O. A. Fuller Super Markets, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1965

152 N.L.R.B. 217 (N.L.R.B. 1965)

0. A. FULLER SUPER MARKETS, INC. 217
ity on behalf of the International Ladies' Garment Workers' Union, AFL-CIO,
or any other labor organization.
WE WILL NOT threaten employees with discharge or with any other action
because they become members of, work for, of engage in activity on behalf of
the International Ladies' Garment Workers' Union, AFL-CIO, or any other
labor organization.
WE WILL NOT question our employees about their membership in, assistance
to, or activity on behalf of, the International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization, in a manner constituting interfer-
ence, restraint, or coercion in violation of Section 8(a)(1) of the Act.
WE WILL NOT create the impression that we aie obtaining information about
our employees' union activities by stating that we know about statements given
to the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or work for the above-named Union or any other labor orga-
nization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or
mutual aid or protection, or to refiain from any or all such' activities.
WE WILL offer Waymon Lavon Wallace immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges.
WE WILL make Waymon Lavon Wallace and Charles Flinton whole for any
losses they may have suffered by reason of our discrimination against them.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of the above-named Union.
MOULTON MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE-We will notify Waymon Lavor) Wallace if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No.
876-3311, Extension 5357, if they have any questions concerning this notice or
compliance with its provisions.
O. A. Fuller Super Markets, Inc.' and Retail Clerks Union, Local
1557, and Amalgamated Meat Cutters & Butcher Workmen's
Union , Local 405, AFL-CIO
O. A. Fuller Super Markets, Inc. and Retail Clerks, Local 1557.
Cases Nos. 10-CA-5620 and 10-CA-5709. April 29, 1965
DECISION AND ORDER
On January 15, 1965, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
' The name of Respondent appears as amended at the hearing.
152 NLRB No. 26.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel filed exceptions to the Trial Examiner's Decision and
a supporting brief. Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that prejudicial error was committed. The rul-
ings are hereby affrmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions, the briefs, and the entire record in these
cases , and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations only to the extent that they are consistent with
the following.
1. By February 10, 1964, virtually all employees at Respondent's
supermarket in Tuscumbia, Alabama, had signed union authorization
cards. On that day, a union representative gave copies of the signed
cards to store manager Davis. Shortly thereafter Davis said to
employee Johnson, "I see you signed the card, the Union card," and,
after receiving an affirmative answer, added, "I wonder who started
it?" Johnson did not reply. The General Counsel alleged that by the
foregoing, Davis had unlawfully interrogated Johnson about union
activities. According to the Trial Examiner, however, "this was no
interrogation (despite the reporter's insertion of a mark)," and no
reply was expected. We do not agree with this inference of the Trial
Examiner. When Davis initiated the conversation with Johnson about
the latter's signing of a union card, Davis already knew from the
authorization cards given to him that Johnson had signed one. Davis'
engaging Johnson in conversation about signing a union card was
therefore meaningless unless he had some other motive for doing so.
The "I wonder" statement followed immediately after Johnson had
confirmed having joined the Union. We do not believe, as the Trial
Examiner apparently did, that in making this statement Davis was
talking to himself, and that neither he nor Johnson expected a reply.
A more likely evaluation of the conversation is that in "wondering"
out loud about the union leadership, Davis was probing for the names
of the leaders. The fact that Johnson did not reply to Davis' state-
ment does not prove that Johnson understood that no reply was
expected of him. His silence is as attributable to unwillingness to
inform on his fellow employees as to a belief that he was not being
questioned. We infer and find, contrary to the Trial Examiner, that
Davis interrogated employee Johnson as to the union leadership among
the employees, and that by so doing Respondent violated Section
8(a) (1) of the Act.2
2Arkansas-Loui8iana Gas Company, 142 NLRB 1083, 1089; The Ready-Mix Concrete
Company of Lawrence, Kansas, 142 NLRB 502 , 506-507.
0. A. FULLER SUPER MARKETS, INC. 219
2. The Trial Examiner found that Respondent did not discrimina-
torily discharge Larry Lewis. We disagree.
