Hinky Dinky Soper Markets, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1980

247 N.L.R.B. 1176 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hinky Dinky Super Markets, Inc. and Retail Clerks
Union, Local No. 1015, United Food and Commer-
cial Workers International Union, AFL-CIO'
Cases 17-CA-8686, 17-CA-8804, 17-CA-8964,
and 17-RC-8670
February 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 25, 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Hinky Dinky Super
Markets, Inc., Columbus, Nebraska, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
' The name of the Charging Party, formerly Retail Clerks Union, Local No.
1015, Retail Clerks International Union, AFL-CIO, is amended to reflect the
change resulting from the merging of Retail Clerks International Union and
Amalgamated Meatcutters and Butcher Workmen of North America on June
7, 1979.
In the absence of exceptions to the Administrative Law Judge's findings of
8(a)(1) violations, we adopt those findings. We agree with the Administrative
Law Judge that Scott Ridenour's discharge was violative of Sec. 8(a)(3).
However, we do not adopt the rationale that the discriminatee's union
sympathies and activities constituted only part of the reason for his discharge.
We find Respondent's proffered justification based on Ridenour's insubordi-
nation to be unsubstantiated by a preponderance of the evidence. Since the
finding of Ridenour's union activism is well supported, we find Respondent's
cause for discharge to be pretextual and base our finding of the violation on
that ground.
In the absence of exceptions thereto, Chairman Fanning adopts the
Administrative Law Judge's finding that Respondent did not violate Sec.
8(aXI) by McClellen's statement to employees that they "probably wouldn't
get" the raise if the Union won. See his dissent in Stumpf Motor Company,
Inc., 208 NLRB 431,435 (1974).
247 NLRB No. 169
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which we participated and had a
chance to give evidence, the National Labor Relations
Board found that we had committed certain unfair
labor practices in violation of the National Labor
Relations Act. We have been ordered to post this
notice and we will abide by the following.
The National Labor Relations Act gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity
except to the extent that the employees' bar-
gaining representative and employer have a
collective-bargaining agreement which imposes
a lawful requirement that employees become
union members.
WE WILL NOT promulgate and/or maintain a
rule forbidding mention or talk about the Union
in our stores.
WE WILL NOT interrogate our employees about
their union feelings and activities.
WE WILL NOT ask employees to "put a stop to
this union business."
WE WILL NOT tell employees that their hours
are being cut to 19 per week because that would
be their allotment if the Union got in, and then
say that hours probably would not be cut if there
were no union.
WE WILL NOT tell employees that, if the Union
got in, scheduled pay increases would not materi-
alize; their wages probably would be cut; they
would be restricted to one department, thereby
losing hours; sackers would be bumped by stock-
ers and part-time employees would be bumped by
full-time employees, thereby losing hours; the
hours of part-time employees would be cut, and
that some would be cut to below 20 hours per
week, meaning they would not qualify for insur-
ance benefits under a union contract; some
employees would lose their jobs; it might not even
be worthwhile for some junior employees to have
a job; the employees would have to start paying
union dues "right away," and the dues would be
withheld starting with the next paycheck; and
1176
HINKY DINKY SUPER MARKETS
Hinky Dinky would not be "in a hurry" to
negotiate a union contract.
WE WILL NOT reduce the hours of, discharge,
or otherwise discriminate against employees be-
cause of their union sympathies and activities.
WE WILL NOT refuse to recognize Retail
Clerks Union, Local No. 1015, United Food and
Commercial Workers Union, AFL-CIO, as the
exclusive collective-bargaining representative of
our employees in the appropriate unit, which is:
All full-time and regular part-time employees
employed by Hinky Dinky at its two stores in
Columbus, Nebraska, excluding store manag-
ers, assistant store managers, produce manag-
ers, grocery managers, home center managers,
all meat department employees, office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in their
exercise of rights under the Act.
WE WILL, upon request, recognize and bargain
with the Union as the exclusive representative of
all employees in the appropriate unit described
above, retroactive to December 12, 1978; and, if
an understanding is reached, embody it in a
signed document if asked to do so.
WE WILL reinstate Scott Ridenour to his
former position or, if that position no longer
exists, to a substantially equivalent position,
without prejudice to his seniority and other rights
and privileges previously enjoyed; and WE WILL
make him whole for any loss of earnings and
benefits suffered by reason of the discriminatory
reduction in his hours and his discriminatory
discharge, plus interest.
HINKY DINKY SUPER MARKETS, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
consolidated matter was heard before me in Columbus,
Nebraska, on June 5 and 6, 1979.
The charge in Case 17-CA-8686 was filed on December
26, 1978, and amended on February 5, 1979, by Retail
Clerks Union, Local No. 1015, Retail Clerks International
Union, AFL-CIO (Union), and the charge in Case 17-CA-
8804 was filed by the Union on February 28, 1979, and
amended on April 9. The complaints in the two cases issued
on February 12 and April 10, respectively, and the two
matters were consolidated for hearing by order of the
Regional Director for Region 17 on April 11. The com-
plaints allege that Hinky Dinky Super Markets, Inc. (Hinky
Dinky), had violated Section 8(a)(1) and (5) of the National
Labor Relations Act (Act).
