Mace Food Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1967

167 N.L.R.B. 441 (N.L.R.B. 1967)

MACE FOOD STORES, INC. 441
Mace Food Stores, Inc. and Retail , Wholesale and
Department Store Union , AFL-CIO and its Local
357 and Consolidated Employees Union. Case
25-CA-2557
September 18, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 7, 1967, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled
proceeding , finding that the Respondent had not en-
gaged in the unfair labor practices 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 filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respon-
dent filed cross-exceptions, and a brief in support of
cross-exceptions and in answer to General Coun-
sel's exceptions.
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
powers in connection with this case to a three-
member panel.
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, the exceptions, cross-
exceptions, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
8(a)(1) of the Act, has since January 5, 1966, engaged in
surveillance and/or has given the impression of surveil-
lance of the activities of Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, and its Local 357, herein
called the Charging Party or the Union; and has
threatened employees with discharge or other reprisals if
they became or remained members of the Union or gave
assistance or support to it, (2) in violation of Section
8(a)(2), has since January 5, 1966, rendered unlawful aid,
assistance, and support to Consolidated Employees
Union, herein called the party to,the contract and party of
interest or the CEU; and (3) in violation of Section
8(a)(3), has discharged employees Paul W. Stant and
Dorothy Carol Pennington on or about July 2, 1966, and
July 27, 1966, respectively, and has failed and refused
thereafter to reinstate them because of their activities in
behalf of the Union and because they engaged in other
concerted activities for purposes of collective bargaining
or mutual aid or protection. Respondent's answer denies
that it has committed any of the unfair labor practices al-
leged in the complaint, as amended
Upon the entire record,' including my observation of
the witnesses, and after due consideration of the briefs of
the General Counsel and Respondent, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges, and Respondent
admits, that Respondent is an Indiana corporation en-
gaged in the sale at retail of groceries, meat products, and
related products at its facilities located at Anderson,
Edgewood, Kokomo, Pendleton, Shelbyville, and
Franklin, Indiana; that, during the past year, it sold and
distributed products valued in excess of $500,000; and
that, during the same period, it received goods valued in
excess of $5,000 directly from outside Indiana.
I find, upon the foregoing, as Respondent further ad-
mits, that Respondent is engaged in commerce within the
meaning of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint herein be , and it hereby is,
dismissed.
' The General Counsel contends that the Trial Examiner improperly
admitted into evidence the pretrial affidavit of one of the General Coun-
sel's witnesses As the Trial Examiner did not base any findings on this af-
fidavit, we find that its admission was not prejudicial , and therefore find it
unnecessary to rule upon its admissibility
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H . KUSKIN , Trial Examiner : This case was
heard at Anderson , Indiana, on January 31 and February
1, 1967. The complaint herein issued on November 30,
1966; it was thereafter amended on December 7, 1966.
The questions presented are whether Mace Food Stores,
Inc., herein called Respondent , ( 1) in violation of Section
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits also , and I find , that Consolidated
Employees Union , as well as Retail , Wholesale and De-
partment Store Union , AFL-CIO, and its Local 357, are
each labor organizations within the meaning of Section
2(5) of the Act
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts
The business known as Mace Food Stores has been in
existence since 1879 and was incorporated in 1948.
Robert J. Mace has been its president since its incorpora-
tion and is the majority stockholder. His son, Robert R.
Mace, is secretary-treasurer of Respondent and has held
that office for a long time. During times material herein
and until about 3 weeks before the instant hearing,
Respondent operated eight stores, all of which are located
' As corrected by my order correcting transcript dated May 19, 1967,
and as further corrected in accordance with Respondent ' s unopposed mo-
tion to correct transcript
167 NLRB No. 60
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Indiana More particularly, in the city of Anderson
there are stores at the Eastgate shopping center, at 28th
Street and Columbus Avenue, and at 8th Street and
Madison Avenue; and there is one at the boundaryline of
Anderson, known as Edgewood or 1315 Park Road 2 It
is at these four stores that unfair labor practices are al-
leged to have occurred. The remaining four stores are
located in Pendleton, Kokomo, Shelbyville, and Franklin,
Indiana, respectively. A ninth store was opened by
Respondent at Connersville, Indiana, just before the
hearing
Some time in January 1966, Robert R. Mace became
president of the Eavey Corporation, sometimes called
Eavey herein, which operates similar retail stores in Indi-
ana and Ohio; he also owns a majority of its stock Until
about 3 weeks before the instant hearing, the Eavey Cor-
poration operated six stores in Indiana, as follows: One
in Fort Wayne, one in Muncie, one in Anderson, two in
Richmond, and one in Centerville. About that time, a
store was opened by Eavey in Hamilton, Ohio, using the
style name of Mace, and the Centerville store was closed
The two stores in Richmond are also known as the Kutter
stores. Eavey's operations in Richmond also encompass
a wholesale warehouse. Since Robert R. Mace acquired
the majority interest in the Eavey Corporation, Respond-
ent has been buying groceries and produce from the
Eavey Corporation's wholesale warehouse. Since about
June 1966, meat managers of Eavey and of Respondent
have met at about 2-week intervals in joint sessions at the
office of Respondent in Anderson, and they have met
jointly from time to time at an Eavey store for training
purposes, such as when a cutting test is being conducted.
Since the first part of October 1966, paychecks for the
employees of both corporations have been issued from
Respondent's Anderson office. In the case of Stant, an al-
leged discrimmatee, he was hired as the result of an inter-
view conducted at the Muncie store of the Eavey Cor-
poration by one Cleo B. Dixon, a general supervisor of
that Company. Dixon is based at the office of Respond-
ent in Anderson. According to Dixon, he hired Stant as
a meatcutter for the Munice store of Eavey and then
transferred him to Respondent's Eastgate store as a meat
manager trainee with the intention of placing him even-
tually at the store to be opened in Connersville by
Respondent .3 Another instance of interrelationship
between the Eavey Corporation and Respondent is the
following In testifying concerning two stores which were
being built in April 1966, one at Hamilton, Ohio, for
opening by Eavey, and one at Connersville, Indiana, for
opening by Respondent, Stafford did not differentiate
between these stores, saying, "we were in the process of
working on two stores ... the stores were being built."4
In this connection, it is noteworthy, as heretofore found,
that the Hamilton, Ohio, store was operating at the time
of the hearing, using the style name "Mace." Further, as
will appear in greater detail hereinafter, when the CEU,
which has been the contractual bargaining agent of
Eavey's employees for a number of years, entered into
2 These shall be referred to collectively as the Anderson stores and
separately as Eastgate, Columbus Avenue, Madison Avenue, and
Edgewood The Madison Avenue store is sometimes referred to in the
record as Tupman's
3 While Stant testified that he was hired at the Eastgate store as a meat
manager trainee by Meril Cotner , the meat manager at Eastgate , I find the
testimony of Dixon, as corroborated, in part, by Luther Stafford, the meat
supervisor of all Respondent 's stores, to be the more credible
" Stafford transferred to Respondent after 4-1/2 years as meat manager
contracts with Respondent for some of Respondent's
stores, it was Robert R. Mace, president of Eavey and
secretary-treasurer of Respondent, who signed the con-
tracts in the Eavey office in Richmond and sent them to
his father, Robert J Mace, in Anderson for his signature
as president of Respondent.',
B. Sequence of Events
Until about a year before the hearing, membership in
the CEU was confined to the employees at the Eavey
Corporation. The CEU enjoyed a contractual relation-
ship with Eavey, having one contract for the warehouse
and another for the six stores. According to Jack Genda,
president of the CEU and an employee of at least 15
years' standing with Eavey,6 the CEU entered upon its
organizational activity among Respondent's employees
in the latter part of February 1966. This activity followed
closely upon his learning from the newspaper about
Robert R. Mace's acquiring an interest in the Eavey Cor-
poration and upon his discussion with counsel for the
CEU herein as to the desirability of organizing the stores
of Mace. At that point, Genda had authorization cards for
the CEU printed. The CEU strategy was to organize
Mace's "outside stores first" and then its stores in Ander-
son, Indiana. Thus, Respondent's Pendleton, Indiana,
store was the first of the stores to be placed under con-
tract This occurred around March 20 or 25, 1966. Then
followed contracts covering Respondent's Franklin and
Shelbyville, Indiana, stores.' The CEU began to organize
among the employees at Respondent's Anderson, Indi-
ana, stores in the latter part of June 1966, starting with
the Columbus Avenue store. Genda, in connection with
his organizing in these stores, used an information sheet,
in evidence as General Counsel's Exhibit 8, which lists
benefits obtained by employees under the Pendleton,
Franklin and Shelbyville contracts. Genda lives in the
neighborhood of the Columbus Avenue store, is a friend
of the store manager, Elmer Van Matre, and is friendly
with Ethel Rankel, who works in the office or courtesy
booth of the store and, when needed, acts as cashier or
checker. There is conflicting testimony with respect to
who distributed the CEU authorization cards to the em-
ployees at the Columbus Avenue store and solicited their
signatures, various witnesses for the General Counsel at-
tributing this to Van Matre, while Van Matre denied
doing so. In this regard, Rankel, as well as Genda,
testified that Rankel was the one who did this by arrange-
ment with Genda However, it is undisputed that, at the
Edgewood store, Genda himself solicited signatures to
CEU cards from store employees, without asking for per-
mission to do so from the store manager, Carroll W. Kel-
ley. It is also clear the Genda himself was similarly active
at the Eastgate store where he knew Meril Cotner, the
meat manager. Genda made three or four trips to the
store for this purpose and conducted some of his or-
ganizational activity in the back of the meat department
with the permission of Cotner. He also held a meeting of
with Eavey
5 For purposes of differentiation between father and son, Robert J
Mace will also be referred to, at times , as President Mace
c For reasons of health, Genda is now a part-time employee
The Kokomo store was also in this group of stores which were to be
organized first, but Genda could not remember "where it came into the
picture " It does not appear that a contract was ever entered into for the
Kokomo store
MACE FOOD STORES. INC. 443
the employees of this store at a motel in Anderson where
signatures to CEU cards were again solicited The
specifics of these visits will be discussed in greater detail
hereinafter. Contracts were thereafter executed by
Respondent and the CEU for three of the four Anderson
stores; namely, the Madison Avenue store on June 23,
the Columbus Avenue store on June 24, and the
Edgewood store on June 27, 1966. All three contracts
were identical as to terms and provisions and effective
date. In fact, the Pendleton contract set a pattern as to
terms and provisions, which was followed in all contracts
signed thereafter for Respondent's stores.
