Friendly Markets, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1976

224 N.L.R.B. 967 (N.L.R.B. 1976)

FRIENDLY MARKETS INC
Friendly Markets, Inc and Retail Clerks Union, Local
No 7, Chartered by Retail Clerks International As-
sociation, AFL-CIO Case 27-CA-4499
June 16, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On March 8, 1976, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding Thereafter, the General Counsel filed ex-
ceptions and a supporting brief and the Respondent
filed a brief in support of the Administrative Law
Judge's Decision
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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Friendly Markets, Inc,
Denver, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order
IT IS FURTHER ORDERED that the complaint in this
case be dismissed insofar as it alleges violations of
the Act not found herein
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge Based
upon a charge filed on April 29, 1975, in Case 27-CA-4499
by Retail Clerks Union, Local No 7, Chartered by Retail
Clerks International Association, AFL-CIO, hereinafter
referred to as the Union, the complaint in said case was
issued on May 30, 1975 Said complaint alleges that
Friendly Markets, Inc, hereinafter referred to as Respon-
dent or Company, violated Section 8(a)(1) and (3) of the
Act Respondent, by its answer, denies that it engaged in
conduct violative of the Act as alleged
967
Pursuant to notice,' a hearing was held i*i Denver, Colo-
rado, on August 26, 1975 Appearances were entered on
behalf of General Counsel and Respondent Counsel for
the Charging Party did not enter his appearance in the
instant case 2 A brief was timely filed by the General
Counsel Respondent filed a brief, but not within the time
prescribed therefor, and General Counsel moved that said
brief be stricken because it was untimely filed, which mo-
tion is hereby granted since I do not have the authority to
extend the time within which to file briefs 3
Based upon the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following
FINDINGS OF FACT
I BUSINESS OF RESPONDENT
The Respondent is now, and at all times material herein
has been, a corporation duly organized under and existing
by virtue of the laws of the State of Colorado and main-
tains its principal office and place of business at Arvada,
Colorado and stores at 4200 East 52nd Avenue 4 and 600
South Holly, Denver, Colorado,5 as well as two or three
other stores The Respondent is now, and at all times mate-
rial herein has been, engaged in wholesale and retail sale of
grocery products The Respondent, in the course and con
duct of its business operations annually purchases and re-
ceives goods and materials valued in excess of $50,000, di-
rectly from points and places outside the State of
Colorado The Respondent, in the course and conduct of
its business operations annually has a gross volume of busi
ness in excess of $500,000
The Respondent is now, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act
i Case 27-CA-4534 was consolidated for hearing with Case 27-CA-4499
by order of the Regional Director dated July 25 1975 It is noted however
that the complaint in said Case 27-CA-4534 was not included among the
formal documents filed herein and that at the start of the hearing I was
notified that said case had been settled that the complaint and underlying
charge had been withdrawn Although after the close of the hearing herein
there was a motion to reopen the hearing and set aside the settlement agree
ment I was subsequently notified that there has been compliance with said
settlement agreement and by order dated February 24 1976 1 issued an
order granting General Counsel permission as requested to withdraw said
motion Therefore this Decision relates only to Case 27-CA-4499
2
As noted above he entered his appearance only with respect to Case 27-
CA-4534 and withdrew from the hearing after it was formally noted in the
record that said case had been settled
3 At the close of the hearing counsel for Respondent was clearly advised
that briefs are not exchanged but are simultaneously filed and must be
filed by the 35th day An examination of his brief indicates that it was
apparently written at least in part after his receipt of General Counsel s
brief
° Also known as Store #55 This is the only store of Respondent involved
in this proceeding
5 Also known as Store #53 This store is not involved in this proceeding
except with respect to a minor item of background
224 NLRB No 145
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES ALLEGED
Discharge of Mizner
It is alleged that Franklin J Mizner was discriminatorily
discharged on April 19, 1975 Mizner was employed by the
Respondent from February 24, 1975, to April 19, 1975 He
was originally hired as an assistant manager to be a manag-
er trainee for a new store to be opened by Respondent He
began working at Store #53 and was later transferred to
Respondent's Store #55 where he was the "front end man-
