Eckerd's Market, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1970

183 N.L.R.B. 337 (N.L.R.B. 1970)

ECKERD'S MARKET, INC. 337
Eckerd 's Market , Inc. and Retail Clerks Interna-
tional Association , Local 204, AFL-CIO. Cases
11-CA-3942 and 1 1-CA-395 5
June 15, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On February 16, 1970, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
General Counsel and the Union filed exceptions to
the Trial Examiner's Decision and supporting
briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
1. The Trial Examiner found that "fountain
manager" Malone was in charge of the combination
soda fountain and lunch counter in Respondent's
Wilmington, North Carolina, retail store involved
herein, and was a supervisor within the meaning of
the Act. We disagree.
Malone spent 95 percent of her time serving food
and beverages to customers, alongside the three
other fountain girls , and operating the grill. She
spent the remainder of her worktime ordering sup-
plies as needed from vendors specified in a list
prepared by Respondent's "fountain coordinator,"
and preparing records which indicated the foun-
tain 's profit and loss. Neither activity involved a
substantial degree of independent judgment. The
Employer's "fountain coordinator," who is respon-
sible for setting up the fountains throughout
Respondent's chain of stores and overseeing their
operation and profitability, established the prac-
tices and procedures for Malone to use and regu-
larly conferred with her.
Although Respondent argued that Malone was a
supervisor, it is clear that Store Manager Jones, not
Malone, prepared the fountain employees' work
schedules; granted a wage increase to them without
first consulting Malone; gave fountain employees
time off, often after an employee called him, rather
than Malone; assigned nonfountain employees to
assist Malone if she was shorthanded; and had to be
notified by Malone if the fountain girls wanted to
change shifts. Malone was never told that she had
the authority to hire and fire employees, and when,
on one or two occasions, she asked Jones to repri-
mand a fountain employee, Jones conducted his
own investigation.
Even though Malone was an experienced foun-
tain employee who ostensibly "ran" the fountain,
her duties were routine in character and did not
require the exercise of independent judgment. As
the record is devoid of evidence that Malone pos-
sessed any of the other indicia of supervisory status
normally required, we find Malone was not a super-
visor within the meaning of the Act.'
2. The Trial Examiner found that Respondent, in
enforcing its policy against the display in its stores
of any controversial insignia, placards, or notices,
did not violate Section 8(a)(1) and (3) of the Act
when it threatened to and did discharge four em-
ployees2 because they refused to remove the union
buttons which they were wearing on their clothing
at work . We disagree.
The Union began a campaign to organize the em-
ployees on June 24, 1969.3 During the following
week, the Union received signed authorization
cards from a majority of the employees in the ap-
propriate unit. On June 30, several union suppor-
ters began to wear union buttons about the size of a
5-cent piece bearing the legend, "Retail Clerks
Union, AFL-CIO. July 1969."
On July 1, the same day that Jones told the em-
ployees at a meeting that the Union would be op-
posed "by every lawful and proper means ," he or-
dered employees Painter and Malone to remove
their union buttons. Malone did so, but Painter,
given the choice of removing the button or leaving
the store, chose the latter course of conduct. The
next day, July 2, Jones discharged employees
Malone, Morgan, and Price for not removing their
union buttons as ordered. We agree with the Trial
Examiner that Painter's case is indistinguishable
' Frank G Shattuck Company, 106 NLRB 838, 843 (head counter
clerk)
Y Malone, whom we found was not a supervisor , above, was discharged
with employees Morgan , Painter, and Price
3 All dates are 1969 unless otherwise indicated
183 NLRB No. 40
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the clear discharges of Malone , Morgan, and
Price on July 2.
We basically agree with the Trial Examiner's ex-
position of the applicable law in this area. As we
said in Consolidated Casinos Corp., 164 NLRB
950:
The right of employees to wear union insig-
nia at work has long been recognized as a pro-
tected concerted activity . Further, as the
Board held in Floridan Hotel of Tampa, Inc., in
the circumstances of that case, " the fact that
the employees involved come in contact with
hotel customers does not constitute such
`special circumstances ' as to deprive them
of their right, under the Act, to wear union
buttons at work ." Here , as in Floridan
Hotel , there was no strike nor union animosity
between groups of employees; the buttons
were inconspicuous and the legends on them
were in no way provocative; and there was no
substantial evidence that they affected Re-
spondent's business or that the prohibition
against wearing them was necessary to main-
tain employee discipline. [Emphasis supplied
and footnotes omitted.]
However , contrary to the Trial Examiner , we find
that Respondent has not established sufficient "spe-
cial circumstances " to justify its conduct . The only
specific incident relating to customer complaints
testified to by Jones , in a vague and somewhat con-
flicting manner , involved customer Rawlins' com-
plaint that an employee had offered him a union
button prior to July 2. Jones also described com-
plaints from " several " unnamed customers prior to
the discharges , but gave no details, and testified to
the fact that three or four complaints were received
after the July 1 and 2 discharges.
There was no strike or animosity among em-
ployees at Respondent's store during the organiza-
tional campaign to justify the prohibition against
wearing union insignia . Since mere contact with
customers is not a basis for barring employees from
wearing union buttons , it follows that Respondent's
business or employee discipline had to be affected
by the display of union buttons for it to justify the
discharges . Clearly, the vague , general evidence
presented by Respondent was not substantial
enough to establish either of the latter " special cir-
cumstances" warranting removal of the small, in-
nocuously labeled union buttons worn by its em-
ployees.
