Owens Market, Inc.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 257 (N.L.R.B. 1979)

OWENS MARKET. INC.
Owens Market. Inc. and Retail Clerks International
llninl, IA)Cal 1167, AFL,-('IO. Cases 31 ('A 7950
and 31 CA-8135
May 14. 1979
DECISION ANI) ORDER
BY CHAIRMAN FANNING ANI) MIMBRS PNII 1.O
ANI) TRI SDI)AI.I'
On January 31. 1979. Administrative Law Judge
Russell L. Stevens issued the attached Decision in this
proceeding. Thereafter. the General Counsel filed ex-
ceptions and a supporting brieft: and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act. as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briet'
and has decided to affirm the rulings. findings.' and
conclusions: of the Administrative l.aw Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of' the National l.abor
Relations Act. as amended, the National l.abor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent. Owens Market. Inc..
I The General (Coulnsel hs excepted o cerltain credihilitl findings made hs
the Adlministrative Law Jdge It is the Bard' eslablished poli cy not to
,overrule an adminl stra:llve law jldge's resolitions with respect t credhlitI
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dn, Wall Predtwfltsr Inc.. 91
NLRB 544 1950). enil. 188 F.2d 362 (3d ('ir. 1951). We have carefully
examined the record and find no basis lir resersing his findings
I We agree with the Administrative law Judge that Respondent did not
condone conduct like Willianms' in the presence or customers. and that such
conduct, rather than Williams' support of' the Ulnion. was the ;ause of his
discharge. See MrcDonald' ('i rorlaion ondll ilts hl!t s-ned luhbitdiarl.
McDonuld' o/ Khtla. 200 NI.RB 359 1972).
The Administra;ltle I.aw Judge found that Supervisior Strauss' statement
to employee Rodnec Grlas that "he didn't want to hear any more about the
Union hecause there ails people oult in the siore " dlid not cnstitute
siolation of Sec 8(ia I) if the Act. In collcluding th;t Straluss' stltenlent did
not constitute a iolatilon of the Act, the Adnninlstrase I law Judge staled
that Gra! '"apparentl construed Stred aiss' statement as safetl warnilng
rather than a oercive prohibition rn union talk " The record does not reflect
the context in which the statement was made. While we agree that the stlate-
ment does not constitute a violation of Sec 8(a), we di nt relv upon the
rationale of the Adminislratixe law Judge Rather, we find that the state-
ment is too ambiguous to he sonstrued ais n unlawful prohibition agalinst
employees discussing the nion
In his reciummended notice. the dministrative law Judge refers t a
reduction of hours for emploee Diavis from "50 to 40" per week, The record
reflects, and the Admillstratlve l.aw Judge found. that )avis' hours were
reduced from 54 to 40 per week. Accordingl the attached notice is suhstl-
tuted for that f the Adm itratie l.aw Judge in oirder to correct this inad-
,ertent error
Hesperia. Calif'ornia. its officers. agents, successors.
and assigns. shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
APPENI)IX
No()ll('E 1() EMPI.()YFiS
P()S [:I) BY ORI)ER ()F 1i
NAII()NAI. LABOR RII.AIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence. the National l.abor Relations
Board has fotiund that we violated the National Labor
Relations Act, as amended, and we have been or-
dered to post this notice.
W: Iv.. NOI interfere with. restrain, or coerce
our employees in the exercise of their rights guar-
anteed in Section 7 of the Act, in violation of
Section 8(a)( ) of the Act, by interrogating our
employees concerning their union activities, sym-
pathies, and vote: by threatening our employees
with reduced work hours, reprisals. involuntary
disclosure of voting store closure. demotions, job
loss, hodily harm. refusal to deal with the U nion.
and withholding or reduction of' hbenefits because
of' their union activities and sympathies b cre-
ating the impression of surveillance of employ-
ees' union activities: b promising benefits if'em-
plo:ees will discontinue their suppport of the
Union: by stating to an employee that reduction
of work hours and pay is what happens "when
you go with the union."
WI \ III NO I violate Section 8(a)(3) and (I) of
the Act by reassigning employee Pool to a cleri-
cal job from his former job as head of the pro-
duce department. with reduction of work hours
from 50 to 40 per week, and corresponding re-
duction of earnings, and by reassigning em-
ployee Davis to a clerical job and relieving him
of duties related to closing the store, with reduc-
tion of' work hours from 54 to 40 per week. and
corresponding reduction of earnings.
Wl WIll. Nor in any other manner interfere
with. restrain. or coerce our employees in the ex-
ercise of their right to self-organization. to tform.
join, or assist labor organizations. to bargain col-
lectively through representatives of their own
choosing. and to engage in concerted activities
for the purposes of collective bargaining or other
mutual aid or protection as guaranteed by Sec-
tion 7 of the Act. or to refrain from any or all
such activities.
