Git-N-Go, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1987

282 N.L.R.B. 965 (N.L.R.B. 1987)

GIT-N-GO, INC
Git-n-Go, Inc . and United Food & Commercial
Workers International Union , Local 76 and Mi-
chael Roger Egts . Cases 16-CA-12465 and 16-
CA-12512
4 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 4 August 1986 Administrative Law Judge
William N. Cates issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,
and conclusions as modified but not to adopt the
recommended Order.
The judge dismissed all but one of the complaint
allegations, finding only a single violation of Sec-
tion 8(a)(1) of the Act. Contrary to the judge, we
find that the Respondent did not violate Section
8(a)(1) when Store Manager Cochran spoke to dis-
charged employee Baxter about the reasons for his
discharge. Instead, we find under all the circum-
stances that this conversation was not coercive, fol-
lowing the standards of Rossmore House.2
The judge found in section 1,B of the decision
that a few weeks after employee Baxter was dis-
charged from store 35, he came into the store and
spoke to Store Manager Cochran, who had taken
over as manager of the store after Baxter's dis-
charge. No employees or customers were present
in the store during their conversation. Baxter asked
Cochran why he had been discharged. Cochran re-
plied that the former store manager had told him it
was because of a series of bad inventories and bad
store conditions. Cochran then asked Baxter if he
had had anything to do with the Union. Baxter re-
plied that he had worked on another job that was
unionized. Cochran winked, laughed, and said,
"That is probably why they fired you then." Coch-
ran asked Baxter if he had found work yet. When
Baxter said he had not, Cochran offered to give
him an employment reference. The judge listed a
number of factors tending to reduce the coercive
effect of Cochran's comments to Baxter but con-
cluded that, on balance, Cochran's statements were
coercive, noting that Cochran had no legitimate
' The Respondent's request for oral argument is denied as the record
and the briefs adequately present the issues and the positions of the par-
ties
2 269 NLRB 1176 fn 20 (1984), affd 760 F 2d 1006 (9th Cir 1985)
965
reason for asking about Baxter's union activities
and that Baxter could reasonably assume Cochran
spoke for management in stating Baxter's union ac-
tivities were the reason for his discharge.
We disagree. Baxter initiated the conversation,
which occurred in a public place; Cochran had
never supervised or worked with Baxter; Cochran
had had nothing to do with Baxter's discharge;
Cochran reported to Baxter that the former store
manager had given nondiscriminatory reasons for
Baxter's discharge; and Cochran ended the conver-
sation by offering to provide Baxter with an em-
ployment reference. Under these circumstances, in-
cluding the particularly speculative nature of the
comments, we find that Cochran's statements were
not coercive, and we conclude that Cochran's
statements did not violate Section 8(a)(1) of the
Act. Accordingly, we shall dismiss the allegations
that the Respondent coercively interrogated an em-
ployee and told him he had been terminated for en-
gaging in union activities.
ORDER
The complaint is dismissed.
Edward B. Valverde, Esq., for the General Counsel.
Katie J. Colopy, Esq. and David E. Strecker, Esq. (Conner
& Winters), of Tulsa, Oklahoma, for the Company.
Jack D. Stogsdill, Rep., of Tulsa, Oklahoma, for the
Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. These
consolidated cases were heard on 17 and 18 April 1986'
in Tulsa, Oklahoma. The underlying charge in Case 16-
CA-12465 was filed by United Food and Commercial
Workers International Union, Local 76 (Union)2 17 Jan-
uary 1986.3 Pursuant to the Union's charge, the Regional
Director for Region 16 of the Board issued a complaint
and notice of hearing on 26 February 1986 in which it
was alleged that Git-n-Go, Inc. (Git-n-Go or Company)'
' All dates are 1985 unless otherwise indicated
2 It is alleged, the parties admit, and I find the Union is a labor organi-
zation within the meaning of Sec 2(5) of the Act
a The Union alleged Git-n-Go, Inc had violated Sec 8(a)(1) and (3) of
the Act by discharging Teddy William Baxter (Baxter) and J W John-
son (Johnson) The Regional Director for Region 16 of the National
Labor Relations Board (Board) in a letter to the Union dated 27 Febru-
ary 1986 dismissed that portion of the charge related to Johnson because
the Region determined Johnson was a supervisor within the meaning of
Sec 2(l1) of the Act and not subject to protection under Sec 8(a)(3) of
the Act
* The Company is an Oklahoma corporation with an office and places
of business located at Tulsa, Oklahoma, where it is engaged in the retail
sales (through convenience stores) of groceries and sundry items During
the year piecedmg issuance of the complaint herein, a representative
period , the Company purchased and received directly from suppliers out-
side the State of Oklahoma goods valued in excess of $50 ,000 and during
Continued
282 NLRB No. 142
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had violated Section 8 (a)(1) and (3 ) of the Act by about
5 December discharging Baxter and by telling him he
had been discharged for engaging in union organizational
activities . The underlying charge in Case 16-CA-12512
was filed by Michael Roger Egts , an individual (Egts),
26 February . 1986 . Thereafter an order consolidating
cases, consolidated complaint , and notice of hearing
(complaint) issued on 12 March 1986 in which it was ad-
ditionally alleged that the Company violated Section
8(a)(1) and (3) of the Act by about 5 December discharg-
ing Egts. On 25 March 1986 the Acting Regional Direc-
tor for Region 16 of the Board issued an amendment to
the complaint in which it was alleged , in part , that the
Company discharged Egts to conceal and disguise its
motivation for discharging others at the same store
where Egts had been employed . The Company in its an-
swers to the various complaints and amendments thereto
admitted certain allegations contained in the complaints,
but denied the commission of any of the alleged unfair
labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs
which have been carefully considered were timely filed
on behalf of the General Counsel and the Company.
On the entire records of the case and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Certain Operative Facts
The Company operates a chain of 58 convenience type
food stores in the States of Oklahoma and Missouri.6
Grocery , food, and sundry items are offered for sale at
all of the stores . Some of the stores are equipped to offer
gasoline sales and some have delicatessen sections. Store
level operations at all the Oklahoma stores are under the
overall supervision of Oklahoma Division Manager
Waddle. Seven district supervisors report directly to
Waddle . Each of the district (or area) supervisors are re-
sponsible for "approximately eight to 11 stores." Each
store has "approximately four" employees . The four are
a store manager,7 a first assistant , a second assistant, and
that same period had annual gross revenues in excess of $500,000. It is
alleged, the parties admit, and I find the Company is an employer en-
gaged in commerce'withm the meaning of Sec 2 (2), (6), and (7) of the
Act
S The General Counsel's 23 May 1986 unopposed motion to correct
the record is granted. A copy of the General Counsel 's motion is made a
part of the record herein and designated as ALJ Exh 1
6 The overall description of the Company's operations is taken from
the testimony of Oklahoma Division Manager Tom Waddle (Waddle).
