Hudson-High Super Duper

National Labor Relations Board - Board Decisions

Feb 27, 1980

247 N.L.R.B. 1424 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenneth and Mary M. McGlaughlin, Copartners,
d/b/a Hudson-High Super Duper and Retail
Clerks Union Local No. 1059, United Food and
Commercial Workers International Union, AFL-
CIO.' Case 9-CA-12875
February 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On October 10, 1979, Administrative Law Judge
Phil W. Saunders 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,' and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.4
AMENDED REMEDY
We find, in agreement with the Administrative Law
Judge, that Respondent's assistant manager, J. Doug-
las Jones,' called Gary Motz on August 14, 1978, and
offered him a job as a produce clerk. When Jones
learned of Motz' union activities at his present job in
Gahanna, he withdrew the job offer, thereby violating
I The name of the Charging Party, formerly Retail Clerks Union Local No.
1059, Retail Clerks International Union, AFL-CIO, has been amended to
reflect the change resulting from the merger of Retail Clerks International
Union and Amalgamated Meatcutters and Butcher Workmen of North
America on June 7, 1979.
: Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In the absence of exceptions thereto, we adopt, pro forma, the
Administrative Law Judge's recommended dismissal of the allegations in the
complaint with respect to Glenna Kemper.
' We note that the Administrative Law Judge mistakenly refers to
Respondent as a proprietorship, and to Kenneth McGlaughlin as its owner. In
fact, Respondent is a partnership, with Kenneth and Mary M. McGlaughlin
as copartners. We have modified the Administrative Law Judge's recommend-
ed Order to reflect this fact.
' In its answer to the complaint, Respondent admits that J. Douglas Jones is
its store manager. However, at the hearing Kenneth McGlaughlin stated that
Jones was Respondent's assistant manager, and the Administrative Law Judge
refers to him as such in his Decision. In any event, Jones' supervisory status
and authority to act as Respondent's agent is unchallenged.
" The Administrative Law Judge apparently based this assumption on his
mistaken belief that Molt was being hired to replace one of Respondent's
247 NLRB No. 199
Section 8(a)(3) and (1) of the Act. However, although
the Administrative Law Judge found that Respondent
unlawfully refused Gary Motz employment, he did
not recommend that Respondent be ordered uncondi-
tionally to offer Motz immediate employment. In-
stead, apparently on the assumption-an erroneous
one we find-that the specific job Motz was offered
never became available,6 he recommended that Re-
spondent be ordered to offer Motz employment when
a substantially equivalent position which he would
have been employed in "became available subsequent
to the filing of his employment application." We find,
however, that a position was available for Motz at the
time Respondent unlawfully withdrew its job offer to
him and that the appropriate remedy is for Respon-
dent to offer Motz the same position it offered him
before it acted unlawfully. Thus, we shall order
Respondent to offer Motz employment to the position
for which he would have been employed but for the
discrimination against him or, if that position no
longer exists, a substantially equivalent position.
We further find that Motz is entitled to backpay
from the date he would have started to work for
Respondent. The Administrative Law Judge found
that Assistant Manager Jones asked Motz to come to
the store to arrange a schedule, before he learned of
Motz' union activities. Thus, the nature of Respon-
dent's offer was such that Motz would have gone to
work as soon as that schedule was established, and
there is no reason to believe that there would have
been any substantial delay in his doing so. According-
ly, we shall order that Respondent make Motz whole
for any loss of earnings he may have suffered by
reason of Respondent's unlawful denial of employ-
ment by payment to him of a sum of motley equal to
three produce employees, Tim Tye, who had planned to go back to school, but
subsequently decided not to leave. However, this was not the case. As we have
already noted, Jones called Motz on August 14 to offer him a job; Motz was
asked at that time to come to the store to arrange a schedule. Tye as of that
date had not decided whether he was going back to school. Since Motz was
presently being offered a job, it is obvious that he was not being hired to
replace Tye. Additionally, Tye was a full-time employee working the day
shift, and Motz had made it clear to McGlaughlin that he was seeking work
for evenings and weekends. In fact, according to Jones. who supervised
Respondent's hiring, it was the loss of another of Respondent's produce
employees, rather than the potential loss of Tye,. which triggered the offer to
Motz. Thus, Jones testified that an employee whose name was also Gary (his
last name was not mentioned) lost his job when he failed to show up for work,
and at that time Jones had spoken to McGlaughlin. and suggested that they
review their needs in the produce department and see if they might want to
replace said employee. McGlaughlin then told Jones to be sure to take a look
at Gary Motz' application while he was screening applicants.
