Minimax Stores

National Labor Relations Board - Board Decisions

Jul 12, 1951

95 N.L.R.B. 129 (N.L.R.B. 1951)

MINIMAX STORES 129
to the unit sought by the Petitioner, the appropriateness of which is
contested by the Employer and the Intervenor, the Board believes that
oral argument is desirable. The parties will be given due notice of
the argument date.
MINIMAY STORES I and RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL. Case No. 39-CA-43. July 12, 1951
Supplemental Decision and Order
On \Tovelnber 30, 1950, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board' has reviewed the rulings made by the Trial Examiner
at the Bearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications :
1. We find, as did the Trial Examiner, that Whitehead was dis-
criminatorily discharged on February 7, 1949, in violation of Section
8 (a) (3) of the Act. We do not, however, agree with the Trial Ex-
aminer that McCreiglt's statement to Whitehead with regard to re-
employment was insufficient to deny reinstatement to Whitehead and
toll back pay.
The record established that McCreight asked Whitehead whether
"he would like to come back out there," and when Whitehead answered
that he "didn't know" and "would think it over," McCreight added
"you keep in touch with me." Realistically viewed, McCreight's state-
ment to Whitehead was not an idle inquiry but a clear invitation to
return to work. That the invitation did not crystallize into a more
firm offer of employment was due to Whitehead's indefinite response.
As a more positive overture would have been futile in the circum-
' The pleadings were amended at the hearing to show the name of the Respondent as
it appears herein.
1 Pursuant to provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
( Chairman Herzog and Members Reynolds and Murdock].
95 NLRB No. 10.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, the Respondent did the logical thing in requesting White-
head to notify it when he was ready to resume work. In the absence
of any explanation by Whitehead as to why he subsequently failed to
communicate with the Respondent, it is reasonable to believe that at
no time after this conversation with McCreight was Whitehead de-
sirous of reemployment with the Respondent. Consequently we find
that the Respondent was, relieved of any further obligations to offer
reinstatement to Whitehead, and therefore the only affirmative relief
to which Whitehead is entitled is back pay from the date of his dis-
charge to the date of McCreight's invitation to return to work.3
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Minimaa Stores, Houston,
Texas, its officers,. agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging self-organization or concerted activities among
its employees for their mutual aid in protection as guaranteed in Sec-
tion 7 of the Act, or discouraging membership in Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL, or any other
labor organization of its employees, by discharging any of its em-
ployees or in any other manner discriminating in regard to their hire
or tenure of employment or any term or condition of their employ-
ment.
(b) Interrogating employees concerning their union affiliation ac-
tivities, or sympathies, or those of their coworkers, or warning or
threatening its employees with economic reprisals because of their
union membership or activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
join or assist Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL, or any other labor organization , to bargain col-
lectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
' See Famous -Barr Company, 59'NLRB 976 . Cf: Barr Packing Company, ( 82 NLRB 1),
where a different result was reached in a-factual showing that the dischargee was not
in fact reinstated although in response to his' employer 's inquiry he indicated that fie
desired reemployment. '
MINIMAX STORES 131
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Edwin (Ed) Vance, John B. Payne, and Mrs. Guy
Jones, Jr. (Joyce Puckett), and each of them, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges.
(b) Make whole Edwin (Ed) Vance, John B. Payne, Ogie White-
head, Mrs. Guy Jones, Jr., (Joyce Puckett), and Mrs. F. L. Cooper
(Wanda Gray), and each of them for any loss of pay they may have
suffered by reason of the Respondent's discrimination against them, in
the manner set forth in the section of the Intermediate Report en-
titled "The Remedy," except as herein modified with respect to Ogie
Whitehead.
(c) Upon request make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due under the
terms of this Order.
(d) Post in its stores in Houston, Texas, and vicinity, copies of the
notice attached hereto and marked "Appendix A." 4 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region (Forth- Worth, Texas ), shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(e) Notify the .Regional Director for the Sixteenth Region (Fort
Worth, Texas) in writing, within ten (10) days from the date of this
Order what steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the allegations of the complaint that the
Respondent discrilninatorily discharged Frankie Barnes be, and the
same are, hereby dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby, notify our employees that :
WE WILL NOT discourage self-organization or concerted activi-
ties among our employees for their mutual aid and protection as
A In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice before the words , "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
961974-52-vol. 95--10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act or discourage membership in
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, AFL, or any other labor organization, by discriminat-
ing in any manner in regard to hire or tenure of employment or
any terms or conditions of employment.
WE WILL NOT interrogate employees concerning their union
affiliations, activities, or sympathies, or those of their coworkers,
or threaten our employees with economic reprisals because of their
union membership or activities.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in. other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of
the Act, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER Edwin (Ed) Vance, John B. Payne, and Mrs.
Guy Jones, Jr., (Joyce Puckett), and each of them immediate
and full reinstatement to their former or substantially equiva-
lent positions,. without prejudice to their seniority or any other
rights and privileges previously enjoyed.
WE WILL make whole Edwin (Ed) Vance, John B. Payne, Ogie
Whitehead, Mrs. Guy Jones, Jr., (Joyce Puckett), and Mrs. F.
L. Cooper (Wanda Gray), and each of them, for any loss of pay
suffered as the result of the discrimination against them.
MINIMAX STORES,
Employer.
BY -------------------=
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
,STATEMENT OF THE CASE
Upon an amended charge, duly filed, the General Counsel' of the National
Labor Relations Board issued a -complaint dated December 21, 1949, in the
' The General Counsel and his representative at the hearing are herein called the
General Counsel , and the National Labor Relations Board is called the Board.
MINIMAX STORES 133
above-entitled matter. An answer was duly filed by Minimax Stores,' Respondent
herein, denying jurisdiction and denying the commission of unfair labor practices.
With respect to the unfair labor practices, the complaint as amended at the
hearing, alleged in substance, that: (1) In January and February 1949 the
Respondent discharged six named employees' and thereafter failed and refused
to reinstate said employees because of membership in or activities on behalf
of the Amalgamated Meat Cutters and Butcher Workmen of North 'America,
AFL, or other concerted activities for the purposes of collective bargaining or
other mutual aid or protection; and (2) on specified dates beginning in February
1949 the Respondent by named officers, agents, and employees by enumerated
conduct' interfered with, restrained, or coerced its employees in the exercise of
Tights guaranteed in Section 7 of the Act.
Respondent's answer denied the jurisdictional allegations of the complaint
and denied the. alleged unfair labor practices. The answer further alleged that
one of those allegedly discriminatorily discharged (Wanda Gray) ' was re-
employed, that another employee allegedly discriminatorily discharged (Ogie
Whitehead) was offered but declined reemployment, that each and all of the
employees named in the complaint were discharged for "just, sufficient, and good
cause"' and alleged that the discharges were made in good faith as evidenced
by Respondent's offer to arbitrate.
Pursuant to notice, a hearing was held from January 17 through January 25,
1950, inclusive, at Houston, Texas.
Op February 27,1950, the undersigned Trial Examiner issued an order granting
Respondent's motion to dismiss the complaint upon jurisdictional grounds.
Thereafter, the General Counsel filed a petition for review and the Board, on
October 24, 1950, issued its Decision and Order" reversing the afore-mentioned
order dismissing complaint and remanding this proceeding for the purpose of
preparing and issuing an Intermediate Report setting forth findings of fact,
conclusions of law, and recommendations with respect to the unfair labor
practices.
Upon the entire record in the case, and from his observation of witnesses, the
undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation, maintaining its principal office and
place of business in the city of Houston, Harris County, State of Texas. It is
engaged in the retail grocery business and- operates 11 stores all within the
geographical limits of Harris County. In ,the course of its operations, Re-
spondent purchases for resale at its retail stores such items as meats, grocery
products, coffee makers, beer, wine, notions, irons, toasters, mixmasters, cos-
metics, radios, glassware, kitchen ware; and utensils, and other similar products,
securing most of its standard brand products from the Schuhmacher Company,
9 The pleadings were amended at the hearing to show the name of Respondent as it
appears herein.
' By motion of the General Counsel the names of two employees (John W. Largent and
Ruth Christiansen ) were eliminated from the complaint.
4 Additional specific allegations of interference, restraint , or coercion were added to
the conrplaint by motion of the General Counsel.
6'By motion' at the hearing the complaint was amended to- slow this employee's married
name is Mrs . F. L. Cooper.
6 At the hearing , Respondent 's counsel , at the request of the undersigned , particularized
Respondent ' s reasons for the discharges.
' Minimax Stores , 91 NLRB 644. , - '
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a concern engaged in the wholesale grocery trade . During the year 1949, Re-
spondent's total purchases amounted to $6,027,620.86. During the same period)
its sales, all made locally, amounted to $7,306,749.12. Of the total value of its_
purchases, $866,272.11 came from the Houston branches of a number of national
concerns, and $3,022,500.50 came from the Houston warehouse of the Schuh-
macher Company. Of the merchandise sold by the national concerns to the
Respondent, merchandise of the value of $467,643.66 originated outside the State
of Texas, and was shipped by such national concerns directly to their Houston
branches. Similarly, of the merchandise sold by the Schuhmacher Company to.
the Respondent, merchandise valued at $2,325,750.35 originated outside of the
State of Texas, and was shipped directly to the Houston warehouse of the
Schuhmacher Company.
