Randall's

National Labor Relations Board - Board Decisions

Feb 24, 1966

157 N.L.R.B. 86 (N.L.R.B. 1966)

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cashiers, excluding professional employees, guards, the store manager, the
assistant store manager, and all other supervisors as defined in the Act.
FALL Foons, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3200.
Randall's and Retail Clerks International Association , Local 455,
AFL-CIO. Case No. 23--CA-1908. February 04, 1966
DECISION AND ORDER
On November 15, 1965, Trial Examiner Harry H. Kuskin issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending dismissal of the complaint in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings, are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner. Accordingly, we shall dis-
miss the complaint.
[The Board hereby adopted the Trial Examiner's Recommended
Order dismissing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Reeves R. Hilton at Houston,
Texas, on March 22 , 23, and 24, 1965, pursuant to a charge and an amended charge
filed on September 21 and October 27, 1964, respectively, and a complaint issued on
December 4.1 It presents the questions of whether Randall 's,2 herein called Respond-
l All dates referred to herein are in 1964; except where otherwise indicated.
2 The name of Respondent appears as amended at the hearing.
157 NLRB No. 6.
RANDALL'S 87
ent, has violated Section 8(a)(1) and (3) of the Act. More particularly, the com-
plaint alleges that, in violation of Section 8(a) (1), Respondent has, since on or about
June 20, interrogated its employees; engaged' in surveillance; denied employees
actively engaged in union activity and wearing or displaying union badges the same
economic benefits, privileges, and inducements accorded to employees refraining from
union activity and from displaying union badges, and, on the day of the election in
Case No. 23-RC-2259, warned employees engaged in organizational activity that
Respondent would effect changes as soon as the election was over. And as to the
violations of Section 8(a)(3), the complaint alleges that Respondent has discrimi-
nated against employee Esther Ruth James by assigning her to a less desirable work
schedule than before, by thereafter transferring her to a different department in a
classification of work not previously performed by her, and by subsequently dis-
charging and refusing to reinstate her; and further that Respondent has discriminated
against employee Tom Parker, Jr., by assigning him to perform more arduous or less
agreeable tasks and by thereafter discharging and refusing to reinstate him. Briefs
were filed after the hearing. Thereafter, Trial Examiner Hilton died and the case was
transferred to Trial Examiner Harry H. Kuskin, pursuant to Section 5 of the Admin-
istrative Procedure Act and Section 102.36 of the Board's Rules and Regulations,
Series 8, as amended. The parties were thereupon apprised that an opportunity for
a rehearing de nova will be afforded them upon request made to me, and that a failure
so to request will constitute a waiver of rehearing and will result in the issuance of
a Trial Examiner's Decision containing appropriate findings and recommendations
for disposition of the case on the basis of the existing record and briefs. No such
request had been made by any of the parties.
Upon consideration of the entire record and the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation, is engaged in the operation of a chain of retail
supermarkets in Houston, Texas. During a 12-month period before the complaint
issued, Respondent sold products in its stores the gross value of which exceeded
$500,000, and received goods from directly outside Texas valued at approximately
$2,500. I find that Respondent is engaged in commerce within the meaning of the
Act.
U. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local 455, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and summary of events, and contentions of the parties
The parties orally stipulated that pursuant to a petition filed by the Union in Case
No. 23-RC-2259, the Regional Director for Region 23 of the Board directed elec-
tions in 2 separate units,3 one unit consisting of employees of Respondent at its
stores and the other unit, not here involved, consisting of the employees of one, Tony
Ferro, located at several stores of Respondent; that there were approximately 188
employees eligible to vote in the former unit and 17 eligibles in the latter unit; that
the elections were conducted on September 25; that the Union lost both elections;
and that the Union did not file any objections to the conduct of the elections or con-
duct affecting the results of the elections.
Organizational activity began during the last part of April or the first of May,
according to Monte C. Raines, a special representative of the Union and "one of the
organizers working on Randall's." He, and another special representative, Michael
Ottings, were in the seven stores of Respondent at "different times," talking to
employees during each visit and handbilling them during some visits 4 Raines testi-
8The stipulation originally mistakenly made reference to elections in three separate
units but was thereafter corrected.
I Raines testified that Otting was with him "nearly every day before the election through
the campaign" and that they visited some stores twice a day and on some days not at all,
but that they visited each store at least three or four times a week. Raines recalled
talking with one employee in a store for about 30 minutes and with a courtesy booth
operator for possibly 10 minutes. As to the handbills, Raines testified that he distributed
between 5 and 10 different handbills in the stores.
$c8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled further that, beginning in June and up to the date of the election, about six or
eight meetings were held with Respondent's employees. Two leaflets in evidence,
which were distributed to Randall's employees, bear the dates of September 11 and 14,
respectively, and the name of the Randall's organizing committee of the Union, as
sponsor. These leaflets contain election propaganda, invite employees to a union
meeting on September 16, and urge them to vote for the Union. There is also evi-
dence as to another meeting held on the evening of September 20 at the Union's
office by an ad hoc group, idei,tified as Randall's employees committee. This meet-
ing resulted in the drafting of a leaflet in the form of a letter and an attached report
of contract proposals. The letter, addressed to all Randall's employees, explained,
inter alia, that with the encouragement of Randall's employees, the individuals con-
cerned had agreed to serve on a committee to set forth their ideas as to the contents
of the future union contract with Respondent and that they were urging employees
to vote for the Union in the election on September 25. At the bottom of the leaflet
appeared the signatures of Tom Parker, Jr., and Esther Ruth James, the alleged
8(a) (3)'s, with the identification that they were employees from store 5, the signa-
tures of Michael White and Terrye Moore and their identification as employees of
store 2, and the signature of Elias Trevino and his identification as an employee of
store 3. This leaflet was distributed hand to hand in all stores on the following day,
September 21, beginning about 9 a.m., and was subsequently sent to employees by
mail.
During the preelection period, employees who joined in the organizational activity
talked to fellow employees about the Union and distributed leaflets and union but-
tons. The buttons bore the name of the Retail Clerks and were about the size of a
nickel or a penny. They were worn by some employees while at work. On the
morning of the election, James from store 5, and White and Thornburgh from store 2
campaigned together in several of Respondent's stores, including store 5, where
admitted Supervisors John Futrell and Leroy Jemelka were store manager and assist-
ant store manager, respectively, and store 3 where admitted Supervisor Don Coles
was store manager. During the former visit Futrell and Jemelka are alleged to have
engaged in surveillance of James, White, and Thornburgh as they campaigned through
store 5, and during the latter visit Coles is alleged to have engaged in similar sur-
veillance of these three in store 3 and in warning them that changes were to be made
by Respondent as soon as the election was over. Futrell and Jemelka are also alleged
to have engaged since September 9 in surveillance of employees in store 5 during
working hours and, in view of the evidence adduced, I take this allegation to encom-
pass surveillance of Raines during his organizational activity in the store. In addi-
tion , Futrell is alleged to have interrogated James about her union activity around
August 1 and Parker about his union membership and activity on or about August 20
when he was hired by Futrell. Other conduct by Futrell, assertedly violative of the
Act occurred when he allegedly rescheduled James on August 14 at store 5 to a less
desirable work schedule than before; assigned Parker on or about September 10 to
perform more arduous or less agreeable job tasks; transferred James on or about
September 18 to a different department in a classification of work not previously per-
formed by her; transferred Parker on or about September 19 to a less desirable work
shift than before; and discharged Parker and James on or about September 21 and 26,
respectively, and thereafter refused to reinstate them. In point of time, Parker's
discharge occurred before the distribution that same morning of the leaflet of the
Randall's employees committee bearing his signature, among others. James' dis-
charge, assuming ' its occurrence as alleged, took place the day after the election.
In point of time, all the alleged 8(a) (1) occurred before the elections. In its answer,
Respondent denies each and every allegation of the complaint. At the hearing and
in its brief, Respondent, in effect, took the position that: (1) as to the alleged sur-
veillance, it is not a violation'of the Act to observe union activities being carried on
by its employees during working hours; (2) the statements attributed to Futrell and
Coles constituted permissible expression of opinion under Section 8(c) of the Act;
(3) the credible evidence fails to establish that Respondent enforced any store rules
in a discriminatory manner or denied any of its employees any economic benefits,
privileges, and inducements; (4) Parker was discharged for cause, namely, the vio-
lation of a rule regulating cash register shortages; and (5) James quit her employment.