Respondent maintains that it never filled the position for which Motz
applied. The mere fact that Respondent, after discriminating against Motz,
decided not to fill the vacancy is of little moment here. Once having made the
offer to Motz, there is no indication that Respondent would not have put
Motz on the payroll. To the contrary, Jones testified that there was a very
fluid situation, including some overstaffing, in the weeks following the store's
opening. Therefore. we conclude that since the offer was made and accepted
Motz would have been put to work, even if as a result Respondent would have
been temporarily overstaffed. Accordingly, we find that Motz is entitled to an
immediate offer of employment with appropriate backpay.
1424
HUDSON-HIGH SUPER DUPER
that which he normally would have earned as wages
from the date he would have commenced his employ-
ment with Respondent, less net earnings, in accor-
dance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon
computed in the manner and amount prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).7
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, as modified
below, and hereby orders that the Respondent, Ken-
neth and Mary M. McGlaughlin, Copartners, d/b/a
Hudson-High Super Duper, Columbus, Ohio, their
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Gary Motz immediate employment to the
position for which he would have been employed but
for the discrimination against him or, if such position
no longer exists, to a substantially equivalent position,
and make him whole for any loss of earnings he may
have suffered by reason of Respondent's unlawful
denial of employment by payment to him of a sum of
money equal to that which he normally would have
earned as wages from the date he would have
commenced his employment with Respondent, in the
manner set forth in the Board's Decision and Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
See, generally. Isis Plumbing d Heating Ca. 138 NLRB 716 (1962).
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 all sides had the opportunity
to give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
WE WILL NOT interrogate employee applicants
about their union activities nor inform them that
they will not be hired because of such activities.
WE WILL NOT discourage membership in the
Union, or any other labor organization, by
discriminating against employees in regard to
their hire and tenure of employment or any terms
and conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees'
exercise of the rights guaranteed by Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer Gary Motz immediate employ-
ment to the position for which he would have
been employed but for our unlawful refusal to
hire him or, if such position no longer exists, to a
substantially equivalent position, and WE WILL
make him whole for any loss of earnings he may
have suffered by reason of our refusal to employ
him, plus interest.
KENNETH AND MARY M. MCGLAUGHLIN,
COPARTNERS, D/B/A HUDSON-HUGH
SUPER DUPER
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Judge: Based on
charges filed on August 17 and September 18, 1978,' by
Retail Clerks Union Local No. 1059, Retail Clerks Interna-
tional Union, AFL-CIO, herein the Union, a complaint was
issued on October 20 against Hudson-High Super Duper,
herein Respondent or the Company, alleging violations of
Section 8(a) (1) and (3) of the National Labor Relations Act.
The General Counsel and Respondent filed briefs in this
matter.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACTS
I. THE BUSINESS OF RESPONDENT
Respondent, a proprietorship, is engaged in the retail sale
of groceries and other products at its facility at 2550 North
High Street, Columbus, Ohio. From the commencement of
its operations on July 24 to date, Respondent's gross
revenues are valued at an amount in excess of $200,000, and
on a projected basis Respondent, for the 12-month period
commencing July 24, will receive gross revenues in excess of
$500,000. Moreover, from the commencement of its opera-
tions, Respondent has also purchased foods and other
products valued in excess of 10,000 from wholesale
enterprises located in the State of Ohio, each of whom, in
turn, purchased the said foods and other prodcts directly
from points otside the State of Ohio. Therefore, on a
projected basis Respondent, for the 12-month period begin-
ning July 24, will purchase foods and other products valued
in excess of $25,000 from wholesale enterprises located
outside the State of Ohio, each of whom, in turn, will
I All dates are 1978. unless stated otherwise.
1425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchase and receive said foods and other products directly
from points outside the State of Ohio.
At all times material herein, Respondent is, and has been,
an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and ill operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THl lABOR ORGANIZATION INVOI.VED)
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR .ABOR PRACTICES
It is alleged in the complaint that Respondent violated the
Act by telling an applicant for employment that she would
not be hired because of her previous union activities, and by
interrogating another applicant and in this instance telling
him he would not be hired because he was honoring a picket
line of the Union at another store. It is further alleged that
on certain dates Respondent unlawfully refused to hire
Glenna Kemper and Gary Motz and at all times thereafter
has continued in its refusal to hire them.:
Kenneth McGlaughlin testified that he is the owner-
operator of the store here in question, that he purchased the
store on July 10, and that it opened on or about July 24.
