Grocery Supply

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 125 (N.L.R.B. 1984)

GROCERY SUPPLY
American Community Stores, A Subsidiary of
Collum Companies, Inc., d/b/a Grocery Supply
and Joyce Arnold. Case 17-CA-11221
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 6 June 1983 Administrative Law Judge
George Christensen issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a cross-excep-
tion 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
conclusions1 and to adopt the recommended Order
as modified below. 2
I In adopting the judge's conclusion that the Respondent violated the
Act by discharging the Charging Party, we find it unnecesary to rely on
any implication in the judge's decision that the Charging Party's activities
unrelated to her union activities or to her filing charges with the Board
were protected concerted activities.
Contrary to the suggestion of our dissenting colleague, we are not
holding that "the mere fact that an employee is engaged in union activity
would preclude that employee from being discharged under any rule if
that employee was the first to be discharged under that specific rule."
The Charging Party led an unsuccessful organizing effort in 1981. The
Respondent discharged her, and she was reinstated pursuant to a settle-
ment agreement between Region 17 and the Respondent. On I September
1982 she filed charges with the Board protesting the reduction of her
hours. On 20 September she was discharged. We do not dispute the evi-
dence that the Respondent's longstanding written disciplinary rules pro-
vide that employees who commit the infraction committed by the Charg-
ing Party here will be discharged. The undisputed evidence also estab-
lishes, however, that the Respondent had not discharged any of the four
employees who had committed similar infractions during the past 2 yea.
This clearly shows disparate treatment. Furthermore, the Respondent's
assertion that it had tightened up the enforcement of this policy in 1981 is
unsupported by any document announcing such a change or by any evi-
dence of disciplinary actions taken against other employees
More importantly, there is affirmative uncontradicted evidence that the
Respondent created the shortage for which it discharged Arnold by its
own actions. Thus, Store Manager Doran admits that, after the bank noti-
fied him it planned to clear the check for the higher amount on the cus-
tomer's instructions, he directed the bank to credit the check for the
lower amount instead. Doran then used the deposit slip showing this
lower amount as the bank verification required by the Respondent's writ-
ten policy in order to discharge Arnold for her fourth shortage. In light
of Arnold's filing charges with the Board only a few weeks before her
discharge and Doran's suspicious conduct, it is obvious the Respondent
seized on this incident as a pretext to get rid of her in violation of the
Act.
2 The judge inadvertently omitted the narrow injunctive language
from his recommended Order and notice. Accordingly, we grant the
General Counsel's cross-exception and will order the Respondent to
cease and desist from "in any like or related manner" interfering with,
restraining, or coercing employees in the exercise of rights guaranteed by
the National Labor Relations Act. Hickmott Foods, 242 NLRB 1357
(1979).
Also, in addition to ordering the Respondent to remove from its
records any references to the unlawful discharge, we will order the Re-
spondent to notify the Charging Party in writing that any reference to
270 NLRB No. 21
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, American Community Stores, A Subsidi-
ary of Collum Companies, Inc., d/b/a Grocery
Supply, Joplin, Missouri, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order as modified.
1. Add the following to paragraph 2(d) following
the word "thereon."
"(d) . . . and notify her in writing that this has
been done and that evidence of this unlawful dis-
charge will not be used as a basis for future person-
nel actions against her."
2. Add the following as paragraph 2(e) and relet-
ter the subsequent paragraphs.
"(e) Cease and desist from in any like or related
manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed
by Section 7 of the Act."
3. Substitute the attached Notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting.
I cannot agree with the majority in this case and
I would therefore find that the Respondent did not
violate the Act by discharging Charging Party
Joyce Arnold. The Respondent has a written
policy of discharging employees with four cash
register overages or shortages of $5 or more within
6 months. This is undisputed. There is also no dis-
pute that the Charging Party had three such infrac-
tions within a 6-month period set to expire 26 Sep-
tember. On 18 September, she accepted a check
from a customer with "25.00" written in one sec-
tion and "twenty and no/100 dollars" in the other
section. The discrepancy was discovered when
Arnold and management, pursuant to company
policy, jointly checked out Arnold's drawer at the
end of her shift. If the check had been credited as
$25, Arnold would have been S.10 short that day.
