C & E Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1977

229 N.L.R.B. 1250 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & E Stores, Inc., C & E Supervalue Division and
Retail Clerks Union, Local No. 1059 Retail Clerks
International Association, AFL-CIO. Cases 9-
CA-9364, -1, -2, and -3
June 6, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On November 18, 1976, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the Charging Party filed
limited cross-exceptions and a supporting brief, and
Respondent filed an answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order as modified
herein.
We agree with the Administrative Law Judge's
finding that Respondent has violated Section 8(a)(1),
(3), and (4) of the Act in the several respects related
by him' and that a bargaining order is necessary to
remedy these unfair labor practices. The Charging
Party, however, citing Trading Port, 2 has excepted to
the Administrative Law Judge's failure to backdate
the bargaining order to December 3, 1974, when, as
found in a prior case involving these parties,3
Respondent first embarked on a course of unlawful
conduct aimed at destroying the Union's majority.
For the reasons set forth below we reject the
Charging Party's contention to the extent that it
would attach Respondent's bargaining obligation as
of December 3, 1974. However, we shall order
Respondent to recognize the Union and presently
bargain with it, upon request, concerning any term
i In addition to the conduct found herein to violate the Act, the
complaint also alleged, and the Charging Party excepted to the Administra-
tive Law Judge's failure to find, that Respondent violated Sec. 8(aXl) by
certain remarks of its president, Charles Jeffers. Speaking to various
customers. Jeffers mocked and derided the Union and the employees' recent
strike activity, while he was bagging groceries at employee Dotson's cash
register on May 9, 1975. Unlike her colleagues, who adopt the Administra-
tive Law Judge's finding (see his fn. 10) that this conduct did not rise to the
level of interference, restraint, or coercion in violation of Sec. 8(a(1),
Member Murphy would find the violation as alleged. She notes that, as
found herein. Respondent engaged in widespread unfair labor practices and
harassed, suspended, and finally discharged Dotson because of Dotson's
union activity. In light of the vehemence of Respondent's antiunion
campaign and its misconduct as to Dotson, Member Murphy cannot agree
that Jeffers' remarks were merely innocent jokes or that Dotson would fail
to perceive the union animus Jeffers was displaying in her presence.
229 NLRB No. 179
and condition of employment, or change thereof, as
to which it would have been required to bargain had
the Union become the bargaining representative on
May 10, 1975, the date Respondent commenced its
campaign of unfair labor practices herein.
The prior case covered events in a brief period,
from December 3, 1974, when Respondent commit-
ted its first unfair labor practice, until December 12,
1974, when Respondent's employees commenced a
strike. In that case, the Board found that Respon-
dent, in response to its employees' union activities,
variously restrained and coerced said employees in
violation of Section 8(a)(l), but that these violations
were not sufficient to warrant a bargaining order.
The Board further found that the employees'
subsequent strike was an unfair labor practice strike.
The events in the instant case began after the
striking employees returned to work in early May
1975 and continued until early June 1975. Here, the
Administrative Law Judge found, and we agree, that
commencing May 10, 1975, Respondent harassed
employees in violation of Section 8(a)(1), failed
properly to reinstate returning unfair labor practice
strikers, scheduled employees to inconvenient and
onerous hours of employment in violation of Section
8(a)(3) and (1), and discriminatorily suspended and
discharged employees in violation of Section 8(a)(3)
and (4) of the Act.
If fully accepted, the Charging Party's contention
would require us, in effect, to modify our Decision
and Order in the prior case. We consider such action
to be unnecessary and unwarranted. The prior case
was decided on its own facts. We have before us now
a new set of facts. And although we certainly may
notice the prior case as background, it is clear that,
even without the unfair labor practices committed
there, Respondent's misconduct here is sufficiently
pervasive to require a bargaining order, as we have
found. Accordingly, since Respondent's course of
unlawful conduct in the instant case began on May
10, 1975, we conclude that Respondent should be
required to recognize and, upon request, bargain
with the Union as of that date.4
2 Trading Port, Inc., 219 NLRB 298 (1975).
3 C & E Stores, IMc., C & E Supervalue Division, 221 NLRB 1321 (1975).
As a Board majority recently made clear in Beasley Energy, Inc., 228
NLRB 93 (1977), the purpose of giving retroactive effect to bargaining
orders is to remedy unfair labor practices that might otherwise go
unremedied and to restore the situation, to the extent feasible, to the state
that would have existed had the employer refrained from its unlawful course
of conduct. Furthermore, the Board in Beasley held that the existence of a
bargaining demand is not "determinative as to the nature and extent of the
remedial bargaining order which should be granted." We agree with the
Administrative Law Judge that the single-store unit composed of employees
in the grocery department is an appropriate unit for purposes of collective
bargaining. While Respondent attacks the Union's majority status within
the multistore unit which it contends is the only appropriate one. it has
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C & E STORES, INC.
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 and
hereby orders that the Respondent, 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.
CHAIRMAN FANNING, concurring:
It is now clear that it would have been better to
consolidate this case with the prior one. But that was
not done, and, in the circumstances that face us here,
I believe that an adequate remedy is afforded by
simple affirmance of the Administrative Law Judge's
recommended Order.
introduced insufficient evidence to overcome the presumption that the
single store is appropriate. Nor has Respondent contested the Administra-
tive Law Judge's finding that the Union had valid authorization cards from
a majority of the employees within the unit found appropriate.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
matter was heard in Athens, Ohio, on July 7 and 8, 1976,
pursuant to a complaint issued on July 18, 1975, and
amended on October 3, 1975, April 23, 1976, and at the
hearing herein. The charges were filed on May 19 and June
2, 9, and 19, 1975. The complaint, as amended, alleges that
C & E Stores, Inc., C & E Supervalue Division, herein
Respondent, violated Section 8(a)(l), (3), and (4) of the Act
and seeks a bargaining order remedy. Respondent filed
timely answers to the complaint and its amendments.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of the
parties, I hereby make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS
OF LAW
Respondent is an Ohio corporation engaged in the
operation of a grocery store at Athens, Ohio. Jurisdiction is
not in issue; Respondent admitted that it met the Board's
standards for the assertion of jurisdiction over retail
enterprises. I find and conclude that Respondent, at all
times material herein, has been an employer engaged in
commerce and in operations affecting commerce as
defined in Section 2(2), (6), and (7) of the Act.
I find and conclude that the Union is a labor organiza-
tion as defined in Section 2(5) of the Act.
The authenticity of these cards was not disputed.
2 Respondent has admitted or stipulated to the supervisory status of each
of these individuals.
II. BACKGROUND - UNION ACTIVITY, THE STRIKE,
AND THE PRIOR CASE
On December 4, 1974, the Union began an organizing
campaign among Respondent's grocery employees. Union
authorization cards were obtained from 12 such employ-
ees.' On December 9, Union Representatives Marcaletti
and Ward, together with a representative of the Meat
Cutters' Union, appeared at the store, spoke with Store
Manager Danny Moore and Respondent's president,
Charles Jeffers, claimed majority status, and requested
recognition and bargaining. Respondent rejected the
request and directed the union representatives to leave the
store.
