Chelyan Foodland,

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 779 (N.L.R.B. 1979)

CHELYAN FOODLAND
The Gilmer Grocery Company, Inc. d/b/a Chelyan
Foodland and Food Store Employees Union Local
347, United Food and Commercial Workers Inter-
national Union, AFL-CIO.' Case 9-CA-12622
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On June 21, 1979, Administrative Law Judge Mar-
ion C. Ladwig issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order,2 as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent, The Gilmer
Grocery Company, Inc., d/b/a Chelyan Foodland,
Chelyan, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
I. Substitute the following for paragraph l(k):
"(k) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The name of the Charging Party, formerly Food Store Employees Union
Local 347. Amalgamated Meatcutters and Butcher Workmen of North
America, AFL-CIO, is amended to reflect the change resulting from the
merger of Retail Clerks International Union and Amalgamated Mealcutters
and Butcher Workmen of North America on June 7, 1979.
2 We find that a broad order is not warranted under the circumstances
herein. See Hickmott Foods, Inc., 242 NLRB 1357 (1979).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Beverly Stamper immediate
and full reinstatement to her former job or, if her
job no longer exists, to a substantially equivalent
job, without prejudice to her seniority or other
benefits since her discharge, plus interest.
WE WILt. make James Hughey whole for his
lost overtime earnings, plus interest.
WE WILL NOT discharge, eliminate your over-
time, or otherwise discriminate against any of
you for supporting Food Store Employees Union
Local 347, United Food and Commercial Work-
ers International Union. AFL. CIO, or any other
union.
WE WIIl. NOT coercively question you about
union support or union activities.
WE WILL NOT threaten to discharge any em-
ployee or to close the store if you support or vote
for a union.
WE WILL. NOT instruct you not to talk to other
employees about a union.
WE WILL NOT promise to promote any em-
ployee on condition that a union is not voted in.
WE WILL NOT inform any of you that union
support is a reason for discharging an employee.
or for closely watching your work.
WE WILL NOT in any like or related manner
interfere with. restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
THE GILMER GROCERY COMPANY, INC.
D/B/A CHELYAN FOODLAND
DECISION
STATEMENT OF TlHE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Charleston, West Virginia, on October
19, 1978.' The charge was filed by the Union on June 12
(amended June 26), and the complaint was issued on July
19. The primary issues are whether, during a union organiz-
ing campaign, Respondent Company (a) engaged in re-
peated interrogation, threats, promises, and other coercive
conduct, (b) unlawfully terminated one union supporter,
and (c) eliminated the regular hours of overtime of the lead-
ing employee organizer immediately after he appeared on
behalf of the Union at a scheduled representation hearing,
in violation of Section 8(a)(1) and (3) of the National Labor
Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a West Virginia corporation, is engaged
in the operation of a retail grocery store at Cbelyan, West
I All dates are in 1978, unless otherwise indicated.
245 NLRB No. 101
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Virgina, where it annually has a gross volume of business in
excess of $500,000 and receives goods valued in excess of
$50.000 directly from outside the State. The ('ompany ad-
mits, and I find, that it is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. AIl.E(iLI) UNFAIR ABOR PRA( I('S
A. Interrogation. T7rewts. and Other Coercion
The Company hired a full complement of employees dur-
ing the last week in March and opened its grocery store on
April 2. In early May employee James H[ughey (one of the
alleged discriminatees) began an organizational drive at the
store, and on May 26 the Union filed a petition for an
election. The Union lost the election held on July 27, by a
vote of 4 to 21 with 4 challenges, and did not file objections.
In its brief; the Company discusses only the alleged dis-
crimination against Hughey and another union supporter
and does not discuss the allegations of other coercive con-
duct during the union organizational campaign, except to
point out that some of the alleged threats and interrogation
"were candidly admitted by the Employer's supervision."