Accordingly , we find that by threatening to
discharge , and discharging , employees Malone,
Morgan , Painter , and Price for wearing union but-
tons on their clothing at Respondent violated
Section 8 ( a)(3) and (1) of the Act.
3. We agree with the Trial Examiner that the
Union did not represent an uncoerced majority of
the employees in the unit found appropriate when it
demanded recognition on July 1. We do so, how-
ever, not because Malone solicited several
authorization cards, as we have found that she was
not a supervisor , but because of the representa-
tions, made by Fox and Malone in soliciting signa-
tures to the cards, that the employees who signed
such cards were only expressing an interest in learn-
ing more about the Union and were not obligating
themselves to become members of the Union.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , the Board will order
Respondent to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminatorily
discharged Ruth Malone , Beverly Morgan, Mary
Painter , and Marguerite Price, the Board will order
Respondent to offer them immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings that they may have suffered from the time
of their discharge to the date of Respondent 's offer
of reinstatement . The backpay for the foregoing
employees shall be computed in accordance with
the formula approved in F. W. Woolworth Com-
pany, 90 NLRB 289, with interest computed in the
manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721. We shall
also order Respondent to preserve and, upon
request , make available to the Board or its agents,
payroll and other records to facilitate the computa-
tion of backpay due.
As the unfair labor practices committed by
Respondent are of a character striking at the root
of employee rights safeguarded by the Act, we shall
order that Respondent cease and desist from in-
fringing in any manner the rights guaranteed in Sec-
tion 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co.,
120 F.d 532, 536 (C.A. 4).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
ECKERD'S MARKET, INC.
2. Retail Clerks International Association, Local
204, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and
tenure of employment of Ruth Malone, Beverly
Morgan, Mary Painter, and Marguerite Price,
thereby discouraging membership in the Union,
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By interfering with, restraining, and coercing
its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Eckerd's Market, Inc., Wilmington, North Carolina,
its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating
against , any employee engaged in activity on behalf
of Retail Clerks International Association, Local
204, AFL-CIO, or any other labor organization.
(b) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their right to self-organization , to form, join,
or assist the above-named or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Ruth Malone, Beverly Morgan,
Mary Painter, and Marguerite Price immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them whole
for loss of pay in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Notify the above-named employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
339
Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its retail store in Wilmington, North
Carolina, copies of the attached notice marked
"Appendix."4 Copies of said notice , on forms pro-
vided by the Regional Director for Region 11, after
being duly signed by an authorized representative,
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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing,
within 10 days from the date of its Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein
be dismissed insofar as it alleges violations of the
Act not specifically found herein.
" 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 be changed to 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 discourage membership in
Retail Clerks International Association, Local
204, AFL-CIO, or any other union, by
discharging or otherwise discriminating against
our employees because of their union or con-
certed activities.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their right to self-organization, to
form , join , or assist the above -named Union, or
any other labor organization , to bargain collec-
427-258 O-LT - 74 - 23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively through representatives of their own
choosing , and to engage in other mutual aid or
protection, or to refrain from any or all such
activities.
WE WILL offer Ruth Malone, Beverly Mor-
gan, Mary Painter, and Marguerite Price im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges , and make them whole for any loss
of pay suffered as a result of discrimination
against them.
WE WILL notify the above-named employees,
if presently serving in the Armed Forces of the
United States , of the right to full reinstatement,
upon application after discharge from the
Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military
Training and Service Act.
ECKERD 'S MARKET, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 1624, Wachovia Building,
301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 919-723-9211, Ext.
360.
TRIAL EXAMINER 'S DECISION
SIDNEY SHERMAN, Trial Examiner: Copy of the
initial charge herein was served on Eckerd's Mar-
ket, Inc., herein called Respondent,' on July 7,
1969, the complaint issued on October 15,2 and the
case was heard on O.;tober 28 and 29.3 The issues
litigated related to alleged violations of Section
8(a)(1),(3), and (5). After the hearing a brief and
a motion to correct transcript4 were filed by the
General Counsel, and a brief was filed by the
Union.
Upon the entire record, the following findings of
fact and conclusions are adopted:
Respondent 's name appears as amended at the hearing
2 All dates are in 1969 , unless otherwise indicated
' Certain employees were permitted to intervene at the hearing
I. RESPONDENT 'S BUSINESS
Eckerd's Market, Inc., is a North Carolina cor-
poration which operates a number of retail stores,
including one at Wilmington, North Carolina,
which is the only store involved in the case at bar.
Respondent's annual gross revenues exceed
$500,000, and it annually receives from out-of-state
sources goods valued at more than $50,000.
Respondent is engaged in commerce under the Act.
II. THE UNION
Retail Clerks International Association, Local
204, AFL-CIO, hereinafter called the Union, is a
labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(a)( I)
of the Act by interrogating employees about their
union activity and by threatening discharge unless
they ceased wearing union buttons at work.
2. Whether Respondent violated Section 8(a)(3)
by discharging Malone, Morgan, Painter, and Price
for displaying union buttons.
3. Whether Respondent violated Section 8(a)(3)
and (1) by reducing the hours of work and chang-
ing the work shift of Fox, and by thereafter
discharging him.
4. Whether Respondent violated Section 8(a)(5)
and (1) by refusing to recognize the Union.