Lewis entered Respondent's employ in May 1963 as a stockboy and
became a checker in January or February 1964. A checker in a super-
market is the employee who checks out a customer's purchases and col-
lects payment therefor. Lewis joined the Union in February 1964, and
Store Manager Davis admittedly learned of this fact on February 10,
1964. Thereafter, according to Davis, he formed the impression that
Lewis was speaking to other employees about the Union.
On May 9, 1964, Davis discharged Lewis. When asked the reason
by Lewis, Davis listed the following (according to Lewis) : politicking
for the Union; smoking, drinking, and eating behind the checkout
counter or in the checkout lanes; being discourteous to customers; and
having a dirty checkout lane. Davis admitted that he had told Lewis
that one of the reasons for discharging him was that he had been poli-
ticking for the Union. Although the Trial Examiner concedes that
Davis' words about politicking for the Union "would support a find-
ing of discriminatory discharge," he finds that Davis "used the wrong
words in suggesting one reason when he was in fact ... motivated by
another...." As to this the Trial Examiner found :
... I am impressed by Davis' statement that he objected because
Lewis was blocking the checkout lane, although he did not say
that, and charged him with politicking in the lane. While Davis'
words would support a finding of discriminatory discharge, it ap-
pears from the entire testimony that he merely used wrong words
in suggesting one reason when he was in fact ... motivated by
another, i.e., Lewis' attitude as manifested by his discourtesy.
Thus, the Trial Examiner seems to be saying that in using the words
"politicking for the Union" Davis meant "blocking the checkout lane,"
but that the real reason for the discharge was neither of these but
Lewis' discourtesy toward customers .8
We do not agree with the Trial Examiner that Davis' statement to
Lewis about politicking was a use of wrong words and that he actually
meant to refer either to blocking the checkout lane or discourtesy to
customers 4 It is difficult to understand how a person of Davis' appar-
ent intelligence and position could have used words to describe the
first, when he meant either of the other two. Moreover, Davis' testi-
mony indicates that politicking, blocking of the checkout lane, and dis-
courtesy to customers were three distinct ideas in his mind. Thus,
a By discourtesy to customers , Davis apparently meant that Lewis failed to say,
"Thank you , come again ," on checking out customers.
' The overriding impression of Davis' testimony as a whole is its lack of "consistency
and inherent probability ," ( Universal Camera Corporation v. N.L.R B , 340 U S. 474,
496), and of constant shifting in his explanations for the discharge of Lewis. See
N.L.R B. v. Georgia Rug Mill, 308 F. 2d 89 , 91 (C A. 5).
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to Lewis' uncontradicted testimony on this point, Davis gave
politicking for the Union and discourtesy to customers as two separate
reasons for the discharge. Further, Davis testified that before dis-
charging Lewis, he had prepared a list of reasons for the discharge.
Politicking for the Union and blocking of the checkout lane were
apparently listed as two separate reasons on this list. Davis also testi-
fied that he gave the politicking reason to Lewis, but did not mention
blocking of the checkout lane, because he did not read all the reasons
for the discharge from the list which he had prepared. In other words,
Davis' testimony was that he had failed to mention blocking the lane,
not that he had referred to it as politicking. Finally, at the close of
his cross -examination , after the distinction between blocking the check-
out lane and politicking for the Union had been explored, Davis
answered affirmatively when asked by the General Counsel if politick-
ing for the Union had been a reason for the discharge of Lewis.5
Accordingly, we reject the Trial Examiner's finding that, when
Davis gave as one of the reason's for Lewis' discharge, the latter's poli-
ticking for the Union, Davis actually meant to refer either to Lewis'
alleged blocking of the checkout lane or to his alleged discourtesy to
customers . To the contrary, we conclude that we are amply "justified
in accepting respondent's announced reason [s] at . . . face value." 6
We find that Lewis' protected activities-what Davis termed his "poli-
ticking"-were a "substantial . . . motivating reason' 1 7 for his dis-
charge, and that therefore Respondent violated Section 8(a) (3) and
(1) of the Act by discharging Lewis.
THE REMEDY
Having found that Respondent has engaged in unlawful interroga-
tion in violation of Section 8(a) (1) of the Act, we shall order that it
cease and desist therefrom and to take certain affirmative action in
order to effectuate the purposes of the Act.
