Country Boy Markets

National Labor Relations Board - Board Decisions

Feb 27, 1987

283 N.L.R.B. 122 (N.L.R.B. 1987)

122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Grady Delling, Individually and Country Boy Mr.
"D" Corp. d/b/a Country Boy Markets; Grady
felling, Individually and Glenwood Inc. d/b/a
Country Boy Markets; Grady Delling, Individ-
ually d/b/a Country Boy Markets and Mark
Reed, Attorney. Case 16=CA-12544
27 February 1987
DECISION AND ORDER
By MEMBERS JOHANSEN, STEPHENS, AND
CRAC,RAFT
On 24 September 1986' Administrative Law
Judge Thomas D. Johnston issued the attached de-
cision. The Respondents. filed exceptions and ,a sup-
porting brief, and the General Counsel filed limited
exceptions and a brief in support of her exceptions
and of the judge's decision.
The National Labor Relations Board has delegat-
ed its -authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,1 and
conclusions2 and to adopt the recommended
Order.3
i The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis'for re-
versing the findings.
Sec III,4, of the opinion refers to Store Manager Lonnie Tomlinson
as female We correct this inadvertent error of the judge. We also correct
the opinion to reflect the correct spelling of "perjure," and to indicate
that the accurate citation of NLRB v. Transportation Management Corp. is
462 U.S 393. None of these errors affects our decision.
2 We agree with Judge Johnston that the Respondents violated Sec
8(a)(1) of the Act by discharging Store Manager Kelley because of his
refusal to commit an unfair labor practice The credited testimony estab-
lishes that Kelley was ordered by the Respondents to terminate the em-
ployment of all employees who had signed union authorization cards
After the, discharges,, Kelley was discharged for refusing to fill out termi-
nation slips showing pretextual reasons for the discharges of five employ-
ees who actually had been fired, on instructions from General Manager
Dibler, for signing union authorization cards Although those discharges
are not before us in this proceeding, on the record before us there can be
no doubt that we would find them unlawful if called on to decide the
issue, Thus, when Dibler instructed Kelley to prepare the termination
slips, he was trying to persuade Kelley to act in furtherance of the Re-
spondents' unlawful activities by preparing false documentation to sup-
port the Respondents' position. In declining to go along with Dibler's re-
peated requests for the termination slips, Kelley was refusing to take part
any further in the Respondents' unfair labor practices. It is well settled
that an employer violates the Act by discharging a supervisor for refus-
ing` to' commit an unfair labor practice See Parker-Robb Chevrolet, 262
NLRB 402 (1982), enfd 711 F 2d 383 (D C. Car. 1983). Accordingly,
Kelley's discharge violated Sec. 8(a)(1).
s The General Counsel requests that the remedy include a visitatorial
clause authorizing the Board, for compliance purposes, to obtain discov-
ery from the Respondents under the Federal Rules of Civil Procedure
under the supervision of the United States court of appeals enforcing this
Order Under the circumstances of this case, we find it unnecessary to
include such a clause and we deny the General Counsel's request '
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Grady
Delling, Individually, Country Boy Mr. "D" Corp.
and Glenwood' Inc. d/b/a Country Boy Markets,
Midwest City, Oklahoma, their officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
Wayne A. Rustin , Esq., for the General Counsel.
Charles W. Ellis Esq. (Lawrence, Ellis & Harmon, P.A.),
of Oklahoma City, Oklahoma , for the Respondents.
Mark L. Reed, Esq., of Del City, Oklahoma, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge.
This case was heard at Oklahoma City, Oklahoma, on 8
through 10 July 19861 pursuant to a first amended
charge filed on 29' April 19862 in Case 16-CA-112544 by
Mark Reed, attorney, and a sixth consolidated com-
plaints issued on 26 June.
The sixth consolidated complaint, as amended, alleges
Grady Delling, Individually and Country Boy Mr. "D."
Corp. d/b/a Country Boy Markets; Grady Delling, Indi-
vidually and Glenwood Inc. d/b/a Country Boy Mar-
kets; and Grady Delling, Individually d/b/a Country
Boy Markets (the Respondents) violated Section 8(a)(1)
of the National Labor Relations Act (the Act), by dis-
charging Store Manager Everett O.V. Kelley for refus-
ing to falsify termination slips in order to establish a pre-
text for terminating employees as an integral part of a
pattern of conduct directed towards employees because
of their union activities and other concerted, activities for
the purpose of collective bargaining or mutual aid or
protection.
The Respondents in their answer as amended deny
having violated the Act.4
The issue involved is whether the Respondents violat-
ed Section 8(a)(1) of the Act by unlawfully discharging
Store Manager Kelley for his refusal to commit unfair
labor practices by falsifying termination slips in order-to
establish a pretext for terminating employees because of
their union activities.
