Dillon Stores, Div. of Dillon Co.

National Labor Relations Board - Board Decisions

Mar 29, 1979

241 N.L.R.B. 579 (N.L.R.B. 1979)

DILLON STORES, DIV. OF DILLON COMPANIES
Dillon Stores, Division of Dillon Companies, Inc. and
Amalagated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local Union 576. Case
17-CA-8079
March 29, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On December 19, 1978, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief, and an an-
swering brief to Respondent's 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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 and hereby or-
ders that the Respondent, Dillon Stores, Division of
Dillon Companies, Inc., Topeka, Kansas, its officers,
agents, successors, and assigns shall take the action
set forth in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1962). we have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
charges filed January 23, and March 8, 1978, by Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local Union 576, herein referred to as
the Union, against Dillon Stores, Division Dillon Compa-
nies, Inc., herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional Di-
rector for Region 17, issued a complaint dated March 13,
1978, alleging violations by Respondent of Section 8(a)(4),
(3), and (1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended, herein called the Act. Respon-
dent, by its answer, denied the commission of any unfair
labor practices.
Pursuant to notice, trial was held before me in Topeka,
Kansas, on July 18 and August 15 and 16, 1978, at which
all parties were represented by counsel and were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. Thereafter, the parties
filed briefs which have been duly considered.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Kansas corporation, is engaged in the op-
eration of retail grocery stores located within and without
the State of Kansas, including four stores situated in To-
peka, Kansas. In the course and conduct of its business
operations Respondent annually receives at its Kansas
stores goods and materials valued in excess of $50,000
which are shipped from points located outside the State of
Kansas. At the Topeka, Kansas, store involved herein
(Store No. 50), Respondent annually derives gross revenues
in excess of $500,000. I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local Union 576, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On January 7, 1978, Respondent discharged James P.
Kuhn, a meat department employee at Store No. 50. In this
proceeding, the General Counsel contends that Kuhn was
discharged, in violation of Section 8(a)(3) and (4) of the
Act, "because of said employee's support for, or activities
on behalf of, the Union" and because he "was subpoenaed
by the Union to appear, and did appear, at a post-election
hearing . . . to give testimony under the Act."' The General
Counsel further claims that on November 3, 1977, 2 months
before the discharge, Respondent demoted Kuhn for the
same unlawful reasons. Respondent asserts that it changed
Kuhn's duties in November 1977, and discharged him in
January 1978, because of an unsatisfactory work perform-
ance.
For the 9 month period preceding Kuhn's termination,
the meat market manager at Store No. 50 was Melvin Cow-
ger. The General Counsel contends, and Respondent de-
nies, that Cowger functioned as a statutory supervisor
whose actions and statements are attributable to Respon-
I That heanng was held on June 8, 1977.
241 NLRB No. 82
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent.2 As will appear hereinafter, the General Counsel must
prevail on its contention concerning Cowger in order to
sustain its case with respect to the demotion and discharge
of Kuhn.
B. A Ileged Superison' Salus of Cowger3
In April 1977, Melvin Cowger, who had previously
worked as the meat market manager at others of Respon-
dent's stores, became the market manager at Store No. 50.
At the time of hearing in the instant matter, Cowger still
served in that capacity.
The meat department at Store No. 50 is staffed by some
four or five individuals, including Cowger. The latter wears
a badge indicating his status as the department head and is
paid at an hourly rate greater than that earned by the other
employees in the department.
Cowger's immediate superior is Adrian Miller, the dis-
trict supervisor, who visits the department approximately
once per week. Miller's visits are, generally, 45 minutes to I
hour in duration and he spends most of that time conferring
with Cowger in an office. At all other times, the meat mar-
ket functions under the direction of Cowger. While the
store manager occasionally "walks through" the meat de-
partment during the course of a day, he does not assign
duties or otherwise participate in running the market.
Rather, as Miller testified, "Mr. Cowger was directing the
operations in that market as far as daily functions were
concerned."4
As meat market manager, Cowger spends up to 50 per-
cent of his worktime engaged in the performance of rank-
and-file type tasks. He also assigns and schedules work,
oversees the employees in the performance of their duties,
grants time off, and assigns overtime and vacations. Cowger
regularly reports to Miller about employee job performance
and makes recommendations to Miller concerning hiring
and promotions. The record evidence reflects that those rec-
ommendations are honored in many, if not all, cases. In
addition, Cowger prepares written evaluations of the de-
partment employees and orally counsels the employees with
respect to same. In certain instances, but not in others,
Cowger discusses the evaluations with Miller before send-
ing them to Respondent's corporate headquarters.' The
evaluation reports sometimes contain recommendations for
promotion.