Prior to that time the store was owned by the A&P Grocery
chain, but from January until it closed McGlaughlin
managed the store for A&P. It appears that in late March
McGlaughlin heard that A&P intended to close the store, ad
he then contacted numerous lending institutions in order to
secure the necessary financing. McGlaughlin also testified
that prior to his purchase, and before the A&P store closed,
he spoke to some of the employees of A&P about working
for him in his new store should his financing be approved,
but stated that he did not make a general representation as
to whether they would or would not be hired. Moreover, he
stated that those employees, forming the nucleus of
McGlaughlin's new store, were present or former members
of the Union. It appears that approximately 35 people were
employed by the A&P store prior to its closing in April, that
McGlaughlin hired seven of those employees to work at his
store, and that the majority of the individals hired by
McGlaughlin served in management positions with the new
food store. It further appears that the A&P employees were
represented for collective-bargaining purposes by the Union,
as aforestated, and that employees at Respondent's facility
are not as yet represented for collective-bargaining purposes
by any labor organization.
For background purposes and for overall evaluations of
the instant case, the General Counsel points out and argues
that Respondent's owner, Kenneth McGlaughlin, not only
disliked unions, but was intensely afraid that the store might
be organized by the Union, as was its predecessor, the A&P
store. The General Counsel also maintains that McGlaugh-
lin had many reasons to be wary of union activities as he had
worked in the A&P food chain as a store manager and in so
doing had seen their stores disintegrate economically. He
: The following individuals occupied the positions set opposite their
respective names and are now, and have been, agents of Respondent. acting on
its behalf, and supervisors within the meaning of Sec. 2( I ) of the Act:
points out an admission of McGlaughlin to the effect that
the wage scale at the A&P food store, with which he was
associated, was much higher than the wage he currently pays
to his employees-that cashiers at the former A&P store
made $6.75 per hour plus fringe benefits, while people
working as cashiers at his current store make minimum
wage. The General Counsel further points to the testimony
of McGlaughlin relative to the difficulties he had in
obtaining financing for his new store, testimony that he
would not be able to make it financially if he were forced to
pay union-scale wages and that the presence of a union as a
collective-bargaining representative certainly would have
caused his expenses to be much higher. Moreover, that
McGlaughlin's antiunion sentiments were also specifically
expressed on several occasions-that when he was still
managing the A&P store, as aforestated, McGlaughlin
gathered employees in the back and talked to them about his
dislike for unions, and during August McGlaughlin discov-
ered union organizers soliciting employees in his store and
immediately ordered them out. The General Counsel further
maintains that McGlaughlin's antiunion posture was also
reflected in his hiring practices-that he chose to hire 7 of 35
employees formerly employed by the A&P store he bought
out and managed, but that most of the employees he hired
from A&P served in management positions at his new
facility or were earmarked for management jobs, and
therefore, although several of these employees had been
union members at some point in their prior work history,
they were clearly aligned with McGlaughlin in their new
positions. Finally, as further indicated by the General
Counsel, McGlaughlin knew that organizing activities were
taking place in the city of Columbus at several food chains,
and in the midst of the intense citywide organizational
efforts by the Union and the attempt of McGlaughlin to
make a success of his new business venture, it is clear that
McGlaughlin not only opposed the organining efforts, but
feared they might be successful.
There is reliable evidence in this record that union
organizer Kenneth Yockman was in Respondent's store with
fellow coworkers during the summer of 1978 in their efforts
to organize, and on occasions approached employees and
talked to them. Yockman credibly testified that around the
second week in August he was in Respondent's store talking
to someone in the produce department, and on this occasion
McGlaughlin inquired what he was doing in the store.
Yockman then introduced himself and, after he had in-
formed McGlaughlin of his solicitations, he was then asked
to leave. From the above, it is quite obvious that, at least by
mid-August, McGlaughlin had convincing evidence that the
Union was definitely interested in attempting to organize his
store. Later, McGlaughlin was asked if he were also aware of
the additional efforts by the Union in their organizational
attempts at other food stores around the city of Columbus.
He replied that "some place along the line" he became aware
of it.
Glenna Kemper worked at the A&P store, the predecessor
to Respondent's store, for several years up until it closed in
April, and during her last 3 months at the A&P store
Kenneth McGlaughlin. owner and copartner; J. Douglas Jonesstore
manager.
142
HUDSON-HIGH SUPER DUPER
Kemper was a member of the Union. Kemper testified that
her work performance as a cashier was not questioned
during her entire tenure at the A&P store-either before
McGlaughlin's arrival or afterwards.