On December 12, 1974, Respondent's grocery employees
commenced a strike which lasted until early May 1975. On
April 14 and 15, 1975, prior to the end of that strike, a
hearing was held before Administrative Law Judge Leon-
ard M. Wagman, upon a complaint alleging that Respon-
dent had violated Section 8(aXl) of the Act. Employees
Patricia Dotson, Nancy Bartlett, Karen Buck, Marck
Miller, Jimmy Rutter, Pauley Forsyth, and Christopher
Hurst testified for General Counsel in that proceeding.
Administrative Law Judge Wagman's decision issued on
September 19, 1975, and was adopted, as modified, by the
Board's Order of January 2, 1976 (221 NLRB 1321).
(Official notice of that Decision and Order has been taken
by me.) In that Decision and Order, the Board concluded
that Respondent, by acts committed by Charles Jeffers, its
president, Evelyn Jeffers, its vice president, Danny Moore,
the store manager, and Theresa Turrill, the head cashier,2
violated Section 8(aX)() by: creating the impression of
surveillance of union activities, interrogating employees
regarding the union activity or sentiments of their fellow
employees or of their knowledge of union meetings, asking
employees to observe and report on the union activity or
sentiment of their fellow employees, promulgating or
enforcing an unlawful no-solicitation rule, and telling
employees that they have been discharged because of their
participation in a strike. The Board further found that the
strike which commenced on December 12, 1974, was an
unfair labor practice strike. Respondent's unfair labor
practices, however, were not deemed so coercive as to
preclude the holding of a fair and reliable election
following application of traditional remedies and a bar-
gaining order remedy was not deemed warranted in that
case. No election petition has been filed in this matter.
In early May 1975, prior to the Administrative Law
Judge's Decision in the earlier case, the employees made
application to return to work. Each was called in for an
individual interview and present at these interviews were
Mr. and Mrs. Jeffers, other members of the Jeffers family
who occupied positions in the corporate structure, and
Moore. All the interviews were essentially the same: each
employee was asked if he or she would permit the interview
to be recorded (some agreed, some did not), each was told
that the purpose of the interview was to determine who
would be reinstated, and each was asked whether he or she
could work with the nonstriking employees. All were told
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, if reinstated, they would share hours equally with all
other employees in their classification, that there would be
no discrimination between strikers and nonstrikers, and
that, if reinstated, they would receive the raise given to the
nonstriking employees. Nonstriking employees were not
required to undergo similar interviews. All striking employ-
ees who were interviewed were reinstated.
After their reinstatement at least some of the employees
were taken aside, individually, by the store manager, and
told that he did not want any trouble from them, or
anyone.
Name
Patricia Dotaon
Norman Cain
Nancy Bartlett
Karen Buck
Pauley Forsyth
Merck Miller
Christopher liurst
James Putter
Prestrike Poststrike
Classification vkly. hra. vkly. hrs.
by BRep. (approx.) (assigned)
Full-time cash
Full-time cash
Part-time cash 4/
Part-time cash
Part-time cash
Dairy HManager
Stock
Sacker 5/
32-40
40
25-30
20-25
20
40
19-25
25
18
20
3
3
3
19
4
20
III. THE UNFAIR LABOR PRACTICES
A. Reinstatement of the Unfair Labor Practice
Strikers
At the same time, Respondent was retaining (at least
briefly) the following named persons who had been hired
during the strike:
As previously noted, the Board found that the strike,
which began on December 12, 1974, was an unfair labor
practice strike from its inception. Therefore, upon their
unconditional application, Respondent was obligated to
reinstate "all its employees who participated in said strike
to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without impair-
ment of their seniority and other rights and privileges,
dismissing, if necessary, any persons hired as replacements
on and after" the date the strike began. Larand Leisurelies,
Inc., 213 NLRB 197, 198 (1974); Mastro Plastics Corp., v.
N.LR.B., 350 U.S. 270, 278 (1956). The complaint, as
amended at the hearing, alleged that Respondent violated
Section 8(a)(3) by recalling the strikers to work with
substantially reduced hours, less desirable work schedules,
and, in the case of Marck Miller, to a different job at a
lower rate of pay than that to which he would have been
entitled. It further alleged that following their reinstate-
ment, Nancy Bartlett, Pauley Forsyth, and Christopher
Hurst were discriminatorily laid off.
When the strikers returned to work, Respondent appor-
tioned what it deemed to be the available hours of work3
between the returning strikers, those who did not go out on
strike and those who were hired or transferred into the
store as replacements during the strike. Thus, the returning
strikers were assigned substantially less hours upon their
return than they had worked prior to the strike, as shown
by the following table:
I Resp. Exh. 3, a summary of its sales by 4-week periods from the
beginning of the strike until approximately 13 weeks after the strike ended,
as compared with similar periods for the prior year, reflects that for the
period of the strike grocery sales were off by approximately 46 percent; in
the three periods following the strike, sales were down between 14 and 18
percent. This would seem tojustify some reduction in hours available.
4 In November 1974, Moore had asked Bartlett whether she wanted to
work full time. She said that she did and received some increase in her
hours. The record, Resp. Exh. 4, does not indicate that she ever achieved
over 32 hours per week, considered full time, before the strike. Mr. Jeffers
refused her request for full-time status when she requested it at her
reinstatement interview.
5 Respondent drew a distinction between stockers (those who put
merchandise on the shelves) and sackers (those who pack and carry grocery
bags for customers). The record, however, reflects that employees assigned
Name
Helena Weekly /
Lolly Lamp
Keith Noble
Eric Brooks
Hichael Brovn
Don Hutton
Classification
tull-time cash
Part-time cash
Stock-sacker
Stock-sacker
Stock-sacker
Dairy manager
Hired or trans.
to unit
12/16/74
12/16/74 (laid
off 5/14/75)
1/75 (laid off
in May)
4/22/75
4/25/75
12/16/75 7/
Marck Miller was reinstated, not in his former position
as dairy manager at $2.85 per hour, but as a full-time stock
clerk at $2.50 per hour. Prior to the strike, Miller had
worked 10 a.m. to 7 p.m. on Mondays, Tuesdays,
Thursdays, and Fridays, and 8 a.m. to noon on Wednes-
days and Saturdays. Upon his reinstatement, and until he
twice complained to Moore and caused an unfair labor
practice charge to be filed in regard thereto, he was
assigned to work from 1:30 p.m. to 11:30 p.m. and 7:30
a.m. to 12:30 p.m. on alternate days, 5 days per week. With
commuting and meal times considered, this left him
approximately 5-1/2 hours to sleep on those nights
preceding his 7:30 a.m. to 12:30 p.m. shifts. Contrary to
Respondent's assertions, the timecards of employee Steve
Nihiser show no comparable assignments.
As noted, upon their reinstatement, part-time cashiers
Buck, Forsyth, and Bartlett were assigned to work 3 hours,
I day per week. The days were to be rotated so that, for
to either category did both jobs. Thus, the titles appear to designate a
distinction without a difference and, for the purpose of determining
entitlement to reinstatement, I would, as urged by General Counsel, lump
stockers and sackers into a single category.