On June 16, 5 days before the first CEU card was
signed by an employee at any of these four stores, the
Union initiated its organizational efforts by holding a
meeting of Respondent's employees at the UAW hall in
Anderson. At this meeting, four Mace employees ex-
ecuted authorization cards. Within the next 2 weeks, i.e ,
between June 16 and July 1, the Union obtained from
Respondent's employees 15 additional signed cards.
These 19 authorization cards were from employees at
Eastgate, Edgewood, and Columbus Avenue.
It is apparent, and I find, that Respondent learned of
the June 16 meeting soon thereafter. In this regard, I
credit the testimony of Jerry Burmeister, a meatwrapper
at the Eastgate store, who impressed me as a reliable wit-
ness, rather than Cotner, the meat manager. Burmeister
testified that she and fellow employee Carl Corzine had
a conversation with Cotner on the morning after the
meeting. It is clear that Burmeister initiated the conversa-
tion by asking Cotner whether he had heard about the
Union. According to Burmeister, Cotner said that he had
heard, the first thing that morning, from Charles Nowlin,
the meat manager at Pendleton, about the union meeting
of the night before, and that Nowlin also said he knew
that Cotner's help was there." Cotner admitted having a
conversation concerning the Union about this time with
Burmeister but insisted that he "didn't even know the
Union was there."" He further denied that he told Bur-
meister about having received a telephone call from
Nowlin about the meeting of the Union Significantly,
however, when questioned by counsel for Respondent,
on direct examination, concerning whether Nowlin had
made such a telephone call to him, he answered, "if he
did, I don't remember.""' I note, in this connection, that
Pamela Darling, the daughter of Charles Nowlin, testified
that, after she attended the meeting of the Union as one
of the employees at Eastgate, she told her father that
"they had a union meeting, that [she] went to the first
one," and that her father knew which union was involved.
And while Nowlin denied that his daughter ever told him
that she attended a meeting of the Union, I do not credit
him, particularly in view of his admission that he
discussed with his daughter her interest in unions at East-
gate and advised her as her father "not to have anything
to do with it." In view of these circumstances, the fact
that Pamela Darling impressed me as a credible witness,
and the inherent probabilities of the situation, I find that,
as a result of Nowlin's conversation with his daughter
about her interest in unions at Eastgate, Nowlin then
learned, consistently with his daughter's testimony, that
she had attended the first meeting of the Union on June
16. In all these circumstances, I am persuaded that
Cotner did not testify truthfully and that he did tell Bur-
meister, in the manner testified to by her, that he had
heard from Nowlin that morning concerning the meeting
of the Union the night before. Moreover, apart from the
foregoing conversation between Cotner and Burmeister,
it is clear from the record, and I find, that Respondent,
through Charles Nowlin, a supervisor, learned of the
Union's June 16 meeting, shortly after its occurrence
So far as appears, no contract has been entered into for
the Eastgate store by the CEU and Respondent. The
record evidence does, however, pose the issue of whether
Respondent, through Cotner, actively assisted Genda in
his quest for support among the Eastgate employees so
that here, too, a contract could be consumated between
the CEU and Respondent. These matters will be treated
in detail hereinafter.
By letter dated July 1, 1966, the Union advised
Respondent that a majority of the nonsupervisory em-
ployees at Respondent's four Anderson stores "have
selected [it] as the exclusive representative in the above-
mentioned stores, for the purpose of collective bargaining
in respect to rates of pay, wages, hours of work and other
conditions of employment," and that an appropriate peti-
tion seeking certification as bargaining agent has been
filed with the Board, it also suggested that no changes be
made in wages, hours, and working conditions during the
pendency of the petition. The record does not disclose
whether Respondent replied to this letter.
On Saturday, July 2, 1966, Paul Stant, who was then
working at the Edgewood store as a meat manager
trainee, in training for a job as a meat manager at a new
store to be opened at Connersville, Indiana, was
discharged by Luther G Stafford, the meat supervisor of
all stores of Respondent." Whether or not Stant was
discharged for discriminatory reasons, as alleged in the
complaint, as amended, or for cause, as contended by
Respondent, will also be discussed hereinafter.
Sometime after June 27, the date the three contracts
covering the Madison Avenue, Columbus Avenue, and
Edgewood stores went into effect, but before July 19 and
20, Respondent had printed about 200 checkoff
authorizations for the CEU,i' sufficient for its approxi-
mately 180 employees at its stores in Indiana; it also
prepared a comparable number of explanatory letters ad-
dressed "To all employees " In the letter, Respondent
pointed out that, by reason of the union-security clause in
its contracts with the CEU, employees are required as a
condition of employment to pay to the CEU initiation
fees and monthly dues of $1 per month, it set forth the
8 Although Burmeister testified , without objection , that, before this
conversation , Corzine had told her that Cotner had called him into the of-
fice that morning and had told him of having received a telephone call
from Nowlin about the meeting of the Union on June 16 , 1 place no
reliance on Burmeister 's testimony as to what Corzine told her of his con-
versation with Cotner because of its hearsay character. Corzine did not
testify
" According to Cotner , he told Burmeister , that was up to the em-
ployees [he ] had nothing to do with it "
" Cotner's testimony in this regard was as follows
Q Did you ever have any conversation with Charles Nowlin
about union activity at the Eastgate store?
A No sir, not at the Eastgate store
Q Did he ever telephone you and tell you anything about any
union meeting)
A If he did , I don't remember.
" The Connersville store was opened shortly before the instant hear-
ing
2 President Mace explained that there are "20 to 25 employees to a
store "
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time limits in the union-security clause for employee com-
pliance therewith; and it indicated that employees may
either pay dues individually each month to the CEU or
arrange, by executing and returning to their store
manager promptly the enclosed checkoff authorization
card, to have Respondent make monthly deductions from
the last paycheck of the month of the amount due and for-
ward same to the CEU. Robert J. Mace, president of
Respondent, thereupon caused the letters and checkoff
authorization cards to be distributed on or about July 19
or 20 through a Mr. Ford, who is a supervisor in charge
of overall store procedures. According to Mace, he gave
Ford "the forms and he [Ford] would take each one to
the manager and have the manager then have the em-
ployees that were in the union to sign. They could either
sign that or they had to pay, I think, the CEU, I believe it
was." Respondent, as a result of this activity, got back
from its store managers five signed checkoff authoriza-
tion cards from its four stores in Anderson. Mace ex-
plained the small number of signed authorizations, as fol-
lows- "That was the time that we were charged with un-
fair labor practices, and I called [counsel] for Respond-
ent] and [the latter] said that maybe we better not pay any
more out until this matter was cleared up. I called the
stores and told them not to sign any more, have any more
signed, and return them to the office." The signed cards
that the managers had and also the blank cards were
thereupon returned. 13
Despite the fact that no contract had been entered into
by Respondent with the CEU as to the Eastgate store,
Ford delivered checkoff authorization cards and explana-
tory letters on or about July 19 or 20 to that store also,
and distribution was made to employees by Don Han-
kins, the store manager. The distribution was canceled
later that day. Respondent argues that it was an uninten-
tional mistake. The General Counsel, on the other hand,
contends that this was illustrative of Respondent's zeal to
solicit dues-checkoffs for the CEU, and that it was only
after resistance was encountered that Respondent
"quickly drew in its horns," but by that time the damage
of assisting the CEU had already occurred. The details of
this distribution will be discussed hereinafter.
On July 27, Dorothy C. Pennington, who was working
at the Columbus Avenue store as a cashier or checkout
girl was discharged by Elmer Van Matre, the store
manager. As in the case of Stant, Respondent denies that
this discharge was for discriminatory reasons and claims
that it was tor cause. This matter will be treated more
fully hereinafter.
So far as the record discloses, the next and final
development involving the parties was the issuance of the
complaint on November 30, 1966, and the amendment
thereof on December 7, 1966.
C. The Specific Allegations of the Complaint and
Conclusions Thereon
1. The 8(a)(2)
The complaint , as amended , alleges in paragraphs 6 and
7 that Respondent has, since January 5 , 1966, rendered
unlawful aid, assistance , and support to the CEU in vari-
"The charge was filed herein on July 5, 1966, and, as already found,
the above distribution of checkoff authorizations occurred about July 19
or20
14 During cross -examination by Respondent 's counsel , Kinser placed
this incident either in the backroom or in the office
ous ways at its four stores in Anderson, Indiana. I shall
treat with the evidence relevant to these allegations in-
sofar as practicable on a store-by-store basis.
a. The Columbus Avenue store
The General Counsel contends, in this connection, that
Elmer Van Matre, the store manager, took an active part
in soliciting employees to sign CEU authorization cards
at this store On the other hand, Respondent urges, in ef-
fect, that Van Matre had nothing to do with such solicita-
tion among employees, that rather, one Ethel Rankel, a
rank-and-file employee, who works in Van Matre's office
and acts as cashier, at times, solicited CEU authorization
cards among employees, and further that the only cards
relating to the CEU that Van Matre distributed were dues
checkoff authorization cards and this occurred con-
siderably later, i.e., in July, after the contract between
Respondent and the CEU had been signed. The General
Counsel introduced testimony by employees Michael A.
Schrenker, Michael S. Kinser, Jay Williams, Jr., and
Dorothy C Pennington in support of his position.
Respondent relied in its defense on the testimony of Van
Matre, Rankel, and Genda, the latter being the CEU's
president and only organizer Aside from the diametri-
cally opposite versions of each side, there are also many
variations among the witnesses on each side. I shall set
them forth hereinafter.