2 After a representation case hearing held in February and March 1977, in
Case 17-RC-8218, the Regional Director determined, in his Decision and
Direction of Election dated April 18, 1977, that Respondent's meat market
managers, including Cowger, are not supervisors within the meaning of Sec.
2(11) of the Act. As a result, the market managers were eligible to vote in an
election conducted by the Board among the Topeka area meat department
employees on May 13, 1977, and in a second election held on November 30,
1977.
The fact-findings contained in this section are based upon the testimony
of Cowger. District Meat Supervisor Adrian Miller, and that of employees
James Kuhn, Curt Cuffle, Robert Puff, Bruce Winsor, and Sandra Monroe.
To the extent that Cowger's testimony differs from that of the other wit-
nesses, it is not credited. Cowger was an evasive and hostile witness and I
have evaluated his testimony in that light.
' According to Cowger, he is responsible for implementation of "all com-
pany divisional policies in the assigned meat department."
In October 1977, the evaluation system was changed to the extent of
permitting the store manager to play some part in the process. However, to
date, at Store No. 50, the store manager's role had been limited to attending
the counseling sessions.
Based upon the foregoing enumeration of Cowger's du-
ties and activities as meat market manager, I find and con-
clude that, at all times material herein, Cowger functioned
as a supervisor within the meaning of Section 2(11) of the
Act. Indeed, a contrary finding would require the further
conclusion that the department employees work entirely
without in-store supervision. While it is true that Respon-
dent exercises a high degree of centralized administrative
control over the meat departments of its stores, and that
market managers, such as Cowger, do not formulate basic
policies, it is also clear, on the state of this record, that
Cowger directs the operation of the Store No. 50 meat de-
partment, and its employees, on a day-to-day basis.
C. The Discharge of Kuhn6
James Kuhn was employed by Respondent from July,
1963, until his termination on January 7, 1978. For the 10-
year period preceding his discharge, Kuhn worked in the
meat markets at Respondent's Topeka area stores, usually
as the "Second Man." At the time he was fired, Kuhn was
the most senior meat market employee in the Topeka area.
In March 1977, while working at Store No. 47, Kuhn
learned from fellow meat department employee Robert Puff
that the Union was commencing an organizational cam-
paign. Thereafter, Kuhn, Puff, and employee Bruce Winsor
discussed the Union, about twice weekly, while in the store
lounge. The fourth employee in the department, Carol Dac-
kenhauser, was urged by Kuhn to attend a union meeting in
order to find out about its program.
On April 18, Kuhn was transferred to Store No. 50 as the
"Second Man." At the same time, Cowger was transferred
to that store from Store No. 20 because, according to the
testimony of Daryl Weigel, Respondent's director of meat
operations, a personality clash existed between Market
Manager Cowger and the Store No. 20 market employees.
After the transfer, on April 22, 1977, Kuhn signed a union
authorization card. In May, he voted in a Board-conducted
election.
During the first several months of Kuhn's tenure at Store
No. 50, he received complements from Cowger, at least
twice weekly, concerning his work performance. Thus,
Cowger told him:
"Jim, you are doing a real good job. As a matter of
fact you're doing a better job than any man that's ever
worked for me in the Topeka area."8
On June 2, 1977, Kuhn received a subpena from the
Union's attorney, requiring him to appear at a post-election
representation case hearing on June 8. The next day, June
3, Kuhn so informed Cowger in the presence of employees
6 Unless otherwise indicated, the fact-findings contained in this section are
based upon the testimony of Kuhn, who impressed me as an entirely honest.
forthright, and reliable witness.
7 At that time, the meat department at Store No. 47 was staffed by Kuhn,
Puff, Winsor, Dackenhauser, and Market Manager Jack Towsley.
I Those remarks were consistent with the last written evaluation received
by Kuhn while working at Store No. 47. In that document, Kuhn was de-
scribed by Market Manager Jack Towsley as a "definitely above average"
employee, a "self-starter" with a "good attitude" who was "never late" for
work. Accordingly, Towsley recommended that Kuhn be granted a 50-cent-
per-hour wage increase. Miller testified at the instant hearing that he agreed
with the evaluation at the time it was made.