6 Weekly was not a new hire. According to the mutually corroborative
and credibly offered testimony of Dotson and Cain, prior to the strike
Weekly had worked part of her time as a cashier and part in other
departments, particularly produce.
I While Resp. Exh. 8 purports to show Hutton was hired on December 7,
1974, at a rate of $2.85 per hour, Marck Miller testified that Hutton was not
employed prior to the strike. His testimony in this regard is corroborated by
Resp. Exh. 7, a list of grocery employees on the payroll for the period ending
December 14, 1974. Hutton's name does not appear on that exhibit. Hutton
was not called as a witness. Based on the foregoing, I conclude that Hutton
was hired during the strike as a replacement for Miller.
1252
C & E STORES, INC.
example, an employee working Monday of one week would
work on Tuesday of the following week. Christopher Hurst
was assigned 4 hours per week on reinstatement. His 4
hours were to be worked 2 days per week, 2 hours per day.
Hurst had to commute about 9 miles each way in order to
perform his twice weekly 2-hour stint.
It is clear from the foregoing that Respondent's failure to
discharge strike replacements in order to reinstate the
unfair labor practice strikers to their former or substantial-
ly equivalent positions caused these returning strikers to
suffer a dimunition in their working hours and earnings, at
least for the first few weeks following the end of the strike.
It further caused Marck Miller to be reinstated to a
different job at a lower rate of pay than that to which he
was entitled. By this conduct, Respondent has violated
Section 8(aX3) of the Act.
I further find that by assigning Miller, Buck, Forsyth,
Bartlett, and Hurst hours of employment which were
onerous and burdensome, Respondent was engaging in
retaliation for the employees' protected union activities,
conduct inherently destructive of their Section 7 rights. In
so concluding, I note the absence of any explanation for
the assignment of such burdensome working hours. I also
note Respondent's union animus, as demonstrated by its
unlawful conduct in the prior case and by the other acts of
unlawful discrimination found herein and discussed, infra. s
Indeed, in brief, Respondent admitted to a "ready excuse
for retaliation" against Miller: on the picket line Miller was
heard to call Mr. Jeffers a "bald headed son of a bitch." I
find that the working hours assigned to Miller was such
retaliation for this and other picket line activities.9 Since
his reinstatement, Miller has received raises and promo-
tions, becoming produce manager about 3 weeks prior to
the hearing. The subsequent even-handed treatment of
Miller, treatment to which he was entitled immediately
upon reinstatement, including promoting him to the level
equivalent to that which he possessed before the strike, is
no evidence of an absence of discriminatory motive toward
him as of the date of his reinstatement.
Following his "reinstatement," Christopher Hurst
worked for 2 weeks, a total of 8 hours, and was laid off on
May 15. At the same time, strike replacements Eric Brooks
and Michael Brown were retained in equivalent positions.
Thereafter, Respondent hired at least three employees in
the sacker-stocker category: Maurice Hart, July 29, 1975;
Richard Arnold, September 11, 1975; and Tim Seiferth,
January 29, 1976. Hurst was not recalled.
After working only two shifts, a total of 6 hours, Pauley
Forsyth and Nancy Bartlett were laid off on May 13 and
16, respectively. Lolly Lamp and Christie Schloss, strike
replacements hired as part-time cashiers, were also laid off
about this same time. The layoffs, Respondent claimed,
were economically motivated. Shortly thereafter (the
record reflects no date and her name was not shown on
Resp. Exh. 8), Shirley White (a former employee) was hired
to work as a vacation relief cashier. On November 10, 1975,
8 At one point following the end of the strike, the store opening time was
changed from 7:30 a.m. to 8 a.m. Miller was not informed and asked Moore
why he was not. Moore told him, "because we didn't give him any notice
when we went on strike." Miller's credible testimony of this matter was not
disputed. This statement, while not independently violative of Sec. 8(aX1), is
further evidence of Respondent's continuous animus toward the strikers.
Connie Graves was hired as a full-time cashier. Neither
Bartlett (who had been asked and agreed to work full time
prior to the strike) nor Forsyth was recalled for either
cashier position.
The record also reflects that Respondent hired two
"associate managers" on June 9, 1975. This was allegedly a
position wherein the occupants would start to learn
managerial functions and from which, if they were actually
put in a training program for management, they would
become assistant managers. Respondent had not had an
associated manager in the grocery store since November
1974. The associate managers performed many functions in
the store, including sacking, stocking, and running the cash
registers. Neither of these associate managers, both of
whom were students, ever moved up to the assistant
manager level. With the resumption of school, both were
unable to work full time. One ceased to be an associate
manager in September 1975 when he transferred to another
store; the other continued to carry that same title at least
until the date of this hearing.
Based on the foregoing, I conclude that Hurst, Bartlett,
and Forsyth were discriminatorily laid off shortly after
their brief reinstatements. As to Hurst, Respondent's
retention of Brooks and Brown on the basis that by
working during the strike they accumulated greater
seniority than Hurst, as testified to by Joy Jones, Respon-
dent's treasurer, effectively denied Hurst the reinstatement
"without impairment of [his] seniority" to which he was
entitled as an unfair labor practice striker, and was
inherently destructive of his right to engage in such a strike.
Similarly, the retention of Weekly as a full-time cashier, a
position which could have been filled by Bartlett or by
Bartlett and Forsyth in combination, denied the latter
employees their lawful reinstatement rights. Additionally,
the hiring of new employees, including the associate
managers who were but multipurpose employees never
really in the chain of managerial authority, while former
strikers who were available to fill these positions were on
layoff status, belies Respondent's economic defense and
evidences its unlawful discriminatory motivation. Indeed,
to deem Hurst, Bartlett, and Forsyth's momentary return
to work to be the reinstatement required by the Act is to
elevate form over substance. In practical effect, they were
never reinstated. As unreinstated unfair labor practice
strikers, they would have been entitled to placement "on a
preferential hiring list . . . thereafter . . . [to be] offered
reinstatement as positions become available and before
other persons are hired for such work." Larand Leisurelies,
supra. The brief periods for which they were reinstated,
unlawful as improper and insufficient reinstatements in
themselves, cannot be used to deny these employees the
greater rights they would have enjoyed had they not been
reinstated at all.
9 Miller did not deny that he may have said this in the course of the
mutual name-calling across the picket line. Even assuming, arguendo, that
such name-calling would justify discharge of a stnker. it would not justify
lesser retaliation and Respondent has here condoned it by Miller's
reinstatement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Patricia Dotson
On May 9, following her interview with the officers and
supervisors of Respondent, Patricia Dotson was reinstated
as a full-time cashier. According to Store Manager Moore,
Charles Jeffers did not want to reinstate Dotson because of
statements allegedly made by Dotson during the strike
(discussed infra) and reinstated her only reluctantly. On her
return, Moore took her aside, told her that he did not know
why the employees had come back, and that if it was for
trouble, he would not tolerate it. She assured him that she
came back not to make trouble but to work. He told her
that there had been some changes since the strike began;
among them, that the employees were to wear name tags at
all times and would be sent home for the day if they
appeared without one. He assigned her to run register 2 on
the day shift and register 3 on the afternoon shift. Register
1 was for part-time employees and she was directed not to
change registers at any time.