Schrenker testified, on direct, that Van Matre called
him away from his work and into the office and handed
him an authorization card for the CEU, saying that,
"Mace's was trying to get this union for [the employees]
and it would help [the employees] a lot in increasing
wages." Whereupon, he signed the card and returned it to
Van Matre. Schrenker's card is dated June 21, 1966, and
was verified by him. According to Kinser's testimony, on
direct, Van Matre handed him a CEU authorization card
while he was working in the backroom,14 telling him that
the employees would get a raise effective immediately
and another 10-percent raise in October, and that he
signed the CEU card in Van Matre's presence. The date
on his card is June 22, 1966. And Jay Williams, Jr.,
testified, on direct, that "Van Matre just called us up to
the office and he asked us to sign it [referring to his
signed CEU authorization card].15 There wasn't no force
about it. Just sign it of our own free will." Williams
testified further that Van Matre gave the employees "two
more sheets of paper16 and that one of them was sup-
posed to be read over before we signed it," and that
thereafter he gave the card back to Ethel Rankel, "the of-
fice woman." Williams' authorization card bears the date
of June 23, 1966, which, according to him, was the actual
date on which he signed the card. And, finally, Penning-
ton testified, on direct, that Van Matre gave her a CEU
authorization card in the office in the presence of Ethel
Rankel, that Van Matre told her to sign it if she wanted
to, that he did not say what would happen to her if she did
not sign it, and that she signed it and gave it to Rankel.
The accuracy of the testimony of these witnesses was put
in serious question during cross-examination. Thus,
Schrenker testified that Kinser and Williams might have
been in the office when he signed the CEU authorization
15 As appears hereinafter , Williams meant they were called to the office
one at a time
16 Later , in his testimony , he identified these as a dues-checkoff
authorization card for the CEU and a statement from Respondent relating
thereto and to a relevant provision of the contract
MACE FOOD STORES, INC. 445
card, although he is not sure, but that he believed the
three of them signed the cards at the same time. Kinser
was not sure whether Van Matre gave him the CEU
authorization card in the office or in the backroom, but
testified that Schrenker and Williams were, in fact,
present and Van Matre talked to all three of them
together . Williams, on the other hand , testified that the
three of them were not together since they were called to
the office one at a time . Schrenker was clearly in error as
to all three of them signing at the same time , since they
each signed on different days, according to their cards, in
evidence , which they verified. Kinser 's testimony that the
three of them might have been together at the time is also
impugned by the difference in his version from that of
Schrenker as to what Van Matre said at the time of hand-
ing out the card. And while Williams testified , contrary to
them , that each one was called to the office separately, it
would appear that he was , in fact , referring to an incident
involving the distribution by Van Matre of dues-checkoff
authorization cards for the CEU. Thus, Williams in-
cluded among the items given to him by Van Matre at the
time in question a dues-checkoff authorization card for
the CEU and a statement from Respondent explaining
the contract requirement for the checkoff, etc. Since the
record clearly establishes that the dues-checkoff
authorizations for the CEU and Respondent 's explanato-
ry document were , in fact , distributed by Van Matre
about July 19 or 20, and since Williams signed his CEU
authorization card about a month before, I am persuaded,
and find , that Williams was in error about receiving a
CEU authorization card from Van Matre . Finally, in
respect to Pennington , while she referred , on direct ex-
amination , to receiving a CEU authorization card from
Van Matre, she admitted , on cross-examination , that her
prehearing affidavit to the General Counsel reflects what
she told a Board representative at the time , i.e., that the
first time she heard of the CEU was when Van Matre
came up to her and employee Carol Spears and handed
her a slip of paper and a card , the card being a dues-
deduction authorization for the CEU. Pennington's
testimony , on direct , thus lacks probative force.
In contradistinction to the foregoing , there is the fol-
lowing testimony by Van Matre , Rankel , and Genda. Van
Matre denied having given CEU authorization cards to
any of the employees who signed them , or asking them to
sign such cards , or having received such signed cards
from them , or ever having had blank CEU authorization
cards. He admitted receiving CEU dues-checkoff
authorizations in packets from Respondent , after the
CEU was "in," to pass out to the employees. He
identified , as being in the packet which each employee
received , the dues-checkoff authorization card for the
CEU, and three other cards ; namely , one for personnel
data, one for Blue Shield insurance data , and one
authorizing payroll deductions for insurance. He
identified Kinser and Williams as being among the em-
ployees who inquired from him, when he passed these
items out , what the dues -deduction authorization meant.
His testimony, in this respect , was not impugned during
cross -examination . The testimony of Rankel , on the other
hand , shows that her activity related to the CEU
authorization cards . According to her , Genda , whom she
has known for 25 years and who is her friend , approached
her on three different occasions about helping him pass
out such cards for the CEU. She refused the first two
times but agreed to do it the third time . Thereafter, she
passed out such cards to the employees , including
Schrenker , Kinser , Williams, Pennington , and Spears, and
they all signed , and further , after getting cards from all the
employees , she gave them to Genda .17 During cross-ex-
amination , Rankel conceded that certain employees did
not return signed cards to her . Furthermore , the reasons
which she gave for not giving them cards , in the first in-
stance , appear questionable . And while she testified that
the girls in the store signed first and then the boys, the
record discloses that Schrenker and Kinser signed before
the girls and that Williams signed on the same day as did
two girls . Genda's testimony confirmed Rankel's
testimony about their longtime friendship and his giving
her the CEU authorization cards to distribute at the
Columbus Avenue store . He testified further that, to his
knowledge , he gave such cards only to Rankel and got
cards back only from her. He acknowledged seeing Van
Matre in the store when he was talking to Rankel , but de-
nied having any conversation with him at any time about
the CEU or about cards . His testimony is at odds with
Rankel 's in that he indicated that when he approached
Rankel about distributing the CEU authorization cards
she agreed to do so. He made no mention of meeting re-
sistance on two occasions before he succeeded in getting
her cooperation the third time.
On this state of the record , including the variations in
the testimony of General Counsel 's witnesses Schrenker,
Kinser , and Williams on when and where they signed the
cards , who was present, what was said , and whether a
CEU authorization card or a dues deduction authoriza-
tion card was involved; and, in the case of Pennington,
her shifting position as to when she first heard about the
CEU and whether she received from Van Matre at the
time a CEU authorization card or a dues-deduction
authorization card , I am unable to attach probative
weight to their testimony linking Van Matre to the dis-
tribution of CEU authorization cards . And this is particu-
larly so in view of the somewhat more consistent
testimony , but still not without some contradictions, by
Respondent ' s witnesses , Van Matre , Rankel , and Genda,
that it was not Van Matre but Rankel who engaged in the
distribution of CEU authorization cards . 1, therefore,
conclude , and find , that the record does not preponderate
in favor of a finding that Van Matre assisted the CEU by
distributing CEU authorization cards to employees at the
Columbus Avenue store and/or by urging them to sign
these cards.
b. The Edgewood store
The complaint, as amended , alleges that at this store
Carroll W. Kelley, the store manager , permitted and/or
invited officers and/or representatives to enter and to
campaign or solicit for membership during working hours
while refusing the same opportunity to the Union, and
that Kelley further permitted and/or invited officers and
representatives of the CEU to conduct union business in
the store during working hours.
At the hearing, I granted Respondent ' s motion to
dismiss so much of this allegation as relates to disparate
treatment between the CEU and the Union at this store
and at Eastgate , there being no evidence that the Union
" The record shows that , in all instances , Genda came to see Rankel in
the store office
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had either requested or been refused permission to cam-
paign and/or solicit membership on store premises among
store employees . With respect to the remaining allega-
tions mentioned above , the record discloses the follow-
ing: Genda , who was called as a witness by the General
Counsel , testified that "at some point ," he went to the
Edgewood store . While in the store he saw that stockboys
had gone "through the door" into the stockroom and
"[he] just went back there" without checking with any-
one before he did so, introduced himself and talked to the
stockboys18 about joining the CEU, telling them that the
CEU was representing some of the Mace stores "on the
outside ." Genda testified further that " it took a lot of talk-
ing and [he] finally left them some cards and asked them
if they would get them signed ," and that he returned to
the store thereafter , making three visits in all. Genda
picket up some signed CEU authorization cards in the
store and on one occasion he met a stockboy at the drug-
store , which is located next door , and picked up some
signed cards . Genda denied ever meeting Kelley, the
store manager , ever talking to him , or ever asking him for
permission to enter the store ; he did not know whether
Kelley ever saw him in the store . The General Counsel
also called Charles R. Anderson , who was head stockboy
at the time of the above visits to the store by Genda, but
was assistant manager at the time of the hearing. While
Anderson testified that he and other stockboys were ap-
proached about the CEU by a person who told him what
his connection was with the CEU, he could not remember
what that connection was nor could he name the person.
However , in view of the fact that Anderson 's testimony
reveals that the organizing activity engaged in by this
unidentified person had some striking similarities to that
which Genda engaged in , according to the latter's
testimony, I am persuaded and I infer and find that this
unidentified person was , in fact, Genda. Thus, Anderson
testified that this person gave him CEU authorization
cards and then this person and he "went in the backroom
and he talked to the rest of the guys too." The man
showed them the cards and told them to think about it and
also showed them a "piece of paper" like General Coun-
sel's Exhibit 8, in evidence . The latter sets forth that the
CEU has been recognized as the sole bargaining agent for
the Pendleton , Shelbyville , and Franklin stores of Mace,
lists "some of the advantages ," among which are a 10-
percent wage increase immediately and another increase
on October 1, 1966, and sets forth the dues for full-time
and part-time employees . 19 This person said that "this
[the benefits ] would be about what [ they] would get."
Anderson testifed further that a week or two later, he saw
this man again , that the man asked him how many signed,
whereupon he gave him the cards ; and that he saw the
man in the store yet another time , about 2 months before
the hearing , and the man asked him about CEU dues and
he replied that they were not being deducted . 20 In respect
to this allegation , Respondent relies on the testimony of
Kelley, who denied that he knew Genda, or was even
aware of his presence in the store or of anyone soliciting
membership cards in any union while in the store.