A. Sequence of Events
The Union's organizing campaign at Respon-
dent's Wilmington store began on June 24, when
Union Agent Brendle approached employee Fox in
the store and handed him some union authorization
cards with the instruction to have them signed by
other employees. During the next few days, 15 such
cards were signed. On June 30, several of the union
adherents began to display on their clothing buttons
bearing the words "Retail Clerks Union,
AFL-CIO." Early on July 1 Store Manager Jones
discharged Fox, allegedly for failing to order cer-
tain stock items. Later that day Jones called a
meeting of the employees and addresed them on
the subject of the Union, announcing the deter-
mination of Respondent to oppose the Union "by
every lawful and proper means," and citing the dis-
advantages of union representation and some of the
alleged fallacies of typical union propaganda. The
same day and the next, Jones admonished several
of the employees to remove the union insignia they
were wearing, and, upon ascertaining that three of
' For the ruling on that motion see the order of December 30 For other
corrections of the transcript and certain evidentiary rulings, see that order
and the one of January 23, 1970 See, also, the order of February 10, 1970,
relating to a postheanng offer of proof by Respondent
ECKERD'S MARKET, INC. 341
them had not complied, discharged them and gave
a fourth the choice of removing her button or leav-
ing the store. She left.
In the afternoon of July 1, Union Agent Brendle
asked Jones to recognize the Union, claiming to
represent a majority of the store employees and dis-
playing a batch of cards in an envelope. Jones' only
answer was to refer Brendle to the Board. The
request was renewed the next day with no result.
On July 5, a union officer wrote to O'Herron,
Respondent's chief executive officer, seeking
recognition and offering to prove the Union's
majority via a card check by a neutral party. By
letter dated July 10, O'Herron declined, citing cir-
cumstances that had come to Respondent's atten-
tion which convinced it that the Union did not
represent an "uncoerced" majority of the em-
ployees in an appropriate unit.
So far as the record shows, there was no further
contact between the Union and Respondent.
B. Discussion
1. The 8( a)(1) issues
Painter testified, without contradiction, and it is
found, that when, about 9 a.m. on July 1, she began
to wear a union button, Jones asked about the
legend on the button; when she read it to him, he
asked her if she had joined the Union; she answered
that she had gone to a union meeting; and he or-
dered her to remove the button.6 Whether such in-
terrogation was unlawful will be considered at the
conclusion of this Decision.
During July 1 and 2, Jones admittedly ad-
monished Price and Morgan, as well as Painter, to
remove the union buttons displayed by them on
their clothing, and, when they failed to comply, or-
dered them either to remove their buttons or leave
the store. In addition, Palmer testified that on July
1 she removed her union button, after being told by
Jones that Respondent's policy barred her wearing
both the button and her store badge.'
Since it is found below that the displaying of the
buttons did not, under the circumstances of this
case, constitute protected, concerted activity, it fol-
lows that Respondent did not violate Section
8(a)(1) by threatening discharge for such activity,
or by ordering employees to desist therefrom."
Fox testified that on June 27, when he began to
wear a union button in the store, Store Manager
Jones asked him for the name of the Union; Fox
pointed to the button, calling out the name; Jones
asked who was the union organizer; Fox displayed
Brendle's card; Jones asked what the Union was
promising and what percentage of the employees
the Union needed to obtain; and Fox answered that
the Union already had obtained the necessary
majority. Jones' version of the foregoing incident
was that on June 30, he asked Fox if the name of
the Union was "Retail Clerks Union" and that,
after producing what appeared to be a business
card, Fox answered in the affirmative. Here, as el-
sewhere, Fox's testimony conflicted in material
respects with statements in a pretrial affidavit. In
view of this, as well as other matters affecting Fox's
credibility (discussed below), I do not credit his
foregoing testimony insofar as it conflicts with that
of Jones, and find only that on June 30, Jones, as
he testified, attempted to verify through Fox the
name of the Union. While even such a limited
inquiry might have been regarded by Fox as
designed to elicit from him some clue as to his
union sentiments, he might just as well have at-
tributed the inquiry to mere curiosity on the part of
Jones.5
5 As found below, Jones did not take any overt position against the Union
until the next day
Malone also testified about interrogation by Jones However, as she is
found below to have been a supervisor , any such interrogation would not
have been unlawful
r The record shows that Malone was also involved in these incidents
However, in view of her supervisory status, no finding is made as to her
'There was some testimony about a threat by Jones in his July 1 speech
to (a) discontinue certain employee discount privileges and (b ) discharge
employees for union activity Neither of these was alleged in the complaint,
and at the hearing the General Counsel specifically disclaimed any conten-
2. The 8( a)(3) issues
a. The discharges for wearing union buttons
Admittedly, Jones discharged Price and Morgan
on July 2 because of their refusal to comply with
his instruction to remove their union buttons," and
on July 1 gave Painter the choice of removing the
button or leaving the store, whereupon she elected
to leave. I deem Painter's case indistinguishable for
present purposes from those of Price and Morgan.'°
The buttons were about the size of a 5-cent piece
and, in addition to the name of the Union's parent,
bore only the legend "July 1969." Respondent
contends that, in discharging these employees, it
was merely enforcing a longstanding, nondis-
criminatory policy against the display in its stores of
any controversial insignia, placards, or notices.