While Dotson was working that evening, Mr. Jeffers
came over and bagged groceries at her register. Several
times, when conversations on the subject were initiated by
customers, Mr. Jeffers made remarks about the strike and
the picketing employees.' 0
On Dotson's second day back, May 13 or 14, she and
Marck Miller noticed an employee whom they did not
know working without his name tag. She asked his name
and learned that he was Keith Noble (a strike replace-
ment). He did not reply when she asked Noble where his
name tag was. She then went to Theresa Turrill, who was in
charge of the store in Moore's absence, and asked Turrill
whether all employees weren't supposed to be wearing tags.
She told Turrill that Noble was not wearing his. Turrill said
she would speak to Moore.
As Dotson went to clock out on that same day, Moore
called from his office that he wanted to talk to her. As she
walked to the door, she heard Moore ask Evelyn Jeffers,
"How many days do you want me to give her?" Mrs.
Jeffers replied, "Four." Moore then took Dotson aside,
wrote out a formal "Employee Warning Record,"" and
told her that he was giving her 4 days off for harassing a
nonpicketing employee. The warning indicated that it was
for "conduct, disobedience," and related:
Miss Dotson was harassing employees who did not
strike about name tags, not once but repeatedly. This is
viewed an attempt to cause trouble. It is not her duty.
Kieth [sic] Noble.
Dotson wrote out her version of the incident, as set forth
above, and reiterated that Moore had said that they could
not work without name tags. However, she refused to sign
the warning. Moore's additional notations acknowledge
that Noble was, in fact, working without a name tag.
Dotson's testimony in regard to the foregoing was credibly
10 His remarks, to the effect that the picketers were back because the
Union had gotten all it could from them, that he had brought them in to
save them from sun stroke, and that he was bagging because he learned that
the bag boys were making more money than he was, were alleged to be
derisive, mocking remarks in violation of Sec. 8(aX( ). I fail to see how such
remarks rise to the level of interference, restraint, or coercion, and shall
recommend that this allegation be dismissed.
1" Moore admitted that the use of these formal warnings was newly
offered, is corroborated by that of Marck Miller, and was
not contradicted by any of Respondent's witnesses.
Dotson's next workday was on the morning of May 21 or
22. As she began to sign in on register 2, Evelyn Jeffers told
her that she did not want Dotson on that register. Dotson
said that Moore had directed her to use register 2 and not
to change registers. At this, Mrs. Jeffers began screaming at
Dotson that she was just there to make trouble and that she
would not have it. She swung her fist at Dotson. Dotson
ducked and denied that she was making trouble. Dotson
then began to sign in on register 3 and was ordered back to
register 2, by Mrs. Jeffers. Dotson's credible testimony was
not contradicted.
Later on the same day, Dotson asked Turrill for the price
of a live plant. She rang it up at 60 cents as instructed by
Turrill. Turrill subsequently learned that the correct price
was $1 and told Mrs. Jeffers that she had given Dotson a
price of 60 cents on the item. Mrs. Jeffers did not berate
Turrill for her mistake; rather, she reprimanded Dotson.
Dotson said that she had received the price from Turrill
and suggested that price stickers be put on the plants.
Jeffers said that the stickers would not hold and Dotson
suggested using a marking pen. Mrs. Jeffers became upset
that Dotson would make suggestions to her ("Well, I
thought I was working for her") and said, "Why don't I just
sell the store to you and let you run it to suit yourself."
Dotson, herself mad at this point, replied, "Well, maybe
that wouldn't be a bad idea." Jeffers claimed, and Dotson
denied, that she had earlier shown Dotson the prices on the
plants. I believe Dotson, noting particularly that Jeffers
admitted to such a degree of animus toward Dotson that
she avoided Dotson whenever she could.' 2 It was thus
unlikely that she would have taken Dotson aside for the
purpose of showing her the prices on plants. Moreover,
Dotson's mistake on the price was based on good-faith
reliance on information from her supervisor, Turrill.
At some point on that day, Dotson asked Don Hutton
whether he would like to sign a card for the Union. Hutton
did not pause in his work. He said, "No" and she walked
on. As it appeared to her that Turrill had heard her
question to Hutton, she also asked Turrill if she wanted to
join the Union. The record contains no evidence of the
existence of any no-solicitation rule. In the prior case,
Respondent was found to have promulgated and enforced
an invalid no-solicitation rule.
Respondent required its cashiers to get approval of some,
but not all, checks presented by customers. The cashiers
could accept checks from customers they knew, written for
amounts equal to the purchase. On occasion, Respondent
had required cashiers to contact customers from whom
they had accepted a bad check. On her return to work,
Dotson sought managerial approval on more checks than
she had before the strike, inasmuch as there were new
customers whom she did not know. She also admitted
instituted since the strike, and, as admitted by Mrs. Jeffers, it was done
because, after the strike, Respondent "thought we had to have proof."
12 Evelyn Jeffers' animus is allegedly derived from remarks attributed to
Dotson, made during the strike from the picket line, which intimated that
Dotson and Charles Jeffers had an illicit relationship. Dotson denied
making any such remarks and testified that she had told some employees
that Charles Jeffers had repeatedly made improper advances and overtures
toward her. Charles Jeffers was not called as a witness.
1254
C & E STORES, INC.
calling upon the sacker-stockers or managers for prices on
items which were unmarked as there had been many price
changes in 5 months and the cashiers were not supposed to
ring up prices from memory. She denied that she requested
either prices or check authorizations an inordinate number
of times or as a matter of harassing management. She was
not warned, orally, at any time while working that she was
seeking assistance too often or about her attitude or
courtesy toward customers.
However, when Dotson went to clock out, her timecard
was missing. Turrill directed her to Moore, who reprimand-
ed her for excessively seeking assistance on checks and
prices. He then gave her a second written warning, for
"Conduct," "Attitude," and "Soliciting union membership
while on Company time." Under remarks, the warning
stated:
Miss Dotson is not performing her duty as cashier by
not approving customer cks whom she knows. Her
attitude toward customers is poor in that she answers
very short and sharp failing to explain. She is also
interfering with the store operation by soliciting union
memberhip, support and info. From employees while
they are performing their duty.
No other action was taken against Dotson at this time. She
refused to sign the warning.
Dotson next worked on May 24. She had been instructed
by Moore to call on the bag boys if she needed prices and
when she had occasion to do so, she was told by Mr. Jeffers
that if she hadn't been out of the store for 5 months she
would have known the prices. When another customer
came through with an unmarked package, Dotson called
for a bag boy to get the price. The customer said he would
do it himself. Mrs. Jeffers told Dotson, "You never have
. . .the customer to check the price." Dotson said that she
was calling for the bag boy. The customer, having
overheard the remark, asked whether Mrs. Jeffers was
upset. Dotson replied, "I think so." As Mr. Jeffers came
over, the customer remarked that there was a misunder-
standing and Mr. Jeffers replied, "Yes, I know it and I'm
going to straighten it out when 4 o'clock comes myself."