If the check had been credited as $20, she would
have been $5.10 short, and that shortage would
have been her fourth shortage or overage within 6
months. Store Manager Doran testified that the
legal value of the check was the written amount,
not the amount expressed in numerals. Doran and
another employee prepared a report showing the
alleged shortage.
It is also undisputed that it is a violation of com-
pany policy to pay the numerical amount on the
check rather than the written amount.
her unlawful discharge has been expunged from its records. See Sterling
Sugars, 261 NLRB 472 (1982).
125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There can be no question that according to com-
pany policy Arnold was subject to discharge. The
judge and the majority of this Board seize upon the
fact that Arnold was a union adherent during the
1981 union campaign and that she again engaged in
protected concerted activity just prior to her termi-
nation. The judge and the majority of the Board
seem to use this to show discriminatory motivation
in the discharge even in the face of a clear written
policy. I cannot agree that such activity cloaks a
worker and negates a rule by the Company which
on its face is designed to prevent employees from
making mistakes, not to recoup losses. Thus, it is of
no moment that the bank, the Charging Party, or
the customer was willing to correct the error.
The fact that the Respondent insisted that the
bank follow its (the bank's) policy and verify the
error makes good business and legal sense.
There is absolutely no evidence that the Compa-
ny used this as a pretext to rid itself of Arnold.
Further, there is absolutely no evidence to refute
the Respondent's contention that in 1981 it tight-
ened up its policy concerning improperly drawn
checks. The fact that Arnold was the first employ-
ee ever discharged pursuant to the Respondent's
shortage/overage policy is of no consequence. In
this respect, it is submitted that under all the cir-
cumstances present in this case, the mere fact that
an employee is engaged in union activity would
preclude that employee from being discharged
under any rule if that employee was the first to be
discharged under that specific rule. I also do not
attach any significance to the fact that an employee
was not fired for violating this policy even though
a manager was dismissed for not firing an employ-
ee who violated the policy. It is obvious from this
action that the Company did take this policy seri-
ously since the manager was held accountable for
his failure to fire an employee under company
policy. I see nothing inconsistent with this since it
is logical to assume that a manager should be held
accountable for his failure to act. There is absolute-
ly no independent evidence regarding an 8(a)4)
violation. Further, the only rationale I can glean
from the majority is that the majority is finding an
8(a)(1) violation based on union activity which last
occurred in the spring of 1981. Therefore, I cannot
agree with the disposition of this case and I would
reverse the judge and find no violation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge any employee for filing
charges with the National Labor Relations Board
against us for engaging in activities on behalf of
United Food & Commercial Workers Union Local
322, AFL-CIO, or any other labor organization, or
for engaging in any other concerted activities for
the purpose of collective bargaining or mutual em-
ployee aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Joyce Arnold immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed and WE
WILL make her whole for any loss of earnings and
other benefits she suffered by virtue of our dis-
charging her for filing charges with the National
Labor Relations Board and engaging in activities
on behalf of Local 322 and employee aid and pro-
tection, less any net interim earnings, plus interest.
WE WILL remove from our files any references
to the disciplinary discharge of Joyce Arnold on 18
September 1982, and WE WILL notify her that this
has been done and that evidence of this unlawful
discharge will not be used against her in any way.
AMERICAN COMMUNITY STORES, A
SUBSIDIARY OF COLLUM COMPANIES,
INC., D/B/A GROCERY SUPPLY
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge.
On February 24, 1983, I conducted a hearing at Joplin,
Missouri, to try issues raised by complaint issued on No-
vember 22, 1983,1 based on a charge filed by Joyce
Arnold on September 30 and amended on November 19.
The complaint alleged that American Community
Stores, A Subsidiary of Collum Companies, Inc., d/b/a
Grocery Supply (the Company), violated Section 8(a)(1)
I Read 1982 after all further date references omitting the year.
