Joe White IGA

National Labor Relations Board - Board Decisions

Jul 26, 1965

154 N.L.R.B. 1 (N.L.R.B. 1965)

Joseph A . White, d/b/a Joe White IGA and Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO,
Local Union 576. Case No. 17-CA-2508. July 26, 1965
DECISION AND ORDER
On May 10, 1965, Trial Examiner Boyd Leedom issued his Decision
in the above-entitled proceeding, finding that the Respondent had not
engaged in certain unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed exceptions to the Trial
Examiner's Decision and briefs, and the Respondent filed a reply brief
in support of the Trial Examiner's Decision. The Respondent also
filed a motion to strike the exceptions filed by the General Counsel and
the Charging Party. The motion was denied by direction of the
Board on June 22, 1965.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed in its entirety.
i We hereby correct the finding of the Trial Examiner that Respondent purchased the
grocery in November 1963. The record shows that it was purchased in November 1962.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was tried before Trial Examiner Boyd Leedom in Topeka, Kansas, on
February 17, 1965. The original charge was filed July 30, amended December 1,
and amended a second time on December 18; the complaint is dated December 23;
all in 1964.
154 NLRB No. 3. 1
206-446-66--vol. 154 2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is the individual owner of a relatively small grocery store in Topeka
where he does business under the name of Joe White IGA. He purchased the busi-
ness in November 1963, when the two employees in the meat department were
represented by the Union named in the caption under a collective -bargaining contract
between the Union and the employer from whom Respondent acquired the business.
Within a matter of a few days or weeks after the purchase-"right at three weeks"-
Respondent signed a contract identical in terms with that his predecessor had with
Union , testifying that he was advised by the union representative "being the contract
was in force that I had bought the contract , you might say, with the store and I was
compelled to sign it."
When this contract expired in February 1964 , the Union first proposed to Respond-
ent that he execute a renewal according to terms and conditions of a contract that
was about to be submitted to the Topeka Grocer Management Association. When
Respondent declined to sign such contract , conversation between Respondent and
the Union representative was such the Union now claims, and Respondent denies, that
there was an oral agreement between Respondent and the Union that Respondent
would execute and be bound by whatever contract resulted from the bargaining be-
tween the Union and the Association.
There is no contention or evidence that the Respondent was a member of the
Association at any time or that he had ever authorized the Association to bargain for
him or to represent him in entering into a collective-bargaining agreement or that
it ever had bargained for him or his predecessor . The complaint alleges that Re-
spondent , having agreed to, then refused to sign the agreement finally negotiated by
the Union with the Association and also failed to comply with its terms; and in
addition discharged one of his employees in the meat department , Florence Kearn,
because of her union affiliation.
Respondent 's answer raises these issues : ( 1) whether Respondent does enough
business to meet the jurisdictional standards of the National Labor Relations Board;
(2) whether there is a unit involved of which the Board will take cognizance , the con-
tention being that one of the two employees in the meat market is a supervisor, leav-
ing but one employee in the unit; ( 3) whether Respondent did in fact enter into an
agreement to be bound by the collective -bargaining contract to be negotiated be-
tween the Union and the Association ; and (4 ) whether Respondent discharged the
employee Kearn because of her union membership.
Briefs have been filed in behalf of the General Counsel and the Respondent.
Upon the entire record in the case , my consideration of the briefs and observation
of the demeanor of the witnesses , I find and conclude for the reasons hereinafter set
forth that: (1) The Board has jurisdiction over Respondent 's enterprise ; ( 2) the
unit involved is a one-man unit of which the Board will not take cognizance and
that, therefore , the complaint as to the 8 ( a)(5) should be dismissed; (3) the ques-
tion whether Respondent became bound by the contract between the Union and
the Association need not be resolved, and so it is not decided; and (4) employee
Kearn was not discharged in violation of Section 8(a)(3), but rather because she
would not accept a part-time job.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Board's jurisdiction
The parties stipulated that during the calendar year of 1964 the gross volume of
Respondent's sales amounted to $499,000 exclusive of sales tax of 21/2 percent
thereon; also that during that year Respondent purchased goods valued in excess of
$50,000 from a wholesaler in Topeka, Kansas, which annually purchased goods from
points outside of Kansas valued in excess of $50,000; and that goods purchased by
Respondent from the wholesaler originated from points outside of the State.
It is clear from the stipulation that if the sales tax collected by Respondent on his
gross sales can be appropriately added to the sales, the amount involved exceeds
$500,000 and meets the Board's jurisdictional standards.
