S. S. Kresge Co.

National Labor Relations Board - Board Decisions

Apr 18, 1977

240 N.L.R.B. 10 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. S. Kresge Company and Ronda Miller and Truck
Drivers and Helpers Local Union No. 696. Cases
17-CA-7060 and 17-CA-7121
April 18, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On January 17, 1977, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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
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 brief
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 Respondent, S. S. Kresge
Company, Lawrence, Kansas, its officers, agents,
successors, and assigns shall take the action set forth
in said recommended Order.
i The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
consolidated proceeding, under Section 10(b) of the
National Labor Relations Act, as amended, was heard
pursuant to due notice on July 20 and 21, 1976, at Kansas
City, Kansas.
I Respondent's Counsel's letter, dated November 15, 1976, and "Motion
to Correct Transcript." attached thereto, are marked as ALJ Exhs. 3 and 4,
respectively, and are received into the record. Such "Motion to Correct
Transcript" is hereby granted. I also note that the transcript record and
exhibit covers and reference by my Order Correcting Transcript (ALJ Exh.
2) refer to Case 17-CA-7060. The transcript, exhibits, and orders all relate
229 NLRB No. 12
The charge in Case 17-CA-7060 was filed on April 1,
1976. The complaint in this matter was issued on June 4,
1976. The original charge in Case 17-CA-7121 was filed on
May 10, 1971. The first amended charge in Case 17-CA-
7121 was filed on June 11, 1976, and the complaint on June
30, 1976. Cases 17-CA-7060 and 17-CA-7121 were
consolidated for all purposes on July 1, 1976.
The issues concern (I) whether the Respondent has
violated Section 8(aX3) and (1) of the Act by discharging
Ronda Miller on February 23, 1976, because of her interest
in, activities in, and support of the Union, and by certain
other changes in other employees' working conditions
because of employee union activities or beliefs, and (2)
whether the Respondent violated Section 8(aXl) of the Act
by creation of impression of surveillance, by threats, by
warnings, and by interrogation of employees concerning
their union activities or beliefs.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by all parties and
have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER 2
S. S. Kresge Company, the Respondent, is a corpora-
tion engaged in a multistate retail sales business, with a
warehouse located in Lawrence, Kansas, the only facility
herein involved. In the course and conduct of its business
operations at the above-mentioned facility, the Respondent
annually purchases in excess of $50,000 worth of goods and
materials directly from suppliers located outside the State
of Kansas. In the course and conduct of its business
operations, the Respondent receives gross annual revenues
in excess of $500,000.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED 3
Truck Drivers and Helpers, Local 696, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL-CIO, is and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
to Cases 17-CA-7060 and 17-CA-7121 and are hereby corrected to refer to
those cases.
2 The facts herein are based upon the pleadings and admissions therein.
3 The facts are based upon the pleadings and admissions therein.
10
S. S. KRESGE COMPANY
m. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
Supervisory and Agency Status 4
At all times material herein, the following named persons
occupied the positions set opposite their respective names
and have been, and are now, agents of the Respondent and
supervisors within the meaning of Section 2(13) and (11),
respectively, of the Act: R.C. Fisher, plant manager; R.D.
Jacobs, plant manager (prior to or on about April 6, 1976);
Ken Johnson, second shift manager (prior to April 29,
1976, and until he became production manager), produc-
tion manager (from sometime after April 29, 1976); John
McNicoll, department manager; Bill Medaris, department
manager; Ray King, department manager; Frank Pattee,
assistant manager; Floyd Holland, assistant manager;
Dale Hesston, assistant manager; Larry Harrold, assistant
manager; Floyd Holland, assistant manager; Herb High-
saw, assistant manager; Gary Spreer, assistant manager;
Alan Wang, assistant manager; Tim Curry, assistant
manager; Ed Netherland, assistant manager; A.W. Shack-
leford, assistant manager; and Bob Larrabee, assistant
manager.
B. Interference, Restraint, and Coercion
1. The General Counsel alleges and the Respondent
denies that the Respondent, by John McNicoll, Bill
Medaris, Gary Spreer, and Larry Harrold, on certain
alleged dates, interrogated its employees about their
sympathies and support for the Union, in violation of
Section 8(a)(1) of the Act.
The witnesses presented with respect to this issue were
Alvers, Frear, and Riner, who testified to events concern-
ing Supervisors McNicoll, Medaris, and Spreer. No
evidence concerning alleged interrogation of employees by
Harrold was presented.
(a) I found Frear to appear to be a truthful, frank and
forthright witness and credit his testimony to the effect that
he was interrogated about union activities and his beliefs in
early February 1976, by Medaris. What occurred is
revealed by the following credited excerpts from Frear's
testimony.
A. He asked me about the union effort and asked
me if I thought that it would do any good and if I was
in support of the union, and I told him that I was.
Considering the foregoing, I note that there is no
evidence of a legitimate need by the Respondent to
interrogate its employees concerning their or other employ-
ees' union activities or desires, and that there is no evidence
that assurances of nonreprisals were given to employee
Frear.
Considering the foregoing, I am persuaded that the
Respondent, by Medaris, engaged in unlawful interroga-
tion of an employee about his union activities, beliefs, or
desires in a manner constituting interference, restraint, and
4 The facts are based upon the pleadings and admissions therein. Initially
at the hearing there was dispute as to the status of many of the assistant
managers. This issue was removed by stipulations to the effect that assistant
coercion within the meaning of Section 8(aXl) of the Act.
Such conduct is violative of Section 8(aX)(1) of the Act. It is
so concluded and found.
(b) Witness Alvers testified to the effect that Supervisor
McNicoll questioned him about the union on several
occasions in late February 1976. His testimony was
conclusionary, however, as is revealed by the following
excerpts from his testimony.
A. They were questions whether or not the union
could do anything for us, why we though the union
could do something for us. If the union did come in,
what made us think something would be done to better
the situations at work.
Considering the foregoing, I am persuaded that Alvers'
testimony as to alleged interrogation was too conclusionary
in :ffect to have probative value. Accordingly, the General
Counsel by such evidence has not established violative
conduct within the meaning of Section 8(aX)() of the Act.
Such allegation of conduct as alleged herein will be
recommended to be dismissed.
(c) Employee Riner testified to the effect that on April
22, 1976, Supervisor Spreer spoke to her. Riner's testimony
revealed that this incident occurred a week before the
election, that prior to this time employees had been told by
management that they could discuss the union problem
thoroughly, and that the employees had been sitting
around, for about 2 weeks, doing nothing but discussing
the union problem. Riner testified that Supervisor Spreer
asked her, "Well, what do you think of all of this?" Riner
told Spreer that she would be glad when the whole thing
was over, that she felt that many of the people were using
the "free time" that they had been granted to discuss the
union problem as an excuse to stop working. Spreer
nodded and left.