On the entire record in this case and from my observa-
tions of the witnesses, and after due consideration of the
i All dates referred to are in 1986 unless otherwise stated,
z The original charge was filed on 20 March.
s Certain other cases , including Cases 16-CA-12454, 16-C4-12476,
16--CA-12525, 16-CA-12568, 16-CA-12586,16-CA- 12617, and 16-CA-
12670, which were originally consolidated for hearing with the instant
case, were settled and severed from the instant case, and another case,
16-CA-12495, was severed , the charge was withdrawn , and the case was
closed
4 While the answer pleads certain affirmative defenses, they do not
pertain to the instant case
283 NLRB No. 22
COUNTRY BOY MARKETS
briefs filed by the General Counsel and the Respondentss
I make the followings
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Grady Delling, Individually d/b/a Country Boy Mar-
kets, a sole proprietor with an office and place of busi-
ness located at Midwest City, Oklahoma, is engaged in
the retail operation of a chain of supermarket stores.
Country Boy Mr. "D" Corp., an Oklahoma corpora-
tion with an office and place of business located in Mid-
west City, Oklahoma d/b/a Country Boy Markets, is en-
gaged in the retail operation of a chain of supermarket
stores.
Glenwood, Inc., an Oklahoma corporation with an
office and place of business located in Midwest City,
Oklahoma d/b/a Country Boy Markets, is engaged in
the retail operation of a chain of supermarket stores.
During the 12-month period preceding 26 June, Grady
Delling, Individually, Country Boy Mr. "D" Corp. and
Glenwood, Inc., d/b/a Country Boy Markets in the
course of their operations each derived gross revenues in
excess of $500,000 and each purchased and received
goods and supplies, valued in excess of $5000, at their su-
permarket stores located in the State of Oklahoma direct-
ly from sources located outside the State of Oklahoma.
Grady Delling, Individually, Country Boy Mr. "D"
Corp., and Glenwood Inc. d/b/a Country Boy Markets
are affiliated business enterprises with common officers,
ownership, directors, management, and supervisors; have
a common labor policy affecting employees; have
common premises and facilities; hold themselves out to
the public as a single integrated business enterprise; and
are a single employer under the Act.
Grady Delling,, Individually, Country Boy Mr. "D"
Corp., and Glenwood Inc. d/b/a Country Boy Markets
each separately and together are employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers Union, Local
1680 is a, labor organization within the meaning of Sec-
tion 2(5) of'the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondents are engaged in the business of operating a
chain of supermarket stores located at Midwest City,
Oklahoma, and vicinity . Included among their official
and supervisory personnel are Owner Grady Delling,
General 'Manager over all the stores Wayne Dibler,
Store Manager Lonnie Tomlinson , and former Store
Manager Everett O. V. Kelley.7
The Charging Party did not submit a brief
e Unless otherwise indicated the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in the record,
which I credit.
7 The four individuals are supervisors under the Act
123
Although several employees, including Tom Moran,
David Link, and Donna Shields, testified Wayne Steven-
son held the position of assistant store manager at store 2
under Store Manager Kelley and assigned them duties,
approved schedule changes for some of them, allowed
employees to leave work early, and made sure employees
were doing their jobs, Wayne Stevenson described his
authority over the employees as being only similar to
that of the office clerical employees who worked there.
Stevenson, who referred to his position as "sort of assist-
ant manager" or "night manager," denied he ever hired
or effectively recommended hiring employees, made the
decision to fire employees, or recommended employees
be fired. Store Manager Kelley, whom l credit, denied
Stevenson held the title of assistant store manager, which
is consistent with Stevenson's testimony, and stated when
Stevenson closed up the store at night he would instruct
Stevenson on what to do.
Absent as here any showing Stevenson possessed the
statutory indicia of a supervisor within the meaning of
Section 2(11) of the Act,8 I find, contrary to the General
Counsel's contention, that Stevenson was not a supervi-
sor under the Act.
About the latter part of 1985 the Union began an orga-
nizing campaign among Respondent's employees. Some
of the employees who signed union authorization cards
were Tom Moran, David Ray, David Link, Donna
Shields, and Sharmane Black. These employees all
worked at Country Boy Markets store 2 under Store
Manager Kelley. Moran signed his card on 29 December
1985 and on 5 January he accompanied Union Organizer
Karen Wade to a couple of Respondents' other stores
where they passed out union fliers. According to Wade
while she and -Moran were at the Glenwood Store she
identified herself as a union organizer to Tim Dibler9
who she believed was either the store manager or assist-
ant store manager. Wade overheard Tim Dibler, who she
also talked to about the Union, talking to his father Gen-
eral Manager Dibler on the telephone telling him they
had a union organizer in the store and that he would
keep her there until Dibler arrived. Afterwards General
Manager Dibler came to the store and,saw both Moran
and. Wade who spoke to him. However, General Manag-
er Dibler only looked at them without saying anything
and they left the store,
General Manager Dibler did not dispute the testimony
of either Wade or Moran, which I credit regarding this
incident.