I am unpersuaded by the denial of Kelley that he was
aware of Genda 's presence in the store . As Genda him-
self testified , and as corroborated by Anderson, Genda
did not confine his organizing activity to the store proper
but betook himself to the back of the store and there "did
a lot of talking" about the CEU. This area is apparently
not open to the public , yet Genda felt free to go there and
to carry on an extended discussion concerning the CEU.
Furthermore , he had no hesitancy about returning to the
store on one more occasion to transact the union busi-
ness of picking up signed authorization cards. It taxes
one's credulity to believe that Kelley, the store manager,
was oblivious of this unusual activity both in the area
from which the public is excluded and in the store proper.
Rather I infer , and find, on the basis of the entire
record , 21 that Kelley was aware of this activity by Genda
and acquiesced therein.
c. The Eastgate store
The complaint , as amended , alleges that , at this store,
as in the case of the Edgewood store , Respondent per-
mitted and/or invited officers and representatives of the
CEU to enter and to campaign or solicit for membership
during working hours while refusing the same opportunity
to the Union . As already indicated , at the instance of
Respondent , I dismissed so much of the allegation as re-
lates to disparate treatment between the CEU and the
Union at this store , leaving open for consideration
whether permission to organize on store premises was
granted to the CEU and, if so, whether such permission
contravened Section 8 (a)(2) of the Act. At the instance of
Respondent , I also dismissed a further allegation that
Respondent , through one Robert Ramsey at Eastgate,
urged and directed employees of Eastgate to attend
meetings of the CEU, inasmuch as no evidence was ad-
duced by the General Counsel that Ramsey was a super-
visor or agent of Respondent. There remains, however,
a still further allegation that Respondent , through its
agent and supervisor , Don Hankins, solicited employees
at this store to sign dues -checkoff authorizations for the
CEU, although the CEU at no time represented an un-
coerced majority and has never been duly designated as
bargaining agent by a majority of such store employees
and/or by a majority in any appropriate unit.
Genda testified that he was in the Eastgate store solicit-
ing employees to sign CEU authorization cards about
three or four times.22 The first time , he approached Carl
Corzine , a meatcutter , whom he knew , in the back of the
store during working time . During this conversation,
Meril Cotner , who was Respondent's meat buyer and
meat manager , "work [ ing] out of Eastgate mostly,"23
was present . Cotner knew that Genda was president of
the CEU . At that time , Corzine expressed dissatisfaction
with Respondent's pay for overtime and Genda told him
1e Genda could not identify any of the stockboys involved in his or-
ganizing efforts at Edgewood
" Genda testified that he did not show these information sheets the first
time he met with the stockboys in the store , that "he might have shown
them later "
20 Anderson testified that he had not signed a CEU dues-deduction
authorization card
21 See , in this connection , the findings , infra , as to Genda 's organizing
activity in behalf of the CEU at Eastgate and the findings , supra, that in
organizing at the Columbus Avenue store , Genda went into the store
office three times during working hours and there solicited employee
Rankel's help in organizing the employees and picked up signed auth-
orization cards
22 While Genda did not fix the date precisely , it is clear that this took
place in the latter part of June 1966
23 Eastgate was Cotner's headquarters
MACE FOOD STORES, INC.
that "maybe we [the CEU] could have something done
about it." Cotner's part in the conversation, according to
Genda, consisted of explaining Respondent's method in
respect to overtime. It is apparent from the record that
this took place in the back of the store during working
hours. On a subsequent occasion, Genda entered the
store as Cotner was leaving to go home. Genda asked
Cotner "if it would be all right if [he] went back in the
meat department." Cotner gave his permission and left
the store, whereupon Genda repaired to the meat depart-
ment and spoke to Corzine and Jerry Burmeister, a meat-
wrapper. Corzine and Burmeister work in a glass-en-
closed area. In front of the glass-enclosed area is a meat
counter, and there is a walkway between the enclosed
area and the meat counter. Work in front of the meat
counter is handled by Cotner, who also works "in the
back." The aforementioned conversation thus took place,
with Cotner's permission, in the glass-enclosed area of
the meat department which is a nonpublic area. Genda
admitted being there "quite a while."24 According to Bur-
meister, whom I credit, the discussion took "a half hour
or longer," and it occurred during working hours and she
was paid for the time spent. I also credit her testimony
that Cotner spoke to her in the store proper just before
Corzine and she met with Genda in the backroom. At that
time, Cotner introduced Genda to her and said that
"[Genda] would like to talk to you- would you care to
talk to him?" Burmeister agreed to talk and Genda and
she went back to the meat department where the three-
way conversation took place. Genda did not testify as to
what this conversation consisted of, but denied that he
showed them information sheets about how the CEU
would benefit them. In this regard, I also credit Bur-
meister's testimony that Genda showed them such infor-
mation sheets and that he told them that the CEU had
signed up Respondent's Shelbyville, Pendleton, and
Franklin stores and that the 14 stores, i.e., the Eavey
stores and the Mace stores, would be combined and there
would be one contract . In addition , according to Bur-
meister , when she learned from Genda that a CEU meet-
ing had been held, she protested that they had not been in-
vited. A meeting was thereafter held by Genda at the
Town Motel in Anderson with several Eastgate em-
ployees, including Corzine and Burmeister . At this time,
after showing the employees some contracts and the in-
formation sheets, Genda urged them to sign CEU
authorization cards and asked her to take some authoriza-
tion cards and get others to sign , but she refused.
On the basis of all the foregoing, I conclude, and find,
that Respondent, through Cotner, permitted Genda free
access to nonpublic areas of the store during working
hours in order to solicit employees to join the CEU and
sign authorization cards, and that , in the case of Bur-
meister , it also facilitated such solicitation , also through
29 While Cotner reversed the order of these two visits by Genda to the
store , there is testimony by employees Fulp and Burmeister which cor-
roborates the order of events as testified to by Genda In all these circum-
stances, I conclude , and find , that Cotner was in error and I do not credit
his testimony in this respect Nor do I credit his further testimony that
during the discussion involving Corzine, Genda, and him, the CEU was
not discussed Genda's testimony is to the contrary and such testimony is
more consistent with the inherent probabilities of the situation
25 Although the discussion which ensued lasted about a half hour or
more , I attach no special significance to the time factor because it appears
that Cotner left the store after introducing Genda to Burmeister and
arranging for them to discuss the CEU
447
Cotner, by arranging for an introduction of Genda to her
in the store during working hours.25
We come now to the further allegation that Respon-
dent, through Hankins, assisted the CEU by soliciting
employees at Eastgate on or about July 20, 1966, to sign
dues-checkoff authorization cards for the CEU. As al-
ready found, unlike the other three stores in Anderson,
where the CEU and Respondent had, during the last
week of June 1966, entered into contracts containing a
union-security clause, there was no such contract extant
at Eastgate. Also, as heretofore noted, the distribution by
Hankins was canceled by Respondent later that day, al-
legedly because the distribution that occurred was an
unintentional mistake. The General Counsel contends, in
effect, that the cancellation came too late because the
assistance to the CEU had already occurred. The
testimony with respect to this allegation was given by
Fulp, for the General Counsel, and by Hankins, for
Respondent.
Hankins testified that Supervisor Ford asked him to
have the cards signed by the employees and gave as the
reason , that "[the store ] was in the union there"; and,
although he told Ford that he thought the store was not
"in the union ," Ford indicated that he was to get them
signed. Whereupon, he approached some employees, in-
cluding one Christine Fulp, about signing. Hankins ad-
mitted asking her to sign a card in the presence of em-
ployee Sanders and possibly employee Grace Hen-
dricks.L6 According to Fulp, the following then occurred:
After reading the papers given her by Hankins, she asked
Hankins if "the Eavey's union" was in the stores now and
what benefits the employees would get from the Union.27
To this, Hankins replied that, "he didn't know, but, as far
as he was concerned, he didn't think any union was any
good, but this one was okay." She did not sign the
checkoff authorization and Hankins did not say anything
to her for not signing. Later that day, she had occasion to
go to the office of the store to get some change. At that
time, she said to Hankins that she did not want "any hard
feelings" between them because she had not signed. To
this, Hankins said something to the effect that Stant, an
alleged discriminatee herein, had come to the store and
had "talked to different ones about the CIO union and
had gotten us all going on it ." When Fulp denied that
Stant had ever said anything to them, Hankins dismissed
the matter by saying he was not going to argue about it.
Subsequently, Hankins "came over to the register and
said [to her] that the papers didn't belong out here, that
we were just too bull-headed. 11211 This apparently con-
cluded Respondent's efforts to get any more dues-deduc-
tion authorization cards signed by employees at Eastgate.
Although some of Hankins' and Fulp's testimony was
mutually corroborative, Hankins did deny that portion of
Fulp's testimony which attributed to him a reference to
26 Fulp testified that she saw Hankins show the papers to Hendricks as
the latter was "coming down the aisle " and then Hankins came over to the
checkout counter where Sanders and she were and showed the papers to
both of them
27 In this connection , Hankins testified that he told Fulp that he so un-
derstood
28 Hankins had theretofore telephoned President Mace concerning the
experience with Fulp and her questioning him whether the CEU was the
bargaining representative at Eastgate and was told by Mace that the cards
were not supposed to be sent to Eastgate and that Hankins was to send
them back to the main office
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizing activity by Stant in behalf of the CIO at East-
gate, and he further denied saying to Fulp that she was
being "bull-headed" because she would not sign a
checkoff authorization card. However, as to the remark
to Fulp relating to Stant, I note that Hankins conceded
having a discussion with employee Burmeister of the
Eastgate store about 2 weeks after July 2, the date of
Stant's alleged discriminatory discharge, in which, ac-
cording to Hankins, Burmeister told him that Stant "is
coming in and talking union with her and was going down
to her house ," and while Hankins was "not sure " whether
this conversation with Burmeister preceded the checkoff-
authorization episode at Eastgate, I am persuaded, and
find, on the entire record including the chronology of
events to the extent testified to by Hankins, that this con-
versation between Burmeister and him antedated the
checkoff-authorization episode at Eastgate. Accordingly,
since Fulp impressed me as a reliable witness, while Han-
kins appeared less than forthright at times, I credit Fulp
in all instances where her testimony is in conflict with that
of Hankins. I find, therefore, that the dues-checkoff
authorization episode at Eastgate, and Hankins' remarks
to Fulp in connection therewith, occurred as testified to
by Fulp. However, I am unable to find, on this state of the
record, that it was only after Respondent encountered re-
sistance to its solicitation for dues-checkoff authoriza-
tions that it "quickly drew in its horns." Rather does it ap-
pear, and I Find, as Respondent contends, that this dis-
tribution by Hankins was the result of an unintentional
mistake and was withdrawn when Respondent became
aware of it. And with respect to the remarks about Stant
and about being "bull-headed," which Fulp attributed to
Hankins, I find hereinafter, in the course of treating with
the allegations of paragraph 5(b) of the complaint, as
amended, that Respondent did not violate Section 8(a)(l)
of the Act thereby.