Citing the case of Edmund R. Walker, et al., d/b/a Pacific Fine Arts, et al., 116
NLRB 1607, and other cases, counsel for Respondent argues in the brief that the
Board rule, making taxes a part of gross volume, has application only to the Board's
inflow and outflow standards where the taxes are a part of the price of the goods
flowing in interstate commerce, and are not separate items collected over and above
the price of the goods, as in a retail establishment such as Respondent's.
While counsel for the General Counsel cites no case in which the Board has held
that sales tax on goods sold by a retailer can be counted appropriately as a part of
the retailer's volume of business in determining whether he meets the Board's
JOE WHITE IGA 3
$500,000 jurisdictional standard , the Board 's decisions holding, in the application of
its inflow and outflow standards , that excise taxes represent a part of the value of
goods flowing across State lines, seem to be controlling in principle . In the Pacific
Fine Arts case cited above, the Board held on the authority of South Florida Liquor
Distributors, Inc. of Tampa, 113 NLRB 109 , and another case, that taxes "are not
to be deducted in determining the Employer 's gross volume of business ." It is true,
as counsel for Respondent argues, that in South Florida Liquor the tax had been
paid by the employer's supplier and was not listed separately from the price. The
Board, however, in that case made note of the fact that the billing practice was not
significant . Thus it seems that in the case of an employer engaged in retailing, the
sales tax paid to him, even though separately stated as to amount in the transaction,
represents value of goods to both the purchaser and to the retailer, to the same extent
that the taxes represented value of goods in South Florida Liquor . Compare also
the case of Samuel H. Burton and Pauline Burton, d/b/a Burton Beverage Com-
pany, 116 NLRB 634 , in which the Board held the refundable value of bottles and
bottle cases to be part of the value of bottled goods in determining the volume of
business of the employer.
On the basis of the stipulated facts and the rule laid down by the Board in the
cited cases , I find and conclude that Respondent is an employer and that his business
enterprise involved in this case is within commerce and affects commerce all within
the meaning of the Act.
B. The unit question--Stuke's supervisory status
As previously stated there were only two people in the unit which the Union
sought to organize, and both were there when Respondent acquired the market.
Both are members of the Union. One, Raymond Stuke, selyed Respondent in the
classification of head meatcutter. The other, Florence Kearn,'was a full-time meat-
wrapper. At the time the case came on for hearing Stuke had quit working for
Respondent and Kearn's employment had come to an end under circumstances that
provoked the charge she was discharged because of her union affiliation.
Respondent now contends that Stuke was a supervisor within the meaning of the
Act at the time the Union sought the new contract, and that there was therefore
only a one-man unit left, of which the Board will not take cognizance.
The question as to whether or not Stuke was a supervisor is a difficult one as in-
dicated by the circumstances that the Regional Director, as a result of his investiga-
tion of Stuke's duties, declined to issue the complaint on the ground a one-man unit
was involved, and on appeal by the Charging Party, the office of the General Counsel
reversed the Regional Director's decision and indicated the matter of the super-
visory status should be determined on evidence to be deduced in this unfair labor
practice proceeding.
The Board has found that employees in about the same position Raymond Stuke
occupied have been supervisors and in other instances, with of course some variation
in duties, have not been supervisors. It is therefore not only difficult but quite im-
possible to resolve a problem such as the one presented here with any real assurance
that the decision is in conformity with Board authority. That is to say, the indicia
of supervisory status are sufficiently nebulous and uncertain as to weight and ap-
plication, that about the only sure decision, in a close case, as to who is and who is
not a supervisor, is the last decision to be made.
Probably the strongest support for the position of the General Counsel that Ray-
mond Stuke was not a supervisor is in Stuke's answer to a series of question in his
direct examination that were designed to apply to his duties well recognized indicia
of supervisory status. Typical of these 25 questions, to all of which the witness
answered negatively, are these: "Specifically, while you were employed there, did
Joe White ever assert to you what your authority was on his behalf as far as hiring?"
The witness answered, "No." And this: "Did Joe White ever assert to you what
authority you had, if any, to promote employees?" And the answer, "No, he
didn't." And "without the expressed authority of Joe White, did you ever hire an
employee at Joe White's?" Answer "No."
