Pic-Pac Food Stores

National Labor Relations Board - Board Decisions

Jul 20, 1962

137 N.L.R.B. 1533 (N.L.R.B. 1962)

PIC-PAC FOOD STORES 1533
Dunn Bros ., Inc., Dunn & Dunn , Inc., and Pic-Pac Food Stores,
Southgate, Inc., d/b/a Pic-Pac Food Stores and Local 1529,
Retail Clerks International Association , AFL-CIO. Case No.
26-CA-1146. July 20, 1962
DECISION AND ORDER
On April 24, 1962, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondents' exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following exceptions
and modifications.
On Saturday evening, September 16, 1961, Andrews and Cooper,
employees of the Respondents, left their jobs and picketed at the Re-
spondent's store from 7:30 to 8:30 p.m. . The store closed at 9 p.m.
On Monday morning, September 18, both Andrews and Cooper handed
the Respondents written unconditional requests for reinstatement.
Although they had not been permanently replaced nor their jobs abol-
ished,' the Respondents refused to reinstate them.
The complaint alleges that Andrews and Cooper were discharged,
and that they were refused reinstatement, because they joined or as-
sisted the Union or engaged in union or concerted activities, in viola-
tion of Section 8(a) (3) of the Act. The General Counsel, at the hear-
ing, maintained that Andrews and Cooper were discharged because
of their union activity, whereas the Respondents maintained that
Andrews and Cooper quit their jobs.
'Pursuant to the 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 McCulloch and Members Leedom and Brown].
2 The Respondents contend that the Trial Examiner was biased and prejudiced and
that, as a result thereof, the Respondents were deprived of their right to a fair hearing.
We are satisfied, upon our review of the entire record, that there is no merit to this
contention.
3 The Respondents contended in their brief, filed after the hearing, that the store was
not busy on Monday, and there was, therefore, no need on that day for the services of
Andrews and Cooper or for immediate replacements. We find no merit in this contention
as Andrews and Cooper were permanent employees, and would have been employed on
Monday if they had not gone out on strike on Saturday.
137 NLRB No. 167,
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that the Respondents had not discharged
Andrews and Cooper at the time they walked off their jobs, as the Gen-
eral Counsel contended, and that Andrews and Cooper did not quit
their jobs, as the Respondents maintained. He found, instead, that
Andrews and Cooper went out on an economic strike on Saturday eve-
ning, September 16; that they applied for reinstatement to their jobs
on Monday morning, September 18; that they were discharged because
they went on strike in violation of Section 8 (a) (3) and (1) of the Act;
and that they were also denied reinstatement, although they had not
been permanently replaced, in further violation of Section 8(a) (3)
and (1).
It is not clear from the Intermediate Report on what basis the Trial
Examiner found that Andrews and Cooper were discharged, or
whether this finding relates to what occurred on September 16 or on
September 18. In any event, while we agree with the Trial Examiner's
ultimate conclusion that the Respondents discriminated against An-
drews and Cooper in violation of Section 8 (a) (3) and (1) of the Act,
we do so for the following reasons : The record establishes, as the Trial
Examiner found, that Andrews and Cooper, on September 16, par-
ticipated in an economic strike. Their status, therefore, was that of
strikers engaged in a protected concerted activity and not that of
dischargees. Accordingly, when they made unconditional applications
for reinstatement on September 18, they were entitled to be reinstated
as they had not been permanently replaced. The Respondents' refusal
to reinstate them was, therefore, violative of Section 8 (a) (3) and (1)
of the Act. We shall accordingly modify the Trial Examiner's Recom-
mended Order as to Andrews and Cooper, which bears no date, to pro-
vide that they shall be made whole from September 18, 1961.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modifications, in section 2(a) and in the Appendix, that Fred
Larry Andrews and Thomas M. Cooper shall be made whole from
September 18, 1961, the date of the Respondents' discrimination
against them.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge of unfair labor practices duly filed on September 20, 1961, and
amended on September 27 and October 6, 1961, the General Counsel of the National
Labor Relations Board issued a complaint dated October 12, 1961, alleging that the
Respondents had engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as
amended (61 Stat. 136 , 73 Stat . 519), herein called the Act . In substance, the
complaint alleges that during an organizing campaign by the Charging Union, Re-
spondents' supervisors interrogated employees concerning their union membership,
activities , and desires , instructed employees to inform on union membership and
PIC-PAC FOOD STORES 1535
activities, and discharged and refused to reemploy two employees because of their
union membership and activities, and their concerted activities for the purpose of
collective bargaining or other mutual aid or protection. The Respondents filed an
answer denying the substantive allegations of the complaint and the commission of
unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross
in Memphis, Tennessee, on November 13 and 14, 1961. All parties were represented
at the hearing by counsel and were afforded full opportunity to be heard, to intro-
duce evidence, to examine and cross-examine witnesses, to present oral argument, and
to submit briefs. On December 11, 1961, briefs were filed by the General Counsel
and the Respondents, which I have carefully considered.
Upon the entire record in the case, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondents, Tennessee corporations, are engaged in the operation of retail
supermarkets in Memphis, Tennessee, at which they sell groceries and other food
products to the public.' Two brothers, Maurice and William T. Dunn, own all of
the stock in and are officers of all three of Respondent corporations. There is
frequent transfer of employees from one store to another. A common labor policy
is administered by Respondents to all their employees. On the foregoing, I find that
the Respondents constitute a single integrated business enterprise for jurisdictional
purposes.