Waddle impressed me that he was attempting to testify truthfully and
with good recollection He appeared generally candid and his delivery
was convincing I am not unmindful of his interest in the outcome of this
case; nonetheless, I found him to be believable and credit his testimony
7 It is acknowledged that store managers are supervisors within the
meaning of Sec 2 (11) of the Act
a , night person.8 It appears that as a general rule the
store managers work from approximately 5:45 a .m. until
approximately 3 p.m.; the first and second assistants gen-
erally work from approximately 1:45 p .m. until approxi-
mately 11 p .m.; and the night persons generally work
from approximately 10:30 p .m. until approximately 6 a.m.
It further appears the busiest part of the workday occurs
between approximately early afternoon and approximate-
ly 11 p . m. Each of the stores is operated independently
of the others and not as a cluster of 58 stores. According
to Waddle, each store must stand on its own as a profit-
making center and, if a particular store fails to do so, a
decision is made whether to continue to operate that par-
^ticular store.
The particular store primarily involved in the instant
case is store 35, located at 6412 South Peori , Tulsa,
Oklahoma.
The four store employees work as a team to "sell mer-
chandise" and to maintain the store 's "physical appear-
ance." According to Waddle , although the store manag-
ers have overall responsibility for operating the stores
and are required to ensure the stores operate within the
guidelines set by the Company, store operations are
really team efforts on the part of all employees to ensure
the stores are properly and profitably operated. The
Company 's Policies and Procedures Manual,9 which is
required reading for all new employees, states in perti-
nent part under "Areas of Responsibility:"
The general responsibility of each Git-n-Go em-
ployee is to perform his/her job in a manner that
effectively maintains the store 's physical appearance
and its operation as outlined in Part II, Standards of
Operation of this manual.
There is no clear cut division of duties in the oper-
ation of a Git-n-Go convenience food store. All
personnel assigned to a store are responsible to the
manager of that store . The manager is responsible
to the supervisor of that store. It is the specific re-
sponsibility of each manager to insure that his store
is maintained and meets the standards discussed in
Part II of this manual . All personnel assigned to a
store work together, each doing a fair share of the
work, with the common goal of meeting these
standards.
Waddle testified the Company's standards of operation
were , simply the many categories it looked at from a con-
trol standpoint that had to be achieved in order for a
store to be profitable . Waddle stated some of the catego-
ries looked at are "a clean store," "taking care of cus-
tomers," "handling vendors in an accurate manner," and
"inventory control ." Waddle stated inventory control
was for a number of reasons "one of the most crucial
areas of importance to the [C]ompany ." He stated the
Company is located in an area that has "the nation's
8 It is acknowledged that first and second assistants as well as night
employees are not supervisors within the meaning of the Act.
9 A copy of the Company's Policies and Procedures Manual is avail-
able at each store.
GIT-N-GO, INC.
most dense convenience store concentration" and as such
the market place is very competitive. Waddle stated that
because the Company is located in such a highly com-
petitive area, strict inventory controls are essential in
order for it to make a profit and remain in business.
Waddle stated the maximum deviation in inventory con-
trol allowed by the Company is one-half of 1 percent of
total sales. Waddle testified: "When the C-store operates
on a one-half of one percent profit margin , and you lose
possibly one-half of one percent in inventory problems,
then you consequently arrive without a profit." Waddle
stated inventory control is "quite extensively" covered
during employee training. Inventory control is also an
area that is covered on each employee's personnel per-
formance appraisal.
It appears inventory control is and has been a matter
of great concern for all, employees of the Company. For
example, store 35 First Assistant Baxter testified he was
aware that the Company placed pretty high emphasis on
controlling inventory and stated he had heard of employ-
ees being discharged for cash and inventory shortages.
Store 35 Manager Johnson also testified inventory con-
trol was a matter of significant concern to the Company
and added that if his superiors talked to him about inven-
tory problems he passed their comments on to the em-
ployees who worked for him. Although Johnson could
not recall the exact figure, he indicated he was fully
aware the Company had a percentage figure that the
stores were expected to stay within on inventory control.
In the Company's Policies and Procedures Manual, at
section II, "Standards of Operation " it is pointed out
under "Inventory Control" that, in order to maintain
overages and shortages within acceptable limits, constant
and conscientious efforts had to be exerted in the follow-
ing areas : vendor checking; control of damaged goods;
control of pricing;, accurate, complete, and current post-
ing of price changes; accurate recordkeeping; accurate
checking at the register; and handling and preventing
shoplifting. In order to assist its supervisors, managers,
and employees in keeping inventory within established
guidelines, the Company utilizes various methods for
checking inventory control at each of its stores. The
Company maintains in its computerized accounting de-
partment a perpetual inventory on each of its stores. Ac-
cording to Waddle, the perpetual inventory for each
store fluctuates on a daily basis. The fluctuation is
brought about by a daily inventory report provided to
the accounting department by the store managers at each
of the Company's stores. Additionally, a physical audit is
made at all stores approximately every 4 to 6 weeks. The
audits, which are announced to the stores involved ahead
of time, are performed by auditors "employed by the
Company.' ° After a physical audit has been completed,
the results thereof are compared with the perpetual in-
ventory for the store audited to determine if an overage
or shortage in inventory and cash exists at the audited
store. Waddle stated that wheli,the perpetual inventory
for a specific store was higher than the physical count, a
shortage existed at that store. Waddle testified certain in-
10 At material times herein, the two auditors employed by the Compa-
ny were Ralph White and Tony Rivera.
967
vestigative and corrective measures were taken when
shortages at an audited store exceeded the Company's
one-half of one percent inventory control guidelines.
The first step toward corrective action is taken by the
store's supervisor, in that the supervisor conducts a paper
review to determine if any accounting errors have been
made in the inventory at the audited store. If the, paper
review fails to reveal any errors,, the supervisor personal-
ly visits the audited store to see if he or she can ascer-
tain , by observation, any cause(s) for the shortages. If no
apparent reasons for the shortages are discovered, the
store supervisor orders polygraphic examinations for the
employees involved to determine if internal problems are
causing the inventory (and/or cash) shortages. Accord-
ing to Waddle, if the polygraphic examinations do not
reveal any problems and no deception is shown on the
part of the employees, the Company retakes the invento-
ry to determine if there has been "a bad count on the
physical inventory" at the audited store. If all the steps
taken fail to indicate any cause or potential causes for
the shortages, the Company then looks to the employees
at the audited store because, according to Waddle, it is
within the ability of the employees at any given store. to
control the inventory at their particular stare. t 2 A deci-
sion is made at that point on whether to retain the em-
ployees at the involved store. Waddle testified that if it is
decided that one or more of the employees must be dis-
charged, such decision is not based on an assumption
that the employees are guilty of theft, but rather that
they are not following the Company's guidelines for in-
ventory control. A decision to terminate or retain em-
ployees at an audited store with shortages is made by the
store supervisor. All decisions by a store supervisor re-
garding whether to terminate or retain employees are re-
viewed, by Waddle.13
B. Union Activity and Company Knowledge
Baxter, testified that in October he and some fellow
workers had friendly conversations about the Union and
about the fact he had worked at a unionized store for a
previous' employer. Baxter testified Johnson and Store
Manager Judy Cummins (Cummins) asked him about the
possibility of organizing the employees of the Compa-
ny.14 Baxter said that at first he did not do anything in
response to their conversations but later called the Union
and discussed the idea of having an informal meeting at
his home to ascertain employee interest in organizing. As
a result of his call to the Union, an informal meeting was
arranged for and held at Baxter's home in October.
