Ray's Liquor Store

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1800 (N.L.R.B. 1977)

1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henry Marx and Saul Greenburg , d/b/a Ray's Liquor
Store and Retail Clerks Union , Local 1222, Retail
Clerks International Association , AFL-CIO. Case
21-CA-14307
January 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On September 21, 1976, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief and Respondent
filed an answering brief to the Charging Party's
exceptions. The Charging Party also has filed a
motion to take official notice of another proceeding
pending between the parties.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge as
further explained herein and to adopt his recom-
mended Order.
The complaint alleged that Respondent violated
Section 8(a)(1) and (3) of the Act by discharging
Alfred Gorney and Robert Parades on or about
January 10, 1976. In addition, the complaint alleged
that Respondent violated Section 8(a)(1) and (4) of
the Act by discharging Gorney because he gave
testimony in an earlier proceeding before the Board.
The Administrative Law Judge recommended dis-
missal of the complaint in its entirety. The Charging
Party has excepted to the findings of the Administra-
tive Law Judge. While we agree with the Administra-
tive Law Judge's conclusion that Respondent did not
violate Section 8(a)(l), (3), and (4) of the Act in its
discharge of Gorney and Parades, we do so for the
additional reasons set forth below.
Respondent, Ray's Liquor Store, purchased in 1971
by Mr. and Mrs. Saul Greenburg and Mr. and Mrs.
Henry Marx, is a partnership engaged in the opera-
tion of a liquor and grocery store in San Diego,
California. The store maintains and advertises its
regular hours as 7 a.m. to midnight. Gorney and
Parades, 9- and 14-year employees, respectively, were
working on the night of January 9, 1976. On that
evening, at approximately 11:40-11:50 p.m., Green-
burg drove to the store with his wife and found that it
had been closed. The lights had been turned off and
only the lights customarily left on overnight were
visible. Greenburg drove around the block and
returned to the parking lot. When he arrived in the
parking lot, a customer was unsuccessfully attempt-
ing to enter the store . Parades and Gorney were in the
store stocking milk in the deli counter and checking
the cash register . Greenburg and his wife entered the
store and Greenburg asked why the store was locked.
Parades did not respond. Gorney said the store was
locked because it was not a good idea to remain open
"right on the dot" in view of the possibility that a
robbery might occur. Gorney told Greenburg that it
was "sneaky" to check to see what time they closed.
Greenburg told the employees to leave. The next day
Gorney and Parades were discharged.
Greenburg testified without contradiction that he
has received approximately 10 customer complaints
about the store closing early during December 1975.
A friend, whom Greenburg did not name , also told
him around November or December 1975 that the
store was locked ahead of time. Marx also testified
without contradiction that he had heard customer
complaints about closing early. Further, Dorothy E.
Smith, a patron of the store, also testified without
contradiction that several weeks before Gorney and
Parades were discharged, she went to the store
around 11:30 p.m. and found it closed. However, she
did not report the incident until the day after the
discharges. Greenburg testified that he discussed the
complaints about closing early with Parades on two
occasions and the Administrative Law Judge credited
Greenburg's testimony as to these discussions.
The record therefore stands clear that Respondent
had received customer complaints about the store's
closing early prior to the discharges.
In its exceptions, the Charging Party asserts that
Respondent's union animus is demonstrated by a
prior arbitration award against Respondent, which
involved its paying moneys to Parades, and a prior
unfair labor practice finding against Respondent. The
Charging Party also argues that the discharges were
Respondent's attempt to rid itself of the Union, as the
two employees were the only two employees in the
bargaining unit. We agree with the Administrative
Law Judge, however, that neither the prior arbitra-
tion award, occurring almost 2 years before the
instant discharges, nor the prior unfair labor practice
proceeding finding, bottomed on contract principles,
establishes requisite union animus here.' Nor does
the fact that the two discharged employees consti-
tuted the entire unit, standing alone, warrant a
I We have also taken into account Marx 's statement , as testified to by
Gorney and as set out at fn 2 of the Administrative Law Judge 's Decision, in
our consideration that union animus has not been demonstrated here
227 NLRB No. 262
RAY'S LIQUOR STORE 1801
finding in the circumstances of this case that Respon-
dent wished to rid itself of the Union.2
In sum, a finding of illegal motivation in these
discharges requires an affirmative conclusion that
one of the reasons for the discharges was the
employees' union activity, or in Gorney's case his
testimony under the Act. That conclusion cannot be
reached here as the evidence falls far short of
