Gerbes Super Market, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1975

217 N.L.R.B. 394 (N.L.R.B. 1975)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerbes Super Market, Inc. - and Retail Store Em-
ployees Union, Local 782, Chartered by Retail
Clerks International Association. Case 17-
CA-6037
April 11, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On December 9, 1974, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in this
proceeding. Thereafter, the General-Counsel filed ex-
ceptions and a supporting brief.
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 brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint be, and it hereby is, dismissed.
1 The dismissal of this complaint does not, of course, bar any relief Gerald
Francis might otherwise be entitled to as a result of the decision of Gerbes
Super Market, Inc., 213 NLRB No 112 (1974)
DECISION
STATEMENT OF THE CASE'
PETER E. DONNELLY, Administrative Law Judge: The origi-
nal charge herein was filed by Retail Store Employees Union,
Local 782, Chartered by Retail Clerks International Associa-
tion, herein called Charging Party or Union, on April 24,
1974, and the complaint was issued by the General Counsel
of the National Labor Relations Board on June 12, 1974,
alleging that Gerbes Super Market, Inc., herein called Re-
spondent or Employer, violated Section 8(a)(3) and (1) of the
Act by its discriminatory treatment of Gerald Francis in his
working conditions, causing Francis to quit his employment.
An answer thereto was timely filed by Respondent on June
19, 1974. Pursuant to notice the hearing was held before the
Administrative Law Judge at Versailles, Missouri, on July 30,
31, and August 1, all in 1974.
General Counsel's motion to correct the transcript is granted except as
to those changes which substantially alter the state of the transcript
1. FINDINGS OF FACT
The Employer is a Missouri corporation operating retail
stores in the State of Missouri, including a grocery and var-
iety store located in Versailles, Missouri. In the course and
conduct of its business operations, the Employer has an an-
nual gross volume of sales in excess of $500,000 and annually
purchases goods and materials valued in excess of $50,000
directly from sources located outside the State of Missouri.
The complaint alleges, the answer admits, and I find that the
Employer is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II LABOR ORGANIZATION
The complaint alleges and Respondent in its answer admits
and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges in substance that, beginning some-
time in December 1973, Respondent transferred Francis to a
more onerous job, reduced his work hours, thereby causing
him to quit, all because of his activity on behalf of the Union.
A. Facts
Gerald Francis was first employed by Respondent in Octo-
ber 1972, at Respondent's Versailles, Missouri, store. He was
hired as a clerk in the hardware department. The store also
has departments selling groceries, produce, and meat. Francis
was a part-time student employee. As a student employee he
participated in a student work program called "Cooperative
Occupational Education" (herein called COE). Under this
program, participating high school students were allowed to
leave school at noon rather than 3:30 p.m., the normal end
of the schoolday.
When Francis was hired the janitorial or cleanup work was
shared by the student employees on a rotating basis. In
March 1973, however, this procedure changed when Lyman
Moore, another part-time student employee was hired to do
the janitorial work. This work included mowing the grass in
front of the store, filling the pop machines and ice machine,
sweeping, cleaning the two bathrooms, emptying trash cans,
and a more complete late night cleanup about once a week,
which included scrubbing and waxing the floor with a ma-
chine. The late night cleanup required two people in order to
operate the machine. Francis sometimes assisted Moore in
doing the late night cleanup.
In July 1973, Francis contacted Robert Reeds, business
representative for the Union, and was thereafter active in an
effort to organize Respondent's Versailles, Missouri, store. A
letter demanding recognition, dated August 10, 1973, was
sent to the Respondent listing Francis along with 17 other
employees as having authorized the Union to represent them.
By letter dated August 22, 1973, the Union again requested
recognition. This letter was signed by Francis along with 17
other employees. A strike subsequently occurred on August
23, 1973, lasting until August 31, 1973. Francis did not work
during the strike. After the strike Francis accepted reinstate-
ment on November 11, 1973. He returned to the hardware
217 NLRB No. 67
GERBES SUPER MARKET, INC. 395
department in his prestrike job as a clerk.2 When Francis
was reemployed he was not a participant in the COE program
although he was still a part-time student employee. Since he
was not in the COE program he was not available for work
until about 4 p.m. each day. Francis did not reenter the COE
program although he applied to do so, since he could not
assure Mr. Moutray, a teacher administering the COE pro-
gram, that he would be able to work the requisite 20 hours
per week to qualify for the program. When he began to make
20 hours a week he again reapplied and at this time was told
it was too late in the year to be admitted. Francis again
applied in January at the start of the second semester and was
again told by Moutray that it was too late in the year.'
At the time that Francis was reemployed, in November
197.1, Moore was performing the janitorial work as he had
been prior to the'strike. This situation prevailed until Larry
Walsh was hired in late November or early December 1973,
to do the janitorial work. At that time Moore was transferred
to the produce department and also did some sacking work.
