C. The Alleged Refusal To Bargain and the Strike
The General Counsel claims that the Respondent's
refusal to recognize and bargain with the Umon on and
after December 9, 1974, was violative of Section 8(a)(1) of
the Act and that the Respondent's other misconduct
warranted issuance of a bargaining order. I conclude that
Respondent's unfair labor practices are not so coercive as
to preclude the holding of a fair reliable election following
application of traditional remedies. In so concluding, I
have taken into consideration the absence of any unlawful
discrimination and the fact that there was but one threat of
discharge which was directed at a single striker. Nor were
there any threats of layoff or store closure. I also note that
only 4 of the 16 employees in the unit sought by the Union
were directly affected by Respondent's unfair labor
practices. As I have concluded-that the, facts in this case do
not warrant the issuance- of a bargaining order, I need not
resolve questions related to the Union's majority status as
of the date it sought recognition.10 Further, I shall
recommend dismissal of the allegation that Respondent's
refusal to recognize and bargain with the Union violated
the Act. The May Department Stores Company, d/b/a The
M. O'Neil Company, 211 NLRB 150 (1974).
morning In light of these infirmities , and my impression of Dotson as a
more candid witness, I have rejected Mrs. Jeffers ' denial.
9. Par 5(b)(m). of the complaint alleged that on December 7, Vice
President Jeffers violated the Act by "interrogating an employee about the
activities of employees on behalf of the Union " As I find no evidence to
support that allegation, I shall recommend its dismissal.
is The unit sought by the Union consists of Respondent 's 16 grocery
department employees excluding the 3 meat department employees There is
no bargaining history The record shows that the grocery department and
meat department , respectively , are functionally and physically distinct and
that the meat department' s operations are largely directed by Kenneth
Smith , a butcher. I also note that both perform the traditional functions of
similar departments in retail food stores In sum , the unit sought by the
Union is one which the Board has found to be appropriate Mock Road
Super Duper, Inc, 156 NLRB 983, 984-986 (1966).
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Strike
On the evening of December 11, Respondent's grocery
employees met and voted to strike. Prior to the vote, the
Union's organizer, Marcaletti, discussed reasons for which
the employees might strike. According to the credited
testimony of employees Patricia Dotson and Christopher
Hurst, Marcaletti advised against a strike unless the
employees could base it upon unfair labor practices. At
this, the employees reported incidents which they believed
were unfair labor practices. According to Hurst's testimo-
ny, Marcaletti spoke in terms of threats and promises.
Dotson testified only that the employees "decided that
there were unfair labor practices." Marcaletti testified
credibly that "people had indicated to me that there was a
lot, in my opinion, of interference with their rights under
Section 7 of the Act." However, nowhere in their testimony
do Marcaletti or the employees specify the incidents which
provoked the strike which began on December 12. Thus,
the record does not permit me to find that the employees,
in voting to strike, considered any of the unfair labor
practices found to have occurred prior to December 11.
Nor is the record adequate to sustain a finding that those
unfair labor practices occurring after December 11
prolonged the strike. There is no showing that the striking
employees knew of the threat made to employee Hurst on
December 12, or of the inducement directed at striking
employee Miller on January 2, 1975, or that the employees
continued to strike because of these violations. According-
ly, I do not find that Respondent's unlawful conduct either
caused the strike or converted it into an unfair labor
practice strike. Baldwin County Electric Membership Corpo-
ration, 145 NLRB 1316, 1318 (1964).
CONCLUSIONS OF LAW
1. By unlawfully interfering with, restraining, and
coercing employees, as found herein, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend a cease and desist order
to effectuate the policies of the Act.
11 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.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
iORDER"
Respondent C & E Stores, Inc., C & E Supervalue
Division, Athens, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Creating the impression that the union activities of
Respondent's employees are under surveillance.
(b) Promulgating or enforcing an unlawful no-solicita-
tion rule.
(c) Reprimanding or giving warning letters for violation
of an unlawful no-solicitation rule.
(d) Telling striking employees that they have been
discharged because of their participation in a strike.
(e) Offering reinstatement to striking employees condi-
tioned upon their abandonment of a strike.
(f) Asking employees to observe, and report to Respon-
dent, the umon activity or union sentiment of fellow
employees.
(g) Interrogating employees regarding the union activity
or union sentiment of fellow employees.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its Athens, Ohio, grocery store, copies of the
attached notice marked "Appendix." 12 Copies of the said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed in
all other respects.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."