5 The following is Davis ' testimony on this point:
Q But you did tell him [Lewis ] when you fired him that one of the reasons for
discharging him was because he was politicking for the Union"
A. Yes.
Q That was one of the reasons 9
A. Yes.
6N.L:R.B. v. Corning Class Works, 293 F. 2d 784, 786-787 (CA 1).
7 The full statement from N L.R.B. v. Whiten Machine Works, 204 F 2d 883, 885
(C.A 1) is as follows
In order to supply a basis for inferring discrimination , it is necessary to show
that one reason for the discharge is that the employee was engaging in protected
activity . It need not be the only reason but it is sufficient if it is a substantial or
motivating reason , despite the fact that other reasons may exist [ Emphasis supplied ]
There is no need therefore to consider whether any of the multitude of other reasons
advanced by Davis for Lewis ' discharge , including discourtesy , were in fact involved in
the decision to discharge Lewis see also N L R B v Jamestown Sterling Corp , 211 F.
2d 725 , 726 (C A . 2) ; Butler Brothers v. N L.R.B., 134 F. 2d 981 , 985 (CA 7) ; Wil-
liams Motor Company v . N.L.R B., 128 F. 2d 960 , 964 (C.A. 8).
0. A. FULLER SUPER MARKETS , INC . 221
Having found that Respondent discharged employee Lewis in viola-
tion of Section 8 ( a) (3) and (1) of the Act, we shall order that it cease
and desist from such unlawful conduct and post the usual notices. We
shall also require Respondent to offer Larry L. Lewis immediate and
full reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suffered by reason
of the discrimination against him by payment to him of a sum of money
equal to that which he would have earned as wages from the date of the
discrimination to the date of the offer of full reinstatement , less his
net earnings during said period, in the manner prescribed in F. V.
Woolrwortli Company, 90 NLRB 289, and with interest on the backpay
due in accordance with Board policy set out in Isis Plumbing ct Heat-
ing Co., 138 NLRB 716.
As the Respondent 's discriminatory discharge of Lewis is of a nature
striking at the roots of employee rights guaranteed by the Act, we shall
also order that Respondent cease and desist from infringing in any
other manner upon the rights guaranteed in Section 7 of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Upon the foregoing findings of fact and the entire record in this
case, we hereby delete the Trial Examiner 's conclusion of law 3, and
adopt new conclusions of law 3 through 6 as follows :
3. By interrogating employee Johnson as to "who started " the pro-
tected activities amongst its employees, Respondent has interfered
with , restrained , and coerced employees in the exercise of rights guar-
anteed them in Section 7 of the Act , in violation of Section 8(a) (1) of
the Act.
4. By discharging employee Larry Lewis because of his Union activ-
ity, Respondent has engaged in unfair labor practices as defined in
Section 8 ( a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
6. Respondent has not engaged in unfair labor practices except as
stated in paragraphs 3 and 4 above.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, O. A. Fuller Super Markets, Inc., its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in, or activities on behalf of , Retail
Clerks Union , Local 1557, Amalgamated Meat Cutters & Butcher
Workmen's Union, Local 405, or any other labor organization , by dis-
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging or in any other manner discriminating against any of its
employees in regard to hire or tenure of employment or any other term
or condition of employment, because of their union membership or
activities.
(b) Interrogating its employees as to activities on behalf of any
labor organization, in a manner constituting interference, restraint, or
coercion in violation of Section 8(a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to join
or assist the aforementioned or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which the Board finds is
necessary to effectuate the purposes of the Act.
(a) Offer employee Larry L. Lewis immediate and full reinstate-
ment to his former or a substantially equivalent position, without prej-
udice to his seniority and other rights and privileges, and make him
whole for any loss of pay he may have suffered by reason of the dis-
crimination against him, in the manner set forth above in the section
entitled "The Remedy."
(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act in 1948, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, and all other records necessary and appropriate
to determine the amount of backpay due under the terms of this Order.
(d) Post at its store in Tuscumbia, Alabama, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for Region 10, shall, after being duly signed
by Respondent's representative, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
its employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 10, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
0. A. FULLER SUPER MARKETS, INC. 223
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges violation of the Act not found
herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activities on behalf
of Retail Clerks Union, Local 1557, Amalgamated Meat Cutters
& Butcher Workmen's Union Local 405, or any other labor orga-
nization, by discharging or in any other manner discriminating
against our employees in regard to hire or tenure of employment
or any other term or condition of employment, because of their
union membership or activities.
