Kermit Super Valu

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1077 (N.L.R.B. 1979)

KERMIT SUPER VALU
Massey Stores, Incorporated, d/b/a Kermit Super
Valu and Food Store Employees Union, Local 347,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO.' Case 9 CA-12283
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANt) TRUESDALE
On June 6, 1979, Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter. Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,2 findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, with, however, the
following addition:
In view of the Administrative Law Judge's failure
to do so, we make the following:
CONCLUSIONS OF LAW
1. Respondent Massey Stores, Incorporated, d/b/a
Kermit Super Valu, Kermit, West Virginia, is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Food Store Employees Union, Local 347,
United Food and Commercial Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(l) of the
Act by coercively interrogating employees about
union activities, by threatening employees with dis-
charge and other job-related disadvantages for engag-
ing in union activity, by creating the impression of
i The name of the Charging Party, formerly Food Store Employees Union.
Local 347. Amalgamated Meatcutters and Butcher Workmen of North
Amenca, AFL CIO, is amended to reflect the change resulting from the
merging of Retail Clerks International Union and Amalgamated Meatcut-
ters and Butcher Workmen of North America on June 7, 1979.
2 We find no merit in Respondent's exception that the Administrative Law
Judge improperly denied its motion to exclude the alleged discnminatees
from the hearing room as witnesses. In so concluding. we rely on the Board's
Supplemental Decision in Unga Painting Corporation., 237 NLRB 1306
(1978), and note that the Administrative Law Judge stated that under that
Decision an alleged discriminatee would upon proper request be excluded
during the testimony of another discnminatee concerning matters the first
discriminatee would also testify about. No request for such specific exclusion
was made.
surveillance of employee union activities, and by so-
liciting employees to engage in such surveillance.
4. Respondent has violated Section 8(a)(3) and (I)
of the Act by reducing an employee's working hours
and by calling in an employee's loan because the em-
ployees engaged in union activities.
5. Respondent has violated Section 8(a)(5) and (1)
of the Act by refusing to bargain with the Union as
the duly selected exclusive representative of the em-
ployees in the following appropriate unit:
All employees employed at the Respondent's
Kermit, West Virginia facility: excluding the
store manager and assistant store managers and
guards and supervisors as defined in the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Massey Stores
Incorporated, d/b/a Kermit Super Valu, Kermit,
West Virginia, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF HE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard in Logan, West Virginia, September 27
and 28, 1978. The original charge was served on the Re-
spondent March 10, and the amended charge was served
April 19, 1978. The complaint issued August 3, 1978; the
Respondent duly filed an answer and amended it at the
hearing.
The issues are whether or not the Respondent committed
various violations of Section 8(a)( 1),. (3), and (5) of the Na-
tional Labor Relations Act, as alleged in the complaint, and
whether or not a bargaining order is an appropriate rem-
edy. I conclude, for the reasons given herein, that the Re-
spondent committed some, but not all, of the 8(a)(l) and (3)
violations alleged; that it violated Section 8(a)(5): and that
a bargaining order is an appropriate remedy.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Charging Party.
and the Respondent, I make the following:
FINDINGS OF FAC1 AND CONC(I.USIONS OF LAW
1. JURISDICTION
The Respondent is a Virginia corporation engaged in the
operation of retail grocery stores at various locations in-
245 NLRB No. 139
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding its store at Kermit, West Virginia, involved herein.
During the past 12 months, the Respondent had gross rev-
enues in excess of $500,000, and it purchased and received
goods valued in excess of $50,000 shipped to its Kermit,
West Virginia, facility directly from points outside West
Virginia. I find that the Respondent is an employer engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
11l. UNFAIR LABOR PRACTICES
A. Overview
Massey Stores. Incorporated, owns and operates eight re-
tail grocery stores in Virginia and West Virginia. Its pres-
ident is E. H. Workman. Its stores in Vansant, Virginia, and
Premier and Leyland, West Virginia, are not organized.
Employees of its Omar, West Virginia, store are represented
in a storewide unit by a Steelworkers Union as the succes-
sor of two other successive unions unrelated to the Charg-
ing Party Union. Its Abingdon, Virginia, employees are
represented in two separate units by Retail Clerks and
Meat Cutters Unions. The Charging Party Union has been
the contract representative of the employees of the Dan-
ville, West Virginia, store since 1968. Although the store
has operated under several different names, all contracts
have been negotiated by E. H. Workman as president. In
1976, after an NLRB election and certification, the Charg-
ing Party Union and Workman entered into a collective-
bargaining agreement covering employees of the store at
Point Pleasant, West Virginia. Thereafter Massey Stores,
Incorporated, and the Union entered into a single contract
covering employees of both Danville and Point Pleasant in
separate storewide units effective March 28, 1977, through
March 29, 1980.
Two weeks before the Kermit, West Virginia, store here
involved was opened in later 1977, Jack Brooks, president
of the Union, requested recognition as representative of the
Kermit store employees based on Art. 2 of the Danville-
Point Pleasant Contract, as referred to below. Recognition
was refused. The Union thereafter began an organizational
drive among the Kermit employees in early January 1978.