Besides signing a union authorization card David Link
also solicited another employee at work to sign a card.
The, Respondents were admittedly opposed to the
Union's organizing campaign.
Donna Shields stated General Manager Dibler in a
meeting held with employees in Store Manager Kelley's
a Sec. 2(11) of the Act defines a supervisor as a person "having author-
ity, in the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other employees,
or responsibly to direct them, or to adjust their grievances, or effectively
to recommend such action, if such authority is not of a merely rou-
tine or clerical nature, but requires the use of independent judgment "
9 Tim Dibler did not testify
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office told the employees not to talk about the union in
the store. Shields, who I credit, denied this was limited
to while employees were on duty. General Manager
Dibler acknowledged telling employees not to talk about
the Union in the store but said he told them not to do it
on company time.
Wayne Stevenson testified about late December 1985
or early January General Manager Dibler, during a
meeting at which Dibler spoke to Stevenson and another
employee with Store Manager Kelley present, mentioned
there had been a bunch of cards being passed around
about the Union and he did not care or want to know
whether they signed them . However, Dibler said unless
Owner Delling wanted to go union they were not going
union . Dibler mentioned they all knew what happened to
Humpty10 and Safeway was about to go out of business
in Oklahoma because of the Union so unless Delling
wanted to sign the bottom line they were not going
union. Under cross-examination Stevenson said when
Dibler made the statement Dibler was talking about sign-
ing a contract.
General Manager' Dibler did not deny the testimony of
Wayne Stevenson or Store Manager Tomlinson and I
credit their undisputed testimony along with that of
Donna Shields and find Dibler made the alleged state-
ments that they attributed to him.
Store Manager Tomlinson testified that about the end
of February, shortly after she became store manager, she
was present at one of the meetings General Manager
Dibler held with small groups of employees at which
Dibler spoke about the Union. Tomlinson stated when
one of the employees present asked if they would be ter-
minated if they signed' a union card, they said sign and
fmd out.
Store -Manager Tomlinson, whom I credit, also stated
that shortly after she became a store manager, she held a
meeting with employees during which she mentioned if
the store did go union they would probably end up clos-
ing the -store because their store in particular probably
would not be able to afford it.
Tomlinson also acknowledged about the end of Febru-
ary or early March when two employees asked her if the
statement Tomlinson had made about closing the store if
the Union -came in was true she informed them it was.
According to Tomlinson she had been informed they
would probably close the store down if the Union came
in and she admitted passing that information on to em-
ployees.
B. The Discharge of Store, Manager Kelley
Everett Kelley was employed by the Respondents
from 22 October 1984 to 31 January and held the posi-
tion of store manager of store 2.
Store Manager Kelley stated he first learned about the
union, organizing campaign from General Manager
Dibler, who came to his store and inquired whether
Kelley had any extra employees Dibler could send to the
Glenwood store to, work. Dibler gave as the reason he
had just fired two employees there, whose names he did
10 Humpty Dumpty was the name of another chain of food stores and
some of its stores were purchased by the Respondents after they closed
not mention, for signing union cards. Dibler instructed
Kelley not to tell the employees the reason they were
being transferred. Kelley, as a result of this conversation,
transferred employee Jimmy Carr to the Glenwood
store.
Kelley also stated Dibler on one occasion told him
that every store they found out were signing union
cards, they were all going to be fired.
According to Kelley in December 1985 Wayne Ste-
venson informed him employees Tom Moran, David
Link, David Ray, Keith Thompson, Donna Shields, and
Katherine Johnson had signed union authorization cards.
Later Stevenson told him Sharmane Black and a part-
time employee named Brian had also signed cards.
Wayne Stevenson acknowledged informing Kelley
which employees had signed cards.
Kelley testified that in January General Manager
Dibler came to his store and inquired which employee
was Tom Moran. - Dibler then asked Kelley whether he
had anything on Moran he could fire him for. Kelley
denied having any reason and stated Moran was one of
his best employees. Dibler, who had a list of names of
employees to get rid of, then instructed Kelley to fire ev-
erybody who signed a union card. Dibler also told
Kelley on one occasion that Oleen Dunn, who .worked
in the office at store 2, had informed Owner Delling and
himself about the employees who had signed union
cards.