An election in Case 17-RC-8670 was held on February
22, 1979, among certain employees in Hinky Dinky's two
stores in Columbus. It derived from a petition filed by the
Union on December 18, 1978, and a Stipulation for
Certification Upon Consent Election. The election tally was
33 votes for and 40 against union representation, with 1 void
and 2 challenged ballots. The Union filed objections to the
conduct of the election on February 28; and, on April 18, the
Regional Director issued an order directing that the objec-
tions matter be consolidated for purposes of hearing and
decision with the above two unfair labor practice matters
because of the coincidence of factual issues.
The charge in Case 17-CA-8964 was filed by the Union
on May 16, 1979, and amended on May 29. The complaint
issued on May 29, alleging that Hinky Dinky had violated
Section 8(a)(3) and (1) of the Act. This matter was
consolidated with those above by order of the Regional
Director dated May 30.
Post-hearing briefs were filed for the General Counsel and
for Respondent.
I. JURISDICTION
Hinky Dinky is a Delaware corporation engaged in the
operation of two grocery stores in Columbus, and 44 others
in Nebraska, South Dakota, and Iowa. Its annual gross
income exceeds $500,000, and it annually causes goods of a
value exceeding $50,000 to be shipped across state lines.
Hinky Dinky is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
It. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
III. ISSUES
The complaints allege that Hinky Dinky violated Section
8(a)(1) from December 1978 to February 1979 by threaten-
ing employees with various job detriments should they
choose to be represented by the Union, by interrogating
employees concerning their union activities, by promulgat-
ing an overly broad no-solicitation rule, and by telling
employees that their support of the Union was a futility
because Hinky Dinky would not engage in meaningful
collective bargaining in any event.
The complaints further allege that Hinky Dinky violated
Section 8(a)(3) and (1) in February 1979 and again on
March 27, first by reducing the hours of Scott Ridenour,
then by discharging him, because of his union activities.
The complaints allege, finally, that the seriousness of
Hinky Dinky's misconduct, coupled with a union card-
majority and Hinky Dinky's refusal to honor a union
demand for recognition made December 12, 1978, requires a
bargaining-order remedy and a finding that it violated
Section 8(a)(5) and (1).
Hinky Dinky's answers deny any wrongdoing.
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Should a bargaining-order remedy not be appropriate, the
objections matter raises the additional question whether
misconduct by Hinky Dinky during the pendency of the
election interfered with free voter choice, requiring that the
election be rerun.
IV. BACKGROUND FACTS
The Union began organizing the unrepresented employees
in Hinky Dinky's two Columbus stores on about December
1, 1978.' By December 11, 47 employees out of a two-store
complement of 78 in the sought-for unit had signed cards
authorizing the Union to represent them for bargaining
purposes.2
On December 12, the Union sent a letter to Gary
McClellen, Respondent's system-wide personnel manager,
asserting that the Union represented "a substantial majori-
ty" in the two stores and demanding recognition. The letter
described the demand-unit substantially as follows:
All full-time and regular part-time employees employed
by Hinky Dinky at its two stores in Columbus,
Nebraska, excluding store managers, assistant store
managers, produce managers, grocery managers, home
center managers, all meat department employees, office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.'
On December 18, as previously stated, the Union filed for an
NLRB election, which ensued on February 22, 1979.
Robert Hagar, the manager of one of the stores, 37,
learned of the organizational activity shortly after its onset,
and immediately advised McClellen by telephone. A day or
so later, Hagar and the manager of the other Columbus
store, 118, spent several hours with Hagar at Hinky Dinky's
Omaha headquarters.4 McClellen provided them with a list
of "Do's and Don't's" prepared by the National Association
of Manufacturers, and with copies of contracts between
Hinky Dinky and the Union at other locations and between
Safeway Stores and the Union at Safeway's Columbus store.
V. THE ALLEGEDLY UNLAWFUL UTTERANCES
A. Robert Hagar
Facts. From the time he learned of the union activity until
on or about the time of the election, Hagar by his own
admission spoke to "nearly every one" of the employees at
store 37 "at one time or another" about the implications of
their having union representation. He admittedly told them
that, should the Union get in, they no longer would be
permitted to work in more than one department, meaning a
' Hinky Dinky's Columbus meat department employees had union
representation at relevant times.
The parties stipulated to the authenticity of 46 of the signatures, and the
47th was authenticated through testimony. No evidence was proffered of
circumstances invalidating the cards. It is concluded that they are valid for
recognitional purposes.
'This is the description of the unit in which the election was held. It differs
only in minor. nonsubstantive detail from that in the demand letter. Hinky
Dinky admits in its answer that the unit as set forth is appropriate for
purposes of the Act, and it is so concluded,
The identity of the other store manager is not revealed on the record.