d. The Madison A venue store
The record contains meager evidence of the manner in
which the CEU conducted its organizational campaign at
this store. The CEU produced, in response to a subpena
of the General Counsel, 13 CEU authorization cards re-
lating to this store. Ten of these cards bear the date of
June 23, 1966, which coincides with the date on which the
contract between the CEU and Respondent was executed
in respect to employees of this store. Of the remaining
three cards, two are dated June 21, 1966, and one is dated
June 29, 1966. It would appear from Genda's testimony
that these cards were initially left by him at the store with
an employee or employees in order "to get them signed
for [him]," and that thereafter, but before the above con-
tract was signed, he went to the home of an unidentified
"girl" who worked at the store to pick up the cards,24 and
that after the contract was signed, on an occasion when he
was in the store, "the girl" handed him another card.
"" Genda testified that he picked up the cards one afternoon after the
girl called him, that he does not remember what time of the day he was at
her house or how much time elapsed before he signed the contract, and
that he did not remember the girl's name , just that she was a cashier
"' They varied only as to the date of execution and the name of the
store
11 President Mace testified that they did not sit down and negotiate a
new contract for each store in Anderson , that "[they] already had the
contract made "
By way of contrast, there was, in the case of the Pendleton store, the
e. The contracts at the Madison Avenue, Columbus
Avenue, and Edgewood stores
As already found, the CEU commenced its organiza-
tional activity among the employees at Respondent's An-
derson, Indiana, stores in the latter part of June 1966, and
the contracts between Respondent and the CEU covering
the Madison Avenue, Columbus Avenue, and Edgewood
stores were executed shortly thereafter on June 23, June
24, and June 27, respectively. These contracts were
identical in terms and had the same effective date of June
27, 1966.30 The details leading up to their execution will
be set forth hereinafter.
According to Genda's testimony, when he thought he
had enough cards for a particular store, he went to the of-
fice of President Mace of Respondent in Anderson, Indi-
ana, and presented the cards to him. The record indicates
that Genda did present cards for each of these three
stores to President Mace on separate days and that the
contract was, in each instance, executed on the date of
such presentation, using the Pendleton store contract as
a model and without any negotiation taking place.31 In the
case of the Madison Avenue stores, 10 of the 12 cards
submitted were dated June 23, the execution date of the
contract. In the case of the other two stores, one of the
cards submitted (all of which were of very recent date)
bore a date which coincided with the execution date of
the contract. The speed with which the contracts came
into being is further underscored by the various steps
which had to be followed before they were finalized.
Thus, President Mace first had to check the cards sub-
mitted by Genda against the company paryoll; then upon
being satisfied as to majority status, he had to commu-
nicate this information, apparently by telephone, to
Robert R. Mace, his son, in Richmond, Indiana;32
thereafter, Robert Mace had to affix his signature to the
contract involved; the contract would then have to go to
Anderson, Indiana, where President Mace had to sign it,
as well as Genda and several others for the CEU. In the
latter connection, Genda would have to take the contract
to the other CEU people to be signed Of necessity, the
testimony as to the machanics of getting the contract
signed had to come from those who participated therein.
Of these, only President Mace and Genda appeared as
witnesses. Their testimony is at times inconsistent and at
times unclear or uncertain as to when the contract first
appeared in President Mace's office, as to how the con-
tract got to Robert R. Mace's office in Richmond for ini-
tial signing by him, and as to whether the date on the con-
tract was, in fact, the date on which Genda signed the
contract. Thus, President Mace testified, at first, that the
contracts were at his office at the time Genda arrived. He
testified, immediately thereafter, that he first saw the con-
tract after his son had signed it and had sent it on to him,
and that was after he had checked the CEU authorization
cards. At another point, he testified that after he checked
first of Respondent's stores to be organized by the CEU, an interval of
about 3 or 4 weeks between the showing of the cards to Respondent by
the CEU and the execution date of the contract, during which interval
negotiations took place President Mace testified, in this regard , that the
Pendleton store contract was negotiated by his son , Robert R Mace,
representing Respondent, and Genda and Hoffman, counsel for the CEU
herein , in Richmond or Hagerstown , Indiana
1' The Standard Highway Mileage Guide, copyright 1966, by Rand
McNally and Company, shows the distance between Anderson and
Richmond , Indiana, to be 55 miles
MACE FOOD STORES, INC.
the cards "they would take the contract over to [Robert
R. Mace] and [Robert R. Mace] would sign it, then they
would bring it back to [him] to sign." At still another
point, President Mace named Genda as the one who
would bring the contract in to him and he "finished sig-
ning it"; but, he thereafter indicated his uncertainty of the
mechanics by saying, "I don't remember just how the
contract got there, but it either came with Mr. Genda or
it came in the mail from my son, I don't just remember
now." Genda's testimony in the latter respect was that
President Mace did not have a contract in his possession
at the time he, Genda, arrived with the cards. And when
asked to pinpoint when President Mace had the contract,
he testified, "Well, I don't know exactly. I might have
taken them in one day and then maybe the next day."
And when questioned as to the date on which the contract
was, in fact, signed, Genda testified, "I think that is right
[that I signed the contract on the date stated on the
contract]. I think it was sent by Mr. Mace and signed by
his son and when they got over here, I don't know- that
would be the date that Mr. Mace signed it in Richmond or
whether it was the date when they come here. I took them
and had our people sign them."
In view of all the foregoing, I am persuaded that the
record warrants a finding that Respondent acted with
much haste in entering into and consummating the con-
tracts with the CEU for the Madison Avenue, Columbus
Avenue, and Edgewood stores.
In support of the General Counsel's allegations herein,
I have heretofore found, in substance, that the record
establishes that Genda enjoyed considerable freedom in
moving about Respondent's Columbus Avenue,
Edgewood, and Eastgate stores in the course of his or-
ganizing activity at these stores.33 Thus, at the Columbus
Avenue store, he solicited employee Rankel's help in or-
ganizing while she was in the store office, a nonpublic
area, during working hours and picked up signed cards
from her, going there on three occasions, and, at the
Edgewood and Eastgate stores, Genda engaged in similar
activity among employees, also in nonpublic areas; name-
ly, in the back of the store at Edgewood and in the glass-
enclosed portion of the meat department at the Eastgate
store.34 I have also found that, at the Eastgate store,
through Cotner, Respondent facilitated Genda's solicita-
tion of employee Burmeister by introducing Genda to her
in the store proper. I have further found that within a
week after the actual commencement of organizing activi-
ty at the Columbus Avenue, Edgewood, and Madison
Avenue stores by the CEU, Respondent and the CEU
33 I have also found that the evidence concerning the solicitation by
CEU at the Madison Avenue store is meager
3' At the Eastgate store, during one of his visits, Genda asked Cotner,
the meat manager and a supervisor , " if it would be all right if [he] went
back in the meat department," and Cotner gave his permission At the
Edgewood store, while there is no direct testimony that permission was
requested by Genda of management to go to the back of the store and that
such permission was granted , I have found that Kelley, the store manager,
was aware of Genda's activity and acquiesced therein
3' No such claim was made by Genda with respect to the Eastgate store
and there is no contract with the CEU extant at that store
31 There is , however , testimony showing that considerable organiza-
tional activity in behalf of the Union was carried on at the Eastgate store
during working hours without interference , albeit there is no showing that
Respondent had knowledge thereof
sr See Continental Distilling Sales Company v. N L R B , 348 F 2d 246
(C A 7), Chicago Rawhide Manufacturing Co v N L R B, 221 F 2d
165 (C A. 7), Wayside Press v N L R B, 206 F 2d 862 (C A 9), and
449
entered into separate collective-bargaining agreements as
to each store, and that the latter occurred with much
haste in each instance on the same day that Genda made
claim that he represented a majority of the employees at
the store involved and presented signed authorization
cards to support his majority claim.35 And, finally, I have
found that Respondent knew, in advance of the com-
mencement of the organizational activity at these four
stores by the CEU, that the Union had held a meeting at
which employees from its Eastgate store were present.