242 NLRB No. 47
257
I)t EISIONS ()F NATIONAL I.ABOR RELATIONS BOARD
Wi: wili.. make employees Pool and Davis
whole for the loss of earnings suffered by reason
of our discrimination against them, with interest.
OW!ENS MARKET, IN(C.
I)EC('ISION
Statement of the Case
Russil.l. L. SIAEINS. Administrative Law Judge: 'This
matter was heard before me in San Bernardino. California.
on November 15, 1978.1 The complaint in Case 31 CA
7950 is based on a charge filed on May I by Retail 'lerks
International Union. Local 1167, AFI. ('10. The original
charge and first amended charge in Case 31 C(A 8135. were
filed by the Union on June 19 and 27, respectively. he
Regional Director for Region 31 of the National L.abor Re-
lations Board consolidated said two cases for hearing and
issued a consolidated amended complaint' alleging that
Owens Market, Inc. (herein called Respondent. or Owens
Market), violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein called the Act).
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been care-
fully considered, were filed on behalf of General Counsel
and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor. I make the following:
FINI)IN(S ()i FA( I
I. Jt RtS)I¢I IO)N
Respondent is, and at all times material herein has been,
a corporation duly organized and existing under and by
virtue of the laws of the State of California. with an office
and principal place of business located in Hesperia, Califor-
nia, where it is engaged in the retail business of operating a
grocery and variety store.
In the course and conduct of' its business operations. Re-
spondent annually purchases and receives goods or services
valued in excess of $50,000 from sellers or suppliers located
within the State of California, which sellers or suppliers
received such goods in substantially the same form directly
from outside the State of California. In the course and con-
duct of' its business operations, Respondent annually de-
rives gross revenues in excess of $500,000.
I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section 2(6)
and (7) of' the Act.
11. IE ABO)R OR(ANIZ/.AION INV)I Vt)
Retail Clerks International Union, I.ocal 1167, AFL
CIO, is, and at all times material herein has been, a labor
organization within the meaning of' Section 2(5) of the Act.
I All dates hereinafter are within 1978 unless stated to be otherwise
2 The complaint was further amended by the Acting Regional Director fir
Region 31 on October 20.
Itl. 1111 Al.i(;Lt) NIAIR AIBOR PRA( I1('1
A. Backgrount'tP
Kenneth Owens4 and his wife Leatris Owens for many
years have owned the grocery market involved in this con-
troversy. The Owen's daughter. Karma, is married to Ed-
ward ('alvert. In past years the ('alverts owned a grocery
market in Riverside. California. Owens became seriously ill
in the recent past, and the Owenses arranged to sell the
store to the Calverts. It was agreed between the Owense
and the Calverts that the Calverts would assist in the opera-
tion of the Owens' market. pending completion of the sale.
C('alvert commenced working at Owens Market 2 or 3 days
each week during the first part of April. Commencing in the
middle of' May. ('alvert worked at Owens Market 5 days
each week and has continued that schedule since then, as-
sisted by his wife. At the time ('alvert assumed part-time
managerial duties in April, Harold Williams was store man-
ager: Don Strauss was manager of the grocery department:
Harold Pool' was a clerk in charge of the produce depart-
ment, working 50 hours each week:2 Gary l)avis was a
clerk7 who was responsible for the store' and its closing.
between 6 and 9 p.m.. with a working schedule of 54 hours
per week; Rodney Gray was a clerk-cashier: and Linda
Williams was a cashier.'
The principal union advocate at Owens Market was Pool,
who first talked with a union representative in early April,
at which time there were approximately 13 employees. 'Ihe
union representative gave Pool several union authorization
cards, which Pool distributed to employees. Pool later
picked up cards that were signed and returned them to the
union representative. Pool's card, signed April 18, was
amnong those signed and returned, as were cards otf l)avis,
(iray, and Williams, all signed April 19.
On April 26, Pool met with L. Owens, and he later met
with L. Owens, the two (alverts, and Strauss. During the
latter conversation Pool was told he was going to be taken
out of the produce department. and that his hours would be
reduced. Those actions later were taken, effective the week
ending May 9. Pool's hours were reduced from 50 to 40,
with an accompanying reduction of pay because of the re-
duced number of hours. Pool was later terminated on June
15. allegedly for drinking on the job. An 8(a)(3) charge was
filed by Pool, but the charge was dismissed by Region 31.