Union-employee meetings were held and authorization
cards were distributed. On February 23, 1978, the Union
requested recognition based on Art. 2 of the Danville-Point
Pleasant contract and a claim of majority status among em-
ployees of the Kermit store, with an offer to submit autho-
rization cards for third-party authentication. On March 4,
1978, the Respondent refused recognition. It suggested that
the Union file a petition with the Board for an election. The
Union did not file, and the employees picketed the Kermit
store from March 10 until March 21, 1978. The Respondent
filed an RM petition which was thereafter dismissed be-
cause of the issuance of the complaint herein. The com-
plaint alleges that the Respondent committed violations of
Section 8(a)(1) and (3) during the organization period, and
violated Section 8(a)(5) by refusing to bargain on and after
March 4, 1978.
B. 8(a)(l) Violations
The complaint alleges and the answer denies that Harold
White, manager of the Kermit store and admitted supervi-
sor, violated Section 8(a)(1) in January, February, and
March, 1978 by interrogating employees, threatening them.
creating the impression of surveillance, and polling employ-
ees regarding their sentiments on an impending strike.
I. Facts
The following testimony was presented in support of
these allegations:
1. Part-time cashier-checker Vickie Brewer testified that
in February and March Manager White asked her if the
union representative had been around to see her; and in
March White told her he knew that her stepson Clifford J.
Brewer had signed a card and that she had signed a card,
that the Union might help her stepson but it would not help
her at all, and that she would work part time for ever and a
day.
2. Helen Canterbury, a stock clerk and checker, testified
that in early January, White told her Union Representative
Jodie Ward had been in the store that day, asked if he had
been to her home and if employees were interested in sign-
ing cards, and said he thought he had the union represent-
ative buffaloed by telling him how tough the town of Ker-
mit was and that it was a tough town in which to organize
a union. Every day or two, Canterbury continued, White
asked her whether she had signed a card yet and whether
the union man had been to her house. At one point, Canter-
bury said, White told her he knew employee Alice Mounts
had signed a card, and in February White said, "Alice
Mounts had the union on her god damned brain."
3. Anthony Sartin, stock clerk and carryout, testified
White asked him in early February whether the union rep-
resentative had been to his house. In mid-February, White
asked if Sartin knew anybody who had signed a card; when
Sartin responded that Alice Mounts had signed and did not
care if he knew it, White said "she had just lost her job."
4. According to Alice Mounts, part-time cashier, she
went to see Manager White in late January or early Febru-
ary and asked him why her hours were cut and "about the
way he'd been treating me." White responded, "Well, did
you sign a union card?" When Mounts refused to answer,
White told her that by refusing to answer, "you've already
told me you signed a card." He then asked whether she had
talked to anyone else about the Union, and when she also
declined to answer that question, he said:
Well, I'm going to tell you one thing-I may not fire
you but if I ever hear of you talking to anyone else
about the union, or mentioning the union, I'll make it
so hard on you that you'll come to me and beg me to
let you quit.
5. Cashier and nonfood department clerk Dorothy May
testified that White called her into the office the day Union
Representative Ward first came into the store in early Janu-
ary and asked whether she had been present in the break
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KERMIT SUPER VALU0
room when Alice Mounts had a conversation with Ward.
and what Mounts had said. May responded that Mounts
had said the employees would be better off if they had a
union. White then told May, "Well, your ass is fired, sure as
the world," and asked again why Mounts felt they needed a
union, but May replied she could remember no more of the
conversation. In January and February, May continued,
White asked her every 2 or 3 days if she knew of anyone's
home Ward had been to and if she knew of anyone [who
had signed a union card, "and he would go down the work]
schedule and tell me the names of people he thought would
sign a union card, and the names of people he thought
wouldn't sign a union card." Beginning a week later, after
May signed an authorization card on February 20, 1978.
White asked her on several occasions whether Ward had
been to her house and whether she had signed a card. In
March, White asked whether she was going to the union
meeting the next day. About this same time, before the
union meeting of March 9, White told May she could not
afford to strike and suggested she propose a re-vote on
whether or not the employees would strike.
6. Cashier Bonnie Stacy testified that in mid-Januar.
White asked her if Ward had ever been to her house, and if
she had signed a union card. On about February 25, 1978,
Stacy encountered White in the store office and informed
him she had heard from an employee that he had found out
she signed a card. White responded, "Well, did you sign
that card-did you sign the union card?" Stacy told him
she had not, and complained about the reduction in her
working hours, as discussed below. On March 5, Stacy ob-
tained another meeting with White and complained again
that her hours had been cut. He responded "that he had
found out I had signed a union card." There followed an
argument between them about unionization, White attack-
ing and Stacy defending. White then told her he had heard
talk about a strike, and he pointed to names on the work
schedule, indicating the employees he thought would strike
and those he thought would not strike. He asked if Stacy
wanted to strike, and she responded she did not, but would
strike "if that was the only way we could get something
accomplished." White then offered Stacy the use of the
break room if she would set up a meeting with the store
employees and have a secret-ballot vote on whether to
strike or not. White then pointed to the names of three
employees and said:
You take these three boys, for instance, Dale [sic] Mur-
phy, John Moore, and Tony Sartin . . . I've loaned
them money to finance their cars and their trucks
what do they do-they go against me and sign a union
card . . . I ought to fire every damn one of them.