Baxter testified he invited Cummins and Johnson to the
meeting. Baxter stated Johnson invited Store Manager
Richard Cochran (Cochran) to' the meeting.15 Johnson
11 Waddle testified employees are never terminated as a result of one
bad inventory because of the possibility that errors may have been made
at some point during the inventory.
12 Waddle stated the employees of a particular store are the only ones
who can really control the inventory and the handling of money for that
particular store in that' they specifically control the store's appearance,
stock status, and stock maintenance.
18 Waddle stated employees are made aware early in their training that
they may be terminated for cash and/or inventory shortages
14 Johnson, Cummins, and Egts each testified they discussed the possi-
bility of a union organizing effort at the Company
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified he talked with Baxter and Cummins about the
meeting , and informed Cochran of the meeting before it
took place.
Johnson asserts, that about 2 weeks after the October
meeting , Cochran telephoned him and asked what he had
heard about the meeting. Johnson asked Cochran, "What
meeting?" and Cochran responded that there was going
to be a union meeting. Johnson testified he told Cochran
he did not know anything about any meeting because the
Union had told him they could not do anything for him
and he had no reason to know about "that union meet-
ing."
Cochran testified no one told him about or invited him
to any union meeting at Baxter's home in October.16
With respect to whether Cochran was informed of and
invited to the union meeting held at Baxter's home in
October, I am persuaded he was not. Cochran impressed
me as a thoughtful and conscientious witness. Johnson
did not. Notwithstandng the fact that Cochran is a long-
term store manager who might not wish to see anything
happen that would be against his or the Company's best
interests, I am persuaded he testified truthfully. I credit
his testimony. Accordingly, as indicated above, I find he
was not invited to, nor did he have knowledge of, the
union meeting held at Baxter's home in October.
Baxter testified Cummins told him she had invited "a
few people" to the union meeting. Cummins testified that
when she and Baxter first talked about a union meeting,
she told him that if one was arranged for to call and
inform her of the arrangements. She testified Baxter
called her in approximately late September or early Oc-
tober to inform her of the union meeting to be held at
his home. Cummins testified she telephoned store 19
Manager Dave Hogan (Hogan) and asked him if he was
interested in attending the meeting. Hogan told her he
was not. Cummins testified she then contacted store 19
employee Lonnie Johnson (L. Johnson),17 but stated L.
Johnson likewise told her she was not interested in at-
tending the meeting. Cummins testified she thereafter
telephoned the store manager at store 3 (a woman, Janet,
whose last name Cummins could not recall) who told her
she might be interested in the meeting but never thereaf-
ter contacted her.
Egts testified he did not attend the meeting because he
was working but stated he told Johnson as Johnson left
to go to the meeting that if it looked good to him to tell
the gentleman he was all for it.
Baxter, Johnson, and Cummins attended the meeting at
Baxter's home along with a union representative. Ac-
cording to Baxter the Union's representative told them
the possibility or probability of successfully organizing
an operation like the Company herein was very slim.
Baxter stated the Union "downplayed it very much."
15 Baxter testified Johnson told him he was going to invite Cochran,
and he stated he heard Johnson talking with someone on the telephone
about the meeting and he assumed it was Cochran.
16 Cochran testified on cross-examination that on an occasion in either
late September or early October when he telephoned Johnson at Supervi-
sor Werner's request to tell him about a store managers' meeting, John-
son mentioned that someone from the Union had been in and talked to
him Cochran stated he told Johnson, "Fine, I am here to call you about
a store meeting." Cochran stated there was nothing else said about the
Union.
Baxter stated he, Johnson, and Cummins discussed the
possibilities of organizing and decided there was no point
in pursuing or discussing it any further, so they just
'dropped it.18
Baxter and Johnson testified they did not discuss with
or inform Werner or Waddle of the fact they had attend-
ed the union meeting at Baxter's home. Egts stated he
had ' no personal knowledge that either Werner or
Waddle knew of any union activity on his part.
Baxter testified that approximately 3 or 4 weeks after
he was discharged29 he stopped by the store (35), where
he previously worked, for a cup of coffee, and as he was
about to leave Store Manager Cochran initiated a con-
versation with him. According to Baxter, Cochran asked
why he had been terminated. Baxter said he told Coch-
ran about the inventory shortages the Company had
mentioned at the time he was terminated. Baxter asserts
Cochran said he had asked Werner the day after the ter-
minations why the employees had been terminated and
that Werner gave him the same reason, i.e., inventory
problems. Baxter testified Cochran said he told Werner
he did not believe that to which Werner replied the em-
ployees were fired for attending a union meeting and
added the Company had been harassing Johnson for 3 or
4 weeks before his termination for that same reason.
Baxter testified he asked Cochran if Werner actually said
what he attributed to him or had he just indicated that.
Baxter asserts Cochran told him that Werner "point
blank" said the employees were terminated for attending
a union meeting. According to Baxter, Cochran said
Cochran had been invited to the meeting at Baxter's
home by Johnson. Baxter also testified Cochran told him
Werner had said there was "a lady store manager at
Store 18 that he would be surprised if she lasted until the
end of January because she had also attended that meet-
ing." Baxter testified Cochran' then told him Werner had
been terminated for not giving 100 percent to the Com-
pany. Baxter testified Cochran told him Werner said he
felt he had been fired because "too many employees in
his area of stores had complaints with the Labor Board
or someone, Wage and Hour or something, about work-
ing hours and not getting paid for it." Baxter could not
recall anything else being said in his conversation with
Cochran.
Cochran testified he was not involved in any manner
in the decision to discharge Baxter and Egts. Cochran
stated he first learned they had been discharged when his
supervisor, Werner, asked him to go to store 35 to help
out because the store manager and the first and second
assistants had been terminated. Cochran testified Werner
told him the employees had been fired because 'of "a
series of bad inventory shortages and a series of cash
shortages and store conditions." Cochran stated Werner
18 Johnson and Cummins testified they were told or were "given to
understand" that because they were supervisors, the Union could not do
anything for them Egts testified that the day after the meeting Johnson
told him everything looked good, but it would be extremely difficult to
put anything together about organizing the employees because it would
be difficult to get the employees' names and telephone numbers. Egts tes-
tified the Union was not thereafter discussed
19 The facts leading up to and surrounding the discharge of Baxter and
others are set forth elsewhere in this decision
GIT-N-GO, INC.
never at any time told him that Baxter or Egts were dis-
charged because they participated in any union activities.