The General Counsel contends that Kemper was known
as a spokeman for employees in that on one occasion she had
reported McGlaughlin to the chief of security of A&P, and
most likely was also instrumental in the discharge of the
former manager.
On or about July 10, Kemper went with her daughter,
Melinda, to Respondent's store-during the period it was
being cleaned up-to ask McGlaughlin for a job. According
to Kemper, when she asked McGlaughlin if he would be
interested in a "half way decent cashier," he replied by
telling her that he could not afford "to hassle with the
union." When asked at the hearing if this remark had any
particular meaning to her, Kemper answered, "Just I
gathered that was one of the reasons he didn't want to hire
me." Kemper said that she and McGlaugnlin then continued
the conversation and that there were discussions pertaining
to the need for lower wages because of McGlaughlin's
indebtedness in buying the store. Melinda Kemper corrobo-
rated her mother's version of the conversation with
McGlaughlin on this occasion.
The General Counsel also produced testimony through
Joyce Lee and Gail Ferguson to the effect that they were
long-term customers of Respondent and they had specifical-
ly gone to the A&P store while Kemper was a cashier
because of her good service and her polite and friendly
attitude. Examples were offered where Kemper had advised
customers about certain specials, and she had also checked
customers' groceries for defective merchandise.
Respondent contends that Kemper was refused employ-
ment because of her unreasonable salary demands, unsatis-
factory work performance, poor customer relations, inability
to get along with fellow employees, and because she did not
"fit in." Respondent produced testimony through several of
its witnesses in support of these contentions, which will be
discussed later on.
The General Counsel points out that in response to the
complaint in this matter-McGlaughlin filed his own
handwritten answer, and in that answer McGlaughlin stated
that Kemper was not hired for several reasons. Those
reasons were enumerated as follows:
1. She does not fit in with my idea of friendly,
competent cooperative employee.
2. She tried to get in trouble while I was her
supervisor at A&P.
3. Our personalities are so far apart as to be totally
incompatible.
It is further suggested by the General Counsel that following
the filing of this handwritten answer, McGlaughlin then
retained counsel to represent him and, subsequently, a
second answer was filed. The second answer added a new
The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N.L.R.B. v. Walton Manufacturing Company. 369 U.S. 404
(1962). As to those witnesses testifying in contradication of the findings
herein, their testimony has been discredited, either as having been in conflict
reason why Kemper was not hired-that being her "required
level of salary." Based upon these developments and events,
the General Counsel argues that such circumstances show
Respondent's attempt to produce a "plethora of reasons" for
the refusal to hire, and this itself reveals a discriminatory
motive-that is the use of shifting reasons for the refusal to
hire leads to the conclusions that the stated reasons are a
pretext. Moreover, states the General Counsel, McGlaugh-
lin's first answer indicates that Kemper was vocal in
presenting her complaints to management when she deemed
it necessary and that a refusal to hire an employee because of
her activities in presenting grievances to management is
unlawful. The General Counsel also points out that testimo-
ny in regard to Kemper's work habits was elicited from
several current employees of Respondent, and their testimo-
ny should be viewed as suspect as each of these witnesses
continues to work in Respondent's employ, and of all
Respondent's witnesses who testified about Kemper's work
habits at the old A&P food store, none had complained at
any time to McGlaughlin about her work habits. In fact,
argues the General Counsel, the record reflects that Kemper
was a loyal and hardworking employee and had come to
work faithfully under all conditions. Finally, maintains the
General Counsel, Kemper was not hired by McGlaughlin as
a cashier due to her previous activities in voicing employee
complaints, because of her membership in the Union, and
because McGlaughlin knew that if he hired this vocal union
supporter during a time when citywide union organizational
efforts were taking place among employees of all of the
former A&P food stores, he would have a "hassle" with the
Union.
Final Conclusions as to Kemper
McGlaughlin testified that when Kemper approached him
about employment at his store, he told her as follows:
I stood in front of the store in front of the front
windows at which time I am trying to tell Mrs. Kemper
as compassionately as I know how, that she isn't my
kind of people. She doesn't fit in my organization. We
have an obvious personality difference and she asked
me what I thought her odds were of getting employ-
ment elsewhere including the Super Duper store at 3600
Indianola, Columbus, and at which time she said she
had put down a minimum wage that she would accept
was $4.50 per hour.