If the employee's supervisory authority could be decided by his negative answer
to all of these questions, then he was not a supervisor for he testified that his employer
has never asserted he had authority to hire employees, discharge or transfer them,
suspend or lay off employees, recall or promote them, or assign, reward, discipline,
or direct them in their work. None of these questions went directly to Stuke's actual
authority in the market, however, but only to the assertion by the employer to the
employee regarding various aspects of supervisory authority. Other parts of the
record bear on the question of actual authority.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Joe White , Respondent , was asked what conversation he had ever had with
Raymond Stuke concerning the latter 's responsibilities in the meat department, White
testified that "he was the head meat cutter, and he just more or less carried on what
he had done for Dibble . I assumed he knew or it was stated he was responsible
for that department as head meat cutter ." When asked what responsibility such
duty encompassed White testified , "As far as I was concerned , everything. It was
just up to him to make it go." This language of the employer is not strong when
viewed as a delegation of supervisory authority to an employee. White 's words
alone, particularly when considered in the light of Stuke's expressed denials that
White had ever asserted to him that Stuke had the usual elements of supervisory
authority, would hardly support a determination that Stuke was a supervisor . White's
language, however, as to Stuke's authority was broad . That is, he said, summing
up the two answers hereinbefore set forth , that Stuke was responsible for the meat
department and that meant that it was up to Stuke to make the department succeed.
If in fact Stuke exercised all the authority that could very well have been encom-
pressed in White's language, then he would be a supervisor notwithstanding his testi-
mony that White had never asserted in detail all the phases of the authority that
he should exercise in running the meat department . The problem thus becomes
one of ascertaining from the record , if possible , just what authority Stuke actually
exercised as head meatcutter.
The record reveals through Stuke 's own undisputed testimony on direct examina-
tion , conducted by counsel for the General Counsel, a certain degree of control over
the activities of the only other employee in the market , the meatwrapper , Florence
Kearn. He testified that if there was work that had to be done he would tell her to
go ahead and do that first. If they were out of one particular item in the meat case
and she was doing something that could wait , he would tell her to wrap the item
that was needed in the case. On cross-examination Stuke testified , and the testimony
is not contradicted , that he did all the buying for the meat department ; that Respond-
ent Joe White told Stuke when White took over the store that Stuke was going to
be responsible as far as White was concerned for the running of the meat department;
that Stuke recommended to White when Florence Kearn was going on vacation
that she should be replaced while away and that White replaced her; that he gave
Kearn instructions from day to day in regard to her work when instruction was
needed ; that he did this independently of Joe White; that Stuke determined the work
schedule for the helper , that is the days of the week she could work, subject how-
ever to White's approval ; that he, Stuke, had authority to pledge credit for every-
thing purchased for the meat department on credit including all the meat products
purchased for sale and certain specified other supply items needed in the operation
of the market ; that it was intended that he punch a timeclock although he failed to
do it sometimes and nothing was ever said to him for his failure in this respect; that
he recommended to White the items that would be best for special sales and the
prices that should be placed on them; that these recommendations were followed by
White about 50 percent of the time, as to the pricing, and nearly all of the time as
to which items; that he "felt" as a result of his contacts with White that he, Stuke,
was responsible for whatever happened in the meat department ; that all of Florence
Kearn 's orders and assignments came from Stuke; that he, Stuke, considered him-
self responsible for the profit in the operation of the meat department; that he was
responsible for the efficiency of the other employees in his department ; that he kept
gross profit records for the department and an inventory every 2 weeks from which
it was possible to ascertain the gross profit in sales and the salary percentage of the
department ; and that in Stuke 's judgment a head meatcutter makes more money than
other employees in the meat department because he takes responsibility for ordering
meats and efficient operation of the department.
The record also reveals that Stuke drew a weekly salary whereas employee Flor-
ence Kearn worked on an hourly wage rate . White also consulted at length with
Stuke as to the problem presented in the full-time employment of Florence Kearn,
when in the judgment of White he needed only a part -time wrapper and the economic
condition of the market would not support a full-time wrapper . White testified
however, and it is clear, that the final decision to let Kearn go was made by White
rather than Stuke for the reason that the latter was not at all in sympathy with
Kearn 's termination.
In The Great Atlantic & Pacific Tea Company , 117 NLRB 554 , 555, the Board said:
The meat department heads are responsible for ordering meat products for
the department , properly displaying the products , taking periodic inventories of
supplies, and insuring that the department is operated on a profitable basis. In
addition , they work along with the meat cutters in their departments in cutting
JOE WHITE IGA eJ
and trimming meats. The record discloses that the meat department heads
possess the authority to grant time off as well as effectively to recommend the
hire and discharge of employees under them. In view of the foregoing, we
find that the meat department heads are supervisors within the meaning of
the Act.