Dotson said that the misunderstanding was not with her
and the customer confirmed that it was with Mrs. Jeffers.
Mr. Jeffers then told Dotson to run the register and not say
another word, that he would take care of her at 4 o'clock.
At 4 p.m., Moore handed Dotson another written
warning, once again for "Conduct," "Attitude," and
"Soliciting Union Support." Attached to it were the
following written remarks:
Mrs. Dotsons Attitude and Conduct is extreamly [sic]
poor and not in the best interest of the Company. She
often Complains to MGT before they have an opportu-
nity to Correct the situation. She also Complains to
Customers, while checking them out, about Company
policy and Mgt behavior. Tring [sic] to solicit Union
Support and upset normal operation of the Store. Her
Attitude Toward Mgt and certain employees is one of
beligerance [sic]. She is deliberately disrupting The
operation of The Store by 1) allowing lines to back up
without ringing for a bager [sic] Then ring for Mgt. to
Assist by opening another register. 2) questioning
Prices without asking mgt or Asking Mgt. At a most
inconvenient time. 3) Soliciting Union Support of
Fellow employees and customers while both on and off
the Clock.
The warning called for a 2-week suspension.
As she was reading the warning, Charles Jeffers took it
out of her hand and ordered her to sign it. She refused and
he told her that she would sign it or be fired. She again
refused to sign and was told that she was fired. At this
point, she started to sign and Mr. Jeffers told her that she
would have to sign the earlier warnings, too. She refused
and was again told that she was fired. He ordered her from
the store, telling her, "you get your big body out of this
store." Dotson commented on how things had changed
since she went on strike and made a vague reference to
Charles Jeffers alleged advances toward her. At this point,
Evelyn Jeffers began to deny that anything had occurred
between Dotson and her husband and claimed that Dotson
was lying. Dotson more specifically reiterated that he had
made such advances, that she was telling the truth, and
walked out of the store.
The foregoing facts are not essentially in dispute and
speak for themselves. Respondent had animus toward its
employees' union activities generally and specifically
toward Dotson for alleged picket activities which would
not have justified discharge by themselves and which were,
at any rate, condoned by the reinstatement. Respondent
never wanted to reinstate Dotson and, I conclude, set out
to get rid of her from the moment of her return. There were
repeated references to her strike activity and warnings
given for poststrike union activity which was not prohibit-
ed by any valid no-solicitation rule. (See Campbell Soup
Company, 225 NLRB 222 (1976); N.LR.B. v. Daylin Inc.,
Discount Division, d/b/a Miller's Discount Dept. Stores, 496
F.2d 484 (C.A. 6, 1974), enfg. 198 NLRB 281 (1972).)
Warnings and suspensions for incidents which were trivial
at worst (asking about Noble's name tag), helpful at best
(asking for correct prices and suggesting that certain items
be marked), and for matters not previously mentioned to
her (or conduct not supported by the record) quickly
followed her reinstatement. Respondent, which initiated
the warning procedure following the strike,13 gave Dotson
three written warnings in her first 4 days back on the job.
Then, knowing that she had refused to sign such warnings,
ordered her to sign one or be discharged. When she started
to comply, she was ordered to sign them all, and, when she
refused, she was discharged. In agreement with the
allegations of the complaint, I find that the written
warnings to Dotson and Mrs. Jeffers' conduct in reassign-
ing Dotson to another register so as to provoke an
argument constituted harassment of that employee because
of her union activities, in violation of Section 8(aX)(1) of the
Act. I further find that Respondent's suspension and
discharge of Dotson was motivated, at least in substantial
13 This action was not alleged to be independently violative of the Act.
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part, by Dotson's picket line and other union activity
and/or by her testimony in the prior case.' 4 Accordingly, I
find that Respondent has violated Section 8(aX3) and (4) of
the Act by its treatment of Patricia Dotson.
C. Norma Cain
Following her participation in the strike, Norma Cain
was reinstated to her position with Respondent as a full-
time cashier. Apparently her work proceeded uneventfully
until June 13. On that date, after she had worked for a
couple of hours, she learned that there had been a
substitution of brands on an item on a "special." (An item
sold at a reduced price with a coupon and other purchases.)
She asked Theresa Turrill about the substitution and was
overheard by Mrs. Jeffers as saying that she had probably
overcharged some customers. Mrs. Jeffers told Cain that
she should have asked someone about the possibility of a
substitution. Cain told Mrs. Jeffers that she had no reason
to ask and said that she believed it was the employer's duty
to inform her of any changes. Mrs. Jeffers told Cain that
she never asked any questions.15 Cain serviced some
customers at her register and Mrs. Jeffers came over to her
and again asked why she hadn't asked about a substitution.
Cain explained that she had not had any inquiries on the
item and asked Mrs. Jeffers why Moore or Turrill had not
told her about the change. Jeffers said that she did not
know, but that she was going to write Cain up for not being
"very nice." Jeffers went to the office and wrote up a
formal warning. She then called Cain to the office and gave
her the warning. It stated:
Norma gave Mrs. Jeffers lecture, about her Mrs. Jeffers
not doing her duties informing manager to inform her
of substitution in product. This was in presence of
customers and very loud and disrespectful.
(Mrs. Jeffers testified that they were both loud in this
incident.)
Cain was twice told and twice refused to sign the
warning. Mrs. Jeffers told her that no one had ever been
that disrespectful to her before and that she would have
fired her but couldn't "under the circumstances." To this
point, the testimony of Cain and Mrs. Jeffers is in
substantial agreement.
According to Cain, she went back to her register and,
while she was waiting for the assistant manager to finish
ringing up a customer's purchase, Mrs. Jeffers returned to
her and again started reprimanding her for her alleged
disrespect. Cain decided that she could not work under
those circumstances and proceeded to clock out and leave.
Mrs. Jeffers denies following Cain back to the register and
alleged that while she (Jeffers) was talking to the assistant
manager, Cain just quit, stating, "I'm not going to put up
14 It was upon Dotson's testimony that Evelyn Jeffers was found to have
violated Sec. 8(aX I) by soliciting an employee to attend a union meeting and
report back who was present and what was said. Dotson's testimony was
directly contradictory of Mrs. Jeffers; Dotson was ultimately credited.
'1 Compare this with Mrs. Jeffers complaints about Dotson that she
allegedly asked too many questions.
'6 The complaint did not allege this harassment to be independently
violative of Sec. 8(a)(1) of the Act, and I make no finding or recommenda-
tion in that regard.
with this." Noting Mrs. Jeffers admitted excitability and
temper, and further noting her tendency to characterize,
for the record, as disrespect any suggestions or questioning
of her authority, I credit Cain. I find, based on the
foregoing, including Respondent's union animus, the fact
that the written warning procedure was instituted following
the strike and because of it, Jeffers' oblique reference to the
union activity (she would have fired Cain but couldn't
under the circumstances), and the unreasonable nature of
Jeffers' response to Cain's statement, that Evelyn Jeffers'
response, including the written warning, was motivated at
least in substantial part by Cain's union activity.' 6
"Where an employer deliberately makes an employee's
working conditions intolerable and thereby forces [her] to
quit [her] job because of union activities or union
membership, the employer has constructively discharged
the employee in violation of Section 8(a)(3) of the Act." J.