During the past 12 months, a representative period, the Respondents' four super-
markets sold products valued in excess of $1,500,000, and purchased and received
directly from suppliers located outside the State of Tennessee, products valued in
excess of $60,000 Accordingly, I find and conclude that the Respondents are en-
gaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Local 1529, Retail Clerks International Association, AFL-CIO, herein called the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background-The Union's petition for representation
In July 1961, the Union commenced a campaign to organize Respondents' em-
ployees. In furtherance of its drive, the Union held six or seven meetings of Re-
spondents' employees during the summer and early fall of 1961, and solicited and
secured the signature of some of Respondents' employees to cards authorizing the
Union to represent them. On July 24,2 the Union filed a petition with the Board for
certification as the exclusive representative of Respondents' employees.3 On Septem-
ber 13, the Regional Director issued his Decision and Direction of Election. The
election was conducted on October 4, after the events which are alleged herein as
unfair labor practices. The Union lost by a substantial margin. However, final
determination of the Union's petition for certification is still pending before the Board
on a hearing officer's report on the Union's objections to the election.4
B. Interference, restraint , and coercion
The complaint alleges that Respondents interfered with, restrained , and coerced
employees in their rights guaranteed by Section 7 of the Act, by interrogating em-
ployees concerning their union membership , activities , and desires , and by instructing
employees to inform on union membership and activities.
i Dunn Bros , Inc , operates two supermarkets , one located at 999 Jackson Avenue and
the other at 3426 Poplar Plaza. Dunn & Dunn, Inc., operates a supermarket at 2268
Lamar Avenue, and Pic-Pac Food Stores, Southgate, Inc., operates a supermarket at
1977 S Third Street
2 This and all dates hereinafter refer to 1961 unless otherwise specifically noted.
3 Case No. 26-RC-1661 (not published in NLRB volumes)
4 The report recommends that one of the Union 's objections be sustained and that a
new election be directed.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To properly evaluate the legality of Respondents' conduct which is alleged as
interference, restraint, and coercion, it is necessary to first examine the context in
which it occurred. All of the events which are charged herein as interference, re-
straint, and coercion pertain only to the employees who worked at Respondents'
Lamar Avenue store. The manager of that store, John LaRue, admitted that he had
been instructed by owner William T. Dunn, "to talk to the employees about getting
them out of the Union and losing Union interest." LaRue further admitted, albeit
reluctantly, that "On several occasions, I talked to, I believe, practically all the em-
ployees and voiced my dislike of Unions and Union activities." 5 W. T. Dunn also
admitted that in August Respondents "started a letter campaign to our people [em-
ployees]" opposing the union organization of their stores. In view of the foregoing
admissions, there is obviously no dispute and I find that Respondents were opposed
to the representation of their employees by the Union and expressed that opposition
to employees both orally and in writing.
Respondents' supervisor, Donald Wright,6 admitted that in the latter part of July,
while he was acting as manager of Respondent's Lamar Avenue store, he went down
to a bowling alley where Respondents' employees were holding a union meeting and
left word for employee Delaney to call him. When the latter complied, Wright
asked Delaney what had transpired at the meeting and whether any employees had
signed union cards. Wright further admitted that he subsequently asked Delaney on
several occasions what was "going on" in respect to the Union, what the Union was
"telling the boys," what it was "promising" them, and what it was "trying to do."
Wright further testified that his inquiries in respect to the Union were purely personal,
were motivated by curiosity, and not by any directions from Respondents' officials
"to spy" on the Union.
According to the credited testimony of Fred Larry Andrews, one of the alleged
discriminatees herein, on the day after one of the initial union meetings, Store Man-
ager LaRue said to him, "I was surprised to see you at that meeting last night," and
asked, "You didn't sign one of those Union cards, did you?" Andrews replied in the
affirmative. LaRue then disparaged unions generally by telling of his own experi-
ences with unions during a prior employment, of an employee who would not have
been laid off but for the union, and about his brother-in-law "who had union trouble
out at the Humko plant." 7
According to the credited testimony of Thomas M. Cooper, the other alleged dis-
criminatee herein, during a conversation in July in which LaRue spoke disparagingly
of unions, he asked Cooper whether he had signed a union card. Cooper responded
that he had. Cooper further testified without contradiction that in September, on
the day following a union meeting, LaRue asked him, "How many were at the meet-
ing yesterday." When Cooper replied that about 15 or 20 had attended, LaRue said,
"Not bad." 8
Based on the foregoing credited testimony, I find that in a context of Respondents'
hostility and opposition to the Union, Supervisors LaRue and Wright engaged in in-
5 Before conceding that the above quotation from his affidavit to a Board agent was true,
LaRue had denied and refused to admit that he had so spoken to "practically all the em-
ployees," and admitted only that he had thus talked to "some of them." In view of his
obvious lack of candor and forthrightness, and other contradictions in his testimony which
I shall report hereinafter, I regard LaRue's testimony as generally unreliable, and I credit
it only when it is an admission against interest or when his testimony conforms with
other testimony which I regard as worthy of belief.
6 Respondents' answer admits that Wright is a supervisor within the meaning of Sec-
tion 2(11) of the Act. Moreover, owner William T. Dunn, conceded that Wright has
authority to fire employees for "real cause" or "aggravation."
7In respect to Andrews' testimony above, LaRue denied only that he told Andrews that
he was surprised to see him at a union meeting I do not credit this denial because I
regard LaRue's testimony as generally unreliable. See footnote 5, snpia.