B. The alleged surveillance
The record establishes that Respondent's store managers were instructed by Bar-
clay, a supervisor, that organizers were to have the freedom of the stores during the
preelection period and that store managers were not to "bother" the organizers as
long as the employees did their jobs, and that " if [organizers] stopped the people from
t
RANDALL'S 89
working to put [their] people to doing jobs." And, since employees' free' time' was
their own, store managers were not to bother employees in relation to union orga-
nizers during those periods. It is also clear that organizers were not barred from
entering and from campaigning in the stores. Thus, James testified that she had
noticed the union representatives coming into the store and passing out handbills and
passing out authorization cards and, although Special Representative Raines testified
that he was asked to leave by some store managers, including Futrell, he could not
fix the exact dates when, or the places in the store where, these requests to leave
occurred. In any event, Raines testified that on no occasion, when he was asked by
Futrell to leave, did he leave, that he did not pay any attention to the store manager.5
He testified further that "he was just about all over the store" and that he passed out
leaflets "anywhere there was an employee," viz in the warehouse, at the checkstands,
and to employees in the courtesy booth and in the bakery department, while these
employees were at their stations, and further that sometimes he would stop and
explain, recalling, as already found, one instance when he talked for about 30 min-
utes to an employee in a store and another time when he talked to an employee
behind the courtesy booth for possibly 10 minutes. Raines testified further that at
times, while he was talking to employees, Futrell "would get right up behind [him]
and try to stop [him] from talking to them," that Futrell and sometimes Jemelka
"wouldn't say anything, just stand behind [him] follow [him] around the store."
Raines also testified that Futrell asked him "numerous times ... to stop bothering
his people while they were working but he just kept bothering them." It is thus
apparent from all the foregoing, and I find, that Raines, in line with management's
instructions to its store managers, had the freedom of the stores during the campaign,
even to the point of bothering employees while at work and disregarding, with
impunity, requests that he stop doing so, and that the store managers, including
Futrell, intruded on his organizational activity by standing near him and following
him because he was bothering employees while they were working.
Much of the evidence as to surveillance relates to conduct on the day of the elec-
tion by Donald E. Coles, the store manager at store 3 and by Futrell and Jemelka,
the store manager and assistant store manager, respectively, at store 5. As already
indicated, employees James, Thornburgh, and White, together, visited both stores
that morning to campaign for the Union. A composite of their testimony establishes
the following: White and Thornburgh, after having visited and campaigned in
store 1, repaired to store 3 where they accidentally met James. They accepted James'
invitation to handbill "around the store" and while walking around the store, the
three of them walked over and talked to the produce man, who was standing at the
scales,6 and to the stockboy, who was stocking canned goods, in that order. While
talking to the stockboy, they were approached by Coles who asked them to let the
boy work, saying, "Now you know you are not supposed to be bothering these boys
while they are working." The threesome then moved on and spoke to a girl on the
candy aisle, who "was working some candy." Coles came over and told the girl to
go to the backroom and do something else, insisting thereon even after learning from
her that he was thereby countermanding a prior order. Their next stop was at the
checkstand where they started talking to the girl in charge. There were no customers
"around" and Coles came up and said, "I want you to let the girl work. Don't be
bothering her." At this point they walked out of the store, followed by Coles. The
conversation which ensued outside the store between Coles and the threesome will
be discussed hereinafter.
After leaving store 3, James, Thornburgh, and White proceeded to store 5. There
they spoke only with the produce boy, who was at the weighing scales waiting for
customers to come up. While this was happening, Futrell appeared right behind them
and Jemelka appeared in front of them. Futrell said nothing to them. At this junc-
ture, White turned around and indicated to his companions that "we have got a
shadow behind us" and James then suggested, "Well let's go on and walk around the
store." At no point did Futrell tell them to leave the store, although they were fol-
lowed by both Futrell and Jemelka as they made their way around the store.
After leaving store 5, the threesome visited another store, the number of which
is unclear from the record, where they talked to a Mr. Hartline with whom "they
5 In this connection, employee James testified that organizers came up and talked to her
but she "can't recall of ever hearing . . . [Futrell] asking them to leave."
" White testified that the produce man was doing nothing but "there could have been"
customers in the produce department.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were real good friends." Hartline is variously identified in the record as store man-
ager and assistant store manager. They did not approach any of the employees who
were present in the store. From there they went to the union office.
Respondent's countervailing testimony in respect to the above was given by Coles
and Futrell. As to the happenings in store 3 where he was manager, Coles testified
as follows: The first time that James was in the store during the 21/a years that he
was manager was about 10 or 12 days before the election. At that time, he had no
conversation with her. He recalled, however, that there was "some trouble" in the
courtesy booth where employee Nancy Holland was working. When he arrived,
Holland was crying and, upon inquiring from her as to why she was crying, she said
that James and Kathryn Triolo, the International representative, "had upset her or
made her mad." 7 Whereupon, he asked Holland to leave the booth. Coles said
he had no conversation with James other than to say hello. He testified further that
the only other time he saw James in the store was on the day of the election. She
was with "other people" whom he did not know. Coles admitted following James,
although not through the whole store, explaining that he watched James "because ...
there had been trouble before" between Holland and her and "you just can't hardly
have an employee crying in the store waiting on customers." He also admitted that
he has followed other organizers, explaining that organizers came into his store
almost every day a couple of times, sometimes two and "sometimes as high as three,
four or more" at a' time; that at one time a whole bunch of people whom he did not
know walked into the store, did not use a shopping cart, and "just walk[ed] off
through the back of the store"; and that he was having trouble with people pushing
a basket with perishable items like ice cream into a corner of the store and allowing
the items to stay there, thaw out, and ruin, and he did not want that to happen.
-Coles conceded that he asked an organizer to stop bothering a part-time stockboy
who had a buggy load of groceries and was stocking an aisle. The stockboy had
pushed the buggy load to the end of the aisle and was standing there in conversation
with three people and customers "could not get through in and out of the aisle."
Coles walked up and asked them to let the stockboy do his job because they were
blocking the aisle; he did not ask them to leave the store. The reference here is
clearly to the already discussed incident on the day of the election involving the
threesome and Coles. In addition, Coles testified that, on this occasion, he asked
James to leave one of the checkers alone, "to let her finish checking customers."
With respect to the above happenings at store 5, Futrell testified that when he saw
James and "two young boys," 8 come into the store, he "just handled [his] job at the
front" of the store; that he probably spoke to James but did not follow her around
the store"; nor did he see Jemelka follow her around the store. However, Futrell
did admit that he followed organizers around the store, "from time to time .. .
periodically," explaining that he did this in order to "see that they didn't bother any
people when they were at work." When that happened, he would "put them to doing
something else," but that he never told any union organizers, who came into his store
one to four at a time and as many as four and five times a day, to leave the store.
It is the position of the General Counsel that despite the clear and concise instruc-
tions by Barclay to store managers as to the right of access by organizers to the stores
during the organizational campaign, namely, that organizers had the right to go just
about anywhere in the stores and to engage in organizational activity with employees
if they were not "busy," Coles, Futrell, and Jemelka engaged in a vigorous campaign
of "watchfully following" the organizers and employees of the stores engaged in
organizational activity in their respective stores. The General Counsel appears to
argue further that the violation of the Act herein consisted not only of surveillance
or "watchfully following," but of the action of these store managers of moving
employees from the path of organizational activities by assigning them something
else to do and sending them to other parts of the store-anywhere so long as the
organizers and union adherents could not talk to them-and of according union
organizers "safe conduct" out of their stores and in some cases asking them to leave-
all of which conduct constituted the promulgation of a rule prohibiting employees
from engaging in union solicitation and activity at any time on store premises, a rule
which was not necessary to maintain production and discipline.
I am persuaded that, under all the circumstances, Respondent did not here exceed
the bounds of permissible conduct under the Act. In view of the fact that the inci-
dents detailed above occurred in the store proper during store hours and while cus-
7 James testified that the disagreement was between Holland and Triolo and not with her.
8 The reference here , I find , is to White and Thornburgh.
RANDALL'S 91
tomers were apparently in the store , and while the employees approached were, in
each instance, at work,9 the conduct of the store managers of "watchfully following"
was a'reasonable attempt by Respondent to meet an intrusion upon its efforts to carry
on its business . Although there is evidence that employees had theretofore been
talking among themselves about the Union while at work without management inter-
ference, it is significant that James testified in this connection that she "never
refrained them from doing their duty nor did she ever neglect hers." It is abun-
dantly clear that James and the others during their organizational activity did prevent
employees from doing their duty, under circumstances which should have made them
more circumspect in that they were not then at work while those approached were,
and their very presence in the store during business hours as organizers was at the
sufferance of management. It is significant, too, that Coles was properly apprehen-
sive because of previous happenings in the store when organizers and people
unknown to him came into the store in groups, and that the conduct of "watchfully
following" occurred only after the threesome had intruded in each case upon an
employee while at work. And, accepting the testimony of the General Counsel's
witnesses that Futrell and Jemelka followed James, Thornburgh, and White closely
as they went through the store, it is evident here, as in the case of Coles, that the
precipitating incident was the intrusion by them upon an employee while at work.