On approximately April 26, Davis met with H. Williams,
Strauss, L. Owens. and the two Calverts. During the con-
This background summary is based on uncontradicted testimony and
facts not in dispute.
4 Individuals generally are referred to herein by their last names or b) first
initial and last name.
There is no dispute about the act that Pool was nt a supervisor dithin
the meaning of the Act at any time relesent herein
Pol commenced working foir Respondenl Oclber 6,h. 1977, t 41) hours
per week. He was put in charge iof the produce department. and his hours
changed to 54 hours per week in late 1977. Ilis hours were reduced ti 50 per
week in February at his own request.
I Respondent co ntends that D)avis was a supersisor within the meaning of
the Act, as discussed in/ra
tie swas responsible for the tore after 6 p i only d no supervisor or
manager was present.
9 Respondent admits, and it is ound, that I.. Owens. 11. Williams, Strauss.
L Calvert. and K. (Calvert were supersisors withil the meaning of the Act at
all times material herein.
258
OWENS MARKET. IN( .
versation Davis was told his hours were going to he re-
duced. Thereafter, Davis was relieved of his duty to be re-
sponsible for the store after 6 p.m. when no other member
of management was present, and his duty to close the store
at 9 p.m.; his hours were reduced from 54 to 40. with a
corresponding reduction in pay. I)avis voluntarily quit his
job on August 19.
On April 26. I.inda Williams met with II. Williams, the
two Calverts. and for a brief time during the meeting, ..
Owens. On June 13 I.inda Williams was terminated b\ .
Calvert.
B. Istues
The principal issues are whether the hours and pay of
Pool and Davis were reduced and Linda Williams was dis-
charged because of their union activity. Respondent con-
tends that Pool's hours were reduced because a new em-
ployee was assigned to manage the produce department due
to Pool's inadequacies: that Davis' hours were reduced and
his duties changed because of Davis' failure to close the
store at the proper time; and that I.inda Williams was dis-
charged because she was an unsatisfactory employee. Mli-
nor issues involve several 8(a)( 1) allegations. Respondent
contends that Davis was a supervisor.
1. Alleged 8(a)( I) Violations Pool
Pool testified that on April 26 he had a private conversa-
tion with I.. Owens, and that during the conversation:
Well, Mrs. Owens asked me if I was the chicken shit
son of a bitch that started this union bit mess. and I
told her I wasn't.
And she said. "Well, if I ever find out who started
this God damned stuff, I will kill him."
Pool further testified that .. Owens said that she knew
where he picked up the signed union cards, and she told
him to whom and where he delivered them.
Pool said he talked with L. Owens again about I hour
later in the presence of the two Calverts and Strauss. Pool
testified:
Well, Karma told me that they was taking me out of
produce, and they was bringing a fellow up from the
other store to take over the produce department and
that I would be working in groceries with l)onny. and
I said, well, "T'hat is well and fine, hut how about the
money situation?"
And she said, "Well. this is what happens when ,ou
go with the Union."
Pool further testified that K. ('alvert or L. Owens. he did
not remember which one, asked if Pool had signed a card
and if he would vote for the Union.
No testimony or evidence relative to these 8(a)l I)allega-
tions was introduced by Respondent.
2. I)iscussion
Pool was a convincing witness and is credited. F. C'alvert
testified, but his testimony did not reach Pool's testimonY
I.. Owens and Strauss did not testif,'. thus there is no denial
of Pool's allegations.
K. Calvert is alleged to be an agent of Respondent. and
that allegation is well supported b the record. 'he proof is
clear that K. C'alvert is the daughter of the Owenses; that
the ('alverts were in the process of purchasing Owens Mar-
ket at times relevant herein: that K. (alvert participated in
managing the market and in discussing managemenit mat-
ters with employees in the presence of; and without ch.al-
lenge h. I.. ()Owens: and that K. ('alvert's statements were
authoritative and were the statements of Respondent.
It is found that on April 26 Pool was interrogated and
threatened by I.. Owens and K. Calvert in violation of the
Act, ts alleged in the conplaint: and that, similarl. ..
Owens gave Pool the impression that his union activitles
were being subjected to surveillance.
3. Alleged 8(a1)(I) Violations l)avis
Davis testified that approximatel I week after he signed
the union card he met with Strauss I.. O (vens. II. Williams.
K. alvert. and for a short period of tiime. F. ('alvert. l)ais
testified: Strauss asked that he return the keys to the store.
which D;a\ is had used to close in the evening. and I.. Owcns
said "'How could ou do this to him?' I)axis asked wlihat
she meant, and I.. ()wens replied, '"lhis thing with the
union. low could ou do this''" Davis then explained the
employees' tdesire to bargain as a group. and Strauss stated.