Considering the foregoing, I find the evidence insuffi-
cient to establish that the Respondent, by Spreer, engaged
in unlawful interrogation of an employee about her union
activities or desires. Accordingly, such allegation of
unlawful conduct will be recommended to be dismissed.
2. The General Counsel alleges and the Respondent
denies that the Respondent created an impression of
surveillance (of employees union activities). The two
alleged incidents concern alleged conduct of Supervisor
Johnson on February 17, 1976, and of Supervisor Medaris
in early February 1976.
No evidence was presented with respect to the allegation
that Supervisor Medaris "created an impression of surveil-
lance." Witnesses Lowe, Johnson, and Holland testified
with respect to the allegation that Johnson, on February
17, 1976, attempted to create the impression of surveillance
of employees' union activities.
Lowe testified to facts which support the allegation of
unlawful conduct. Johnson and Holland denied in effect
that such unlawful conduct occurred. I found Lowe to
appear to be a frank, forthright, objective, and honest
appearing witness. I found him and his testimony more
believable than I did that of Johnson or Holland. I credit
managers were supervisors within the meaning of the Act. This conforms
with the evidence presented as to the status of such individuals.
I1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lowe's testimony as to this event over the testimony of
Johnson and Holland. What occurred is revealed by the
following credited excerpts from Lowe's testimony.
A. Yes, sir. I was passing down the row, I was
working as I was going along and I overheard Mr.
Johnson tell Mr. Holland that people were passing out
union authorization cards at this time and that he
wanted Mr. Holland and the other repack supervisors
to be on the look out to find who was passing out these
cards. He wanted them to be on their bicycles and to
keep a close eye, especially to the third shift personnel
and that he wanted them to find out who was passing
out these cards. He said he would like to find out
because he would burn their ass real bad. He further
said that if they could find one person who would do
this to them, it would set an example for the others.
Q. Mr. Lowe, you stated that you were working in
the aisle when you passed the office?
A. Yes.
Q. Did Mr. Johnson or Mr. Holland or perhaps
both have and unobstructed view of you as you worked
down the aisle?
A. Yes, sir.
Considering the foregoing, I am persuaded, and conclude
and find that the Respondent, by Johnson, created the
impression that it was engaged in the surveillance of its
employees' union activities. Such conduct is violative of
Section 8(a)(l) of the Act. It is so concluded and found.
3. The General Counsel alleges and the Respondent
denies that the Respondent, by Johnson, threatened to
"burn" employees trying to get union cards signed. This
issue concerns the same incident refered to in 2 above as
regards Johnson's conduct. The witnesses presented, as
indicated, were Lowe, Johnson, and Holland. As indicated,
I found Lowe the more credible witness and have credited
his testimony. The facts of what occurred are set forth in 2
above.
Considering the facts, I conclude and find that the
Respondent, by Johnson, threatened reprisals against
employees attempting to get union cards signed. Such
conduct is violative of Section 8(a)(l) of the Act. It is so
concluded and found.
4. The General Counsel alleges and the Respondent
denies that the Respondent, on certain alleged dates, by
specifically specified supervisors, violated Section 8(a)(l) of
the Act, by (a) advising employees that it would never
bargain or negotiate with the Union, (b) advising its
employees that it would not enter into or recognize a
contract with the Union, and (c) threatening its employees
with economic and other reprisals by reducing or terminat-
ing the operations of the warehouse because the employees
engaged in union activities.
The witnesses presented with respect to the facts
pertaining to these issues were Spurlock, Eudaly, Brumm,
Young, Highsaw, and Wang. Spurlock and Eudaly testified
to events concerning Highsaw. Spurlock and Eudaly
appeared frank, forthright, truthful, and objective witnesses
5 For the reasons previously discussed, I discredit Highsaw's testimony
relating to what he said to employees.
and testified in specific detail. I credit their testimony over
that of Highsaw's as to the events. Highsaw's testimony
regarding conversations with employees did not appear
reliable. Thus, Highsaw's testimony referred to possibilities
and probabilities of discussions, that he didn't say anything
more than "hard bargaining" or "something like that," that
he primarily spoke about hard bargaining, and that he
never spoke about negotiations. I am persuaded that
Highsaw was not a frank, forthright, and objective witness.
I discredit his testimony as to what he said to employees.
Brumm appeared to be a fully frank, forthright, truthful,
and objective witness. His testimony is uncontradicted and
is credited.
Young testified concerning a statement Supervisor Wang
made on April 19, 1976. Wang in his testimony did not
appear to have a good recall of his conversations with
employees other than a conversation not relevant to the
issues herein. I credit Young's version of what occurred on
April 19, 1976.
The facts
Young credibly testified with respect to a conversation
Supervisor Wang had with some employees on April 19,
1976. What occurred is revealed by the following credited
excerpts from Young's testimony.
Q. Let me direct your attention to on or about
April 19, 1976, did Mr. Wang direct any comments to
you, at that time, about the union?
A. Yes, he did.
Q. Where did that take place?
A. Approximately at the repack reserve desk.
Q. Was anyone else present?
A. Yes, the other forklift drivers that were working,
that were there. They were all present.
Q. Would you tell the Judge about that, please?
A. Well, we were discussing the union because
we'd been encouraged to discuss the pros and cons of
the union, and Allan came up and got into the
conversation, and he said that the union would never
do us any good because if we ever went on strike for
higher wages, they would simply shut the warehouse
down.
Q. Did Mr. Wang interrupt the conversation or
was a question directed to him?
A. He volunteered the information.
Spurlock credibly testified to the effect that on February
17, 1976, Highsaw told a number of employees that if the
employees voted in the Union, Kresge would not honor or
negotiate a contract with the Union.
Eudaly credibly testified to the effect that Supervisor
Highsaw spoke to her and other employees on April 22,
1976, as is revealed by the following credited excerpts from
her testimony.5
Q. Let me direct your attention to April 22, 1976.
Do you recall having a conversation with Mr. Highsaw
on that day?
12
S. S. KRESGE COMPANY
A. Yes, I do.
Q. Was anyone else present?
A. Mr. C.W. Ulry, a coworker of mine, working in
the same area.
* * * *
Q. Let me direct your attention to on or about the
30th of April, 1976. Did you have a conversation with
Mr. Spreer on that day?
A. Yes, I did early in the morning. That was the
day after the election.
* *
A. Well, he comes over there quite often on his
bicycle, checking on some of the people that work for
him, and he stopped to talk to this Mr. Ulry and myself,
over union matters and a film the company had showed
us previously. And, Mr. Ulry had asked him and myself
if the company would bargain in good faith should the
union come in and he said, "The union isn't coming in
and should it come in neither one of you will be here
come next October."
Q. Did he point his finger at you or did he make
any gesture to indicate-
A. (Interrupting) He was pointing his finger right at
both of us. He said, "Neither one of you will be here
come next October." And Mr. Ulry said they wouldn't
shut down the distribution center, they had too much
money involved. And he said they could reroute some
of the merchandise through different distribution
centers where we all wouldn't have a job and they
would shut down the plant.