O'Herron, Respondent's board chairman, testified
that this has been Respondent's policy for over 30
years, and that it has been communicated to store
managers . While, admittedly, it has never been
communicated to employees, except in the form of
oral ad hoc warnings , the record affords insufficient
basis for rejecting O'Herron's testimony, cor-
roborated by Jones, that such has been Respon-
tion with regard to (b) In his brief, the General Counsel makes no
reference to either of these matters Accordingly, they will not be further
considered ( In any event , as to (b), the preponderance of employee
testimony , as well as the documentary evidence, is that Jones merely
warned of discharge for union activity during worktime As to,the legality
of such a warning in the present context , see Central Soya of Canton, Inc ,
180 NLRB 546 )
On the same date, Jones discharged Malone for the same reason No
violation may be found as to her because of her supervisory status
10 Mayrath Company, 132 NLRB 1628, 1630, Standard Fittings Co, 133
NLRB 928
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent 's policy . Nor is there any persuasive evidence
that such policy has been discriminatorily en-
forced."
From analysis of the Board and court decisions
dealing with disciplinary action against employees
for wearing union insignia , the following principles
emerge:
1. The display of such insignia is a form of con-
certed activity and does not cease to be protected
merely because it occurs during worktime.12
2. It is no defense that the disciplinary action
was based , as here, on a longstanding nondis-
criminatory rule or policy against the wearing of
any controversial insignia ," or that such action was
not taken for the purpose of discouraging union ac-
tivity, it being sufficient that such action inherently
tends to discourage union activity.
3. However , the disciplinary action will be
deemed lawful upon a showing of " special circum-
stances ." The Board has found such special circum-
stances to exist where , because of the provocative
nature of the legend on the insignia , in the context
of factional bitterness and recriminations among
the employees engendered by a prolonged and un-
successful strike , it was found "entirely reasonable"
for the respondent to apprehend that the insignia
"would promote disorder and engender further divi-
siveness between strikers and nonstrikers. 11114 How-
ever, even in such a poststrike situation , the em-
ployer may not lawfully prohibit the display of in-
conspicuous union insignia such as are involved in
the case at bar.15 Nor will it suffice for an employer
to show that the display of such insignia in a plant
produced momentary work stoppages , complaints
by a few nonunion employees , some distraction of
employees from their work , or excessive conversa-
tion .'s Where, as here , the insignia are displayed by
employees of a retail establishment who wait on the
employer 's customers , the Board has required a
showing that such display resulted in "customer
complaints , loss of business , friction between union
and non -union employees , or detracted from the
dignity of" the employer 's operations.17
" Price testified that during the latest presidential campaign she wore, in
Jones presence , a pin with a small elephant 's head , and Morgan gave like
testimony as to wearing a religious medal However , from visual inspection,
I am satisfied that the elephant pin could easily have passed for a piece of
costume jewelry , and Morgan , herself, acknowledged that the religious
medal would probably not have been recognized as such by non-Catholics
Under these circumstances , I credit Jones ' denial that he observed either of
the foregoing insignia , since , even if they were displayed in his presence,
they might well have escaped his attention.
" Republic Aviation Corporation v N L.R B , 324 U.S 793
Harrah's Club, 143 NLRB 1356, enforcement denied on other grounds
337 F 2d 177 (C A 9)
" United Aircraft Corporation, 134 NLRB 1632
Boeing Airplane Company, 103 NLRB 1025, enfd. on this point 217
F.2d 369 (C.A. 9).
1° Central Soya of Canton, Inc., 180 NLRB 546; Power Equipment Com-
pany, 135 NLRB 945, enfd. 313 F 2d 438, 442 (C.A 6); Armour & Co, 8
NLRB 1100, 1 112 The Board in these cases cited the absence of proof that
the wearing of the insignia caused a "serious disturbance" or substantial
loss of production.
"Floridan Hotel of Tampa, Inc, 137 NLRB 1484, 1486, enfd. as
It follows from the foregoing that in the case at
bar the Board would find Respondent 's rule to be
proper , as applied to the union insignia , only if it
was sufficiently shown that it was reasonable for
Respondent to expect that the display of such insig-
nia would have a substantial adverse effect on (a)
employee efficiency or discipline or (b) relations
with customers , and that , in evaluating the
reasonableness of Respondent 's judgment in the
foregoing respects , the Board would consider
events that occurred after, as well as before, the
disciplinary action.18
Respondent attempted to show the reasonable-
ness of its disciplinary action through certain
testimony by Jones concerning the situation in the
store during the union campaign . This was to the
effect that during the last week in June, while
Union Organizer Brendle was frequenting the store
and contacting the employees on behalf of the
Union , they seemed to become nervous and
disturbed and unable to concentrate on their work.
Jones added that after the employees began wear-
ing union buttons, which , so far as the record
shows, first came to his notice on July 1,19 there
were overrings at the cash register, and employees
engaged in conversations among themselves, which
impeded service to customers. Jones also cited an
instance when two nonunion employees com-
plained of the quality of the service given them at
the fountain.20
One may have some reservations as to whether
such testimony established that there was a substan-
tial deterioration in employee efficiency as a result
of the wearing of the buttons or that Respondent
had good reason to apprehend that such would be
the case . 21 However , there is no need to resolve
that point since there was no controversion of
Jones' further testimony that on July 1 he received
a number of complaints from customers about the
buttons, and in this connection Jones cited the case
of Rawlins , who was offered a button by an em-
ployee, and contemporaneous complaints by
"several " other unidentified customers . Jones also
modified 318 F 2d 545 (C A 5), and cases there cited See also Con-
solidated Casinos Corporation , 164 NLRB 950.