'Counsel for the General Counsel elicited these admissions from Hagar
loss of hours; that the more senior employees would "bump"
the others, meaning a further loss of hours for the junior
employees; and that "it might not even be worthwhile for
some junior employees to have a job.":'
Some specific instances:'
(a) On December 6, Hagar told employee Bob Brehm
that, if the Union were in, the stockers would be promised
40-hour weeks; consequently that, if work for stockers were
down because of a delayed shipment, they would bump
sackers to get their promised hours. Brehm worked mainly
as a sacker.
(b) On December 7, using the Safeway contract as a
reference, Hagar told several of the stockers that, should the
Union get in, their wages probably would be cut instead of
raised; that part-time employees would be bumped by full-
time employees as needed to enable the latter to get 40-hour
weeks;' and that the employees would be allowed to work in
only one department, which would result in a loss of hours.
(c) On December 8, Hagar told Bob Brehm that, if the
Union were voted in, the employees would have to begin
paying union dues "right away," which would cancel any
pay raise they might get; and that "it may take a long time to
get a [bargaining] contract in."
(d) On December 8, Hagar told a group of employees, Bob
Kretz among them, that they would suffer a cut in hours if
the Union got in because they no longer would be able to
work in more than one department.
(e) On or about December 8, Hagar asked Bob Kretz and
Steve Eckholt, another employee, what this was about the
employees wanting a union.
(f) On December 9, after calling employees Carol Cook,
Kevin Leslie, and Velma Steiner to his office, Hagar asked
how they felt about the Union, he told them that, under a
union contract, part-time employees "would probably be cut
in hours" and that the employees would be restricted to one
department. Hagar also showed them the wage scales in the
contracts provided by McClellen, which were lower than
Hinky Dinky's Columbus employees were receiving, and
said that the employees "probably would not get" an across-
the-board wage increase scheduled for the next March
should they get the Union in.'
(g) On December 14, Hagar asked employee Scott
Ridenour if he were going to a union meeting to be held that
day. Then, in answer to a question by Ridenour, Hagar said
that, if the Union got in, part-time employees would be
limited to one department and their weekly hours would be
cut to 32. Hagar added that the stockers would bump part-
time employees as needed to get 40 hours per week, and that
Ridenour, as the most senior part-timer, would be the first
one bumped.
after calling him as an adverse witness. Hagar later testified, during
examination by Hinky Dinky's counsel. that he said these various adverse
consequences could happen--"nobody knows . . until everything's been
negotiated." This portion of Hagar's testimony was notably lacking in
conviction, was uncorroborated, and is rejected.
' As credibly related by various employees and not expressly refuted by
Hagar.
' Store 37 had about 45 employees at relevant times. More than one-half
were classified as part-time, even though many worked upwards of 40 hours
per week.
· For some years past, Hinky Dinky had granted across-the-hboard raises to
its nonunion employees in March and September of every year.
1178
HINKY DINKY SUPER MARKETS
(h) Sometime in the first half of December, Hagar called
employee Bryan Kearney to the office, telling him that, if the
Union got in, weekend employees Jed Brunken and Joanne
Schacker would lose their jobs. Kearney and Schacker were
romantically linked at the time.
(i) On December 18, Hagar told Velma Steiner that, under
a union contract, her hours "would probably be cut down to
19," and that she consequently would not be entitled to
insurance benefits because it would be necessary to work 20
hours per week to qualify for that. Steiner then worked
between 30 and 35 hours each week.
(j) On December 18, Hagar called Kevin Leslie to the
office, asking if he had attended a union meeting the night
before.'
(k) On December 18, Hagar asked Scott Ridenour what
he thought the Union could do for him. Hagar then stated
that union dues would be $50 to $60 per month, which
would more than offset any raises the Union could achieve;
and that, if the Union got in, Ridenour would be "cut" to
one department, and would work no more than 32 hours per
week. Ridenour then worked in four departments, and put in
about 40 hours each week.
(I) On December 19, Hagar called Kevin Leslie to the
office, announcing that Leslie's hours were being cut to 19
per week, explaining that he would work 19 hours if the
Union got in.'"' Leslie then was working about 40 hours per
week. Later that day, Leslie asked Hagar if he would
continue to work the accustomed 40 or so hours if there
were no union, and Hagar said "probably."
(m) On December 20, Hagar told Velma Steiner and
another employee, Renee Klutman, that the employees
would be restricted to one department if the Union got in.
Steiner then worked in three departments.
(n) On December 22, Hagar asked Bob Kretz if he could
"put a stop to this union business." Kretz replied that it was
"out of [his] hands," and Hagar stated: "Well, try to put a
stop to it if you can."
(o) On December 28, Hagar was overheard by Bryan
Kearney to say to a newly hired sacker that, if the Union got
in, new employees and sackers would lose their jobs because
"there would be only so many hours to go around."
(p) On February 20, 1979, Hagar told a group of stockers,
in the backroom, that they would not receive the March
raise if the Union got in.
(q) On February 21, asked Bob Kretz: "What the heck do
you want the Union in for?" Hagar added that Hinky
Dinky's Columbus employees received more pay than did
Safeway's under a union contract.