Respondent is engaged in interstate commerce within the meaning of the Act
and it will effectuate the policies of the Act to assert jurisdiction herein (Ml[ini-
mad Stores, 91 NLRB 644.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
herein called Amalgamated, and Retail Clerks' International Association, AFL,
herein called Retail Clerks, are labor organizations within the meaning of the
Act;
III. THE UNFAIR LABOR PRACTICES 8
A. Organizing efforts
Beginning about January 8, 1949, Kenneth M. Sims, then international repre-
sentative for the Amalgamated, and Allen Williams, •general organizer for the
Amalgamated, made'a survey of the food stores in Houston with a view toward
engaging in organizing work among the retail food store clerks ( other than
butchers). Employees were solicited for membership in the Amalgamated and
beginning about January 19, 1949, signed applications were accepted. After a
short time it became apparent that interest in the Amalgamated was more
centered among employees of Respondent than among other employees . Conse-
quently starting about January 24, 1949, the efforts of Sims and Williams were
concentrated toward organizing the employees of Respondent and by February
8, 1949, approximately 40 or 50 applications for membership in the Amalgamated
had been obtained from these employees. During this period employees of
Respondent were quite enthusiastic about the Amalgamated and certain "key
people," including Edwin Vance (one of the dischargees herein), were appointed
and assisted Sims and Williams . It is clear from the record that Respondent
was aware of this activity around the "first of the year [1949]" and its attitude
thereto is indicated by a conversation around the "first of February" 1949
among John Schuhmacher and Ray McBride, president and vice president re-
spectively , of Respondent , and James E. Burke, then assistant store manager
of store No. 11, wherein the organizing efforts of the Amalgamated were dis-
cussed and either Schuhmacher or McBride stated to Burke that "if the Union
[Amalgamated] got in, that would make our [store managers] pay less money.".
s Certain conflicts and questions of credibility are noted and resolved ; others are
unmentioned so as not to lengthen unduly this Report. However, all have been considered
and where required resolved by the undersigned.
9 This finding Is based on the testimony of Burke which the undersigned credits. Also
Clements, manager of store No : 1. 11 gave Burke a description of two Amalgamated
organizers and instructed him "to follow. them around and Stay right , with them" if they
came in the store.
MINIMAN STORES
B. The discharges .
135
Edwin (Ed) Vance was employed by Respondent, from around the middle of
December-1947 to January 29, 1949. He was first employed at store No. 11 and
continued working at that store until the latter part of November 1948, at which
time he was off for about a week and then transferred to store No. 10 where
he was employed until his discharge January 29, 1949.
During his lunch period on January 25, 1949, Vance signed an application
for membership in the Amalgamated and gave it to Sims and Williams. At this
:same time Vance was given several Amalgamated membership application forms
and requested to solicit the signatures of other employees of Respondent. Vance
thereafter, during lunch and rest periods, contacted employees of store No. 10
regarding union membership and was successful in obtaining seven signed
applications.
On Wednesday or Thursday (January 26 or 27) Vance, anticipating he would
have to work longer than a single work shift, told Allen, the assistant store
manager, that his baby was sick and that lie (Vance) would like to get off
that night. When told that it was necessary for him to work overtime that
night Vance stated he "would have to go anyway" to which Allen responded
"you know what it means if you go." , Vance said he had a pretty good idea
and started to leave.15 Vance was then sent to Mitchell, the store manager.
Vance testified credibly :
[Mitchell] asked me how. come me to quit. I told him I had my baby had
been sick and I told him I wanted to carry him to the doctor and I would
like to get off and I was tired too. And he told me he hated to see me do
that and asked me to stay on with him, that my work was very nice and
he liked the way I had done it and asked me to keep on working. I said
if he would take-me back, I would. He asked me to come back next morn-
ing, and I said if my baby was better and I didn't have to carry him to the
doctor, I would. I punched out at six-thirty or seven o'clock that night
(sic). - . • .
Vance returned to work the following morning. Mitchell's version of this
incident varies substantially from that of Vance and is not credited by the un-
dersigned. 11
10 Allen: dio not testify herein. -
11 Mitchell testified on direct examination that about 6 weeks prior to January 29, 1949,
Vance quit and that the circumstances of his quitting were as follows :
Well, I designated so much of the store for him to keep up, trying to help him get
along in it and he couldn't do it and we had a few words concerning it, so he walked
out in the middle of the day and I was going to let him go then for good and the
company asked me to put him back to work.
Later in his direct testimony, Mitchell testified that Vance's "walk-out" was "four or five
or six weeks prior to January 29, 1949." On cross-examination he testified it was "three
or four weeks" prior to the discharge ; was at '"least three- weeks before" the discharge.
Also on cross-examination Mitchell testified this "walk-out": occurred "about four, around
four, between four and five in the afternoon" and, that, it occurred "about an hour and
a half" before quitting time (5 p. m.). Mitchell testified that Vance told him (Mitchell)
that he (Vance.) and another employee ,were going to walk out, "quitting, backing out";
that Vance did not give a reason for the walkout and that he (Mitchell) did not have
any conversation with Vance although be (Mitchgll) persuaded the other employee to
return to work. Mitchell denied that anything was said about "working. overtime" or
"double, shifts." According to. Mitchell he reported Vance's.. "walking out" to, Spurlock
and was. told to "put him to work because he;j had a baby and he needed the. job. and
to try to work with him." Spurlock did ,not corroborate this .testimony. Mitchell did
not "remember" Allen getting into thq, conversittion; and ..could. not recall. whether Allen
was at the store at the time of the quitting episodes
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 28, 1949, at about 4 p. in. Vance received a telephone call at the
store from Williams, international representative of the Amalgamated, inquir-
ing as to the progress Vance was making toward securing members for the
Amalgamated. Vance stated he had all but one of the applications given to
him signed and expected that one to come in the next day. Vance then noticed.
Mitchell, the store manager, standing about 3 feet away and told Williams:
"Mr. Wiliams, we will have to be careful what I say because Mr. Mitchell is
standing right here." Williams then gave Vance his telephone number and re-
quested that Vance call him when he (Vance) got off. Later that day, and after
he had completed his work for the day, Vance called Williams, using a telephone-
in the store, and made arrangements to deliver the signed Amalgamated appli-
cations to Williams that evening. During this conversation Vance again
noticed Mitchell nearby (about an arm 's length from Vance) standing at the
corner of the courtesy booth" The following day (Saturday, January 29) as.
Vance was leaving the store at the conclusion of his workday Mitchell told
him Spurlock, supervisor of the grocery department, would call-him and trans-
fer him and that he (Vance) would not be working at No. 10 anymore. Vance
was not given the, reason. for the transfer or any explanation whatsoever.'e
Spurlock.did not contact Vance. On Monday, January 31, 1949, Vance located.''
Spurlock in one of the stores and asked him the number of the store to which
he (Vance) was being transferred. Spurlock answered that he "wasn't going
to transfer me ; they didn't need me no more." About a week later Vance
wrote a letter to Spurlock asking the reason for his discharge. Vance did not
receive a reply."
Respondent's counsel. stated: -
Vance started at No. 11 store under Mr. Frank Robertson. He could not
.get along with the store manager and he left the store on his own accord
and came up to talk to Mr. John Schuhmacher about the matter. Mr.
Schuhmacher thought it was just a clash of personalities and called the
store manager, and sent him back to work. Later, he was transferred over
to number ten store where he had the same difficulty with another manager.
Although Mr. Spurlock talked to him about the matter he refused to carry
out his instructions and lo-his work-and he let him;go.
Clements, manager of store No. 11 since October 1948, testified that he talked
to Vance several times about his (Vance) leaving his work and carrying on
conversations with salesmen or any other person that came into the store.
Concerning Vance's leaving store No. 11 and going to Respondent' s offices,
Clements testified credibly as follows :
Q. Now, did Mr. Vance before he was transferred from number eleven
store to number ten store, ever talk to you, on a particular day and leave
to go up to the Minimax Stores offices?
A. Yes, I don't remember exactly the date. At that time, he had been
changed from his regular job there as stocker checker to the job of a
receiving clerk at the back door, to receive and check all merchandise either
coming in or going out of the store, keeping merchandise in the back of the
"Mitchell denied listening in or overhearing any telephone conversation between Vance
and someone else in or near the courtesy booth at any time around 4 p. nr. January 20 or
around 6 p . in. on that date and stated that in connection with his duties as store manager
he "spent" quite a bit of time at or around the courtesy booth.
"Mitchell . testified that he told Vance he was being discharged because his work was
unsatisfactory and told him to call Spurlock Monday morning. Mitchell ' s version of
this incident is not credited by the undersigned.
14 Spurlock did not testify concerning these matters.
MINIMAX STORES 137
room , keeping in [it] in shape, and we moved him over to that job because
It gave him a better job, better income, considerably better income than
previously. Ile was married then, and he started to fall down on that job
as he. had in his; previous occupation and I spoke to him several times in
that regard. The merchandise when it comes in, has to be put in its proper
place and he let it accumulate in the back door while he carried on a con-
versation with drivers and so forth when they came in, and one thing, he was
pretty mad when I told him about it and he left and went up to the main
office. I didn't know he was up there until Mr. Schuhmacher called me.
Clements stated that Schuhmacher, president of Respondent, called him
(Clements) and asked if he "would be willing to put Vance on , again" and he
(Clements) said "yes," that Vance came back in the store but before he got his
coat off, he (Vance) said "Well, I guess we have got this settled up, then -,"
some words- to that effect, I don't remember the exact words he spoke to me,
and he said, "From now on, we're going to do it my way" and I (Clements) said,
"Wait just a minute, if that is the ova [way] you mean , don't bother taking your
coat off."
Clements testified, Vance -then left the store and was transferred to store No.
10, and did not thereafter work in store No. 11.
Vance testified that after he was laid off (he did not know why) in November
1948 he went to Respondent's offices and talked with Schuhmacher and Spurlock
and that arrangements were made for him to meet Spurlock at store No. 11
later that day but Spurlock "never did show up" and that thereafter he located
Spurlock in another store and was told by him (Spurlock) to report to store
No. 10.