McGlaughlin then advised her that by asking for $4.50 she
had priced herself out of the market, and credibly denied
telling Kemper that he did not want a hassle with the
Union.' McGlaughlin was also asked if he explained to her
what he meant by telling Kemper she was not "his kind of
people." McGlaughlin answered, "I am a compassionate
person and I hesitate to hurt anybody's feelings. I did not
come out and say Glenna, you are loud; you are rude; you
with the testimony of credible witnesses or because it was in and of itself
incredible and unworthy of belief. All testimony has been reviewed and weighed
in the light of the entire record. In noting their demeanor and observing
Kemper and McGlaughlin while they were testifying before me, I can readily
understand the fundamental differences between them, both in personal habits
and in general mannerisms.
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are crude." McGlaughlin also stated that he had no reason
to know that Kemper was different from any other employ-
ees concerning their union involvement at the old A&P
store, and when again asked why he would not hire Kemper
for his store he replied:
Because in my estimation, the time that I was with
the A&P Company, her performance was not satisfacto-
ry, her conduct was not satisfactory, her relationship
with other employees was not satisfactory.
McGlaughlin then explained that Kemper and the head-
cashier at A&P (Borghese) were constantly "nit-picking"
each other behind the other's back, and that he had also
received complaints from other employees relating to the
conduct of Kemper.
James Flynn is now employed as the dairy manager at
Respondent's store but, before being hired by McGlaughlin,
had worked with Kemper when they were both with A&P.
Flynn testified that sometime around July 10 he had a
conversation with Kemper concerning her application for
employment with Respondent and at the time indicated to
Flynn that she would ask $4.50 an hour. It appears that
Flynn had worked for many years at the former A&P store
while Kemper was also there and was familiar with her.
From his observations he described her work habits as
follows: "Well, she was a very inefficient employee as far as a
checkout operator. She was very gabby on the registar [sic],
more than, you know, it wasn't helpful, it was just she was
gabbing with her friends that came in the store. Her children
would come in from time to time and they would just run
around the store, and you know, and she was not a very
efficient person and she was very loud and boisterous and
just not a very productive person." Flynn testified that he
was hourly rated and a member of the Union while working
at the A&P and that Kemper was no different from the other
employees in terms of union office or authority.
David Munk is now employed as head stock clerk at
Respondent's store and was employed at the store when it
was under the management of A&P. Under these circum-
stances he was familiar with the work habits of Kemper.
Munk was asked to state what he had observed of Glenna
Kemper as one of her fellow employees. He stated:
A. Well, Glenna was rather loud.
Q. What do you mean when you say loud?
A. Well, like when her kids would come in the store,
if they bought something, okay, their mother didn't like
it, she would just scream at them Harold, put that back,
or Harold, stop it. Or Cheryl or whichever one of them
it happened to be.
Q. Okay, how frequently were they in the store?
A. Well, almost every time that Glenna worked.
Munk said that he also talked to McGlaughlin about
Kemper before the A&P store closed and told him that he
did not think they needed a "loud, boisterous person like
that." Munk said that Kemper informed him that in the
future she would want $4.50 per hour wherever she went.
Munk was an hourly rated employee while working for
A&P.
Robert Clark is now the frozen food manager at Respon-
dent' store, but beforehand had worked at A&P for 2 years,
and under such circumstances had observed Kemper. Clark
described her work habits as follows: "she was like they had
said, loud. Her kids roamed the store. Many times she was
slow learning the register. There was times that when she
was running the register, would stop, talk to her friends,
without running the register. A lot of us would be running
the register while we talked to them. I had noticed several
times working right next to her, she would stop, talk to
them, people in back, I noticed getting disgusted at having to
wait in her line. Several times I checked people out of her
line that had a few items, while they were waiting for her to
finish with the groceries."
On or about July 10 when Kemper asked McGlaughlin
for a job, there is no evidence in this record that McGlaugh-
lin knew of any union activity in his store. In fact, it is
extremely doubtful if there were any, as his store had not
even opened, and at this time he was mainly concerned with
the cleanup work, and he had only hired his key manage-
ment people.
The General Counsel places considerable emphasis on his
argument that Kemper had voiced employee complaints on
prior occasions and was a spokeswoman for employees.
However, there is very little in this record to show that
Kemper was in any way different in her union endeavors and
activities than other members. Like all the hourly paid
employees at the old A&P store, she was a member of the
Union while working there but that was about it. On one
occasion some difficulties apparently arose with the former
manager at the old A&P, and Kemper became involved in
this situation along with McGlaughlin, as aforestated. But in
the final analysis, the dismissal of the manager led to the
promotion of McGlaughlin, and when it was all over
Kemper even apologized to McGlaughlin. Moreover, there
are no indications that on this occasion she was acting as
spokeswoman for anyone or that any of the other employees
or the Union had voiced any concern of any kind over this
highly ambiguous and confused matter, as it is reflected in
this record.