WE WILL NOT interrogate employees as to activities on behalf of
any labor organization in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist the aforementioned 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 pro-
tection, or to refrain from any and all such activities.
WE WILL offer to Larry L. Lewis immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay he may have suffered as a result of
our discrimination against him, in the manner provided in the
section of the Decision entitled "The Remedy."
All our employees are free to become or refrain from becoming mem-
bers of the above-named labor organization.
O. A. FULLER SUPER MARKETS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-In the event the above-named employee is presently serving
in the Armed Forces of the United States we will notify him of his
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE.,
Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if
they have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
The consolidated complaint herein (issued June 22, 1964; charges filed February 24,
April 3, May 14, and June 8, 1964), as amended, alleges that the Company has
violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat.
519, by discharging Larry L. Lewis on or about May 9, 1964, and failing to reinstate
him, because of his protected concerted activities; and Section 8(a)(1) of the Act
by said alleged acts and by interrogation and threats in connection with union activ-
ities and desires. The answer, as amended, admits the discharge and failure to
reinstate Lewis but denies the allegations of violation. A hearing was held before
Trial Examiner Lloyd Buchanan at Tuscumbia, Alabama, on September 11, 1964.
Pursuant to leave granted to the parties, a brief has been filed by the Company.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Company, a Tennessee corporation with prin-
cipal office and place of business in Nashville, Tennessee, operates retail grocery
supermarkets in Tennessee and Alabama, the store in Tuscumbia, Alabama, being
alone involved in this proceeding; that during 1963 the Company received gross
revenue in excess of $500,000, and purchased and received supplies valued at more
than $500,000 from suppliers located outside the State of Alabama; and that it is
engaged in commerce within the meaning of the Act.
It was admitted and I find that the Unions are labor organizations within the
meaning of the Act.'
II. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(a)(I)
It was stipulated that, of 14 eligible employees, all but 3, the store manager's
wife, the meat market manager's wife, and I other, signed union cards, all apparently
on or before February 10, when union representatives appeared at the store, showed
the cards to Davis, manager of the store, and gave him copies.
1. Threat
Employee Mitchell testified that late in February or early in March he asked Davis
why another employee had quit and was told it was done to get a job with another
market. Continuing, Mitchell asked whether he had gotten the job, and Davis
replied that he thought not When Mitchell asked, "Why not?" Davis replied,
"Possibly because of the card he signed "
One can recognize, in the last remark, an element of warning of the result of such
a union activity. But I do not regard it as a threat or warning by Davis even if it
were being claimed that he was "getting a punch in" on being questioned by Mitchell.
Without attempts to foist his own opinion on the employees, Davis was here evidently
guessing and expressing an opinion at Mitchell's request. Under the circumstances
it would be silly to argue (and it has not been argued) that Mitchell was asking for
the other store's reason if Davis actually knew.
'At the hearing, reference was made to "the Union" and to union cards without
differentiation
0. A. FULLER SUPER MARKETS, INC. 225
2. Interrogation
Mitchell also testified that on February 8 or 15 Bass, the meat market manager,
asked him whether he knew of any plan to organize a union in the store. (If true
and if before the cards were shown to Davis on February 10, this would show com-
pany knowledge of union activities for possible bearing on Lewis' discharge although,
as we shall see, the evidence concerning Lewis' union activities is meager.) Mitchell
allegedly replied that there was no use in lying: he had signed, to which Bass remarked
that he thought that a union was for a larger store than this one.