8 In respect to the foregoing, LaRue denied only that he ever asked Cooper whether he
had signed a union card. He further testified that with the single exception of employee
Andrews, he did not discuss with or ask any other employee whether they had signed
union cards. However, in LaRue's affidavit which he executed before a Board agent,
LaRue had sworn as follows: "At times, in discussion of Union and Union activities with
the employees , I asked their interest in the Union and some told me they had signed
cards for the Union. I believe that Mullins, Cooper, and Andrews did tell me they had
signed cards for the Union." In view of the obvious contradiction between LaRue's
testimony and his earlier affidavit, I do not credit LaRue's denial that be asked Cooper
whether he had signed a union card.
PIC-PAC FOOD STORES 1537
terrogation of employees concerning their union membership, adherence, and de-
sires, and in respect to the attendance and what transpired at union meetings.
Respondents contend that the interrogation was not coercive or unlawful. The
proper test for evaluating the legality of interrogation, enunciated by the Board in
Blue Flash Express, Inc.,9 is whether in the context of all the circumstances, the in-
terrogation reasonably tends to interfere with, restrain, or coerce employees in the
exercise of their guaranteed right to self-organization, and to form, join, or assist
labor organizations. In the instant case, LaRue's interrogation of Andrews and
Cooper occurred in a context of hostility to Unions expressed by LaRue coincidently
with the interrogation. Contrary to the assertion in Respondents' brief, the interro-
gation was not isolated or limited to employees Delaney, Cooper, and Andrews, for,
as noted above, LaRue admitted that he had talked to and voiced his dislike of
unions and union activities to practically all the employees, and that in such dis-
cussions he at times "asked their interest in the Union." The motivation for Re-
spondents' interrogation, revealed by LaRue's admission, was "getting them [the
employees] out of the Union and losing Union interest." On these facts, I regard
the Board's decision in Murray Envelope Corp. of Mississippi,1° significantly appo-
site. There the Board said:
Unlike Blue Flash, the Respondent in this case, while interrogating virtually
every employee . . . made abundantly clear its antipathy to the Union through
admitted antiunion statements of [its owner] and other supervisors. . . .
Respondent's motivation was not, as in Blue Flash, to ascertain if it should honor
a union's demand for recognition by establishing whether or not it had attained
majority status, but rather to make clear its attitude toward the Union and
thus interfere with its employees' free choice of bargaining representatives. .. .
Moreover, neither interrogation nor such other unfair labor practices which are
designed to discourage union activity need be successful in order to constitute
restraint. Accordingly, we find that the interrogations indulged in by the
Respondent are not lawful within the scope of the Blue Flash principle, and that
the Respondent, by so interrogating its employees, violated Section 8 (a) (1) of
the Act.
For all the foregoing reasons, I find and conclude that the interrogation engaged in by
Supervisors Wright and LaRue constituted unlawful interference, restraint, and
coercion of Respondents' employees.
Respondents further contend that they are not responsible for the interrogations
of Wright and LaRue, because in the case of Wright, it was engaged in on his own
initiative, and, in the ease of LaRue, contrary to alleged express instructions. In
view of LaRue's admission of instructions from owner William T. Dunn to talk
to the employees about getting out of the Union, the latter's testimony that he for-
bade interrogation of employees by supervisors is extremely improbable, and I do
not credit it. Moreover, even assuming that Dunn had issued such instructions,
the employees of Respondents had no notice of any such limitation on the authority
of their conceded supervisors, and the interrogation accurately reflected Respondents'
policy of opposition to the union organization of their employees. I therefore
conclude that the interrogations by Supervisors Wright and LaRue are imputable
to Respondents," and that by engaging therein, the Respondents interfered with,
restrained, and coerced employees in the exercise of their rights guaranteed by the
Act, and thereby committed unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
C. The discriminatory discharge and refusal to reinstate Fred Larry Andrews and
Thomas M. Cooper
The complaint herein alleges that employees Andrews and Cooper were discharged
by Respondents on September 16 and thereafter were refused reinstatement because
of their union membership, activities, and other concerted activities. Respondents
deny that they discharged either Andrews or Cooper, but assert instead that Andrews
and Cooper voluntarily terminated their employment when Respondents' store was
very busy, and that for this reason Respondents refused to reinstate them when they
requested reemployment on September 18.
9 109 NLRB 591.
10 130 NLRB 1574, 1576.
11 Drennon Food Products Co., 122 NLRB 1353, 1356.
649856-63-vol. 137-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Andrews and Cooper both worked as food checkers for Respondents at the Lamar
Avenue store.12
Respondents do not seriously dispute that to their knowledge, Andrews and
Cooper were active on behalf of the Union. The record shows that Andrews and
Cooper both signed cards for the Union at the outset of the organizing campaign,
attended union meetings , and solicited other employees to join with them in the
Union and its activities. Respondents' Store Manager LaRue admitted that Andrews,
Cooper, and Albert Mullins, another food checker, were "good friends," a sort of
"clique," and that he "had a strong suspicion" "that they [the three] were the ring
leaders" of the Union. In view of LaRue's admission and his interrogation of
Andrews and Cooper regarding their interest in the Union and attendance at union
meetings hereinbefore found, I conclude that Respondents had knowledge of the
union interest and activities of Andrews and Cooper.