While Futrell and Jemelka may have been more zealous than Coles in their "watch-
,fully following" efforts in this instance and also in other instances referred to in
rather general terms in, the record, their conduct did not exceed reasonable bounds
in view of the extent of the organizational activity and the number of organizers who
were moving through the stores during the period of the organizational campaign,
their understandable preoccupation with the disruptive effects of conduct which
exceeded reasonable bounds, and their apparent function as store managers of moving
about the store.
With specific reference to Futrell, there is testimony by James that during the week
before the election , International Representative Triolo and she were engaged in
front of Futrell 's office in a conversation about passing out campaign literature and
making the rounds of the stores, and that Futrell, who was standing at his desk in
a position above them, overheard them. However, as James testified that Futrell said
nothing, as Futrell denied overhearing any of the conversation, and as James and
Triolo had stationed themselves in a' position close to Futrell, I find that the evidence
fails to establish that Futrell was engaging in surveillance. There is also testimony
by Parker that, on one Saturday afternoon, he was on a lunch break in the backroom
and was having a discussion with a part-time sackboy about the secrecy of the ballot
in the ensuing election ; that he turned around and saw Futrell standing behind him;
and that Futrell then walked in front of him and he engaged Futrell in a short con-
versation about how business was. There is no evidence as to how long Futrell was
standing there or that he did, in fact, overhear the conversation. In addition, Futrell
denied overhearing any such conversation. Accordingly, I also find that this evidence
falls short of establishing surveillance.
In -view of- all the foregoing, I therefore find that Respondent did not engage in
surveillance in violation of the Act.10
It is true, as'the General Counsel points-out that, at times, store managers saw fit
to send employees, who were approached by organizers while at work, to other parts
of the- store to do something else. However, contrary to the General Counsel, it is
-9 1 cannot agree with the apparent position of the General Counsel that an employee
who is'just stocking shelves or standing at a- scale or checkout counter ready to serve
-customers who are in the area is not "busy "
10 The cases- relied upon by the General Counsel to support a contrary finding are
distinguishable on 'their 'facts and are not controlling here. See; in this connection,
J. L. Brandeis & Sons, 54 NLRB 880, enfd in part and denied in relevant part 145 F'2d
556 (C.A 8)1, in which' the Board, although finding that the trailing of, and standing
near. organizers in a retail store by detectives especially hired for this purpose was un-
lawful surveillance, indicated that the privilege of entering a retail store by organizers is
subject to abuse which the Board did not condone and further that it did not appear
that'buyers and' department'store•heads were unable to prevent abuses-should-they occur.
The•Bohrd plainly indicated 'there that the vice'was in the use of operatives whose funs'
tion was'to trail and'stand' near all organizers coming Into the store '- That, of course,
ts-not 'the situation in the instant case which 'involves the use of Respondent 's supervisors
to check abuse ' - - • ' • ' ` ' ' . '
. The court ,' In reversing the Board on this phase of the case , said, in -part: "Respondent
could have prohibited proselyting on its premises during business - hours: -That`if"di'd'
less, certainly cannot subject it to just criticism."
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not established on the record that store managers accorded "safe conduct" to orga-
nizers out of the store." " Although the record shows that Coles followed the three-
some of James, Thornburgh; and White out of the store, this evidence falls far short
of establishing that he used any pressure to get them to leave. In this connection,
;White testified,,"So we just walked out of the store and as we did [Coles] followed
-us out:"- F Nor is it established to my satisfaction that organizers were on any occasion
asked preemptorily to leave by store managers. In this connection, although Raines
testified that he was at times asked to leave, he made it clear that he disregarded such
requests with impunity, continuing his organizational activity.
Accordingly, contrary to the General Counsel, because the so-called "watchfully
.following" was not surveillance and because the action by store managers of moving
an employee to another place in order to cope with the intrusion of organizers upon
-that employee's work was not unreasonable and because the store managers did not
resort to "safe conduct" of organizers out of the premises, and did not ask organizers
to leave, or, if they did, did not enforce the request, I am unable to conclude that
Respondent, in effect, promulgated a rule prohibiting employees from engaging in
union activity at any time on store premises.12 Accordingly, I find no violation of
the Act in the foregoing respects.
C. The alleged warning by Coles
As already indicated, on the day of the election, Coles followed James , Thorn-
burgh, and White out of store 3. A conversation ensued. According to James,
Coles told the three of them that "there was going to be a lot of changes made in the
Randall's stores and '[they] told him that [they] knew there would be if [they] won
the election and he informed [them] whether the election was won or not that there
would be some changes made." According to White, Coles' rejoinder was couched
differently, as follows: "If the union loses there are going to be some changes."
Thornburgh's testimony as to Coles' rejoinder paralleled somewhat that of James.
According to him Coles said, "No, I mean even if the Union loses." In this connec-
tion , it is noteworthy that White testified, on cross-examination, that Coles could
not have said that there will be a lot of changes made whether or not the Union
loses the election. On the other hand, Coles' version of this incident is that one of
the three said that there would be some changes made if the Union won the election
and that his rejoinder was, "Yes, there probably will be some changes."
. In view • of (1) the variances among the General Counsel's witnesses as, to what
Coles did say, (2) the differing versions as to who actually initiated this conversation,
and (3 ) the ambiguity in the language attributed to Coles by James and Thornburgh,
were I to accept their version, I find that the evidence falls short of establishing that
Coles' remarks violated Section 8(a)(1) of the Act.
D. The alleged interrogation
The evidence in this area concerns a conversation between Futrell and James about
the last part of July or the first part of August and another one between Futrell and
Parker on the occasion of his being hired to work in store 5. With respect to the
former, it appears that Randall's had recently acquired certain C. P. Evans' stores
and it was James' understanding that store 6 was "under the C. P. Evans' union ...
an independent union ." James testified that she approached Futrell with a copy of
the C. P. Evans' union contract. When she asked Futrell whether he had seen the
contract, Futrell inquired of her "if [she] thought [she] needed a union to speak for
[her], that if she couldn't speak for [herself]." James then replied that "as long as
it was Randall's, that [she] felt [they] were all right, but ... she didn't want '[the inde-
pendent union]." However, according to Futrell, James asked him whether the
C. P. Evans' union was taking over Randall's stores and his response was that as far
"I assume the connotation to be removal from the store against the will of the orga-
nizers concerned.
v See Harris Paint Company, a wholly-owned subsidiary of Bernz-O -3fatic Corp., 150
NLRB 72.
The Wm. H. Block Company, 150 NLRB 341, cited by the General Counsel , is clearly
distinguishable on its facts, even assuming that a rule was here promulgated . Thus, for
example, the rule was there applied to employees in a service building of a retail store
and not, as claimed here, to employees while on the selling floor of a retail store during
store hours ; and further , there, unlike here, it was established that the rule promulgated
was discriminatorily applied to employees soliciting on behalf of the union and not to
other types of solicitation.
RANDALL'S 93
as [he] knew no union could take over any store unless they were voted in." Futrell'
denied that James handed him a copy of the C. P. Evans' contract,13 and further
denied that he made any remark about whether James needed a union or that she
could speak for herself.
Assuming, without deciding, that the conversation occurred as James testified,
I find that Futrell's remark was not violative of 8(a) (1). Significantly, it was James
who approached Futrell and introduced the subject of unionism. Further, Futrell's
invitation to James to speak for herself constitutes in this context a view or opinion
entitled to the protection of Section 8(c) of the Act 14
The second conversation involves Parker's employment interview with Futrell.
The complaint alleges, in this respect, that "Respondent, by Manager Futrell, on or
about August 20, 1964, interrogated an employee about his activities and membership
on behalf of the Union at the employee's former place of employment, and noted to
said employee the difference as to hours and rate of pay by his former employer and
by Respondent." It is, of course, patent that Futrell's reference to the existing differ-
ences as to hours and rate of pay furnishes no predicate for an 8(a)(1) violation.