Spurlock stated that he came into the office on an occasion while Vance and
Schuhmacher were talking, that he (Spurlock) called Clements and sent Vance
back to the store, that shortly thereafter Clements reported that he and Vance
had "tangled" and he (Spurlock) then authorized Clements "to get somebody
else." According to Spurlock, a week or 10 days later Vance contacted him
(Spurlock) and he (Spurlock) told Vance, "I'd see what I could find for him,
he wad, to call me back...the„next morning and I found a place for him and
put him at No. 10." "
W. C. Mitchell was employed by Respondent as store manager at store No. 10
during the calendar year 1948 and until around March 1949.18 Mitchell testified
that Vance was employed at store No. 10 for about 4 or 5 months and was dis-
charged January 29, 1949, because his work was unsatisfactory. Mitchell
stated that Vance was designated a portion of the grocery department to keep
up, to keep "the shelves stocked, the correct prices on them, the price tags under-
neath the merchandise and see that the stuff was in the shelves and Vance
couldn't keep his part of it up at all" ; "The merchandise wasn't marked right
and the price changes weren't made in his section. .. ."
Mitchell stated that Vance's work was unsatisfactory "since the first time he
was sent over to my store" and that the morning after "the quitting incident" "
Vance reported for work and.was told that his work would have to improve.
Mitchell stated on direct examination that Vance's"work did not thereafter im-
15 The substance of Clement 's and Spurlock 's testimony about this incident and Vance's
transfer to store No. 10, which the undersigned credits, appears more reasonable and
plausible than Vance's version.
11 At the time of the hearing Mitchell was employed as a salesman by the Schuhmacher
Company. ( Respondent and Schuhmacher Company are integrated to an extent. See
order Dismissing Complaint Issued February 1950.) .
17 According to Mitchell this "quitting incident" occurred in December 1948. See
footnote 11.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prove and on cross-examination that for a "week or so, he done a very good
job, but after that then, it was the same thing."
Mitchell also testified that "Middleways" during his (Vance's) employment
at store No. 10 Vance was given a pay increase, that he (Mitchell) was "told"
by Spurlock about the increase before Vance received it and that he (Mitchell)
did not "oppose" the increase. Mitchell testified that he "had a lot" of trouble
with employees not keeping'the shelves stocked ; that "we get employees coming
and going quite a bit that can't do the job" ; and that during the period of
Vance's discharge "we had a lot" of trouble with other employees keeping the
shelves stocked. Nevertheless Mitchell could not recall anyone other than Vance
that was discharged for this reason.
Mitchell testified that he did not talk to Vance or Spurlock about Vance's
work between the date of Vance's return to work after the above-mentioned
"quitting incidentii8 and the date of Vance's discharge and was unable to
explain what prompted the discharge on January 29, other than to state that
his. work was unsatisfactory.
Concerning the discharge, Mitchell testified that on January 29, 1949, he talked
with Spurlock about, Vance's work and that Spurlock said, "Well, go ahead and
let him go and tell him to call him [Spurlock] Monday morning if he [Spurlock]
could place him anywhere else, he would be glad to do it," and that he (Mitchell)
discharged Vance telling him his work was unsatisfactory and he would have
to be replaced.19 Mitchell admitted telling Vance at this time to call Spurlock
Monday morning.
The undersigned believes and finds that the reasons assigned by Respondent
for discharging Vance were not the true grounds therefor and, in the light of
the entire record, including especially the evidence outlined herein with respect
to Vance and the evidence with respect to Wanda Gray (outlined hereinafter)
that Vance was discharged because of his activities on behalf of the Amal-
gamated.
Wanda Gray (Mrs. F. L. Cooper) was employed by Respondent from about
September 22, 1948, to February 7, 1949, as grocery checker (operating the cash
register) at store No. 11. When first employed she received $30 per week and
at the time of her discharge Gray was receiving $32.50 per week. At the time
of her discharge Gray had been employed at store No. 11 longer than any other
checker at that store and was the first of three or four checkers at that store
to receive a raise in pay. Also at that time one of the checkers was still receiv-
ing $30 per week.
On February 7, 1949, about 8 a. in. and prior to the time when Gray was
scheduled to report for work, Clements, store manager, telephoned Gray and
told her "we are going to make some changes around here" and inquired "how
would you like to go into the Courtesy Booth on a night shift." When Gray re-
sponded, "Well, if I have to, I would" and told Clements she thought he was
"firing" her, Clements laughed and said, "Well, come down any time this
morning."" Gray immediately went to the store and conferred with Clements.
Clements told Gray, "I am going to have to let you go" and when asked. why,
said, "We are cutting down on our payroll and I am going to have to let you
go." Gray inquired, "Why me in fact I was the oldest employee out there I
is See footnote 17, supra.
"As noted above Vance, whose testimony the undersigned credits, testified that he
was not given any reason or explanation.
28 This finding is based on testimony of Gray which the undersigned credits. Clements
could not recall telephoning Gray the morning of her discharge or "saying anything about
workinj as a: courtesy booth girl at night."
MINIMAX STORES 139
mean, •I had been there longer than anyone else, the other checkers". and
Clements responded, "Well, it had come from the office, Mr. McBride told him to
let me go... ." Clements also said that possibly in a couple of weeks Gray could
go to work in the courtesy booth on the night shift and offered to help Gray
obtain other employment in the meantime.' Clements in this conversation also
inquired of Gray whether she knew "John Payne was having anything to do
with the Union or not" and Gray stated she didn't know. Clements also stated
Payne.had asked to be placed on "the Veteran's plan or whatever you call it"
and that he (Clements) "would look like a fool if he went ahead'and put
Johnny on a plan like that and then found Johnny had signed a union application
blank and they would have to fire him, or.they would fire him."22
At Clements' suggestion, on February 7, 1949; Gray went to Respondent's
offices and conferred with John Schubmacher. Concerning this conference Gray
testified credibly as follows:
Well, I asked him why I had been fired and he wanted to know what
reason Mr. Clements had given me, and I told him he said they were cutting
down on the payroll. He said well if that was the reason Mr. Clements had
given, that was the reason I was fired. I can't remember our exact words.
But I did ask him if I was fired because of the Union, because Mr. Clements
had mentioned earlier, he had advised me not to have anything to do with
the Union until such time as I could come back to work for -them. So I
asked Mr. Schuhmacher if that was the reason I was fired. He wanted to
know if Vance wasn't my brother, and he said, "Frankly, we don't appreciate
Vance hanging. around the store as much as he has been. We know he
has been talking to someone out there and we figured it was you." Then
he turned his back on me and I got up and left.23 -
After his discharge on January 29, 1949, Ed Vance (brother of Mrs. Gray);
continued his activities on behalf of the Amalgamated and made frequent visits
to store No.' 11 where he solicited members for the Amalgamated among Re=
spondent's employees.
James E. Burke, a witness called by the General Counsel, testified that about
February 5, 1949, John Schuhmacher and Ray McBride went to store No. 11 and
picked him (James Burke, then assistant store -manager at store No. 11) up and
the three of them in an automobile went about three or four blocks from • the
store and parked and discussed several things including the current union ac-
tivities.. On this occasion, either Schuhmacher or McBride told Burke that if
the Union did organize that would cut down the profits of the store, and the
store managers would earn less money.24 Ed Vance's activities in store No. 11
were discussed and it was suggested that "maybe if we eliminated her [Mrs.
Gray] be [Vance] wouldn't hang around so much and wouldn't give him an
excuse to be in the store." When these gentlemen returned to the store Clements,
21 Gray was not replaced.
22 These findings are based upon the testimony of Gray. Clements denied asking Gray
whether Payne had anything to do with the Union and denied talking to-Gray about
the G.J. plan and stating that he (Clements) would look like a fool if Johnny had signed
up with the Union, if he recommended him. These denials are not credited. Clements'
inability- to recall dates, names, places, and other circumstances concerning the events in
this case on cross-examination is striking in contrast to his definiteness on direct
examination.
as Schuhmacher's version of this conference is at variance with that noted above with
respect to details and Schuhmacher denied knowing, about the time of this conference,
that Vance and Gray were related to one another. Insofar as Schumacher's version
differs-from that outlined above-it'is not.dredited.
24 Store managers share a percentage of the profits.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store manager , joined the group and it was decided that Gray "was to be let
out." 25
On February 8, 1949, Gray returned to the store and asked Clements to get her
a letter of recommendation and Clements said he would do his best to get one,
that he thought "he could convince Mr. Schuhmacher" ; that Gray "hadn't had
anything to do with the Union."
Appioniihately 2 weeks after her discharge Gray 'Vent to store, No.' 11`and
while there Clements asked her if she "would like to come back out there" and
Gray stated she was employed and not interested.
Approximately 2 months after her discharge, while Gray was in store No. 11,
Spurlock asked Gray if she "didn't want to come back to work there" and Gray
told him she was not interested.
Gray was reinstated in July 1949 and worked until August 15, 1949, when she
voluntarily quit because her husband objected to her working.
Concerning the reason for Gray's discharge Respondent's counsel stated :
Wanda Gray was hired on or about September 22, 1948, discharged Febru-
ary 7, 1949. She worked at number 11 store. She was letting-let go be-
cause the Company had another checker that was coming back in February
and at that time, she was advised that she would be hired back just as soon
as the position opened up. A few days later, on or about March 4, 1949, Mr.
Spurlock contacted here [her] and told her she could have her job back as
another girl was being transfer red- to another store and-they had an^opening.
She did come back to work and in July 1949, and worked until about August
15, 1949, when she quit of her own accord, and stated to the store manager
sne was quitting because her husband objected to her working.