(r) On February 22, before the election, Hagar asked
several of the employees in the backroom why they wanted a
union. He also stated that he had talked to Hinky Dinky's
'Hagar testified that he "probably" asked Leslie this question. and that he
was joking. He admittedly did not tell Leslie he was joking.
'" Hagar testified that he was joking when he spoke of cutting Leslie's hours.
Again, he admittedly did not tell Leslie he was joking. Leslie's hours in fact
were not cut.
" That Hagar may have been joking when he asked Leslie this question did
not save it from illegality. Ethyl Corporation,. 231 NLRB431. 434(1977).
' The certain of the Union's contracts may have restricted employees to one
department, and that these remarks may have been made in that context, did
not legitimize them. As stated in N.L. R.B. v. Gisyel Packing Co.. 395 U.S. 575.
618 (1969): "An employer] may ... make a prediction as to the precise
effect he believes unionization will have on his company In such a case.
payroll department in Omaha, and was told that, if the
paycheck. Hagar further said that Hinky Dinky would not
be "in any hurry" to negotiate a contract with the Union;
that there might not be one before October, in which case
the employees "would lose out" on the across-the-board
raises scheduled for March and September.
Conclusions. It is concluded that Hagar violated Section
8(a)(l) in each of the following instances:
(a) By asking Kretz and Eckholt on December 8 what this
was about the employees wanting a union; by asking Cook,
Leslie, and Steiner on December 9 how they felt about the
Union; by asking Ridenour on December 14 if he was going
to a union meeting; by asking Leslie on December 18 if he
had attended a union meeting;" by asking Ridenour on
December 18 what he thought the Union could do for him;
by asking Kretz on February 21 "what the heck" he wanted
the Union for; and by asking several employees on February
22, before the election, why they wanted a union.
(b) By asking Kretz on December 22 if he would "put a
stop to this union business."
(c) By telling various employees at various times that, if
the Union got in, they would be restricted to one depart-
ment, thereby losing hours.'
(d) By telling several stockers on December 7 that, if the
Union got in, their wages probably would be cut instead of
raised.
(e) By telling various employees at various times that, if
the Union got in, stockers would bump sackers and full-time
employees would bump part-time employees as needed to
achieve their promised hours.
(f) By telling Cook, Leslie, and Steiner on December 9
that, if the Union got in, part-time employees "would
probably" suffer a cut in hours; by telling Ridenour on
December 14 and 18 that his hours as a part-time employee
would be reduced to 32 per week should the Union get in; by
telling Steiner on December 18 that her hours "would
probably" be cut to 19 per week under a union contract, and
that she consequently would not qualify for insurance
benefits; and by telling Leslie on December 19 that his hours
were being cut to 19 per week because that would be his
allotment if the Union got in, ' and then telling Leslie, the
same day, that his hours "probably" would not be reduced if
there were no union.
(g) By telling Kearney in the first half of December that
weekend employees Brunken and Schacker would lose their
jobs if the Union got in; and by telling a newly-hired
employee on December 28, within an earshot of Kearney.
that new employees and sackers would lose their jobs if the
Union got in.
however, the prediction must he carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstrably probable consequences
beyond his contrin ." [Emphasis upplied.] Far from being beyond
employer control. a restriction to one department could he effected only if
instituted by Hink) Dinky either unilaterally or as an outgrowth of the
bargaining process. in which it would be equal participant This same
reasoning applies to various other of Hagar', remarks which were couched in
the form of predictions. See, generally. Sporr.spal. Inc.. 214 NLRB 917 (1974);
StrumpfMotor Conpany Inc 208 NLRH 431 (1974).
' Again, that Hagar may have been joking when he made this remark did
not legalize it. Ethyl Crporpratio,. upra.
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) By telling employees at a time or times not firmly
established that "it might not even be worthwhile for some
junior employees to have a job" should the Union get in.
(i) By telling Cook, Leslie, and Steiner on December 9
that, if the Union got in, the employees "probably would not
get" the scheduled March wage increase; by telling a group
of stockers on February 20 that they would not receive the
March increase if the Union got in; and by telling several of
the employees on February 22 in effect that they might "lose
out" on both the March and September increases if the
Union got in because Hinky Dinky would not be "in any
hurry" to negotiate a contract.
(j) By telling Brehm on December 8 that the employees
would have to begin paying union dues "right away" if the
Union were voted in; and by telling several employees on
February 22 that dues-withholding would begin with the
next paycheck should the Union win the election.
(k) By telling Brehm on December 8 that "it may take a
long time to get a [bargaining] contract in," and by telling
several employees on February 22 that Hinky Dinky would
not be "in any hurry" to negotiate a contract, thereby
conveying the idea that union representation would be a
futility and a detriment.
B. Gary McClellen
Facts. On February 16, 1979, which was the Friday before
the election, McClellen and Albert Opperman, a district,
manager whose territory included the Columbus stores, held
a number of small group meetings with employees, first at
store 118, then at 37.