General Manager Dibler denied telling Kelley he had
fired employees at other stores because of the Union or
telling Kelley to fire Tom Moran, Donna Shields, David
Ray, or David Link. According to Dibler, as far as he
knew it was Kelley who decided to let them go. I credit
Kelley rather than ' Dibler, whom I discredit, and find
Dibler did instruct Kelley to discharge those employees
who had signed union authorization cards. Apart from
my observations of the witnesses in discrediting Dibler, I
fmd his testimony was contradictory and implausible.
Kelley, acting on Dibler's instructions to fire those em-
ployees who had signed union authorization cards, stated
he personally fired Tom Moran, David Ray, and Donna
Shields for signing union authorization cards. Kelley also
instructed Wayne Stevenson to fire David Link and
Sharmane Black for signing union authorization cards
and Stevenson did. Kelley also stated that instead of
firing Katherine Johnson for signing a card, he moved
her to a job in the bakery because she was the sole sup-
port of a large family.
Wayne Stevenson acknowledged Kelley had informed
him that General Manager Dibler had instructed Kelley
to fire the employees who had signed union cards.
Tom Moran testified he was fired by Kelley on 6 Jan-
uary. The reason Kelley gave was Moran- had gotten
into an argument with a checker 3 or 4 weeks -ago.
When Moran denied it and told Kelley that was not the
real reason he was firing him, Kelley replied all he knew
was what he was being told and indicated Owner bell-
ing and General Manager Dibler had told Kelley to fire
Moran.
David Ray testified he was fired by Kelley on 6 Janu-
ary. The reason Kelley gave for firing him was the big
COUNTRY BOY MARKETS 125
men, whom he did not name, were mad because , Ray did
not come in to work the previous Friday. According to
Ray he had been called to come in to work the previous
Friday by Wayne Stevenson. However, it was his sched-
uled day off and he had already made plans. On inform-
ing Stevenson he could not come in' and the reason, Ste-
venson told him it was okay. Ray denied he had ever
been reprimanded about his work attendance.
Donna Shields stated on 15 January when she reported
to work Kelley informed her she had been laid off. The
reason Kelley gave was he had been in, a meeting and he
had to lay some employees off because business was
slow. Although Kelley asked her whether she wanted to
go to work in the bakery and she said she did, Kelley
never contacted her.
David Link testified that about 7 January, shortly after
he began work, Wayne Stevenson informed Link he was
going to have to let him go because he had called in sick
a couple of times and he was too slow. Stevenson also
said it was not his idea to let Link go.
Link acknowledged he had called in sick a couple of
times but denied he had been reprimanded for it or
warned he would be terminated. Link also admitted that
on a couple of occasions when General Manager Dibler
previously managed the store Dibler had told both
Wayne Stevenson and himself they needed to speed up.
However, Link was not warned he would be terminated
if he did not speed up.
Sharmane Black stated on 15 January she was in-
formed by Wayne Stevenson she was fired. The reason
Stevenson gave was because Black had burned the cook-
ies. Stevenson also said Store Manager Kelley had told
Stevenson to fire Black.
About a week and a half later Black credibly stated
without denial that she called Owner Delling and in-
formed him she had not signed a union card because she
needed a job. Delling then asked Black whether' she was
sure she had not signed a card. After Black assured Dell-
ing she had not, Delling told Black he would see what
he could do about getting her job back and he would
contact her. Delling then asked Black if she knew who
was giving out names for the people. Black denied
knowing who was giving out names so the union people
could contact them. Black was rehired a few days later.
Both Store Manager Kelley and Wayne Stevenson,
who said he acted on Kelley's instructions in firing
David Link and Sharmane Black, admitted the reasons
they gave to Tom Moran, David Ray, Donna Shields,
David Link, and Sharman Black for firing them were
false reasons and that the real reasons for their discharge
were because they had signed ' union =authorization cards.
Immediately following a meeting of the store manag-
ers at the Tradewinds Motel, at which Respondents' at-
torneys informed them how to conduct themselves
during the union organizing campaign that had already
started, Owner Delling and, General Manager Dibler
held a separate meeting with the 'store managers „ During
this second meeting Store Manager Kelley stated Delling
said they were his stores and he Would run them as he
wanted to and it was just like the old saying that the bas-
ketball player that did not foul was not a very good
player and they were going to foul a lot and carry on as
usual. Store Manager Tomlinson, who attended the meet-
ing, also said Delling explained what they could or could
not do, during which he made a statement to the effect it
was going to be like basketball players and to be a good
basketball player you had to foul, and if need be he
would foul. Tomlinson denied Delling was just saying
they were going to be aggressive.