126
GROCERY SUPPLY
of the National Labor Relations Act by directing Arnold
to refrain from discussing with other employees their
conditions of employment and Section 8(aX1), (3), and
(4) of the Act by discharging Arnold for engaging in ac-
tivities on behalf of United Food & Commercial Workers
Union Local 322, AFL-CIO (the Union), and for filing
charges with Region 17 against the Company.
The Company concedes that it discharged Arnold,
contends she was discharged for cause, denies uttering
the direction recited in the complaint, contends the state-
ment it made was not violative of the Act, and denies
committing any violation of the Act.
The issues are: (1) whether the Company made the
statement set out in the complaint and, if so, whether it
thereby violated the Act, and (2) whether the Company
discharged Arnold for engaging in activities on behalf of
the Union and filing charges and thereby violated the
Act, or discharged her for cause.
The parties appeared at the hearing by counsel and
were afforded full opportunity to adduce, evidence, to
examine and cross-examine witnesses, to argue, and to
file briefs. Briefs were filed by the General Counsel and
the Company.
Based on my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I
enter the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find at
all pertinent times the Company was an employer en-
gaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning
of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Company operates a chain of retail grocery
stores, including a warehouse-type store operation at
Joplin, Missouri, which is the scene of the events perti-
nent to this decision. At times pertinent, the Company
employed approximately 19 employees, who worked
interchangeably as checker-cashiers and stockclerks.
Joyce Arnold was originally hired on August 16, 1976.
She was the leading union activist among the Joplin em-
ployees during the Union's unsuccessful campaign to rep-
resent the Joplin employees in 1981. s Following the elec-
tion (on May 18, 1981) Arnold was discharged. She was
reinstated in August 1981 pursuant to the terms of a set-
tlement agreement negotiated by representatives of
Region 17 and the Company, following her filing of a
charge with the Region alleging she was discharged be-
cause of her activities on behalf of the Union.0
The Company has a policy of discharging any check-
er-cashier who is $5 or more over or under, when her
cash drawer is checked out, on four separate occasions
within a 6-month period. The policy is contained in
' The Union lost a Board-conducted election in the spring of 1981.
s Case 17-CA-10372
formal, written instructions issued to its managers and
conveyed to its employees. Those same instructions re-
quire each manager to prepare and send to headquarters
a "significant incident" report setting out the date of the
first over/under incident exceeding $5, the circum-
stances, the amount, the name of the affected employee,
and the fact that the employee has been advised the
clock has begun to run and he or she will be discharged
if three more over/unders occur within 6 months; a
"contact report" on the second incident within 6 months
of the first one, setting out the same information; and an-
other "contact report" on the third incident within 6
months of the first one, setting out the same information,
plus a statement the employee has been offered retraining
and whether or not the offer was accepted. After the
third over/under in excess of $5 within 6 months, the
employee is also placed "in isolation," which means his
or her cash drawer is checked out jointly after each
work shift by the affected employee and a supervisor for
the balance of the 6-month period and the resulting
checker report is signed by both the employee and the
supervisor.
On March 26, Arnold was short over $5 at the end of
her shift. She was orally warned the clock had begun to
run and she would be subject to discharge if three or
more incidents of a like nature occurred before Septem-
ber 26.
On May 28, Arnold was $12.71 over. She was warned
two more incidents of a like nature before September 26
would cause her discharge and the requisite contact
report was prepared.
On June 1, Arnold was $20.82 over. She was warned
one more shortage or overage exceeding $5 before Sep-
tember 26 would result in her discharge, was offered re-
training (which she accepted and received), was placed
"in isolation," and the requisite contact report was pre-
pared.
In August, the Company decided labor costs at several
stores within the district4 were too high and directed the
managers of those stores to place all employees on a
part-time basis and schedule their hours in accordance
with the traffic volume each store was experiencing,
thereby lowering labor costs5 and attaining greater flexi-
bility in work scheduling.
At that time there were two full-time employees at the
Joplin store: Arnold and Peggy Corrigan. On August 21,
Joplin Store Manager Steven Doran advised Arnold she
and Corrigan were going to be working part time rather
than full time, along with the balance of the work force.