Olements testified that Gray was let go because of decrease in volume of business
at the store and a consequent necessary reduction of staff. Clements stated that
for a period of several weeks prior to the date of Gray's discharge he had had
some trouble 24 with her leaving her cash register unattended and'that he had
talked to her about, it on several occasions. He stated further that this trouble
would not have affected her employment had a reduction in personnel not been
necessary , but that when such a'reduction became necessary Gray's conduct was
taken into consideration and it was therefore determined to lay her off even
though she had more seniority than some of the checkers retained. Clements
testified that the weekly reports prepared in the office and sent to the store each
:week indicated a falling off of.volume of business' in; this department- and a con-
sequent necessary reduction in staff. Although there is evidence of constant
fluctuation in volume of business and that these reports are in written form they
were not produced at the hearing and no explanation of their absence was made.
In the light of the entire record it appears to the undersigned that Gray was
not discharged because of the reasons assigned by Respondent but because of
her relationship to Vance and the consequent probability that she was aiding
21 The testimony of Schuhnracher and McBride is not entirely in accord with that of
Burke and insofar as it varies from the findings made above, is not credited. When
viewed in the light of the entire record , Burke's testimony appears more plausible, more
definite, and less colored than that of the others involved and is credited by the undersigned.
26 This finding is based on the testimony of Gray. Also Schuhmacher's testimony
indicates that Gray asked him for a letter of recommendation . Clements stated Gray
never asked"about a letter' of'recommehdation andyhegcouldn't recall talkingtbther:'about
getting a letter of recommendation. He denied telling Gray he would have to convince
Schuhmacher ' she didn't have anything to do with the Union in order to get a letter of
reconrmendation. These denials are not credited.
n The store manager 's and assistant store manager's testimony as to the nature of this
"trouble" are not in accord.
MINIMAX STORES 141
Vance in his activities on behalf of the Amalgamated and the undersigned so
finds.
John B. Payne was employed by Respondent as a back door man (receiving
inbound. merchandise) at store No. 11 from about November 30, 1948, to Feb-
ruary 7,' 1949.
Payne..made application for- membership in the- Amalgamated the first. of-the
week prior to his discharge. He was given the application by Salinas, the store's
produce manager (a nonsupervisor).
On the Friday or Saturday prior to Payne's discharge James Burke, assistant
store manager at store No. 11, asked Payne "What do you know or what have you
heard about that union?" and Payne said, "I heard they were going to have one."
Then Burke responded that it was none of his (Burke's) business whether Payne
joined the Union but that "the Company was going to let go all the people who
were going to join the Union or had anything to do with it." (Burke's testimony
is substantially in accord. He (Burke) stated that he told Payne "it would be
risky business fooling around with it" (the Amalgamated) and admitted that
he told Payne he "thought anyone joining the union would be fired.")
On Saturday (February 5, 1949) while Payne was -filling the milk case Vance
passed by with a basket of groceries. Payne and Vance talked a few minutes
about the organizing efforts of the Amalgamated. When Vance left, Clements,
store manager, followed Payne into the back room and asked Payne what Vance
had.-heenS°talking about and., said that Vance had. created= quite a..rumpus with
the union business and that he (Clements) would rather that Vance didn't come
into the store.
On Monday, February 7, 1949, Clements asked Payne what he thought about
the Union and if he (Payne) had anything-to do.with it. Payne answered that
he (Payne) believed in unionism.and thought. it was a good thing. Clements
said to Payne "he felt' badly that morning because he was going to have to let
some people go in connection with the union, that he hated to do it" because he
had "a good crew and a smooth running store." Prior to this date Payne and
Clements had talked about a G.I. training course leading to store manager and
in this conversation, on February 7, Clements said he thought Payne would be
a lot better off if he (Payne) went on with the G.I. training and "forgot about
the rest of it." "
Around 11 o'clock on February 7, 1949, Payne received a telephone call at the
store from a person' who identified -himself as Mr.-=Howard or Coward (Payne
did not recognize the voice or name) .and inquired whether Payne "was' coming
28 Payne impressed the undersigned as forthright , sincere, and honest and the above
findings are based primarily upon his testimony. Clements testified that quite often, after
Vance no longer worked for the Respondent, that Vance was seen in store No. 11 and
that on one occasion he (Clements ) observed Vance In the back room and "as soon as I
walked out to the back room , he [Vance] left." Clements didn't "recall" asking Payne
-what "Ed- Vance was talking about in the back part of the store." or telling "Payne that
Vance was creating quite a rumpus about the Union." that he (Clements ) would rather
be (Vance) would not come In the store, in fact that he (Clements) did not want him
'(Vance ) around. Clements didn't "remember ever" having had any conversation with
Payne at any time while he was there about Vance contacting employees during working
hours and didn't recall ever telling Payne he didn't want Vance hanging around the store.
Clements dida-'t "remember" asking Payne what Payne "thought of the union" or
discussing it with him. Clements denied tellingg -Payne=that he."felt .bad" because "he was
going to have to let some people go," denied stating that he felt bad because he was
going to have to let a number of people go on account of the Amalgamated, that he hated
to do so because the store was running smoothly , and denied telling . Payne that he
(Clements ) understood he (Payne ) "wanted to 'take a O. I. training and that he , Payne,
would be better off if he took that and.be better off without the union ." On cross-
examination Clements stated he couldn ' t recall a conversation with Payne about putting
Payne on the veterans training program but stated that , possibly Payne did refer to it.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the union meeting. the next night." Payne responded' that. if there was a
union meeting he would be there. At the conclusion of the telephone conver-
sation Payne inquired of other employees in the store whether they knew a Mr.
Howard or Mr. Coward connected with the Union but ,he was not then, nor has
he been since that day, successful in -identifying such person 28 Also Respondent's
officials at the hearing were notable to, identify anyone by the name of Howard
or Coward.
At about 4:25 p.m. on February 7, 1949, Burke, assistant store manager, said
to Payne, "Johnnie, I hate to tell you this and Mr. Clements doesn't want to tell
you, but they are letting you ,go this evening and Mr. Spurlock [grocery super-
visor].is on his way out with your check.. . . ." A few minutes later Spurlock
came into the store and started: talking to Clements and Burke. Payne went to
where they were talking and said he knew he was going to be fired and that after
that phone call he knew exactly why, "for us not to go into detail or beat around
the busy [bush] about the-thing anymore.", Spurlock gave Payne his pay check
and Payne left the store. .
On February 8, 1949, Burke, during a conversation with Mrs. Gray, told her
that the day before (February 7, 1949) Payne had been fired and that `.`someone
had called Johnny. [Payne] asked him all about the union activities at No. 11,
asked how, Ed [Vance] was coming along." Burke told Gray that "Johnny
evidently told him everything. that was,said.how things were going-out there and
later that afternoon ,Mr. Spurlock brought Johnny's [Payee's] check, out
there."
Respondent's reasons for discharging Payne as stated by counsel were, as
follows :
He was employed November 30, 1948,' and he signed an application for
employment and he was told before he became a permanent employee, that
he had to have--had 'to undergo a medical examination. He reportedly
got off work to go to the doctor's office for examination, but did not secure it.
On the third occasion, he asked permission to get off and go for'the medical
examination. ' He reported to the company that he had gone to the doctor and
when the personnel man checked ' with the doctor and found he. had never
reported there, that, coming.;along with the reporter [report] from,.his prior
employer which was not of such a nature, commendable, that we could retain
him in as an employee and the company let him go.
Payne testified that he submitted his application for employment to Re-
spondent on or about November 30, 1948, and denied that he was informed at that
time that he would be required to undergo a physical examination. He stated
that between Christmas 1948 and the first of the year he was requested to take
a physical examination and . given 'the name. andaddress of the doctor to see.
Payne testified that he made-two trips to the doctor's office but on each occasion
arrived at the doctor's office too late in the day to take the physical examination,
that tentative arrangements were made for him to get off work early for a
third try but that on this occasion a. large shipment arrived at the store and he
was unable to leave and that.. tentative plans had been made for him to try
again on the day that he was discharged.
'0 Concerning this telephone conversation Clements testified :
Q. I believe the record 'shows that on February 7, 1949, the day Mr. Payne was
discharged,' he says be-find a phone conversation, were you present at that phone
conversation?
A. No sir.
Q. Did you • eavesdrop or listen in on any phone conversation?
A. No, I'm not in the habit of doing that.
30 No testimony concerning this conversation was given by Burke.
MINIMAX STORES 143
Payne denied that he told Clements that he had been to the doctor and taken
an examination.
Clements testified that he told Payne at the time Payne signed an applica-
tion for employment that it was a rule for all male employees to take a medical
examination, a' that Payne thereafter got off from work three times to take the
examination, that on the first two occasions Payne arrived at the physician's
office too late in the day to be examined but that the morning after the. third
try he (Clements) asked Payne About it and Payne said "he had been down
there and examined." Clements stated he then reported to the office that Payne
had taken the examination. Clements stated he later learned from the office
that Payne had never taken the examination and thereafter Payne was dis-
charged by Spurlock: Clements also stated that on occasions tentative plans
to let Payne off to take the physical examination were cancelled , "If a truck
happened to come in late, well naturally, we had to unload it."
Spurlock testified that Payne was discharged because of a combination of
reasons-an unfavorable report from a prior employer, complaints from the
store manager about Payne, and because of a failure to take a physical exam-
ination although he (Payne) reported that he (Payne) had taken it.
'A document received in evidence, which purports to be from one of Payne's
prior employers and allegedly was received by Respondent in the usual course
of business on or about December 21, 1948, states :
Employed from June 4, 1948 to November 4, 1948
Position held clerk in grocery Dept.