The General Counsel also maintains that Kemper was
refused employment because of her unreasonable salary
demands. It is clear from this record that McGlaughlin was
paying his cashiers the minimum wage, and in view of this
he felt the demands by Kemper were unreasonable.
McGlaughlin told her so and advised her that by asking for
$4.50 per hour she had priced herself out of the market. As
noted previously herein, Kemper informed other employees
that she would not work for less than $4.50 per hour as a
cashier. Moreover, since he had valid reasons for paying less
money, I am unable to attach any real meaning to the fact
that McGlaughlin did not think of this matter or mention it
in the first answer filed in his own handwriting, as
aforestated.
The General Counsel presented two witnesses to attempt
to show that Kemper was friendly to the customers and
efficient at her job. However, it appears to me that in both
cases their testimony deserves little weight. Joyce Lee has
lived in the same neighborhood with Kemper for several
years, and Gail Ferguson lives across the street from
Kemper and has known her as a friend. Because of these
reasons, Kemper might well have waited on and checked out
these two customers with extraordinary efficiency.
1428
HUDSON-HIGH SUPER DUPER
In the final analysis, there is convincing testimiony by
McGlaughlin, Flynn, Munk, and Clark, after close observa-
tion of Kemper while they were all working at the old A&P.
to the effect that she could be rude to customers, had poor
relationships with other employees, was boisterous on
occasions, sometimes her children interfered with her duties,
and at other times Kemper held up her checkout line with
excessive talking. Furthermore, I do not believe the above
can be classified as merely "shifting reasons" for the refusal
to hire in that all of them appear to be meritorious and based
on competent and consistent testimony. Even assuming,
arguendo, that McGlaughlin did make some reference to the
effect that he could not afford to hassle with the Union, as
attributed to him by Kemper at the time she asked for a job.
nevertheless, there is adequate testimony in this record to
overcome such a remark and sufficient evidence to show that
the actual refusal to hire Kemper was triggered for the
reasons advanced by Respondent-based on sound business
judgment-and there is lacking a preponderance of the
evidence to prove otherwise. The allegations in the com-
plaint as to Kemper are hereby dismissed.
It is alleged in the complaint that on or about August 14
Respondent refused to hire Gary Motz. It appears from this
record that Motz applied during the third week of July for a
part-time job at Respondent's store, but at this time Motz
was employed full-time by Summers Company as a truck-
driver, and also was employed part time at the Super Thrift
Grocery Store in Gahanna, Ohio, as a produce clerk. Motz
stated that he wished to work at Respondent's store instead
of at the Super Thrift store because its location was closer to
his resident. Motz filled out an application form and
discussed his prospects for employment with McGlaughlin
during their initial meeting in July. However, McGlaughlin
advised Motz that he did not want to hire him until he
notified and cleared his application with the Super Thrift
Store Manager, Bob Bender, where Motz already had a part-
time job. McGlaughlin then informed Motz that he was
expecting to have something open within a few weeks. as one
of his employees was going back to school. Approximately 2
weeks after the initial interview, Motz again contacted
McGlaughlin to ascertain his prospects for part-time em-
ployment. Motz testified that McGlaughlin was enthusiastic
about hiring him as a produce clerk because of his past
experience in that type of work, but told him that as yet the
employee whose place he was to take had not left, and
Manager Bender at Super Thrift had not found a replace-
ment.
On August 14, while working at his full-time job, Motz
received a message to call Respondent's store. In returning
the call, he spoke to Douglas Jones, the assistant store
manager. Jones asked Motz if he were still interested in the
job. Motz replied that he was, and then Jones asked him
whether he was still working at the Super Thrift store. Motz
' The Union involved at the Super Thrift store is the Charging Party in the
instant case-Retail Clerks, Local 1059.
' As pointed out. Jones' version of the ahove conversation is very similar to
that of Motz. Jones testified that he told Motz "it sounds like you're pretty
husy right now" in response to Motz' statement that he was on strike at Super
Thrift. and on cross-examination Jones admitted that he may have stated to
Motz that the Union was not "going to he his salvation. Jones also
rememhered that Motz told him that he was carrying a picket sign for the
Union in support of its strike at the Gahanna Super Thrift. and that they
told him that he was still working there but was on strike for
higher wages and other benefits and that he was honoring
the picket line.4 The two of them then engaged in a dialogue
concerning the pros and cons of unions. Supervisor Jones
asked Motz why he supported the Union, and Motz
responded that he wanted better benefits and job security.