580
DILLON STORES. DIV. OF DILLON COMPANIES
Hurt and Clark. Cowger laughed and said "You got a sub-
poena. You're in trouble. You better get you a lawyer."
When Kuhn replied that he did not need a lawyer and that
he had nothing to hide, Cowger laughed and said "We'll
see." At lunch that day, Cowger stated that Kuhn received
the subpena because he was responsible for the pregnancy
of a 13-year old girl.
Four days later, on Monday, June 6, in the presence of
Hurt and Clark, Cowger told Kuhn: "Well, Jim, you got
subpoenaed for the 8th. I'll tell you what I'll do. I'll give
you $5 not to appear for the subpoena." When Kuhn de-
clined the offer, Cowger posted a $5 bill on a bulletin board
and said, "Jim, you better take this $5. This is the easiest $5
you ever earned." Cowger repeated the offer several times
on that and the following day and, finally, raised the
amount to $10.9
Kuhn attended the representation case hearing held on
June 8, but did not testify. He was seated with employees
Cuffle, Puff, Monroe, Winsor, and Smith, some or all of
whom did testify on behalf of the Union.
During the course of the ensuing months, Kuhn suffered
continuous harassment by Cowger. Thus, according to
Monroe, who was transferred to the Store No. 50 meat de-
partment in October 1977, Cowger cursed and ridiculed
Kuhn every day, in front of other employees and custom-
ers. On October 25, Miller asked Kuhn to transfer to Re-
spondent's Salina store, some 116 miles west of the Topeka
area stores. Kuhn declined because, among other reasons,
the position paid $2 per hour less than Kuhn was then earn-
ing.'° On November 3, Cowger informed Kuhn that he
would no longer be allowed to cut meat and that, there-
after, Kuhn's duties would be restricted to ordering, stock-
ing cases, wrapping, and cleaning. As a result of the change
in assignment, Kuhn was required to work until 6 p.m. ev-
ery Saturday, as opposed to his former quitting time of 4:30
p.m. on that day. Kuhn asked Cowger to permit him to
trade hours with another employee on those Saturdays pre-
ceding a Sunday on which Kuhn was scheduled to work (so
as to allow him to attend church). Cowger replied that if the
schedule did not suit Kuhn, he would have to quit.
Respondent grants to its employees an annual "floating
holiday," to be taken when desired by each employee. The
holiday is normally arranged some 2 weeks in advance. On
November 15, Kuhn asked Cowger if he, Kuhn, could take
that holiday on the day preceding, or the day following,
Thanksgiving. Cowger replied: "Hell no. You can't have
it." When Kuhn asked why, Cowger stated: "Because I said
so." Later, Cowger explained: "Jim, either you like a man
or you don't like a man, just like Ellis Rainsberger (a then
recently fired football coach at a local university)." There-
after, on December 1, I day following a second election
conducted by the Board, Kuhn was notified at 4:45 p.m.
9 Clark is no longer employed by Respondent and did not testify concern-
ing the foregoing incidents. Hurt, currently employed at Store No. 50.
claimed he had not heard any discussions concerning subpenas. However.
employee Monroe credibly testified that Hurt had once informed her that he
would testify falsely in order to keep his job. Accordingly, I do not credit
Hurt's denial of the subpena discussions. For the reasons stated in fn. 3, 1
assign no weight to Cowger's denials of the above incidents.
10 Kuhn had worked for Respondent in Salina in the years 1963 to 1968.
before his transfer to Topeka. At one time, he expressed to Miller a desire to
return to Salina.
that he would be required by Cowger to take his floating
holiday on the next day, December 2.
On December 3, Cowger, after arranging the temporary
transfer of employee Robert Puff from Store No. 47 to
Store No. 50, told Kuhn: "Your brother is coming over."
Kuhn said that he did not have a brother and Cowger re-
sponded: "Bob Puff, your union brother. If he ain't your
brother I can't say who in the hell he is." At another time
that day, Cowger referred to employee Al Wiley as Kuhn's
union brother."
On January 6, 1978, Kuhn was summarily terminated by
Miller. That action was taken without prior warning to the
employee. In fact, in the 15-year period that Kuhn worked
for Respondent, he had never received a written warning.