'" See United Aircraft Corporation, supra , where, in finding the respon-
dent's apprehension of disruption of production to be reasonable, the
Board cited incidents occurring after the disciplinary action
1° Jones testified that he did not see any union buttons before July 1 and
there was no probative evidence to the contrary (Although Fox claimed to
have pointed out his button to Jones on June 27, 1 credit Jones ' denial See
fn. 29 , below Only one other union adherent, Malone , claimed to have
worn a button in the store before July 1, her testimony being that she did so
on June 30 However , there was no evidence that Jones noticed the button
on that date nor even that it was worn in his presence )
20 Three of the four girls discharged for wearing buttons worked at the
fountain. Only one of the four fountain employees ( Young ) was not shown
to have worn a union button
21 As noted above, Jones initially attributed the decline in employee effi-
ciency to the campaign of solicitation within the store conducted by
Brendle during the last week of June (before any buttons were displayed)
While he also cited instances of inefficiency while the buttons were dis-
played , and blamed the buttons therefor , it is not clear how he could deter-
mine that it was the buttons rather than the union campaign in general that
was responsible for the employees ' agitation
ECKERD'S MARKET, INC.
mentioned complaints by three or four additional
customers which were received after July 2. The
foregoing testimony was marked at points by vague-
ness and there was an apparent conflict between
Jones' initial assertion that the only complaint
about the buttons that he could recall as having
been made before the employees were discharged
was that of Rawlins, and later testimony that
several others had made like complaints even be-
fore Rawlins did. Nevertheless, there was no con-
troversion of such testimony, and, even if one
discounts Jones' foregoing belated recollection of
the "pre -Rawlins" complaints , there remains a hard
core of testimony concerning four or five customer
complaints about the buttons . In the Floridan Hotel
case the Board indicated that proof of customer
complaints would be a valid defense in a case such
as this.22
Accordingly, it is found that Respondent was
privileged to enforce its antiinsignia rule by
discharge and threats of discharge, and no violation
is found with respect to such conduct.
b. Fox
Fox was hired in November 1968. Of the em-
ployees, he was the most active solicitor for the
Union. When he was hired, Jones promised to give
him 5 hours' overtime work each week in addition
to the regular 40 hours. His principal duties con-
sisted of ordering stock from Respondent's
warehouse or from predesignated outside sources,
whenever the supply of an item on the shelves fell
below a specified level. His overtime duties con-
sisted of preparing for shipment to Respondent's
warehouse or to suppliers articles under warranty
which had been returned by customers. Like all the
other employees, he worked on one of the store's
two shifts, which required that each employee re-
port on alternate days at 9 a.m. and 1 p.m. On June
28, a Saturday, Jones notified him that his weekly
hours would be reduced to 40 and he would be
transferred to the store's other shift. On june 30,
the next workday, he worked under the new shift
and hours schedule. Early the next morning, Jones
notified him of his discharge for failure to order
certain items.
The General Counsel contends that the reduction
in hours, the change in shift, and the discharge
were all motivated by Jones' resentment of Fox's
union activity. While admitting that, as found
above, he asked Fox on June 30 about the name of
the Union, and that he singled him out for this
inquiry because he had seen him talking to Brendle
and had been told that Fox had discussed the Union
with an assistant manager, Jones denied that he was
22 While it is true that all but one of the foregoing four or five complaints
came to Jones' notice only after the discharges had been effected and that
they, therefore, could not have been motivated by such complaints, the
latter would , nevertheless, seem to be relevant under the United Aircraft
case to show the reasonableness of Respondent 's apprehension that the dis-
play of Union insignia would offend customers
343
aware of Fox's prounion sentiments . However, it is
clear from Jones' foregoing admission as to his
reasons for interrogating Fox that he had ample
cause to suspect that Fox was involved with the
Union, and such suspicion was undoubtedly rein-
forced, if not confirmed, when, as Jones testified,
Fox produced a card and supplied the name of the
Union therefrom. In any event, the inference is
warranted, under all the circumstances, that Jones
was not unaware of Fox's union sentiments.23
However, Jones insisted that the reduction in
hours was related to the hiring of one Davenport,
on June 19, nearly a week before the advent of the
Union, to work in the stockroom. According to
Jones, the volume of returned merchandise having
increased to the point where Fox could not handle
it during his 5 hours of overtime, Jones decided,
when he hired Davenport, to assign to him all of
that work, and instructed Fox to familiarize him
therewith, which Fox did. Jones added that
beginning on June 30, he in fact assigned Fox's
overtime duties to Davenport, thereby necessitating
the reduction in Fox's hours. The latter did not
dispute any of the foregoing testimony but, in fact,
acknowledged that he had not always been able
during his overtime hours to complete the
processing of the returned merchandise on hand,
and that on June 19, he began to train Davenport in
that work.
Accordingly, it is found that the decision to
replace Fox with Davenport on the overtime work
was made before the advent of the Union, and that
the reduction in Fox's hours was related to that
decision and not to any discriminatory considera-
tions.
As for the change in shift, Fox acknowledged
that it meant only that he would work the same
hours, albeit on different days,24 and Jones ex-
plained without contradiction that the change was
made necessary by the fact that he had three men
-m Fox's old shift doing the same work, and only
one man on the other shift, who was preparing to
leave on vacation. I credit such testimony and find
no violation here.