ager," supervising cashiers and ordering cash supplies, in
addition to stocking the ice cream freezer, milk cooler,
and meat cooler On April 5, 1975, Robert Johnson,
Respondent's president and general manager, informed
him that he was not managerial material and that he (John-
son) could not afford to keep him on at his present salary
He offered Mizner the alternatives of either being dis-
missed or working on the stock crew at a reduced rate and
Mizner elected to accept the latter alternative About that
time the employees at Respondent's Store #55 began en-
tering into conversations concerning the unionization of
the unit at Store #55 Mizner credibly testified that prior
to coming to work for the Respondent he had been a mem-
ber of the Union and had an acquaintance who was a
union business agent Accordingly, Mizner volunteered to
speak to his acquaintance concerning the matter of their
obtaining union representation
Mizner credibly testified that he solicited employees to
sign union authorization cards on April 17 and 18, during
break periods and lunch hours All of the approximately 10
employees, except for 2 relatives of Johnson and J Kent
Cole, the individual who replaced Mizner as front end
manager at Store #55, were approached by Mizner to sign
cards Two of them refused to sign the cards and five did
sign
Mizner further testified as follows
Q Now, I draw your attention to April 19th ap-
proximately two days after you began soliciting cards
Did anything out of the ordinary occur on that date9
A I came to work at the scheduled hour for the
stock crew at 9 00 o'clock in the morning I performed
my duties on the stock crew, that of cutting and mark-
ing the merchandise and putting it out on the shelves
One of my duties in addition to handling the merchan-
dise was to run the cash register during busy hours
when there was a shortage of cashiers up front I was
called up front on that date, twice that I remember,
and performed that duty until no longer needed At
approximately 1 30 in the afternoon, Mr Johnson
called me to the back room-
Q JUDGE GILBERT What time9
A THE WITNESS Approximately 1 30, called me to
the back room and told me that he didn't think it was
working out, that he wouldn't be able to keep me in
employment I asked him for reasons for this He gave
me several reasons He said that he hadn't felt, he felt
that I had a bad attitude, and he also felt, that there
was an apparent conflict between myself and J Cole,
the new front-end manager of the store He also said
that he had gotten reports that day that I had refused
to obey an order of J Cole
I was upset about being dismissed and tried to ques-
tion Mr Johnson as to specific incidents of my bad
attitude and poor performance, and we discussed a
couple of instances, and I was paid for the rest of the
day and left the store about 2 00 o'clock, approxi-
mately
Mizner further testified as follows
A He said that my job performance had been ade-
quate I had done all that was expected of me that
related to my job, but that there were other factors
which led him to believe that I couldn't function
around the store
Q (By Judge Gilbert) Did he explain what the
other reasons were9
A Yes, sir, he did He thought the personality con-
flict between myself and J Cole I said, "Mr Johnson,
what's the personality conflict9 I don't work with Mr
Cole ordinarily," and he said that he had been given
reason to believe by Mr Cole that there was a conflict
Q Anything else that he said9 The personality con-
flict-
A The personality conflict He stated that J Cole
had told him that day, the 19th, that he, Mr Cole, had
called me up front and I had refused to come up and
perform my secondary function as a cashier I denied
that to Mr Johnson, told him that I had checked up
front when required, and if there were additional in-
stances when I hadn t come up front, it was because I
hadn't heard the summons or I was very involved with
something else and hadn't been able to come up But,
to the best of my knowledge, I hadn't refused an order
of J Cole, and I think those are the only two reasons
he gave me at that time
Johnson testified that the main reason he terminated
Mizner was that he refused to perform work that Cole had
asked him to do on April 19 (to assist as a cashier)
Johnson credibly testified with respect to said reason for
the discharge as follows
A I was at Store 55 on East 52nd Avenue for the
biggest part of the day But, on two different occasions
I had to leave the store, and both times upon my re-
turning, the customers were lined in the front end and
were not being taken care of at the check stand I
asked Mr Cole what the problem was, and on both
occasions he told me that Frank [Mizner] had refused
to come forward and help checking out the customers
as he was supposed to do
Q Now, who was Mr Cole
A He at that time was the front-end manager who
had taken Frank Mizner's place when he was demot-
ed
Q In what manner would Mr Mizner have helped
that situation?