About May 15, meatwrapper Beverly Stamper (the union
supporter who was discharged on June 9) informed her su-
pervisor, Meat Manager Tom Lilly, that the Union was
trying to organize in the store and that most of the employ-
ees had already signed the cards and sent them in. She said
that she was very much in favor of it and that "if anybody
wasn't for the Union, they were a fool." In a later conversa-
tion with her, as Stamper credibly testified, Lilly said "that
[Owner] Paul Gilmer told him that he would burn the store
down and throw away the keys before he ever let a union
come in," and "told me that I should keep my mouth shut
and not say anything to anybody, because if Mr. Gilmer
found out, that I would be fired." (Lilly admitted telling
Stamper in this conversation that "I felt she ought to keep
[her union sympathies] to herself," but claimed that he told
her that this was "because I had worked . . . other places
where there was a union store and there had been jobs lost
before." He denied telling her that Gilmer would fire any-
body, but admitted telling her that "Mr. Gilmer made the
statement to me" that "before he would let the Union come
in that he would lock the doors and throw the keys away.
and I felt she ought to know his stand on it." From their
demeanor on the stand, Stamper impressed me as being the
more credible witness, and I credit her version of the con-
versation.) I find that Meat Manager Lilly's statement that
Owner Gilmer had told Lilly that Gilmer "would burn the
store down and throw away the keys before he ever let a
union come in" was a coercive threat to close the store: that
Lilly's warning that Stamper "should keep [her] mouth shut
and not say anything to anybody" about the Union was
also coercive: and that his explanation that "if Mr. Gilmer
found out, that [Stamper] would be fired" constituted a
threat of discriminatory discharge-all in clear violation of
Section 8(a)(1) of the Act.
Meanwhile, Owner Gilmer was repeatedly interrogating
union organizer Hughey, who began distributing authoriza-
tion cards to the employees on May 10. Sometime between
May 10 and 15 (when Hughey returned the first of about 25
to 30 cards which he got signed to the union representa-
tive), Gilmer called Hughey to the office. As Hughey cred-
ibly testified, Gilmer said, "I feel like i can trust you and
that you can tell me the truth . .. Have you heard anything
about the Union trying to come into this store? Ilughey
answered no. Gilmer asked. "You wouldn't lie to me'?" and
Hughey answered. "No I wouldn't." Gilmer then "said he
would get rid of everyone in the store if the Union came in"
and proceeded to talk against the Union. (Gilmer admitted
asking lughe "it' he knew anything about an effort to get
a union organized in the store," but denied telling Hughey
that he would "get rid of everybody in the store if the
Union got in." claiming that he told Hughey "that I didn't
know if I could support a union or not. That I probably
would have to lock up the doors if they made too much
demands on me, and he probably would be better off if we
didn't have a union." Gilmer impressed me as being a most
untrustworthy witness. I discredit his denial and credit the
version given by Hughey, who appeared on the stand to be
endeavoring to give an accurate account under oath of
what happened.)
On May 25 (the day before the Union filed the election
petition) Owner Gilmer again called union organizer
Hughey' to the office, showed him an unsigned authoriza-
tion card, and asked him if he knew what it was and if he
had ever seen one or signed one. Hughey said it looked like
a union card but denied seeing or signing one. As Hughey
further credibly testified, Gilmer "asked me if... I knew of
any of the employees that had received a letter from the
Union or if I have received one": Hughey said no: and
Gilmer said that "even if the Union did win an election, he
would get rid of everyone and start over again, and he
would work an employee 30 days and get rid of him as
Krogers did" (under a contractual 30-day probationary pe-
riod). Gilmer then talked again against the Union. said it
"would lie to me" about benefits and would strike, but
"that as the store got going." he planned to make his
brother-in-law the assistant manager, make Assistant Man-
ager Russ Diegert his "number two" man, and "make me
number three." Gilmer then said he "was going to give
everyone a ten cent raise": that "he was going to give me
more": and added that he "like me and liked my work ...
and he hoped that I wasn't involved in the union activities."