In some of the meetings employees asked what effect the
election outcome would have on the scheduled March raise.
McClellen replied in one instance that all raises would be
subject to negotiation if the Union won, and that the
employees "probably wouldn't get" it in that event; but that
they "probably" would get the raise as scheduled should the
Union lose. McClellen answered in another instance that the
scheduled raise would "automatically be dropped" if the
Union won, with wages thereafter a matter of negotiation;
and in another that the employees would receive a raise as of
March 9, as scheduled, if the Union lost, but not otherwise."
Conclusion. It is concluded that McClellen violated
Section 8(a)(1) when he said the raise would "automatically
be dropped" if the Union won, and when he said the raise
would be forthcoming if the Union lost, but not otherwise.
As in Sportspal, Inc., 214 NLRB 917, 918 (1974), McClellen
"did not tell the employees that the loss of benefits would
not be automatic and would occur only if Respondent so
agreed through collective bargaining," but instead left the
" Tim Henke. Bryan Kearney. Bob Kretz, Kevin Leslie, Scott Ridenour,
and Jim Sleddens all testified that McClellen made the above or similar
remarks. McClellen testified, on the other hand. that he answered that he "did
not really know" what would happen; that "it could be construed to be an
unfair labor practice if' he told them "they would either get it or . . . would
not get it." McClellen later expressly denied saying the raise might not be
forthcoming, and testified that he could not recall saying what might happen
if there were no union. Opperman testified at one point: "Gary said something
to the effect that he really could not answer it either [wayl because it could be
construed as an unfair labor practice to tell them that they would get it, that
would be a promise, or that they would not get it and that might be a threat."
Opperman later testified that he could not remember if McClellen said the
impression that the increase turned on the outcome of the
election.
It is further concluded, however, that McClellen did not
violate Section 8(a)(1) when he said that the employees
"probably wouldn't get" the raise if the Union won, because
all raises would then be subject to negotiation. To quote
from StrumpfMotor Company, 208 NLRB 431, 432 (1974):
An employer is free to indicate to his employees what
the possible result of bargaining may be, and to call
their attention to the possibility or even probability that
certain existing benefits may be traded away for others.
[Emphasis supplied.]"
VI. THE NO-SOI.ICITATION RULE
A. Facts
A few days before Christmas, Hagar posted a notice near
the employee timeclock which stated in part:
For the remainder of the holidays, I will not stand for
this second party to be mentioned or talked about
within the store.
The notice remained posted for about a week. Hagar testified
that the "second party" referred to in the notice was the
Union.
B. Conclusion
There has been no showing that this prohibition against
union talk was warranted by valid business considerations. It
is concluded, therefore, that it was instituted to interfere
with and restrain employees in the exercise of Section 7
rights, violating Section 8(a)(1). Plastic Film Products Corp.,
238 NLRB 135, 136 (1978); American Commercial Bank.
226 NLRB 1130, 1131 (1976). It is further concluded that
the ban was unlawfully broad in any event. K. W. Norris
Printing Co.. 232 NLRB 985 (1977); Essex International,
Inc., 211 NLRB 749 (1974).
VII. THE ALLEGED DISCRIMINATION AGAINST RIDENOUR
A. Facts
Ridenour worked for Respondent from September 1974
until discharged on March 27, 1979. He was classified as a
part-time employee, and perhaps was the most senior
employee so designated in store 37. His duties were
various-"l sacked, I checked, I stocked, and I worked in
produce." Hagar testified, when asked his opinion of
employees would get the raise if the Union lost, adding that McClellen
probably--"l imagine"-said it. The six employees are credited that McClel-
len replied as above set forth. Their demeanor was convincing, and Opperman
lent substantial corroboration by conceding that he imagined that McClellen
said the raise would stand if the Union lost. Beyond that, McClellen's recital
came across as an after-the-fact contrivance.
'' It perhaps is worthy of note that, had the Union won the election, Hinky
Dinky would have been an under a duty to offer it a chance to bargain over
the March raise before instituting it--"such unilateral actions are violative lof
Section 8(a)(5)] even when they are made pursuant to an established company
policy, if they are taken without affording the representative an opportunity to
bargain." Allis Chalmrs Corporation, 237 NLRB 290 (1978).
1180
HINKY DINKY SUPER MARKETS
Ridenour as an employee: "He could be good . . He knew
his way around the store."
During the course of the union drive, Ridenour signed a
union card, attended several union meetings, and spoke in
favor of the Union to his coworkers during breaks and lunch
periods. He also was the Union's observer at the election.
The reduction in hours. Ridenour worked these numbers
of hours in the weeks preceding his discharge:
Week Ending
1/7/79
1/14/79
1/21/79
1/28/79
2/4/79
2/11/79
2/18/79
2/25/79
3/4/79
3/11/79
3/18/79
3/25/79
Hours
41.4
28.1
38.7
37.9
37
39.2
21.5
18.1
35
38.5
28.8
30.6
This included time both in the front end, e.g., sacking and
checking and in the rear, e.g., stocking. Front-end sched-
uling generally is handled by Ed Beller, store 37's service
manager, and the rest by Don Beerman, the store's assistant
manager.'