Brumm credibly testified to the effect that during the
period of time, April 15-29, 1976, Supervisor Heston was
having a conversation with Brumm and some other
employees about work and the Union, that Supervisor
Harrold rode up to the group and entered the conversation.
What occurred in the conversations by Supervisors
Heston and Harrold is revealed by the following credited
excerpts from Brumm's testimony.
A. I was riding my bicycle, checking the tow line in
the floor which is part of the equipment which I am
responsible for taking care of, and I was in the back
part of the warehouse. When I come along the line, I
noticed a small group of people and Mr. Heston having
a conversation, and I entered into it with them, and
they were talking about the work load out there at the
factory. Mr. Heston made the statement that he felt
that they would most likely be transferring a lot of the
work load from Kresge's out here to other warehouses
that they owned, and that there might be the possibility
of employees losing their jobs because of loss of work.
And I got into that conversation, when it went on, and
I was telling them I didn't think that the company
could do something like that because of the problems
they were having with the union. We were a little bit
into the conversation and another manager rode up on
his bicycle and entered into the conversation, and he
made the statement, "It doesn't matter whether the
Teamsters get into the warehouse out here or not," that
Kresge would never sit down with Teamsters.
Eudaly credibly testified to the effect that Supervisor
Spreer spoke to her on April 30, as is revealed by the
following credited excerpts from her testimony.
A. It was a very short conversation. I just said,
"Well, it's all over now." And, he said, "No, it isn't,
because the company isn't going to negotiate and the
union isn't coming in and there will never be a contract
between the union and the S.S. Kresge Company."
And, that was all he said and that was the end of the
conversation.
Considering all of the foregoing, I conclude and find that
the Respondent, as alleged, violated Section 8(a)(l) of the
Act by (1) advising employees that it would never bargain
or negotiate with the Union, (2) advising its employees that
it would not enter into or recognize a contract with the
Union, (3) threatening its employees with discharge and/or
layoff because they engaged in union activities, and (4)
threatening its employees with economic and other repri-
sals by reducing or terminating the operations of the
warehouse because the employees engaged in union
activities.
5. The General Counsel alleges and the Respondent
denies that the Respondent, by Supervisor Pattee, on
February 17, 1976, threatened an employee with loss of job
because of the Union.
The witnesses to this issue were Miller, Powell, and
Pattee. Miller and Powell testified to facts that support a
finding of violative conduct. Pattee's testimony constitutes
a denial of having had such conversations with Miller prior
to her discharge. I found Miller and Powell to appear to be
truthful and objective witnesses and believe their testimony
over that of Pattee which was presented essentially in a
generalized manner.
Based upon a composite of the credited testimony of
Miller and Powell, I find that Pattee, on February 13, 1976,
at a bowling alley, told Miller that if she didn't quit
handing out union authorization cards, she would be fired,
that if she worked for him a week or 2 weeks, she would be
fired, that the Teamsters and Maffia were probably one
and the same, and that Miller should be careful when she
opened a door.
Considering the foregoing, I conclude and find that the
Respondent, by Pattee, violated Section 8(aXl) of the Act
by threatening an employee with loss of her job because of
her union activities.
6. The General Counsel alleges and the Respondent
denies that the Respondent, (a) by Supervisors Curry and
Wang, advised its employees that because of their union
activities, if they were seen talking to employees in work
areas other than those to which they were assigned,
supervisory personnel were to direct them to leave those
areas, and (b) by Supervisor Netherland, advised an
employee not to talk to other employees without the
permission of that employee's supervisors, because that
employee engaged in union activities.
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only witness presented with respect to these issues
was Hubbel. I found Hubbel to appear to be a truthful
witness and credit his testimony as to the events involved.
The facts
On February 18, 1976, Hubbel had conversations with
Supervisors Curry and Wang. What occurred is revealed by
the following credited excerpts from Hubbel's testimony.
Q. Let me direct your attention to on or about
February 18, 1976. Do you recall having a conversation
with Mr. Allan Wang and/or Mr. Tim Curry on that
day?
A. I recall this. I had a conversation with both of
them on that day.
Q. What did these two gentlemen do?
A. They're assistant managers. Tim Curry is an
assistant manager on the rail dock. Allan Wang is an
assistant manager in the re-pack area.
discuss the question of unionism among themselves and
with their supervisors.
Considering all of the foregoing, including Hubbel's
identification as an union adherent and otherwise ap-
proved discussion of union problems by employees, I
conclude and find that the Respondent, as alleged, violated
Section 8(aX )(I) of the Act by (a) advising its employees that
because of their union activities, if they were seen talking to
employees in work areas other than those to which they
were assigned, supervisory personnel were to direct them to
leave the area, and by (b) advising an employee not to talk
to other employees without the permission of that employ-
ee's supervisors, because that employee engaged in union
activities.
7. The General Counsel alleges, and the Respondent
denies, that the Respondent, by Supervisor King, attempt-
ed, on April 29, 1976, to grab an employee as she sought to
participate in an NLRB conducted election.
The facts6
* *
A. Yes. I was talking to Mr. Curry on the rail dock
and he informed me that Mr. Jacob had told two of the
assistants in re-pack that I-
It *
A. That myself, Dave Frear, and Gary Prager were
the organizers in this union movement, and if they the
assistants, saw us in their areas talking to any of the
employees there to run us out of their areas.
Q. Was anyone else present when this conversation
took place?
A. No, sir, there wasn't. I later asked Allan Wang if
he had heard any statement about the organizers. He
said he had, and he told me the same thing that Mr.
Curry had told me.
Later, on February 18, 1976, Supervisor Netherland
spoke to Hubbel. What occurred is revealed by the
following credited excerpts from Hubbel's testimony.
Q. Mr. Hubbel, let me direct your attention, again,
to February 18, 1976. Did you and Mr. Netherland
have a conversation that day about your talking to co-
workers?
A. We did. It was shortly after lunch, Mr. Nether-
land called me to the cafeteria area, informed me then
that I wasn't to talk to anyone in the other areas, unless
I had permission from their supervisors. I asked him if
this was because of my support as to the Teamsters
Union, relating to collective bargaining agent, and he
said, "That's because it's the way I want it." He refused
to answer the question as I directed it to him.
Further, the undisputed facts reveal that the Respondent,
during the campaign, encouraged employees in general to
6 The facts are largely not disputed and are based upon a consideration
of the credited aspects of the testimony of all witness, stipulations, and
exhibits in the record.
7 The record does not reveal the exact hours that the NLRB representa-
Ronda Miller, an employee of the Respondent, was
discharged on February 23, 1976. Thereafter, on April 1,
1976, a charge in Case 17-CA-7060 was filed averring in
effect that the Respondent's discharge of Miller on
February 23, 1976, had been discriminatory and in
violation of Section 8(aX3) and (1) of the Act.