(Gilmer admitted asking Hughey about the unsigned union
card, if he had signed one, if he received a letter from the
Union, and if he knew of any other employees who received
union letters. However, he denied telling Hughey that if the
Union won the election, he would get rid of all the employ-
ees and start over again, and claimed that he said he
"could" hire everybody on a 30-day basis like Kroger does,
"but I never practiced that. Even when I was working with
Kroger." He admitted talking about making ughey the
"number three man," telling him that if the store got on its
feet and was doing well, "that I would probably make him
a first clerk" and that "he would get a better raise than
that" given other employees. Although he made certain ad-
missions, he did not appear to be attempting to make a full
disclosure of what was said.)
Again. on June 2 or 3, Owner Gilmer interrogated
Hughey in the office. As Hughey crebily testified. Gilmer
780
CHELYAN FOODLAND
said, "let's get to this thing that keeps bugging me ... I keep
hearing these things that you're trying to organize the
store," and stated that cashier Chrystal Goble had told him.
After Hughey's repeated denials, Gilmer said, "I didn't
think you were mixed up in this type of thing anyway ... I
just hope that you're not." (Gilmer admitted interrogating
Hughey again at this time about the union activities, and
admitted at one time telling Hughey that cashier Goble had
said that he was one of those trying to organize the store.)
On June 6 (3 days before summarily discharging union
supporter Stamper) Owner Gilmer interrogated Hughey the
fourth time in the office. After again asking Hughey if he
was "mixed up" in the Union, and talking against it, Gil-
mer asked him if he "had heard anyone else talking about
the Union," and specifically, if he had heard Beverly
Stamper and three other employees talking about it. When
Hughey said no, as he credibly testified, Gilmer "said that
Beverly Stamper made a lot of mistakes in the Meat De-
partment and that he also thought that she was trying to
organize the employees or was for the Union, and that she
was costing him time and money and that he was going to
have to get rid of her." Gilmer continued to talk against the
Union, and Hughey stated his agreement, "considering this
was what he probably wanted to hear from me." (I discredit
Gilmer's denials concerning Stamper, his claim that "I had
no idea that Beverly had anything to do with it," and his
claim that "I never discuss one employee with another.")
Particularly in the context of the threats, I find that the
repeated interrogations of union organizer Hughey-on
four separate occasions in Owner Gilmer's office-concern-
ing his and other employees' union activities, were coercive
and violated Section 8(aX)(1) of the Act. I also find that dur-
ing the first interrogation, between May 10 and 15, Gilmer
threatened to discharge all of the employees if the Union
came in; that during the second interrogation on May 25
Gilmer threatened to get rid of everyone and start over
again if the Union did win an election, promised to give all
employees a 10-cent raise for the purpose of discouraging
their union support, and made an implied promise that he
would give Hughey a promotion to the "number three" po-
sition in the store and give him a larger wage increase if the
Union was not voted in; and that during the fourth interro-
gation on June 6, Gilmer revealed that Stamper's union
support was a reason for him deciding that "he was going to
have to get rid of her"-all in clear violation of Section
8(aX)(1) of the Act. (Further alleged coercive conduct against
Hughey is discussed later.)
B. Discrimination Against Union Supporters
I. Beverly Stamper
a. Her summary discharge
Beverly Stamper was hired on March 29 as a meat-
wrapper, without prior experience. Her job was to wrap
and price the meat, properly display the meat in the case,
and keep the display looking good.
In April, about 2 or 3 week after her employment (as she
credibly testified), Meat Manager Lilly talked to her about
improving her work. As testified by Lilly, he told her that
she was making a lot of mistakes and "just to calm down,
not get as nervous as she was, and try to do a little better."
About a month later in the latter part of May, Lilly indi-
cated to her that she was progressing satisfactorily and im-
plied that he wanted to retain her as an employee. Thus, the
day after Lilly learned that she was being offered a job with
an insurance company. he said to her. "You're not really
thinking about leaving . . . We're just now getting you
trained."