"We knos ou have all signed authorization cards lo(r the
union." Davis continued. "It was also said that there w as
no wag that the owner would harailln with the Inion or
have an\thing to do with the Union,. that the store UIould be
closed and beftore the! whould let the OLnion come in." later
in the dax I)asis talked gain %with . ()elis and Strauss:
"l.eatris asked me wh\ we decided to go union and I told
her. I said for benefits .... ;Abou I week later )ax is again
talked with Strauss. and Strauss ag;aill asked ". .. s we
decided to go union. alnd he said they were very surprised
that I had signed a card. ,oou know, that I had signed tan
authorization card and iasked me inm reasons for goinge
union ... Respondent did not den any! of ).ais' eti-
mon .
4. I)iscussion
Davis is credited. lThere is neither denial"' nor contrary
proof offered b Respondent. The impression of' sulxeil-
lance, interrogatories. and statenlents made b (aiand in the
presence of). members of management while talking with
Dasis clearly are coercive.
It is found that on or about April 26 D)avis xas inte[ro-
gated b L. Owens and Strauss concerning his union activi-
ties and sympathies: that he was given the impression that
the employees' activities were being observed by and .were
known to Respondent: and that he was threatened with
refusal to deal with the rnion, and with store closure, if the
Union represented the employees. Said interrogations im-
pressions. and threats constitute siolations of, the Act. as
alleged in the complaint.
"()iher han in the pleadi ng
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Alleged 8(a)(1) Violations-Gray
Gray testified that approximately I week after he signed
a union authorization card on April 19, he had a conversa-
tion with Strauss and the two Calverts. Gray said that he
was asked if he had signed a union card, his reasons for
signing the card, and how he was going to vote in the union
election. Gray said "they" stated, ". .. the union wasn't
going to come in the store," and "... they wanted to know
how I was going to vote, so that they could say ... whether
they were going to cut my hours,["] so that Kenny Note:
K. Owens] would know whether I-whether he stood with
me, and Donny [Note: Strauss] said that they would be
coming into the store if any union employee stepped into
the parking lot, the private lot, he would run over with his
truck." Gray said "they" denied the rumor that Pool would
be fired because of his union activity, but ". .. if it was true
he would be replaced in different department of the store
where he would be more useful." Gray stated, ". . . they
stated if I was to stay with the store I would be making,
working 48 hours a week in the store making $10,000 a year
.... " "That I would be broke down to a boxboy."
Gray said that Strauss asked him the following day
whether he had made up his mind about how he was going
to vote, and Gray said he wanted to remain undecided.
Gray said that L. Owens asked him the same night, ". . . if
I was going to vote." Gray then asked L. Owens what
would happen if the employees did vote for the Union, and
L. Owens replied ". . . we would be still be working there
only with less hours because we went against the will of the
store."
Gray stated that he talked with Strauss about I week
after the conversations discussed in the next preceding
paragraph:
Donny told me he didn't want to hear any more
about the Union because there was people out in the
store there. There was people in the store out to get me
about the Union, and they didn't want to hear any
more about it for my own safety, I guess.['2]
Respondent did not introduce any testimony or evidence
in denial of or in challenge to Gray's testimony.
6. Discussion
Gray's testimony is given full credence, and that cre-
dence is supported by Respondent's silence. It is found that
on or about April 26 and 27 Respondent, through Strauss
or with Strauss' participation, interrogated Gray concern-
ing his union activities, threatened Gray with refusal to deal
with the Union, threatened to reduce Gray's hours of work
and to demote him because of his union activity, impliedly
promised benefits it Gray would discontinue support of the
Union, threatened to physically injure union employees,
1l Gray later expanded this statement to say "They said they would cut my
hours in half if I voted for the Union."
2 This is found not to constitute a violation of the Act, since it is not clear
that Strauss' statement constituted anything other than a safety warning.
The tally of ballots showed six votes against the Union, one for the Union,
and five challenged ballots. Clearly. there was substantial sentiment against
the Union, and further, Gray apparently construed Strauss' statement as a
safety warning rather than a coercive prohibition on union talk,
and threatened to transfer employees because of their union
activity. Said interrogations, promises, and threats consti-
tute violations of the Act, as alleged in the complaint.
7. Alleged 8(a)(1) Violations-Linda Williams
L. Williams testified that on April 26 she talked with L.
Owens and the two Calverts:
A. First thing was said is Donny asked me if I had
signed a union card.
And I told him yes, I had.
And then Karma came in on it, and she said if this
union thing goes through, you know, that we are going
to drop you guys' hours down to at least 20 hours a
week, that there is no way we can afford to pay out
that, not with all the medical bills that we have to pay,
and if we have to call in extra help we will.