On April 29, 1976, at approximately 7 a.m., Miller
appeared at Respondent's plant premises for the purpose of
voting in a scheduled NLRB representation election. She
and employees Frear and Lowe apparently appeared at the
plant premises at the same time. The facts in this case make
it clear that the Respondent was aware that Frear and
Lowe were active union adherents.
The Respondent has a policy requiring employees who
are not on duty and nonemployees to sign in at a guard
console before being allowed in the distribution center's
premises. Frear, Lowe, and Miller checked or signed in at
the guard console. At such time it was indicated to the
guard that Miller was there to participate in the scheduled
NLRB representation election. After such clearance, Frear,
Lowe, and Miller proceeded in the distribution center and
apparently toward the voting site.
King, manager of the case department, saw Miller while
she was at the guard console and prior to her signing in.
King went to see the "boss" to inquire whether nonemploy-
ees were allowed to come in the building.7 King did not see
the "boss" but did see a Mr. Paul, a lawyer representing the
company as to the election involved. Paul instructed King
to go out and ask Miller to stop at the guard console and
wait there for instructions.
King went to where Miller was. At this time Miller,
Frear, Lowe, and an employee named John Shepard had
proceeded about 10 feet inside the premises beyond the
guard console. King, who was in front of Miller, pointed
his finger at Miller and in the direction of the door,
apparently the location of the guard console, and in a loud
voice told Miller that she no longer worked there, that she
tion election was scheduled for. From the way the case was litigated it
appears that it is not disputed that the election had started or was about to
start around the time of the events involved herein.
14
S. S. KRESGE COMPANY
would have to leave and return with him to the guard
console. Miller told King that she was drawing a work-
men's compensation check. While the conversation was
going on, Miller continued to walk, King continued to be
in front of Miller, and there was some movement by both
to the sides. It is clear that Miller was attempting to
proceed, and that King was trying to block Miller and turn
her around to go to the guard console. The movements by
both resulted in some minor contact, and King made a
gesture of attempt to grab Miller to turn her around. King
repeated his directions to Miller on several occasions that
she was to return to the guard console. The facts are also
clear that the remarks by King were in an excited manner.
Miller told King that she was there to vote in the NLRB
representation election. Lowe also made a statement to the
effect that Miller had a right to vote in the election.
Employee Shepard made a statement to the effect that
"This is pretty chickenshit, anyway." Upon the reference to
Miller's intent to vote, her right to vote, and the character-
ization that the event was "chickenshit," King left the
employees and Miller proceeded to the cafeteria and voted
in the NLRB representation elections
Considering all of the foregoing, I am persuaded, and
conclude, and find that the Respondent, by King, violated
Section 8(a)(1) of the Act by the confrontation with and
gesture of "grabbing" Miller while she was on her way to
vote in an NLRB representation election. The facts are
clear that the Respondent was aware of the scheduled
NLRB election, was aware of Miller's discharge and the
pending unfair labor practice charges concerning whether
she had been discriminatorily discharged, and reasonably
was aware that she was presenting herself to vote in such
election. If King had thought that Miller had misrepresent-
ed her purposes for being at the premise, the most logical
and simple answer would have been to check with the
guard first. Considering all of this, I am persuaded that the
Respondent was attempting to reflect its disdain for union
adherents to the other employees present by its confronta-
tion with Miller and attempted requirement for her to go
back to the guard console and await instructions. It is true
that Miller was allowed to proceed to vote after her rights
thereto were reiterated. This, however, does not remove the
impression of strong disdain for union adherents as
expressed. In the context of all of the other unfair labor
practices, such conduct constituted interference, restraint,
and coercion within the meaning of Section 8(a)(1) of the
Act. It is so concluded and found.
8. The General Counsel alleges and the Respondent
denies that the Respondent, by General Manager Fisher,
on April 23, 1976, told an employee he had received a
warning notice because of his union activities and told an
employee he would be okay if he did his job and did not
talk about the Union.
s Miller testified to the effect that King was "bumping" and "scream-
ing." Lowe testified to King's using a loud voice. Miller testified that King
told her to leave the premises. Lowe testified that King told Miller to leave
the plant. The facts are clear that King told Miller to return to the guard
console. Miller testified to the effect that King bumped her and attempted to
grab her. Lowe testified to the effect that he saw some contact by King with
Miller. King denied that he touched Miller. Considering all of the facts and
logic thereof, I find the facts as set forth. I am persuaded that there was
contact but that King did not intend to strike Miller. I am persuaded that he
The witnesses to these issues were Lowe and Fisher. Both
appeared generally to be truthful and honest witnesses.
Lowe testified fully and objectively about the events.
Fisher's testimony as to the events was obviously imcom-
plete in detail and was presented in narrow scope.
Considering this, I found Lowe to appear a more fully
frank, forthright, and truthful witness than Fisher. I credit
Lowe's version of the events over Fisher's, where in
conflict.
The facts are undisputed that Supervisor Ken Johnson,
on April 23, 1976, gave employee Jon Lowe a warning slip
for "intimidation," that Lowe attempted to ascertain from
Johnson what "intimidation" had occurred and was unable
to secure details as to what he had done that constituted
"intimidation." What occurred on April 23, 1976, between
Fisher and Lowe is revealed by the following credited
excerpts from Lowe's testimony.9
A. Yes, sir. Shortly after 7 o'clock a.m. on the
morning of the 23rd after I left work, or after I had
finished my shift I went up to Mr. Fisher's office. Mr.
Fisher was there and he and I were the only ones
present. I showed him the warning slip and I asked
what this was all about. He didn't answer my question
directly, he did make one reference to the fact that you
wouldn't have got the warning slip unless you deserved
it. I proceeded the same line of questioning that I had
with Mr. Johnson. I told him that I had never
intentionally violated a rule of the plant and that I
would appreciate it if he would tell me what I had done
wrong, so I could conduct my future conduct-excuse
me, I further stated that I believe I should have an
opportunity to defend myself and that I could not do so
unless I was told specifically what I did, or the nature
of the charge. And I proceeded to explain to him that I
was in quite a dilemma, I had to come to work and I
didn't know what I was doing wrong and therefore I
was in jeopardy because I could be fired for doing
something that I didn't know about. He finally said
something to the nature of "well, you know as well as I
do, that this warning resulted from your campaign on
behalf of the union against the company." I further
questioned him and I talked to him approximately 20
minutes and I just explained to him that that wasn't
sufficient, that I would need to know specific action
that I did, because even if it resulted in my conduct for
the union, I would like to know what I did so that I
would not repeat that conduct. Finally at the very end
of the conversation, he told me "well" and in addition I
asked him if this had anything to do with my work and
he said, "no, it didn't, it has nothing at all to do with
your work habits." And at the very end he stated to me,
"well, you'll be O.K. if you just come in here and do
your job and don't go around talking about the union,
thought of grabbing her to turn her around and made a gesture in such
regard. The testimony of witnesses, inconsistent with the factual findings, is
discredited, based upon such consideration and the logical consistency of
facts.