In the meantime, about May 15 as found above, Stamper
indicated to Meat Manager Lilly her strong support of the
Union's organizational drive. Lill) reported to her what
Owner Gilmer had said about closing the store if the Union
came in, and warned her that she should keep her mouth
shut about it "because if Mr. Gilmer found out." she would
be fired. Then on June 6, 3 days betore Stamper's discharge.
Gilmer revealed his belief to employee Hughey that
Stamper "was trying to organize the employees or was for
the Union." (She had discussed the Union with the other
two meat employees and with several employees in the
store.)
On June 9, Owner Gilmer called Stamper into his office
and summarily discharged her. As she credibly testified,
Gilmer "told me that because business was down that he
was going to have to let me go . . . because you're the
person in the Meat Department that we can do without."
Gilmer added, "you make a lot of mistakes . . . Isn't that
right. Tom?"-speaking to Meat Manager Lilly, who was
present. Lilly answered yes, and Gilmer said, "I like you,
you know I like you, but I'm going to have to let you go."
(According to Lilly, Gilmer "told her that he was letting her
go mostly because the business was down, first of all be-
cause the business was down. And, that her job was the
least skilled of the jobs back there" and "that he had had
reports that her work was unsatisfactory, that she made too
many mistakes, and that he was letting her go." According
to Gilmer, he told her, "Look Beverly, sales are way down.
We have got a problem there, and your work is not satisfac-
tory, so I'm going to have to let you go.")
b. The Company's defenses
In its brief, the Company contends that Meat Manager
Lilly "did not need Miss Stamper because the department's
volume was down." After considering all the evidence, I
find that this reason for the termination was purely a pre-
text.
As elicited by the company counsel at the trial, Stamper
was hired as a part-time employee, although she stated on
her application that she did not want to work part time.
Nevertheless, she worked 40 or more hours during 6 of the
9 weeks before the week of her discharge. Moreover, Meat
Manager Lilly had talked to her at one time "about maybe
getting a part-time girl in case I needed to be off." Follow-
ing her discharge, Lilly, meatcutter James Bragg, and meat
trainee Robert Wagner did all of the meat-wrapping work
for the first 3 weeks. Lilly (who like Bragg was salaried)
admitted that his hours increased after Stamper left, and
admitted telling employee Hughey at the time that he "was
going to let Mr. Wagner increase his hours" because of
Stamper's leaving. "If I had to." The payroll records (Resp.
Exh. 3) reveal that Wagner worked 40 hours during the
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week ending June 3 (the week before Stamper's discharge),
45.5 hours during the week ending June 10 (the week of the
discharge), 47.5 hours during each of the 2 weeks ending
June 17 and 24, and 53.75 hours during the week ending
July I-despite the fact that a part-time meatwrapper had
been employed on June 30.
Another indication that the Company's lack-of-business
defense was a pure pretext is the position taken by Owner
Gilmer after he was cross-examined on the payroll records.
On redirect examination Gilmer admitted, " did not lay
Beverly off because of business, I let Beverly go, terminated
her, because she was not able to do the work satisfactory
.... " (This admission is ignored in the Company's brief,
which argues: "It is certainly logical that when business is
down and a company needs fewer people they let the em-
ployee go who is lowest in seniority and the lowest producer
in the department. This is exactly what the Employer did
here. This termination should not be disturbed.)