And with respect to the balance of the interview, it is clear from Parker's own testi-
mony that Futrell did not transgress. Thus, Parker said that, when asked for refer-
ences by Futrell, he gave the name of Don Hofer of Local 455 of the Retail Clerks,
the Union herein, and invited Futrell to call him. Parker testified further that, when
asked about what salary he expected, he told Futrell that he had been a former union
employee, had worked for union stores before, but as this was not a union store, he
did not expect the union scale. The interview concluded with Parker accepting the
position on the terms mentioned by Futrell, with the understanding that he was to
begin working that evening. In view of the above, it is clear that no interrogation of
Parker by Futrell occurred during the interview. Accordingly, I find that Respondent
did not violate the Act by acts of interrogation.
E. The alleged disparate treatment of employees actively engaged in union activity
and displaying union badges in respect to economic benefits, privileges and
inducements
The relevant allegations appear in Section 8(b) of the complaint and attribute the
proscribed conduct to Futrell and Jemelka. In the response to my order for
bill of particulars, the General Counsel asserts: "The economic benefits, privileges
and inducements accorded by Respondent to employees refraining from engaging
in union activity and from wearing or displaying union badges, but denied to em-
ployees actively engaged in union activity, and wearing or displaying union badges
provided by the Union," alleged in paragraph 8(b) of the complaint are as follows:
"Previously enjoyed smoke breaks, previously enjoyed rest breaks, use of company
telephones for personal calls, freedom of movement at the store, limitation of right
of discussion with other employees, change of fixed work schedules, and reassign-
ment of duties not previously engaged in."
The record indicates that employees White, Thornburgh, Parker, and James were
named as observers in the election and that, except for Parker who was discharged on
September 21, all of them served in that capacity on September 25. Of these, only
Parker and James were employed in store 5, where Futrell and Jemelka were store
manager and assistant store manager, respectively. The record shows further that
union badges or buttons were worn by Parker and James and by James Earl Bass,
Barbara Guillory, and 11illy Joe Martin, who were also employees of store 5. Of
these, Parker, James, and Bass and White, an employee of store 2, testified for the
General Counsel with respect to conditions at store 5.
As to the claimed changes in smoking breaks, the testimony of the General Coun-
sel's witnesses does not refer to any instance involving interruption of a smoking
break. James testified that, in line with a common policy throughout the retail indus-
try, the store had a rule that checkers were not allowed to stand up in the checking
stand with a cigarette in their hand. Futrell's testimony amplified this somewhat by
indicating that nonsmoking in respect to checkers included "the general area right in
front." He acknowledged that he had talked to several people about smoking and
asked them to stop, that one instance involved Parker who was behind the register as
28 In her testimony at the hearing before the appeal tribunal of the Texas Employment
Commission on February 20, 1965, the transcript of which is in evidence as Respondent's
Exhibit 3, James, in describing this conversation with Futrell, made no mention of
a copy of the C. P. Evans' contract.
11 See E A. Holcombe and J. N Holcombe d/b/a Holcombe Armature, 140 NLRB 618.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a checker and smoking , and other instances involved part-time employees who were
smoking behind the register while sacking. He dented ever telling James to put her
cigarette out.15
With respect to the alleged changes in previously enjoyed rest breaks, which I inter-
pret to include coffee breaks ,16 it is significant that although James testified that there
was a curtailment of coffee breaks "after the union business started," she could not
recall , on cross-examination , how many coffee breaks she missed in the month of
June, July, or August. And while she answered similarly at first as to the month of
September, she later testified that she did not miss any coffee breaks in September. It
is also noteworthy that when Bass was questioned, on direct examination, as to
changes that were made to James and Parker regarding coffee or rest breaks after he,
Bass, had started wearing his badge in the latter part of August, he replied, "I didn't
particular [sic] pay attention ...." I take note also of Parker 's testimony that before
he started wearing his badge "often times he would be required to come back off of
these breaks, but at this time [sic] I didn 't complain about it." And while it is true
that Parker testified further that thereafter he had to come back from these breaks
more often "while several of these other privileged employees got to sit around and
drink coffee and smoke cigarettes ," he did not identify any of "these other privileged
employees " Indeed, only one person is named in the record as receiving preferred
treatment in respect to breaks and usage of telephones-one Minnie Black, a checker,
who was transferred to store 5 from a C. P. Evans ' store . According to James, Minnie
Black "was very freely [sic ] in her breaks in fact she had more breaks than we
normally had to start with . Seemed like whenever she got ready for a break she was
allowed one and if she wanted to use the telephone why she used it and she was even
paged to the telephone ." While Bass also named Black , his testimony in this respect
reflects what he was told by James and Parker. Bass testified that they told him that
they were not receiving their breaks as they should and Black was receiving "normal
coffee breaks " Significantly , Futrell also testified that Black received only the
normal coffee breaks ; i.e., one in the morning and one in the afternoon . In addition,
he testified that he called her off a coffee break , that "from time to time he has most
likely called most all of them off a coffee break" for the reason that the store became
busy. Futrell named, in this connection , Parker , Guillory, and James.
As to the use of telephones by employees , Futrell admitted that he effected changes
as to their use and that this change , as well as others , occurred after he was advanced
during July'from assistant store manager to manager . Futrell testified that, because
employees were using company telephones for their own private use from time to
time and , because he did- 'not want anybody using the telephone in his office or in the
meat department unless it was for business reasons, employees were told by him at a
store meeting that they could use the telephone at the courtesy booth and the pay
telephone. In this connection , Parker testified that about a week before his termina-
tion , he asked and received permission from the courtesy booth operator to use the
courtesy booth telephone ; that, after he did so and returned to his checkout counter,
Futrell told him that he would no longer be allowed to make personal calls on the
company telephone and that if he had any incoming or outgoing telephone calls, they
would have to be on the pay telephone . James' testimony in this regard was that "we
were deprived of the use of the telephone in the office except the employees that didn't
wear their badges they were freely called to the phone , could use the phone whenever
they got ready ." However, as already mentioned, no employee , other than Minnie
Black, was identified by James or any other witnesses for the General Counsel as being
in the preferred group getting preferred treatment in the use of the telephone.
With respect to the alleged changes in the freedom of movement of employees,
Parker testified that Futrell stopped his customary smile when talking to him but
would frequently snap at him and tell him to stay in his register . that on one occasion
when "[he] was standing in [his] register and.Barbara [Guilloryl was standing in her
register which were side by side and Mrs James was standing between [them]" and
the three of them were discussing the election Futrell "came running up to the register
and spoke to them." Futrell asked James if all she had to do was to "stand around
and talk" and when James answered in the negative Futrell told her to "go over and
face that pickle aisle ," 17 and also told Parker to stay at his register and not to leave
James testified in respect to these asserted changes that they were no longer allowed
to venture out and stretch their legs or so if they were not busy . They were told,
15 James testified that she was allowed to smoke "down at the far end" behind the
bakery department, where -she worked until the Saturday before the election.
ie Company policy provided for two such breaks and a lunch break.
17 This direction to James required her to straighten merchandise on the shelves along
the aisle and to pull the items to the front.
RANDALL'S 95
just as she was told by Futrell, to stay in their checking stands or behind their work-
place. Futrell admits having told Parker about September 9 to get behind the check-
stand; he added that Parker complied and he identified three other checkers, including
Guillory, to whom he gave similar instructions at other times.
The alleged limitation of the right of discussion with other employees is highlighted
in the testimony of James, on cross-examination, that "we '[the employees] talked in
our store all we wanted to ..." while at work.
As to the alleged changes in fixed work schedules, the testimony of James is again
noteworthy. When asked, on direct examination, what her hours were as a grocery
checker before she was transferred to the bakery department, James testified that she
"worked various hours to start with in the Grocery Department. It was shift work
and it varied. It was one week you would work one shift and the next week you
would work another shift, when [she] was in the Grocery Department." James testi-
fied concerning a change in her shift hours from the 8:30 a.m. to 5 p.m. shift to the
11 a.m. to 8 p.m. shift, on the Saturday before the election, the day on which she was
transferred from the bakery department to the grocery department as a checker.
There is, however, nothing in the record showing that James protested the change in
shift hours when she saw the schedule setting forth her hours in the grocery
department.18
James also testified as to her days off being changed. One such change, according
to her, occurred on August 14. She testified that at that time she was working in the
bakery department and her day off was changed by Futrell from a Saturday to a
Wednesday, and that, after taking the first Wednesday off, she obtained permission
from Futrell to change her day off to Monday. The other such change, James testi-
fied, occurred on the Saturday before the elections, when her day off was again
changed from a Monday to a Thursday; at that time she was engaged in a conversa-
tion with International Representative Triolo in the presence of Special Representative
Raines and another employee, at a place underneath the office where Futrell's desk
is located and with Futrell "standing up there." She was asked by Triolo whether she
would like to campaign with her on her day off, and she answered in the affirmative.