In about the middle of January 1974, Walsh left when his
work at the store conflicted with another job which Walsh
held doing janitorial work at the local high school. When
Walsh left, Moore went back to the janitorial work while at
the same time performing duties in the produce department.
Another part-time student, named Lawrence -King, and
Francis helped Moore on the late night cleanup. However,
this arrangement was unsatisfactory since the janitorial work
left Moore too little time to perform his duties in the produce
department.
About the middle of January 1974, Gary Blomberg, store
manager,4 assigned Francis to the janitorial work. Blom-
berg's stated reason for selecting Francis was that the labor
overhead in the general merchandise (hardware) department
was high. His selection of Francis instead of Lawrence King,
who also worked in hardware, was a policy decision based on
the fact that King was not fully trained in the hardware
department and by selecting Francis instead of King, Blom-
berg would be able to have two fully trained men in hardware
once King was fully trained. Another reason for selecting
Francis was that Francis was not a COE student and as such
was unavailable for work until about 4 p in. King was a COE
student and was available at about 12:30 or 1. King's availa-
2 Unfair labor practice allegations arising out of this organizational effort
and strike were heard before Administrative Law Judge Ramey Donovan
on February 5, 6, and 7, 1974, resulting in a Board Decision (213 NLRB
No. 112 (1974)) concluding, inter aka, that Gerald Francis was an unfair
labor practice striker and that his reinstatement on November 11 was insuf-
ficient because he was reemployed at reduced hours. That issue is not
involved in the instant case The single issue before me, as defined in the
complaint, is whether or not the Respondent, subsequent to the above
reinstatement, discriminated against Francis in January 1974, by transfer-
ring him and reducing his hours, thereby constructively discharging him on
or about April 20, 1974.
3 Francis also states that Moutray told him that his failure to go back to
work during the strike was a reason for his not being allowed into the
program However this allegation is unsupported by any corroborating evi-
dence and even if true, no responsibility can be assigned to the Respondent
for Moutray's statements
4 The testimony clearly shows that Gary Blomberg, the store manager,
and Bill Combs , the assistant store manager , exercise sufficient indicia of
supervisory authority to conclude they are supervisors within the meaning
of Sec 2(11) of the Act as alleged in the complaint The record is insufficient
to conclude that Allan Morris, hardware manager, is also a supervisor and
no finding therefore is made as to Morris' supervisory status.
bihty in the early afternoon before 4 or 5, when cleanup
began, would have been wasted had King been assigned to the
janitorial work.
At the time of his assignment to the janitorial work, Fran-
cis told Blomberg that he did "not like the idea too good."
At this time Blomberg advised Francis that the assignment
would not be permanent, less than a year, and that Moore
would show him how to do the janitorial work. Blomberg told
him that the work would entail cleaning floors, mopping,
changing the ice machines, cleaning pop machines , cleaning
the restrooms, changing towels, and emptying trash and ash-
trays. He was told that on Sunday he would sack groceries.
At his own request Francis was not scheduled to work Friday
evenings since he wanted this time off to be with his girl-
friend.
With respect to the nature of the work, Francis testified
that, while it was not more demanding work physically nor
any dirtier, he considered it to be a "downgrading job," a
"low job." Moore testified that other jobs like stocking and
unloading trucks were dirtier jobs than the janitorial work,
and that the janitorial work was no more difficult physically.
Moore further testified that, while he did not necessarily
dislike the job, he did not see any progress in it for himself,
even though he did not mind it himself since it was one of the
easiest jobs in the store.
For a few weeks after Francis ' assignment to janitorial
work, Moore helped him until they had an altercation outside
the store in early March 1974.5 Thereafter Francis per-
formed the janitorial duties himself, with late night cleanup
help from King.
With respect to the allegation that Respondent reduced
Francis' work hours when it transferred him from the hard-
ware department to janitorial work, Francis testified that in
November and December 1973, while in the hardware de-
partment, he was working about 25 to 30 hours a week and
that beginning January 1974 through April 1974, while doing
the janitorial work, he was working 10 to 15 hours a week.
General Counsel introduced into evidence certain of the Re-
spondent's pay records which show the following hours
worked for some of the relevant payroll ending dates as fol-
lows; 12/1/73-18.9 hours; 12/29/73-23.1 hours; 1/5/74-
22.4 hours; 2/9/74-6.Q hours;' 7/20/74-29.1 hours; 1/12/74-
20.2 hours; 1/26/74-19.98 hours; 2/2/74-31.7 hours; 2/16/74-
21 hours.
Francis did the janitorial work until about April 20, 1974.
At this time he went to Blomberg and asked him if Mark
Tucker, a newly hired part-time student employee could be
assigned to the janitorial work since he had been told that his
assignment would not be permanent. Blomberg replied in the
negative, telling Francis that he wanted Tucker to learn the
sacking job at the front end of the store first.7
Francis states that after this conversation he left and went
back to work but grew more angry as the day went on and
5 While the General Counsel appears to be assigning responsibility for the
fight to the Respondent through Blomberg's incitement of Moore, the
record does not support this contention.