Q. Do you recall any other conversations in which
the Union was mentioned with supervision or manage-
ment?
A. Yes.
Then Leatris came in the room.
Q. Yes.
A. And she said that she didn't know how we could
shit on Kenny the way we were and with him laying on
his deathbed, how we could do it that way, that she
was going to make us face up to Kenny.
L. Williams further testified that sometime later Strauss
talked with employees in front of the store and ". . . says
that he was going to make us all show a raise of hands and
on how we voted on the union."
L. Williams testified that on a subsequent date she talked
with Strauss in a private conversation. She said Strauss
stated that the Union was no good. and ". . . if you went to
work for the union you wouldn't have it as easy as you did
here." Strauss stated further, ". . . you couldn't smoke at the
registers or eat like you do here."
L. Williams testified that shortly after the conversation
discussed in the paragraph next preceding, L. Owens was
talking with a customer near where L. Williams was stand-
ing, and, while looking directly at Williams, told the cus-
tomer, "Well, my girls are good little girls. I am good to
them, but when they are bad to me, I am bad to them."
L. Williams testified: She had told Strauss of her inten-
tion to go to a union meeting on May 25, and later in the
day Strauss told her ". . . whoever goes to that union meet-
ing will not have a secure job tomorrow." ". .. I can't
protect you girls ... if you do things that are wrong." The
following day, Strauss and K. Calvert talked with her.
Strauss said that he heard about a statement she gave to the
Union which was derogatory of Strauss, and Strauss
"seemed to know everything that I had said at the union
meeting .... " He told her "... exactly what I had signed."
L. Williams had signed such a statement, which recited
some of the things Strauss had said concerning union activi-
ties. K. Calvert said, ". . . Linda, how can you do that to us?
I thought you told us you weren't going to do this? Hlow
can you do that?" ". . . do you think that a union would
lend you a $100 like we lent you?" Respondent did not
deny' or challenge the testimony of L. Williams.
' Other than in the pleadings.
260
OWIENS MARKET. INC.
8. Discussion
L. Williams was a singularly unconvincing witness whose
credibility is doubtful. Her denial of complaints concerning
her work and her claim to performance excellence are con-
trary to the record, as discussed in/ia. However, her testi-
mony on these 8(a)(1) matters stands alone on the record.
L. Owens. Strauss. and K. Calvert did not take the stand: E.
Calvert did not testify relative to any subject discussed in
this subheading. Under such circumstances, there is no reli-
able basis upon which to doubt these 8(a)( I) allegations. It
is therefore found that Strauss interrogated L. Williams
concerning her union activities; that K. Calvert threatened
to reduce employees' work hours: that L. Owens threatened
to force employees to a confrontation with K. Owens con-
cerning their union activity: that Strauss threatened to poll
employees relative to their vote in the union election: that
Strauss threatened to reduce employees' privileges if the
Union represented the employees; that L. Owens threat-
ened employees with adverse action if' thce supported the
union movement: that Strauss threatened employees with
job insecurity if they attended a union meeting: that Strauss
created the impression of surveillance of employees' union
activities: and that K. Calvert interrogated L. Williams
concerning her union activity. Said interrogations. threats.
and creation of the impression of surveillance constitute
violations of the Act, as alleged in the complaint.'
9. 8(a)(3) Allegation Demotion of Pool
The fact that Pool was relieved of his duties in the pro-
duce department and replaced by another employee. and
that his hours were reduced from 50 hours per week to 40
hours per week effective the week ending May 9 and there-
after is not in dispute.
General Counsel contends that Pool's transfer and reduc-
tion in hours and pay were motivated by Respondent's an-
tiunion animus and desire to punish Pool for his union sup-
port, based in part upon K. Calvert's statement to Pool
approximately I hour after Strauss told Pool about the pro-
posed changes. Pool testified. credibly and without denial.
that K. Calvert told him " Well, this is what happens when
you go with the union."',
Respondent contends that: (a) Pool wanted a reduction
in his hours, (b) Pool's work in the produce department was
not satisfactory. (c) there was no more work than 40 hours
per week available on the floor to which Pool was trans-
ferred, and (d) union activity played no part in Pool's trans-
fer and reduction in hours.
(a) This contention is given no weight. Pool credibly tes-
tified that he once asked K. Owens for a reduction from 54
hours to 50 hours, which Pool wanted, but that he never
asked for a reduction to 40 hours.