Immediately thereafter, according to James, Futrell went to the schedule and changed
her day off to Thursday.
In regard to the above, Futrell testified that he does not recall any other off day for
James than Saturday. As to the change on August 14, Futrell explained that he
wanted all his checkers working on Saturday which is the "biggest" day in the store
and by this change he would save about 8 hours of work time by eliminating a part-
time worker and that he so told James at the time.19 As to the, change of James' day
off from Monday to Thursday during the week of the election, Futrell testified that
James requested the change because she had something to do that day, and that he
granted it. Of significance, with respect to the August 14 change, is the fact that this
date fell on a Friday and that the signed daily timesheet of James for the ensuing
week, admitted into evidence as Respondent's Exhibit 5A, shows, contrary to James,
that during that week she was off on Monday, as Futrell testified, and worked on
Wednesday.
With respect to the claimed changes involving "reassignment of duties not pre-
viously engaged in," Section 9(c) alleges that on or about September 18, Futrell and
Jemelka transferred James to a different department "in a classification of work not
previously performed by her." The reference here appears to be to the transfer of
James from the bakery department to the grocery department as a checker. The
record of James' employment, as described above, is to the contrary, as she began to
work for Respondent as a checker in the grocery department.
It is apparent to me from all the foregoing, and I find, that the complaint's allega-
tion of disparate treatment in the foregoing respects has not been sustained. Thus,
as to smoking breaks, it is evident that no changes, of substance, were effected with
respect to smoking behind the checking stands and in that general area. And, accord-
ing to James, she was not curtailed in her smoking privilege while she was in the
bakery department, where she worked until the Saturday before the election. There
is also no evidence as to any curtailment of former smoking privileges elsewhere on
the store premises. Further, as to rest breaks and coffee breaks, James' testimony indi-
cated that she suffered no loss in coffee breaks during September and she could not
recall how many she missed during the months of June, July, and August. Parker's
testimony establishes also that before the alleged changes in rest breaks and coffee
breaks, he was required' "oftentimes" to come off these breaks "but at this time
18 In this connection , James testified that as far as she can recall, Futrell , after discuss-
ing the transfer with her, had no more to say to her for the balance of the day and she
had no discussion with Futrell the following Monday.
19 James' testimony is in accord.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the] didn't complain about it." While he testified that thereafter he had to come off
such breaks more often, in the face of privileged treatment to others, his testimony
suffers from vagueness in that he did not identify any of "these other privileged
employees." Insofar as the changes by Futrell in telephone usage are concerned, the
changes coincided with Futrell's promotion to store manager and I find acceptable
justification in what would be a normal business objective of keeping employees from
using company telephones for other than business reasons. As to the testimony of
the General Counsel's witnesses as to changes in the freedom of movement of
employees, it is for the most part general in nature. Indeed, the only incident which
is pinpointed involves employee Parker and that is, in my view, far from censurable,
since Futrell's conduct was a reasonable reaction by a store manager to the existing
circumstances. Furthermore, the alleged limitation of the right of discussion of
employees among themselves is refused by the testimony of James, on cross-
examination, that, "we [the employees] talked in our store all we wanted to" while at
work. With respect to the claimed changes in fixed schedules, I am satisfied that a
change did occur in James' day off in August from a Saturday to a Monday, as Futrell
testified, and not as James testified, viz, first to a Wednesday, and at her request, after
the first week of the change, to a Monday. Respondent's records, in evidence, clearly
demonstrate the incorrectness of James' testimony in this respect. As to the change
itself, this was one of the changes instituted by Futrell within about a month of his
appointment as store manager. I accept as reasonable the explanation of Futrell that
it was an economy move insofar as it eliminated 8 hours' work by a part-time worker
and an efficiency move in that he wanted to have all his checkers work on Saturday
which is the "biggest" day in the store. And, finally, the alleged changes involving
"reassignment of duties not previously engaged in," are, as in the case of the alleged
limitation of the right of discussion, refuted by the record. Thus, as to James' reas-
signment to the grocery department as a checker from the bakery department, it is
clear that James began working for Respondent in the grocery department as a
checker.
I find further that the General Counsel has not established on this record that those
changes that were made represented a disparity of treatment between those who did
and those who did not engage in union activity and display union badges. It is signifi-
cant that the only employee specifically identified in the record by any of the General
Counsel's witnesses as having been treated differently was Minnie Black, and the
areas of such treatment which were mentioned in such testimony were the usage of
telephones and the taking of restbreaks. Additionally, I have already intimated that
James' testimony in this connection that Black had "more breaks than we normally
had to start with," is suspect. Thus, according to the testimony of employee Bass,
James and Parker told him that they were not receiving their breaks as they should
while Black was receiving "normal coffee breaks." Further, it was Futrell's testimony
that Black was allowed the normal coffee breaks. And, according to him, he called
Black off her coffee breaks as he most likely called others, naming Parker, James,
and Guillory, for the reasons that the store was busy. In view of the nature of the
testimony of witnesses for the General Counsel as to the claimed preferred treatment
to Black and because no other employees were identified by them as having been
preferred, I conclude that it is not established by a preponderance of the evidence that
there was any disparity of treatment of employees by Respondent, and, particularly,
no disparity based on union connected reasons. Accordingly, for all the foregoing
reasons, I find these allegations to be lacking in merit.
There is testimony-in the record to the following effect by White, who quit Respond-
ent's employment sometime in October: Manager Simpson of store 2, where White
worked as a part-time student, kept telling White that he, White, was for the Union
but White was noncommittal; Simpson assigned fewer hours to him during the orga-
nizational activity, and to Thornburgh and him during the week after the election;
and that he was denied a "hold check" or loan on the Saturday after the election by
Assistant Manager Orland H. Moore at this store. There is also testimony by James
that she had a telephone conversation with Barclay, who as already noted was a
supervisor of store managers, in which she discussed with him the change on
August 14 of her day off by Futrell, and during which Barclay said "he thought
Randall's had hired pretty intelligent people, and he didn't think that intelligent
people needed union, that union was a bunch of Communists, thugs and Communists."
As to these matters, the complaint does not allege that Respondent discriminated
against White or Thornburgh in violation of 8(a) (3) and the General Counsel asserts-
in his brief that he does not contend that there were any such violations. Nor does
the complaint allege'any specific violations"by Respondent through either Simpson,
Moore, or Barclay.
RANDALL'S 97
I find no warrant for concluding that any of the foregoing was violative of the Act.
I rely, inter alia, on the fact that the issue of whether Barclay violated 8(a)(1) was
not fully litigated herein; on the carelessness of James at times with the facts, as
discussed in greater detail hereinafter; on the uncertainty in White's testimony as to
dates, hours he worked, and other details; and on his admission, on cross-examination,
that hold checks were discontinued "a week or 2 after ... [Evans] merged," indicating
thereby that the denial by Moore of a hold check was in accordance with a policy
already in effect for several weeks.
F. The alleged discriminatory, discharge of Parker
Tom Parker, Jr., was hired as a full- time checker in the grocery department during
the week of August 17. At his employment interview,'he gave as a reference a
Mr. Hofer of the Charging Union. After wages and other, terms' were discussed,
Parker was hired and told to report that evening, with the understanding that he was
to be on a 30-day trial basis at the end of which "if he didn't work out"' he could be
discharged without "giving him any other reason why." Parker's schedule of hours
up to and including Saturday, September 19, was from 11 a.m. to 8 p.m.; it was
changed at that time to the early shift starting at 8:30 a.m. Parker was terminated
on Monday, September 21, between 8 and 8:30 a.m., shortly after he reported for
work. Up to that time, he had had two register shortages-one during the last
week in August and the other during the week ending September 19.
Parker testified, with respect to the first shortage, that he was informed by Futrell
that he was not quite $10 short and that it was company policy that checkers paid
out of their pocket all shortages in excess of $2.50; that he agreed and paid $7.37. As
to the second shortage, he testified that on Saturday evening, September 19, Futrell
told him that he was not quite $10 short in his register again; he, in turn, expressed
disbelief, and protested being charged for shortages in view of his lack of control of
his cash register, in that the register would not lock and in that it was accessible to
sackboys and others; he also asked Futrell to recheck his figures on the claimed
shortage and Futrell agreed to do so and let him know on Monday. During the con-
versation Parker asked Futrell about his change in schedule and Futrell told him of
the change to take effect on Monday but gave no reason for it. When Parker reported
to work on Monday, as directed, the following occurred: He asked Futrell which
register he was to work and was told by Futrell that it would be register number one
and that Futrell would be with him in about 10 minutes. Parker then went back to
the courtesy booth and asked Futrell if he had the time to give him the money for
register number one. Whereupon, Futrell said that he was going to have to let Parker
go. When asked why, Futrell said, "Well you have been short in your register."