As to Fox's discharge on July 1, Jones' explana-
tion was that he had decided to take the action the
previous evening on discovering certain derelictions
by Fox, and that, in making that decision, he also
took into account a recent general decline in Fox's
efficiency and reliability. According to Jones, Fox
had been a satisfactory employee until about June
1, when his performance began to deteriorate to
the point where it became necessary for Jones to
warn him of discharge if his work did not improve.
As instances of the foregoing deterioration, Jones
cited (a) two complaints by customers during the
L' The small size of the unit would alone warrant such an inference Wiese
Plow Welding Co, Inc, 123 NLRB 616
24 Thus, instead of reporting the next workday (June 30) at 9 a m , he
had to report at I p in , and the following day at 9 a in instead of I p m
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first part of June about certain offensive remarks by
Fox in connection with the cashing of their
checks'25 (b) his failure about June 15 to order
charcoal, which oversight he falsely denied, and as
a result of which the store had no charcoal for over
2 weeks, and ( c) his obtaining permission to leave
work by misrepresentation. Finally, on June 30, ac-
cording to Jones, he learned that Fox had ordered
too many typewriter ribbons, and later, at 6 p.m.
that day, Jones ascertained that, although he as-
sured Jones that he had done so, Fox had neglected
to order two items-washcloths and Similac26-
from Respondent's warehouse. The Similac was ad-
mittedly one of the most important items in the
store. Jones testified that he was so provoked by
this further proof of Fox's unreliability that he de-
cided to discharge him the next day.
Fox admitted the failure to order charcoal and
one of the check-cashing incidents, and that he was
reprimanded therefor. He admitted also that he had
obtained leave from work through misrepresenta-
tion, and that he had ordered to many typewriter
ribbons, but disputed Jones' testimony as to the
failure to order the washcloths and the Similac. As
already noted, Fox's testimony was at times in con-
flict with his pretrial affidavits. At other times, he
fell into vacillation and self-contradictions, and he
displayed a fitful memory in critical areas. Under
these circumstances, and notwithstanding Jones'
occasional testimonial lapses, I credit him as against
Fox and find that, although representing to Jones
that he had done so, Fox did not in fact order the
foregoing items from Respondent's warehouse on
June 30. It is further found, as testified by Jones,
that he had several weeks before warned Fox of
discharge if he did not improve'27 and that he had
in the past discharged other employees for un-
satisfactory work.211 The only factors supporting the
General Counsel's case are (1) Respondent's union
animus, and (2) the timing of the discharge in rela-
tion to the incident on June 30, when Jones elicited
from Fox the name of the Union under circum-
stances which should have confirmed Jones' suspi-
cions that Fox was a union adherent.
As to (1), on July 1 Jones admittedly delivered to
the assembled employees a speech which urged
them in vigorous terms to repudiate the Union. He
also, as found above, threatened employees with
discharge, and did discharge them, for refusing to
23 Fox 's duties included approval of customers' checks
29 A brand of milk for infants
2' Fox made an obortive effect at the hearing to portray Jones as having
responded favorably , when early in June Fox hinted at his desire for a raise
However , Fox finally admitted, contrary to his pretrial affidavit, that he was
not promised a raise, and that Jones told him on that occasion that he "had
some improving to do," and Fox did not expressly deny that Jones had also
indicated on that occasion that Fox would not be retained unless his work
improved
29 There was no evidence nor contention that others had been retained
despite deficiencies comparable to those of Fox
29 While not strictly germane to the instant issue, it may be noted that
although Fox insisted that he, too , displayed a union button during the last
week in June, Jones denied that he at any time saw such a button on Fox I
remove their union buttons. However, it has been
found that Respondent was thereby lawfully enforc-
ing a nondiscriminatory policy. Moreover, certain
of the circumstances under which those discharges
were effected militate against, rather than aid, the
General Counsel's contention that they demon-
strate a disposition to discharge solely because of
adherence to the Union. Had Jones been so
disposed, it would seem that, whenever an em-
ployee identified herself as a union adherent by dis-
playing a union button , Jones would have
discharged her forthwith, using as a pretext the pol-
icy against wearing controversial insignia. Instead,
he repeatedly offered such employees opportunities
to avoid discharge by removing the buttons. Such
conduct bespoke a concern about enforcement of
Respondent 's "anti -insignia" policy rather than a
disposition to visit reprisals on employees solely
because of their union sentiments.
As for the timing of the discharge in relation to
Jones' apparent confirmation of his suspicions
about Fox 's interest in the Union , the significance
thereof is again diluted by Jones' foregoing demon-
strated willingness to retain union adherents even
after they had identified themselves as such" It may
be urged that Jones was more resentful of Fox's
union activities because they were more extensive
than those of the other employees. However, there
was no direct evidence that, before discharging
Fox, Jones was apprised of the extent of his solicita-
tion activity nor that he was aware that it was
greater than that of Malone,30 who was given two
opportunities to avoid discharge by shedding her
union button.