Owner Delling acknowledged mentioning a basketball
player fouling. However, Delling's version was he men-
tioned even the professional basketball players foul and
said while they may occasionally, but not intentionally,
do it themselves, they were still going to run their stores
and manage them as they knew how to manage them.
According to Delling he also said they were going to
play by the rules.
I credit the testimony of Store Managers Kelley and
Tomlinson rather than Delling concerning the statements
made by Delling. Besides my observations of the wit-
nesses in discrediting Delling, his testimony was both im-
plausible and contrary to that of other supervisory per-
sonnel of the Respondents.
Store Manager Kelley testified that after the meeting
ended, General Manager Dibler instructed him to fill out
termination slips on the people he had fired. Kelley re-
fused telling Dibler he was not going to fill them out and
perjure himself in front of the National Labor Relations
Board. Kelley acknowledged Dibler did not tell him
what to put on the termination slips; however, he knew
Dibler did not want him to put on there it was because
they signed a union card.
According to Kelley, prior to that time the Respond-
ents did not require termination slips for discharges and
he had never prepared any previously or been asked to.
General Manager Dibler acknowledged instructing
Kelley to prepare termination slips listing the reasons
why he fired Tom Moran, David Ray, and David Link,
but denied telling Kelley to falsify the information.
Dibler admitted that the use of termination slips did not
begin until sometime in January. This occurred on
advice of counsel after a charge had been filed about the
middle of January regarding Tom Moran''s discharge.
About 2 days later Dibler asked Kelley in person
whether he had filled the termination slips out and
Kelley informed Dibler he had not.
According to Kelley, every 2 or 3 days on about a
dozen occasions, including both on the telephone and in
person, Dibler asked him whether he had the termination
slips ready whereupon' he informed Dibler he had not
and said he was not going to fill them out.
The last time Kelley stated he was asked for the termi-
nation slips was on 30 January. On that occasion a girl
from the office named' Jeannie came to the store that
morning and informed ' Kelley that Dibler had sent her
there to see if Kelley had filled out the termination slips
and told Kelley if he had not she was supposed to call
Dibler right back. Kelley told her to tell Dibler he was
not going to fill them out and perjure himself in front of
the National Labor Relations Board.
Wayne Stevenson also stated there were several tele-
phone calls from Respondents' office asking for the ter-
mination slips from Kelley and, on one occasion, an
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office girl came to the store and asked for them . Steven-
son also stated Kelley had told him Dibler wanted termi-
nation slips for the discharged employees but Kelley told
Stevenson he did not want to write them because if the
cases ever came to court he would have to perjure him-
self on the stand because the letter would be a lie.
General Manager Dibler acknowledged requesting
Kelley on 6 to 10 occasions to deliver the termination
slips to him . However, he stated Kelley always replied
he did not have time or to check with Kelley in a day or
two. Dibler denied Kelley ever said he was not going to
furnish them until the day he discharged Kelley.
To the extent the testimony of Kelley and Dibler con-
flicts, I credit Kelley for reasons previously stated.
On 31 January Kelley was discharged by Dibler.
Kelley stated on that occasion Dibler first reminded him
of a conversation they had about a month ago in which
Kelley had asked Dibler whether he was going to be
fired. il Dibler then said he finally remembered to ask
Delling about it and Delling had said to go ahead and
terminate Kelley and let them make a change. The
reason Dibler gave Kelley for discharging him was poor
inventory.
Dibler's version of the discharge conversation was
when he went out to discharge Kelley that day he first
asked Kelley whether he had the termination slips. Kel-
ley's response was he had them but in a safe deposit box
and would produce them when the time was necessary.
Dibler then said he and Owner Delling had talked and
decided to make ' a change because Kelley had asked
Dibler previously if he was going to be fired and had
mentioned moving into a house and had heard rumors
and knew he was going to get fired.
I credit Kelley's version of the discharge conversation
rather than Dibler, whom I have previously discredited.
Following Kelley 's discharge he'was replaced by Jeff
Holmquist who was manager of store 7.
C. Respondents' Defense
General Manager Dibler testified the reasons, Store
Manager Kelley were given for being discharged were
because he was overstocked on inventory and operating
at a loss. While these were the reasons that led to the
decision Dibler stated, there were other reasons includ-
ing Kelley did not come up and sack groceries when he
was supposed to, he would not work in the office or run
a register, and his inability as a store manager.
The reasons Owner Delling gave for Kelley's dis-
charge were he was continuously overbuying and was
not making any progress in cutting inventory down and
they just had too much excess inventory.