In subsequent decisions, some of which rest on the authority of Great Atlantic and
Pacific, cited above, the Board has held in fact situations somewhat analogous to the
facts in the instant case, that the heads of the meat departments were supervisors
and therefore excluded from the unit. In neither the case from which the quotation
appearing above was taken, however, nor in any of the subsequent cases can it be
said that the facts are on all fours with the instant case. Thus, the problem of
rendering the decision here involves a determination, insofar as possible, as to the
weight of Board authority in this difficult area.
In Winn-Dixie Stores, Inc. and its subsidiary Winn-Dixie Greenville, Inc.,
124 NLRB 908, 911, the Board said:
The meat managers serve as the store managers' assistants over meat opera-
tions. The record indicates that these individuals have the authority to grant
time off, to hire and fire employees, and to effectively recommend such action.
They are responsible for ordering meat products for their departments and for
properly displaying the products. They spend approximately 60 percent of
their time in training and directing new employees in their work . On these
facts and the record as a whole we find that these individuals are supervisors
and exclude them from the unit.
And this in Food Haven, Inc., 126 NLRB 666, 669:
The meat department in each of the stores is directed by a meat manager.
There are eight full-time employees responsible to the meat manager in the
Charleston store and, in the other three stores, there is one full-time employee
in the meat department under the meat manager. The record discloses that
the meat managers "sometimes" hire employees, that they have disciplined em-
ployees and, while they have never discharged an employee, they have been told
that they have authority to do so. We find that the meat managers are super-
visors within the meaning of the Act, and we shall exclude them from the unit.
It is noted that in Food Haven the Board found supervisory status even though only
one employee other than the supervisor worked in the meat department.
In Allied Grocers Cooperative, Inc., 143 NLRB 644, the Board held an employee
in a meat department who had full responsibility for all buying, ordering, selling, and
billing of meat products and maintenance of inventories and other indicia of super-
visory status, to be a supervisor. The facts in the case more clearly establish
supervisory status than in the instant case, but it is noted that the first responsibility
mentioned in the Board's decision is that of buying , selling, and maintenance of in-
ventories in the meat department. Bruno's Food Store, Incorporated, 131 NLRB
1023, is another case in which the Board held meat department managers to be
supervisors, noting that they work on a salary basis.
There is no lack of other cases, to the same effect, holding the headman in the
meat department to be a supervisor.
On the other hand counsel for the General Counsel cites The Great Atlantic &
Pacific Tea Company, Inc., 144 NLRB 1571, for the proposition that an employee
with the title of "head" of a department is not necessarily a supervisor, a proposition
with which there can be general agreement; and in the cited case the Board held
a certain employee who worked alone in the meat department for all but 6 hours
a week, not to be a supervisor using the conclusionary language "that he exercises
no supervisory authority."
The General Counsel also relies on the case of Theriot Super Food Markets, Inc.,
101 NLRB 259, in which the Board held the meat market manager in each of seven
stores was not a supervisor. In the case, however, while these employees "are also
responsible for running their markets and must see that the market is kept clean,"
the Board noted that the managers "cannot determine prices but must follow those
issued by the main office; neither can they independently purchase meat but must
order it through Webb, the assistant general manager . ... The case also appears
to involve a superior level of management in each store to that of the classification
involved in the "supervisory" determination.
Counsel for the General Counsel, as to this supervisory issue, relies largely on an
argument based on the facts of the case without extensive citation of authority. No
case is cited, and none is known, that more clearly resolves the issue presented here
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than the cases herein discussed. The record reveals through the direct examination
by counsel for Respondent of Raymond Stuke's successor in the meat department,
that the successor, one Wayne White, was quite clearly a supervisor as conceded by
counsel for the General Counsel. In fact an effort is made to support the General
Counsel's case by distinguishing between Stuke and his successor on the ground that
the record reveals clearly that the successor Wayne White had been apprised of all
the indicia of supervisory authority. The supervisory status of Stuke's successor,
however, whether a supervisor or not a supervisor, has little probative value on the
issue here presented, for at the time Wayne White was hired to run the meat depart-
ment everybody involved in this case was alerted to this issue; and the Employer, if
for no other reason than more firmly to establish that his head meatcutter was
actually a supervisor, for such purpose as that fact might serve in this proceeding,
could very well have taken great pains to give him all the authority that an employee
needs to qualify as a supervisor. And so Wayne White's supervisory status, if it
exists, and it quite clearly does, is of no more help to the General Counsel in this
case than it is to the Respondent.