-- -----------------------------------------------------------•
Were services sa atissfac tory? No----------------------------------------------------------
Would you rehire? No
---------------------------------------------------------------------
If not, please state reasons Drinking on job. Would not work or let
anyone else
--------------------------------------------------------------------------------------------
Do you think this applicant would make us an effective employee No
Is applicant honest? Reliable? No
-- ------ ------------------------------------------
Do you know of any information which would make you feel that we
should not employ the applicant?
-----------------------------------------------------------------------------------------------
Date 11-18-48 Signature ( signed ) Percy White Mgr.------------------------------------------ ------
B & B Food Store #14
Hooston Texas (sic)
The above-mentioned report. is on a form on Respondent's stationery and bears
a stamp stating it was received by Respondent on December 21, 1948. Spurlock
testified he saw the report on or about that date but did nothing about it except
send it-,to Payne's personnel file.
According to Spurlock on the day that Payne was discharged, Schuhmacher
told him (Spurlock) that he (Schuhiacher) had checked with the doctor and
found out that Payne had not taken a physical examination, although Payne
had reported to Clements that lie had and Clements had so informed Schuh-
macher. Spurlock testified that he (Spurlock) thereupon sent for the personnel
file on Payne and in the light of the afore-mentioned report decided to discharge
Payne and did discharge him that evening.
Spurlock testified that he told Payne at the time he was discharged :
Told him I was sorry it didn't work out. He'd been warned to take his
physical and reported he had taken it and we found out he hadn't, along
with the reports we got back with his previous employer, there was nothing
else for us to do but discharge him.
31 It was a practice of Respondent to'require such an examination of male employees.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spurlock also testified that Clements told him (Spurlock) that Payne couldn't
keep his work up that he talked too much with men that called on him, such as
breadmen and milkmen and all the different deliveries. The record does not
- reflect the details of any such complaints by Clements, or that Payne's personnel
file reflected such complaints and this testimony by-Spurlock is not entirely
consistent with that of Clements.
Schuhmacher testified that Clements reported to him that Payne had said
that he (Payne) had been examined, that he (Schuhmacher) "waited then a few
days for the written report to come in from the doctor and when I didn't get it,
then I called the doctor to find out why it hadn't come in." According to Schuh-
macher he called the doctor ,"probably-three days maybe two, about that length
or time" prior to the date of Payne's discharge and the doctor stated that Payne
had. not been examined. Schuhmacher stated he passed this information to
Spurlock, that he and Spurlock then discussed-the doctor's 'report and the report
mentioned above from a prior employer and this combination was the reason
for Payne's discharge.
It is evident from the above outlined facts that one of the crucial points con-
cerning Payne's discharge is whether he reported that he had been examined
physically as claimed by Respondent or whether Payne's testimony is to be
relied upon. The undersigned has given considerable thought and study to
this matter and has concluded that the preponderance of credible evidence in
the entire case tends to support Payne and that his testimony should be accepted.
The undersigned was not favorably impressed by Spurlock or Clements and
Schuhmacher's testimony must be especially sifted before being relied upon,
and much is to be desired concerning Payne's alleged statement that he had
been examined,$2 and if so when ; concerning Clements' alleged report to the
office, to Schuhmacher or to whomever he reported such information, and the
motivation for Clements' action," if he did in fact report such. Payne's per-
sonnel file does not disclose any information concerning the alleged statements
of the physician although the record establishes that such files normally reflect
information received, either oral or written, bearing upon the qualifications
and fitness of individuals as desirable or nondesirable employees. Also the
physician allegedly involved herein did not testify in this proceeding. Further-
more, there is no evidence that this file reflects any report from Clements.
In addition the record reflects that, Payne has certain physical ailments but
that these were known by Respondent's officials at or about the time Payne
was employed. Allen, Respondent's assistant store manager at the time Payne
was hired, was Payne's supervisor at B & B Food Stores (the concern from
whom Respondent received the 'afore-mentioned report) and was aware of
Payne's ailments and these ailments were discussed with Clements and Allen
at the time Payne submitted his application for employment and Payne was
authorized to indicate on the application that he (lid not have any physcial
ailments or defects.
Payne's physical ailment (Bright's disease) if unheeded might seriously in-
82 The following testimony by Clements on cross-examination is especially noteworthy :
Q. You say at that tinre, he [Payne] told you he hadn't been down there for
his physical and you told them tsomeone in the office} then that he [Payne] had
told you he had?
A. That's right.
ax The reason assigned by Clenrents does not impress the undersigned as being the
true reason: Normally a medical report is made by the physician. Clements never made
any'similar report eoncerning'other emplocees'and Clements' explanation for the excep-
tiona l action in this instance is general and when analyzed carefully has color of an
afterthought.
MINIMAX • STORES 145
terfere with his work, but there is no evidence that, at or about the time involved
herein, it did in fact interfere therewith to an appreciable extent.
The sequence of events during the period of organizing activities and the
interrelationship of the unfair labor .practices found herein and their bearing
upon Payne's discharge also must be, and have been, considered in determining
whether Payne was discharged in violation of the Act.
Under all the circumstances the undersigned believes and finds that Payne
was discharged because of his membership in and association with persons
active on behalf of the Amalgamated.
Ogie Whitehead was employed by Respondent as -a produce clerk from July
1, 1947, to February 7, 1949. Whitehead worked at store No. 10 for about 6
months and then quit. He was called back after 2 or 3 weeks and sent to store
No. 4 for a few days and then went to store No. 8 where he worked until the
second week of January 1.949 at which time he was shifted to store No. 11. He
was working at store No. 11 at the time of his discharge.
On February 4, 1949, Salinas, produce manager, at store No. 11 (not a super-
visory employee) solicited Whitehead's membership in the Amalgamated and
gave him an application form. The next day (Saturday) Whitehead returned
the application, executed to Salinas. Salinas kept the application card about
30 minutes and then returned it to Whitehead stating "that they were going to
fire everybody that turned one in." 34 Whitehead then gave his Amalgamated's
application to another employee of store N'o. 11 (the butcher).
On Saturday, February 5, 1949, Whitehead observed Schuhmacher and McBride
in store No. 11. After their departure Whitehead asked James Burke, assistant,
store manager, "if Mr. Schuhmacher and Mr. McBride said anything about firing
the employees who joined the union" Burke said "he thought they were going
to fire everybody'that joined the union," and that "they had a list, one list of
names already." Whitehead asked Burke where they got the "list" and Burke
stated the Union had to turn in the list to the Employer."
On February 5, 1949, Ed Vance, Whitehead, and others in the rear of the store
talked about the Amalgamated. As Clements approached, Vance left. Clem-
ents told the employees "not to let Vance back there any more, that he was
trying to organize a union." 36
On Monday, February 7, 1949, Whitehead was advised via telephone at the
store by a friend of his (unnamed) that "they were giving me [Whitehead]
the runaround." Whitehead then asked Burke "if he knew anything about them
going to fire me" and Burke said, "not unless I [Whitehead] had been fooling
around with the union," that Whitehead didn't have anything to worry about
because "they couldn't let anyone go they didn't have to, on account of the
ones they might let go that joined the Union." 37 Later that day, February 7,
1949, Whitehead was discharged by Burke. Whitehead testified that Burke:
asked me if I remembered what I asked him about this afternoon. I said
yes. He said, "Well, it is the truth. They asked me to tell you tonight not
to come back tomorrow."
31 Salinas was discharged or laid off the same date that Whitehead was discharged,
but his (Salinas') discharge or layoff was not litigated herein.
36 Burke didn't recall whether he told Whitehead or someone else about the list but
stated he did tell one of the men "anybody joining the Union, the office would know
about it because the names had to be submitted to the office by the Union" and that he
advised Whitehead and others not to "fool around with" the Union. On cross-examination
by Respondent's counsel Burke denied that he ever told Whitehead "if he joined the union
he would be discharged."
as Not specifically denied by Clements. But see section, above, entitled John B. Payne.
34 Burke admitted that Whitehead inquired whether he was going to be let out and
stated that lie (Burke) told him not "to worry about it." Burke did not deny the
remainder of Whitehead's testimony.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's counsel with respect to Whitehead stated :
Ogie Whitehead was hired more or less as a helper in the Produce Depart-
ment as an extra and he worked in various stores, number one store, num-
ber ten store and number eight store and number 11 store. He was hired
in as an extra in the Produce Department as a helper and lie was let go
due to a reduction in forces in that department on February 7, 1949 and he
was told at the time, when they had other work they would have him back.
On February 19, 1949, Mr. Rowan, the produce supervisor, offered him, his
job back which he refused. (sic)
Whitehead testified that his employment was steady, regular, and continuous
except for the 2 or 3 weeks when he quit (supra) and a few days (one or two) of
sickness and that if he was "classified and treated sort of as an extra man in
the produce department" he didn't know it. Whitehead denied that Rowan
or any other management official of Respondent except as noted below, ever
offered him his job back. He further testified that subsequent to his discharge
(date not revealed) except for durilig summer of 1949 and while he was in store
No. 8 McCreight, store manager,
asked me what I was doing, how much money I was making, if I liked
;t, and he asked me how I would like to come back out there. I told him
I didn't know, that I would think it over. He said, "You keep in touch
with me," and he walked off.
A definite job or opening or compensation at Respondent's stores was not
discussed. Thereafter Whitehead was in store No. 8 several times, but nothing
was said about reemploying him.
Clements, store manager at No. 11, testified that Whitehead was let go
because of a necessary reduction of help in the produce department. Here as
in the case of Gray, records concerning the decrease of volume of business
and a consequent necessary layoff of personnel were not produced. Clements
testified that Whitehead was the junior in his department, having just been
sent over from some other store and that he was not replaced at that time.