General Manager Dibler stated that in November 1985
he and Owner Delling first talked about discharging
Kelley and made the decision to do so but then decided
to wait until after the holidays were over because Kel-
ley's wife was ill. While Owner Delling testified he first
considered discharging Kelley in October or November
11 According to Kelley about a month earlier he wanted to move into
a house but first talked to Dibler to make sure - he was not going to be
discharged because of a rumor he had heard about his being discharged,
which Owner Delling had already denied
1985 but did not act then because Kelley's wife was -ill
and the holidays were coming up he, unlike Dibler,
stated he was hoping Kelley would come around and do
a better job, which he denied Kelley did.
Delling testified that beginning about August or Sep-
tember 1985 he talked with Kelley on several occasions
about Kelley's excess inventory and how much overbuy-
ing Kelley was doing. According to Dibler, carrying a
high inventory makes it hard to make a profit and results
in damages.
Dibler also stated on different occasions he counseled
Kelley about his inventory. During June 1985 Dibler said
the inventory was $30,000 to $35 ,000 too high and he in-
formed Kelley that Kelley needed to cut it down. How-
ever by October 1985 instead of decreasing the inventory
it had increased another $30,000 for a total of $185,000.
Both Delling and Dibler stated that about October
1985 they met with Kelley at which time Delling took
away Kelley's right to make purchases for the store
without Dibler's approval.
According to Dibler after this meeting at Delling's
suggestion approximately $35,000 to $40,000 worth of in-
ventory at Kelley's store was then returned between 5
October 1985 and 4 January to the Flemming Company
or transferred to other stores of the Respondents.
Respondents ' records, as indicated by a summary taken
from them, reflect store 2's average weekly sales were
approximately $29,147 and the inventory on hand there
was approximately $155,713 on 22 June 1985; $185,587
on 5 October 1985; $142,968 on 4 January; and $134,962
in February.12
The summary also reflects the inventory for store 6,
which is the only other store with comparable average
weekly sales of approximately $28,335, was approximate-
ly $123,290 on 5 October 1985 and $110,659 on 4 Janu-
ary. However, the record does not reflect what the in-
ventory was on 22 June 1985 or February.
General Manager Dibler acknowledged inventory is
normally higher around holidays such as Thanksgiving
and Christmas in order to meet customers ' demands.
The Respondents presented several employees who
previously worked under Store Manager Kelley., Barbara
Conley, who previously managed a store for the Re-
spondents, stated while she worked in the office under
Kelley, Kelley would not do anything that needed to be
done such as checking, carrying out groceries, taking
care of the -front end, or scheduling, and caused friction
among employees by telling one employee something
about the other employee. Conley also described .the
back room as being so full of inventory a person could
hardly get through it.
Jimmy Carr claimed while working under Kelley at
store 2, as compared with periods he worked under
other store managers there, the back stock was growing
and Kelley was overordering because it was piling up in
the back. Carr also said Kelley would not help out with
checking, when it was needed. Carr acknowledged he
had never been a store manager or ordered inventory.
1 t General Manager Dibler stated this inventory was conducted 1 Feb-
ruary.
COUNTRY BOY MARKETS 127
Eric Russell claimed under Manager Kelley the back
room was overstocked with inventory whereas under
Store Manager Holmquist it is now way down . Although
Russell stated he ordered inventory for his frozen foods
department, he acknowledged he did not order inventory
for the entire store.
Neva Moseley , who worked as assistant store manager
at store 2 under several managers , including Larry
Wilder, Wayne Dibler , and Kelley, stated while Kelley
was manager there was a lot of stock in the back room,
the shelves were stocked from the floor to the ceiling,
and when trucks came in they did not have anywhere to
put the stock . Under Dibler and Wilder, however, they
did not get stuff in they did not need and what merchan-
dise they got in it went right to the shelf or on the floor.
Moseley acknowledged the store manager was the
person responsible for ordering inventory for the entire
store.
Both Owner Delling and General Manager Dibler ad-
mitted having knowledge about the Union's attempt to
organize Respondents' employees and they were con-
cerned and took actions to prevent it. However, Delling,
on being asked whether Kelley 's involvement or conduct
in the union organizing drive had anything to do with
his decision to discharge Kelley, responded by denying
he had any knowledge of Kelley having anything to do
with it in any way. Neither Delling nor Dibler specifical-
ly denied that Kelley's refusal to fill out termination slips
on those employees Kelley discharged for signing union
authorization- cards had anything to with his discharge.
Store Manager Kelley admitted he had been counseled
by General Manager Dibler for carrying too high an in-
ventory and Dibler wanted it down before the end of the
year. However, Kelley denied his inventory was high
during the latter part of December 19,85 through his dis-
charge in late January, and stated in fact by 4 January it
was down $40,000. Kelley also stated a lot of inventory
had been taken out of his warehouse by Owner Delling
and General Manager Dibler and he never saw where he
had been given credit for it. Kelley denied his store was
losing money on the inventory.