P. Stevens & Company, Inc. v. N.LR.B., 461 F.2d 490, 494
(C.A. 4, 1972), enfg. 183 NLRB 25 (1970), and cases therein
cited. See also John S. Barnes Corporation, 165 NLRB 483,
484 (1967). General Counsel contends that Norma Cain
was so discharged. I am constrained to conclude that a
preponderance of the evidence fails to support such a
finding. Thus, while Respondent's earlier conduct toward
Dotson gives rise to suspicion that a similar pattern was
beginning as to Cain, Cain quit before that suspicion could
be confirmed by additional harassment.17 Simply put, Cain
quit before the harassment of her reached the requisite
level of intolerability or unbearability and it is beyond the
factfinder's ken to determine whether, with greater pa-
tience, Cain would have been subjected to such additional
harassment as to convert a quit into a constructive
discharge. Accordingly, I shall recommend that this
allegation be dismissed. See Central Casket Co., 225 NLRB
362 (1976).
D. James Rutter
Prior to the strike, James Rutter had been employed by
Respondent in connection with a Work Experience
Program (O.W.E.) maintained by the high school where he
was a student. Respondent admitted that at least initially
Rutter was a good employee. At worst, prior to the strike,
he had become mediocre. He received no written warnings
prior to the strike in which he participated. During that
strike, as Respondent pointed out on brief, he admittedly
called some nonstriking workers scabs and referred to
Evelyn Jeffers as "Nellie." Respondent also adduced
evidence that Rutter made obscene, abusive, or derogatory
comments and gestures while on the picket line; Rutter
denied such conduct.'
Moore admitted that Respondent did not want to
reinstate Rutter; Charles Jeffers wanted to terminate him
at the time of his interview. However, he was reinstated on
17 I note that while it may be inferred from the small size of the work
force, the store, and the community that Cain was aware of what had
transpired between Dotson and Respondent, the record contains no
evidence that Cain was actually aware of it or was influenced by it in her
decision to quit.
1s No credibility resolution is required as Respondent, by reinstating
Rutter, condoned this conduct. It is described herein, however, because by
adducing evidence of such alleged conduct, Respondent has provided an
insight into its motivation for the subsequent actions directed at Rutter.
1256
C & E STORES, INC.
the condition that he furnish a letter from the O.W.E.
program coordinator indicating his current enrollment in
the program. The letter he furnished stated that he would
be so enrolled until June 4. Upon his reinstatement, Rutter
was told that he would be terminated at the end of the
O.W.E. program.
Rutter returned to work on May 9 or 10. On May 10, he
showed up at work with what he admitted was "fuzz" on
his face and was sent home to shave. Shortly before the end
of his shift, Moore gave him a formal written employee
warning for "Substandard Work" and "Attitude." It
stated:
Attitude is poor toward customers, not thanking
customer or greeting, pouting, appears to be working
slow bagging, carrying out and facing shelves.
The warning set forth no action to be taken "on this
occasion." At Moore's request, Rutter signed the warning.
However, he wrote on the warning, and testified, in
conformity thereto, that the remarks on the warning were
false. He further credibly testified that prior to receipt of
this warning, Moore had not spoken to him about these
alleged derelictions. Moore testified that he spoke to Rutter
about this on May 9. Rutter's testimony is corroborated by
the written warning wherein Moore related that the
employee had not been previously warned. Moore's
testimony is also placed into question by an entry on a
second warning, discussed below, that attributes a single
verbal warning to Rutter on May 10, from "C.J." -
apparently Charles Jeffers. Charles Jeffers did not testify
and there was no evidence of such a warning.
On May 15, according to Rutter's recollection, Moore
handed him a second written warning, which had been
prepared by Charles Jeffers. The warning was for "Sub-
standard Work," "Conduct," "Attitude," and "Careless-
ness." Under remarks it stated:
Employee is working only 40% or less of acceptable
capacity & not giving satisfactory service to customers.
Under action to be taken, it specified:
Notice to employee to end slow down strike, if not
corrected employee will be suspended [.]
Moore had no recollection of giving Rutter this warning.
Charles Jeffers had not discussed it with him-Rutter's
immediate supervisor-before preparing it and it was
Moore's recollection that he did not even see the warning
until the day following Rutter's receipt thereof.
Rutter recalled Moore showing him the warning and
then taking it back to the office. When Charles Jeffers
subsequently came in, Rutter went to the office where
Jeffers handed him the warning and accused him of
working slowly. Rutter denied working slowly and was told
that he was lying. He was also told that if he worked again
the next day as he had on that day he would be terminated.
Jeffers told Rutter to sign the warning, Rutter refused, and
Jeffers said that he was ordering Rutter to sign it. He was
threatened with a suspension for disobedience if he refused
the order to sign. He signed, but included a written
refutation of the allegations.
Rutter was terminated at the end of his O.W.E. program,
June 4, 1975. Respondent admitted that the termination of
that program did not require that Rutter be discharged;
other employees on such a program had been retained
following the end of the school program. Respondent
further admitted that it always had need for employees in
Rutter's classification.
General Counsel contended that the warnings given to
Rutter constituted harassment of Rutter because of his
union activities, thereby interfering with, restraining, and
coercing him in the exercise of such protected rights in
violation of Section 8(aX1). General Counsel further
contended that Rutter's discharge was motivated by his
union activity, including the testimony he gave in the prior
unfair labor practice proceeding, in violation of Section
8(aX3) and (4) of the Act. Respondent alleged that the
warnings were caused by real work deficiencies and that
his work performance and attitude did not warrant his
being retained beyond the end of his school program. My
review of the record herein leads me to agree with the
General Counsel. In reaching this conclusion, I consider
the following of particular weight: Respondent had
demonstrated its animus toward the exercise of Section 7
rights; its questioning of Rutter at the hearing and its
references in brief to strike activity indicate a continued
animus toward Rutter's strike activities notwithstanding its
condonation of any alleged strike misconduct; Rutter was
precipitously given, in the first few days after his return to
work, two formal, written warnings under a procedure
established since and because of the strike; Rutter received
no prior oral admonitions, a factor discrediting Respon-
dent's assertions of poor work performance and attitude;
Mr. Jeffers' warning to Rutter was not even discussed with
Rutter's immediate supervisor; that same warning, by
referring to a "slow down strike" reflected a continuing
awareness of and animus toward Rutter's role in the strike;
and, finally, Respondent's contention that Rutter was
terminated because his work performance did not warrant
his retention is belied by its decision, upon his reinstate-
ment, and before he had performed any work, to terminate
him as soon as the O.W.E. program ended. Accordingly, I
conclude that Respondent's written warnings, implied
threats of discharge, and its discharge of Rutter were all
motivated by Rutter's union activity and testimony under
the Act, and thus violated Section 8(aX )), (3), and (4) of the
Act.