Clements did not know when Whitehead was replaced. Clements testified that
he conferred with Rowan, produce department. supervisor, before discharging
Whitehead.
When Rowan was first employed by Respondent in January 1.949 as produce
supervisor (general supervisor of the produce departments in the 11 stores),
Whitehead was-working in store No. 8 as produce manager (nonsupervisor).
About January 1.5 Rowan transferred Whitehead to store No. 11 and demoted
him to produce clerk. Rowan testified that Whitehead was demoted because :
he wasn't cutting the, getting the best gross profit, and from the experience
I had worked with him those two weeks and the store managers of the
company, I didn't think he was an effective employee in the capacity.
Rowan testified that an attempt is made to keep salary expenses of the
produce department within a specified percentage of the gross sales of this
department and that percentage and volume figures are computed weekly. Rowan
testified that Whitehead was let go because of a drop in the volume of busi-
ness and Whitehead was selected instead of one of the other two clerks " be-
cause he (Whitehead) was not as effective in waiting on customers.
Rowan stated that during the latter part of February 1949 he (Rowan) tele-
phoned Whitehead where he was working (Huffington's) and asked Whitehead
38 These clerks had not been produce managers and had not worked for Respondent as
long as Whitehead.
MINIMAX STORES 147
if he wlis interested in going back to work for the company," that Whitehead
said lie was not interested at that time, and that he (Rowan) told Whitehead
if he ever did, come to me and maybe we can work something out-with you."
Rowan made a favorable impression upon the undersigned. Nevertheless
in the light of the entire record, including Whitehead's experience, the lack
of.evidence comparing the relative effectiveness of Whitehead and. the two
clerks,, retained except for mere statements that Whitehead was, less effective,
and including the timing of Whitehead's discharge in relation to his union
activities, the undersigned concludes and finds that Whitehead was discharged
because of his membership and suspected activity on behalf of the Amalgamated.
McCreight's inquiry as to how Whitehead "would like to come back there,"
in the opinion of the undersigned, is not the type of offer of reinstatement
contemplated after a discriminatory discharge. However, Rowan's offer appears
to fulfill all of the requirements. While Whitehead denied that Rowan or any
other management official except McCreight offered him his job back he (White-
head) 'was not confronted with the specific testimony of Rowan concerning this
matter. In resolving this conflict the undersigned has searched for possible cor-
roborating circumstances and notes that according to Rowan another employee,
Salinas, also contacted Whitehead at Huffington's, about going back to work for
Respondent and reported to him (Rowan) that he (Salinas) had made such
contact. The details of Salinas' efforts to get Whitehead to return and whether
he (Salinas ) was acting on behalf of Rowan is not revealed by the record
except that the record does infer that he was so acting. Salinas was not a
witness 'herein. Under the circumstances the undersigned resolves the con-
flict in favor of Whitehead and finds that he was not offered reinstatement.
Joyce Puckett (now Mrs. Guy Jones, Jr.) was first employed by Respondent
in September 1947 as a checker (checking purchases and accepting payment
therefor) at store No. 11 at $27.50 per week. She was thereafter raised to $30
as a checker and still later made a booth cashier in the courtesy booth at
$32.50 per week. She was employed as, a booth cashier in store No. 11 in October
1948 at $35 per week when she voluntarily quit. Puckett returned to store
No. 11 about November 28, 1948. At that time she accepted a temporary job
as checker, until a job as booth cashier opened. She was reemployed at $35
per week. After working as checker at store No. 11 for about 2 weeks, Puckett
was transferred to store No. 4 as booth cashier at $35 a week, and this is the
job she held-at the time of her discharge on February 7, 1949.
Puckett made application for membership in the Amalgamated on January
23, 1949, and was active on its behalf.
On February 5, 1949, Olen Scoggins, assistant store manager for that day,
asked Puckett if she "knew they were trying to organize a grocers union" and,
when Puckett responded in the affirmative, said "I don't know if you are a mem-
ber of it or not, but everyone that joins the Union will be fired." Scoggins' also
stated that "Jack Burt [the assistant store manager Scoggins was replacing]
was fired for joining the union and anyone else joining the union would be
fired too...." 3D
Concerning her discharge Puckett testified as follows :
I was punching my timecard out [on February 7] and be [Bishop, store
manager] came in the booth and I told him I was fixing to go home, and he
took a check out of the inside of his coat pocket and handed it to me and
so he said, "I am sorry to do this, Joyce." And I said, "Well,, how come
am I getting it like that." And he said well he didn't know, I would have
to call the office to find out about it, that he had been told by the office
so The undersigned accepts Puckett's version of this conversation rather than that of
Scoggins which differs substantially.
961974-52-vol. 95--11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to fire me and that he just worked for a big company and he had to do what
he was told.
Concerning Respondent's reason for Puckett's discharge Respondent's counsel
stated :
Joyce Puckett first went to work for Minimax September 6, 1947, at
number eleven store. She quit on October 7, 1948, at a time that Mr. Joe
Atkinson quit. She came back on November 28, 1948, and worked 25a
hours at store number 11 and was then transferred to store number four
on December 5, 1948. After she got over to store number four, she con-
tinued to get into arguments with the , manager and talked to, the customers
about the manager. The company supervisor talked to her about that to
mend her ways and she didn't do it, on February she was let go.
Puckett testified on cross-examination that she always got along with Bishop,
store manager at store No. 4, and denied that she "got in any argument with him
or anything," that she ever had any arguments or disagreements with Bishop
about her work, that she talked "to the customers about him," that she "ever
tried to run him down to the customers," and denied that Spurlock, supervisor,
ever talked to her about talking to customers about Bishop. Puckett stated that
a number of times Bishop had told her that her work was efficient and that about
4 or 5 days before her discharge Bishop, in her presence, told her father that
her work was good and that no other store manager was going to get her be-
cause he was going to keep her for his cashier.
After her discharge Puckett met Spurlock in a Walgreen's drug store and lie
inquired whether Puckett would like to go back to work. Puckett asked "doing
what," and Spurlock said "checking." Puckett indicated she "didn't want to
go back to work checking after I was fired as a booth cashier." Booth cashiers
normally receive more money per week than checkers.
Scoggins denied asking Puckett "if they were trying to organize a union there"
and denied telling her that Jack Burt was fired for joining the Union. Scoggins
testified on cross.-examination that Puckett asked him whether he knew.•.any-
thing about the Union and "I told her I didn't know, all 1--knew I was in the
union. You see I 'm logged in Local 211. . . ." He also testified that "Puckett
asked me what I thought about it, and I told her the union was all right, that I
belonged to the Union. That's when I walked off and left her, . . ." Scoggins
prior to his employment by Respondent was a member of Pipefitters and Plumb-
ers Local 211 and obtained employment with Respondent while out of work
because of a strike by Local 211. In the light of the entire record and from
observation of witnesses the undersigned credits Puckett rather than Scoggins'
version.
Spurlock testified that Bishop complained to him (Spurlock) that Puckett
resented him (Bishop) and talked to customers adversely about him (Bishop)
and, that he (Spurlock) talked to Puckett several times about her conduct and
that Puckett was discharged for "running down" Bishop to customers and be-
cause of her prior "walk out" (quitting in October 1948). Spurlock testified that
Bishop was a new manager in the store and "all the help resented him, didn't
work with him, so, along in there, there were several changes made in the matter
of a month or two. If I remember right, I think the whole entire, within two
month, the whole entire grocery organization almost was changed, that isn't
unusual, because we do that quite often." However according to Spurlock only
Puckett and.Jack Burt40 were discharged because of talking about'Bishop. As
noted above Puckett denied she talked to customers about Bishop and denied
Burt's discharge was not litigated herein.
'MINIMAX STORES 149
that Spurlock talked to her about "running down" Bishop to customers. Bishop
was not called as a witness herein and there is no explanation as to why he was
not called except that the record reflects he does not now live in Houston. How-
ever the record also reflects that he (Bishop ) came to Respondent from Beau-
mont, Texas, and after leaving Respondent's employment returned to Beau-
mont. The record reveals that an attempt was made by Respondent to locate
Bishop in Houston but does not reveal that efforts were made tof locate him, in
Beaumont or in any locality other than Houston.
Under the circumstances revealed by the record herein the undersigned credits
Puckett's.testimony and finds that she was discharged because of her member-
ship in the Amalgamated.
Spurlock's inquiring as to whether Puckett would like to go back :.to work
"checking" is not considered an offer of immediate and full reinstatement to
her former position or to a substantially equivalent position. .
Frankie Dee Barnes was employed by Respondent as a checker," from Feb=
ruary 5 to February 9, 1949. On or about February 9, 1949 ( Barnes,
was not sure of the (late) Barnes, her sister (Ruth Christiansen), and another.'
employee ( unnamed ), ate their lunch in a nearby Walgreen's Drug Store. While
sitting in a booth these employees discussed Christiansen,s "getting fired for
signing up" in the Union and the Amalgamated's meeting that was to be held
that night.42 When these employees observed the assistant store manager of
store No. 4 (where these employees, Barnes and the unnamed employee, worked),
sitting in an'-adjoining booth (back to' back with Barnes) they quit talking
about the Union and left the drug store. The employees did not ,say anything
to the assistant store manager and be did not say anything to them "he just
looked at us when we left." At the close of business that day the store manager
(Bishop), told Barnes that Spurlock had called him and was sending a girl to
take Barnes place, and that Barnes was to cone to the office and pick up her
check. The store manager stated to Barnes that he did not know why Spurlock
was sending a girl to take Barnes' place."