Kelley also denied he had ever been reprimanded for
his job performance or ever Warned he would be dis-
charged because of a bad inventory.
Besides having a charge on his behalf filed with the
Board , Kelley also filed a charge with the ' Equal Em-
ployment Opportunity Commission against the Respond-
ents alleging his discharge was based on age discrimina-
tion.
D. Analysis and Conclusions
The General Counsel contends the Respondents violat-
ed Section 8(a)(1) of the Act by unlawfully discharging
Store Manager Kelley, a supervisor under the Act, for
refusing, to falsify termination slips in order to establish a
pretext for terminating employees because of their union
activities and in effect discharged Kelley for his refusal
to commit unfair labor practices. The Respondents deny
having violated the Act and assert Kelley was dis-
charged for overstocking on inventory and operating at
a loss, not performing his duties, and his inability as a
store manager. The Respondents in their brief denied the
General Counsel had proved Kelley was fired because he
refused to author a false record intended for Respond-
ents personnel file.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
The law is well settled that an employer violates Sec-
tion 8(a)(1) of the Act by discharging a supervisor for re-
fusing to commit unfair labor practices because such dis-
charge interferes with the exercise of employees' Section
7 rights coupled with the need to ensure that even statu-
torily excluded individuals may not be coerced into vio-
lating the law. Parker-Robb Chevrolet, 262 NLRB 402,
404 (1982); and Advertiser's Mfg. Co., 280 NLRB 1185
(1986).
Where motivation" for discharge is at issue in cases
alleging violation of Section 8(a)(1) of the Act the Gen-
eral Counsel must make a prima facie showing sufficient
to support the inference that protected activity by em-
ployees was a motivating factor in an employer's deci-
sion to discharge -them and the employer then has the
burden of showing the employees would have been dis-
charged absent the protected activity. Wright Line, 251
NLRB 1083, 1089 (1980),' enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 459 U.S.
1014 (1982). Direct evidence of discriminatory motiva-
tion ' is not necessary to support a f nding; of discrimina-
tion and such intent may be inferred from the record as a
whole. Heath International, 196 NLRB 3113 (1972).
The findings supra establish that Store ' Manager
Kelley, a supervisor under the Act, acting on specific in-
structions from General Manager Dibler to discharge all
the employees at his store who had signed union authori-
zation cards, discharged employees Tom Moran, David
Ray and Donna Shields and had, Wayne Stevenson dis-
charge David Link and Sharmane Black all because they
had signed union authorization cards. Dibler and Owner
Delling had been told which employees had signed
cards. Both Kelley and Stevenson orally gave those em-
ployees false reasons for their, discharges in order to con-
ceal'the real discriminatory reasons for discharging them.
Following their discharges, which occurred during 6
through 15 January, Dibler instructed Kelley to fill out
written termination slips on the employees he had dis-
charged. Kelley refused, informing Dibler that he was
not going to purger himself in front of the. National
Labor Relations Board. While Dibler did not instruct
Kelley what reasons to put on the termination slips, it
was, obvious Dibler was not seeking to have the records
show the employees were actually fired because they
signed union authorization cards. Moreover, when
Kelley told Dibler he refused because he was not going
to purger himself, Dibler did not assure him he did not
have to. Despite repeated requests by Dibler up until the
day, before Kelley's discharge for Kelley to furnish
Dibler with the termination slips for the discharged em-
13 The motivation at issue here is whether Kelley was discharged for
refusing to commit unfair labor practices as contended by the General
Counsel or for cause as the Respondents argue in their brief.
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees, Kelley steadfastly refused to furnish them saying
he was not going to fill them out or purger himself in
front of the National Labor Relations Board . It is clear
that Dibler , by his demands to get Kelley , who refused
to prepare falsified records to conceal the fact the Re-
spondents had discharged five employees for signing
union authorization cards, sought to have Kelley commit
further unfair labor practices.
The Respondents' claims that Kelley was discharged
because of overstocking inventory and operating at a
loss, not performing his duties, and his inability as a store
manager are unpersuasive , not supported by the evi-
dence, and are rejected . Although Kelley's store did
have a high inventory and Kelley was counseled about
it, Respondents ' own records reflect it substantially de-
creased between 5 October 1985 and 1 February. While
some of the decrease was attributed to shipping and
transferring stock elsewhere, this occurred before the
further decrease in inventory between 4 January and 1
February . Moreover if, as Respondents assert , Kelley's
right to make purchases without Dibler's approval was
revoked in October' 1985 it appears from that time on
Dibler was aware of and approved Kelley 's actions in or-
dering inventory for the store . Insofar as the other rea-
sons given for Kelley's discharge are concerned no pro-
bative evidence was presented to support them . The re-
quired duties of a store manager for the Respondents
were never fully defined and Kelley denied that his
store, which Respondents' own records show had aver-
age weekly earnings of approximately $29,147, was oper-
ating at a loss.