Stacy asked White whether the cashiers would ever get full-
time work, and White replied:
[W]e had all turned against him, and as long as he was
manager at that store, there would be no cashier ever
to be put on full time. He said he would go into the
street and hire girls before he would put one of us on
full time.
7. Employee Daly Murphy, a grocery and dairy depart-
ment clerk, testified that in early January, after Ward came
into the store for the first time, White told Murphy to let
him know of any union activity in the store. The last of
January or the first of February, White took him and two
other employees to lunch and asked them if they knew who
had signed union cards; he asked Murphy if he had signed
a card. if he knew who had signed. and if he could find out
who had. Less than a week later White asked these employ-
ees again who had signed umon cards. Also around the first
of February, Murphy continued, White named the people
on the work schedule who had signed union cards, includ-
ing Tony Sartin, Alice Mounts, and Dorothy May. About a
week before the strike, White told Murphy:
[P]eople who signed a union card was going to go
down the tubes, either directly or indirectly . . . they
had petitioned for an election and there was no way we
could win: and the people who voted for the union
were going down the tubes. directly or indirectly.
2. Conclusions
Based on the favorable demeanor of the witnesses named
above. their apparent sincerity, and the failure to impeach
their accounts of these incidents, I credit this testimony.
Moreover, the testimony is undisputed, as the Respondent,
without explanation, failed to call Manager Harold White
to the stand, thereby justifying the inference that if called
he would not have contradicted it.'
The Respondent contends that violations should never-
theless not be found because some of White's remarks were
prompted by employees' goading him, and White is no
longer employed at the Kermit store. There is no merit to
these contentions. Although Helen Canterbury said that
some of White's remarks to her were made when she
walked into his office and said to him. "Guess who was at
my house today-the union man was there," she did this
"to set him up a little bit" and "to keep suspicion down." In
these circumstances it seems clear that Canterbury was mo-
tivated by a desire to allay any suspicions White may have
harbored of her union advocacy and thereby avoid having
his hostility directed at her, which in the context of his total
behavior cannot be said to be unwarranted nor to justify
White's coercive remarks. Nor can it be inferred that
White's subsequent departure neutralized the impact of his
organization-period conduct on the employees. in the ab-
sence of any evidence that the employees were informed
that his departure was related in any way to the conduct
found above, or even, in fact, that it was.
Accordingly, I find that Manager Harold White coer-
cively interrogated employees by: (I) asking Brewer in
February and March if the union representative had been
around to see her; (2) asking Helen Canterbury in early
January if Union Representative Ward had been to her
home and if employees were interested in signing cards, and
asking her repeatedly whether the union man had been to
her house and whether she had signed a card: (3) asking
Anthony Sartin in early February whether the union repre-
sentative had been to his house, and asking Sartin in mid-
February if he knew anybody who had signed a card; (4)
asking Alice Mounts in late January or early' February
1Martin Luther King, Sr. Nursing Center, 231 NLRB 15. fn I (1977)
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether she had signed a card and whether she had talked
to anyone else about the Union; (5) asking Dorothy May in
early January if she had been present in the break room
when Mounts had a conversation with Union Representa-
tive Ward, what Mounts had said, and why Mounts felt
they needed a union; asking May every 2 or 3 days in Janu-
ary and February if she knew of anyone's home Ward had
been to and if she knew anyone who had signed a union
card; beginning in late February, asking May on several
occasions whether Ward had been to her house and
whether she had signed a card; and on March 8 asking May
whether she was going to the union meeting the next day:
(6) asking Bonnie Stacy in mid-January if Ward had ever
been to her house and if she signed a card, and asking her
again on February 25 whether she had signed a card; and
(7) in late January or early February asking Daly Murphy
and two other employees if they knew who had signed
Union cards and asking Murphy if he had signed a card, if
he knew anyone who had signed, and if he could find out
who did.
I conclude that the Respondent by the above conduct
violated Section 8(a)( ) of the Act.
I conclude that the Respondent also violated Section
8(a)(1) by the following threats uttered by Manager White:
(1) threatening Alice Mounts to "make it so hard on you
that you'll come to me and beg to let you quit" if he heard
her talking to anyone else about the Union or mentioning
the Union; (2) in early January threatening to fire Dorothy
May for union activity; (3) in early March telling Daly
Murphy that employees who signed cards or voted for the
Union "were going down the tubes," (4) threatening Vickie
Brewer in March that he knew she had signed a union card
but that would not help her at all, as she "would be part
time for ever and a day": (5) threatening Anthony Sartin in
mid-February that anybody who signed a union card would
lose his or her job; and (6) telling Bonnie Stacy on March
that he ought to fire Sartin, Murphy, and Moore because
they signed union cards, and saying that cashiers would not
be given full-time work because of their union activity.