Parker indicated that if he was short this time, he would be glad to pay for it again.
Futrell's reply was that he did not have any control over it, if Parker had any com-
plaints, to make them to Parker's supervisor. Parker pressed him further by asking,
"Well is this the way it's going to be?" and Futrell said, "I'm going to have to let
you go " With this, Parked added, "Well, thank you sir, it's been a pleasure," handed
Futrell his identification badge, and left the store.
Futrell's testimony as to the second shortage incident and the termination of Parker
is at considerable variance with that of Parker. With respect to securing a register
against others who might seek access, Futrell testified that a register can be secured
by "blocking" it, that he had told employees that every time they left the register he
wanted it blocked, and that he had told this to Parker. Additionally, Futrell denied
having any discussion with Parker about the second shortage on Saturday night, as he
first noticed the shortage after the store had closed. He testified further that when
Parker came into the store the following Monday morning, he told Parker he wanted
to see him. Parker went to the back of the store, got a cup of coffee, and came back
to the front of the store. At this point, Futrell told Parker "he was going, to let him
go." • Parker then inquired whether Futrell was sure he wanted to do this. Futrell's
reply was in the affirmative and, according to-Futrell, that was approximately the end
of the conversation. '
With respect to his union activity, Parker testified that a few days after he was
employed, James told him about the efforts of the Union to organize the stores; that
he engaged "quite actively" in the discussion of the pros and cons of the Union with
employees in the store; that he attended union meetings, that he volunteered at the
union meeting on Tuesday evening, about September 14,20 to be an observer at the
September 25 election and thereafter discussed this with several people at store 5;
that, at the 'meeting on Sunday, September' 20, lie signed the leaflet of Randall's
20 So far as I can glean from the record,- th)s meeting'occurred on a Wednesday evening
and the date was September 16.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees committee, copies of which were distributed the following day in the stores;
that he wore a union button on his shirt every day beginning about September 1 and,
after September 8, passed out union buttons; and that he transported one employee
to and from union meetings.
It is not contended that Respondent knew of Parker's attendance at union meetings
or of his transporting an employee to and from such meetings or of what transpired
at these meetings. It is, however, the General Counsel's position, in effect, that
Respondent learned through Futrell of the fact that Parker was to be an observer
at the September 25 election and must have known about Parker's union activity from
his daily display on his shirt of the union button, and that the foregoing is under-
scored by the changes made in Parker's assignments within a week after he started
wearing his union button.21 The°General Counsel also relies for a finding of knowl-
edge on the fact that a leaflet of Randall's employees committee bearing the signature
of Parker was distributed in the store on the day of Parker's discharge.
With respect to knowledge that Parker was to be an observer, the General Counsel
relies on the two instances involving discussion in the store between Parker and others
during which, according to Parker, he was discussing the matter of the secrecy of the
ballot and his being an observer. I have already mentioned these incidents and have
found that they did not constitute surveillance by Futrell, as alleged. I find further,
in the absence of testimony that Futrell actually heard what was being said by
Parker, that the record does not establish that Futrell thereby became aware that
Parker was to be an observer at the ensuing election. Nor does the record establish
that Respondent and/or Futrell learned, by the time of Parker's alleged discharge,
the Parker was to be an observer.
As already indicated, Parker testified that he wore his union button on his white
shirt 'every day while at work beginning about September 1. Employees James and
Bass testified that Parker wore a badge in the store but did not indicate whether he
wore it every day. Futrell testified that he "didn't see Parker with a badge on that
he can remember." Assuming, without deciding, that Futrell was aware thereof, I find
no nexus between the changes alleged to have occurred in the store thereafter, some of
which affected only Parker, and the display of a union badge or button by Parker.
The changes that were allegedly applied on a disparate basis by Respondent to
employees active in the Union or displaying badges, involving employees' freedom of
movement in the store, usage of company telephones, smoking privileges, and taking
of coffee and rest breaks have already been discussed and found to be lacking in ade-
quate support in the record. The remaining changes which are asserted here affected
Parker alone and, according to his testimony, consisted of (1) being required to stock
the milk cooler in a temperature of 29 degrees above zero on Thursday, Septem-
ber 10, after he had been out sick the day before with "a very bad chest cold and flu";
(2) after 2 hours of such work and after returning to the store proper, being required
to go into the backroom and mop it down with hot water, and (3) after completing
this assignment, being reassigned to the milk cooler for the rest of the evening over
his protest to Futrell that he did not think that this was right especially when he "had
been taking medicine and was just off from sick the day before." It was Parker's
further testimony that he was hired as a full-time checker, that this was not checker's
work, that he had never done this type of work before, and that, to his knowledge,
none of the full-time checkers had ever done this type of work.
According to Futrell, when he hired'Parker, he told Parker that his duties were "to
check, to carry out, to sack, just a general utility man." Futrell explained that, at the
time, he wanted a man checker so that he could "fill in [his] open spaces." With
respect to the milk cooler incident, Futrell specifically, recalled one occasion when
Schotts, a supervisor, came to the store and told him that "they were having some
wheels coming into town" and that he, Schotts, wanted all the coolers cleaned (i e.,
the milk cooler, frozen food cooler, meat cooler, and produce cooler). Futrell con-
tinued that, in order to keep his general back area clean, he uses the men he has and
that he did so in this instance, putting Parker to clean the milk cooler and to mopping
the floors. Futrell denied that Parker said anything to him about being sick or having
the flu, indicating that Parker's only remark was that it was unfair. Futrell explained
that, while this was the only time Parker actually cleaned the floors and the wire
racks in the cooler, he has worked in the milk cooler from time to time filling up
shelves,22 and that the type of cleaning job done by Parker is done periodically at
6-week to about 2-month intervals, after there has been an accumulation on the wires
of the thin layers of wax or other material that slide off the milk cartons.
a In the light of Parker 's testimony that he received his union button from James
about the first of September , the date reference here is found to be about September 8._
22 Parker was not recalled to refute this testimony.
RANDALL'S 99d
Upon a careful analysis of Parker's testimony, I find that there are some significant
discrepancies therein. Futrell was not asked to pinpoint the date of the milk cooler
incident. However, Parker was asked to do so, on cross-examination. He testified
variously that this occurred in the latter part of September and that it could have been
on September 10, because he was sick on Wednesday the day following his day off,
which is on Tuesday, and reported to work on Thursday. This testimony is directly
controverted by Parker's signed timesheet for the week ending Saturday, Septem-
ber 12, which is in evidence as Respondent's Exhibit 11. This exhibit shows that
Parker did not work on Monday and Saturday of that week but worked on the other
4 working days, including the Wednesday when he was assertedly sick. Additionally,
Parker's timesheet for the next week ending September 19, in evidence as Respondent's
Exhibit 8, this being his last week of work for Respondent, shows that he did not work
on Wednesday and Thursday 23 but worked on the other 4 working days. Indeed,
these are the only 2 weeks during which the milk cooler incident could have occurred,
if Parker was correct in his testimony to the effect that this change occurred after
about September 8. Incidental to the above, and having a bearing on whether Parker
was a credible witness, is his testimony as to his schedule up until the last day he
worked. Thus, he testified that his hours were from 11 a.m. to 8 p.m. and that his
day off was on Tuesdays throughout the entire period . Yet, as already shown, during
the last 2 weeks of his employment he worked on Tuesdays. Additionally, I find an
apparent discrepancy in the testimony of Parker as to the temperature of the milk
cooler at the time of his assignment which he fixed at 29 degrees above zero. Futrell
indicated, in this connection, that the temperature of the cooler is between 34 and
38 degrees and that it will never get down below 32, which is the freezing point, as
the milk in the glass jugs "will pop" at that temperature. I find, in the light of the
realities brought out in Futrell's testimony, that Parker's testimony in this latter
respect was an obvious exaggeration. Further, there is yet another discrepancy in
Parker's testimony. Thus, Parker testified that about 2 weeks before his termination,
he inquired of Futrell about his trial period and was told that his work was satis-
factory, he was a good checker, and Futrell "would keep him on," and that this was
at the end of the 30 days. It is, of course, obvious that 30 days from the date of
Parker's hire on August 18 would have fallen during the last week of Parker's employ-
ment with Respondent. Clearly, then, this incident could not have occurred as Parker
testified.