However, the foregoing occurred in a context devoid of
any evidence of disparate treatment between unions in af-
fording access to Respondent's store premises for pur-
poses of union organizational activity; indeed, the Union,
so far as appears, never sought such access,36 and it was
not until July 1, 1966, after the contracts herein were ex-
ecuted and became effective, that the Union sent a letter
to Respondent claiming representation among these em-
ployees. There is also lacking any credible evidence of
any solicitation of authorization cards by supervisors or
agents of Respondent in behalf of the CEU, nor is there
evidence of other action favoring the CEU over the Union
or of aid, financial or otherwise, to the CEU, nor does it
appear that exclusive recognition was granted to the
CEU when it did not represent a majority of the em-
ployees at each of the stores involved. In these circum-
stances, and after careful consideration of the entire
record, I am persuaded, and find, that while Respondent's
aforesaid conduct is not free from suspicion, the record
does not preponderate in favor of a finding that Respond-
ent's conduct exceeded permissible bounds under the
Act."There yet remains an allegation of 8(a)(2) in that
Hankins, the store manager at Eastgate, solicited em-
ployees to sign dues-checkoff authorizations for the
CEU, even though the CEU did not represent an un-
coerced majority and has never been duly designated as
bargaining agent by a majority of such store employees in
an appropriate unit. It is, of course, true that the CEU
was not the collective-bargaining agent of the employees
at Eastgate and that, unlike the situation prevailing at the
other three stores of Respondent in Anderson, Indiana,
there was not extant at Eastgate a similar contract to
theirs with a union-security clause. However, in view of
my finding heretofore that the distribution of these cards
to employees was the result of an unintentional mistake,
which distribution was withdrawn when Respondent
became aware of it, I find that this conduct did not con-
stitute aid, assistance, or support to the CEU.38
Accordingly, I conclude further, and find, that none of the
Coamo Knitting Mills, 150 NLRB 579, involving a two-union situation,
see also Jolog Sportswear, Inc and Jonathan Logan, Inc , 128 N LRB
886, petition for review dismissed sub nom Mary Kimbrell v N L R B,
290 F 2d 799 (C A 4), involving a one - union situation
See Coppus Engineering Corporation v N L R B , 240 F 2d 564 (C A
I), and Coronet Manufacturing Company, 133 NLRB 641, involving
hasty recognition
While the General Counsel cites Air Control Products, Inc, 139 NLRB
607, GEM International, Inc, 137 NLRB 1343, and Fiore Brothers Oil
Co , Inc , 137 NLRB 191, to support a finding of violation herein, I find
these cases to be clearly distinguishable on their facts
38 While Respondent did distribute dues-deduction authorization cards
for the CEU and an explanatory letter to employees at the three stores
herein where contracts with a union-security clause were then extant. I
find that this conduct, in the circumstances , fell within the permissible
limits of employer cooperation with a majority representative of his em-
ployees and did not run afoul of Section 8(a)(2) of the Act
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(2) allegations of the complaint, as amended, has been
sustained and that Respondent has not violated this sec-
tion of the Act.
2. The 8(a)(1)
Paragraph 5(a) of the complaint, as amended, alleges,
in substance, as violations of Section 8(a)(1) of the Act,
surveillance by Respondent of the union meeting of June
16, and thereafter giving the impression of keeping under
surveillance the meeting places, meetings, and activities
of the Union or other concerted activities of its em-
ployees. I have heretofore detailed the facts relevant to
this allegation. It is clear therefrom and from the entire
record that no basis exists for finding that Pamela
Darling, an employee at Eastgate, kept the union meeting
under surveillance in behalf of, or at the behest of,
Respondent In fact, she was invited to attend by Frances
Biven , one of her coemployees at the Eastgate store.30 It
does, however, appear that she thereafter imparted infor-
mation concerning the meeting to her father, and the
record strongly suggests that he, in turn , communicated
what he had learned from his daughter to Cotner, the
meat department manager at Eastgate. However, it was
only Cotner's conversation with employee Burmeister
which has legal relevance here. And as to this, I find no
violation Cotner told Burmeister as well as Corzine that
he had received this information from Charles Nowlin.
Burmeister knew at that time that Nowlin had a daughter,
Pamela Darling, who worked at the Eastgate store and
that Darling had attended the June 16 meeting to which
Eastgate store employees were invited. In these circum-
stances, even apart from the fact that this conversation
was initiated by Burmeister, there is no warrant for a find-
ing that, by this remark, Cotner gave her and Corzine the
impression that Respondent was engaging in surveillance.
Indeed, the remark by Cotner was, in the circumstances,
just as consistent with an impression that this information
was volunteered to Nowlin by Darling and thereby came
to the attention of Respondent. I, therefore, conclude that
this allegation of the complaint, as amended, has not been
sustained and that Respondent has not violated Section
8(a)(1) of the Act thereby.
Paragraph 5(b) of the complaint, as amended, alleges
that, on or about July 20, 1966, Respondent, acting
through its agent and supervisor, Don Hankins,
threatened an employee with discharge or other reprisals
if the employee became or remained a member of the
Union or gave or continued to give any assistance or sup-
port to it. I have heretofore found that, as part of the
CEU dues-checkoff authorization card episode at East-
gate on or about the above date, (1) Hankins, in response
to Fulp's question about what benefits the employee
would get from the CEU remarked that, "he didn't know,
but, as far as he was concerned, he didn't think any union
was any good, but this one was okay"; (2) when Fulp
thereafter expressed concern over whether her failure to
sign a CEU checkoff authorization card would cause
"any hard feelings" between them, Hankins answered in
words to the effect that Stant, an alleged discriminatee
herein , had "talked to different ones about the CIO union
and had gotten us all going on it"; and (3) still later that
day, Hankins came to Fulp's register and told her that the
checkoff authorization cards and the accompanying ex-
planatory letter from Respondent to its employees "did
not belong out here, that we [meaning the employees at
Eastgate] were just too bull-headed." These remarks by
Hankins fall short of being either direct or implied threats
of discharge or reprisal for membership in, or activity in
behalf of, the Union, or for concerted activity. indeed,
Fulp testified that Hankins did not threaten her and that
she did not feel that she had to sign the checkoff
authorization card for the CEU. While the accusation
leveled by Hankins against what he regarded as the bull-
headedness of the employees at Eastgate in not signing
these checkoff authorization cards may indicate his un-
happiness with the resistance he encountered, nowhere
does it appear, nor does the record warrant a finding, that
he thereby implied that Respondent would take reprisal
against employees for not signing checkoff authorization
cards for the CEU. Accordingly, I find that the allega-
tions of paragraph 5(b) of the complaint, as amended,
have not been sustained by the record and that the
Respondent did not violate Section 8(a)(1) of the Act
thereby.
Paragraph 5(c) of the complaint, as amended, alleges
that, on or about July 19, 1966, Respondent , through its
agent and supervisor, Elmer Van Matre, threatened an
employee with loss of a pay raise and other benefits
and/or discharge and other reprisals because the em-
ployee refused to sign a dues-checkoff authorization slip
for the CEU and refused to give any other assistance and
support to the CEU. Employee Dorothy C. Pennington,
who worked at the Columbus Avenue store, testified that
Van Matre, her store manager, handed her a dues-
checkoff authorization card for the CEU one day while
she was at work40 and "told [her] to sign it ," that Van
Matre "came back after it and [she] still hadn' t signed it.
He told [her] to sign it again. [She] told him [ she] didn't
want to. Then later [she] went over to get some change
at the office and he told [her, she] was only hurting
[herself]." According to Pennington, this occurred the
day before she was discharged by Van Matre, which
discharge is alleged to be discriminatory. Van Matre's
testimony contradicts Pennington's testimony in material
respects. He testified that he "gave her the card-the
pouch 41 and asked her to fill the information out on the
enclosed material"; that "she got that checkoff authoriza-
tion and she refused to sign it"; and that she gave as a
reason that "she just couldn't afford it." And, although,
like Pennington, Van Matre fixed the day of her termina-
tion as a Wednesday, he denied Pennington 's testimony
that the termination occurred the day after their conver-
sation about the dues-checkoff authorization; instead, he
fixed the time as "quite a while after that." In this latter
connection, Pennington's timecard for the week ending
July 24, 1966, in evidence as Respondent's Exhibit 13,
shows that she worked every day of that week , including
Sunday. Van Matre identified another timecard, in
evidence as Respondent's Exhibit 12, as showing
Pennington's final 2 days of work. The card bears
Pennington 's name, is marked "final," shows work done
M14 In this connection , I credit the testimony of Darling that neither her
father , Charles Nowlin , who was store manager at the Pendleton store,
nor anybody connected with management told her to attend the meeting
40 As already found, the dues-checkoff authorization cards were dis-
tributed at Respondent's four stores in Anderson around July 19 or 20,
1966
41 Pouches or envelopes were apparently distributed to each store em-
ployee that day In each pouch or envelope was, the dues-checkoff
authorization card for the CEU and other materials.
MACE FOOD STORES. INC.
on Monday and Tuesday of the week but does not identi-
fy the weekly pay period. However, Van Matre identified
the week as the one ending July 31 and fixed the date of
termination therefrom as July 27. In view of this physical
evidence and all the foregoing, I am satisfied that
Pennington did not testify truthfully as to the time of the
conversation in relation to her actual discharge and that
her discharge did, in fact, occur on July 27, at least a
week after the dues-checkoff authorization conversa-
tions. This untruthful testimony as to a material fact casts
doubt upon Pennington's credibility in other respect S.42
I therefore find, in light of Van Matre's denial that he told
Pennington that "she would be subject to discharge or
any other bad consequence if she did not sign," that the
record fails to establish by a preponderance of the
evidence that Van Matre threatened her with loss of
wages and other benefits, or with discharge or other
reprisals for union connected reasons. I therefore con-
clude, and find, that the allegations of paragraph 5(c) of
the complaint, as amended, have not been sustained.
3. The 8(a)(3)
a. The alleged discriminatory discharge of Stant
As already found, Paul Stant was hired in April 1966
after an interview conducted at the Muncie store of the
Eavey Corporation by one Cleo B. Dixon, a general su-
pervisor of that Company. Dixon hired Stant for the
Muncie store and then transferred him to Respondent's
Eastgate store as a meat manager trainee with the inten-
tion of placing him eventually at the store to be opened in
Connersville by Respondent. During Stant's assignment
at Eastgate, which lasted from April to the last week in
June 1966, Stant had an interim assignment, which lasted
about a week and a half, to Respondent's Kokomo store
and an assignment for I day and for another evening at
Respondent's Edgewood store. On Thursday, June 30,
1966, Stant was transferred to the Edgewood store. On
Saturday, July 2, he was discharged.
On his employment application, which is dated April
4, 1966, Stant did not fill in the answer to the question as
to why he left his last employment, which happened to be
with Marsh Super Markets in Muncie, Indiana. Dixon
testified that during the employment interview, Stant and
he discussed the termination at Marsh Super Markets,
and Stant explained that it was due to the fact that a
garnishment on his wages were served upon that com-
pany. According to Dixon, he thereupon told Stant that,
"we could not hire him if something like this was going on
because we had problems that were a little more impor-
tant to us on which we should spend our time." There-
upon, Stant assured Dixon that this was "all taken care
of. Everything was cleared up." Stant could not recall
whether he showed the reason for his departure from
Marsh's on his application, denied that it was discussed
with anybody at the time of his hire, and added that the
only time this was discussed was when "there was a
garnishment sent to Mace." The record discloses that the
last-mentioned garnishment and other debt matters in-
42 1 also do not credit Pennington's testimony attributing to Van Matre
the statement that she would hurt herself by not signing Pennington's
testimony as to the timing here is also suspect For, if such a remark was,
in fact, made it would more likely have occurred at the time when, accord-
ing to her, he told her to sign the card and she refused, rather than later
that day when she went to the store office to get change in connection with
451
volving Stant occurred during May and June of his tenure
with Respondent.