(b) E. Calvert testified that Pool's work in the produce
department was not satisfactory. that the department was
not kept clean, that Pool kept produce displayed that was
spoiled, that the produce was improperly displayed. and
4 Respondent's counsel. in his post-trial brief. acknowledges that Respon-
dent. because of emotion and concern with K. Owens' serious illness, inter-
fered with employees' Section 7 rights by engaging in 8(a)( Ij conduct.
ii This statement is found to constitute a violation of Sec. 8(aH I) of the
Act.
that the department was not as profitable as it should have
been. (alsert said he discussed Pool's poor work perform-
ance with him on several occasions to no avail. For that
reason, he said. Pool was replaced by a new employee. Cal-
vert stated that the department's profit increased after Pool
was replaced.
Pool testified that his work was satisfacto)ry: that the
profit was not as good as it should have been, but that was
not his fault. and he had discussed the problem with K.
Owens. They agreed to work on the problem together, but
K. Owens went into the hospital soon after they had talked.
Pool said no supervisor or manager. other than E. Calvert.
ever criticized his work or threatened to remove him from
his job.
E. Calvert's testimony concerning Pool's allegedly unsat-
isfactor) work appeared contrived and pretextual: it is not
credited. Pool's testimony concerning his work is credited.
Respondent contends that K. Owens warned Pool in March
of 1978 that Pool was not "cutting it." and that sales were
down because of Pool's poor selection of produce. How-
ever. K. Owens did not testify. and as between E. Calvert
and Pool, the latter was the more convincing. Respondent
also contends that the produce business increased approxi-
mately S 1.000 per week after Pool was relieved of his duties.
but no business records or other convincing proof were of-
fered in support of that contention. The contention is there-
fore not accepted as factual. There is no evidence that Pool
ever was warned that his work was not satisfactory. It is
found that Pool was not replaced by a new employee be-
cause of Pool's poor work performance.
(c) The number of hours available outside the produce
department is immaterial. The issue is the reason for Pool's
transfer from the produce department. which Respondent
agrees required one employee working 50 hours each week.
(d) In view of the foregoing, it is clear that Pool was
transferred and his hours were reduced solelK because of his
union activity. First. Respondent's antiunion animus is
clear. Second, Respondent was well aware ot: and resented.
Pool's union activit. Third. action was tri ken against Pool
soon after his union activity commenced. Finally. K. Cal-
vert's statement to Pool shows the reason for the actions
taken against him.
It is found that Pool was transferred and his hours were
reduced because of' his union activity and in violation of
Section 8(a)(3) and (I) of' the Act.
10. 8(a)(3) Allegation-Demotion of Davis
The fact that Davis was relieved of his duties relating to
closing the store in the evening, and that such action re-
sulted in reduction of his hours from 54 each week to 40
with a corresponding reduction in pay is not in dispute.
General Counsel contends that Respondent's actions
against Davis were in reprisal for Davis' support of the
Union and offered Davis' testimony to show: that Respon-
dent had no reason for its action other than its antiunion
animus.
Respondent contends that it relieved Davis of his closing
duties because he closed the store before 9 p.m. on three
occasions. E. Calvert testified that he was told about each
of the three occasions by Strauss: E. Calvert did not witness
any early closing.
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. Discussion
Strauss did not testify. Respondent's antiunion animus is
clear, as discussed, supra. The actions against Davis were
taken soon after union activity commenced. Davis had been
employed by Respondent since July 1977, and there is
nothing in the record to show dissatisfaction with Davis'
work, other than the matter of closing early. Davis had keys
to the store, was frequently responsible for the store be-
tween 6 and 9 p.m., made out money orders, and had the
key to the safe: clearly, he was a trusted employee. Under
such circumstances there is a strong inference that the ac-
tions against Davis were taken because of his support for
the Union rather than because of the reason given by Re-
spondent.
Davis testified that he had closed the store early on only
one occasion, and that was a minor deviation of only 2
minutes. Since Davis was a convincing witness, and Strauss
did not testify, Davis is credited. Respondent's stated rea-
son for its actions against Davis therefore appears pre-
textual.
Respondent contends that Davis had charge of the store
from 6 p.m. to 9 p.m., and "This could easily lead one to
the conclusion that Davis had authority to hire and fire."
However, this is an affirmative defense that was not proved.
First, Davis did not have charge of the store on a perma-
nent basis-he was in charge from 6 p.m. to 9 p.m. only if
no supervisor or manager was present. Second, there is no
showing that Davis had authority to hire, fire. transfer, sus-
pend, direct, discipline, or in any other manner supervise
employees. As far as the record shows, Davis was only the
caretaker of the premises during the 3 evening hours, with-
out supervisory authority. FHe is found not to have been a
supervisor within the meaning of the Act at any time rel-
evant herein. It is found that Davis was relieved of his clos-
ing duties and his hours and pay reduced solely because of
his union activities. Such actions constitute a violation of
Section 8(a)(3) and (I) of the Act.