A Part of his job when he was retained as a stocker
was to help in the front of the store when we were
busy up there as a checker
FRIENDLY MARKETS, INC 969
Q Do you recall what Mr Cole said to you upon
your return on these two occasions to the store?
A Well, on the first one, I reprimanded Mr Cole
for not getting him up there
Q For not getting Mr Mizner, in particular, to the
front of the store?
A He said, "I did call him on the PA system and he
didn't come," and he said, "I didn't go back after
him", and upon my returning the second time, Mr
Cole told me that he had gone back and Mr Mrzner
had told him that he had better find out whether I
really wanted him up there or not, and that's as near
as I can tell you
Cole testified with respect to his attempts to get Mizner
to assist as a cashier and his credited testimony essentially
corroborates that of Johnson 6
I am of the opinion that Cole's report to Johnson of
Mizner's response to Cole's request to assist as a cashier
triggered Johnson's decision to terminate Mizner The
question remains, however, whether Mizner's union activi-
ty was a factor in arriving at that decision According to
Johnson's credited testimony, he had no knowledge of the
organizational activity until he received a call from the
Union on April 21, 1975, informing him that it was going
to seek an election There is virtually nothing in the record
which would tend to support an inference that Johnson
was aware of the organizational activity or Mizner's parti-
cipation therein at the time of Mizner's discharge Mizner
talked to only seven employees and apparently was careful
in doing so, since , as he testified, he did so only on break
times and avoided talking to Cole or to the two employees
related to Johnson While there is testimony that Mizner
carried the authorization cards in his pocket from which
they protruded, I am not of the opinion that this would
support an inference that they were observed by manage-
ment Johnson credibly testified that he had not seen the
cards in Mizner's pocket and that he would not have recog-
nized them as authorization cards if he had seen them
Mizner testified that on April 18 Dale Koehler,
Respondents market supervisor, who apparently chiefly
managed Store #55, spoke to him encouragingly of his
future with the Company, which it is most unlikely he
would have done had ne been aware of Mizner's union
activity 7 There is nothing in the record of any activity on
the part of Respondent prior to April 21 which would indi-
cate that management had knowledge of any union activi-
ty
The General Counsel would have me infer knowledge of
Mizner s union activity on the basis of the "small plant
6 Although it appears that no mention was made of the April 19 incident
in Cole s first affidavit his second affidavit does recite it His explanation of
why it was omitted in the first affidavit is credible and Cole was a convmc
mg witness He candidly admitted that he was surprised that Mizner was
fired and that he had no personality conflict with Mrzner
7 Johnson testified that he had observed Mrzner doing sloppy work on
April 17 and complained to Koehler about it that Koehler dissuaded him
from firing Mrzner and said he would talk to Mizner to get him to improve
This would explain the encouraging talk he gave Mizner on April 18 appar
ently in order to persuade him to improve his performance In any event it
does not appear that the quality of Mizner s work was mentioned as a
reason for the decision to discharge him on April 19
doctrine " 8 In my opinion said doctrine is inapplicable in
the instant case There is nothing to justify its application
herein except the sole fact that Store #55 contained only
approximately 10 employees In Hadley Manufacturing
Corporation, 108 NLRB 1641, 1650 (1954), it is stated
The General Counsel admitted on the record that a
finding that Respondent had such knowledge must be
inferred from the small size of Respondent's plant
However, the mere fact that Respondent's plant is of a
small size , does not permit a finding that Respondent
had knowledge of the union activities of specific em-
ployees, absent supporting evidence that the union ac-
tivities were carried on in such a manner, or at times
that in the normal course of events , Respondent must
have noticed them 9
While it might be argued that reason for the discharge
was for an offense that did not merit such drastic action
and, therefore, must have been `pretextual," I am not con-