Arnold objected, stating if the Company did not contin-
ue her full time, she would write to the Company's vice
president and General Manager, Ken Eckles,6 and file
' The district consisted of the Joplin store, another store at Springfield,
Missouri, and four stores in Arkansas. A cost analysis determined labor
costs at the Joplin, Springfield, Little Rock, and Texarkana stores were
too high relative to total costs and revenues at the four stores in question.
' By reducing total hours and certain fringe benefits (part-time employ-
ees normally were not provided hospital and surgical insurance coverage,
and other benefits).
· She had made written complaints to Eckles several times previous,
when a company action or policy displeased her.
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges of discrimination with the National Labor Rela-
tions Board (NLRB) and the Equal Employment Oppor-
tunity Commission (EEOC). Doran was not swayed by
her statement and placed new work schedules in effect
which reduced the hours of Corrigan and Arnold from
40 hours per week to approximately 25 hours per week.
Arnold promptly sent a letter to Eckles protesting the
change in her status from full time to part time, her loss
of 15 hours of work and pay per week, an alleged in-
crease in the hours of work scheduled for the employees
who were part time before and after the change in her
status, her loss of fringe benefits and seniority status, her
loss of promotional opportunities (citing a provision of
the Company's employee manual stating only full-time
employees would be considered for promotion to man-
agement positions), charged a less senior and less quali-
fied employee than she had recently been promoted to a
management position because he was male (Jeff Owens,
assistant manager at the Joplin store), and stated unless
she was restored to a full-time status, she was going to
file a charge with the NLRB, alleging her change in
status, pay, fringe benefits, and promotional opportunities
had been instituted because of her 1981 union activities
and the filing of her 1981 charge with the NLRB, plus a
charge with the EEOC alleging the company promotion
of Owens instead of her, and her reduction to part-time
status, and consequent loss of promotional opportunities,
were made because of her sex.
On receipt of the letter, Eckles contacted District
Manager Tom Lennons 7 and instructed Lennons to pro-
ceed to Joplin to discuss Arnold's complaints with her
and try to convince her the Company was not discrimin-
atorily motivated in taking the actions she complained
about.
Lennons proceeded to Joplin and conferred with
Arnold on August 26. In the course of the conference,
Lennons informed Arnold of the reasons for its decision
to reduce full-time employees to part time at a number of
its stores (to reduce costs and increase flexibilitiy in
making work assignments), denied Arnold was singled
out for such status change, denied the Company was dis-
criminatorily motivated in changing Arnold's status to
part time, denied the Company was discriminatorily mo-
tivated in promoting Owens over Arnold to a superviso-
ry position, informed Arnold to do as her conscience
dictated with reference to filing charges with the NLRB
and EEOC, and requested Arnold to refrain from saying
anything detrimental about the store, to which she assent-
ed. I credited mutually corroborative testimony that
Lennons' only request concerning Arnold's future con-
duct was limited to the language italicized above.
On September 1, Eckles mailed a formal reply to Ar-
nold's letter, in essence reiterating and reaffirming the
explanations and positions voiced by Lennons at the
August 26 Lennons-Arnold conference.
On the same date (September 1), Arnold filed a
charges with NLRB Region 17, alleging the Company
? The complaint alleges, the answer admits, and I find at all pertinent
times Eckles, Lennons, and Doran were supervisors and agents of the
Company acting on its behalf within the meaning of Sec. 2 of the Act.
' Case 17-CA-11177.
violated Section 8(aX 1), (3), and (4) of the Act by reduc-
ing her to part-time status because of her 1981 union ac-
tivities and filing of the 1981 charge which led to her re-
instatement and a second charge with the regional office
of the EEOC, alleging the Company had discriminated
against her because of her sex by promoting a less quali-
fied male employee (Owens) to a management position
and by reducing her to part-time status to render her in-
eligible for such promotion in the future.
During her work shift on Saturday, September 18,
Arnold accepted a check drawn by Mrs. Harold G.