I conclude that the Respondent violated Section 8(a)(l)
by White's campaign to create the impression that employ-
ees' union activities were under surveillance, by (a) telling
Brewer in March he knew she and her stepson had signed
union cards, (b) telling Canterbury he knew Alice Mounts
had signed a card, (c) telling Dorothy May which employ-
ees he thought would sign a card and which employees he
felt would not sign, (d) telling Bonnie Stacy on March 5 he
had found out she had signed a union card and who he
thought would strike and who would not, and (e) around
the first of February naming to Daly Murphy the people
who had signed cards.
I conclude that the Respondent violated Section 8(a)(1)
by White's solicitation of Daly Murphy to engage in sur-
veillance in early January by telling Murphy to let him
know of any union activity in the store, and in late January
or February by asking Murphy if he could find out who had
signed cards.'
21 agree with the Respondent that no evidence was adduced to support
the allegations that the Respondent threatened an employee with physical
abuse and conducted a poll to determine employee strike sentiments. I there-
fore conclude that these allegations should be dismissed.
C. 8(a)(3) Violations
The complaint alleges and the answer denies that the
Respondent reduced Alice Mounts' working hours and as-
signed her more onerous working conditions, reduced the
working hours of Bonnie Stacy and Dorothy May, and re-
quired Anthony Sartin to repay an installment loan in full
because of the activities of these employees on behalf of the
Union.
I. Reduced working hours
Alice Mounts, a part-time cashier, was the first employee
to sign a union authorization card, on January 4, 1978; she
was one of the three most active union adherents. As found
above, Manager White was well aware of Mounts' union
advocacy from the beginning of the organization drive,
threatened to fire her for it, told an employee she "had
union or her god damn brain," and in early February
named her as an employee who had signed a union card.
According to Mounts, her working hours were cut from
24-30 to 15 and less in mid- or late January, although she
conceded she had upon occasion worked longer hours when
other employees could not get to work through the snow or
were off sick. Helen Canterbury and Dorothy May also
testified that Mounts' hours were cut, and Canterbury
added that she worked longer hours only because she lived
on the highway and could get to work through the snow.
The record shows that Mounts' hours had not been ap-
preciably cut as of February 4, 1978, inasmuch as she was
paid for an average of 20.30 hours a week during the first 5
weeks of 1978, and had been paid for an average of 21
hours during the last 9 weeks of 1977. The record also es-
tablishes that I employees, 8 of whom were not known to
management as pro-Union, as far as the record shows,
worked fewer hours than Mounts during the first 9 weeks of
1978, and that Mounts worked a total of only 6-1/2 fewer
hours during that period than she worked during the last 9
weeks of 1977. During the 5 weeks following February 4,
1978, Mounts averaged 19.40 hours a week, which approxi-
mated her earlier 1978 average. The General Counsel and
the Charging Party Union apparently base their contention
of discrimination on Mounts' having allegedly been sched-
uled for fewer hours after the Respondent learned of her
union activity, even though she actually worked practically
as mush as before. The schedules were not, however, pro-
duced. In the absence of such documentary evidence, I can-
not find discrimination against Mounts even though anti-
Union motivation is evident. In my opinion, these employ-
ees, knowing White's hostility toward the union advocates
and his awareness that Mounts was one of them, probably
feared a cut in her hours and may even have had the im-
pression that they were cut. I find, however, that the evi-
dence fails to establish that her hours were in fact reduced,
and I conclude that this allegation must be dismissed.
Dorothy May, a full-time clerk and cashier, signed a
union authorization card on February 20, 1978. I have
found above that White subjected her to coercive interroga-
tion repeatedly from the day in early January when Ward
first entered the store, that he threatened to fire her in early
January, and that around the first of February he named
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KERMIT SUPER VALU
her to Daly Murphy as one suspected of signing a union
card.
May testified that her hours were cut during the period
from February 10 until April 1 from 40 to 32 hours a week
with no explanation, although admittedly other employees'
hours were also reduced. May also conceded her hours had
been reduced to 32-33 a week in December 1977 because,
White told her, business was bad because of the coal strike.
The record shows that May worked an average of 41
hours a week during November, and that her average
dropped to 35.40 in December 1977. During the first 6
weeks of 1978, she dropped further for an average of 34.33
hours a week. During the 7-week period of which she com-
plains-approximately February 10 to April 1, 1978-her
overall weekly hours averaged only 22.21 However, she was
on strike for one entire week. Also, she did no work during
the week after that, although there is no explanation for her
absence; it is not contended that the Respondent refused to
reinstate her. For the 5 weeks she actually worked, she av-
eraged 31.10 hours a week, only about 3 fewer hours than
she averaged before. Moreover, as many employees worked
fewer hours as worked more hours than she during the pe-
riod, an equal number in each group known to manage-
ment as favoring the Union.