Jones then asked Motz if he thought the Union was his
salvation. Motz responded that it was not, but as a former
member of the Union he liked the benefits that were offered.
The discussion about the Union continued for several
minutes, but finally Supervisor Jones told Motz that it would
be a waste of time for him to come in, and Motz then
determined that Jones had changed his mind and no longer
was offering him the job. This was the last conversation
Motz had with anyone at Respondent's store.'
Counsel for Respondent argues that on his application it
was not clear exactly what hours Motz would be available to
work and, furthermore, management was now looking for a
full-time person. It is also the contention of Respondent that
Jones had several other people he intended to interview, but
before a decision was made to hire anyone, management
then determined that their produce sales were declining and
that no additional people would be hired. Therefore. the
position in question was never filled. Finally. Respondent
maintains that Motz was not available to work the full-time
schedule required-that he was working full time for a
trucking company and was engaged in strike activities at the
Gahanna Super Thrift store. In view of these circumstances.
it was clear to Respondent that he could not fill the position
of full-time produce clerk. Respondent also points out that
virtually all of the people hired at McGlaughlin's store to fill
key positions were members or former members of the
Union, as aforestated, and in determining whether the
employer possesses antiunion animus. evidence that the
employer has a history of hiring people with union back-
grounds is important. Clearly, argues Respondent. Motz was
not coerced in the exercise of his Section 7 rights but was
refused employment for only one reason-the employer
decided that no one would be hired to fill the position of
produce clerk due to the decline in produce sales.
I am in agreement with General Counsel that the
overriding facts in this record lead to the inescapable
conclusions that Gary Motz was refused employment by
Respondent on August 14 because of his union activities on
another job and that these circumstances triggered Respon-
dent's refusal to hire him. In July Motz spoke with
McGlaughlin concerning employment. He presented his job
qualifications and then clearly specified what hours he
would be available for work. He also made it clear to
McGlaughlin that he was seeking part-time work and was
not looking for full-time employment.'
In the final analysis. the convincing evidence in this
record shows that Mcglaughlin initially wanted to hire Motz
discussed the Union during this conversatlon Supervisor Jnes further
testified that by the middle of August, Respondent a, primarily lohking fir a
full-time. rather than a part-time. employcc
- The General Counsel suhpenaed the joh application of Molt. hut
Respondent's counsel stated that this document was lost. The General
Counsel argues that the failure to produce this dculment imerits an ad.erse
inference ion these subjects. I have made mny decision ill this case ithout
making any such inference, as there is i sh wing f an! kind that the
application ill question was not lost
1429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of his background in produce work. It readily
appears that in all respects Motz was an acceptable applicant
for the position. A few weeks later, when Jones called, he
inquired of Motz if he were still interested in the job, and
Motz replied that he was. Jones then asked Motz if he could
come to the store in order to make arrangement for a
schedule. Jones then inquired of Motz if he were still
working at the Super Thrift store. Motz advised him that he
was, but that there was a strike taking place. Jones then
queried Motz as to why he was not working, and was told
that he was honoring the strike. It is clear from this record
that the outlook as to his employment then became
surrounded with rather ominous overtones as the discussion
turned to the pros and cons of unionism. Motz presented his
views supporting a union, as aforestated, but apparently
Jones became increasingly irritated, and finally Jones said,
"You think the union is your salvation." Their discussion
about unionism continued for several minutes until Jones
stated to Motz, "It would be a waste of time for you to come
in." In essence, the circumstances are obvious-Jones called
Motz to offer him a position as a produce clerk, but, upon
discovering that Motz was a union sympathizer, then
quickly withdrew that offer. It also appears that by this time
the Union's agent, Kenneth Yockman, had been seen in the
store soliciting employee support, but was then asked to
leave, as aforestated.'