Whether Lewis was correct in his statement that the cards were signed 2 weeks
before they were shown to Davis (he testified, "We signed the Union card on Monday
night, first part of February"; Mitchell testified that he signed on Thursday, Febru-
ary 6), it is clear that Bass' alleged inquiry occurred, if at all, before February 15, and
therefore on February 8. The latter categorically denied that he questioned Mitchell
or discussed the Union with him at any time. I am reluctant to make a credibility
finding in favor of Mitchell on this direct and simple "did, did not" situation. My
observation of the witnesses' demeanor is of no help here. Aside from Mitchell's
reference to his signing on February 6, we do not know the extent of any organiza-
tional activities before February 8 or how knowledge of such activities was com-
municated to Bass. Although there is evidence of somewhat earlier signing, con-
ceivably the mass signing to which Lewis testified took place immediately before the
cards were shown to Davis. (All of this review of bits of the testimony magnifies
it beyond any importance which the General Counsel has claimed for it, whatever
attempt may hereafter be made at a "fragment by fragment" analysis.) Finally in
this connection, and aside from the trifling nature of the alleged question, we have
neither such systematic interrogation of employees nor such context of interference
as would support a finding of violative interrogation by Bass.
In the absence of evidence of early discussion or other union activity, the record
would warrant a finding that Davis' knowledge of such activity stemmed from the
showing of the cards on February 10. Employee Johnson testified that on the
evening when the cards were shown to Davis or the next day, Davis said to him,
"I see you signed the card, the union card," and after receiving an affirmative answer,
added, "I wonder who started it?" Johnson apparently did not reply. It seems, as
it evidently did to Johnson, that this was no interrogation (despite the reporter's
insertion of a mark) and that no reply was expected. Nor would I find a threat or
other tendency to interfere in this brief simulacrum of Hamlet.
B. The alleged violation of Section 8(a)(3)
Lewis was discharged on May 9, allegedly for cause. He testified that Davis had
never criticized his work although, about 2 weeks after the cards were signed, Davis
had told him that for the past 2 weeks he had been "about the sorriest" of all the
employees he had ever had.
Contrariwise, Davis testified that Lewis had started out as a pretty good checker
in January but that after 1 or 2 weeks he stopped being courteous to customers;
and Davis spoke to him about this 10 or 12 times "all along." He testified further
that Lewis would sit on the checkout counter and would not get up to wait on
customers and that he smoked and ate at the checkout counter, "but the main thing
was being unfriendly to customers." (Lewis knew that it was company policy to
say, "Thank you, and come back.") Davis also mentioned Lewis' smoking and
eating at the checkout position. While I credit Davis generally, I do not credit his
statement that he did not know of other checkers smoking there. He did add that
some checkers eat and drink on the checkout lines or lanes that they frequently step
out to do this. What might be overlooked in others could trigger the discharge of
one who has seriously or more frequently transgressed.
If not clearly spelled out, the impression left by the various witnesses for both
sides is that on one hand these latter things were not flaunted or brazenly done by
the employees while management on the other hand made a show of enforcement
but winked at eating, drinking, and smoking at the checkout counters. It can be
understood that such activities might be engaged in between waiting on customers
rather than while they were actually being served. This was suggested by Young,
the senior checker and a reliable witness, who testified that she was sympathetic 2
to the General Counsel and has seen Davis himself smoking in the checkout lane
although she would not say that he was checking out at the time. Young testified
similarly that she eats on the checkout lane about every day. Yet, while she noted
2 The fresh cask long keeps its first tang. Horace, Ep. I, it, 69.
7 89-7 3 0-6 6-v o f 152-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Glynn, the district manager, walked in one day while she was eating an apple,
she added that she doesn't usually do that in his presence- "It was more or less under-
stood" that she was not to do that.
Davis testified forthrightly that he does not try to do "too much" about such trans-
gressions. While he spoke to Lewis several times about smoking up front on the
checkout line, the situation is correctly portrayed in Lewis' statement, not contra-
dicted, that Davis once had said to him that if Glynn walked in he should be pre-
pared to swallow his cigarette. But thanking customers and asking them to come
back is recognized as an important aspect of courtesy upon which management
insists; and the credible testimony is that Lewis became remiss in this respect to the
point that Davis described him as being, during the last 3 or 4 weeks (we recall that
Lewis placed the comment several months earlier), the sorriest employee he had
ever had.
A questionable and even contrary note creeps in with Davis' testimony that, while
his main and most serious objection was Lewis' lack of courtesy, and he did not give
Lewis the various reasons which he had for discharging him, he did tell Lewis that
he was discharging him for politicking for the Union. With respect to the facts in
this connection, Davis testified that Lewis did a great deal of whispering which, while
he did not hear what was said, Davis figured was about the Union. (He had never
heard Lewis talk about the Union, and did not ask whether he was talking about the
Union.) But more important than such facts is Davis' motive particularly in the
light of his statement to Lewis about politicking for the Union; and that statement,
part of the res gestae, carries great weight in any assessment of motive even if Davis
did not actually know what Lewis was discussing.