Cates as worth $25, though it was written out for
"twenty and no/100 dollars" in one section and for
"25.00" in another. This clearly was a mistake and con-
trary to company instructions.9
The discrepancy was noted when Arnold and Coman-
ager Joella Beck' ° checked out Arnold's drawer at the
end of her shift. Arnold tallied the check was worth $25
relying on the figure amount, prepared and signed a
checker report showing a shortage of 10 cents. Beck re-
fused to sign the report and referred the matter to
Doran. Doran took the position the check was worth
$20, not $25, " and requested the report either be revised
to show a $5.10 shortage or a new report be prepared so
showing. Arnold refused to revise the report or prepare
a new one, asserting Cates tendered the check for the
higher amount, it was the correct amount, and requested
that Doran contact Cates to so verify. Doran refused to
contact Cates; Arnold told Doran and Beck to do what-
ever they wanted, she was leaving. She picked up her
belongings and left the store. Doran and Beck prepared a
report showing a $5. 10 shortage.
After leaving the store, Arnold contacted Cates. Cates
agreed she intended to pay $25 and agreed to so notify
her bank, the Commerce Bank of Joplin.
The Company maintained its account at the same
bank. At approximately 8:15 a.m. on Monday, September
20, Commerce Bank's assistant cashier and facility man-
ager, Betty Turner, noticed the discrepancy in the
amounts on the Cates' check while checking the Compa-
ny's September 18 deposit. She telephoned Cates and
asked her which figure was correct. Cates informed her
$25 was correct and agreed to guarantee and pay that
amount from her account to the Company. About 9 a.m.,
Turner telephoned the store, told Doran she noticed the
discrepancy in checking the deposit, contacted Cates,
and Cates authorized the bank to clear the check for the
higher amount, $25. Doran told Turner he was coming
to the bank later and would discuss the matter further at
that time.
About the same time (9 a.m.) Arnold arrived at the
store prepared to go to work (prior to Arnold's leaving
g The checker-cashier manual, which Arnold reviewed in the course of
her retraining after the second contact report was issued, instructs all
checker-cashiers to scrutinize all checks to determine whether the written
and number amounts on a check match, and to reject any checks where
they differ.
'o The complaint alleges, the answer admits, and I find at all pertinent
times Beck was a supervisor and agent of the Company acting on its
behalf within the meaning of Sec. 2 of the Act.
II Relying on an alleged banking practice of valuing a check at the
written amount when the written and figure amounts varied.
128
GROCERY SUPPLY
the store on September 18, Beck told her to come to
work at that time), found her timecard missing, and
asked Doran where it was. Doran informed her the time-
card was missing because she was discharged. Arnold
asked why. Doran states she was discharged for having
four shortages or overages in excess of $5 within 6
months, the last one having occurred the previous Satur-
day. Arnold asked how he knew the bank was not going
to clear the check for S25, taking the position it was nec-
*essary that the bank verify a $5 shortage in the Cates'
check before disciplinary action was warranted,' 2 and
stated she wanted a written statement of the reason or
reasons for her discharge. Doran replied he did not need
bank verification of the shortage and refused to supply
the requested statement. Arnold suggested he contact
higher supervision and stated she was not leaving the
store until she received the requested statement. Doran
telephoned Lennons and was instructed to await bank
verification and to put Arnold on the clock pending its
receipt. Doran furnished Arnold with a timecard, she
clocked in, and was put to work as a stockclerk.
Doran went to the bank and asked Turner if it was
normal bank practice to accept a check for the written
amount when the written and number amounts on a
check were in conflict. Turner replied it was. Doran di-
rected Turner to follow that practice with reference to
the Cates' check and record it as a $20 deposit. Turner
complied.
At approximately 11 a.m. Beck went to the bank,
picked up the September 18 deposit slip, and turned it
over to Doran. Doran called Arnold aside, showed her a
circled $20 figure on the deposit slip, announced this
verified the bank's acceptance of the check at the lower
figure and confirmed she was short $5.10 on September
18, not 10 cents.