6 This pay period includes the days of the hearing noted in footnote 1
7 While Francis testified that Blomberg told him to get out if he did not
like it, Blomberg's account of the conversation contains no such language.
I conclude that even if such a remark was made it is insufficient to affect
the disposition of this case.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 2 p.m. at his lunchtime, he walked up to Blomberg,
who asked "Are you leaving?" to which Francis replied,
"Yes." Blomberg asked, "For the rest of the day?" and Fran-
cis replied, "Yes," adding "Well, I won't be coming back."
Blomberg asked, "Is this for good?" and Francis replied,
"Yes." Blomberg replied, "O.K., fine." Thereafter Francis
punched out and left the store.
By letter dated July 1, 1974, Francis was made an offer of
reinstatement which he accepted sometime about mid-July
1974. Francis is presently employed' as a clerk in the hard-
ware department!
B. Discussion and Analysis
It is undisputed that Francis was active on behalf of the
Union and that he participated in a strike against the Re-
spondent in August 1973. It is equally apparent based on the
record herein that Store Manager Blomberg was aware of his
activity and the fact that Francis was an active union adher-
ent.
However, when allegations of illegal discrimination are
made, there must also be a showing that the discriminatory
treatment was undertaken because the employee had engaged
in such privileged activity. In applying this criteria to Fran-
cis' transfer to janitorial work in the instant case, the facts
must establish first that the transfer was discriminatory and
secondly that Respondent's motivation for the transfer was
based on considerations proscribed by the Act.
As to the first consideration, Francis concedes that the
janitorial work was no dirtier or more demanding physically
than other jobs in the store. However, it does not follow that
simply because one job is no more strenuous or dirty than
another that it may not be more onerous. In the instant case,
Francis was moved from a clerk's job in the hardware depart-
ment to janitorial work which involved, inter alia, cleaning
floors, dumping trash, and cleaning toilets and restrooms.
Francis described it as a "downgrading" or "low" job. I
agree. In comparing the nature of the work performed by
Francis as a clerk in the hardware department with the
janitorial work, I conclude that the janitorial work was more
onerous.
With respect to the allegation that Respondent reduced
Francis' work hours when he was transferred to janitorial
work, I conclude that this allegation is not supported by the
evidence. Those timecards in evidence, noted above, while
not complete records for the relevant periods of time, do not
support the conclusion that Francis' hours were reduced, and
the record herein does not otherwise support this contention.
There remains for consideration the central issue as to
whether or not Respondent's transfer of Francis to janitorial
work was discriminatorily motivated resulting in his con-
structive discharge. Respondent contends that it was neces-
sary to reassign the janitorial work to someone other than
Moore since it interfered with Moore's primary duties in the
produce department. Respondent explains that the overhead
was high in the hardware department which made this a
desirable place to economize. Within the hardware depart-
ment it appears that two employees were considered for the
janitorial assignment; one was Lawrence King, a recent hire,
and the other, Francis. Respondent selected Francis rather
than King since King was being trained in the hardware
department and on completion of his training both he and
Francis would be fully trained hardware department em-
ployees. It is also noted in this regard that King, as a COE
student, could work in the early afternoon. Francis, since he
was not a COE student, could not begin until about 4 p.m.
Since the janitorial work began about 4 or 5 p.m., a better
utilization of both King and Francis was realized by assign-
ment of Francis to the janitorial work and using King for
early afternoon work for which he was available and Francis
was not.
For these reasons, Respondent decided to assign the
janitorial work to Francis. The reasons are plausible. Obvi-
ously Respondent could have resolved the matter differently
and perhaps more efficiently, but I cannot conclude on the
facts of this case that the assignment of Francis was anything
other than a legitimate exercise of business judgment. While
the General Counsel and Union urge that the transfer was
discriminatory, the state of this record does not permit any
proper inference of illegal motivation, despite the unfair labor
practice findings made by the Board as noted in footnote 1.
The facts upon which any such inference could be made do
not appear in the record herein. The General Counsel has
failed to meet his burden in this regard.
In summary, I cannot conclude that Francis' transfer to
janitorial work was discriminatory within the meaning of the
Act. Therefore his subsequent departure from the Company
was not justifiable so as to constitute a constructive discharge,
but was rather a voluntary quit. Hecht's Inc., 174 NLRB 951
(1969).
8 General Counsel alleges that this reinstatement is at substantially re-
duced hours compared to his prestrike employment and should be deemed
violative of Sec. 8(a)(1) and (3) of the Act. This matter was not fully litigated
at the hearing and is otherwise beyond the scope of the issues framed by the
complaint and the complaint was not amended to include such allegations.
Accordingly, no findings thereon are made herein.
CONCLUSION OF LAW
Respondent has not engaged in any conduct violative of the
Act.
[Recommended Order for dismissal of complaint omitted
from publication.]