Saturday, September 16, the day on which the employment of Cooper and Andrews
by Respondents terminated, was a hectic one at the Lamar Avenue store.13 There
days earlier, the Regional Director had issued his Decision and Direction of Election
on the Union's petition for certification. Throughout that day, Amon Hatch, the
Union's representative, was in and out of the store speaking to employees. The
Union, quite obviously and openly, was planning a strike or walkout of employees
for that day. Employee Donald Gilbert, a witness for Respondents, testified without
contradiction that he heard employee Albert Mullins, one of the leading union
proponents at the store, ask Union Representative Hatch, "It it time to walk?"
and Hatch replied, "No, wait until later when it gets busy." A number of other
employees, also witnesses for Respondents, credibly testified that they heard Mullins,
Andrews, and Cooper repeatedly saying to other employees near the front end of
the store, "Are you ready, are you ready?" accompanying the question with a
pounding of one fist into the palm of the other. All who heard and testified to hear-
ing this remark or about it, including Respondents' owners, the Dunn brothers, and
Store Manager LaRue, understood it to mean that the Union was planning a walk-
out or strike later that day.14 Matters became even more hectic about 4:30 p.m.
when Store Manager LaRue paid off and fired Don Billingsley (an employee who
had worked for Respondents only 2 days) because his work was unsatisfactory.
Billingsley's discharge brought a loud and vociferous protest from employee Albert
Mullins, who shouted across the store, "They can't fire you because you joined the
Union." Thereupon, Manager LaRue and owner Dunn rushed over and ordered
Mullins to be quiet and to get back to work. Mullins complied, but he then pro-
ceeded, as he checked out their purchases, to tell Respondents' customers that the
store had fired an employee "for joining the Union 15 and that this was a walkout."
Respondents thereupon decided that they could not tolerate Mullins' continued
insubordination and made preparations to discharge him. They called their book-
keeper, Mrs. Jean Davis, at her home, and asked her to come in and prepare
Mullins' final check and separation notice. In anticipation of Mullins' discharge
and the possibility that it might trigger a strike, walkout, or other disturbances
in the store, Respondents also called Relief Manager Wright and employee Delaney,
who were working at other of Respondents' stores that day, to fill in as checkers,
and two city policemen to maintain order. Wright and Delaney arrived at the Lamar
Avenue store about 5:30. They went to owner Dunn's office where Wright was told
by Dunn that "they were fixing to let a boy go and he didn't know what kind of
trouble would happen after that. They would have to wait and see " According to
Wright, he and Delaney waited about 30 to 40 minutes. 16 Mrs. Davis arrived at
' Food checkers are the employees in supermarkets who ring up on the cash registers
and receive payment on behalf of the store for the items brought to their check stands
by the customers.
Andrews first worked for Respondents during the summer of 1959 but quit to go to
college He was rehired in January 1961, and was later transferred from the Southgate
to the Lamar Avenue store Cooper was hired by Respondents in May 1961, and assigned
to the Lamar Avenue store.
13 This was conceded by most of the witnesses for both the General Counsel and
Respondents.
14 Mullins did not testify. Andrews and Cooper, although admitting that they may have
said, "Are you ready, are you ready?" gave the implausible explanation, which I do not
credit, that the remark had reference to an after-work excursion which they and several
other employees had previously arranged.
15 Billingsley 's discharge was alleged in the Union 's charge as a violation of Section
8(a) (3) of the Act, but the complaint does not include any allegation based thereon
19 Wright was then sent down to open an additional check stand because the store was
busy.
PIC-PAC FOOD STORES 1539
the store at 6 p.m., made out Mullins' final check and separation notice, and left.
About 6.30 p.m., LaRue advised Mullins that he was fired, gave him his final check
and separation notice, and the two city policemen escorted Mullins out of the
store. Delaney was then assigned to take Mullins' check stand.17 Shortly after
Mullins' discharge, Andrews left his busy check stand, walked into the side room of
the store,18 and had a conversation with Store Manager LaRue.
There are sharp conflicts in the testimony in respect to the content of this con-
versation, later alleged conversations between Andrews and other store employees,
and in respect to the manner in which Cooper's employment by Respondents
terminated. The resolution of these conflicts requires not only an appraisal of the
entire record, but also of the manifest hostility of both sides at the time the hearing
was conducted.19 With minor exceptions, the testimony of all the witnesses was
colored by their direct or economic interest in the case or by their desire to further
the interest of the side with which they were identified. Consequently, this is not
a case where I can accept the testimony of witnesses in toto. Witnesses whose
testimony and demeanor on the stand led me to regard them as generally credible,
appear to have testified falsely in some respects, and others whose testimony was
in large part unworthy of belief appear to have testified truthfully in some respects.
Accordingly, I shall refrain from making credibility determinations until I have
completed the report on all the events upon which I have based such resolutions.
Andrews' version of his terminal conversation with LaRue in the side room of the
store was as follows: He asked LaRue if he had fired Mullins. LaRue said, "Yes."
Andrews then said that if Mullins had been discharged because he joined the Union,
that was not a valid reason. LaRue replied, "OK, if that is the way you feel about
it, you are fired, too." Andrews then asked, "Am I fired because I joined the
Union?", and LaRue said, "Yes." Andrews' testimony in this respect was cor-
roborated by Mrs. Opal Mullins, mother of the discharged employee, Albert Mullins
She testified that she was standing at the entrance to the side room and heard the
conversation between Andrews and LaRue. Her version of the conversation was
substantially the same as Andrews'.