I also find that the quality of her work was also a pretext
for discharging meatwrapper Stamper. Meat Manager Lilly
(her immediate supervisor) admitted that he did not recom-
mend her discharge-testifying that the only time he said
anything to Owner Gilmer about Stamper's work was sev-
eral weeks earlier, about a month after the store opened,
when Gilmer "stopped me one day and wanted to know
how the employees were doing" and "I said that she had
made a lot of mistakes, that she still had a lot to learn, and
that she was a very nervous person." Gilmer, who im-
pressed me as being a most untrustworthy witness, gave
contrary testimony. He claimed that Lilly "came to me"
about Stamper's mistakes on one occasion, and "I asked
him on different occasions" and he "told me that she wasn't
doing her job." Gilmer also claimed that he had gone di-
rectly to Stamper on one occasion, about the middle of
May, and told her that she and the meat department would
have to do better. (Lilly admittedly was not aware of any
time that Gilmer ever talked to Stamper about her work,
and Stamper credibly testified that "Absolutely not," Gil-
mer never criticized her work.) Gilmer gave further testi-
mony-which I find to be wholly fabricated-that about
the last of May, meatcutter Bragg and trainee Robert Wag-
ner told him that "Beverly wasn't getting her work done"
and "either she had to go or they would go." (Neither
Bragg nor Robert Wagner testified, and Gilmer admittedly
did not talk to Stamper about her work between the time of
these purported complaints and her discharge.)
After giving this discredited testimony on direct examina-
tion, Owner Gilmer on cross-examination gave other testi-
mony which I find was also fabricated. He then claimed
that, in the conversation he had with Stamper about her
work, he told her that Meat Manager Lilly and Consultant
Dale Wagner "both said that she wasn't doing her part."
He also claimed that both Lilly and Dale Wagner "told me
that either she would go or they were going to go." (Dale
Wagner did not testify. Certainly if Lilly had made such a
statement to Gilmer, Lilly would not have testified that he
talked to Gilmer only the one time about Stamper's work.
Neither would Lilly, after learning that she was being of-
fered a job with an insurance company, have indicated to
Stamper that she was progressing satisfactorily and have
implied that he wanted to retain her as an employee, as
found above.
I find that the mistakes which meatwrapper Stamper
made earlier while being trained, as well as the lack-of-
business defense, were mere pretexts for discharging her. I
further find that her support of the Union was the real
reason for her discharge. Meat Manager Lilly had warned
her several weeks before that she would be fired if Owner
Gilmer found out about her union sympathies. Although
Gilmer claimed on the stand that nobody had told him that
she was supporting the Union, as found above, he revealed
3 days earlier, when interrogating employee Hughey for the
fourth time, that Stamper's union support was involved in
the discharge decision.
Accordingly, I find, as alleged in the complaint, that the
Company discriminatorily discharged meatwrapper Beverly
Stamper because of her union support, in violation of Sec-
tion 8(a)(3) and (1) of the Act.
2. James Hughey
a. Elimination of overtime
James Hughey was one of the few experienced employees
hired before the store opened on April 2. For almost 2 years
he had been a clerk at Kroger, with experience in the dairy
department and also in the frozen food department. Owner
Gilmer hired him to handle both the dairy and frozen food
departments and, for the first 10 weeks the store was open,
permitted him to work an average of 51.2 hours a week.
Except for one or two occasions when he told Gilmer that
he was going to have to work overtime because of some
very large orders, he did not mention his overtime to Gil-
bert, who permitted him to determine himself when and
how much overtime was required to complete the work. He
was being paid $2.65 an hour (the same he thought as his
part-time assistant). However, as found above, Gilmer on
May 25 had talked about making him the "number three"
man in the store, with a larger raise than other employees,
while telling him that he liked him and his work and
"hoped that I wasn't involved in the union activities."
Meanwhile, Owner Gilmer was repeatedly interrogating
Hughey about his involvement in the union-organizing
drive, and Hughey continued to deny it. (Gilmer testified
that he talked to Hughey about the Union because he "was
the one that I trusted, one that I thought was really my
man.") On June 14, though, Hughey appeared as a union
witness at a scheduled hearing in the representation case,
and Gilmer observed him conferring with the union coun-
sel-indicating that Hughey was in fact supporting the
Union.
The next morning, June 15, Owner Gilmer went to the
back room where Hughey was handling empty milk crates.