Stafford, the meat supervisor of all Respondent's
stores, enumerated the following financial problems of
Stant which were brought to Respondent's attention dur-
ing Stant's employment and the action taken in connec-
tion therewith. The first incident occurred in May when
Respondent received a telephone call from the Allied Ad-
justment and Collection Company, a loan company, to
the effect that Stant owed money, to the loan company.
Stafford thereupon discussed the matter with Stant, and,
when Stant said he would take care of the matter, Stafford
offered Stant some time "to take care of it." Stant took
the afternoon off and reported subsequently that he "had
taken care of it." The next incident was the receipt by
Respondent, also in May, of a "Garnishment Order to
Employer" from a local court with respect to a judgment
against Stant by the Allied Adjustment and Collection
Company. Stafford thereupon told Stant that Respondent
would not accept the garnishment and "gave him the fol-
lowing day off to take care of it or whatever part of the
day he needed.43 Stant subsequently reported to Staf-
ford that he had taken care of the garnishment. The third
incident in this series arose on June 8 when Respondent
received a letter from the Indiana Budget Service, a loan
company, asking Respondent to deduct $52 a week from
Stant's wages. Again, Stafford called the matter to Stant's
attention and Stant said that he would attend to it. Stant
made a telephone call from the store and reported to Staf-
ford that he had taken care of it. Within a week, Respon-
dent received a telephone call from the Allied Adjustment
and Collection Company saying that, unless Stant took
care of his financial problem, "they were going to file
charges and they were going to see [Respondent] in
court." Stafford, thereupon, went to Stant and told him to
take care of it. Stant admitted having financial problems
during his employment tenure and testified concerning
two garnishment situations, as follows: On the first occa-
sion, he took a day off after Cotner and Stafford had
spoken to him about it, and he then informed them that he
"had it straightened up"; on the second occasion, Staf-
ford spoke to him and gave him a day off to "straighten it
up," and he later reported to Stafford that he had done so.
Stant did not recall the letter from the Indiana Budget
Service to Respondent asking it to undertake a program
of deducting money from his weekly wage in order to set-
tle his debts. He recalled going to that loan company but
had no recollection of Stafford talking to him concerning
this company, and he disclaimed any knowledge of a
telephone call to Respondent from the Allied Adjustment
and Collection Company that Stant had not settled with
them and they were about to serve another garnishment
order. Sant testified further that Stafford gave him only
one day off and he does not recall getting a day off for this
last-mentioned matter The evidence thus discloses that
Stant acknowledged that Stafford had spoken to him
about two garnishment orders, which does not differ sub-
stantially from Stafford's testimony that he spoke to Stant
about one such order served at the instance of Allied Ad-
justment and Collection Company and about a threat by
her checkout work
43 According to Stafford, it is company policy not to accept wage
garnishments, but, if one occurs, Respondent gives the employee an op-
portunity to correct the matter, and, if the employee fails to do so,
Respondent releases him
310-541 0 - 70 - 30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that company thereafter to serve a second such order. In
these circumstances, plus the fact that Stant, while deny-
ing that Stafford spoke to him concerning the Indiana
Budget Service's claim against him, admitted that he went
to see the Indiana Budget Service about financial matters
during this period, plus the further fact that Stafford im-
pressed me as a more reliable witness than Stant'44 I
credit Stafford's version as to Stant's financial problems
during his tenure and Respondent's connection therewith.
So far as the record shows, the only matter raised by
Respondent which is critical of Stant's work as a meat
manager,,, train- -e relates to the short period he spent at its
Kokomo store According to Stafford, he was called by a
Mrs. Thomas, the produce supervisor at Kokomo,45
during this period and told that Stant was causing a lot of
confusion in the store by discussing in the store the
qualifications and work methods of employees inside and
outside the meat department, and that Stant was also very
uncooperative with her. Stafford testified further that he
thereupon called Stant on the telephone to tell him he was
to discuss such matters only with Stafford and not with
employees, and that he, Stafford, saw Stant, in person,
the following day in the Kokomo store. At that time,
Stant admitted that he was wrong and that he would cor-
rect the situation. As to this, Stant testified that he had no
problems at Kokomo. Although he admitted that Stafford
told him that if he "had any problems to get in touch with
him [Stafford]," he denied that this was told to him by
Stafford because he had had some problems at Kokomo.
Since Stant acknowledged that Stafford had talked to him
about problems at Kokomo, albeit in general rather than
in particular, and since I have heretofore found Stafford
to be more credible than Stant, I credit Stafford and find
that this incident occurred as he testified.
According to Respondent, another critical develop-
ment involving Stant stemmed from his attendance on
Monday afternoon, June 27, at a meeting of meat
managers at the general offices of Respondent in Ander-
son. Stant was dispatched to the meeting by Cotner, the
meat manager of the Eastgate store. It was the first such
meeting that Stant attended. In attendance were all the
meat managers of all the stores of Respondent and of the
Eavey Corporation. According to Stafford, at the meet-
ing, Stant sat next to Harry D. Klingman and Earl Mor-
gan, who are, respectively, the meat managers at the
Kutter #1 and Kutter #2 stores of the Eavey Corpora-
tion in Richmond, and conversed with them. After the
meeting, Stafford was told, by these two managers that
Stant, while working in the Kutter stores, had been
caught stealing a box of chickens from the store and and
had signed a statement admitting it Thereupon, also ac-
cording to Stafford, Respondent caused a security check
to be made on Stant by a company which serves Respond-
ent in such matters, and, on July 1, 1966, he received a
report of that date from that company. The report, which
is in evidence as Respondent's Exhibit 11, is, inter alia,
confirmatory of this incident. Stant testified that he was
discharged from the Kutter stores and that the reason
given him therefor was that he had been stealing. Whether
or not Stant actually stole the chickens or admitted steal-
ing them is not the issue before me and I make no findings
thereon. It is sufficient for the purposes of this case, and
44 1 have also taken into consideration background evidence as to Stant,
other than that mentioned hereinafter, appearing in the record
45 Mrs Thomas did not testify
46 Another consideration, according to Stafford, was Stant's failure to
I find, that Respondent had information to that effect
from the two store managers at the Kutter stores and that,
in consequence, it ordered a security check which
resulted in a report from the investigating company on
July 1, 1966, that the stealing incident had occurred.
As already found, Stant was discharged on July 2,
1966. Stant's version of the discharge interview differs in
material respects from that of Stafford, who made the
decision to discharge, and did discharge, him. Stant
testified, on direct examination, as follows, in this con-
nection: He arrived at the Edgewood store about a half
hour before he was to start work and found Stafford
there. Stafford indicated to him that he was there to see
him, and invited him into the backroom. There, Stafford
said, "I am going to have to let you go." Upon his inquir-
ing as to the reason, Stafford said, variously, "Oh, you
know," and "you know what it is," and that was the only
answer he could elicit. After Stafford and he had settled
what they had to talk about, he left the backroom, got his
butcher knife, told two people, including the store
manager, that "they let me go," and walked out of the
store. Upon being specifically asked by counsel for the
General Counsel whether anything about a security
check was mentioned during the discharge interview,
Stant testified further that Stafford had told him that
Respondent had run a security check on him; that he also
learned from questioning Stafford that Respondent does
not run a security check on everybody, and that, when he
asked Stafford why they did so in his case, the latter
replied, "It is our business." During cross-examination,
Stant insisted that he was never given a reason for the
discharge by Respondent, and that Stafford "said nothing
about the past that [he, Stant] can recall of." When
shown his prehearing affidavit to the General Counsel,
Stant acknowledged swearing to a statement therein that
when he asked Stafford why he, Stafford, was going to let
him go, Stafford then said, "it is your past." Stant further
acknowledged that he did have a past. In contrast to the
testimony of Stant, Stafford testified as follows: After
talking to President Mace about the report concerning the
security check on Stant, he decided to discharge Stant,
and did so on July 2 at about 10:30 in the morning. Upon
seeing Stant in conversation with the meat manager at
Edgewood, he asked Stant to come to the backroom so
that he could talk to Stant. At this, Stant said, "what in
the hell did I do now?" Stafford then advised Stant it was
unfortunate that he was going to have to let Stant go and
this was due to an investigation "in which [he] had a re-
port back on from [Stant's] previous working at the
Kutter stores, and also due to the fact that [Stant] hadn't
taken care of his financial problems during the time that
[Stant] had been with the company and also an incident
which involved [Stant] on getting along with other people
in our company."46 Stant's only response to this was,
"looks to me like a man can work his damned ass off and
they never forget what happens in the past" ;47 and that
Stant, at no time disputed the reasons for the discharge
mentioned by him. Stafford denied that he was asked by
Stant on repeated occasions why he was firing Stant and
further denied that he replied, "you know." Stafford also
denied that the discharge had anything to do with Stant's
union activities, adding that he first learned of Stant's
fill out his application in respect to the reason for his leaving his employ-
ment at Marsh Super Markets - information that he, Stafford, "could go
on"
17 Stant denied making this statement
MACE FOOD STORES. INC 453
membership in the Union after Stant's discharge, during
a discussion with the Union's business agent. Whether
Respondent had knowledge of Stant's union activity shall
be discussed hereinafter. As to whether Stafford's or
Stant's version of the discharge interview is to be
credited, I note the following: Since Stant admitted that
Stafford made mention of the security check on him dur-
ing the discharge interview, I find doubtful his further
testimony that Stafford forestalled discussion of the
security check by the remark, "it is our business." Signifi-
cantly, Stant acknowledged thereafter, on cross-examina-
tion, that he stated in his sworn prehearing affidavit to the
General Counsel that Stafford, in answer to his query as
to why he was being discharged, replied, "it is your past."