In view of the foregoing, I am unable to credit Parker's testimony that he had been
ill the day before the milk cooler incident or that he ever told Futrell when he was
assigned to the milk cooler job and the mopping job that he had been ill the day before.
Nor can I, in view of the further discrepancy in his testimony in respect to his day off
and to the temperature of the milk cooler, credit his other testimony relating to this
incident.
Accordingly, as the record fails to establish that Parker's assignment to the milk
cooler and the mopping jobs was a discriminatory assignment to perform more
arduous or less agreeable job tasks, I find that no violation of the Act was committed
thereby, even assuming that Respondent knew at the time that Parker was wearing a
union button and was a union-adherent.
With respect to the actual discharge of Parker, it is apparent that at the time of such
discharge, the leaflet of Randall's employees committee on which Parker's signature
appeared had not yet been distributed at any of Respondent's stores and that, absent
any evidence that Respondent learned of its existence by other means, it cannot be
found that Respondent and/or Futrell had any knowledge thereof. In view of the
foregoing and the facts that it is undisputed that Parker had had two weekly register
shortages of about $7 in excess of the amount allowed, during 2 of the approximately
5 weeks of his employment; that Parker was a probationary employee who could
have been discharged within the 30-day period of probation without "giving him any
other reason why"; that the discharge occurred shortly after 30 chronological days
had expired; that there is testimony by Futrell that he had, during his tenure, dis-
charged another employee, a part-time checker, for register shortages; and that the
record is devoid of any evidence of union animus by Respondent, I conclude and find
that by discharging Parker, Respondent has not discriminated against him in violation
of Section 8(a) (3) and (1) of the Act.
23 Futrell testified that a woman identifying herself as Parker's mother had telephoned
to say that Parker would not be able to come to work on Wednesday but did not say why.
221-374-66-vol. 157-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The alleged discriminatory discharge of James
1. James' employment history
Esther Ruth James was hired by Store Manager Thomas Woorley in January 1963
as a checker in the grocery department of his store . Except for a few extra work
assignments at other stores , James worked in store 5 throughout her period of employ-
ment. As already indicated , James testified that in the grocery department the work
was shift work and her hours would vary, from week to week according to her shift
assignment . At the beginning of her tenure , the store was open on Sunday and
employees would work that day and have 2 days off during the week. Sometime
during 1963 , i.e., about July or so, James began to work in the tobacco and bakery
department , sometimes referred to herein as bakery department . She continued to
work in that department until a week before the alleged discharge .. Her hours of
work were from 8:30 a.m . to 5 p.m. John Futrell, who became assistant store man-
ager in January 1964 and store manager in July 1964, listed James' duties as those of
waiting on customers , ordering and stocking the baked goods, ordering and stocking
the cigarettes , cigars, and candy, and "filling those up." James' day off in this depart-
ment was Saturday until it was changed by Futrell on August 14 to a Monday, under
circumstances which I have already discussed and found to be justifiable and free from
any restraint , interference , or coercion . Another change affecting James occurred on
September 19, when she was transferred to the grocery department as a checker on
the 11 a.m. to 8 p.m. shift . I have also pointed out in this connection that, in view of
her prior employment history as a checker in the grocery department , there is no sub-
stance to the allegation in the complaint that this was a transfer to a different depart-
ment in a classification not previously performed by her. I shall discuss hereinafter
whether any significance adverse to Respondent can nevertheless be attached to this
transfer , to the fact that James was assigned to facing the aisle in the grocery depart-
ment just before this transfer , and to the further fact that James ' hours in the grocery
department were from 11 a.m. to 8 p . m. rather than 8:30 a in. to 5 p.m. as in her for-
mer assignment.
The week beginning September 21 was the last week that James worked for
Respondent . Instead of having her day off on Monday of that week , she had Thurs-
day off . James did not work on Friday, September 25, the day of the election, dur-
ing which she campaigned and acted as observer . Her campaigning activity in several
of Respondent 's stores has already been described herein. James was scheduled to
work on Saturday but did not report, allegedly because she was ill and had to see the
doctor. According to James, she telephoned Futrell between 9 and 9:45 a.m . on that
Saturday telling him of this and asking for her schedule for the next week, and Futrell
told her that her "services were no longer needed, that he thought that [James] was
working for the Union." The testimony is in sharp conflict at this point , because
Futrell testified that he received no such telephone call from James. It appears that
James telephoned the store within the next 2 weeks and spoke not to Futrell but to
the courtesy booth operator about having her check sent to her. It is Respondent's
position that it did not discharge James but that James quit her employment.
2. James' union activity
James learned in.June that employees at Randall's were interested in having a
union represent them. She signed a union authorization card and sent'it to the Union
in June or thereafter . She attended union meetings and campaigned over her home
telephone urging employees of other stores to vote for the Union in the September 25
election. She also campaigned among employees in store 5 on her lunch periods, on
her breaks , and during work periods ; e.g., if she was helping checkers sack groceries.
She wore a union button while at work beginning in the latter part of August , and dis-
tributed buttons to other employees . Her signature appeared on the leaflet of Ran-
dall's employees committee which was circulated in Respondent 's stores on Monday,
September 21. She was an observer for the Union on the day of the election, was
present at the counting of the ballots that evening and, as already noted, campaigned
with two other observers, White and Thornburgh , in several stores that morning. The
fact that she was to be an observer was made known to Futrell on Monday or Tuesday
of the week of the election by Raines , the special organizer of the Union . Futrell had
theretofore, in the middle of August , had a conversation with James in which she
disclosed her antipathy toward being represented by the independent union, the repre-
sentative of the C. P. Evans' store employees at the time of the acquisition of those
stores by Respondent.
RANDALL'S 101
Futrell admitted that James wore a union button in the store, that he was aware that
she was to be an observer at the election, and that he had conversations with James
about the Union. Indeed, it is not disputed, and I find, that Respondent had knowledge
of James' union adherence, her role as an observer, and her organizational efforts in
behalf of the Union, particularly of her participation in Randall's employees commit-
tee and her organizational activity on the day of the election.
3. The transfer of James on September 19, the change in her shift hours, and the
ad hoc assignment to facing an aisle
I have already alluded to the issues of whether James' transfer from the tobacco and
bakery department to the grocery department was illegally motivated, notwithstanding
my finding above that the complaint wrongfully alleges that this was a transfer to a
different department in a classification not previously performed by her. In this con-
nection, it is apparent from the testimony of James that there had been a problem
about cigarette shortages in her department and that Futrell and one of the super-
visors, Schotts, had decided to keep careful records of cartons of cigarettes coming
into the department and of cartons and individual packages of cigarettes as they were
sold; and that, after this inventory system was instituted, she had various shortages.
James also testified that she had problems with an overstock condition in the tobacco
department. However, she attributed this to excessive buying during April of that
year when she was absent due to illness, including the acquisition of unheard of brands
of cigarettes, and to the fact that cigarettes were brought into'store.5-when store 6
was closed. According to James, this overstock condition was finally straightened out,
after several visits by Schotts, through the transfer of cigarettes to other stores and
through a different system of ordering cigarettes. More specifically, she fixed the time
that cigarettes were no longer overstocked as the month of August. . -
With respect to this transfer of James, Futrell testified that the reasons for it were
that, despite her responsibility for cleanliness in the bakery, her department was "fairly
dirty" and that she had mishandled the ordering of cigarettes by having an overstock
on cigarettes, although he had spoken to her about it "quite a few times." Futrell
testified further that, on the day of the transfer, he found James in the front part of
the store and he asked her whether she had anything to do in the bakery department.24
She replied in the negative and he thereupon put a part-time boy back in James' depart-
ment to wait on some customers standing at the tobacco counter and waiting to be
served, and he asked James to face some shelves; also on that same day he made the
change in her assignments and in her hours.
The testimony of Bass, a witness for the General Counsel, reveals that there was
criticism by management of the way James was handling .her department Bass
recalled one occasion when Schotts came into the store to make one of his checks on
the cigarettes and that James was told that she "was over-ordering too much" and on
another occasion she was told that her cigarettes were disorderly. It is noteworthy
that James' testimony, heretofore mentioned, that cigarettes were no longer over-
stocked in the month of August is controverted by Futrell's testimony that such over-
stocked condition was prevalent in September. This testimony of Futrell is corrobo-
rated by Respondent's Exhibits 6 and 7, in evidence, showing that on September 16
there was a sizeable transfer of cigarettes to store 3 and on September 18 there was a
similar transfer to store 4. And as to whether some of the above was due to the clos-
ing of store 6 by Respondent, Futrell remembered that groceries, vegetables, and
paper products were transferred to store 5, but he had no knowledge of cigarettes being
transferred to this store from store 6 or any other store.