In these circumstances, I find here too although anti-
Union motivation is shown, the preponderance of the credi-
bkle evidence fails to establish that May's hours were re-
duced for discriminatory reasons, and I recommend that
this allegation be dismissed.
Bonnie Stacy was a part-time cashier. She signed a union
authorization card on February 18, 1978, She testified with-
out dispute that at her job interview in November 1977
with Manager White and Vice President Jim Fiala, White
told her there was no need for a union but the union men
had already said they would organize the store, and "if I
seen a union man walk into the store, to get to him as quick
as possible," and she said she would, but did not. As I have
found above, beginning in mid-January, White coercively
interrogated Stacy and threatened her with refusal of full-
time employment and the discharge of pro-Union employ-
ees.
Stacy claimed her hours were reduced from 21 and 16 on
March 2, after the first union meeting. In her conversation
with White on March 5, referred to above, Stacy asked him
what he had against her and he responded he had nothing
against her but somebody had to suffer; she asked why he
had cut her hours and "he said that he had found out I had
signed a union card"; White then argued against the Union,
gave Stacy the impression employees' union activities were
under surveillance, and suggested she obtain a new vote on
striking, and threatened discharge and no full-time work for
employees engaged in pro-union activity. Stacy testified she
worked the day the strike ended, but then was no allowed
to work for I to 3 weeks-she was not certain how long-
but since then she has worked regularly. Stacy also ac-
knowledged that her hours were previously cut from 21 to
16, and when she brought this to White's attention on Feb-
ruary 25, he said he did not know about it; she conceded
that when she showed him the work schedule indicating
that employees with less seniority were getting more work,
White told her it was a misunderstanding and that her
hours would be raised; and that her scheduled hours were
immediately increased to 21.
In December 1977, Stacy worked an average of 23.18
hours a week. From January 7 to February 25, 1978. she
averaged only 13.09 hours a week, a situation which White
explained was a mistake. The following week, ending
March 4, she was paid for 27.25 hours. According to her,
another cut in her hours was announced March 2, and she
complained on March 5 and was told her hours were cut
because White found out she signed a card. The records
bear this out, and she was paid for only 12.50 hours the
following week, ending March II11. After the strike, which
ended March 21, Stacy worked only I day during that
week-8 hours on the 21st. She did not appear on the pay-
roll during the entire week ending April 1. After that she
worked a total of 21 hours in 3 days during the week ending
April 8.
I find, based on Manager White's statement to Stacy on
March 5 that her scheduled hours were reduced because he
found out she signed a union authorization card and on his
threat of discharge and refusal of full-time work to employ-
ees engaged in pro-Union activity, as Stacy credibly testi-
fied, with the substantial support of the Respondent's pay-
roll records and the other unfair labor practices found, that
the Respondent reduced Stacy's scheduled working hours
during the weeks ending March 11, 1978, March 25, 1978,
and April 1, 1978, because of her union activities and sup-
port. I conclude that the Respondent thereby discriminated
against Stacy in violation of Section 8(aX3) and (1) of the
Act.
2. Onerous work assignment
Alice Mounts testified that when the Kermit store first
opened, the employees took turns cleaning the restrooms,
but after her conversation with Manager White in late
January or early February, described above, just about ev-
ery day she worked and the restroom needed cleaning he
ordered her to clean it. Although there would be two other
employees at the. registers, Grethel Marcum and Imogene
Howell, Mounts was the one to whom White gave the
cleaning when they were not busy, she said. Marcum testi-
fied she cleaned the restroom on more than one occasion at
White's request, and Mounts also sometimes cleaned it.
James Davidson testified that he and other employees as
well, including Mounts, were called upon to clean the rest-
rooms. "Most of the time," he said, "poeple just took it on
their own, whenever they had spare time to do it, because it
had to be done anyway." He knew of no employees who
was assigned on a regular basis to do the cleaning. I find
Mounts less persuasive that Marcum and Davidson, who
appeared to be disinterested witnesses. I therefore find that
a preponderance of the credible testimony fails to establish
that Mounts was assigned more onerous work assignments
for discriminatory reasons, and conclude that this allega-
tion should be dismissed.
3. Repayment of loan
Anthony Sartin signed a union authorization card Febru-
ary 22, 1978. 1 have found above that Manager White coer-
cively interrogated Sartin in early February and in mid-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February and threatened Sartin with firing anyone who
signed a card. I have also found that White named Sartin as
an employee suspected of signing a union card in his con-
versation with Daly Murphy in early February.
The record shows that Manager White lent Sartin $300
of company money in January of 1978 to make a down
payment on a truck, and that Sartin agreed to pay off the
loan at the rate of $20 a week. Sartin testified that he made
the payments as agreed; but during March, when he was on
the picket line, he asked White for his paycheck, but White
told him, without further explanation, "he was not going to
give me my check because I had to pay the loan back in
full." Sartin testified he offered cash on the loan, but White
said he did not want cash, he was going to keep Sartin's
check. Sartin was required to sign over his paycheck.