On the basis of the testimony discussed above and the whole record of the evidence
in the case, including the impressions I received from observing the attitudes and
relationships between Respondent Joe White and employees Raymond Stuke and
Florence Kearn (notwithstanding her testimony that minimized Stuke's position),
I find and conclude that Stuke actually had authority to responsibly direct em-
ployees in the meat department and to make effective recommendations concerning
hiring, discharging, disciplining, and assigning work, even though the employer had
never specifically asserted to Stuke that Stuke had such authority, and that Stuke is
a supervisor under the Act. Thus the effort of the Union to organize this unit in-
volved only one employee and the Board will therefore not take jurisdiction of the
matter. It is well established that there cannot be concerted action within the mean-
ing of the Act by one employee.
C. The alleged agreement to be bound by the contract to be made between the
Union and the Association
Inasmuch as the General Counsel's case as to the 8(a)(5) fails by reason of the
finding that the unit involved is a one-man unit of which the Board will not take
cognizance, it is not necessary to resolve, and I do not reach or resolve the question
presented in the case as to whether Respondent actually made an oral agreement
with the representative of the Union, to be bound by the contract that was yet to be
bargained and made between the Union and the Topeka Grocer Management Asso-
ciation. The issue however, appears to present problems of such interest and
novelty as to warrant some comment.
At the outset it should be noted that the agreement on which the General Counsel
would rely is really an agreement to make a contract at a future date, the terms and
conditions of which were unknown to anybody. To find such a contract to be valid
would seem, at first blush, to run contrary to a well-established principle of contract
law that an agreement to make a contract in the future of unknown terms and con-
ditions is not binding on the parties. It should be noted further that this is not the
usual situation confronting the Board, in which by express delegation or practice or
by implication, one employer has made himself a part of a multiemployer bargain-
ing group. Here the employer involved was a total stranger to the multiemployer
group involved, and he not only had no representation there but was denied informa-
tion concerning the developments throughout the bargaining. Counsel for the Gen-
eral Counsel cites no Board authority to sustain such an agreement and no Board
case bearing precisely on the point involved, is known to exist. But in the case of
Line Drivers Local No. 961, etc. v. W. J. Digby Inc., 218 F. Supp. 519 (D.C. Colo.
1963), an employer was held bound to a contract, then being negotiated, and to which
he had agreed in advance to be bound under circumstances somewhat similar to the
instant case. While this decision is cited with approval in Roadway Express, Inc.
v. General Teamsters, etc., Local 249, 330 F. 2d 859, 863 (1964), it is cited without
discussion, and its soundness may be subject to question.
Assuming, however, that the record in the instant case would justify a finding that
Respondent did agree to be bound by such contract as was to be negotiated between
the Union and the Association, and that the law would support the validity of such
ultimate contract, the case still presents another interesting question. Would the
Board permit this Respondent, a total stranger to the multiemployer bargaining, to
reserve the right to bargain separately as to some term or condition that affects him
in a unique way, in the same manner it grants such right to an employer who is a
member of the multiemployer bargaining group and who makes such reservations
JOE WHITE IGA 7
by giving due notice to the Union, in advance, of the desire to bargain separately as
to some particular condition. See The Kroger Co., 141 NLRB 564, affd. sub nom.
Retail Clerks Union, No. 1550, et al. v. N.L.R.B., 330 F. 2d 210 (C.A D.C.); and
Genesco, Inc. v. Joint Council 13, United Shoe Workers, 341 F. 2d 482 (C.A. 2).
It would seem to be anomalous not to grant to a stranger to the bargaining the
same right that an employer has who participates in the bargaining. And if the
stranger has the same right as the employer who participates in bargaining and
reserves, on notice , as to some special condition, then the Respondent in this case,
even though he may have agreed to be bound, may not have failed to bargain in
good faith, as charged, inasmuch as there is evidence in the case that from the outset
in his contacts with the union representative, he made it clear that he could not live
with the contract proposed inasmuch as it denied him the right to employ a part-time
meatwrapper, and that as to that term and condition a concession should be made
as to him. The record is clear that Respondent was at all times not only willing but
anxious to bargain, during the period he was being contacted by the union representa-
tive, and that the real point of difference was the subject of the meatwrapper.
Interesting, however, and novel as these questions may be, they need not be and
are not decided in this case.