Cochran testified that a few days after the employees
at store 35 were discharged and during the time he had
taken over as manager at that store, Baxter came into the
store and asked him why he (Baxter) had been fired.
Cochran testified, "I told him what Wes Werner had
told me; a series of bad inventories and a series of bad
cash and store conditions. Cochran stated he asked
Baxter if he had anything to do with the Union. Accord-
ing to Cochran, Baxter replied that he had worked on a
prior job that had been unionized. Cochran testified he
"winked" at Baxter, "laughed," and said "[t]hat is prob-
ably why they fired you then." Cochran asserts he also
told Baxter that Werner had quit his employment with
the Company.20 Cochran said he then asked Baxter if he
had found work and Baxter told him he had not. Coch-
ran offered to give Baxter an employment reference and
with that the conversation ended.
First, in resolving the conflict between the testimony
of Cochran and Baxter , I note there were no other
known witnesses to their conversation and, although nei-
ther of them were exactly sure of the date of their con-
versation, it appears it probably occurred during the last
week in December. Both Baxter and Cochran were
pleasant, responsive, nonargumentive witnesses. Howev-
er, based on Cochran's overall superior demeanor, I
credit his account of the conversation.
Having credited Cochran's version of the conversa-
tion, it is necessary to determine if his comments had a
reasonable tendency to interfere with, restrain, and
coerce Baxter in the exercise of his rights guaranteed by
Section 7 of the Act. There are a number of factors
which tend to reduce the potential coercive effect of
Cochran's comments. Those factors are (1) Cochran
never supervised Baxter, (2) the conversation in question
took place in a public area of the store, (3) Cochran
"winked" and "laughed" thus setting a jocular tone for
the conversation, and (4) Cochran offered to provide
Baxter with employment references. I am, however, per-
suaded that these ameliorative factors are outweighed by
the fact Cochran had no valid or legitimate reason or
purpose for asking Baxter if he had anything to do with
the Union. Baxter had already been terminated, and no
justifiable reason was, or for that matter could have
been, advanced for such an inquiry. Not only did Coch-
ran question Baxter about his union activities, but he also
told Baxter, albeit in opinion form and in a lighthearted
manner, his union activities were the reason for his dis-
charge. Cochran, although never Baxter's immediate su-
pervisor, was at the time of the conversation the manag-
er of the store Baxter had been fired from, and it would
be reasonable for Baxter to assume Cochran spoke for
management . On balance, I am persuaded Cochran's
comments to Baxter had a reasonable tendency under the
circumstances herein to interfere with, restrain, and
coerce Baxter in the exercise of his rights in violation of
Section 8(a)(1) of the Act. See Rossmore House, 269
20 Cochran testified he did not learn from Werner until a couple of
days later that Werner had been fired for not giving 100 percent to the
Company
969
NLRB 1176 (1984). Specifically, I find the comments
constitute coercive interrogation as well as telling an em-
ployee he had been terminated for engaging in union ac-
tivities .2 t
The General Counsel presented Cummins with respect
to his contention the Company knew of its employees'
union activities Cummins testified she had been a store
manager since August 1984. She stated she started as a
manager at store 48 and was later transferred to store 3
for a very brief period.22 Cummins stated she was there-
after transferred to store 10, which had a delicatessen
section. She stated she wanted a store with a delicatessen
section because she had "originally" wanted to be a
training manager for the Company and as such she
needed to know what was involved in operating a store
with a delicatessen section Cummins testified she was
told on Monday following Johnson's, Baxter's, and Egts'
discharges that she was being given a $15-per-week wage
increase and transferred from store 10 to store 18. Cum-
mins testified she asked her supervisor, Duff Thompson,
why she was being transferred, and he told her "we are
talking bottom line." Cummins testified store 18 was "not
particularly a desirable store." Cummins stated that a
week or so after she was transferred to store 18 she
spoke with employee L. Johnson about her transfer.
Cummins testified she and L. Johnson discussed the fact
that she might have been transferred to store 18 as pun-
ishment for her having attended the union meeting at
Baxter 's home. Cummins testified L. Johnson said:
There is a possibility that you are right in feeling
that you have been sent there as a reprimand, a
severe slap, because questions have been asked and
your name was mentioned.
Cummins testified she asked L. Johnson what she was
talking about and stated L. Johnson replied that her (L.
Johnson's) supervisor had asked some questions about a
union meeting and Cummins' name had been mentioned.
Cummins testified she did not pursue the subject matter
any further with L. Johnson because she "didn't really
want to."
Although Cummins is an admitted supervisor within
the meaning of the Act and not protected by the Act,
the General Counsel contends Cummins was transferred
to a less favorable store as a result of her having attend-
ed the union meeting at Baxter's home, and that her con-
versation with employee L. Johnson demonstrates the
Company had knowledge of the union activities of cer-
tain of its employees.
Neither of the General Counsel's above-stated conten-
tions withstand close scrutiny.
Even if store 18 is in fact a less desirable store, Cum-
mins was given extra compensation when she was trans-
ferred to that store. It is, therefore, difficult to view the
transfer as punishment. The fact that store 18 does not
Si There was no allegation of interrogation in the complaint However,
inasmuch as it was fully litigated and clearly related to the subject matter
that was alleged, I find Cochran coercively interrogated Baxter in late
December See Jax Mold & Machine, 255 NLRB 942 fn 1 (1981)
22 Cummins stated she had been at store 48 for approximately a year
and was ready to move at the time of her transfer
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a delicatessen section does not establish that Cum-
mins was transferred for punitive reasons. Cummins had
only desired a store with a delicatessen section so that
she would be eligible to be a training manager. It is not
clear that Cummins still desires to be a training manager
in as much as she only stated she "originally" aspired to
such a position. Even if she still desires to be a training
manager, she has already had an opportunity to familiar-
ize herself with a delicatessen-equipped store. According-
ly, transferring her to ' a nondelicatessen store cannot be
viewed as punishment. Considering the entire record I
cannot conclude or infer that the Company acted in any
manner that would suggest an antiunion motivation on
its part in its actions related to Cummins.
I am also unwilling to give any significant weight to
the hearsay testimony of Cummins related to employee
L. Johnson's speculation regarding company knowledge
of Cummins' union activities or of the Company's moti-
vations with respect to any actions it took that involved
Cummins or other employees. First, the testimony in
question is simply hearsay. I am, however, not unmindful
that hearsay testimony is not per se inadmissible in Board
proceedings;23 however, such testimony must at least be
unambiguous. In the instant case it is not even clear
what, if anything, was said about Cummins in the com-
ments attributed to L. Johnson's supervisor other than
the fact Cummins' name was mentioned. Cummins appar-
ently was not very concerned regarding what, if any-
thing, was said about her by L. Johnson's supervisor be-
cause she did not pursue the matter with L. Johnson, be-
cause, as she stated, she did not really want to. The Gen-
eral Counsel did not call, nor did he offer any explana-
tion for not calling, L. Johnson as a witness to clarify or
expand on the comments she allegedly attributed to her
supervisor. After carefully weighing the above testimo-
ny, and for the reasons stated, I am persuaded it does not
establish company knowledge of Cummins' or any other
employees' union activities, nor does it establish any an-
tiunion motivation on the part of the Company for the
actions it took relating to Cummins or any other employ-
ee.