I9 credit Fisher's testimony to the effect that during the conversation
Lowe inquired if his alleged misconduct had occurred at a general meeting
at the company and that Fisher told Lowe that this was not what the
reprimand was for.
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you'll be O.K." and I decided that was probably all that
he would tell me, and I couldn't get anymore informa-
tion from him, so I left shortly after that.
Considering all of the foregoing, I conclude and find as
alleged that the Respondent, by General Manager Fisher,
on April 23, 1976, told an employee that he had received a
warning notice because of his union activities, and told an
employee that he would be okay if he did his job and did
not talk about the Union. Considering this in context with
the actual reason for the notice, alleged misconduct of
Lowe as regards a conversation with employee Shepard,
and the findings hereinafter, I find such conduct violative
of Section 8(a)(1) of the Act. Thus, as found hereinafter,
the Respondent had a good faith belief that Lowe had
engaged in improper conduct. Lowe, however, credibly
testified to the effect that he did not engage in such
misconduct. Under the principles of Burnup and Sims, Inc.,
379 U.S. 21 (1964), Respondent's actions herein constituted
interference, restraint, and coercion of Lowe in the exercise
of protected rights. In sum, I find that Fisher's remarks to
Lowe, on April 23, 1976, to the effect that he had received a
warning note because of his union activities and that he
would be okay if he did his job and avoided talking about
the Union, constituted conduct violative of Section 8(aXl)
of the Act.
C. Discriminatory Conduct Issues
I. The General Counsel alleges and the Respondent
denies that the Respondent imposed more onerous working
conditions upon its employee David Frear because he
engaged in union activities. The issues concern whether
certain changes with respect to Frear's working conditions
in early February, and on April 22, 1976, constituted
conduct violative of Section 8(a)(1) of the Act.
Frear, a General Counsel witness, testified with respect
to these issues. Medaris was not presented as a witness by
the Respondent. However, the Respondent presented a
witness, General Manager Fisher, who testified to certain
facts as to matter that occurred in April 1976, that appear
directed toward some of the issues.
Frear's testimony was to the effect that he engaged in
union activities (handbilling, passing out union authoriza-
tion cards, telephoning people, going to union meetings,
and speaking up for the Union at company meetings).
Frear's testimony, however, does not establish when such
union activities were engaged in or that such occurred
before the critical events in issue. Frear also testified to the
effect that he had passed out a handbill to a supervisor
named Downing. Again, Frear's testimony does not
establish that the handing of the handbill to Supervisor
Downing occurred before the critical events in this
proceeding.
Frear testified to the effect that in early February 1976,
Supervisor Medaris questioned him about his union beliefs
and that he told Medaris that he was for the Union. I credit
such testimony as previously indicated. Frear also testified
to the effect, and I credit his testimony, that prior to early
February 1976, he, Frear, had used a bicycle in his work in
'o Frear appeared an honest and forthright witness, and I credit his
testimony.
delivering paperwork to Supervisor Downing, that in early
Feburary 1976, Supervisor Downing told him that he wasn't
to ride the bicycles in the department anymore. Frear also
testified that Supervisor Medaris told him he wasn't to use
trucks or tugs unless it was on business. Frear testified also
that later Medaris in effect instituted such changes as
regards all other employees in the department.
General Manager Fisher testified that he appeared on
the Kresge local scene on April 14, 1976, served as
temporary manager until April 26, 1976, and as general
manager thereafter. Fisher testified to the effect that in
April he instructed supervisors to eliminate the usage of
bicycles except as necessary. Fisher testified to the effect
that Supervisor Medaris told him that he had one bicycle
which could be eliminated. Fisher also testified to the effect
that he knew that Frear worked in Medaris' department.
Fisher's testimony is not sufficient to establish that the
elimination of a bicycle in Medaris' department had
reference to the elimination of the usage of a bicycle by
Frear.
I credit Frear's testimony to the effect that a change in
his usage of a bicycle occurred in early February 1976. His
credited testimony was to the effect that this change
occurred in connection with his work function. I also credit
Frear's testimony to the effect that he was also told not to
use trucks or tugs unless in his work. 10
Frear credibly testified to the effect that in early
February 1976, his working conditions were changed with
respect to his responsibility for paperwork, that when he
had started work, he had packed orders, that later and until
early February 1976, he had handled paperwork on parcel
post, checked some for errors, and had delivered some to
an office, that in early February 1976, he was relieved of his
paperwork responsibilities and resumed packing orders.
Frear also credibly testified to the effect that his
movements around the plant premises had never been
restricted prior to April 22, 1976, that on April 22, 1976,
Supervisor Medaris changed his conditions of employment
by assigning him to pack orders in the gun room, by telling
him that John Regan would bring over the "orders" from
the security cage as to what was to be packed, and that he
(Frear) was not to leave the gun room unless he asked
permission of Medaris.
Considering all of the foregoing, I conclude and find that
the evidence is insufficient to establish that the Respondent
in early February 1976, imposed more onerous working
conditions upon Frear because of discriminatory reasons.
Thus, the General Counsel failed to elicit or establish that
Frear's union activities, or company knowledge thereof,
existed prior to the changes in employment conditions in
early February 1976. Considering Frear's testimony, it
would be completely speculative and assumptive to make
such finding of union activity or knowledge thereof prior to
the changes in employment conditions. Without such
findings, the evidence is insufficient to reveal that the
change in Frear's employment conditions in early February
1976, was because of discriminatory reasons. Accordingly,
the allegations of the complaint in such regard and to such
extent will be recommended to be dismissed.
16
S. S. KRESGE COMPANY
Considering the facts relating to the restrictions of
Frear's movements around the plant premises on April 22,
1976, the facts reveal that company knowledge of Frear's
union beliefs existed as of early February 1976. Under such
circumstances, and absent satisfactory explanation there-
for, the facts relating to the restrictions of Frear's
movements on April 22, 1976, require a finding that such
change in employment conditions was discriminatory and
onerous and violative of Section 8(a)(1) of the Act. It is so
concluded and found.
2. The General Counsel alleges, and the Respondent
denies, that the Respondent on or about April 26, 1976,
restricted the movement about the warehouse of employees
Clarence Brumm and David Hubbel because those
employees engaged in union activities.
The facts "
Employees Hubbel and Brumm worked in Respondent's
maintenance department and performed duties throughout
Respondent's 23.7 acre plant and in the 15 acre area
outside the plant. Their responsibilities concern mainte-
nance and upkeep of the in-floor conveyor system, the
heating system, the air conditioning system, the ventilation
system, the sprinkler system, and the fire alarm system.