12. 8(a)(3) Allegation Termination of L. Williams
In view of L. Williams' lack of credibility. discussed
above, she is credited only when her testimony has support
in the record and a specific finding of credibility is made.
Respondent contends that .. Williams was fired because
of her poor work performance and because of customer
complaints. .. Williams testified that her work was satisfac-
tory, and that she was informed of only one complaint of a
minor nature, approximately I month after she started
working for Respondent.
E. Calvert credibly testified: Soon after he started work-
ing at the store 5 days each week, in early June. he observed
L. Williams' improper work conduct on several occasions,
and he received complaints about L. Williams from Strauss
and H. Williams. In approximately mid-June. K. Owens
turned over to him four letters from customers complaining
about L. Williams' work conduct. Owens told E. Calvert
". .. we just couldn't have this," and left to E. Calvert the
action to be taken. At the end of the pay period E. Calvert
fired L. Williams, giving as the reason complaints received
about Williams.
The four letters of' complaint referred to above are Re-
spondent Exhibits 1-4. The writers of Respondent Exhibits
1 3 testified and enlarged on their written complaints by
describing the rude, inconsiderate, and sometimes profane
work conduct of L. Williams. Those witnesses. Wanda Jen-
sen, Myrtle Swanson, and Phillaine Vogel, were calm and
impressive. They are credited, and to the extent that their
testimonies differ from the testimony of L. Williams their
versions are accepted."
13. Discussion
The testimonies of Jensen. Swanson, Vogel, and E. Cal-
vert establish the fact that L. Williams was a highly unsat-
isfactory employee. There is no evidence or even suspicion
that the four complainants collaborated in their complaints
or were importuned to register them. None of the fur is a
friend or even more than a casual social acquaintance of
the Owenses or Calverts. No reason was shown upon which
to base a doubt that the complaints were genuine and in-
dividually spontaneous.
L. Williams was a recent employee---she started working
for Respondent in mid-February and was discharged in
mid-June. It is clear that she exhibited her disruptive atti-
tude soon after her employment began. There was ample
and proper reason for her discharge.
General Counsel argues that, even assuming proper rea-
son for L. Williams' discharge. she was discharged in part
because of her union activity and, therefore, was discharged
in violation of the Act. However. the record does not sup-
port that conclusion. (a) At the time of the discharge, Re-
spondent knew that L. Williams and other employees had
signed union authorization cards, yet no employee other
than Williams was discharged. (bt L. Williams was not the
principal or even a major union activist in the store. (c)
Strauss was angry because of L. Williams' statements made
about him at the union meeting, but Strauss did not dis-
charge 1. Williams that was E. ('alvert's decision, based
upon the letters of complaint turned over to him by K.
Owens. Further. L. Williams was not fired until approxi-
mately 3 weeks after the union meeting of May 25, and the
four letters of' complaint were received in June--Jensen's
letter is dated June 8. and all four letters were handed to E.
Calvert by K. Owens at the same time. Clearly, the four
complaints gave rise to the discharge.
General Counsel also argues that Respondent "con-
doned" L. Williams' conduct until "advent of the Union."
However. it was Calvert who fired L,. Williams, and E. Cal-
vert was not aware of the extent of customer dissatisfaction
with Williams until K. Owens, who had been off work and
seriously ill for some time, gave him the four letters in June.
It is clear that E. Calvert was aware of L. Williams' work
conduct prior to June. but he did not start working at the
store full time until mid-May.
It is found that the allegations of the complaint relating
to the discharge of L. Williams are not supported by the
record. '
1' Swanson testified that she saw L. Williams wearing a name lag. Wil-
liams testified that she did not have a name tag. This discrepancy is given no
weight.
'17 he testimon) of' Respondent's witness De Rosa involved .. Williams'
conduct ater she was discharged b Respondent and is given no weight,
262
OWENS MARKET, INC
IV. EFFEC(' OF THIF UNFAIR ABOR PRA(It( I S UPON
(OMMI R(
Respondent's activities set forth in section 111. above, oc-
curring in connection with the operation of Respondent de-
scribed in section I, above, have a close. intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
v. IHF REMED)Y
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)( I) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent unlawfully reassigned
employees Pool and Davis. thereby reducing their hours of
work. I will therefore recommend that Respondent make
Pool and Davis whole for their loss of earnings suffered by
reason of the discrimination against them, by payment to
them sums of money equal to those they normally would
have earned in their positions as head of the produce de-
partment and as the employees in charge of closing the
store, respectively, with interest thereon to he computed in
the manner prescribed in F W. Woolworth Compan,. 90
NLRB 289 (1950), and Florida Steel (orporation, 231
NLRB 651 (1977).18 This remedy for Pool is for the period
May 9. 1978, until he was terminated June 15. 1978. The
remedy for Davis is from May 9. 1978. until he quit August
19, 1978. It will be further recommended that Respondent
preserve and make available to the Board. upon request. all
payroll records, social security payment records. timecards
personnel records and reports, and all other records neces-
sary and useful to determine the amounts of backpaN due
and the rights of reinstatement under the terms of these
recommendations.