As Hughey credibly testified, Gilmer "handed me all my
time cards since the date I had started," and said, "Just
look how many hours I have let you work and how good I
have been to you and then you go and try to organize a
union up here." Gilmer stated that "from that day on I was
not to work any more overtime." (Gilmer denied that any-
thing was said about Hughey trying to get a union in. He
claimed that he told Hughey, "Look we cannot go on this
way . . . I don't want you working any overtime hours
unless I authorize it." I discredit the denial and credit
Hughey's version of the conversation.)
782
CHELYAN F(
I note that in this same conversation, as Hughey credibly
testified, Owner Gilmer also said, "Just look what I have
got on you," showing Hughey a little note pad. The notes
stated that Hughey had "messed up" the MSI machine (a
miniature computer on which orders are placed), and
Hughey responded that "the machine was already messed
up before I had gone back there to order my dairy." Gilmer
then said that Hughey had mispriced the buttermilk, mark-
ing it $1.49 instead of $1.69, but Hughey pointed out that it
was on sale that week. Gilmer also mentioned that Hughey
had permitted sales merchandise to run empty. In the con-
text of this conversation. I find as alleged in the complaint
that Gilmer was "implying to an employee that he had been
closely scrutinizing his work because of his union activity,"
thereby coercing the employee in the exercise of his Section
7 rights, in violation of Section 8(aX I) of the Act.
Following this conversation, in which Owner Gilmer told
Hughey that he "was not to work any more overtime," vir-
tually all of Hughey's overtime was eliminated. During the
next 2-1/2 months (through the week ending August 26), he
worked 15 minutes overtime during 2 weeks, and 2.5 hours
overtime during a third week, when Gilmer specifically au-
thorized the overtime. Hughey found that he could not keep
up with the work in the dairy and frozen foods depart-
ments, and would have to stack merchandise in the cooler
until he could get to it. Total grocery sales were down since
the store opened, but the milk orders were still up. Finally.
in July or August, Gilmer reassigned the dairy department
to another employee, and Hughey was given the responsi-
bility of handling the bread and frozen foods departments,
an assignment which usually required less time to perform.
b. False testimony
When first called as a defense witness, Owner Gilmer
gave clearly fabricated testimony. denying awareness that
Hughey was working overtime:
Q. [By Mr. Holroyd] Well, were you aware that he
was working overtime?
A. No, sir I was not.
Q. You mean you signed the payroll checks and
didn't even know that he was putting them overtime
hours on you?
A. That is correct.
Q.When did you become aware that he was working
overtime hours?
A. Well, after the first three or four weeks, after
everything had settled down and I began to see how
the store was running, I was checking the payroll then
and the timecards and I saw that Jimmy was working a
lot of overtime for the job that he was performing.
(Emphasis supplied.)
Later on cross-examination, Gilmer belied this testimony.
When repeatedly asked when he first realized or became
aware of the overtime, he finally admitted. "I knew he was
working overtime the first week . . . I saw his paycheck . . .
he worked 29 hours overtime that week." He explained that
the stubs attached to the paychecks show the overtime.
Reading from one of Hughey's pay stubs, Gilmer testified
that "t shows on May 15, 1978 [for the weeking May 6],
783
Jimmy worked 40 hours at regular time and 15.25 over-
time," and that he had "106 regular and $60.62 overtime."
Gilmer admitted. "I tolerated it." knowing as a fact that
"he was working some overtime."
Denying that Hughey's union activity had anything to do
with his decision "to crack down" on Hughey's overtime.
Owner Gilmer claimed that he did s because there was a
lack of need for the overtime and because of falling sales
and high wage percentage. (ie impressed me as being will-
ing to give whatever testimony might be considered plausi-
ble as a defense.) Yet I note that despite the level of sales
and the wage percentage, Gilmer continued to permit other
overtime where needed. For the 18-week period from the
week ending June 10 through the week ending October 7.
one of the produce clerks (Kay Stafford) worked an average
of 54.6 hours a week: another produce clerk (James Nlers)
worked as many as 9 and 12 hours of eekly overtinme: and
a later produce clerk worked as mans as 9.5 hours of over-
time.