LaRue, on the other hand, testified as follows: "As Andrews walked by me [in
the side room] he said, `I am quitting.' I said, `Larry, are you sure you know what
you are doing.' He says, `Yes, I am quitting.' He put his apron in the dirty apron
basket, [and] walked out the front door." 20 Employee Mary Gardello testified that
"around 6 [p.m.] or maybe a little after six," while she was eating her supper in the
nearby Katz Drug Store, Andrews came in and said, "He quit" because "he was
tired." In addition, employee Fred Jones testified that about 10 p.m. when he left
the store,21 Andrews was standing alone on the sidewalk in front of the store.
According to Jones, he asked Andrews why he "walk[ed] out" and Andrews replied.
"He was tired of working."
Cooper, the other alleged discriminatee, saw Andrews leave the store. He there-
upon completed checking out the groceries of his current customer, and then went
into the side room. According to Cooper, he asked LaRue what had happened to
17 Mullins' discharge, like that of Billingsley, was also alleged in the Union's charge as
a violation of Section 8(a) (3) of the Act, but the complaint herein does not include any
allegation based thereon.
"This is a room used for storing merchandise prior to stocking the shelves of the
store In this room there Is also located the employees' restrooms and a drinking
fountain
19 At the time of the hearing, the Union was picketing Respondents' store or stores In
connection with such picketing, Andrews and Cooper had been twice arrested on the com-
plaint of Store Manager LaRue, and charged with interference with trade and commerce
Respondents had also instituted a State court libel suit against the Union in connection
with such picketing See also Respondents' subsequent charge against the Union (Case
No 26-CP-5, not published in NLRB volumes), and Respondents' action for a mandatory
injunction to require the Regional Director to petition the United States district court
for an injunction against the Union. Maurice D Dunn, et al v Retail Clerks Inter-
national Association, AFL-CIO, Local 1529, et al., 299 F. 2d 873 (CA. 6), [affd. 307
F. 2d 285]
20 James Hinton is a person not employed by Respondents who frequently carries groceries
to the homes of Respondents' customers for tips Hinton testified that on the evening In
question, while he was in the side room of the store getting a drink at the water fountain,
he heard Andrews say something to LaRue which he "didn't understand," and then heard
LaRue say, "Wait, Larry, you understand what you are doing."
21 The store closed for customers at 9 p.m. The employees stayed later to straighten up
the store.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Andrews. LaRue said, "You are a Union man, too." Cooper responded, "Yes, of
course," LaRue then said, "You are fired," and Cooper then left the store
LaRue denied that he had any conversation with Cooper before he left the store.
According to LaRue, he was in his office upstairs above the store floor when he was
advised over the intercom by employee Lettie Fouts that Cooper's check stand was
vacant. He then went down to the store floor, was there told by Fred Jones that there
was no checker in Cooper's stand, and assigned Mary Gardello, who was just return-
ing from supper, to substitute for Cooper. Jones testified that he was coming back
from supper and was going into the side room to don his apron when he saw Cooper
coming out, that he asked Cooper where he was going, and that Cooper replied, "I am
going out." Employee Mandy Thompson testified that she saw Cooper leave this
check stand, take off his apron, and walk into the side room. She heard a con-
versation in there but did not hear what was said. She then saw Cooper leave
the store "a short time," "a couple of minutes" later. Both Manager LaRue and
owner W. T. Dunn testified that Cooper at no time, either that day or thereafter, ever
stated or indicated that he was quitting his employment with Respondents. Manager
LaRue admitted that he had anticipated there might be a strike on Saturday, Septem-
ber 16, and that as far as he knew, Cooper had "left to engage in a strike."
A short time after Cooper left,22 Andrews, Cooper, and Mullins commenced
picketing Respondents' Lamar Avenue store with a sign, prepared by Cooper and
Union Agent Hatch, upon which there appeared the following legend:
PIC-PAC
UNFAIR
TO
EMPLOYEES.
The picketing continued until about 8:40 p .m. that night. Just before the picket-
ing commenced , Union Agent Hatch came into the store and invited other em-
ployees of Respondents "to come out" on strike . None did.
The following Monday morning , shortly after the store opened at 8 a m., Andrews
and Cooper came into the side room of Respondents ' Lamar Avenue store and
handed Manager LaRue two letters prepared by the Union and signed by Andrews
and Cooper. Andrews' letter read as follows:
Mr. LARuE
Pic-Pac Grocery Store No. 2
Airways & Lamar
Memphis, Tennessee
Mr. LARUE: I, Larry Andrews , hereby request you put me back to work.
This is an unconditional offer on my part to return to work.
( Signed ) LARRY ANDREWS.
Cooper's letter was identical except that it contained his name and signature. After
reading the letter , LaRue said to Andrews , "Larry, you quit . I am not putting you
back to work." Andrews replied , "It is my contention that I was fired." LaRue
repeated that Andrews had quit and that he would not reemploy him. Cooper said
nothing during this conversation . Upon LaRue's refusal to put them back to work,
Andrews and Cooper left the store , and at 3 p.m. that afternoon resumed their
picketing.
We come now to the resolution of the sharp conflicts in the testimony reported
hereinabove.