I have found above that White told Bonnie Stacy he had
lent Sartin and other employees "money to finance their
cars and their trucks-what do they do-they go against
me and sign a union card... I ought to fire every damn one
of them." Union Representative Ward credibly testified
without dispute that he asked Manager White to allow Sar-
tin to receive his check, and White replied, "I loaned that
little son-of-a-bitch money out of my pocket, and he turned
against me."
Vice President Fiala testified he discovered during an au-
dit of the Kermit store that several loans (apparently the
one to Sartin and two other small loans of $10 or $15) had
been made to employees out of company funds, as a result
of which he directed Manager White to collect the loans,
because lending money to employees was against company
policy.
I do not credit Fiala's testimony attributing White's con-
duct in this instance to nondiscriminatory factors, in view
of the undisputed testimony about White's expressed frus-
tration over Sartin's signing a union card after White had
made the loan to him and his threat t fire him for it, and
White's admission that this was the reason he called the
loan. Accordingly, I conclude that the Respondent required
Anthony Sartin to repay an installment loan in full because
of his activities on behalf of the Union, and that this con-
duct violated Section 8(aX3) and (1) of the Act.3
D. Violation of Section 8(a)(5)
The General Counsel contends that in view of the unfair
labor practices committed, the Respondent's refusal on
March 4, 1978, to recognize and bargain with the Union as
the exclusive representative of an appropriate unit of Ker-
mit store employees, in response to the Union's demand of
February 23, 1978, was a violation of Section 8(a)(5). Re-
spondent contends that the Union did not represent an un-
coerced majority, that the unit is inappropriate, and that a
bargaining order is not justified.'
The General Counsel introduced no evidence that Sartin was repri-
manded because of his union activity, and I conclude that this allegation
should be dismissed.
'The General Counsel and the Charging Party Union contend that the
Respondent's refusal of the Union's February 23, 1978, demand also consti-
tuted a violation of Sec. 8(aXS) based on art. 2 of the current collective-
bargaining agreement between the parties covering the Respondent's Dan-
ville and Point Pleasant stores, which they assert is an "after-acquired"
The complaint alleges the appropriate unit to be:
All employees employed at the Respondent's Kermit,
West Virginia facility; excluding the store manager
and assistant store managers and guards and supervi-
sors as defined in the Act.
This unit conforms with the units for which Respondent
recognizes the Union at the Danville and Point Pleasant
stores, where the Respondent is engaged in the same type of
operation as at the Kermit store. Moreover, a storewide
unit is presumptively appropriate, and the Respondent has
not suggested a different unit nor presented any evidence
against the unit alleged in the complaint. I therefore find it
is appropriate.5
Respondent challenges the Union's majority status on the
ground that an alleged supervisor, Carmen Chafin, assisted
Union Representative Jody Ward in organizing the em-
ployees; and that Ward told the employees that the Kermit
store was going union, that the Danville-Point Pleasant
contract contained a union-shop clause, and that they had
better sign if they wanted to save their jobs. 6
The evidence on the issue of the supervisory status of
Carmen Chafin consists of testimony by three employees.
Chafin did not testify. Cashier Bonnie Stacy testified that
Chafin was head cashier, and "took charge when Mr. White
wasn't there. And she would, you know, watch over it."
The only time Stacy was ever told Chafin was a supervisor,
however, was in May after White left, when John Hawkins
took his place as manager and Chafin was made assistant
manager.
Dorothy May testified she looked on Chafin as a supervi-
sor only when White was not present and Chafin was left in
charge. "I knew she would go to Harold [White] if you
didn't do what you were told to do."
Anthony Sartin testified that there were occasions when
White was not present that Chafin was "more or less" in
charge of the front part of the store. Once, in February or
March, Sartin said, after Chafin complained about him,
white threatened to fire Sartin, and told him that "if Car-
men was up front and asked you to help out, go ahead and
help her . . . to take orders from Carmen when he was not
around."
This evidence is too sketchy to establish that Chafin en-
joyed supervisory status. Thus, it fails to show that Chafin
possessed authority to discipline or effectively recommend
discipline of employees and it fails to show responsible di-
rection requiring the use of independent judgment. No
other criterion of supervisory authority is suggested. I there-
clause within the scope of the Board's decision in Houston Division of the
Kroger Co., 219 NLRB 388 (1975). The Respondent denies this contention.
In view of my decision herein, I find it unnecessary to resolve this issue, as to
do so would not affect the outcome of the case or the remedy recommended.
In these circumstances, a Motion to Supplement the Record, with a copy of
Arbitrator's Opinion and Award attached, submitted by the Respondent
after the hearing, and counsel for the General Counsel's response thereto,
have been placed in the rejected exhibit file.
The Grand Union Company, 176 NLRB 230 (1969); Haag Drug Company,
Incorporated 169 NLRB 877 (1968): Big Y Supermarkets, 161 NLRB 1263
(1966).
6 The Respondent also challenges the majority on the ground that some of
the card signers "could be casual part-time employees." Although the Re-
spondent was in possession of such evidence if there be any, none was offered
to this effect.