Moreover, with regard to the timing of Fox's
discharge, it is necessary to give due weight to the
fact that, as found above, Jones had only recently
warned Fox of discharge unless he mended his
ways, and that the matters which came to Jones' at-
tention on June 30, and which according to him
triggered the discharge were not patently trival or
unsubstantial, but might well have been deemed by
Jones to reflect upon Fox's efficiency and reliability
and to afford good reason for implementing the
foregoing warning of discharge.31
All things considered, the evidence does not
seem to preponderate in favor of a finding that Fox
was terminated for union activity, and it will be
recommended that the pertinent allegation of the
complaint be dismissed.
credit such denial , not only because of the circumstances cited above af-
fecting Fox's credibility in general , but also because there is no evidence
that Jones at any time objected to Fox's displaying a button, nor any ap-
parent reason why Jones should have enforced the antunsigma rule
against other employees, but not against Fox
She solicited three employees , as against six by Fox
In its brief the Union points out the oversights by Fox that came to
light on June 30, involved only 3 items out of the 500 to 1,000 that he was
responsible for ordering However , Fox admitted that one of the three
items-Similac-was "about the most important " item in the store , and it is
understandable that Jones would be as much , if not more , provoked by
Fox's apparently deliberate concealment of his oversights as by the over-
sights themselves
3. The 8 (a)(5) issue
a. The appropriate unit
ECKERD'S MARKET, INC. 345
The complaint alleges that the unit appropriate
for bargaining consists of all the employees at
Respondent's Wilmington store, excluding profes-
sional employees, office clerical employees, guards,
and supervisors as defined in the Act. Respondent
objects to this unit description only insofar as it ex-
cludes professional employees. The only employee
affected by such exclusion was Batts, the store's
pharmacist. She was registered under state law and
the record warrants a finding that her training and
duties are such as to constitute her a professional
employee under the Act. Since it is Board policy,
absent circumstances not here present, to exclude
professional employees from units containing non-
professional employees, 32 it is found that the unit
described in the complaint is appropriate.
b. The Union's majority status
There were submitted at the hearing, and duly
authenticated, 15 signed cards, each of which con-
tained an unambiguous authorization of the Union
to represent the signer in collective bargaining
about wages, hours, etc.
It was stipulated at the hearing that at the time of
the Union's initial request for recognition on July 1,
there were 26 persons on the payroll of the
Wilmington store.33 Of this number, it is not
disputed that Store Manager Jones and his
assistants, Seabrook and Cain, must be excluded as
supervisors, and Batts is excluded for reasons al-
ready stated. Of the remaining 22 names, the
General Counsel would exclude Ballard, Barry, and
Ward as temporary employees.34
On the evidence, it is found that Barry and Ward,
who were both students, were hired, apparently in
June 1969, with the understanding that they would
work only during their summer vacation and, if
work was available, during their Christmas vaca-
tion. Accordingly, it is found that they were tempo-
rary employees hired for a definite term, who did
not have sufficient community of interest with the
other employees to warrant their inclusion in the
storewide unit.35
The General Counsel would also exclude as a
temporary employee Ballard, a porter, who was
'$ Sec 9 ( b)( I) of the Act forbids the Board, in directing an election, to
include professional employees in the same unit with nonprofessionals,
without affording the former an opportunity to vote separately on such in-
clusion Where a union is the petitioner, the Board has consistantly refused
to direct such a separate election, unless the union has submitted a showing
of interest among the professional employees , and, absent such a showing,
has excluded them Vickers, Incorporated , 124 NLRB 1051 , Gary Steel
Products Corporation, 127 N LRB 1170, Liggett Drug Company, Inc, 110
NLRB 949 , General Instrument Corporation, 140 NLRB 18, enfd 319 F 2d
420 (C.A 4) Here, no card was submitted by the Union for Batts , the only
professional employee, and the record affirmatively shows that she did not
sign one See my order of December 30, par II, item 8
hired to work on a part-time basis until such time as
Respondent could find someone to work full time.
Ballard worked regularly about 12 hours a week for
a period of 6 months until he was replaced (in Sep-
tember) by a full-time employee. Since Ballard was
not hired for a definite term, it is found that he was
not a temporary employee but a regular, part-time
employee, and he will be counted as in the unit.36
Respondent would exclude Malone, who signed a
union card, as a supervisor or managerial em-
ployee. She had the title of "fountain manager,"
and directed the work of three other girls at the
combination soda fountain and lunch counter.
Although the bulk of her time was devoted to serv-
ing customers, she was admittedly told, when hired,
that she was to "run" the fountain and would be
responsible for the profitability of its operations.
She was required to maintain a record of receipts
and expenses, and had authority to change the
prices of fountain items.37 If she needed more help,
she would apply to Jones, who would assign em-
ployees to the fountain from other areas in the
store. With regard to shift assignments at the foun-
tain , Malone testified that they were arranged by
the other girls, without consulting her. However, it
is apparent from, all the circumstances that Malone
was the only one who could have authorized such
action by the others, and the fact that she
acquiesced therein does not negate her authority in
that area. As to the station assignments within the
fountain area, while she asserted that the arrange-
ment in effect was suggested by one of the girls,
Malone admitted that she made the final decision in
that regard. She also made recommendations to
Jones with regard to disciplinary action, which
recommendations were given considerable weight,
although he would conduct an independent in-
vestigation of the matter. Her rate of pay was 30
cents an hour higher than that of the other fountain
personnel.
In view of the foregoing, it is found that Malone
was both a supervisor and, by virtue of her power
to fix prices, a managerial employee,38 and may
therefore not be counted as in the unit.