In these circumstances, including the fact that I have, in
several instances, already credited Stafford as against
Stant, and the further fact that Stafford impressed me as
a reliable witness, I credit Stafford's version of the
discharge interview.
With regard to Stant's union activity and Respondent's
knowledge thereof, the following is revealed by the
record: Stant attended the June 16, 1966, meeting of the
Union and signed a card. As already noted, also present
at the meeting were employees Burmeister, Fulp, Bevin,
Hendricks, and Darling. Stant testified that, after the
meeting, he passed out cards to employees in the
backroom of the stores at Eastgate and Edgewood'48 at a
time when the employees were "off work"; that, to his
knowledge, no supervisor saw him passing out cards and
no company official or supervisor ever talked to him
about it at any time, including the time of his discharge. It
is also Stant's testimony that he never wore any union
buttons or passed out union handbills, and that no one
from management ever talked to him about the CEU or
ever asked him what his union preferences were or to
what union he belonged. Fulp, whom I have heretofore
found to be a credible witness, summed up the extent of
Stant's activity in behalf of the Union as follows:
"[Stant] was active in [the Union], but he didn't try to
get us to go to the meetings and everything. He didn't
start us on it ... it was everyone together." As already
noted, Stafford testified that he first learned of Stant's
union activity after the date of Stant's discharge. And
while Hankins, the manager at Eastgate, testified that
Burmeister approached him at work with the complaint
that "Stant is coming in and talking union with her and is
going down to the house," I note that Hankins placed this
conversation about 2 weeks after Stant's discharge. And
while I have heretofore found that Pamela Darling
discussed the June 16 meeting of the Union with her
father, Charles Nowlin, the store manager at the
Pendleton store, such testimony falls short of establishing
that Respondent thereby became aware of Stant's at-
tendance at the meeting. In all these circumstances, I find
that the record does not preponderate in favor of a finding
that Stant's union activity was known to Respondent at
the time of his discharge. Moreover, even assuming that
Respondent was aware of Stant's union activity at the
time of his discharge, I am persuaded that this was not an
operative factor in his discharge. Rather am I persuaded,
and I find, that, as Stafford credibly testified, Stant was
discharged for the reasons made known to him in the
discharge interview. Accordingly, I conclude that Stant's
discharge was unrelated to any union considerations, that
it was for cause, and that Respondent did not violate Sec-
tion 8(a)(3) of the Act thereby.
b. The alleged discriminatory discharge of Pennington
Dorothy C. Pennington started to work for Respondent
at the Columbus Avenue store in August 1965, as a cashi-
er. During her employment history with Respondent she
was discharged twice. According to Pennington, the
reason for her first discharge in the summer of 196649 was
her refusal to work overtime. This was controverted by
Van Matre, who attributed the discharge to Pennington's
being late. Pennington acknowledged that she had, during
her employment, been late "2 or 3 minutes frequently"
and for periods longer than that "not too often." She also
testified that before this initial discharge, Van Matre had
told her he wanted her to start coming in on time.50
Assuming but not deciding that the precipitating cause
was her refusal to work overtime, I nevertheless con-
clude, and find, that her lateness was an operative factor
in her first discharge. Pennington appealed shortly
thereafter to Van Matre to reemploy her and he did reem-
ploy her, upon her assurance that she would do better
thereafter.51 Pennington continued to work for Respon-
dent until Wednesday, July 27, 1966, when she was again
discharged. During the last 2 weeks of her employment
with Respondent, Pennington worked in the courtesy
booth or office of the store as a vacation replacement for
Ethel Rankel. Rankel had trained Pennington for this
work during the prior week.
With respect to the quality of her work, Van Matre
testified that, before her first discharge, Pennington, in
addition to being late to work, "came up long constantly"
on her register,52 and was "quite rude with customers"
and customers would tell him about it. Van Matre
testified further that he had discussed with Pennington
her relations with customers and her register problem,53
while Pennington denied that he had ever done so. During
the month or so between Pennington's first and second
discharge, also according to Van Matre, her customer
relations' difficulty continued but he had no recollection
of having spoken to her about it; and, further, he "be-
lieved she had" the same register problem, that it is "hard
to remember [whether he spoke to Pennington about it]"
4e Stant testified that he and Horace Matthews , who operated the meat
department at the Columbus Avenue store with a part -time employee,
went to the Edgewood store together
44 Pennington placed this incident in the summer but could neither re-
member the month nor how long this was before her second discharge,
which is the only issue herein The closest approximation she could give
was that the first discharge occurred before she signed an authorization
card for the CEU The latter card is dated June 23, 1966 Van Matre, at
first, fixed the first discharge as sometime in May, but, during cross-ex-
amination, he acknowledged that he could be mistaken
50 Van Matre testified that he had had three or four such conversations
with her before the first discharge and warned her of discharge if she did
not "get straightened up "
11 Pennington said that she telephoned Van Matre the day following her
discharge, while Van Matre testified that Pennington called him up "two
or three mornings wanting her job back " I find it unnecessary to deter-
mine precisely when Pennington reapplied for her job and when she
returned It is sufficient for purposes of this case that she did thereafter
reapply for her job and was reemployed upon her promise to correct the
situation
52 Van Matre explained that he meant thereby that she had more money
in her register than she needed, and this could arise from either cheating a
customer , forgetting to put bottle tickets into the register , forgetting to ring
up merchandise , or "something like that, that didn 't belong in there."
5' Van Matre indicated that he had voiced dissatisfaction about phases
of Pennington ' s work to her about eight or nine times, but that he never
gave any written notice to her about something she had done wrong
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he would say that he did. Pennington denied that Van
Matre had discussed such matters with her during this in-
terval.
It is not disputed that, on the day of her second
discharge, Pennington was an hour late for work, that
neither Pennington, nor someone in her behalf, called
Van Matre before she reported for work that morning to
advise him that she would be late, and that it was only
after her discharge that her mother called Van Matre to
tell him of being at fault for Pennington's lateness that
morning.54 Pennington testified that her timecard was not
in the rack when she arrived and Van Matre told her that
"[she] was fired. [She] couldn't clock in," that Van
Matre did not tell her why she was being terminated, that
she was not sure that she was being discharged for being
late, but she thought that was the reason. Van Matre
testified as follows concerning the circumstances of
Pennington's discharge, the second time: On that day, the
store had employees on vacation and Pennington "was
filling in for those people." Because she did not call in to
say that she would be late and because she came in ap-
proximately an hour late, he "had to run the checkout and
do everything else that she was supposed to do." When
Pennington arrived, he told her she did not have to clock
in. When she wanted to know why, he replied, "you know
why." Whereupon, Pennington "just turned around and
left." Nothing was said about the Union during the in-
cident.
With respect to her activity in behalf of the Union,
Pennington testified that she signed a card for the Union
and attended one meeting55 and that she gave a card to
Carol Spears, a coemployee. She testified further, on
cross-examination, that she did nothing else in this
respect. In answer to particularized questions, on cross-
examination by counsel for Respondent, she testified that
she did not pass out leaflets, wear a union button or
discuss the Union with any supervisor or anybody from
Respondent, nor was she ever asked or told anything
about the Union by a management representative. In
these circumstances, I am persuaded, and find, that the
record does not preponderate in favor of a finding that
Respondent, at the time of Pennington's second
discharge, knew of her membership or activity in behalf
of the Union. And, contrary to Pennington's testimony,
as I have heretofore found, Van Matre did not tell her
that she "was only hurting [herself]" on the occasion
prior to her second discharge when she refused to sign a
dues-deduction authorization card for the CEU. In this
connection, I have also found that, while there was a con-
versation between Van Matre and her about signing such
a card, it did not occur the day before the second
discharge, as she testified, but about a week before this
termination . Accordingly , since an essential ingredient
for a finding of violation here is lacking, namely, that
Respondent was aware of her union or concerted activity
and was motivated, entirely or in part, thereby in effecting
her discharge, it is unnecessary to make findings or reach
any conclusions with respect to any of the other circum-
stances of her second discharge in controversy herein.56
It follows therefrom, and I find, that, by discharging
Pennington on July 27, 1966, Respondent has not dis-
criminated against her in violation of Section 8(a)(3) of
the Act.
Moreover, even assuming contrary to my finding
above, that Respondent had knowledge of her union ac-
tivity, I still find no violation herein. In the absence of any
finding of animus toward the Union or of any other viola-
tion of the Act herein, and since I find Van Matre to be a
credible witness and credit him in those instances where
his testimony conflicts with that of Pennington,57 I con-
clude, and find, that Respondent's asserted reasons for
Pennington's second discharge - the precipitating reason
being her lateness of about I hour in reporting for work
that morning - have been sustained by the record. In
reaching this conclusion, I have considered the record
testimony that other employees at the Columbus Avenue
store, including Carol Spears and Doyle Robbins, in par-
ticular, were frequently late to work and were not
discharged. I deem these situations factually distinguish-
able and not controlling herein.
In view of all the foregoing, it will be recommended
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Mace Food Stores, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Consolidated Employees Union, as well as Retail,
Wholesale and Department Store Union, AFL-CIO, and
its Local 357, are each labor organizations within the
meaning of Section 2(5) of the Act.
3. Mace Food Stores, Inc., has not engaged in unfair
labor practices within the meaning of Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, as amended.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and upon the entire record in the case, it is
recommended that the complaint, as amended, be
dismissed in its entirety.
54 According to Pennington , her mother forgot to set the alarm clock
ss I note , in this connection , that neither Burmeister nor Fulp, in testify-
ing as to those in attendance at the June 16, 1966, meeting of the Union,
Included her There is no record evidence of any other meeting of the
Union at which Respondent's employees were present and Pennington
did not further identify the meeting
ss See General Electric Company, 155 NLRB 1365, 1368, Exeter Coal
Company, 154 NLRB 1678, 1679
5' As noted immediately above, I have already discredited Pennington's
testimony in respect to the CEU dues-deduction authorization incident
and credit Van Matte's conflicting testimony