Arnold asked for time to make a telephone call. Doran
granted her request. Arnold telephoned Cates and Cates
informed Arnold she authorized the bank that morning
to honor the check for $25, not $20. Arnold returned to
Doran, advised him of Cates' advice, and stated there
would not be any $5 shortages unless he or Beck in-
structed the bank to honor the check in the lesser
amount. Neither replied, and Doran furnished Arnold
with a copy of a separation report noting she was dis-
charged for having four overages or shortages exceeding
$5 within 6 months.
Arnold's testimony was undisputed (and is credited)
that in 1980 checker Margaret Fields accepted an im-
properly endorsed check and was permitted to contact
the person who submitted it and secure a proper en-
dorsement, without discipline; checker Peggy Corrigan
accepted travelers checks signed in the wrong space and
was permitted to contact the signatory and secure signa-
tures in the proper space, without discipline; and in 1980
two checke-s, Susan Boyd and Connie Gray, were not
discharged on discovery of a fourth overage or under-
payment exceeding S5 within 6 months.
12 In apparent reliance on a provision of the written disciplinary pro-
cedure requiring bank verification of a shortage prior to the issuance of a
significant incident or contact report after a disavowed apparent shortage
or overage exceeding S5.
B. Analysis and Conclusions
1. The alleged unlawful direction
The complaint alleges the Company violated Section
8(aXl) of the Act on August 26 by Lennons' directing
Arnold "to refrain from discussion with co-workers
about terms or conditions of employment of Respondent
(Company) while on Respondent's time."
Based on mutually corroborative testimony by Arnold
and Lennons, I have entered findings that in fact Len-
nons, in the course of discussing Arnold's complaints
over the Company's failure to promote her and changing
her status from full to part time on August 26, asked
Arnold to refrain from saying anything detrimental about
the store in processing her charges before the NLRB and
EEOC and Arnold agreed to comply with that request.
This is a complete departure from the complaint alle-
gation and fails to lend it any support. I therefore recom-
mend dismissal of those portions of the complaint so al-
leging.
2. The alleged unlawful discharge
The complaint alleges the Company violated Section
8(aXl), (3), and (4) of the Act by discharging Arnold be-
cause of her 1981 activities on behalf of the Union, her
1981 filing of charges with the NLRB against the Com-
pany over her discharge for those activities, and her Sep-
tember 1, 1982 filing of charges with the NLRB (and the
EEOC) against the Company alleging the Company had
denied her promotion, caused her to lose promotion op-
portunities, and reduced her status from full to part time
because of those 1981 acts and her sex.
The record established that Arnold was the leading
union supporter among the employees during the Union's
1981 representation campaign; that she was discharged
by the Company shortly after the Union lost the election
following that campaign and secured reinstatement as the
result of a charge she filed with the NLRB alleging she
was discharged because of her activities on behalf of the
Union during the campaign; that on September I she
filed charges with the NLRB and EEOC against the
Company alleging the Company promoted a less quali-
fied employee over her and reduced her from full to
part-time status, thereby causing her losses in income,
benefits, and promotional opportunities, because of her
1981 activities on behalf of the Union, her filing of the
NLRB charge which secured her reinstatement in 1981,
and because of her sex; and that she was discharged 20
days after the date she filed those charges and 6 days
prior to the time she would have become immune from
discharge under the company rule governing discipline
of employees with four shortages or overages exceeding
$5 within a 6-month period.
The question is whether the Company seized on the $5
difference between the written and number figures on
the Cates' check as a device or pretext to rid itself or
Arnold for again causing the Company the same aggra-
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vation,' 3 time, money, and effort 14 she caused in 1981
by the filing of her September I charge with the NLRB
(and the EEOC) or was simply carrying out a uniformly
administered disciplinary action.
I find and conclude its motive was the former one set
out above; not only was the discharge effective but, 20
days after Arnold filed her September 1 charges, the
Company itself manufactured the shortage't which it
utilized to effect the discharge, in a transparent effort to
effect that discharge before another 6 days passed and in-
sulated Arnold from discharge under its shortage/over-
age policy. '
That this was the driving motive is demonstrated by
Doran's clumsy effort to "verify" the shortage by show-
ing Arnold a bank deposit with a $20 figure circled, as
proof the check was valued by the bank in that amount;
it showed $20 only because Doran instructed Truner to
ignore Cates' instructionsl Added support for this motive
finding and conclusion lies in the fact checker/cashiers
on previous occasions have been afforded an opportunity
to rectify their errors in accepting financial instruments
which were inadvertently endorsed or signed by custom-
ers, without disciplinary action.