establishing a union-related or statutory-related rea-
son for the discharges.3 Accordingly, we affirm the
Administrative Law Judge's findings on these dis-
charges and dismiss the complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
2 In its motion to the Board to take official notice of a subsequent
proceeding involving the parties, the Charging Party indicates that a
complaint has issued in Case 21-CA-15122, alleging that Respondent has
violated Sec 8(aX5) of the Act by failing to bargain with the Union since July
28, 1976 Notice of a complaint, however, does not yield a conclusion that a
violation is contained therein, or that a violation, if found, would automata
cally establish animus here Accordingly, we do not rely on any elements
involved in Case 2I-CA-15122 in the instant proceeding, and the motion is
denied
3 As to Gorney, his testimony, as indicated at fn. 2 of the Administrative
Law Judge's Decision, occurred I month pnor to the discharges. However,
mere timing and the seventy of the disciplinary action do not necessarily lead
to the conclusion that his discharge was discriminatory Campbell & McLean,
Inc, 118 NLRB 967, 969 (1957)
DECISION
STATEMENT OF THE CASE'
DAVID G . HEILBRUN , Administrative Law Judge: This
cas, was heard at San Diego , California, on August 10
based on a charge filed January 16 and complaint issued
May 26 alleging that Henry Marx and Saul Greenburg,
d/b/a/ Ray's Liquor Store , herein called Respondent,
violated Section 8(a)(1), (3), and (4) of the Act by
discharging Alfred Gorney and Robert Parades because
they engaged in union or other protected concerted
activities for the purposes of collective bargaining or other
mutual aid or protection , and because Gorney gave
testimony under the Act.2
i All dates and named months are in 1976, unless indicated otherwise
2 On December 10, 1975 Gorney was a witness for General Counsel in
litigation now issued in 224 NLRB 26 (1976). This proceeding originated as
Case 21-CA-13879 (in which Local 1222 , herein called the Union, was (as
here) Charging Party and which I find to be a labor organization within the
meaning of Sec 2(5) of the Act . The case involved alleged violation of Sec.
8(a)(5) through refusal to execute an assertedly reached agreement. The
Board adopted findings that this allegation was proven, with certain
monetary and other relief warranted . Pertinent explication traced the course
of bargaining in terms of fundamental contract law principles, concluding
that an outstanding , unrevoked offer was timely accepted within Sec 8(d)'s
meaning Respecting the factual issue of whether a certain conversation
Upon the entire record, my observation of the witnesses,
and consideration of oral argument by counsel for each
party, I make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSION
OF LAW
The store's regular closing time is midnight 3 Gorney and
Parades were working together as sales personnel the night
of January 9. At 11:50 p.m. Gorney felt ill and told Parades
to lock up. This was done, and the two engaged respectively
in milk case stocking and cash handling during the several
minutes left. Soon Saul Greenburg and his wife appeared at
the locked front door and entered. Greenburg made
agitated inquiry of the two employees why the store closed
early. Parades testified he declined to comment while
Gomey referred to risk of robbery at such late hour.
Gomey also characterized the appearance of Greenburg as
"sneaky." The latter told both employees to leave moments
later.
Greenburg testified that a series of customer complaints
had reached him respecting claimed early closing of the
store over an appreciable span of time pnor to January 9.
On that evening he drove to the store with the matter in
mind accompanied by his wife. They arrived at 11:40 p.m.,
saw the store dark, circled the block, parked and then
entered as Parades simultaneously turned the door key
from inside. Greenburg recalled that Parades pointed to
indicate early closing was at Gurney's behest.
Next morning Parades went into the store to cash
another's check and learned from Greenburg that Gomey's
discharge was being contemplated. At noontime Greenburg
made his decision to terminate both, telephoning Gorney to
state, "Al-forget what was said last night, but you are
fired." Parades had no further contact until his own 5 p.m.
appearance for work, at which time Greenburg discharged
him without comment.
Gorney and Parades were employed at the store approxi-
mately 14 and 8-1/2 years, respectively, have been mem-
bers of the Umon since at least 1961, and were covered by a
series of applicable collective-bargaining agreements from
before acquisition by present partners in 1971. In the course
of these contracts arbitration of several consolidated issues
was heard in 1973 and decided May 6, 1974. Among the
awards made was one to Parades of $800 in back wages?
General Counsel theorizes that union animus motivated
Respondent to administer penalties "disproportionate" to
this incident and retaliatory toward Gorney because of his
"damaging" testimony in the prior case. The Union's
parallel contention is that pretext has been advanced to
occurred on November 10, 1975, Gorney had testified that Henry Marx told
him, "it doesn't matter what they [the Board ] decide The government
can't make me sign anything."