I am satisfied from all the foregoing that there is insufficient basis in this record for
finding that James' transfer to the grocery department was discriminatory. It is sig-
nificant that when James was asked, just prior to her transfer to the grocery depart-
ment, whether she was happy in the bakery department, her reply was that she "was
happy anywhere [Futtrell] put [her]." Thus, James, at the very least, gave no
intimation that a transfer at that time would prove objectionable to her.
Nor do I find discrimination in the ad hoc assignment of James by Futrell, just prior
to the above transfer, to the task of facing an aisle. The record shows that, as an
employee in the bakery department, James faced shelves in the tobacco section, which
contained such items as pipes, vitamins, flints, lighters, 'and batteries. Although
Futrell admitted that this was the first time that James had faced shelves in the gro-
cery department, he mentioned three checkers, including Barbara Guillory,'who had
24 James testified that she had caught up with hei work behind the bakery at the time
but the store was quite busy and she was out sacking groceries.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done so before. In addition, employee Bass, who incorrectly fixed the time of James'
facing an aisle as about 2 weeks before the election rather than about a week before,
testified that after he saw James doing this, he saw Guillory doing the same volun-
tarily. He testified further that, in response to his inquiry of Guillory as to how she
liked such work, Guillory said "it was fun for her."
I reach a similar conclusion,of no discrimination in the change in shift hours which
accompanied James' transfer to the grocery department. As already established by
James' testimony, work in that department was shift work and it varied sometimes from
week to week. In addition, as I have already noted, there is nothing in the record.
showing that James protested the change in shift hours when she saw the schedule
setting forth her hours.
4. The issue of whether James quit or was discharged
As already indicated, James' testimony that she was discharged on Saturday, Sep-
tember 26, by Futrell during a telephone call which she had made to Futrell to tell him
of her inability to report for work that day because of illness is controverted sharply
by Futrell. According to him, no such telephone conversation ever took place.
Although James testified that she made the telephone call in the presence of her hus-
band and his cousin, and thereafter called the union hall and reported the conversa-
tion with Futrell to International Representative Ray Wooster, none of these indi-
viduals testified herein.
I am persuaded, for all the reasons hereinafter set forth , that James' testimony should
not. be credited. James testified as follows with respect to this incident: She was ill,
during the Friday night following the election and, in the morning, her husband in-
sisted upon taking her to the doctor and told her to call the store and get her schedule
for the following week. She called the doctor's office around 9 a.m. and she was to see
the doctor about 11 a.m . She telephoned Futrell between 9 and 9:45 a.m. in the pres-
ence of her husband and his cousin. Futrell answered the telephone, identifying him-
self by "Futrell speaking." James identified herself and told Futrell, "I am sick this
morning and I have got to go into the doctor's office, and I am sure that he is going
to keep me off my feet for a couple of days. Would you mind giving me my schedule
for the following week?", Futrell's response was that "[her] services were no longer
needed by the store. He thought [she] was working for the Union." At that point
the conversation terminated as James "hung the phone up." - James was upset about
this and called the union hall and spoke to International Representative Ray Wooster,
telling him of her conversation with Futrell. Wooster told James to be in the union
hall on Monday morning and "they would take [her] over to the Labor Board to file
charges"; and she was at theiunion hall on Monday morning.
On cross-examination, James was asked whether she did not see the doctor that
day between 9 and 9:45 a.m. In response, she testified at one point: "I could have
but I am not for sure." I note, too, that her testimony on January 14, 1965, during
an appeal before the Texas. Employment Commission, which is in evidence herein as
Respondent's Exhibit 3,25 James referred to the above telephone conversation with
Futrell. However, she did not testify in that proceeding that Futrell answered the
telephone, identifying himself by the words "Futrell speaking." Rather, she estab-
lished the identity of Futrell -by saying, "I know Mr. Futrell's voice because I have
talked to him, before on the telephone and I'm sure that I was talking to him." In
yet another, respect is' doubt engendered concerning the testimony of James respect-
ing this incident. Thus, although James testified that she was at the union hall the fol-
lowing Monday morning, pursuant to arrangements made on Saturday on the telephone
with Wooster, so that she could be taken over to the Board's offices to file charges 20
the amended charge with respect to this matter was not filed until Tuesday, Octo-
ber 27, about a month later. James' above testimony must also be evaluated against
her apparent preoccupation 'that she would be among the first to lose her job if the
Union lost the election. Thus, James testified that about a half hour before the elec-
tion she was in the store with International Representative Triolo and, after noticing
a new checker in the checking stand, she said to Triolo, "there is my replacement" and
ac James' initial claim for the payment of unemployment compensation insurance for
23 weeks was, approved ; however, she was disqualified 4 weeks because she voluntarily
,left her last work without good cause connected with the work
In her testimony before the Texas Employment Commission, James said that she
was, in fact , taken to the Board's offices at that time.
RANDALL'S 103
-Triolo said, "I don't think so " James also testified, on cross examination, that she
probably told employees in store 5 that if the Union did not win the election that she
imagined that she "was going to be the one, one of them that would be gone." Addi-
tionally, she testified that she probably told Futrell that she "had a feeling that if the
Union lost the election that [she] was going to be one of the first one they was going
-to get rid of " There is further testimony by James that the morning before she called
Futrell, Guillory called her and told her that she, Guillory, knew that "[James] was
fixing to get fired when [James] went in . Given this preoccupation by
James, and the already discussed doubts implicit in the record with respect to whether
the telephone conversation with Futrell ever occurred, and in the light of my earlier
references to the fact that James had displayed in some of her other testimony a care-
lessness with the facts, I am convinced that James did not testify credibly concerning
this telephone conversation, and that the telephone conversation did not take place.
In respect to James' aforementioned carelessness with the facts, at times, I rely on
(1) the fact that James' testimony as to the change in her day off from a Saturday to
a Wednesday and then to a Monday is controverted by her signed daily. timesheet
in evidence; (2) the dubious character of her testimony that employee Minnie Black,
who was not an adherent of the Union, was receiving preferred treatment; (3) her
failure to recall on cross-examination any of the details of the claimed curtailment
by management of rest periods, after having testified that there was such curtailment
"after the union business started"; and (4) the apparent contradiction between her
-testimony before the Texas Employment Commission and her testimony herein as to
whether she showed Futrell a copy of C. P. Evans' contract during their conversation
in which she manifested her opposition to the C. P. Evans' independent union.
Accordingly, in the light of all the foregoing, as well as (1) the absence of any evi-
dence of union animus by Respondent,27 (2) the undisputed testimony of Futrell that
he had, during the last week of August, requested a raise for James which she there-
after received, and (3) the absence of any findings of unfair labor practices herein, I
am convinced, and find, that Respondent did not discharge James on September 26 in
violation of Section 8(a) (3) and (1) of the Act, but that James quit her employment
on or after that date.28
In view of all the foregoing, it will be recommended that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. Randall's is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Randall's has not engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act,
as amended.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, it is recommended that the complaint be dismissed in its
entirety.
27 I find no evidence of such animus in the fact that James was not transferred to a
vacancy in the courtesy booth job in store 5 as she had requested and, instead, a new
courtesy booth girl was hired. James testified that she was promised the job by Futrell
and Sebotts , and that the transfer was to occur after the hiring of someone in the
grocery department and the transfer of someone to her job. Futrell testified that he told
James, without promising her the courtesy booth job, that he would have to wait and
see ; that thereafter Schotts, a- supervisor,, hired a Mrs. Maddox for the job ; and that
Maddox was an experienced courtesy booth operator, whereas James had not had courtesy
booth experience . The decision to hire Maddox rather than transfer James appears, on
this record, to be no more than a reasonable decision by Respondent respecting the opera-
tion of store 5 and one devoid of any union animus
as As already found, within 2 weeks of September 28, James telephoned the store, spoke
to the courtesy booth operator, and asked that operator to mail her check to her or have
Futrell do so.
Although I attach no controlling significance thereto, the record shows that the Texas
Employment Commission held, intially and on appeal , that James had voluntarily left
her work without good cause connected with the work.' ' ' ' -