Based on the foregoing findings as discussed and
having rejected Respondents ' defense, I am persuaded
and fmd the Respondents violated Section 8(a)(1) of the
Act by discriminatorily discharging Store Manager
Kelley, a supervisor 'under the Act, on 31 January be-
cause he refused to commit unfair labor practices under
the Act by preparing termination slips showing false rea-
sons for the discharges of five employees who were dis-
charged for signing union authorization cards . I further
fmd the reasons given by the Respondents for discharg-
ing Kelley were mere, pretexts to conceal the discrimina-
tory reason for his discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section
III, above , found to constitute unfair labor practices oc-
curring in connection the operations of the Respondents
described in section I, above , have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
2. United Food and Commercial Workers Union,
Local 1680 is a labor organization within the meaning of
Section 2(6) and (7) of the Act.
3. By discharging Everett Kelley , a supervisor under
the Act, on 31 January 1986 for refusing to commit
unfair labor practices thereby interfering with the exer-
cise of employees ' rights under Section 7 of the Act, Re-
spondents violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that they cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act . Accordingly, the Re-
spondents shall be ordered to offer immediate and full re-
instatement to Everett Kelley , or if that job no longer
exists, to a substantially equivalent job without prejudice
to his seniority and other rights and privileges and make
him whole for any loss of earnings and other compensa-
tions he may have suffered as a result of his discriminato-
ry discharge on 31 January 1986 . Backpay shall, be com-
puted in accordance with the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corp., 231 NLRB 651 (1977).
See generally Isis Plumbing Co., 138 NLRB 716 (1962).
The Respondents shall be ordered to remove from
their files any references to the discriminatory discharge
of Everett Kelley herein found and to notify ' him, in
writing, this has been done and evidence of their unlaw-
ful conduct will not be used as a basis for future , person-
nel actions against him.
The General Counsel 's request that the remedial order
include a visitatorial clause authorizing the Board to
engage in discovery under the Federal Rules of Civil
Procedure to enable it to monitor compliance with the
Board 's Order as enforced by the court of appeals is re-
jected on the grounds the Board does not provide for
discovery procedures in its proceedings and there is no
showing that under the circumstances presented here
such a clause is necessary.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed14
ORDER
The Respondents , Grady Delling , Individually, Coun-
try Boy Mr . "D" Corp., and Glenwood Inc. d/b/a
Country Boy Markets, Midwest City, Oklahoma, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
CONCLUSIONS OF LAW
1. Grady Delling, Individually, Country Boy Mr. "D"
Corp., and Glenwood Inc. d/b/a Country Boy Markets
are employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
14 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec. 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
COUNTRY BOY MARKETS 129
(a) Discharging supervisors for refusing to commit
unfair labor practices thereby interfering with the exer-
cise of employees' rights under Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Everett Kelley immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent job without prejudice to his se-
niority and other rights and privileges and make him
whole for any loss of earnings and other compensations
he may have suffered by reason of his discriminatory dis-
charge on 31 January 1986 in the manner set forth in the
remedy section of the decision.
(b) Remove from their files any references to the dis-
charge of Everett Kelley herein found to be unlawful
and notify him, in writing, this has been done and evi-
dence of their unlawful conduct will not be used as a
basis for future personnel actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backay due under the
terms of this Order.
(d) Post at all of their stores located at Midwest City,
Oklahoma, and -vicinity copies of the attached notice
marked "Appendix."15 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondents' authorized' representa-
tive, shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondents -to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
IT IS FURTHER ORDERED that with respect to Case 16-
CA-12544 the sixth consolidated complaint, as amended,
is dismissed insofar as it alleges unfair labor practices not
specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our supevisors for refusing to
commit unfair labor practices thereby interfering with
the exercise of employees' rights under Section 7 of the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Everett O. V. Kelly immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent job without prejudice
to his seniority and other right's and privileges and WE
WILL make him whole for any loss of earnings and other
benefits he may have suffered by reason of our discrimi-
nation against him, with interest.
WE WILL remove from our files any references to the
discharge of Everett O. V. Kelley herein found unlawful
and WE WILL notify him, in writing, this has been done
and evidence of our unlawful conduct will not be used as
a basis for future personnel action against him.
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice'reading "Posted by Order of the Nation-
al 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."
GRADY DELLING, INDIVIDUALLY, ' COUN-
TRY BOY MR. "D" CORP., AND GLEN-
WOOD INC. D/B/A COUNTRY BOY MAR-
KETS