Beller orginally intended that Ridenour work 27 front-end
hours in the week to end April 1. That figure was reduced to
19, however, before the front-end schedule was posted.
Beller testified that he did this "so that I could put Tom
Williams on the schedule, give him a few hours." Otherwise,
according to Beller, Williams would have had only 6 hours
that week, Beller added that this was his "sole decision."
Only Ridenour's hours were cut on this occasion," and
both Beller and Hagar conceded that it was contrary to the
usual practice to go against seniority as in this instance.
Beller testified of "a possibility" that Ridenour's hours were
cut, rather than someone's less senior than Williams,
because of offsetting hours assigned to Ridenour by Beer-
man. This in fact was not the case.
Despite Beller's insistence that he is "solely responsible"
for front-end scheduling and that it was solely his decision to
cut Ridenour's hours in favor of Williams, he admitted that
"maybe on occasion" Hagar had told him to cut Ridenour's
hours, and that he could not say "for sure" if this happened
at about this time. He expressly denied that Ridenour's
hours were cut in this instance at Hagar's behest, only to
equivocate that he really could not recall if Hagar had
directed him to do so "around this time." Belier testified,
finally, that Hagar discussed Ridenour's performance with
him at times, and sometimes instructed him to cut Riden-
our's hours "to straighten him up."
Hagar testified that, while "there has been occasions
where [he] made suggestions" to Beller about scheduling and
"' The parties stipulated that Beerman was and is a statutory supervisor. but
that Belier is not.
' Belier testified that "there may have been another one ... that was cut
for the week." This testimony is unsupported by documentation or particular-
ization, was unconvincing when rendered, and is accorded no weight.
" This is Ridenour's credited version of Hagar's remarks. Hagar testified
that he had no recall of saying that Ridenour's hours would not get better.
about Ridenour's hours, he did not tell Beller how to
schedule Ridenour in this instance. He continued that he
had told Beliler to cut Ridenour's hours at other times so he
would not exceed 40 hours in a given week, or to enable
Ridenour to work in areas outside Beller's jurisdiction.
Hagar did not intimate, as had Beller, that this device had
been used "to straighten" Ridenour up.
The discharge. On March 27, which was the Tuesday after
the Friday on which Ridenour's reduced-hours schedule had
been posted, Hagar summoned him to the office. Aware of
Ridenour's displeasure with that situation, Hagar mentioned
that Madison Packing Company in a nearby town was
hiring, and suggested that he seek a full-time job. Ridenour
replied that he "sort of' liked what he was doing, and did
not want to leave. A few minutes later, again calling
Ridenour to the office, Hagar stated that his hours would
not be getting any better; indeed, there was "a chance" they
would be cut even more. Ridenour asked if this meant that,
like Safeway, store 37 eventually would have no sackers.
Hagar said that it did."
With that, Ridenour went to Bob Kretz, working in one of
the aisles, and asked if he had the telephone number of
Albert Opperman, the district manager. Opperman had told
the employees, during the February 16 pre-election meetings
he and McClellen had conducted, that they should call him
about problems they were unable to resolve with the store
manager. Hagar presently approached, asked what was
going on, and was told that Ridenour wanted Opperman's
number to complain about the reduction in hours. Hagar
invited him to "go ahead and call" if he felt it would do any
good.
A few minutes later, Ridenour went to the backroom, lit a
cigarette, and began talking to some employees working
there. He was supposed to be sacking at the time. Hagar
soon followed, chiding Ridenour for "crabbing" about the
cut in hours, yet smoking and talking in the backroom.
Ridenour asked if he could make a bale-i.e., compress and
wire-wrap some empty boxes. Hagar refused, instead direct-
ing him to "go up front and go back to work." Ridenour,
plainly upset, flipped his cigarette some distance in the air,
stomped on it with exaggerated motion after it landed, then
banged through the double swinging doors into the store
proper with more than the usual force."
Hagar thereupon demanded that Ridenour return to the
back room. Ridenour complied, and Hagar told him to "just
punch out"; that he did not "need people with an attitude
such as this here working at the store." Ridenour pleaded
that he reconsider. Hagar said he would "think about it,"
and that Ridenour should check with him later. When
Ridenour returned the next day, Hagar said he had not yet
made up his mind. Reinstatement was never offered.
Attempting to explain the discharge, Hagar testified that
it was "just for pure insubordination"-Ridenour's "attitude
when I asked him to go up to the front end, and he had
wanted to do another job." Further factors, Hagar contin-
adding, "I don't think I did" Ridenour's recital in this area was detailed,
plausible, and convincing. Hagar's denial, if that is the word for it. was
tentative and unconvincing by comparison.
" Ridenour, in his testimony, seemed intent upon minimizing the degree to
which he demonstrated anger during this incident. The weight of evidence
leaves little doubt that he was angry and that he displayed it. although not
verbally.