1082
KERMIT SUPER VALU
fore find that Carmen Chafin was not a supervisor during
material times.
With regard to Union Representative Ward's card-solici-
tation statements, Brenda Chafin testified, on direct exami-
nation, that before she signed a union authorization card,
Ward "said the store would go union, and the ones that
didn't sign the card wouldn't be able to work there." On
cross-examination, Chafin said that Ward showed her the
Union's contract with either A&P or Kroger's, which con-
tained a union-shop clause, and explained that "under the
union-shop clause you had to belong to the union, if the
union got in . .. under this contract . .. those who didn't
belong to the union couldn't work there." Grethel Marcum
testified Ward showed her the Danville-Point Pleasant con-
tract and told her, among other things, "if the store went
union, and we did not sign a card, we wouldn't be em-
ployed there." On cross-examination, Marcum testified
Ward showed her the union-security clause as he made this
remark.
James Davidson testified that before he signed a card (in
the presence of his father, who is a member of the United
Mine Workers Union), Ward showed him the Danville-
Point Pleasant contract, mentioning the union-security
clause, and told him "after the union got in, employees
under the clause would have to join the union within 31
days," and his father agreed with that.
Union Representative Ward testified that one of the main
questions employees asked him had to do with union
shop-when the union gets in will everybody belong to the
union-and he explained the Danville-Point Pleasant con-
tract union-security clause to them and told them, "Yes, on
the 31st day they will join."
In my opinion none of these various of what Union Rep-
resentative Ward told employees was coercive, as the natu-
ral interpretation of all is that Ward was merely explaining
the consequences of unionization resulting in a collective-
bargaining agreement containing a union-security clause. I
find that Ward's statements did not invalidate any authori-
zation cards.'
Listed below are the names of the employees on the pay-
roll of the Kermit store on February 23, 1978, with the
dates on which they had signed cards authorizing the
Union to represent them in collective bargaining concern-
ing wages, hours, and working conditions:
Clifford J. Brewer-2-22-78
Vickie Brewer-2-19-78
Helen Canterbury-1-16-78
Stan Carr
Brenda Chafin-2-15-78
Carmen Chafin-2-22-78
Mensy Chau
Jimmy Davidson-2-22-78
Albert Gobel
Richard Gobel
Imogene Howell
Grethel Marcum-2-15-78
Margaret Marcum-2-15-78
Dorothy May-2-20-78
Carol Messer-2-09-78
'Heck's Inc., 172 NLRB 2231, 2237 (1968).
Edward Messer-2-13-78
Harold Messer-2-13 78
Alice Mounts--I 04-78
John Moore
Daly Murphy-2-22-78
Anthony Sartin-2-22-78
Elaine Sartin-2-21 78
Patricia Scott
Bonnie Stacy--2 18-78
Jim Stepp
Gary Webb
Arthur Whitt-2-15-78
Brenda Williamson-2-09-78
The Respondent challenges the cards of Brenda Chafin,
Grethel Marcum, and Brenda Williamson on various
grounds. I find it unnecessary to rule on the challenges,
because the Union possessed valid cards from 16 other em-
ployees (including the card of Carmen Chafin, whom I have
found not to be a supervisor at the time) in the appropriate
unit of 28, which constituted a clear majority8
In view of the numerous and substantial violations of
Section 8(a)(3) and (1) committed by the Respondent be-
fore and after February 23, 1978, the date of the Union's
letter demanding recognition as the majority representative
among the employees of the Kermit store, it is clear that the
Respondent's refusal of the Union's demand on March 4,
1978, was intended to and can reasonably be said to have
had the effect of undermining the Union's majority status
and preventing the holding of a fair election. Accordingly, I
conclude that the Respondent violated Section 8(a(K5) and
(1) by refusing to recognize and bargain with the Union on
and after March 4, 1978.9
IV. REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(aX)(), (3). and (5) of
the Act, I recommend that it be ordered to cease and desist
therefrom, and, in view of the nature and extent thereof,
from infringing in any other manner on its employees' exer-
cise of their rights under Section 7 of the Act. I also recom-
mend that the Respondent be ordered to take certain affir-
mative action necessary to effectuate the policies of the Act.
As I have found that the Respondent reduced the sched-
uled working hours of Bonnie Stacy during the weeks end-
ing March 11, March 25, and April 1, 1978, for discrimina-
tory reasons, I recommend that Respondent be ordered to
make Stacy whole for the loss of earnings she suffered by
reason of the discrimination against her, plus interest.'
I Although another employee, John Russell, may also have been on the
payroll, he would not have affected the Union's majority status. No determi-
nation has been made with respect to unit placement of office employees.
There was no stipulation as to them, and the matter was not litigated. There
apparently were no office employees on the payroll on February 23, 1978.
9 Seven-Up Bottling Company of San Francisco, 235 NLRB 297 (1978);
Monroe Auto Equipment Company, 230 NLRB 742 (1977); Trading Port, Inc.,
219 NLRB 298 (1975).
'° No precedent exists for awarding 9-percent interest on the backpay due
as requested by the General Counsel, and therefore, in accord with Board
law, which I am required to follow, I recommend that interest be computed
as prescribed by the Board in Florida Steel Corporation, 231 NLRB 651
(1977). and Isis Plumbing Heating Co, 138 NLRB 716 (1962).