Barnes registered with the unemployment office and on February 23, 1949, was
referred by that office to Respondent's store No. 1. On that date Barnes was told
to report'for work the next morning. On February 2.4, 1949, Barnes reported for
work at store No. 1, at which time the store manager (Alr. Glover ) asked if she
hadn't worked at store number four and upon receiving an affirmative reply
stated that one of his old checkers had come back and he wouldn't need Barnes-
Respondent's counsel stated that Barnes had given in her employment applica-
tion her prior employment and on checking her reference, the report came back
unfavorable to her and she was let go.
Barnes was interviewed for employment by Spurlock who employed her. Dur-
ing this interview Barnes told Spurlock that she had worked as an extra or
part-time employee for Weingarten's Food Stores. However her written appli-
cation submitted the next day does not list Weingarten' s as a prior employer..
Barnes testified she didn't consider such part-time work important enough to,
mention in her employment application. Barnes last worked for Weingarten's
"about the last of January 1949"-immediately before she went to work for
Respondent. Spurlock at the conclusion of his interview with Barnes called'
Respondent's personnel office and requested that Barnes' last employer-
(Weingarten's) be checked. Thereafter Respondent's personnel office reported!
41 Checking the prices on merchandise selected by customers and accepting payment
therefor.
42 Barnes attended the meeting and signed an application for membership in the
Amalgamated. The application was signed after Barnes' discharge.
41 As noted elsewhere herein Bishop was not a witness in this proceeding.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Weingarten's report concerning Barnes indicated that.she. was -
unsatisfac-tory-"dishonest." On the basis of this information (.report from Weingarten's)
Spurlock called Bishop and told him (Bishop) to discharge Barnes. Spurlock's
testimony concerning Barnes, which is corroborated by reports, made in the. usual
course of business, is credited by the, undersigned.
Spurlock was in store No. 1 when Barnes applied there for employment and
he (Spurlock) told Glover not to hire her-"we got a bad report on the.-last
place she worked."
Spurlock denied, knowing that Barnes "ever belong to the Union" and de-
nied receiving any report of a conversation between "Barnes and her: sister and
another girl out of the Drug Department at lunch hour at Walgreen's."
The record is not free from suspicion of discriminatory motivation, neverthe-
less the undersigned believes and finds that the preponderance of evidence is in-
sufficient to sustain the allegations of the complaint with respect to Barnes.
C. Interference, restraint, and coercion
It would unduly lengthen this Report to discuss seriatim the 14 specific alle-
gations of interference, restraint, and coercion of employees in the exercise of
their right to self-organization. Much of the evidence relative to these allegations
is outlined above in connection with the evidence bearing upon the discharges
(especially the discharges of John B. Payne, Ogie Whitehead, Joyce Puckett, and
Wanda Gray) and only evidence, in addition to that outlined above, will now
be discussed.
Dorothy Shafer and Martha Demel each testified that about the first week
in February 1949 James Calvery, assistant store manager at store No. 6, came
to where she was working and interrogated her as to whether Hugh Gailey (back
door man at store No. 6) approached her about joining the Amalgamated. Cal-
very denied such interrogation."
Hugh William Gailey, an employee at store No. 6, joined the Amalgamated
"Around in.February, the first, 1 believe it was, sir, '49."
On February 1 or 2 Galley and another employee (McCracken) had a dispute
concerning the distribution of clean aprons. They were unable to settle the
matter between them and took it up with Florian, the store manager. After
talking to Galley and McCracken about the disputed matter Florian asked Mc-
Cracken and Gailey what they knew about the Union and when Gailey said he
didn't know much about it Florian responded, "Well we don't want any union."
Gailey learned that Calvery had asked Shafer and Demel whether he (Gailey)
had asked them to join the Amalgamated, and, on or about February 9, 1949
(Gailey) observed Schuhmacher, McBride, Florian, and Calvery talking in the
alley back of the store. Later that day Gailey said to Calvery "I hear the store
is going to get rid of me" and upon receiving an affirmative response, asked why.
Calvery said "Heard you were over at number nine talking about the union and at
that time, Mr. McBride wanted to fire you on that day but Mr. Florian took up
for you."
While Gailey was employed by Respondent he was training under a Govern-
ment training program to become a grocery manager.
On February 9, 1949, Florian again asked Gailey what he (Gailey) knew about
the Union and inquired what good the Union would be to Galley since Galley
was "on the GI training" and stated "The company don't want the union, I don't'.
want the union and you shouldn't." Florian went on to state "Well, you, know
that you have been beat out of a job by the union. . . . You were up for
promotion. . . . It was fixed for you to go over to number nine as Grocery,
" As hereinafter noted Calvery.' s denial is not credited.
MINIMAX STORES 151
Manager." Gailey responded, "I'm sorry, I would have liked to Have the job"
and Florian said, "Well, the union beat you out of it." Galley stated "Well, may-
be the boy won't make it, maybe I can stand, a chance later on to get it" -and
Florian said, "Well maybe so. As far as the union, these people that are signing
up now, if you do get the union, it will never do you all no good, you won't be
here.... As far as the union, there are a thousand reasons a person could be
fired from a job." Florian also told Galley that if he joined the Union, he'd be
fired "like all them other people."
Around the first of February, Kenneth Sims, then international representa-
tive for the Amalgamated, conferred with McCracken, a butcher in store No. 6.
About 5 minutes after Sims walked away Florian asked McCracken whether
Sims was an organizer for the Amalgamated. Upon receiving an affirmative
reply Florian commented that since the butchers were already organized" he
thought it was "none of our damn business to organize the clerks" and said
"if they went union, Mr. Schuhmacher, would have to raise the price of canned
goods a penny each can or more in order to pay the grocery clerks and checkers
and all, said he didn't care if they went up on groceries, just cut down on their
help and lay somebody off." McCracken further testified that Florian on several
occasions interrogated him about Amalgamated's activities.
McCracken testified that Florian told him (McCracken) that the reason be
(Florian) couldn't promote Galley "was on account he was a trouble maker,
agitator," that Florian told him (McCracken) "he [Florian] was going to have
to dismiss Mr. Galley because he was agitating trouble around there and every-
thing and that if it didn't stop, he was going to dismiss me and all the rest of
them and if this union's talk and cigarette smoking and all that stuff in the
back room-all that had to be cut out."
Calvery testified that Schuhmacher, McBride, Florian, and he had several
conversations "out in" the alley, that Schuhmacher and McBride had stated
to him that they had heard "they" were trying to organize retail clerks and
had asked Oalvery if there.had been anyone in the store trying to organize.
He also testified that Galley was working under the G. I. training program, that
Florian had recommended Galley for promotion to assistant manager , that at
one time Gailey was up for promotion to assistant manager at store No. 9, and
that he (Calvery) talked to Galley and told him that he was under training
to become. store manager and in line for a promotion and if he got the job the
Union would not mean a thing to him. Calvery testified this was the only
conversation he had with Galley about the Union. Calvery did not deny the
specific remarks attributed to him by Galley.
. Florian testified that in February 1949 Galley and McCracken had a dispute
concerning the distribution of clean aprons which they were unable to settle
between them, and he (Florian) talked to them about it and told them to try
to get along together. Florian denied asking Galley whether he had belonged
to the Union, whether he (Galley) was soliciting union membership, and denied
that he told Galley that he (Florian) was going to fire everybody that joined
the Union.
Florian testified he never interrogated any employee about their union activities
and denied asking Galley what he knew about the Union. Florian did not
specifically deny stating to Galley "Well we don't want any union."
Florian stated that Galley was working under the G. I. training program,
that around the first of the year, 1949, he (Florian) recommended Galley for
promotion, and that at that time Galley was being considered for promotion
to assistant store manager at store No. 9, but that Galley didn't get the promotion
"There Is, a contract between Respondent and the Amalgamated concerning butchers.
-152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he (Gailey) asked the checker at store No. 9 to check his groceries out,
without charging him (Galley) for. them.. Florian stated that he told Gailey
about this promotion and told him that the reason he didn 't get it was because
of these activities at store No. 9.
Florian denied that he stated to Galley "you're on this GI training matter, that
the company does not want th`e`union, I don't want the union;' and you shouMn't
want the union" and stated that he (Florian) discussed the Union with Gailey
and "explained to him that I didn't know whether he was going to want to join
the union or not, but I made the statement that I couldn't see where the union
would help him since he was on the GI training program and he was being
trained for Assistant Managership and the union doesn't fit that part of the pro-
gram." Florian denied telling Galley that "he would not get the position because
of the stink he was causing over the union." Florian testified that Galley in-
quired when he (Gailey) was going to get his promotion and that, he (Florian)
said he didn't know that he had recommended Galley and it was now up to the
supervisor, that Galley then asked what Florian thought of the Union and he
{Florian) said, "Well, I'm not against it or I'm not for it and I don't know how
you feel about it or whether you want to join or not join it, but since you' re under
the GI training program, I can't see where the union would help you too much
but it's your own interest or own business, none of my business."
Florian denied stating to Gailey that "he'd be fired or he wouldn't get the
promotion for joining the union," denied stating ""any of the-employees would be
discharged because they joined the union" or "engage in union activities" and
denied that be told Galley "you have been beat out of a job that you were up for
promotion to go to number nine because of the union."
Florian admitted that he told Gailey "that there were one thousand reasons for
firing a person from the job aside of the union" and was unable to recall when
the conversation occurred, what prompted his remark, or what the conversation
was about.