I am unimpressed with the credibility of Andrews ' and Cooper's versions of their
terminal conversations with LaRue . The record shows that prior to September 16,
LaRue had received written instructions from Respondents concerning what super-
visors can and cannot do during periods of union organization . Among those in-
structions was one which proscribed discharging , disciplining , or laying off an
employee because of his activities on behalf of a union . Aware of that proscription,
Respondents were concerned with the possibility that an unfair labor practice charge
would follow their discharge of Albert Mullins for cause , as in fact it did.23 It there-
fore stretches credulity to suppose that even assuming that Andrews' and Cooper's
union activities motivated their terminations , LaRue would , in effect , admit it in his
terminal conversations with them . I have hereinabove indicated my lack of credence
in the explanation offered by Andrews and Cooper for their obvious encouragement
of Respondents ' employees to join them in a walkout when the Lamar Avenue store
Owner W. T. Dunn testified that the picketing commenced at 7:30 p.m.
See footnote 17, supra.
PIC-PAC FOOD STORES 1541
"got real busy." In view of all the foregoing, I am not disposed to and do not
credit the testimony of Andrews and Cooper that LaRue, in effect, told them that
they were discharged for union activity and membership.24
I likewise do not believe LaRue's testimony regarding his terminal conversation
with Andrews, insofar as it implies that Andrews announced an intention to perma-
nently terminate his employment by Respondents. According to LaRue, Andrews
was admittedly a satisfactory employee to whom he "felt" very close. Nothing in the
record suggests that Andrews had given LaRue any prior intimation that he intended
to terminate his employment. Yet when Andrews allegedly told him he was quitting,
LaRue did not even ask why, but merely asked whether Andrews knew what he was
doing.25 In the light of LaRue's admittedly "close" relationship with Andrews, I
have serious doubts that LaRue would merely have said, "Are you sure you know
what you are doing," if what Andrews had suddenly announced was his resignation
at the height of the store's busy hours. Since LaRue's own testimony, corroborated
by Hinton whom I credit, is that he did so respond to Andrews, I conclude that
LaRue must have regarded what Andrews said as something other than an intention
to permanently terminate his employment. I have previously stated some of the
reasons for my lack of regard generally for the reliability and trustworthiness of the
testimony of Store Manager LaRue.26 His testimony was in other respects inconsistent
with and contradictory to an affidavit given to a Board agent, and to that given by
other witnesses for Respondents.27 For all the foregoing reasons, as well as my
general lack of faith in LaRue's testimony, I do not believe that Andrews announced
to LaRue an intention of permanently terminating his employment, or that LaRue
so regarded Andrews' statement to him.
I likewise do not believe the testimony of either Fred Jones or Mary Gardello
that Andrews told them he had quit or walked out because he was tired. As afore-
stated, Jones testified that his conversation with Andrews took place at 10 p.m. on
Saturday, September 16, on the sidewalk in front of the store. Andrews denied that
he had any conversation with Jones that night According to the uncontradicted
record, Andrews and Cooper terminated their picketing of Respondents' store about
8:40 p.m., about 20 minutes before the store closed for business on September 16.
There was no testimony by any other of Respondents' many witnesses that Andrews
and Cooper remained in the vicinity of the store after the picketing terminated.
Jones' other testimony in respect to Cooper and other matters was implausible and
contradictory to that of other of Respondents' witnesses. For example, Jones'
testimony that he and Cooper went out to supper at the same time, and that Cooper
was in the process of walking out when Jones returned from supper, is contrary to the
testimony of many of Respondents' other witnesses that Cooper had been continu-
ously working at his check stand for some time prior to his walkout; Jones' testimony
that Don Billingsley was fired at 12 noon was contrary to the record which showed
that this incident occurred at 4:30 p m.; and Jones' testimony that either Wright or
Delaney took Cooper's place when the latter left is contrary to the record which
clearly shows that it was Mary Gardello who took Cooper's place. In the light of
the foregoing, Jones' contradictory and confused testimony, his nervous demeanor on
the stand, and the manifest improbability that Andrews would have picketed Re-
spondents' store if he had quit because he was tired, I credit Andrews' denial that he
had any conversation with Jones after work on September 16.
I likewise do not credit the testimony of Respondents' witness Mary Gardello that
shortly after 6 p.m. on September 16, Andrews told her that he had quit Respondents'
employ because he was tired. On cross-examination, Gardello frequently attempted
to evade giving direct answers to questions. For example, at first she denied having
any conversation with LaRue regarding the Union, and finally, after many repeated
questions, she admitted that she had discussed the Union with him. She also denied
having any prior conversation with Respondents' counsel. In view of the latter's
attempt thereafter to correct that answer, I do not believe her denial. I was also
24 Because of its like inherent improbability, I also do not believe the testimony of Mrs
Opal Mullins, the mother of discharged employee, Albert Mullins, which purports to cor-
roborate Andrews' version of his terminal conversation with LaRue
211 credit LaRue's testimony that he asked Andrews whether the latter knew what be
was doing because it was corroborated by Hinton, a disinterested witness, whom I credit.
20 See footnotes 5, 7, and 8
27 For example, LaRue denied that Mandy Thompson was a "head checker," and also
denied that Respondents employed persons so designated Contrary to LaRue's testimony,
Respondents ' witness Lettie Fouts testified that Thompson was the "head checker" at the
Lamar Avenue store, and Mary Gardello testified that she (Gardello) was currently head
checker at another of Respondents ' stores
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfavorably impressed with her demeanor while testifying. For all the foregoing
reasons, as well as the apparent improbability that Andrews would picket Respond-
ents' store after he voluntarily terminated his employment because he was tired, I
credit Andrews' denial that he told Gardello that he quit.