3 Respondent , a partnership, operates a liquor and grocery store in San
Diego, California, annually deriving gross revenue in excess of $500,000
while purchasing and receiving goods valued in excess of $5,000 which
originate outside California. Consistent with prior treatment ofjunsdiction, I
find that Respondent is an employer engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act.
4 This sum was paid with a series of checks drawn by Henry Marx over a
span of time around late 1974 and delivered to the Union for transmittal to
Parades
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempt cost-saving discharge of unit employees in con-
scious effort to avoid future collective bargaining dealings.
A prima facie case is lacking. Both employees functioned
routinely in a neighborhood retail operation, without the
formalistic trappings of a closely administered collective-
bargaining relationship. There was no appointed steward,
nor ready awareness of contract terms nor typical grievance
usages . Demonstrable hostility to institutional unionism
has not been presented , nor is it fair to say that the remote
arbitration matter or even the underlying unfair labor
practice case tends to show such a proclivity. Contrarily,
arbitration is an ordinary labor relations mechanism which
is favored under national labor policy, and an 8(aX5)
violation premised on the theory of "refusal to sign" is
essentially a dispute resolved under contract law without
necessary implication of animus. While I naturally accept
the "government can't make me [etc .]" remark of Marx as
res judicata, this is primarily personal causticity and,
indeed, not truly germane to the issue involved.5
Thus at the threshold, this complaint fails because of
insufficient evidence . The violations alleged here are only
speculative and lack supporting proof. Each avenue of
approach, singly or collectively, allows no legitimate basis
to make the crucial inferences . Vague grousing about
employees, union-related problems or wage expenditures
are within ordinary behavior patterns of employers .6
S Gorney elaborated on this conversational episode of November 1975 by
now credibly adding that Marx voiced chagrin over paying perhaps $7 an
hour for a swept parking lot when others would gladly do it for $150. Even
noting that Gorney was summoned to hear Marx 's views, the total
circumstances of these utterances show vexed dismay, but hardly animus as
that term is known and applied in Board parlance The conjecture sought to
be coaxed from these statements is squelched by the significance found in
several consecutive years of Respondent 's amateurish acquiescence to the
Union's presence
9 1 reject Parades' testimony that Respondent "pressured" him to
kickback the 1974 arbitration award , since he failed to convincingly specify
any form of such conduct
7 I refer here to Greenburg's portentous delay in his decisions on January
10, summary termination of two long-service , trusted employees and
insensitivity to immediate circumstances of this singularly detected early
closing These characteristics reflect value judgments which are, absent
persuasive contrary evidence , exempt from reversal upon application of
Board expertise to dynamics of employment
" The factual issue of whether Ronald Marx or one of the dischargees
may have been responsible for the instance testified to by Dorothy Smith (of
the store being once "definitely" closed at 1 130 p in in early January)
Neither, in themselves, can inconsistency, harshness, nor
ingratitude supply the requisite component.? Related to this
is the probability that young Ronald Marx closed the store
early at a prior time , an event suggesting the compulsive
unfairness of Respondent's action but not elevating it to an
unfair labor practice activity.8 While the Smith complaint
had not arisen, it is established that Greenburg wondered
whether early closing was occurring . Finding it so in at least
one instance was compounded by the jarring accusation that
such vigilance was "sneaky." It was clearly in a mood of
anger which carried into the following day that Greenburg
resolved to discharge these employees. What is not shown is
that any other reason motivated him to so act.9 In sum, the
contention that discriminatory action affected Gorney and
Parades because of matters generally associated to the
Union or because Gorney testified (and Parades was
observed at the place of trial) in Case 21-CA-13879 rises
only to the level of speculation.
Accordingly, I render a conclusion of law that Respon-
dent has not violated Section 8(a)(1), (3), or (4) as alleged
and issue the following recommended:
ORDER 10
The complaint is dismissed in its entirety.
remains inconclusive from the evidence . Precise work schedules (credibly
described as fluctuating occasionally in ordinary times and particularly so
during a vacation of Henry Marx which commenced January 3) are not
known but composite evidence on the point permits the possibility that
Ronald Marx worked with Gurney on Parades ' day off of Monday, January
5
B I find it unnecessary to resolve the disparate testimony of whether
customers could not enter the store on January 9 by 11.40 p.m. as opposed to
1150 p.m . The difference could well be different accuracies of timepieces. In
any event, a 10-minute early closing is reasonably significant to sales and
goodwill of a retail operation . Respecting prior cautioning on the point, I
credit Greenburg 's testimony that he did (which Parades denied) previously
confront the latter and receive assurances it had or would not happen[ed].
This finding further tempers Greenburg 's resolve
io In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.