Prior to the February 18, 1976, events in this case,
Hubbel and Brumm had been unrestricted in their
movement and had performed their duties throughout the
plant and outside the plant building. As has been noted,
Supervisor Curry told Hubbel on February 18, 1976, that
Plant Manager Jacobs had given instructions that if
Hubbel, Frear, and Prager (who the company considered
to be union organizers), were talking to employees and
were seen by assistant managers doing so, the assistant
managers were to run them out of their areas. Supervisor
Wang verified to Hubbel what Curry had said. On the
same date Supervisor Netherland restricted Hubbel by
telling him that he was not to talk to employees in other
areas unless he had permission from their supervisors.
In carrying out their maintenance responsibilities as to
the in-floor conveyor system, Brumm and Hubbel, prior to
April 26, 1976, had operated as follows. Carts utilized on
the conveyor system were checked and serviced twice a
year. Normally this checking and servicing occurred at the
truck receiving dock or the rail dock. Carts were selected
off the line at random, checked and serviced, and marked
in such a manner as to reveal that such cart had been
checked and serviced. This procedure was followed until all
carts had been checked, serviced, and marked. Apparently
when all carts had been so serviced, the procedure started
over again with new markings.
Fisher became Respondent's temporary manager on
April 14, 1976, and became permanent manager on April
26, 1976. At some point of time between April 14 and the
23 or 26, 1976, Fisher inspected Respondent's conveyor
system, examined some carts, and found the same to be in
a poor state of repair. Fisher instructed his maintenance
supervisor, Netherland, to have the carts repaired.
" The facts are based upon a composite of the credited aspects of the
testimony of Brumm, Hubbel, and Fisher.
On April 26, 1976, Netherland instructed employees to
repair the carts on the conveyor system as is revealed by
the following credited excerpts of Hubbel's testimony.
Q. (By Mr. Clark) Let me direct your attention to
on or about April 26, 1976. Did you have a conversa-
tion with Mr. Netherland on that date about the
performance of your job duties?
A. I did.
Q. Was anybody else present?
A. Yes, there was.
Q. Who was that?
A. Clarence Brumm was present, also, the assistant
manager in the maintenance department, A.W. Schack-
elford.
Q. Where did that conversation take place?
A. It took place in an area just east of the
maintenance shop, right close to the entrance of it
there.
Q. Would you please tell the Judge about that
conversation?
A. Yes, it was when we went to work. It was the
Monday morning before the election. Mr. Netherland
called us out from the shop area to this area, just east of
the maintenance shop, along the in-floor converyor
track and had a piece of paper in his hand which he
read off of. Out of that, he advised us that, as of this
time, this area was our working area, pointed to an area
about six or eight foot square, and said that we was to
stay there and service the SIM floor conveyor carts. We
wasn't to leave that area for any reason, unless we have
permission from either him or A.W. Schackelford to do
so. Also, if there was any break-downs other than that,
why him or A.W., one, would send either one of us or
both of us to repair the break-down. I asked him about
the normal things that we normally took care of and
watched, and he said, "Don't worry about that. Just do
what I tell you here, to stay in this area." Mr. Brumm
asked him for a letter, then, releasing us from our duties
since we wouldn't be able to keep a watch on it to
perform our normal preventive maintenance program,
which he refused. I asked him, at that time, again, if this
was because of our support to the Teamsters Union,
and he said, "That's because that's the way I want it."
Q. Mr. Hubbel, have you ever been restricted to a
particular area like this before?
A. Not before that time, no, sir.
Considering all of the foregoing, I conclude and find, as
alleged, that the Respondent, on April 26, 1976, restricted
the movement about the warehouse of employees Clarence
Brumm and David Hubbel because those employees
engaged in union activites. The facts reveal an apparent
legitimate need for servicing of the carts. The facts,
however, also reveal that Brumm and Hubbel, prior to
February 18, 1976, had been unrestricted in their move-
ments in connection with the checking and servicing of
carts and their other work. The evidence of supervisors
statements to Hubbel relating to company knowledge of
17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his union activity and restrictions designed to hamper his
movements persuades that the restrictions on April 26,
1976, as to the place wherein he and Brumm were to check
and service the carts, were for discrimatory reasons and
violative of Section 8(a)(3) and (1) of the Act.
3. The General Counsel alleges, and the Respondent
denies, that the Respondent gave employee Jon Lowe a
warning notice because of his union activities.
The facts are undisputed that Supervisor Johnson gave
employees Lowe a warning slip for "intimidation." What
occurred is revealed by the following credited excerpts
from Lowe's testimony.
A. No, sir.
Q. Let me direct your attention to on or about the
23rd of April, 1976. Did you receive a warning notice
from the company at that time?
A. Yes, I did.
Q. Would you please tell the Judge about that?
A. Yes sir. Approximately 1:20 o'clock, 1:30
o'clock in the morning of the 23rd, I was working my
job, my Supervisor, Alexander Vought, told me that I
was wanted up in the front office. I accompanied him
to Mr. Ken Johnson's office and I was brought in and
told to sit down. Present were Mr. Johnson, Mr.
Larrabee and Mr. Vought. Mr. Johnson told me that he
was going to give me a warning slip accusing me of
violation of intimidation. Excuse me, he stated that the
nature of the violation was that of intimidation and he
told me that any further violations would result in
termination.
Q. Did he tell you specifically the conduct you
were engaged in?
A. No, sir. I inquired of him repeatedly as to what
specifically I had done and he refused to answer me. He
told me that all he was required to tell me was the
nature of the violation and the nature of the violation
was that of intimidation.
Q. Did he say anything to you regarding how you
must conduct yourself in the future?
A. Yes. Well, I don't know if I can say this exactly.
I asked him several times to state exactly what I did
and how I should conduct myself in the future. I
expressed to him my concern that if I had broken a rule
I sure didn't know what I had broken, and therefore I
didn't know how to conduct myself around the plant. I
was afraid I would be fired for something I did not
know what I was doing. Mr. Johnson told me it had
nothing to do with my work, that I had done excellent
work. Then he would tell me nothing further outside
that he made one reference, he said, "you are a smart
boy, I believe you ought to be able to figure it out
yourself."
Q. Did he tell you you would be all right if you
didn't engage in some particular conduct?
A. Not Mr. Johnson.
12 Although Shepard, as a witness, attempted to indicate that her
statements to the Respondent were coerced and not true. I do not credit
Shepard's testimony to such effect. As a witness, Shepard appeared evasive
Q. Mr. Lowe, did you indicate to Mr. Johnson
whether you wanted to speak to anyone in higher
authority than himself?
A. Mr. Johnson told me that I have a right to speak
with Mr. Fisher, who was at that time plant manager. I
told Mr. Johnson that unless he would tell me
specifically what rule I broke and to give me an
opportunity to defend myself that I would have to
speak with Mr. Fisher. And he said, "I won't tell you."
Therefore I indicated to him that I would like to talk to
Mr. Fisher and he said that you would have to make
your own appointment, but I will leave him a note that
you want to speak to him.
The facts further reveal it clear that the Respondent gave
Lowe such warning slip because it believed that Lowe, in
his engaging in union activities, had made intimidating
remarks to an employee named Shepard. However, no
evidence was presented to reveal that such intimidating
remarks had been made by Lowe. Lowe credibly testified
to the effect that he had not made the alleged intimidating
remarks.