vinced by such an argument It is apparent that Johnson
was not satisfied with Mizner's potential as an employee in
view of his earlier demotion to the stock crew In addition,
Johnson credibly testified that he had had reports of
Mizner's frequent criticism of the store and its manage-
ment 10 and, while Johnson did not testify that it was a
reason for the discharge, I am of the opinion that this
knowledge must have rankled him and magnified the im-
pact on him of Mizner's response to Cole's order to assist
as a cashier (which would explain Johnson's ascribing as a
second reason for the discharge a "personality conflict"
with Cole)
Thus, I am led to conclude that the General Counsel has
failed to prove by a preponderance of the evidence the
allegation that Mizner was discriminatorily discharged
Steel-Tex Manufacturing Corp, 206 NLRB 461, 463 (1973)
The 8(a)(1) Allegations
It is alleged that Respondent, through Johnson, unlaw
fully interrogated employees on or about April 21 and
April 28 and on or about May 12 threatened that "employ
ees would lose their jobs if they selected the Union to rep
resent them " The 8(a)(1) allegations are apparently based
upon the testimony of employees Keith Hodges and Diane
Frisk
Johnson testified that during the week commencing
April 21 (when he received the aforementioned telephone
call from the Union informing him that it would be seeking
an election) he talked with all of the employees, that this
was prior to the election (which the Union won by a vote
of 6 to 0 with one challenged ballot) I1 According to
Johnson's credited testimony he approached all employees
8 Citing Astro Container Company a Division of Allied Drum Services Inc
180 NLRB 815 821 (1970) Angwell Curtain Company Inc v N L R B 192
F 2d 899 903 (C A 7 1951) American Grinding & Machine Co 150 NLRB
1357 1358 1366 (1965) Dubin Haskell Lining Corp 154 NLRB 641 650
(1965)
'See also Samsonite Corporation 206 NLRB 343 349 (1973) and The
American League of Professional Baseball Clubs 189 NLRB 541 548-549
(1971)
10 There is credible testimony that Mizner did engage in such conduct
The Union was subsequently certified as a bargaining representative
Continued
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the same way, starting out with the statement "I do not
know your union affiliations nor do I want to know,' and
that he then stated
THE WITNESS If we were to accept the union con-
tract as it is written, that we would undoubtedly have
to raise some prices, and there would be less volume
and less business in our store, and the possibility of
some employees would have to be laid off 12
It appears that Johnson was familiar with the Union's
retail store contract and that Store #55 was a wholesale
retail outlet, selling to retail customers in package lots It
appears further from Johnson's credited testimony that in
October 1974 the Union was insisting that he sign a retail
store contract with it, that the Union never replied to this
request that a separate contract be negotiated for his
wholesale-retail type of outlet, that employees at two of
Respondent's other stores are paid at union scale, and that
the prices charged at said two stores are higher than at
Store #55 Therefore, it is inferred that he had an objective
and reasonable basis for his prediction of the possible ef-
fect of attempting to operate Store #55 under the union
contract "as it is written " Consequently, it is concluded
that Johnson's statement was not a threat but a "pre-
diction" protected under Section 8(c) of the Act within the
guidelines set forth in N L R B v Gissel Packing Co Inc,
et al, 395 U S 575, 618 (1969), and that General Counsel
has failed to prove by a preponderance of the evidence the
allegation that Respondent unlawfully threatened employ-
ees with loss of jobs "if they selected the Union " Read's,
Inc 205 NLRB 302, 313 (1973), Bulk Haulers, Inc, 200
NLRB 389, 391 (1972)
Hodges testified that he had refused to sign a card when
asked by Mizner, that he started to work for Respondent
on April 16 and that in the first part of June 1975 he be-
came store manager of Store #55 Hodges further testified
that he had a conversation with Johnson during the second
week of his employment (on or about April 21) 13 He fur-
ther testified that he told Johnson that he had not signed a
card, but could not remember if Johnson had asked him if
he had After being shown his prehearing statement, while