As we weigh all of the facts and weigh the credibility of the various witnesses,
I am impressed by Davis' statement that he objected because Lewis was blocking
the checkout lane, although he did not say that, and charged him with politicking
in the lane. While Davis' words would support a finding of discriminatory discharge,
it appears from the entire testimony that he merely used wrong words in suggesting
one reason when he was in fact, as the evidence clearly indicates, motivated by
another, i.e., Lewis' attitude as manifested by his discourtesy. Lewis' whispering
and presumed union talk, or his union activity generally does not appear to have
been different from that engaged in by other employees and, at the moment, by
whichever employee had joined him in any given conversation.
Davis' naive reference to politicking, which would generally determine the issue
against the Company, is here overcome by his credited explanation and by con-
sideration of the attendant circumstances. We have in this case a "pretext" situation
in reverse. What appears on its face or per se to be an admission against interest
was credibly explained by Davis 3 While recognizing Davis' remark when he had
sufficient valid reason for the discharge, I emphasize two other facts: his apparent
acceptance of the union activities of the other employees for several months without
animus and the limited extent of Lewis' union activities.
Lewis' attitude (not with respect to protected concerted activities) is exemplified
in his remark to another employee after Davis had told him to do something, that
he would do it this time but that, after the Union came in, he would tell Davis what
to do! Lewis testified only that he did not recall whether he had said this. Lewis
was not discharged for this, nor does it appear that Davis knew of the remark. But
the incident helps to describe and explain Lewis' attitude and his lack of courtesy
as described. I distinguish between lawful, if annoying, assertiveness in connection
with protected concerted activities, which is sometimes encountered, and a chip-on-
the-shoulder or devil-may-care attitude which manifests itself in poor work perform-
ance and which Lewis exhibited.
From all of the testimony, I am persuaded that discipline in the store is less than
Spartan; but that Lewis exceeded the permissible and permitted bounds of dis-
courtesy considerably beyond the 2 percent of the time which he admitted. As
Young testified, employees were circumspect in their conduct when they transgressed
what are generally regarded as rules for proper store conduct. (We have yet to
consider the written rules.) Having observed Lewis, I believe that his lack of
restraint stemmed not so much from a lack of understanding as from a newly
acquired but unwarranted and excessive boldness.
Basically, the question is whether the Company, 3 months after submission to it
of signed cards 4 could lawfully discharge one of the 11 (any one since Lewis' activity
does not appear to have been significantly greater than that of the other 10), whose
work lacked an important element, lesser and more prevalent shortcomings aside.
8 Cf. Rubin Bros. Footwear, Inc., et al, 99 NLRB 610.
We do not know what, if any, steps were thereafter taken with respect to representa-
tion. There is no claim here of violation in that connection.
0. A. FULLER SUPER MARKETS, INC. 227
I have not overlooked Lewis' testimony on cross-examination that he talked to
two employees for the Union during working hours and that he talked to others
about the Union; and that this was done up front while he was sacking groceries
behind the checker . Were we compelled to guess, it would be that his conversation
for the Union took place early in February since all except the wives of the managers
and one other employee had signed by February 10. (Lewis was talking "for," not
merely about the Union ; he asked an employee whether he was going along or would
wait to join. ) Company knowledge under the small plant rule would presumably
be acquired at that time. As for talk about the Union, the evidence indicates that
talking is quite general in the store and, again inferring company knowledge, talk
about the Union would evidently be favorable on the part of the various employees,
including Lewis, since virtually all had signed cards. There appears to be no sig-
nificant aspect here as far as Lewis is concerned. If, as we recall, Davis figured that
Lewis was whispering about the Union, this would be neither strange nor unusual.
Lewis also testified that he talked "some" after the cards were shown to Davis, and
finally that he was so engaged right up to the time he was discharged.