E. Alleged Impression of Surveillance
On June 3, Karen Buck handed a small piece of paper to
another employee. Thereafter, she noticed that Moore
appeared to be following her around the store. She
proceeded up and down the aisles and Moore remained
behind her. At one point he stopped her and asked if he
could help. She responded by asking for certain merchan-
dise. The alleged following was observed by Marck Miller.
He recalled that Buck was shopping at the time. Moore did
not contravene this testimony. The foregoing, I conclude,
did not involve union activity and did not set forth any
basis for the employees to conclude that Moore was
attempting to spy on such activities. Accordingly, I shall
recommend that this allegation be dismissed.
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE COLLECTIVE-BARGAINING UNIT
General Counsel has alleged that all full-time and regular
part-time employees of Respondent's grocery store, exclud-
ing the meat department employees, professional employ-
ees, supervisors, and guards, constitute an appropriate unit
for the purpose of collective bargaining. Respondent
contended that the only appropriate unit is both corpora-
tionwide and multistore and would include both selling
and nonselling employees. We start with the proposition
repeatedly stated by the Board that:
When dealing with a multistore operation, the well-
established Board policy is to find a single-store unit
presumptively appropriate. This presumption can only
be overcome by a showing of functional integration so
substantial as to negate the separate identity of the
single-store unit. In making determinations on this
issue, the Board looks to such factors as prior
bargaining history, the geographical proximity to other
stores of the same employer, the degree of day-to-day
managerial responsibility exercised by branch store
management, the frequency of employee interchange,
and whether the requested single-store unit constitutes
a homogeneous, identifiable, and distinct employee
grouping. [Levitz Furniture Corporation, 224 NLRB 347
(1976)]
The Board further stated in Haag Drug Company, Incorpo-
rated, 169 NLRB 877 (1968):
In order to establish a valid bargaining obligation,
the Act requires only that a "majority of the employees
in a unit appropriate" for bargaining freely designate a
particular representative [Section 9(a)]. [Emphasis
supplied.] It is elementary that more than one unit may
be appropriate among the employees of a particular
enterprise, and our choice in a particular case "involves
of necessity a large measure of informed discretion."
Packard Motor Car Company v. N.L R.B., 330 U.S. 485,
491. The Board went on to point out that the Act
mandates it to select units which assure the employees
fullest freedom in exercising their statutory rights and
that, absent a contrary bargaining history, that fullest
freedom is maximized "by treating the employees in a
single store . . . of a retail chain operation as normally
constituting an appropriate unit for collective bargain-
ing purposes." The question thus becomes one of
whether the factors of geography, managerial responsi-
bility, and interchange present herein overcome the
presumption favoring single-store units. t9
Respondent's corporate structure consists of five divi-
sions-grocery, hardware, including appliances which had
formerly been a separate division, tire center, automotive
arts, and farm. Charles Jeffers is the chairman of the
board of directors and president and general manager of
the corporation. Each division has a store supervisor, a
store manager, and usually an assistant store manager. In
the case of the grocery division, Evelyn Jeffers, who is also
19 Resolution of this issue requires reference to the record in the prior
case.
a corporate vice president, is the store supervisor. Danny
Moore is the store manager and there was no assistant
manager at the times in question. It was admitted that
Theresa Turrill, head cashier, also possessed supervisory
status.
The grocery and the hardware share a common building.
The two divisions are separated by a wall without customer
access between them. Each has its own sign above its
entrance, and there is a common sign between the separate
ones, stating "C & E Food Center and Hardware." The
grocery and hardware divisions share warehouse space and
restrooms overhead the two stores. Approximately 150 feet
away is a separate building which houses the tire and auto
centers and the offices of the corporation.
All bookkeeping for the various divisions is done jointly,
in the one office. Profit and loss records are kept for each
division. All employees are paid from the same account,
with the same checks. They receive the same benefits and
break privileges. There may be some common purchasing
for the various divisions. All divisions use the same
employment application forms, which are given out in each
store. Applicants for employment are interviewed generally
by the store managers, sometimes by Jeffers. Mr. Jeffers
reviews applications for employability and retains a veto
over individual hires, but the selections are made by the
store managers. Generally, employees are hired in the store
where they applied, but employees who file applications for
employment in one division may become employed in
another.
The store managers make appraisals of each employee
every 3 months, and it is the store managers who initiate
pay raises. Charles Jeffers reviews all wage increases.
Jeffers also tries to talk to each employee at least once a
year. On certain occasions, such as cases of theft, Charles
Jeffers will personally handle discharges. Otherwise, it is
done by the managers.
The record reflects evidence of some permanent transfers
between divisions. Those recalled by Mr. Jeffers in his
testimony in the prior case included four who transferred
from employee status in one division to supervisory in
another (including Jeffers' son-in-law) and two who went
from the hardware to the grocery division during the strike.
Temporary transfers, Jeffers testified, were rare, consisting
primarily of employees from one division helping out for
limited periods of time in such tasks as unloading a late
arriving truck. Such instances occurred about once a
month and involved no bookkeeping entries.
There is no history of collective bargaining. No union
seeks to represent the employees on any broader basis.
On the facts as set forth above, particularly the day-to-
day authority exercised by the three levels of supervision
within each store, the absence of extensive or frequent
interchange, either permanent or temporary, between the
stores, and the homogeneous and readily identifiable
nature of the grocery employees, I find that the presump-
tive appropriateness of a single-store unit has not been
rebutted.
Respondent would include the meat department employ-
ees within the grocery unit. These three employees, one of
1258
C & E STORES, INC.
whom is salaried and in charge of the department, are
under the supervision of Moore. They work primarily in
the meat department cutting, wrapping, and displaying
meats, but on some occasions may help out in the grocery.
Their wages tend to be higher, by 50 cents per hour or
more, than the grocery employees. The Charging Party
does not seek to represent the meat department employees.
The Board has normally found appropriate a unit of
grocery employees excluding meat department employees.
R-N Market, Inc., 190 NLRB 292 (1971). The record herein
does not establish such a merger of identities or interests as
to warrant an exception to that general rule.
Accordingly, I find that the unit, as alleged in the
complaint, is an appropriate unit for the purposes of
collective bargaining.
V. THE DEMAND AND THE UNION'S MAJORITY STATUS
As previously noted herein, and as found by the
Administrative Law Judge and the Board in the prior case,
on December 9, 1974, representatives of the Union
confronted both Danny Moore and Charles Jeffers,
claimed to represent a majority of the store employees, and
requested collective bargaining. Moore and Jeffers refused
to discuss recognition or bargaining and the union
representatives were "invited" to leave the store.
As of the date of the demand, December 9, 1974, there
were 16 employees in the grocery unit. 20 On that same
date, the Union had valid authorizations for representation
from 12 employees, a clear majority.21
VI. THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices, I shall recommend that it take specific
action, as set forth below, designed to effectuate the
policies of the Act.