There is considerable Board law to the effect that under
the Act an employer must consider a request for employ-
ment in a lawful and nondiscriminatory manner, and the
question of whether an application has been given such
consideration does not depend on the availability of a job at
the time an application for employment is made. Conse-
quently, the Act is violated when an employer fails to
consider an application for employment for reasons pro-
scribed by the Act, and the question of job availability is
relevant only with respect to the employer's backpay
obligation. Shawnee Industries. Inc., Subsidiary of Thiopol
Chemical, 140 NLRB 1451 (1963). Thus, the primary issue
in the instant case is whether the Company refused to
consider Motz for employment because of his union mem-
bership and activity. From the credited testimony, and in
consideration of this record as a whole, I have concluded
that Respondent did not consider his request for employ-
ment in a lawful, nondiscriminatory manner, and since the
question of whether an application for employment has been
given such consideration does not depend on the availability
of a job at the time of his application, Respondent has no
standing to assert that Motz' right to a job was defeated
when it was subsequently determined that no additional
employee was necessary. Moreover, as pointed out by the
General Counsel, Respondent's contention that no one was
ever hired to fill the produce-clerk position, due to the fact
that the individual holding that job chose to remain at the
Company, begs the question, and does so on the basis that
the employee who decided to retain his job made the
decision after the conversation wherein Supervisor Jones
' The General Counsel also points out that a critical discrepancy was
established between the testimony given by Jones and the affidavit that he
submitted. In the affidavit Jones admittedly said that he contacted Motz to
discuss a part-time position, but on direct-examination Jones stated that he
was looking for a full-time employee and called Motz under the mistaken
belief that he would be available full time. The General Counsel argues that
advised Motz that he would be wasting his time if he came
in. Certainly at that point Motz was definitely no longer a
candidate for the job, regardless of whether or not an
opening later developed. The illegal act, Respondent's
refusal to hire because of union activities or sympathies, had
been completed prior to the later decision not to hire another
produce clerk. In the final analysis, the refusal to hire a
qualified applicant because of the individual's union activi-
ties or sympathies is a violation of the Act. Process and
Pollution Control Company, a wholly owned subsidiary of
Mapco. Inc.. 225 NLRB 1351 (1976); The Firestone Tire &
Rubber Company. 220 NLRB 723 (1975). Motz' overall
qualifications for the position of produce clerk were unchal-
lenged by Respondent.
It is alleged that the conduct of Supervisor Jones, on or
about August 14, in coercively interrogating an employee
applicant about his union activities and telling him he would
not be hired because he was honoring a picket line of the
Union at another retail store, is violative of Section 8(a)(1) of
the Act. In accordance with my findings detailed previously
herein, there is credited testimony in this record to support
this allegation.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
refused to hire Gary Motz, I shall recommend that Respon-
dent offer him immediate employment to a position substan-
tially equivalent to that which he would have been employed
in had he not been discriminated against if such a position
had become available subsequent to the filing of his
employment application, without prejudice to seniority or
other rights and privileges, and also make him whole for any
loss of earnings he may have suffered by payment to him of
the amount he normally would have earned as wages from
the date after the discrimination, when a job for which he
was qualified became available, until the date of such offer,
less his net earnings during the period. Backpay shall be
computed on a quarterly basis in the manner established by
the Board in F. W Woolworth Company. 90 NLRB 289,
291-294 (1950), with interest thereon computed in the
manner and amount prescribed in Florida Steel Corporation.
231 NLRB 651 (1977).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in conduct described in section III, above,
Respondent has engaged in and is engaging in unfair labor
the obvious change in testimony suggests that all of Jones' testimony is
suspect and should be discredited. Moreover, this discrepancy further suggests
that Jones' true motive in calling Motz was to offer him a part-time position as
a produce clerk, but, upon learning of Moltz union sympathies, Jones abruptly
changed his mind.
'See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716(1962).
1430
HUDSON-HIGH SUPER DUPER
practices within the meaning of Section 8(a)( I) and (3) of the
Act.
Upon the foregoing findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, Kenneth and Mary M. McGlaughlin,
Copartners, d/b/a Hudson-High Super Duper, Columbus,
Ohio, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employee applicants about union activi-
ties and informing them they will not be hired because of
such activities.
(b) Discouraging membership in the Union, or any other
labor organization of its employees, by discriminating
against them in regard to their hire and tenure of employ-
ment or any terms and conditions of employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Gary Motz employment to the position for
which he would have been hired but for the discrimination
against him if such a position became available after the
I' the event n exceptions are filed as provided by Sec. 102.4b of the Rules
and Regulations of the National Lahor Relations Board, the findings.
conclusios. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, h adopted b the Board and become its
finldinlgs. conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
filing of his application, including seniority and all other
rights and privileges that would have accrued to him, and
make him whole for any loss of pay he may have suffered in
the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Columbus, Ohio, copies
of the attached notice marked "Appendix.""' Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Order, what steps the
Respondent has taken to comply herewith.
The allegations of the complaint herein found not to have
been established by a preponderance of the evidence are
hereby dismissed.
"' 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."
1431