C. Pertinent Inventories and Related Actions at Store
35
Although the actions of the Company related to
Baxter and Egts stemmed from audits taken at store 35
on and after July, I shall nevertheless briefly highlight
some earlier audits of that store. The final 1984 audit at
store 35 (covering the period from 16 October to 29 No-
vember 1984 inclusive) reflects an inventory shortage of
$825.08 and a cash shortage of $9.92 for a 1.72-percent
shortage for the audited period and a 2.40-percent short-
age for the year to date.24
The next audit (covering the period 29 November
1984 to 15 January 1985 inclusive) reflects a $711.74 in-
ventory surplus with a $395.02 cash shortage for an
overall .63-percent surplus.25 The next audit (covering
the period 15 January to 21 February inclusive) reflects a
$1586.18 inventory and a $107.78 cash shortage which
resulted in a 4.22-percent shortage for the audited period
and a 1.52 percent shortage for the year-to-date. The fol-
lowing audit (covering the period 21 February to 28
March inclusive) reflects a $1442.89 inventory shortage
with a $95.16 cash surplus for a 3.38-percent shortage for
the audited period and a 2.09-percent shortage for the
year-to-date. As a result of the above shortages and in
keeping with the Company's policies related to short-
ages, polygraphic examinations were administered in
April to store 35 employees Johnson, Baxter, and Egts.
No deception was shown by Johnson, Baxter, or Egts.
The next audit for store 35 (covering the period 28
March to 25 April inclusive) reflects a $1277.03 invento-
ry and a $2.43 cash surplus for a 3.45-percent surplus for
the reporting period and a .86-percent shortage for the
year-to-date. The following audit (covering the period 25
April to 20 May inclusive) reflects a $490.59 inventory
and a $25.43 cash surplus for a 1.78-percent surplus for
the audited period and a .47-percent shortage for the
year-to-date. The next audit (covering the period 20 May
to 2 July inclusive) reflects a $3203.39 inventory and a
$290.47 cash shortage for a 6.05-percent shortage for the
audited period and a 1.74-percent shortage for the year-
to-date. The following audit (covering the period 2 July
to 5 August inclusive) reflects a $2348.87 inventory and
a $929.74 cash shortage for a 6.84-percent shortage for
the audited period and a 2-percent shortage for the year-
to-date.
Waddle credibly testified, he became aware of the
problems at store 35 in late July or early August when
he reviewed inventory reports for that store.26 Waddle
stated the audit covering May, to July reflected an "ex-
tremely excessively short" inventory for that store based
on the criteria set by the Company for inventory control.
Waddle also stated that then he reviewed the July to
August audit, he observed the problems at store 35 were
continuing and that the year-to-date shortage had risen
to 2 percent. Waddle contacted the supervisor for that
store, Werner, to determine what steps Werner had taken
to correct the situation. Waddle testified Werner had
failed to take any corrective action with respect to the
July and August audits.27 After Waddle met with
Werner, steps were taken to correct the problems. First
Werner reviewed the paperwork for the store which
turned up very little information that could lead to a
change in the situation. Werner then made a personal
visit to the store, and studied the possibility of administer-
ing polygraphic examinations to the employees at store
23 See, for example, Alvin J. Bart & Co, 236 NLRB 242 (1978), re-
versed on other grounds 598 F 2d 1267 (2d at 1979), and Roofers Local
135 (Advanced Coating), 266 NLRB 321 fn 1 (1983)
24 As is reflected elsewhere in this decision, the Company's guidelines
for allowable inventory and cash shortages are one-half of 1 percent of
total sales
25 This being the first inventory report of the calendar year, no year-
to-date figure was reflected
26 Waddle testified he saw all inventory reports and stated he general-
ly saw them as soon as they were issued or at least within 4 to 5 weeks
of the audits depending on his work schedule.
27 Waddle stated he gave, Werner a verbal counseling for his failure to
control the operations at store 35
GIT-N-GO, INC.
35. However, he discovered the employees had been
given polygraphic examinations in April and no employ-
ee deception had been shown. Therefore, he felt it was
unnecessary at that point to reexamine the employees.28
Waddle testified that "for a shortage of this magni-
tude" he felt he should personally visit store 35 and did
so. Waddle stated that when he visited the store Egts
was on duty. Egts did not know Waddle at the time.
Waddle stated he observed a lot of out of stock situa-
tions, damaged products on the shelves , price changes
that should have but had not been made, and children
playing in the store. Waddle testified Egts was not greet-
ing customers as they entered the store so as to deter
shoplifting. Waddle stated the store was in "very poor
condition" overall.
The problems at store 35 led Werner to give Store
Manager Johnson an oral counseling on 1 September. In
keeping with company practice a written record was
made of the counseling . 29 Werner 's memorandum of the
counseling reads as follows:
On or about 9/1/85, I gave a verbal counseling to
J. W. Johnson at Store #35. The areas that were
discussed are as follows:
(1) Inventory control
(2) Stock control
On area (1) inventory control it was brought to J.
W.'s attention that his inventory is running short
and must be corrected to avoid termination.
In the area of stock control it was brought to J.
W.'s attention how out of stocks in the candy sec-
tion and other sections hurt gross profit and cus-
tomer relations as a customer will not keep coming
back over and over to find out the store does not
have what they want.
J. W. was told his inventory would no longer be al-
lowed to run short as it has been doing this year or
he would be replaced as a manager. [G.C. Exh. 20.]
Waddle testified the inventory situation at store 35 did
not improve after the July/August audits. Waddle stated
"The shortages that occurred, over $6,000, never did
come back." '
The September audit (covering the period 5 August to
25 September inclusive) reflects a $119.33 inventory and
a $180.58 cash surplus which resulted in a .44-percent
surplus for the audited period but a 2-percent shortage
for the year-to-date. The November audit (covering the
period 25 September to 8 November inclusive), reflects a
28 Waddle testified polygraphic examinations were given in August to
employees Gary Dusma (Dusma) and Egts According to Waddle,
Dusina confessed to taking two money orders from the Company, one in
the amount of $200 and the other in the amount of $280. Dusma was dis-
charged,on 8 August Dusina destroyed rather than cashed the money
orders in question and those shortages were not included in the audits at
store 35 Store 35 "Manager Johnson testified Store Supervisor Werner
told him on different occasions after , he had terminated Dusina to stop
worrying about the inventory shortages I find such testimony of Johnson
unbelievable particularly in light of all the other actions that were being
taken to correct the shortages at store 35
2s Johnson acknowledged he was counseled by Werner on 1 Septem-
ber
971
$287.28 inventory and a $316.89 cash shortage for a 1.19-
percent shortage for the audited period and a 1.90-per-
cent shortage for the year-to-date. The final inventory
prior to 5 December (covering the period 8 November
to 2 December inclusive) reflects a $102.18 inventory
and a $234.47 cash surplus for a 1.24-percent surplus for
the audited period but a 1.71-percent shortage for the
year-to-date. Waddle testified Werner continued
throughout the above time to counsel the employees at
store 35.