Florian testified that during the entire length of time that Galley worked at
store No. 6 he was "unsatisfactory," that "he was doing a poor job" and "cursing,"
and that he was a "trouble maker and agitator." He also testified that a few
days after the apron incident he (Florian) considered discharging Galley but
,didn't discharge him because he had heard of Galley's union activities and was
afraid it would "look like I discharged him for trying to join the union." Never-
theless, according to Florian, he (Galley) received several automatic raises while
under his (Florian's) supervision, he (Gailey) was recommended for promotion
around the first of the year and prior to the apron incident, and was considered
for a promotion to assistant store manager around the time of the apron incident.
Also according to Florian after Galley missed the promotion to assistant manager
at store No. 9 he (Florian) and Gailey had another conversation about Galley's
promotion and he (Florian)'told Galley he (Florian) would recommend him
(Galley) for promotion but when he would get it, "I couldn't promise him."
Florian further testified he never told Galley he (Florian) had considered dis-
charging him.
Florian testified that be learned of the union organizing campaign prior to the
conversation with McCracken and Galley about the aprons, that he learned
about it from Schuhmacher and McBride, and that they (Schuhmacher and
McBride) came out to the store and told him (Florian) "they thought the union
was working our stores and to be sure the employees didn't take the company's
time to discuss the union problems and not to let the employees talk about the
unions in the stores." Florian stated further that he talked to Galley about the
union "during all the union's activities," that he told Galley he (Florian) had
heard something about the union, and that "we didn't want the employees taking
MINIMAX STORES 153
the company's time discussing union and union policies, they would take it on
their own. time."
Florian did not know whether the checker at store No. 9 involved in the al
leged incident of Gailey requesting free groceries is still in the employ of
Respondent. In any event she was not called as a witness . Also'Tyron, manager
at store No. 9, was not called.
Florian testified that two men came into the stare and talked to McCracken
"about thirty 'minutes" and that after they left he (Florian) asked McCracken
"who the men were, and he [McCracken] said that he didn't know and I [Florian]
told him he shouldn't waste his time talking while we had a lot of customers
to be waited on." Florian denied asking McCracken at that time "whether these
men were signing any people up with the union" and denied ever asking Me-
Cracken "who was running the union deal."
Florian denied telling McCracken that he (Florian) "could not promote Galley
because he was agitating for the union" and stated that he hold McCracken "I
couldn't promote him, [Galley] on account of he was an agitator in the store.
Florian stated that this conversation occurred in the first part of 1949 and
about the time the union campaign was going on. It is not clear from the record
whether Florian explained to McCracken at that time what he meant by "agi-
tator" although McCracken's testimony indicates Florian said something about
"agitating for the unions." According to Florian he meant "not getting along
with all. the employees.in the store, having so much trouble with him."
As noted above Florian's testimony indicates that Gailey's- "unsatisfactory"•
work and "trouble maker and agitator" attitude were not sufficiently serious to
warrant withholding of increases in pay and recommendations for promotion
and the record does not reveal any remarks concerning his (Gailey's) being a
"trouble maker" and "agitator" until the advent of the Amalgamated.
Under the circumstances revealed by this record and from observation of
witness, where there are conflicts of testimony the undersigned credits the tes-
timony of Wanda Gray, Dorothy Shafer, Martha Demel, Hugh Galley, and/or
J. E. McCracken rather than the testimony of Calvery, and/or Florian.
D. Arbitration efforts
Immediately following the afore-mentioned discharges, and others which
occurred about the same time, officials of Respondent and officials of the Amal-
gamated conferred and fruitless efforts were made to adjust these matters. At
these conferences arbitration and posting of a notice advising employees of their
free right to engage in organizing activities without fear of retaliation were
discussed. Without reaching a final agreement concerning a notice, the parties
decided to select appropriate arbitrators. Thereafter counsel for Respondent
and counsel for the Amalgamated, two of the arbiters agreed upon, conferred
concerning a third. A formal stipulation for arbitration together with a pro-
posed notice was thereafter presented to counsel for Respondent. However
counsel for the parties were not able to agree upon a suitable notice and arbi-
tration efforts were abandoned.
It is not clear from Respondent's answer and the record herein whether
Respondent contends that the afore-mentioned efforts to arbitrate should be
considered in determining whether the discharges herein were violative of the
Act or, whether Respondent contends that this proceeding should be dismissed
because the "charge" on file at the time of the efforts to arbitrate,48 was with-
drawn, without prejudice, and later filed under a different case number (39-CA-
40 See 39-CA-34.
154 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
43) and used as a basis for the complaint herein.- In any event the. undersigned
believes both contentions without merit.
The undersigned has not found any authority for holding that withdrawal,
without prejudice, of pending charges, while parties attempt to adjust their
differences bars, filing of another charge (after fruitless adjustment efforts)
embodying some of the allegations contained in the original charge and issuance'
of a complaint .based upon this subsequent charge.
In the opinion of the undersigned, normal efforts to settle or adjust alleged
violations of the Act should not be considered in determining the merits of such
allegations. Nevertheless, in making the afore-mentioned findings and con-
clusions the undersigned has considered the entire record herein and all elements,
including the efforts toward arbitration, bearing upon Respondent's motives
or "good faith" have been considered.
ULTIMATE FINDINGS AND CONCLUSIONS
In view of the foregoing and upon consideration of the entire record, the
undersigned finds and concludes :
1. Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL, and Retail Clerks' International Association, AFL, are labor organiza=
tions within the meaning of Section 2 (5) of the Act.
2. That Respondent discharged Edwin (Ed) Vance on or about January 29,
1949, Mrs. F. L. Cooper (Wanda Gray) on or about February 7, 1949, John B.
Payne on or about February 7, 1949, Ogie Whitehead on or about February 7,
'1949, and Mrs. Guy Jones, Jr., (Joyce Puckett) on or about February 7, 1949,
because of their affiliation with the Amalgamated and their concerted activities
for their own mutual aid and protection and Respondent, thereby discriminated
with respect to hire and tenure of employment and discouraged, membership
in the Amalgamated and interfered with, restrained, and coerced its employees
In the exercise of the rights guaranteed in Section 7 of the Act.
3: That Respondent since February 1949, by warnings and threats of reprisals
and by interrogation of its employees, interfered 'with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7 of the Act. '
4. That the aforesaid unfair labor practices are unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (1) and (3) and-Section-
2 (6) and (7) of the Act.
5. That the evidence adduced is not sufficient to sustain the allegations of
the complaint, as amended, to the effect the Respondent discriminatorily dis-
charged Frankie Barnes.
6. That the evidence does not support the allegations of the complaint, as
amended, that on or about February 9, 1949, Mr. A. N. Bishop, store manager
of Minimax store No. 4, stated in substance to an employee that the reason the
Company had been hiring [firing] employees at store number four was on
account of the employees having joined the Union. (Paragraph 7 (I) of the
complaint.) '
IV. THE REMEDY
Having. found that Respondent has engaged in unfair labor practices it will
be recommended that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It will be recommended that Respondent offer to Edwin (Ed) Vance, John
B. Payne, Ogie Whitehead, and Mrs. Guy Jones, Jr. (Joyce Puckett),. and each
of them, -immediate and full reinstatement to their former or substantially
equivalent positions,' without prejudice to their seniority or other rights .and
47 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
INTERNATIONAL PAPER COMPANY 155
privileges. It has been'found that Mrs. F. L. Cooper (Wanda Gray) approx-
imately 2 weeks and again approximately 2 months after her discharge stated
to officials of Respondent that she was not interested in returning to work for
Respondent and that thereafter she was reinstated in July 1949. Accordingly
no recommendation of reinstatement will be made with respect to her. How-
ever it will be recommended that she be made whole for any loss of pay suffered.
It will- also be recommended that Respondent make whole the aforesaid em-
ployees,-and each of them, for any loss of pay they may have suffered by reason
of the discriminations against them. The losses of pay shall be computed from
the date of the discrimination to the date of a proper offer of reinstatement.
In the case of Mrs. F. L. Cooper (Wanda Gray) for a 2-week period from Feb-
ruary 7, 1949. In computing the losses of pay the customary formula of the
Board shall be followed. See F. W. Woolworth Company, 90 NLRB 289.
In order to insure expeditious compliance with 'the recommended back-pay
order it will be further recommended that Respondent be ordered, upon
reasonable request, to make all pertinent records available to the Board or its
agents.
Respondent's illegal activities, including the aforesaid discharges, go to the
very heart of the Act and indicate a purpose to defeat self-organization of its
employees and that there is danger that the commission of other unfair labor
practices proscribed by the Act is to be anticipated from Respondent's conduct
in the past. The preventive purpose of the Act will be thwarted unless the
order herein is coextensive with the danger. Accordingly, in order to make
effective the interdependent guarantees of the statute and thus effectuate the
policies of the Act, it will be recommended that Respondent cease and desist
from engaging in the unfair labor practices found and from in any other manner
infringing upon the rights of employees guaranteed by the Act and that
Respondent post the. notice attached hereto as Appendix A. (See Standard
Dry Wall Products, Inc., 91 NLRB 544.)
Since it has been found that the evidence is not sufficient to sustain the
allegations of the complaint, as amended, to the effect that Respondent dis-
criminatorily discharged Frankie Barnes and not sufficient to sustain para-
graph 7 (I) of the complaint, as amended, it will be recommended that these
allegations be dismissed.
[Recommended Order omitted from publication in this volume.]
INTERNATIONAL PAPER COMPANY ( SOUTHERN KRAFT DIVISION) and
LODGE 1365, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETI-
TIONEL: Cases Nos. 15-RC-443,15-RC-4173, and 15-RC-475. July
42, 1951
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Andrew P. Carter, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed .1
'The request by the Joint Intervenors filed on June 4, 1951, for permission to file a
supplemental brief is denied, as in our opinion the facts and issues in these cases are
fully set forth in the record and briefs in this proceeding.
95 NLRB No. 15.