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ued, were Ridenour's "throwing a cigarette on the air and
stomping it out," and his "hitting the doors." Hagar denied
that Ridenour's being a union election observer figured in-
"I had forgotten completely about the election and every-
thing."
Hagar admittedly "fired very few people," and had never
before fired an employee "on the spot" as he did Ridenour.
Rather, he generally warns and counsels employees concern-
ing their deficiencies or misconduct instead of discharging
them in the first instance. He testified that he previously had
spoken to Ridenour about his attitude, granting that this
"could have been" after the onset of the union campaign;
and that, after he had become aware of Ridenour's union
sympathies, he once spoke to him about the deteriorating
quality of his work. Ridenour had never been warned that
his job was in jeopardy, however, and these earlier matters,
by Hagar's admission, had nothing to do with the discharge
decision.
B. Conclusions
It is concluded that the reduction in Ridenour's hours for
the week to end April I and his discharge on March 27 were
prompted at least in part by his union sympathies and
activities, and that both therefore violated Section 8(a)(3)
and (1).:"
Ridenour was a reasonably well-regarded employee of
long standing. His union proponency was known to manage-
ment; indeed, his being the Union's election observer easily
could have led to management belief that he was foremost in
that respect. Morever, Hagar's many and varied violations of
Section 8(a)(l), previously detailed, reveal an antinunion
fervor that might well have translated into discriminatory
actions of this sort, particularly since the election result had
been close and there was a distinct possibility, based on the
Union's objections, of a rerun.
Further, Hagar and Beller both conceded that the cut in
Ridenour's hours was contrary to seniority policy, yet
neither could provide any solid reason for the deviation.
Beller's testimony, although evasive and given with utmost
reluctance, left the clear impression, however, that it was at
Hagar's behest, "to straighten him [Ridenour] up." But
then, nothing was cited in Ridenour's job performance at
about that time that called for straightening up, leaving only
the unseemly circumstance of his union activism and the
prospect of another election.
Subsequent events disclosed that the reduction's purpose
was not merely to straighten Ridenour up, but to facilitate
his leaving. Thus, Hagar twice called him to the office on
March 27, stating that there was "a chance" of even greater
cuts and that store 37 eventually would have no sackers, and
encouraging Ridenour to seek a full-time job at Madison
Packing Company.
That same day, soon after Ridenour's reply that he wished
to remain at store 37, he was fired, purportedly because his
nonverbal show of temper was deerned "pure insubordina-
tion." Just as the reduction in hours was out of character, so
:" Counsel for the General Counsel contend that Ridenour's hours also were
cut the week of the election to discourage him from supporting the Union. As
previously set forth. he was assigned 28.1 hours that week (week ending
2/25/79). as against 41.4 the week before and 38.7 the week after. The record
was the discharge. Hagar never before had fired an employee
"on the spot," as now; and he had fired very few people,
period. That, coupled with the minimal seriousness of
Ridenour's offense and Hagar's freshly stated suggestion
that he seek other work, compels the conclusion that
Hagar's professed reason for the discharge was not sincerely
proffered.
Beyond that, Ridenour's long, generally successful career
with Hinky Dinky and his strong identification with the
Union, in combination with Hagar's antiunion animus and
likely anxiety over the idea of another election, compel the
added conclusion that Hagar's true reason for firing Riden-
our had to do in part, if not wholly, with the union situation.
VIII. THE ALLEGEDLY UNLAWFUL REFUSAL TO
RECOGNIZE
A. Facts
As previously mentioned, 47 employees had signed union
cards by December 11, in a two-store complement of 78. On
December 12, the Union sent a demand letter to Hinky
Dinky based upon its card majority, which demand was not
honored. And, as earlier concluded,2 ' the 47 cards are valid
for recognitional purposes and the demand-unit is appropri-
ate.
Also as previously discussed and concluded, Hagar
committed numerous violations of Section 8(a)(1), beginning
before the Union's demand and persisting until shortly
before the election, including the issuance of an unlawful no-
talk rule, various instances of unlawful interrogation, and
assorted threats that, if the Union got in, hours would be
reduced by one means or another, wages probably would be
cut, some employees would lose their jobs, the scheduled
March raise would be lost, and Hinky Dinky would not be
"in any hurry" to negotiate a contract. McClellen, too,
violated Section 8(a)(1), by stating to some of the employees
that the March raise would not materialize if the Union
won. Finally, there was the unlawful cut in Ridenour's
hours, after which he was unlawfully discharged.
B. Conclusions
Given the pervasive and flagrant nature of Hinky Dinky's
misconduct, it is concluded that a fair second election is a
remote possibility, and that the "cards executed by a
majority of the employees . . . in favor of the Union are a
more accurate measure of the free and uncoerced desire on
the issue of representation .... " Hambre Hombre Enter-
prises, Inc., d/b/a Panchitros, 228 NLRB 136, 137 (1977). It
follows that a bargaining order, based on the Union's valid
card majority, is necessary to protect the employees' right to
union representation, and that Hinky Dinky violated Section
8(a)(5) and (1) by failing to recognize the Union on demand.