On 12 November Werner gave store 35 Manager
Johnson a written warning30 about "areas in need of
considerable improvement" in order for him to continue
as store manager. The written warning that was ad-
dressed to Johnson reads as follows:
This form has been provided for the purpose of pre-
senting to the employee a brief outline of the areas
in need of considerable improvement in order to be
allowed to continue to function in his or her present
position.
Inventory Control: Inventory at store level must be
maintained within acceptable limits. This can be ac-
,complished through the following
A. Conscientious Vendor Checking.
B. Control of Damaged Goods Sheet.
C. Control of Pricing.
D. Accurate and Complete Price Changes.
E. Current Price Reference Books.
F. Accurate Bookkeeping.
G. Customer Awareness.
Specific Responsibilities:
All personnel assigned to a store are responsible to
the manager of that store. It is the specific responsi-
bility of each Manager to ensure that his store is
maintained and meets the standards set down by
Git-n-Go policy.
Stock Status: In ordering and stocking , maintain a
supply sufficient to meet customer demand, but
without overstocking: This requires constant aware-
ness of product movement in the store.
The above mentioned are problems we have verbal-
ly discussed with Mr. Johnson and due to the im-
portance of the matter, I feel should be stated in
writing to allow Mr. Johnson to also understand
these problems will no longer be acceptable. As
Store Manager, you must correct your inventory
shortages within the .25% long or short as set forth
in Git-n-Go policy, as well as correct your store
stock problems.
Failure to do so on your part will be looked upon
as willful insubordination and result in termination
without further notice.
Each of the areas outlined above have been dis-
cussed with me in detail and I understand what is
expected of me in each area.
Sa Johnson acknowledged he was given such a warning and in fact
signed the warning on the date it was given to hum.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
/s/ J. W. Johnson, Jr.
11/12/85
/s/ Wes Werner
11/12/85
Waddle stated that after Werner reviewed the 2 Decem-
ber audit, he decided further corrective action had to be
taken at store 35 because the approximately $6000 in
shortages (inventory and ' cash) of July/August had not
bounced back.31 Werner decided that, because the store
employees are the only ones who can control inventory,
they should be discharged. Accordingly, Werner recom-
mended that Store Manager Johnson, First Assistant
Baxter, and Second Assistant Egts be terminated.32 Ac-
cording to Waddle the three were discharged on 5 De-
cember for excessive inventory and cash shortages.33
Waddle stated he did not know of, nor did the employ-
ees' union activities play any part in, the Company's de-
cision to discharge the employees in question.
The first audit after 5 December (covering the period
2 December to 18 December inclusive) reflects a $118.80
inventory and a $257.34 cash shortage for a 1.96-percent
shortage for the audited period and a 1.72-percent short-
age for the year-to-date. The next audit (covering the
period 18 December to 30 January 1986) reflects an in-
ventory shortage of $410.98 and a cash surplus of
$175.62 for a .48-percent shortage for the reporting
period. The final audit considered herein (covering the
period 30 January 1986 to 14 March 1986 inclusive) re-
flects a $168.10 inventory and a $77.44 cash shortage for
a .47-percent shortage for the reporting period and for
the year-to-date.
D. The Events of 5 December and Thereafter
On 5 December Store Supervisor Werner told Store
Manager Cochran to leave his store and go to store 35
and relieve the manager at that store. Cochran asked
Werner why and was told the store manager, first assist-
ant, and second assistant had been terminated for "a
series of bad inventory shortages," "a series of cash
shortages," and "store conditions." Cochran went to
store 35 where he remained for approximately 3 hours
on that date.34
Johnson acknowledged Cochran came to the store to
relieve him. Johnson had already been asked by Store
Supervisor Werner to come to the Company's offices.
Johnson had also received a telephone call from his first
assistant, Baxter, who told him that he (Baxter) had been
fired. Johnson asked Baxter why. Baxter told him "it was
over shortages in inventory." Johnson testified he pro-
ceeded to the Company's offices because he "figured
Si A "bounce back" is where a shortage occurs during one audit but is
corrected by the next audit.
32 Management did not consider discharging the one remaining em-
ployee at store 35, Eddie McAfee (McAfee) because he was not at the
store during the time the shortages occurred
33 The actual discharges of the three will be discussed in the next sec-
tion of this decision.
34 Cochran testified the store was "excessively dirty," the shelves had
not been faced in "a very long time," out-of-date milk was on the
shelves, and 2 weeks of puce changes had not been made
they must have firing on their minds."35 After arriving
at the company offices, Johnson was invited into a meet-
ing with Werner and Waddle. According to Johnson,
Werner, who did the talking, told him he was being dis-
charged' for the inventory shortages of July and August
which showed "like $6,000 short." Werner asked John-
son to sign his "Separation Notice" but Johnson refused
to do 50.36
Baxter testified he was called at home by Werner on 5
December and asked to come to the Company's of-
fices.37 Werner told Baxter that Johnson and Egts would
be there and they would talk about store 35. Baxter went
to the offices where he was discharged by Werner in
Waddle's presence . Werner told Baxter he was being dis-
charged because of the inventory problems of July and
August. Werner told Baxter he was not being'accused of
any wrongdoing. Werner read Baxter's two-page separa-
tion notice aloud; however, Baxter refused to sign it.38
Some 2 or so weeks after his termination , Baxter dis-
cussed his discharge with Cochran.39
Egts testified Johnson telephoned him on 5 December
and told him to go to the Company's offices rather than
come to the store that day.40 Egts saw Baxter when he
arrived at the Company's offices. Later when Baxter
came out of Werner's office he told Egts it had been nice
working with him. Egts then went into Werner's office
where Werner and Waddle were.41 Egts testified
Werner had a piece of paper in front of him and "said
pretty much" what was on the paper and asked him to
sign it.42 Egts stated he made the comment that the
Company considered the July and August period to be
the problem time. Egts testified Werner said, "Yes. We
feel that if you all were managing your store correctly
that the losses between July and August would have
come back in the next inventory. In the September in-
ventory it would have come back." Egts stated he men-
tioned the possibility that the merchandise may have
35 Johnson started work with the Company in 1976 and had worked as
a night clerk, second assistant, first assistant , and store manager Johnson
had been at store 35 for about a year at the time he was terminated
36 Johnson's separation notice at "What Was Final Circumstance
Leading To Separation" reads as follows: "Inventory and cash losses of
$6,266.51 since July 2, 1985 as well as continued stock problems, i e, milk
out of date, poor candy selection." The separation notice also reflected in
detail what actions that had been taken to try and correct the situation at
store 35
37 It was Baxter's day off. Baxter started working for the Company in
1984 as a night person and was advanced to a second assistant before be-
coming a first assistant which was the position he held at the time he was
discharged
38 On Baxter's separation notice reference was made to the $6,266.51
inventory and cash shortages at the store since 2 July Reference was
also made to the fact that more than $6000 of that loss had never been
accounted for. The separation notice also reflected the fact that the
store's operation was a "joint effort" and because of a lack of inventory
control the employees were being terminated
as That conversation is set forth elsewhere in this decision
4° Egts began his employment with the Company in June 1984 as a
night person at store 35.