As to the Company's argument Arnold was discharged
for making the mistake of accepting a check containing
written and figure amounts which differed, the short
answer is that was not the reason the Company relied on
in effecting the discharge, the Company consistently
maintained prior to filing its post-hearing brief Arnold
was discharged solely because she had a shortage in her
accounts exceeding $5 on September 18 and three similar
shortages or overages within the preceding 6 months
On the basis of the foregoing, I find and conclude that
the Company discharged Arnold on September 20 be-
cause of her September I and previous filing of charges
with the NLRB and her previous union activity, thereby
violating Section 8(a)(l), (3), and (4) of the Act.
CONCLUSIONS OF LAW
1. At all pertinent times the Company was an employ-
er engaged in commerce in a business affecting com-
merce and the Union was a labor organization within the
meaning of Section 2 of the Act.
2. At all pertinent times Eckles, Lennons, Doran, and
Beck were supervisors and agents of the Company acting
on its behalf within the meaning of Section 2 of the Act.
3. The Company violated Section 8(a)(1), (3), and (4)
of the Act by discharging Arnold on September 20 be-
cause of her September I and previous filing of charges
with the NLRB and her previous union activity.
4. The Company did not otherwise violate the Act.
5. The aforesaid unfair labor practice affects commerce
as defined in Section 2 of the Act.
" The vexation arising out of the necessity to defend its policies, prac-
tices, and actions before a public body.
14 Referring to the time, money, and effort the Company was forced
to expend to oppose the union campaign and defend against Arnold's
1981 charge.
Is No shortage in Arnold's September 18 account in excess of $5
would have occurred had Doran not countermanded Cates' instruction to
the bank to honor her check for $25 and pay the Company that amount.
THE REMEDY
Having found that the Company violated the Act by
discharging Arnold, I recommend the Company be di-
rected to offer Arnold reinstatement to her former posi-
tion and to make her whole for any seniority, wage, and
benefit losses she suffered by virtue of the discrimination
against her, with the amounts due calculated in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon computed in accordance
with the formula set out in Florida Steel Corp., 231
NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716
(1962), and to post appropriate notices set forth below.
Having also found the alleged September 18 shortage
was a pretext to cover the Company's discriminatory
motivation in effecting the discharge, I also recommend
that the Company be directed to withdraw and expunge
from its records all and any separation or other reports
reciting an alleged September 18 shortage of $5 in Ar-
nold's accounts as basis for any discipline.
Having found the Company did not violate the Act by
other alleged actions set out in the complaint, I recom-
mend the sections of the complaint setting out those alle-
gations be dismissed.
On the foregoing findings of fact and conclusions of
law and on the entire record, I recommend the issuance
of the following's
ORDER
The Respondent, American Community Stores, a Sub-
sidiary of Collum Companies, Inc., d/b/a Grocery
Supply, Joplin, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from discharging any employee for
filing charges with the National Labor Relations Board
against the Company or engaging in activities on behalf
of United Food & Commercial Workers Union Local
322, AFL-CIO, or any other labor organization, or en-
gaging in other concerted activities for the purpose of
collective bargaining or mutual employees aid or protec-
tion.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
(a) Offer to Joyce Arnold reinstatement to her former
position.
(b) Make Joyce Arnold whole in the manner set out in
The Remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Withdraw and expunge from its records any docu-
ments purporting to show a September 18 shortage of $5
in Arnold's accounts and any discipline based thereon.
I' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
130
GROCERY SUPPLY
(e) Post at its premises at Joplin, Missouri, copies of
the attached notice marked "Appendix." 17 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that paragraph 5 and
the reference thereto in paragraph 7 of the complaint are
dismissed.
131