Considering the foregoing and applying the principles of
Burnup and Sirnms, Inc., 379 US. 21 (1964), it is clear that the
Respondent's issuance of a warning slip to Lowe interfered
with Lowe's protected right to engaged in union activity in
violation of Section 8(aX)(l) of the Act.
The Charging Party introduced testimony through
witnesses Powell and Watkins tending to reveal an
admission or admissions by Respondent's agents that the
issuance of the reprimand slip to Lowe on April 23, 1976,
was for discrimatory reasons. I have considered such
testimony, Shepard's written statement to the Respondent
as to the alleged intimidation, Holland's testimony, which I
credit, as to what Shepard told him as to threats, and the
evidence as a whole. I am persuaded that the Respondent
had an honest belief that Lowe had made the alleged
intimidating remarks. Powell's testimony is consistent with
what Respondent's agents may have said pursuant to
action upon such honest beliefs. Watkins' testimony is
more detailed and would establish, if believed, that
admissions were made to the effect that the issuance of the
reprimand was for discriminatory reasons. Considering the
logical consistency of the facts, I do not credit Watkins'
testimony.12
Considering all of the foregoing, I conclude and find that
the Respondent was not motivated by discriminatory
considerations when it gave Lowe the reprimand for
"intimidation" on April 23, 1976. Accordingly, the allega-
tion of unlawful conduct violative of Section 8(aX3) as
regards the reprimand will be recommended to be
dismissed.
4. The General Counsel alleges and the Respondent
denies that the Respondent on May 5, 1976, imposed more
onerous working conditions on employee Jon Lowe
because he engaged in union activities.
and not truthful. Considering all of the facts, I am persuaded that Shepard
embellished a story, was asked by Respondent about such story, and gave
the Respondent the statement which was an exaggerated untruth.
18
S. S. KRESGE COMPANY
The facts13
Jon Lowe commenced work for the Respondent approxi-
mately in the fall of 1973. During his employment up to
May 5, 1976, Lowe had been a stock-picker driver and a
back order M-11 person. During such employment his
duties had required or he had voluntarily functioned as a
stock-picker driver and as a forklift driver.
As a stock-picker driver, it appears that a stock-picker
driver could use either a stock picker or a fork truck with a
pallet in carrying out the function of pulling and placement
of merchandise.
On or around October, 1975, Lowe bid for and, because
of his seniority status, received a classification of back
order M-I I person. Lowe functioned as a back order M-l I
person until May 5, 1976. The duties and functions of a
back order M- 1l person may be described as is revealed by
the following credited excerpts from Lowe's and Larrabee's
testimony.
Excerpts from Lowe's Testimony
A. Yes, sir. That's a general answer. I might explain
further. I handle the cards in the repack department.
That was like the first step of my job. If and when I
exhausted that, I would work on M- ll procedures, the
M-1 I cards that came in. That was the second step. If
and when I finished that, I would, like, backorder any
cards or anything that had been left for me. That was
the third step of my position. If and when I completed
this step, I was to go for carts in the center aisle using
my bicycle. If and when I completed this step, which
almost never happened, I would check the backorder
file to make sure that no errors had occurred.
Excerpts from Larrabee's Testimony
A. It's mainly-back order is finding merchandise
that could possibly be lost, misplaced in the warehouse.
M-l is making sure that the merchandise in the slot is
current merchandise that belongs in that slot.
In carrying out his duties as a back order M-l I person,
Lowe sometimes voluntarily, when needed, used a stock-
picker and pulled and placed merchandise instead of
having a stock-picker driver to do so. Lowe's duties as a
back order M-ll I person allowed him more freedom of
movement than his duties as a stock-picker driver. As a
back order M-I I person, Lowe's duties allowed him to use
a bicycle, and allowed him to go into the case department
to check split items at his discretion. The duties of a back
order M-ll I person driver may be said to involve less
physical labor than the duties of a stock-picker driver. As a
stock-picker driver, Lowe's duties confined him in effect to
four rooms.
The facts are clear that Lowe commenced activity on
behalf of the Union in February 1975, that the Respondent
knew that Lowe was a union adherent as of April 23, 1976,
13 The facts are based upon a composite of the credited aspects of the
testimony of Lowe and Larrabee.
14 I found Lowe to appear to be a credible appearing witness and credit
his testimony. The Respondent attempted to attack Lowe by questiomnng
Lowe as to whether he had been a lawyer and had been disbarred.
that the Respondent warned Lowe about engaging in
unspecified union or protected concerted activities on
April 23, 1976, and that Lowe was present and vocally
expressed that Miller had a right to vote in the NLRB
representation election on April 29, 1976, at the time of
Supervisor King's encounter with Miller, previously de-
scribed. The facts are also clear that the Respondent had
threatened to engage in reprisals against union adherents in
February 1976, as previously found.
On May 5, 1976, Supervisor Larrabee, at least temporari-
ly, changed Lowe's job assignment as is revealed by the
following credited excerpts from Lowe's testimony.' 4
A. Yes, sir. I believe it was the night of May 5th, or
early morning on or about May the 5th, as I was
proceeding to work at I o'clock, Mr. Larrabee told me
that there wasn't as much work as I normally had had,
so he told me to drive a stock-picker that evening. I
checked and I found the work load was more than my
usual work load, and I further check with the back
order M-ll I person on day shift, Terry Berry, and he
told me that the work load was very large and as a
matter of fact, he complained to the department
manager about the quantity of work that was left.
After the above referred to change in duties, the
Respondent has continued to utilize Lowe as a stock-picker
driver and has not used Lowe as a back order M- ll
person. However, until the time of the hearing of this
matter, Lowe was not told that his official job title or duties
had been changed. Between May 5, 1976, and July 20,
1976, Lowe worked as a stock-picker driver. Apparently at
some point of time between May 5, 1976, and July 20,
1976, Lowe was on leave. Apparently a week or 2 weeks
before July 20, 1976, Lowe returned from leave. Larrabee
testified, and I credit his testimony, that a week or 2 weeks
before July 20, 1976, Lowe returned from leave, and the
change in Lowe's assignment from back order M- II
person became permanent.
The Respondent, through witness Larrabee, introduced
evidence apparently to establish that the reason for the
change of Lowe's assignment was that the Respondent was
going to a computerized system to replace the need for a
back order M- II person. The facts reveal that the
Respondent has a computerized system in effect for part of
its needs, that changes have now been made and that
supervisors are now performing the back order M- II
person's functions, and that the process of changing to a
computerized system is in effect.
The testimony of Larrabee as to the change in Lowe's
assignments and in the reasons for the change to a
computerized system was not persuasive. The overall
testimony of Larrabee reveals that the reason for the
change in Lowe's assignment was not a switch to a
computerized system. Thus, the system has not been
changed but is merely in the process of being changed.