41 Egts stated he had never met Waddle before
42 Egts' separation notice was worded essentially the same as Baxter's
with the same inventory results for store 35 for the year 1985 attached to
it as was attached to Baxter's Egts signed his separation notice Waddle
stated Egts did not question the Company's motivation for his discharge,
that he understood the Company had a problem and indicated he did not
know how the Company was going to resolve it
GIT-N-GO, INC.
been stolen. According to Egts, Werner said the Compa-
ny did not feel that was the problem . Egts raised the
matter of the money orders that had been stolen to
which Werner responded that the amount of the money
orders did not account for the approximately $6000 in in-
ventory and cash shortages that occurred . Egts suggest-
ed the Company administer polygraphic examinations to
the employees and then send them to three different
stores . Egts stated Werner said that would be taking one
problem and making three out of it. According to Egts,
Werner stated the Company could not help but fire ev-
eryone, that they did not know what else to do. Egts tes-
tified he made no response and they then explained how
he would get his final paycheck. Egts asked for a copy
of the separation notice he had signed and thereafter left
the company offices.
E. The Parties' Positions
I shall very briefly highlight the parties ' positions. I
have carefully considered all contentions made by the
parties whether or not I have made specific reference to
them.
At trial and in his posttrial brief, the General Counsel
contends the Company discharged Johnson and Baxter
because of their union activities . He concedes there is no
diirect evidence that anyone informed upper management
of the October union meeting at Baxter 's home, but he
asserts there is ample evidence to support a conclusion
that upper management not only knew of the meeting
but acted on its knowledge to the employees ' detriment.
The General Counsel points to Baxter's testimony: (1)
that Cochran admitted he had been invited to the union
meeting, (2) that Cochran stated Werner acknowledged
harassing Johnson and firing the employees in question
because of their union activities, and (3) that Werner had
suggested the manager at store 18 (Cummins) would not
last long because she had also attended the October
union meeting . The General Counsel further contends
the testimony of Store Manager Cummins '(that employee
L. Johnson told her that Supervisor Tom Pacewitz had
questioned L. Johnson about a union meeting and men-
tioned Cummins' name) also supports the conclusion that
upper management knew of is employees ' union activi-
ties. The General Counsel contends Cummins was trans-
ferred to a less desirable store manager 's position because
of her attendance at the meeting at Baxter 's home and
that the Company discharged Egts in order to disguise
and conceal its real motivation. for discharging Johnson
and Baxter. The General Counsel asserts the reason that
only Baxter 's and Egts' discharges are alleged to be in
violation of the Act is ,that Johnson and Cummins were
supervisors within the meaning of the Act and, as such,
unprotected by the provisions of the Act.
The Company contends Baxter, Egts, and Johnson
were discharged for cash and inventory shortages. The
Company vigorously contends that the two individuals
(Waddle and Werner) who made the decision to termi-
nate the employees in question had no knowledge of any
union activities by any of its employees. The Company
contends the discharges at store 35 were for legitimate
business reasons and were neither unusual nor unprece-
dented, that the Company followed its established 'poli-
973
dies,'-practices , and procedures when it discharged the
employees in, question . The Company asserts it clearly
established many examples of personnel actions , virtually
identical to the ones involved in the instant case . Simply
stated, the Company contends store 35 had serious inven-
tory and cash problems that remained uncorrected until
after the 5 December terminations . The Company urges
the complaint be dismissed.
F. Analysis and Conclusion
In order to establish a violation of the Act, the Gener-
al Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a moti-
vating factor in the Company's decision to terminate its
store 35 employees , specifically Baxter and Egts. Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981 ). On the facts found herein , no such prima
facie showing was made. There is no showing that at the
time the decision was made to discharge the employees
in question those making the decision had any knowl-
edge of any union activities on the part of its employees.
Company knowledge of union activities is the "threshold
question" when, as in the instant case, a violation of Sec-
tion 8(a)(3) is alleged because it is a "fundamental pre-
requisite" to establishing a discriminatory motivation.
Bayliner Marine Corp., ' 215 NLRB 12 (1974). It is the
burden of the General Counsel to prove by substantial
evidence the existence of such knowledge . He has failed
to do so. It is undisputed that Werner and Waddle were
the only ones involved in the decision to terminate the
employees at store 35. There is no credible evidence that
anyone ever informed Werner or Waddle about the
union activities of the employees at store 35. Waddle cre-
dibly testified he had no knowledge of any union activi-
ties on the part of Baxter or for that matter of Johnson
or Cummins.43 The only evidence of any knowledge on
the part of management about the union activities, of
Baxter came in a conversation Store Manager Cochran
had with Baxter some 3 , or more weeks after the dis-
charges at store 35 had taken place. Cochran at that time
asked Baxter whether he had anything to do with the
Union and after Baxter replied he had worked at a previ-
ous place that had a union , Cochran "laughed,"
"winked," and told Baxter, "That is probably why they
fired you then." Although I have found this statement to
be coercive, it does not establish that the company offi-
cials who made the decision to terminate the employees
at store 35 had any knowledge of any union activities on
the part of any or all the employees at that store. Coch-
ran credibly testified he was not involved with or con-
sulted about the decision to terminate the store 35 em-
ployees. Cochran also credibly testified that when he
learned about the discharges, he was told they were for
"a series of bad inventory shortages and a series of cash
shortages and store conditions." Simply and summarily
stated the General Counsel failed to show that the Com-
pany's officials who discharged the employees in ques-
43 Egts did not attend the only union meeting that was held There is
absolutely no showing that anyone in upper management (specifically
Werner and/or Waddle) had any knowledge or suspicion that Egts had
engaged in any union activities.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion had any knowledge of their or any other employees'
union activities . 44 Furthermore , the General Counsel's
contention that company knowledge of the employees'
union activities was established by or at least could be
inferred from the testimony of Store Manager Cummins
is without merit . I think it is important to examine Cum-
mins' transfer before I give consideration to what may
have been said about her transfer . Cummins' transfer
from one store to another is not as suspect as the Gener-
al Counsel asserts . It appears it was and is a common
practice for store managers to be transferred from store
to store. In fact, Cummins indicated that after a year at a
particular store she was ready for a transfer to another
store . The General Counsel contends Cummins was
transferred about the same time the employees at store
35 were terminated in order to punish her for having at-
tended the union meeting in question . However, that
contention of the General Counsel fails to take into ac-
count the fact that , when Cummins was transferred, she
was also given a wage increase. Cummins' testimony
about the motivation for her transfer is nothing but suspi-
cion on her part , which suspicion she attempted to bol-
ster by hearsay testimony. Cummins' testimony in that
regard was that a store employee told her that the em-
ployee's supervisor had asked questions about a union
meeting and in doing so had mentioned Cummins' name.