Despite the questionable element in Davis' reference to Lewis' politicking in the
checkout lane, I find that Lewis became less courteous to customers and was dis-
charged for that reason. Davis testified that Lewis' work became worse and worse
and that he had spoken to Glynn about firing Lewis; but that , after the cards were
submitted to him, he took no action for fear of getting "into trouble ." As noted,
there was no reason connected with union activities for singling out Lewis among
all of the employees for discharge in May. ( No independent interference vis-a-vis
Lewis is claimed . He testified that before his discharge no supervisor had ever
mentioned the Union to him directly.)
If, for whatever reason , Davis merely criticized Lewis' work after he was informed
of the signed cards, Lewis did not thereby acquire any right to continue to treat
customers without the required courtesy or to get "worse and worse ." If Davis
did not discharge Lewis in February because he feared possible Board involvement,
he was not thereafter barred from taking such action nondiscriminatorily.
Davis acted on his own observation , not on any reports by Bass or Hellums, who
is regarded as a supervisor . Bass does not appear to have reported to Davis his
own observations of Lewis' lack of courtesy. But such observations bear on the
issue whether Lewis in fact was discourteous to customers . That he was dis-
courteous was further testified to by Hellums, whose favorable attitude toward the
Union had changed and who, although not certain , was thereafter pretty sure that
he reported Lewis' lack of courtesy.
Lewis' shortcomings have been found without reference to various written rules.
But despite his uncertainty and his denial of some of these, it is clear that there was
distributed and he received at least two sets of written rules. Davis testified that
each checker signed for a copy of the rules distributed at the first of the year. While
his testimony was not confirmed by production of the signed sheet , it is clear that
the rules were distributed , and I have no reason to doubt it . Young supported
Davis' testimony in this connection . Lewis admitted receipt of one set and, while
he could not recall whether it was before or after the cards were signed , Davis fixed
the time as being approximately a month before the cards were shown to him.
Because, as we have noted, Lewis was discharged primarily because of his manner
toward customers , and there is no question but that the rules stressed courtesy and
that he recognized the requirements in that respect, the evidence concerning other
rules and transgressions is significant more for its bearing on credibility with respect
to Lewis' attitude toward customers than for the extent or seriousness of such other
transgressions.
Further bearing on credibility is Lewis' denial that on an occasion when Davis
rebuked him he had been sitting on the checkout stand with his feet on a garbage
can. Confronted with his earlier statement to that effect, he admitted it was true.
We have found that, despite Davis' reference to politicking by Lewis when he
did not know what Lewis was saying and when other employees also talked, Lewis
was in fact discharged for cause , would have been discharged earlier, and was not
discriminated against. Although a tendency to interfere can be found in Davis'
remark against politicking , standing alone as interference rather than discrimination
this incident is minimal.
If any suspicion of violation exists, it is because of the General Counsel 's diligent
pursuit of isolated bits which suggest transgression by a store manager experienced
in the mechanics of his duties but quite ingenuous or inartful with respect to certain
legal requirements . Despite the latter's lack of dissimulation , and indeed because
of it , I credit his testimony and find that he did not discriminate against Lewis.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Clerks Union, Local 1557 is a labor organization within the meaning of
Section 2(5) of the Act.
2. Amalgamated Meat Cutters & Butcher Workmen's Union, Local 405, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (3) or (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the complaint be dismissed in
its entirety.
United Park City Mines Company and Frank E. Stindt. Case
No. 07-CA-1576. April 09,1965
DECISION AND ORDER
On February 8, 1965, Trial Examiner David Karasick issued his
Decision 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 attached Trial Examiner 's Deci-
sion. Thereafter , the Respondent filed exceptions to the Trial Exam-
iner 's Decision and a brief in support thereof.
Pursuant to the provision of Section 3 (b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Trial
Examiner 's Decision , the exceptions and brief , and the entire record in
this case , and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended , the Board hereby adopts as its Order , the Order recom-
mended by the Trial Examiner and orders that the Respondent, United
Park City Mines Company, its officers , agents, successors , and assigns,
shall take the action set forth in the Trial Examiner 's Recommended
Order , with the following modifications :
As Utah is a right-to -work State, the phrase "except as authorized
in Section 8(a) (3) of the Act" is deleted from paragraph 1(d) of the
152 NLRB No. 18.