Having found that Owner Gilmer told Hughey on June
15. "Just look how many hours I have let you work and
how good I have been to you and then you go and tr to
organize a union up here," before telling him that from then
on, he "was not to work any more overtime." I find that
Gilmer eliminated Hughey's regularly worked overtime, as-
eraging over I I hours a week, because (ilmer learned the
day before that Hughey was in fact supporting the Union.
Previous to this Ciilmer trusted him as "reall m man."
talked about making him the "number three man" in the
store with a larger wage increase. and meanwhile gave him
extra compensation of' over $44 a week in overtime pay to
handle both dairy and frozen foods departments as an expe-
rienced employee. I also find that Gilmer was evidently at-
tempting to conceal his discriminatory motivation for elimi-
nating the overtime by initially giving the clearly false
testimony that he was not aware that Hughey was working
overtime. Accordingly, I find that the Company discrimina-
torily eliminated employee James Hughey's regular hours
of overtime because of his union support, thereby violating
Section 8(a)(3) and (I) of the Act.
CO)Nt .USi(NS OF LA"
I. By discharging Beverly Stamper on June 9 and by
eliminating the regular hours of overtime of James Hughey
on June 15 because of their support of the Union, the Com-
pany engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (I) and Section
2(6) and (7) of the Act.
2. By engaging in repeated, coercive interrogation of an
employee concerning his and other employees' union activi-
ties: by threatening to burn the store down and throw away
the keys before letting a union come in: by warning an
employee to keep her mouth shut about the Union and not
say anything to other employees about the Union: by
threatening the discriminatory discharge of an employee tor
her union support: by threatening to get rid of eeryone
and start over again if the Union did win an election bb
promising to give all employees a 10-cent raise for the pur-
pose of discouraging their union support: by making an
implied promise to an employee to give him a promotion
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a larger wage increase if the Union was not voted in;
by telling an employee that union support was a reason for
deciding to discharge another employee; and by implying
to an employee that it has been closely scrutinizing his work
because of his union activity, the Company violated Section
8(a)(1) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act.
Because Respondent discriminatorily discharged one em-
ployee and discriminatorily eliminated the regular hours of
overtime of another employee, I find it necessary to order it
to offer the discharged employee full reinstatement, and to
compensate the two employees for lost pay and any loss of
other benefits resulting from the discrimination, in accord-
ance with the formula set forth in F. W1 Woolworth Com-
pany, 90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corporation, 231 NRLB 651 (1977). See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Inasmuch as Respondent's unlawful conduct goes to the
very heart of the Act, I find it necessary to issue a broad
Order, requiring Respondent to cease and desist from in-
fringing in any other manner upon the rights guaranteed
employees by Section 7 of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2
The Respondent, The Gilmer Grocery Company, Inc. d/
b/a Chelyan Foodland, Chelyan, West Virginia, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, eliminating the overtime of, or other-
wise discriminating against any employee for supporting
Food Store Employees Union Local 347, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
2 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.
(c) Threatening to close the store before letting a union
come in.
(d) Telling any employee not to talk about a union with
other employees.
(e) Threatening to discharge any employee for support-
ing a union.
(f) Threatening to discharge all employees if a union
comes in or wins an election.
(g) Promising to give employees a wage increase to dis-
courage union support.
(h) Promising to promote an employee on the condition
that a union is not voted in.
(i) Telling any employee that union support is a reason
for discharging another employee.
(j) Implying that an employee's work has been closely
scrutinized because of his union activity.
(k) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the fbllowing affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Beverly Stamper immediate and full reinstate-
ment to her former job or, if her job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her and
James Hughey whole for any loss of pay and other benefits
in the manner set forth in the remedy section.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its store in Chelyan, West Virginia, copies of
the attached notice marked "Appendix."' Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
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