Respondent would exclude Gootee as a con-
fidential employee. While the record fails to
establish that her status was such as to require her
exclusion on that ground'39 the only evidence as to
her duties was Jones' uncontradicted testimony that
she worked full time in his office, where she per-
" This number did not include Fox, who, as noted above , was discharged
early in the morning of July I
" As to Ward, who signed a union card , the General Counsel took no
position at the hearing , but in his brief urged her exclusion
'S See Brown-Forman Distrillers Corporation, 118 NLRB 454 , Belcher
Towing Company, 122 NLRB 1019
'" Personal Products Corporation, 114 NLRB 959, 960
'r She testified she would do so only after consulting the other fountain
employees However, it is clear under the circumstances that such con-
sultations were voluntary on her part and that there was nothing to prevent
her from acting on her own in this area, nor did she so contend
" Eller Co , 108 NLRB 1417, 1422
See the B F Goodrich Company, 115 NLRB 722,724
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed secretarial work for him . She will ac-
cordingly be excluded as an office clerical em-
ployee . 40 Of the 18 remaining persons on the July 1
payroll, I 1 had before that date signed cards that
were duly authenticated at the hearing . However,
of these cards the record shows that four (Purdy's,
Wilson's, Young 's, and Morgan 's) were solicited by
Malone, who as found above, was a supervisor. Ac-
cordingly , these cards may not be counted.41
Without these cards, the Union had no majority as
of July 1.42
An additional reason for invalidating the cards of
Wilson, Purdy, and Young, as well as that of
Hughes, is afforded by the testimony of those em-
ployees, which was not only not contradicted but
was partially corroborated by Fox, that they
signed in reliance on representations by Malone
or Fox that, in so doing, they were only expressing
an interest in learning more about the Union and
were incurring no membership, or any other,
obligation to the Union.43
In view of the above findings, it is not necessary
to determine whether any of the foregoing, or
other , cards are invalid for other reasons'44 nor
" For cases treating as "office clencals " employees who perform
secretarial work , see Vulcanized Rubber and Plastics Company, Inc , 129
NLRB 1256 , 1258, Pine State Creamery Company, Inc. and Southern Ice
Cream, 130 NLRB 892, 894 , E H Koester Bakery Co., Inc, 136 NLRB
1006, 1014 , Carling Brewing Co. Inc , 126 NLRB 347, 349, Dohrmann
Commercial Company, 127 NLRB 205, 207.
4i Sopps, Inc., 175 NLRB 296, and cases there cited , Nash-Finch Com-
pany, dibla Jack and Jill Stores , 178 NLRB 458.
11 This would be true even if one counted the card of Fox , despite the
finding above that he was discharged early in the morning of July I (several
hours before the Union 's first bargaining request ) for nondiscriminatory
reasons
41 As to the effect of the representation that the sole purpose of signing
was to show interest in learning more about the Union , see, generally, Levi
Strauss & Co, 172 NLRB No 57, McEwen Manufacturing Company and
Washington Industries , Inc., 172 NLRB No 99, and N L R B v Gissell
Packing Co , 395 U S 575 As to the effect of the "no-obligation" represen-
tation , see Silver Fleet, Inc , 174 NLRB 873 (While, as pointed out in the
Union's brief, this Examiner expressed a different view in Home Pride
Provisions , Inc , 161 NLRB 634, the Board did not pass on the matter there
and Silver Fleet is now controlling , in any case )
It is true that Fox testified , albeit after some vacillation, that, in addition
to the representations described above, he told these and other employees
whether the Union's requests on July 1 and
thereafter were properly framed or directed, nor
any of other matters which would have been per-
tinent had the Union obtained valid cards from a
majority of the employees in the unit.
It will, accordingly, be recommended that the
refusal-to-bargain allegation of the complaint be
dismissed.
There remains to be resolved the legality of
Jones' interrogation of Painter on July 1. While
such interrogation occurred in the context of an
order to remove her union button, it has been
found that such order was not unlawful.
In view of Painter's own advertisement of her
union sentiments by displaying the button , Jones'
inquiries about that emblem and about her union
affiliation cannot be regarded as so patently coer-
cive as to be per se unlawful. In any event, even if
deemed to be violative of the Act, such interroga-
tion, standing alone, would not warrant a remedial
order.
RECOMMENDED ORDER
It is ordered that the complaint herein be
dismissed in its entirety.
that their cards would be used for a "card check," if over 51 percent
signed However , such a statement , even if made , would be clearly incon-
sistent with such other representations , and, absent any explanation by Fox
of the meaning of his rather cryptic reference to a card check, could have
done little to dispel the impact of such other representations Moreover, to
the extent that the employees denied that Fox referred to a card check, I
credit such denials , not only because of the incongruity of such a reference
in the context of his other representations, but also in view of Fox's
general unreliability as a witness , as well as his afternoted vacillation on
the instant point
" If one were to consider only the testimony of Fox, the General Coun-
sel's principal witness on the point, it would be necessary to reject also the
cards of Bellamy , Ellis, Hodgins , Painter , and Palmer For, the record
shows they were solicited by Fox, who testified that he made the same
representations as are described above to all those he solicited However,
the testimony of Bellamy, Ellis, and Hodgins raises some doubt as to their
reliance on such representations. Since it will not affect the result, in any
event , no attempt will be made to evaluate these conflicting considerations,
and it will be assumed for present purposes that the cards of the foregoing
three employees are valid In the cases of Painter and Palmer , who dis-
played union buttons after signing the cards, I deem controlling the fact
that , by donning the buttons , they removed any doubt as to their desire for
representation by the Union