It is recommended that allegations of the complaint
found not proved be dismissed in their entirely.
Upon the basis of the foregoing findings of fact and upon
the entire record, I hereby make the following:
CONCLUSIONS OF LAW
I. Owens Market, Inc.. is. and at all times material
herein has been. a employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks International Union, Local 1167. AFL
CIO, is. and at all times material herein has been. a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)( I ) of the Act by in-
terrogating its employees concerning their union activities.
sympathies, and vote; by threatening its employees with
reduced hours, reprisals, involuntary disclosure of voting.
store closure, demotions, job loss, bodily harm. refusal to
deal with the Union, and withholding or reduction of bene-
fits because of their union activities and sympathies: by
creating the impression of surveillance of employees' union
" See. generally Iss Plumhbing & Heating Co. 138 NLRB 716 (1962)
activities; by promising benefits if employees would discon-
tinue their support of the Union; and b stating to an em-
ployee that reduction of hours and pay was what happened
"when you go with the union."
4. Respondent violated Section 8(a)(3) and (I) of the Act
bh reassigning employee Pool to a clerical job from his for-
mer job as head of the produce department ith reduction
of hours from 50 to 40 per week and corresponding reduc-
tion of earnings, and b reassigning employee I)axis to a
clerical job and relieving him of duties related to closing the
store with reduction of hours from 54 to 40 per week and
corresponding reduction of earnings.
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not discharge .. Williams in iolation
of the Act.
Upon the foregoing findings of lact and conclusions of
law. and the entire record, and pursuant to Section IO(c) of
the Act. I herebb issue the follouing recommended:
ORDER'
The Respondent. Owens Market. Inc.. Hesperia, ('alifor-
nia, its officers, agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Interfering with, restraining. or coercing its employ-
ees in the exercise of their rights guaranteed them in Section
7 of the Act, in violation of Section 8(a)( I ) of the Act. bh
threatening its emploees with reduced hours. reprisals. in-
voluntary disclosure of voting. store closure, demotions. job
loss, bodily harm, refusal to deal with the Union, b invol-
untary withholding or reduction of benefits because of their
union activities and s mpathies: by creating the impression
of surveillance of emplo, ees' union activities: bN promising
benefits if emplo, ees ouild discontinue their support of the
Union: and hb stalllg to all employee that reduction of
hours and pa as what happened "wshen you go with the
union.
(h) Violating Section 8(a)(3) and (I) of the Act bh reas-
signing employee Pool to a clerical job from his former job
as head of the produce department. with reduction of hours
from 50 to 40 per week and corresponding reduction of
earnings, and by reassigning employee Davis to a clerical
job and relieving him of duties related to closing the store
with reduction of hours from 54 to 40 per week and corre-
sponding reduction of earnings.
(c) In any other manner interfering with, restraining. or
coercing its employees in the exercise of their right to sel'-
organization. to form, join, or assist labor organizations, to
bargain collectively through representatives of their o n
choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act. or to retrain
from any or all such activities.
2. Take the following affirmatise action. which is neces-
sary to effectuate the policies of the Act:
(a) Make Pool and Das is whole for their loss of earnings
i In the eent no exceptions aire filed a. prosided b) Sec 102 46 ,I the
Rules and Regulations of he National L.hor Relalons Board, the findings.
conclusions. and recommended Order herein shall. as provlided h Sec
102 48 of the Rules andl Regulaltions, he adopted h the Bo.lrd anld become
Its findings. conclusions and Order andl .111 ohlec.ioll thercito hall he
deemed aied fti ,11] purpose,
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered by reason of the discrimination against them, in the
manner set forth in the remedy section herein.
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set forth
in "The Remedy" section of this Decision.
(c) Post at its Hesperia, California, operation, copies of
the attached notice marked "Appendix."20 Copies of the at-
2o In the event that this Order is enforced by a Judgment of a United
States court of appeals, the words in the notice reading "Posted by order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an order of the Na-
tional Labor Relations Board."
tached notice, on forms provided by the Regional Director
for Region 31, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
264