Miller testified that he made the decision to change
Kuhn's duties, and then to discharge him, and conceded
that those actions were taken without prior warning to
Kuhn. According to Miller, it was "Kuhn's overall per-
formance plus his effect on the morale I thought he was
having on the rest of the people" that necessitated those
decisions. Miller later testified that Kuhn was reluctant to
accept change: that production decreased when Kuhn was
"in the cutting line;" and that, he, Miller, had received
complaints about Kuhn from other employees. In support
of the first point. Miller cited Kuhn's reluctance to transfer
from Store No. 50 to Store No. 47, almost I year before the
discharge. No evidence was introduced to support the asser-
tion that the cutting line was more productive when Kuhn
was not on the team. As to employee complaints, Miller
pointed to a transfer request by employee Hurt "to get
away from the hassle" between Cowger and Kuhn, as well
as to critical reports from Cowger. However, Miller con-
ceded that employee complaints about Cowger had previ-
ously caused Cowger's transfer from Store No. 20 to Store
No. 50 and that, after that transfer, Miller received com-
plaints about Cowger from the employees at Store No. 50.
Miller's testimony concerning the discharge was vague
and, while on the witness stand, he suffered from decided
lapses of memory concerning pivotal points. Having read
and reread his testimony, I am unable to understand, with
any degree of clarity and precision, the assigned reasons for
the change of duties and the later discharge.
This case presents the precipitous discharge of an em-
ployee of 15 years who had maintained an unblemished
work record. The discharge was without warning and has
not been adequately explained. Until June 1977, Cowger
repeatedly referred to Kuhn as the best employee who had
ever worked for him. After Kuhn revealed to Cowger the
fact that he, Kuhn, had been subpenaed by the Union,
there was, according to Respondent, a sudden deterioration
in Kuhn's work performance, a claim which has not been
substantiated. Cowger's offers of money to induce Kuhn
not to honor the subpena; his reference to other union sup-
porters as Kuhn's "union brothers;" and the arbitrary man-
ner in which he treated Kuhn following the subpena matter,
suggest inescapably, in the context of this case, that Kuhn's
duties were changed, and then he was discharged, because
of his support for the Union. The record contains no other
" Monroe testified that she overheard the remark concerning Wiley. Cow-
ger denied referring to Puff or Wile) as Kuhn's brothers or union brothers.
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adequate explanation of those actions. Accordingly, I find
and conclude that Respondent changed Kuhn's duties, and
then discharged him, in violation of Section 8(a)(3) and (1)
of the Act.'
IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1., above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Dillon Stores, Division Dillon Com-
panies, Inc., is an employer engaged in commerce, and in
operations affecting commerce, within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local Union 576, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By changing the duties of, and then discharging,
James P. Kuhn because of his support for the Union, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER'3
The Respondent, Dillon Stores, Division Dillon Compa-
nies, Inc., Topeka, Kansas, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Discharging or changing the duties of employees be-
cause they support a union.
(b) In any other manner interfering with, restraining, or
12 In view of my conclusions herein, I need not decide whether Respon-
dent's actions were also violative of Sec 8(a)4) since, in any event, the
remedy would be the same.
1 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.
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to James P. Kuhn immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority and other rights and privileges.
(b) Make James P. Kuhn whole for any loss of pay he
may have suffered by reason of Respondent's discrimina-
tion against him by payment to him of a sum of money
equal to that which he normally would have earned as
wages, from the date of the discrimination to the date of
Respondent's offer of reinstatement, less his net earnings
during such period, with backpay to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest as set forth in Florida Steel Corpo-
ration, 231 NLRB 651 (1977) (see, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962)).
(c) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its stores located in Topeka, Kansas, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 17, after being duly signed by Respondent's represent-
ative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive 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 said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
"4 In the event that 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
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
WE WILL NOT discharge or change the duties of em-
ployees because they support a union.
WE WILL NOT in any other manner, interfere with,
restrain or coerce our employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL offer James P. Kuhn immediate and full
reinstatement to his former position or, if that position
no longer exists, to a substantially equivalent position,
582
DILLON STORES, DIV. OF DILLON COMPANIES 583
without prejudice to his seniority and other rights and bers of Amalgamated Meat Cutters and Butcher Workmen
privileges. of North America, AFL-CIO, Local Union 576, or any
WE WILL make James P. Kuhn whole for any loss of other labor organization of their choosing.
earnings he may have suffered because of the discrimi-
nation against him, plus interest. DILLON STORES, DIVISION DILLON COMPANIES,
All of our employees are free to become or remain mem- INC.