In respect to Cooper's termination, I have previously stated my reasons for refusing
to credit his testimony that LaRue, in effect, told him that he was fired because he was
"a Union man." As noted above, LaRue denied that he had engaged in any con-
versation with Cooper before the latter left the store, and he, Lettie Fouts, and other
witnesses for Respondents gave testimony to the effect that LaRue was in his upstairs
office at the time Cooper walked out and when LaRue first learned of Cooper's
absence. The obvious import of this testimony was to lend credence to LaRue's
denial that he conversed with Cooper before he left Other testimony in the record
suggests, however, that even if LaRue was upstairs when Fouts allegedly announced
over the intercom that a substitute was needed for Cooper's check stand,28 there was
still ample time for LaRue to have met and conversed with Cooper in the side room
before the latter left. Thus, the record shows that LaRue's office was just a few steps
directly above the side room of the store, Fouts testified that she advised LaRue of
the need for a substitute for Cooper as the latter was walking toward the side room,
Respondents' owner, Maurice Dunn, testified that LaRue then "immediately" started
downstairs, and Thompson, another witness for Respondents, testified that she heard
conversation in the side room after Cooper went into it and before he came out and
left the store.29 However, I deem it unnecessary to resolve the conflict as to whether
Cooper and LaRue engaged in conversation before Cooper left, or to speculate on
the nature of such conversation if one, in fact, had occurred. LaRue admitted that
as far as he knew, Cooper left the store to engage in a strike. There is no testimony
in the record that either before or after Cooper left, he evinced or expressed an in-
tention to permanently terminate his employment There is, therefore, absolutely
nothing in the record to support Respondents' contention that Cooper had voluntarily
terminated his employment.
On the entire record, I am convinced and find, contrary to the denials of Andrews
and Cooper, that they departed from Respondents' premises to engage in a strike
and picketing. I base this conclusion on the uncontradicted testimony, for the most
part adduced by Respondents, that: (1) the Union planned a strike at the Lamar
Avenue store on Saturday, September 16, when the store "got real busy"; (2) in
furtherance of that objective Mullins had earlier that day asked Union Organizer
Hatch whether it was time to walk out, and that the latter had indicated that the time
was not yet propitious; (3) Andrews and Cooper had solicited support for the strike
when they asked other employees "Are you ready, are you ready"; (4) Respondents'
employees, the Dunn brothers, and Store Manager LaRue were aware of the threat-
ened strike; (5) the possible impact of a strike had been discussed between the Dunn
brothers and Store Manager LaRue; (6) partly in anticipation of such event, they had
called in two city policemen and two additional checkers; (7) in the final conversa-
tion between LaRue and Andrews, LaRue's response to Andrews' announcement was
atypical if Andrews had announced his sudden resignation, but consistent with an
announcement to walk out on strike; (8) all of the events which preceded the walkout,
including the Union's organizing campaign, Andrews' and Coopers' active participa-
tion therein, and the impending election, are inconsistent with any intention on the part
of Andrews and Cooper to terminate their employee status and thus render them-
selves ineligible to vote; (9) Respondents, even on their own version of Cooper's
termination that he just walked out and commenced picketing, had no reasonable basis
for assuming that he had terminated his employment; (10) LaRue admitted that as
far as he knew, Cooper had "left to engage in a strike"; (11) after Cooper and
Andrews walked out Union Organizer Hatch had urged other employees to join in
the strike; (12) the picketing of Respondents' store by Andrews and Cooper was
consistent with their participation in the Union's strike, and inconsistent with any
intention on their part to terminate their employment; and finally (13) the request
of Andrews and Cooper "unconditionally to return to work" is the traditional method
by which unions offer to terminate strikes 30
28 LaRue's affidavit to the Board agent states that he was first advised of Cooper's ab-
sence by Fred Jones at a time when LaRue was on the store floor, and contains no refer-
ence to Fouts' such advice over the Intercom.
2D LaRue had to go through the side room to enter the store from his office. There was
no testimony that anyone, other than LaRue and Cooper, was in the side room.
30 Several hours after Andrews and Cooper had applied for and were denied reinstate-
ment on September 18, discharged employee Albert Mullins brought an identical letter re-
questing reinstatement to Respondents ' Lamar Avenue store, handed it to LaRue, and
walked out without affording LaRue either the time or the opportunity to respond. His
PIC-PAC FOOD STORES 1543
LaRue admitted that at the time that Andrews and Cooper requested reinstate-
ment, no replacements for them had been hired by Respondents. He testified that
his reason for denying their reinstatement was that they had walked out at a time
when the store was busy and their services were needed. Owner W. T. Dunn testified
that "any checker [who] left his check stand and got on the picket line would be
discharged." In view of the foregoing, and Respondents' active opposition to the
Union, it is quite apparent and I find that Respondents discharged Andrews and
Cooper because they left the store to engage in a union-sponsored strike and picket-
ing. There was no testimony regarding the objective of the strike or the picketing
other than the legend on the picket sign. Whether in furtherance of the Union's
recognition objective, or to protest the discharges of Billingsley and Mullins for cause,
the strike and picketing were lawful union and concerted activities which are pro-
tected by the Act.31 Accordingly, I conclude that Respondents' discharge of Andrews
and Cooper because they left the store to engage in said strike and picketing consti-
tuted an unfair labor practice within the meaning of Section 8(a) (3) and (1) of the
Act.