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that a bargaining order is not
justified because Manager White's coercive remarks, if
made, occurred sporadically at isolated moments over a pe-
riod of more than 2 months, most of them before the Union
claimed to represent a majority of the employees; the al-
leged discriminatees are still employed; there has been a
large turnover in the employee complement; and Carmen
Chafin, a Union supporter, has been promoted to assistant
manager. I do not, however, consider the unfair labor prac-
tices sporadic or isolated. On the contrary, the number of
violations and their coercive, threatening and discrimina-
tory nature, renders it most likely that their impact was and
is widespread and enduring, particularly in a small rural
community of the kind where these people work and live,
with the natural consequence of dissipating the support
once achieved by the Union, despite subsequent changes in
management and employee personnel of the store and the
other factors that Respondent relies on. In these circum-
stances, the Board's traditional remedies for violations of
Section 8(a)(l) and (3) would not likely result in a truer
measure of uncoerced employee choice than the valid au-
thorization cards executed on or before February 23, 1978.
I therefore find that the Respondent has undermined the
Union's majority and made the holding of a fair election
improbable, and recommend that the Respondent be or-
dered to bargain on request."
Upon the foregoing findings of fact and conclusions of
law, upon the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER"
The Respondent, Massey Stores, Incorporated, d/b/a
Kermit Super Valu, Kermit, West Virginia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Reducing the scheduled working hours of employees,
calling their loans, or otherwise discriminating against
them, to discourage membership in Food Store Employees
Union, Local 347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other
union.
(b) Coercively interrogating employees about their union
activities or the union activities of other employees.
(c) Threatening to discharge employees, to force them to
quit, or to keep them on part time and refuse to schedule
them for full-time work because of their union activities.
(d) Creating the impression that employees' union activi-
ties are under surveillance, or soliciting employees to en-
gage in surveillance of other employees' union activities.
N.LR&. v. Giel Packing Co., Inc., 395 U.S. 575 (1969). Sturgis.-New-
pen usinss Fonu, Inc. a Division of Litton Business Systems, Inc., a Subsid-
iof Litton Istries, Inc., 227 NLRB 1426 (1977), White Pine, Inc., 213
NLRB 66 (1974), 71The May Dqartent Stores Company d/ba The M.
O'Neil Company, 211 NLRB 150 (1974), and other cases cited by the Re-
spondent in which a bargaining order was held not justified, have been stud-
ied but found not comparable to this cae.
1 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
findinga conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(e) Refusing to bargain collectively concerning rates of
pay, hours, wages, and other terms and conditions of em-
ployment with Food Store Employees Union, Local 347,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive representative
of its employees in the following appropriate unit:
All employees employed at the Respondent's Kermit,
West Virginia facility; excluding the store manager
and assistant store managers and guards and supervi-
sors as defined in the Act.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by
Section 7 of the National Labor Relations Act, as amended.
2. Take the following action designed to effectuate the
policies of the Act:
(a) Make Bonnie Stacy whole for the loss of earnings she
suffered by reason of the discriminatory reduction in her
scheduled hours, with interest, as set forth in the Remedy
section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Upon request, bargain collectively with the above-
named Union as the representative of its employees in the
above-described appropriate unit, and if an agreement is
reached, execute a written contract incorporating the terms
of the agreement.
(d) Post at its Kermit, West Virginia, store copies of the
attached notice marked "Appendix."' Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by the Respondent, shall be
posted by it immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps it is
taking to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges unfair labor practices not specifically found herein,
be dismissed.
3 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT reduce the scheduled working hours of
employees, call their loans, or otherwise discriminate
1084
KERMIT SUPER VALU
against them to discourage membership in Food Store
Employees Union, Local 347, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, or any other union.
WE WILL NOT coercively interrogate employees
about their union activities or the union activities of
other employees.
WE WILL NOT threaten to discharge employees, force
them to quit, or to keep them on part time and refuse
to schedule them for full-time work because of their
union activities.
WE WILL NOT create the impression that employees'
union activities are under surveillance, or solicit em-
ployees to engage in surveillance of other employees'
union activities.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with the above-named
Union, as the exclusive representative of our employ-
ees in the following appropriate unit:
All employees at our Kermit. West Virginia facility:
excluding the store manager and assistant store
managers and guards and supervisors as defined by
the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL make Bonnie Stacy whole for the loss of
earnings she suffered by reason of the discriminatory
reduction in her scheduled working hours, with inter-
est.
WE WILL, upon request, bargain collectively with
Food Store Employees Union. Local 347, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO as a representative of our employ-
ees in the above-described appropriate unit, and if an
agreement is reached, we will execute a written con-
tract incorporating the terms thereof.
MASSEY STORES. IN(CORPORATED D/B/A KERMIT
SUPER VALL
1085