Chatfield-Anderson Co., Inc. d/b/a Trusa-Span Company,
236 NLRB 50 (1978); Donn Products, Inc. & American
Metals Corporation. 229 NLRB 116 (1977); Pilot Freight
otherwise is devoid of information concerning that situation. and affords no
basis for drawing the argued-for inference.
:' In fns. 2 and 3. supra.
1182
HINKY DINKY SUPER MARKETS
Carriers, Inc. and BBR of Florida, Inc., 223 NLRB 286
(1976); Trading Port. Inc.. 219 NLRB 298 (1975).
CONCLUSIONS OF LAW
i. By posting a rule forbidding mention of or talk about
the Union in store 37; by interrogating its employees about
their union feelings and activities; by asking an employee to
"put a stop to this union business"; by telling an employee
that his hours were being cut to 19 per week because that
would be his allotment if the Union got in, and then telling
the same employee that his hours probably would not be cut
if there were no union; and by telling employees that, if the
Union got in, (a) scheduled pay increases would not
materialize; (b) their wages probably would be cut; (c) they
would be restricted to one department, thereby losing hours,
(d) sackers would be bumped by stockers and part-time
employees would be bumped by full-time employees, thereby
losing hours; (e) the hours of part-time employees would be
cut, and that some would be cut to below 20 hours per week,
meaning they would not qualify for insurance benefits under
a union contract; (f) some employees would lose their jobs;
(g) "it might not even be worthwhile for some junior
employees to have a job"; (h) the employees would have to
start paying union dues "right away," and the dues would be
withheld starting with the next paycheck, and (i) Hinky
Dinky would not be "in any hurry" to negotiate a contract,
all as found herein, Hinky Dinky in each instance violated
Section 8(a)(1) of the Act.
2. By reducing the hours of Scott Ridenour from 27 to 19
for the week to end April 1, 1979, and by discharging
Ridenour on March 27, 1979, as found herein, Hinky Dinky
in each instance violated Section 8(a)(3) and (I) of the Act.
3. By refusing to recognize the Union as the exclusive
collective-bargaining representative of its employees in the
appropriate two-store unit on and after the Union's demand
dated December 12, 1978, as found herein, Hinky Dinky
violated Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I hereby issue this recommended:
ORDER"
The Respondent, Hinky Dinky Super Markets, Inc.,
Columbus, Nebraska, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Promulgating and/or maintaining a rule forbidding
mention of or talk about the Union in its stores.
(b) Interrogating its employees about their union feelings
and activities.
(c) Asking employees to "put a stop to this union
business."
" All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
" Backpay and interest thereon shall be computed as prescribed in F. W
(d) Telling employees that their hours are being cut to 19
per week because that would be their allotment if the Union
got in, and then saying that hours probably would not be cut
if there were no union.
(e) Telling employees that, if the Union got in, scheduled
pay increases would not materialize; their wages probably
would be cut; they would be restricted to one department,
thereby losing hours; sackers would be dumped by stockers
and part-time employees would be bumped by full-time
employees, thereby losing hours; the hours of part-time
employees would be cut, and that some would be cut to
below 20 hours per week, meaning they would not qualify
for insurance benefits under a union contract; some employ-
ees would lose their jobs; it might not even be worthwhile for
some junior employees to have a job; the employees would
have to start paying union dues "right away," and the dues
would be withheld starting with the next paycheck; and
Hinky Dinky would not be "in any hurry" to negotiate a
union contract.
(f) Reducing the hours of, discharging, or otherwise
discriminating against employees because of their union
sympathies and activities.
(g) Refusing to recognize Retail Clerks Union, Local No.
1015, Retail Clerks International Union, AFL-CIO, as the
exclusive collective-bargaining representative of its employ-
ees in the appropriate unit, which is:
All full-time and regular part-time employees employed
by Hinky Dinky at its two stores in Columbus,
Nebraska, excluding store managers, assistant store
managers, product managers, grocery managers, home
center managers, all meat department employees, office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
(h) In any other manner interfering with, restraining, or
coercing employees in their exercise of rights under the Act.
2. Take this affirmative action:
(a) Upon request, recognize and bargain with the Union as
the exclusive representative of all employees in the appropri-
ate unit described above, retroactive to December 12, 1978;
and, if an understanding is reached, embody it in a signed
document if asked to do so.
(b) Reinstate Scott Ridenour to his former position, or, if
that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other rights
and privileges; and make him whole for any loss of earnings
and benefits suffered by reason of the discriminatory
reduction in his hours and his discriminatory discharge."
(c) Post at its two stores in Columbus, Nebraska, copies of
the attached notice marked "Appendix."" Copies of the said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Hinky Dinky's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
Woolworth Company. 90 NLRB 289 (1950). Iris Plumbing d Heating Co.. 138
NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977).
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading, "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Hinky Dinky to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 17, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Finally, it is recommended that the election in Case 17-
RC-8670 be set aside and that the petition therein be
dismissed.
1184