he testified that it did not refresh his recollection, he did
state that he was changing his testimony, that his recollec
tion was better at the time he gave the statement In view
of this and his failure to deny the truth of his prehearing
statement, it appears that it is his testimony that Johnson,
did, in the course of their conversation ask him if he had
signed a card
Frisk testified that on April 28 she had a brief conversa
tion with Johnson, that he told her that the Union had
"contacted the office' and asked her if she "knew anything
about it," that she replied in the negative, but that her
answer was a "lie, since Mizner had previously asked her
to sign a card She further testified to the effect that that
was the extent of their conversation
and eventually I understand in accordance with the aforementioned settle
ment agreement a collective bargaining agreement was executed
ii Hodges testified that Johnson mentioned the possibility of a layoff if
the Union came in but Johnson s version of what he stated is credited
13 The same conversation in which he testified that Johnson made the
statement about a possibility of a layoff as above noted
Johnson testified that in his conversations with the vari-
ous employees he asked no questions, that whatever infor-
mation he received was volunteered to him Although, for
the most part, Johnson was a convincing witness, I am of
the opinion that the above testimony of Hodges and Frisk
should be credited and it is found Johnson did ask Hodges
if he had signed a card and Frisk what she knew about the
Union Johnson's recollection as to the particulars of his
conversations with said two witnesses was somewhat hazy
I am of the opinion that these two incidents of interroga-
tion constituted interference, restraint, and coercion within
the meaning of Section 8(a)(1) of the Act
Therefore, I conclude that General Counsel has proved
by a preponderance of the evidence the allegations of un-
lawful interrogation of employees on or about April 21 and
28
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth in section I, above, have a close, intimate,
and substantial relationship 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 thereof
V THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the fol
lowing
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) of the Act by the
following conduct
(a) By unlawfully interrogating employee Keith Hodges
on or about April 21, 1975
(b) By unlawfully interrogating employee Diane Frisk
on or about April 28, 1975
4 General Counsel has failed to prove by a preponder
ance of the evidence the allegation that Respondent unlaw
fully threatened employees with loss of jobs if they select
the Union as their bargaining representative
5 General Counsel has failed to prove by a preponder-
ance of the evidence the allegation that Respondent dis-
criminatorily discharged Franklin Mizner
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended
FRIENDLY MARKETS, INC 971
ORDER 14
Respondent, Friendly Markets, Inc, Denver, Colorado,
its officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Unlawfully interrogating its employees concerning
their union activities or that of their fellow employees
(b) In any like or related manner interfering witl', re-
straining , or coercing employees in the exercise of the
rights under Section 7 of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Post at its place of business in Store #55 , in Denver,
Colorado, copies of the notice attached hereto and marked
"Appendix " 15 Copies of said notice, on forms to be pro-
vided by the Regional Director for Region 27, after being
duly signed by an authorized representative of Respon-
dent, shall be posted by Respondent immediately upon re
ceipt thereof, and maintained by it for a period of at least
14 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
15 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material
(b) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
IT IS FURTHER ORDERED that the allegations in the com-
olamt which have been found heremabove not to have
been sustained, should be, and hereby are, dismissed, in-
cluding the allegation of the discriminatory discharge of
Franklin Mizner
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate employees re
garding their union activities or the union activities of
their fellow employees
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights under Section 7 of the Act
FRIEND,.Y MARKETS, INC