D. The alleged unlawful discharge of Florence Kearn
As this record was developed, the question whether Respondent unlawfully dis-
charged Florence Kearn depends in large part on whether Respondent was bound by
the labor contract prevailing in the area, which he refused to recognize, and which
provided that there should be no part-time meatwrapper in any market. if the rec-
ord justified a determination that Respondent violated Section 8(a)(5) of the Act
by failing to sign and recognize the contract (which it does not for the reasons here-
inbefore stated), Kearn's discharge would have been in violation of Respondent's
agreement and also Section 8(a) (5).
But the evidence is quite clear that Respondent let Kearn go because he thought
he did not need and could not afford a full-time wrapper, and she, a loyal union
member, would not work part time in violation of the union contract.
Kearn testified, and there is no direct evidence to refute her testimony or to estab-
lish union animus in her discharge, that Respondent told her, as he first broke the
news he could not keep her, "I am sorry, I didn't want you to be surprised. It isn't
that I am dissatisfied with your work or unhappy with it in any way, it's just that
I can't go along with that contract . . you know and I know and Ray [Stuke]
knows that the market is too small for that contract."
Respondent gave Kearn a letter of recommendation when he let her go, commend-
ing her for her service with him, and stating that the reason for her termination was
"lack of work." Kearn's replacement, on a part-time basis, held a retirement card
from the Union, revealing Respondent's lack of concern over union affiliation.
On cross-examination Kearn testified in very positive fashion that she would not
have worked as a part-time meatwrapper for Respondent if he had offered her such
employment, but said he never offered. There is no direct evidence that he ever did.
I infer, however, from the entire record, revealing as it does, the close contact be-
tween the union organizer, Kearn, and Raymond Stuke, with Respondent, and the
exhaustive discussion between them on the part-time wrapper issue, that Respondent
knew Kearn would not work under circumstances in conflict with prevailing union
conditions in the area.
On cross-examination Kearn testified she did not believe she was fired because of
"the mere fact [she was] a member of the union." On redirect there was this ques-
tion and answer: ". . . do you believe that one of the reasons you were discharged
could have been due to your activities in the union? In other words, could it have
been because you were a member of the union?" Answer: "Well, it was probably
because I was a member of the union and couldn't work part-time." While this
answer literally appears to offer two reasons for the discharge, one illegal because
she belonged to the Union, and the other legal because she could not work part time,
a fair interpretation, in the light of the whole record, reveals the real reason and
that is that she could not work part time and only a part-time job was available.
In such answer the witness by implication attributes to her employer knowledge
that she was not available except on a full-time basis. Kearn was a positive, intel-
ligent witness, pushed on a few occasions into evasiveness when a direct answer
would not seem to serve the Union's cause, especially on the issue of Raymond
Stuke's alleged supervisory status, but quite certainly never dishonest. Her judg-
ment as to why she was fired is probably as good as that of anyone else, excepting
Respondent. He alone knows for sure, and I believe he told the truth when he said
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kearn 's union affiliation had nothing to do with the discharge ; it did, of course,
prevent her from accepting part-time work. It is significant that there were no
allegations of independent 8(a)(1) violations , and no direct evidence of union animus
on the part of Respondent.
There is substantial , credible evidence that the discharge was solely because Kearn
could not accept part -time work . Inasmuch as there is no determination that Re-
spondent violated Section 8 (a)(5), the discharge cannot be found to be a violation
of 8(a ) (3) on the basis of a contract violation, which theory appears to be the sub-
stantial one on which the General Counsel proceeded.
On the basis of the evidence and circumstances , discussed above, and the infer-
ences to be drawn therefrom, and the whole record, I find and conclude that there
was no violation of Section 8 (a) (3) of the Act in Kearn's discharge.
For all of the reasons hereinbefore appearing, it is recommended that the complaint
be dismissed.
Security Guard Service , Inc. and Paul R. Ashmore . Case No. 08-
CA-1091. July 27,1965
DECISION AND ORDER
On March 10, 1965, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision 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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the case, including the
exceptions and brief, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner.z
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board adopts as its Order the
Order recommended by the Trial Examiner, and orders that Respond-
ent, Security Guard Service, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
1 In adopting the Trial Examiner 's conclusions herein , we are cognizant of Respondent's
reference to Ashmore in its October 19, 1964, letter to NASA's contracting officer as "one
of our guard supervisors."
2 See our Order issued this day in Security Guard Service, Inc., 154 NLRB 33.
154 NLRB No. 4.