Cummins did not even pursue with the employee in
question how her name had been mentioned . The Gener-
al Counsel did not call the employee in question to have
that employee give direct testimony about what, if any-
thing, the employee 's supervisor had said about Cummins
or the Union . Such comments as testified to by Cum-
mins, even if significant weight were given to them,
would not establish that the Company had knowledge of
the union activities of any or all the employees involved
in the terminations at store 35.
Finally, the General Counsel sought to establish that
the Company, Werner in particular, had knowledge of
Johnson's union activities because he asserts Werner har-
assed Johnson during Johnson's last 3 to 4 weeks of em-
ploynient . That assertion of the General Counsel is not
borne out by any credible evidence. In fact, Johnson tes-
tified that his relationship with Werner was "steadily de-
clining" as early as August , which was well before the
October union meeting Johnson attended.
In the absence of more substantial evidence of the
Company's knowledge of the union activities of its em-
ployees at 'store 35 and on the basis of the entire record,
I cannot conclude that the General Counsel established a
prima facie case.
Accordingly; I recommend the complaint allegation
that the Company discharged its employee Baxter be-
cause of his union and/or protected activities in violation
of Section 8(a)(3) and (1) of the Act be dismissed . I like-
wise recommend that the complaint allegation that the
Company discharged its employee Egts to conceal and
disguise its motivation for discharging other persons at
store 35 be dismissed.
Even assuming arguendo that the General Counsel had
established a prima facie case, I would nevertheless have
concluded for the following reasons that the Company
would have met its burden of demonstrating that it had
legitimate, permissible reasons for the actions it took, and
that it would have discharged the employees in question
even in the absence of any protected conduct on their
part.
The evidence clearly establishes that inventory and
cash controls are and always have been of utmost con-
cern to the Company. The Company's concerns are
made known to its employees from the outset of their
employment with the Company45 because it primarily is
the employees who control the cash and inventory at the
various stores of the Company. Store 35 was experienc-
ing cash and inventory control problems before the
advent of the Union. More specifically, the cash and in-
ventory problems of February and March led the Com-
pany in April to administer polygraphic examinations to
its employees at that store. After April , cash and inven-
tory problems at store 35 continued. The July and
August audits reflected shortages that were out of line
with the Company's established policies. The evidence is
clear that after the August shortages , Werner attempted
(with some prodding by Waddle) to determine the cause
or causes for the cash and inventory shortages at store
35. In his attempt to ascertain the source of the cash and
inventory problems at store 35, Werner followed estab-
lished company policies and procedures. Werner gave
Store Manager Johnson a verbal warning on I Septem-
ber (of which a written record was made) in which he
told Johnson the problems at his store had to be correct-
ed or he would be subject to being terminated. This
warning took place prior to Johnson 's union activities. It
is clear the cash and inventory problems on a year-to-
date basis did not thereafter improve sufficiently to bring
the store within the Company's established guidelines for
cash and inventory shortages . Johnson was given a writ-
ten warning on 11 November in which the cash and in-
ventory problems at store 35 were outlined. Johnson was
again warned that if his store 's cash and inventory prob-
lems did not improve , he would be terminated . The cash
and inventory problems persisted and no specific cause
was found for the problems other than a lack of employ-
ee control over cash and inventory. Thereafter, on 5 De-
cember the Company discharged three of its four em-
ployees at store 35. It is established the Company has in
the past, and continues to, discharge on a single occasion
more than one employee at a store that experiences cash
and inventory related problems.46 The Company also
44 The Board in a recent case Woodline Motor Freight, 278 NLRB 1141
(1986), affirmed an administrative law fudge 's finding that the company
therein had not violated Sec 8 (a)(3) of the Act by discharging an em-
ployee (Rickman) because the General Counsel had not shown that the
company officials who made the decision knew of the employee's union
activities The Board did find the company violated Sec 8(a)(1) of the
Act by discharging Rickman; however , for the purposes cited herein it is
not necessary to address that finding of the Board
45 Although the exact percentage of allowable shortages may not have
been clearly understood by all employees, it is clear that all knew that
cash and inventory shortages could lead to discharge.
46 For example , store 81 Manager Rocky Charles Johnson, and store
81 employee Ruthe Bullington were both discharged on 21 January 1983,
Johnson for "cash and inventory variations " and Bullmgton for improper
handling of company moneys (R. Exhs 20(a) and (b)) As a result of
Continued
GIT-N-GO, INC.
demonstrated it has in the past discharged a number i of
employees for cash and inventory related situations and
that it continues to do so . 47 In some instances employees
even admitted taking merchandise from the Company. It
is clear there was nothing unique about the Company's
actions related to Baxter and Egts (or for 'that matter
Johnson). Simply stated, the Company demonstrated it
discharged its employees at store 35 for unexplainable
cash and inventory shortages. Accordingly, even if it
were concluded that the General Counsel had established
a prima facie case, I would nonetheless recommend that
the 8(a)(3) complaint allegations be dismissed. -
On the foregoing factual findings and conclusions, I
reach the following
cash and inventory shortages at store 8, an internal investigation was con-
ducted following which the Company on 29 October discharged store 8
Second Assistant Stephen Lee Butz and night clerk Curtis Lloyd Cle-
mens for matters related to infractions of the Company's policies regard-
ing extending credit to employees or customers (R Exhs. 17(c) and (d).)
On 6 December the Company discharged store 38 Manager Charles
Edward Wallace and store 38 Second Assistant Hamid Jim Tayebi for
violating company policies related to customer and employee credit and
in the case of Wallace for "taking merchandise without paying for it and
borrowing company monies." (R. Exhs. 19(a) and (b).) On 27 January
1986 the Company discharged store 71 Manager Roger Herbeger for
cash and inventory shortages and on that same occasion discharged store
71 First Assistant David Corral "due to overall operations at Git-n-Got
[sic] # 71 " (R. Exhs. 18(a) and (b) )
47 Such actions by the Company were demonstrated by its Exhs.
17(a)-(b), (e)-(z), and (aa)-(ee)
975
CONCLUSIONS OF LAW
1. Git-n-Go, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Food & Commercial Workers International
Union, Local 76 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating an employee concerning
his union activities and by telling that same employee he
had been terminated for engaging in union organizational
activities, the Company violated Section 8(a)(1) of the
Act.
4. The violations of the Act noted above constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act,
5. The Company has engaged in no other unfair labor
practices not specifically noted above.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
It is recommended that the Company be ordered to
post the notice to employees for a period of 60 consecu-
tive days in order that employees may be apprised of
their rights under the Act and the Company's obligation
to remedy its unfair labor practices.48
[Recommended Order omitted from publication.]
48 Due to the limited violations established herein, I deny the General
Counsel's request for a visitatorial clause as part of the remedy