Moreover, as strikers engaged in an economic strike, Andrews and Cooper were
entitled to reinstatement upon request, unless prior to such request their positions
had been filled by permanent replacements hired by the Respondents.32 Since no
such replacements had been hired before Andrews and Cooper requested reinstate-
ment, Respondents' refusal to restore them to their jobs was a further unfair labor
practice within the meaning of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondents discriminatorily discharged and refused to rein-
state Fred Larry Andrews and Thomas M. Cooper, I will recommend that the Re-
spondents be ordered to offer them immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of earnings they may have
suffered because of the discrimination against them by the payment to each of a sum
of money equal to the amount he normally would have earned as wages from the date
of his discharge to the date of the offer of reinstatement, less his net earnings during
said period, with backpay computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294
I shall also recommend that the Respondents make available to the Board, upon
request, payroll and all other records necessary to facilitate the determination of the
amounts due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall there-
fore recommend that the Respondents be ordered to cease and desist from in any
manner infringing upon rights guaranteed to their employees by Section 7 of the
Act.
conduct In this regard suggests that Mullins' attempt to secure reinstatement was not
genuinely made, and that It was merely a strategic move on the part of the Union to
support its charge of discrimination based on Mullins' discharge In contrast to Mullins'
conduct, Cooper and Andrews had appeared at the opening hours of the store and made
a genuine effort to be returned to work.
31 N L.R B. v J. I. Case Company, Bettendorf Works, 198 F 2d 919, 922 (CA 8), cert.
denied 345 U.S 917; N.L.R.B. v. Globe Wireless, Ltd, 193 F 2d 748, 750 (C.A. 9) ;
N L R B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc, 130 F. 2d 503 (C A 2) ;
Carter Carburetor Corporation v. N.L R B., 140 F. 2d 714 (C.A. 8); John S Swift Com-
pany, Inc., 124 NLRB 394, 397-398.
'2N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 1529, Retail Clerks International Association, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondents have engaged in and are en-
gaging in unfair labor practices affecting commerce within the meaning of Section
8(a) (3) and (1) and Section 2(6) and (7) 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 Respondents, Dunn Bros., Inc.,
Dunn & Dunn, Inc., and Pic-Pac Food Stores, Southgate, Inc., d/b/a Pic-Pac Food
Stores, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of Local 1529, Retail
Clerks International Association, AFL-CIO, or any other labor organization of their
employees, by discharging or refusing to reinstate any of their employees, or in any
other manner discriminating in regard to their hire or tenure of employment, or any
term or condition of employment.
(b) Interrogating employees concerning union affiliation, attendance at union meet-
ings, activities, or desires, in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1).
(c) In any other manner interfering with, restraining, or coercing their employees
in the exercise of their right to self organization, to form labor organizations, to loin
or assist Local 1529, Retail Clerks International Association, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from engaging in such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Fred Larry Andrews and Thomas M. Cooper, immediate and full re-
instatement to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and make them whole for any loss
of earnings they may have suffered as a result of the discrimination against them, as
provided in the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, 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, as set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Post at their stores at Memphis, Tennessee, copies of the notice attached
hereto marked "Appendix A." 33 Copies of said notice, to be furnished by the
Regional Director for the Twenty-sixth Region, shall, after being duly signed by an
authorized representative of the Respondents, be posted by the Respondents imme-
diately upon receipt thereof, and be maintained by them for a period of 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-sixth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps they have taken to comply herewith.34
as In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" In the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Apepals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
34 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
REDWING CARRIERS, INC. AND ROCKANA CARRIERS, INC. 1545
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local
1529 , Retail Clerks International Association , AFL-CIO , or any other labor
organization , by discharging or refusing to reinstate any of our employees, or
in any other manner discriminating against our employees in regard to their
hire or tenure of employment or zany term or condition of employment.
WE WILL NOT coercively or unlawfully interrogate our employees regarding
their union membership , activities , or desires.
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
organizations , to join or assist Local 1529 , Retail Clerks International Associa-
tion , AFL-CIO, 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, and
to refrain from any or all such activities.
WE WILL offer to Fred Larry Andrews and Thomas M. Cooper, immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to any seniority or other rights and privileges previously
enjoyed , and make them whole for any loss of pay suffered as a result of the
discrimination against them.
All our employees are free to become or remain or to refrain from becoming or
remaining members of Local 1529 , Retail Clerks International Association, AFL-
CIO, or any other labor organization.
DUNN BROS., INC.; DUNN & DUNN, INC.;
PIC-PAC FOOD STORES , SOUTHGATE, INC.,
D/B/A PIC-PAC FOOD STORES,
Employer.
Dated------------ ------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 22 North
Front Street , Memphis, Tennessee , Telephone Number , Jackson 7-5451, if they have
any questions concerning this notice or compliance with its provisions.
Redwing Carriers , Inc. and Rockana Carriers, Inc. and Team-
sters, Chauffeurs and Helpers Local Union No. 79, Interna-
tional Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America . Cases Not. 12-CA-1021,12-CA-1022,
12-CA-1023, 12-CA-1025, 12-CA-1026, 12-CA-1027, 12-CA-1028,
and 12-CA-1060. July 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On March 6, 1961, the Board issued a Decision and Order in this
case,' finding that Respondents had not engaged in unfair labor prac-
tices and dismissing the complaint in its entirety. Thereafter, Team-
sters, Chauffeurs and Helpers Local Union No. 79, International
1130 NLRB 1208.
137 NLRB No. 162.