I have found that Respondent failed to properly reinstate
the unfair labor practice strikers, denying them the
positions and hours of employment to which they were
entitled, and discriminatorily laying them off in such a way
and at such a time as to negate their rights to reinstate-
ment. I have further found that Respondent discriminatori-
ly discharged employees in violation of Section 8(aX I), (3),
and (4) of the Act. In view of these findings, I shall
recommend that Respondent be ordered to offer to each
employee who was discharged or discriminatorily laid off
immediate and full reinstatement to his or her former
position, or, if such position is not available, to one which
is substantially equivalent thereto, without prejudice to the
seniority and other rights and privileges of each. I shall
further recommend that each employee be made whole for
any loss of earnings suffered by reason of his or her
termination, discriminatory layoff, or improper and incom-
plete reinstatement. All backpay is to be computed, with
interest, in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
20 The parties had stipulated to this fact in the prior case. It is further
evidenced by Resp. Exh. 7. Not counted in reaching this conclusion were
employees listed on Resp. Exh. 7 who were terminated before the demand
Gary Van Meter and Virgil Tubaugh-or hired subsequent to it-Steve
Having found that Respondent discriminatorily and
coercively issued reprimands to Patricia Dotson and James
Rutter because of their union and other protected activi-
ties, I shall recommend that Respondent be ordered to
revoke and physically expunge such reprimands from their
personnel files.
Since the discriminatory layoffs and discharges go "to
the very heart of the Act" (N.LRB. v. Entwistle Mfg. Co.,
120 F.2d 532, 536 (C.A. 4, 1941), I shall recommend that a
broad order be entered herein. Ann Lee Sportswear, Inc.,
220 NLRB 982 (1975).
While the complaint did not allege Respondent's con-
duct to be violative of Section 8(aX5) of the Act, it did seek
a bargaining order by way of remedy for the unfair labor
practices alleged by the complaint and found herein. Such
a remedy, I find, is clearly warranted by the facts of this
case. Respondent's unfair labor practices were extensive
and pervasive. Indeed, its pattern of unfair labor practices
had begun early upon the commencement of union
activities (as found in the prior case) and continued until
nearly all of the union supporters had been eliminated
from Respondent's employ. It is particularly significant to
note that even after it had gone through the litigation of the
prior case, Respondent continued its unlawful activity,
making clear to its employees that it would not tolerate
either their protected union activities or the exercise of
their right to testify before this Agency. Such conduct, I
conclude, precludes the holding of a free and fair election.
As the Union enjoyed majority status at the time it made
its demand for recognition, I shall therefore recommend
that Respondent be ordered to bargain with it, upon
request. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969).
Finally, the recommended Order will require Respon-
dent to cease and desist from the unfair labor practices
found and to post a notice indicating compliance with
these requirements.
CONCLUSIONS OF LAW
1. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time employees of
Respondent at its Athens, Ohio grocery store, exclud-
ing meat department employees, and all professional
employees, guards and the store manager, assistant
store manager, corporate officers and all other supervi-
sors as defined in the Act.
2. At the time it demanded recognition on December 9,
1974, and at all times thereafter, the Union was, and is
now, the exclusive representative of the employees in the
aforesaid unit within the meaning of Section 9(a) of the
Act.
3. By failing to properly reinstate the employees who
were unfair labor practice strikers and by laying off and
Garris, meat department employees, and admitted supervisors, including
Theresa Turnll.
21 This conclusion of majority status would not be affected by inclusion
of the three meat department employees.
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging its employees because of their union activity
and/or because they gave testimony under the Act,
Respondent has violated Section 8(a)(l), (3), and (4) of the
Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed by Section
7 of the Act in other respects as set forth in the body of this
Decision, Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not engage in any unfair labor
practices alleged in the complaint, other than as found
herein.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER22
The Respondent, C & E Stores, Inc., C & E Supervalue
Division, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Harassing and discriminating against its employees,
including reinstated unfair labor practice strikers, by
assigning them to less desirable, more onerous, or other
positions and hours of employment not substantially
equivalent to those which they had occupied prior to the
strike, and by issuing undeserved written or oral warnings,
because of their union activities or because they gave
testimony under the Act.
(b) Threatening to discharge its employees because of
their union activities or because they gave testimony under
the Act.
(c) Discriminating against its employees by suspending
them, laying them off, failing to recall them, or otherwise
failing to accord them the full reinstatement rights to which
they are entitled as unfair labor practice strikers, or by
discharging them because of their union activities or
because they gave testimony under the Act.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Patricia Dotson, James Rutter, Christopher
Hurst, Pauley Forsyth, and Nancy Bartlett immediate and
full reinstatement to their former positions or, if no longer
available, to substantially equivalent positions, without loss
of seniority or other rights or privileges, discharging if
necessary any replacements for these employees, and make
them and Norma Cain, Karen Buck, and Marck Miller
whole for any loss of earnings they may have suffered by
reason of the discrimination against them, in accordance
with the provisions of the section of this Decision entitled
"The Remedy."
(b) Revoke and physically expunge from their personnel
files the written warnings given to Patricia Dotson and
James Rutter.
(c) Upon request, bargain with Retail Clerks Union
Local 1059, Retail Clerks International Association, AFL-
CIO, as the exclusive representative of the employees in the
appropriate collective-bargaining unit described below,
with respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment. The appropriate collective-bargaining unit is:
All full-time and regular part-time employees of
Respondent at its Athens, Ohio, grocery store, exclud-
ing meat department employees and all professional
employees, guards, the store manager, assistant store
manager, corporate officers, and all other supervisors
as defined in the Act.
(d) 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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its grocery store in Athens, Ohio, copies of the
attached notice marked "Appendix." 23 Copies of this
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by its authorized
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
22 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.
23 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
WE WILL NOT threaten our employees with discharge
because of their union activities or because they gave
testimony under the Act.
1260
C & E STORES, INC.
WE WILL NOT harass or discriminate against our
employees because of their union activities, strike
participation, or because they gave testimony under the
Act, by assigning or reinstating them to positions and
hours of employment which are less desirable, more
onerous, or otherwise not substantially equivalent to
those which they had occupied prior to the strike, or by
issuing them undeserved oral or written warnings.
WE WILL NOT discriminate against our employees
because of their union activities or because they gave
testimony under the Act by suspending them, laying
them off, failing to accord them the full reinstatement
rights to which they are entitled as unfair labor practice
strikers, or discharging them.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed employees in the National Labor
Relations Act, which are as follows:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL offer Patricia Dotson, James Rutter,
Christopher Hurst, Pauley Forsyth, and Nancy Bartlett
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or other rights or privileges.
WE WILL pay Patricia Dotson, James Rutter,
Christopher Hurst, Pauley Forsyth, Nancy Bartlett,
Norman Cain, Karen Buck, and Marck Miller the
amounts of money which they lost as a result of the
discrimination against them, together with interest at 6
percent.
WE WILL revoke and physically expunge from their
personnel files the warnings given to Patricia Dotson
and James Rutter.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative or all
employees in the bargaining unit described below, with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time employees of
the Employer at its Athens, Ohio, grocery store,
excluding meat department employees and all
professional employees, guards, the store manag-
er, assistant store manager, corporate officers,
and all other supervisors as defined in the Act.
All our employees are free, if they choose, to join Retail
Clerks Union, Local 1059 Retail Clerks International
Association, AFL-CIO, or any other labor organization.
C & E STORES, INC. C & E
SUPERVALUE DIVISION
1261