Larrabee's testimony, when examined closely, reveals a
Objections to such line of questioning were sustained but with ruling that
the Respondent could question or adduce evidence of pleas of guilt or
convictions of crimes having a bearing on credibility. The Respondent was
unsuccessful in adducing such evidence.
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contended basis for the May 5, 1976, change to have been
because of "work priorities." Larrabee's testimony reveals
a belief in need for a temporary change on May 5, 1976,
but also a lack of knowledge of whether Lowe's duties
continued to be changed until a week or two before July
20, 1976. The facts are clear that after May 5, 1976, Lowe's
duties have continued to be changed.
Considering all of the foregoing, I am persuaded and
conclude and find that the Respondent discriminatorily
changed Lowe's duties on May 5, 1976. Thus, the facts
relating to Respondent's knowledge of Lowe's union
activities, Respondent's hostility toward the union, and the
timing of such change as related to actual change to a
computerized system, persuade that the change in duties at
such time was to limit Lowe's ability to move around the
plant. Further, the change of duties to a more physical type
of work persuades that the change was to indicate a
placement in a less desirable position. The facts reveal, in
my opinion, that the Respondent has tried to use as a
pretext a contention that the change was necessitated by a
desire to go to a computerized system. The evidence is not
clear that at the time of the May 5, 1976, change, the
Respondent had decided to go to a computerized system to
handle the functions of the back order M-l I person. If it
had, the facts clearly warrant a finding that the change in
Lowe's duties was accelerated for discriminatory reason. If
not, the Respondent very well, for nondiscrimatory
reasons, may have decided later to go to a computerized
system to replace the back order M-1 I person's functions.
This, however, is a matter that can be determined in the
compliance stage of this proceeding.
In sum, I have concluded and found that the Respondent
discriminatorily changed Jon Lowe's duties on May 5,
1976, because of his union activities. Such conduct is
violative of Section 8(a) 3 ) and (1) of the Act. It is so
concluded and found.
5. The General Counsel alleges and the Respondent
denies that the Respondent discharged Ronda Miller on or
about February 23, 1976, because of her support for,
leanings and sympathies toward, and activities on behalf of
the Union.
The facts 15
Ronda Miller was employed by the Respondent from
approximately August or September 1975 to February 23,
1976.
At the time of Miller's application for employment, there
was no evidence or awareness that she had medical
problems. Later Miller became aware of a diabetic and
fatigue problem and advised her supervisor, Vought, of the
same.
Miller engaged in union activities during the month of
February 1976, and her activities were known to the
Respondent as is revealed by the following credited
excerpts from Miller's testimony.' 6
15 The facts are based upon a composite of the credited aspects of the
testimony of Miller, Vought, Nester, Johnson, and Hattemeyer and exhibits
in the record.
"I Vought's testimony was to the effect that he did not recall a
conversation with Miller concerning a box to put authorization cards in. To
the extent that this testimony was offered to present a denial that Miller had
JUDGE STONE: YOU can follow up.
Q. (By Mr. Clark) Let me direct your attention to
the month of February, Miss Miller. Did you have any
conversations that month with any supervisory people
with some mention about the union or the authoriza-
tion cards?
A. Yes, I did. I had two conversations, one was
with Frank Pattee on February 13th at the local
bowling alley, the Hillcrest Bowling Alley and at that
time, he told me that if I continued passing out union
authorization cards, I would be fired. And he also said
that the Maffia and the Teamsters were one and the
same, that I should be careful when I opened my door.
The second one was with Alex Vought, around
February 17th. At that time I asked Mr. Vought if I
could take a large empty box home with me and he
asked me what the reason I needed it was, and I said I
wanted to keep-use to keep my union cards in. He put
my initials on it and my clock number and took it up to
the front gate where I later picked it up.
Q. Your conversation with Mr. Pattee, what was
the date of that conversation?
A. February 13th.
Q. What year was it?
A. 1976.
Q. In that conversation did Mr. Pattee make any
comment to you about what would happen if you
worked for him?
A. He said that if I worked for him for a week or
two weeks he would have me fired.
The events of February 20-23, 1976, are relevant to the
issue concerning Miller's discharge. The facts as to what
occurred at such time are essentially revealed by the
following credited excerpts from Miller's testimony.
A. On February the 20th, I had a back injury at
about 5 o'clock in the morning. I was put in a row that I
don't usually work in. I went to both my supervisors
and told them that the boxes were too heavy for me,
and the first supervisor or night manager, Mr. Petten-
gill, told me to go ahead and do the work, and the
second one, Mr. Alex Vought told me to either do the
job or get fired. So I went back to work in the rows that
I was assigned to and I lifted five, 80 pound boxes, and
on the sixth one I was thrown back on a bar against my
stock picker, which was about ten feet in the air, and at
that time I suffered a lower back injury. I reported the
injury to my supervisors and they asked me which
company doctor I wanted to go to? I told them Dr.
Jones and they also tried to get me to go back to work
for the rest of the evening, and when I tried to do my
usual job, I found that I couldn't bend over, so they
allowed me to lift empty boxes off shelfs for the
remainder of the shift. On February 21st, I went in to
see the company doctor, Dr. Jones, and I asked him if
the conversation with Vought as testified to in the facts found, I find Miller's
testimonial version more complete, objective, forthright, and credit the same
over Vought's. As indicated previously, I found Miller and Powell more
credible as witnesses than I found Pattee, and have credited their testimony
over Pattee's where in conflict.
20
S. S. KRESGE COMPANY
he would give me a release so that I could go and work
overtime that afternoon, which he did. I went in to
work for about two and a half hours, and I was in too
much pain, so I, at that time, left work and went and
got my prescription filled that Dr. Jones had given me.
I reported to work Sunday, the 22nd, during my
regular working period at I I o'clock p.m., I'd taken two
prescription pills earlier that evening and I took two
more dosages as prescribed at I o'clock p.m. on my
break. At about 3 or 4 o'clock in the morning, my
supervisor, Alex Vought, awaken me and asked me if I
had any final words. I told him that I thought the whole
thing was a nightmare and he called me into the office
and told me that I was being suspended for the evening,
and that I should come back the following night, the
23rd, at 11 o'clock p.m. to speak to Mr. Johnson. So I
left after showing Mr. Pettengill my prescription and I
went to Dr. Jones again that Monday. I had an
appointment with him and I told him that the pills had
made me fall asleep, and he said that anytime you do
take a pain killer or muscle relaxant it has a tendency-
whereas previously he had told me when I asked him if
it would make me sleepy, that no it shouldn't. The
prescription bottle had no warning on it whatsoever of
drowsiness. I then reported to my meeting with Mr.
Johnson at I I o'clock p.m. and was met at the door by
Bob Larrabee, second shift manager. He took me into
the office where Mr. Ken Johnson and Alex Vought
were waiting and as soon as I sat down, Mr. Johnson
told me that I had been fired for sleeping on the job.
I asked him if he was aware that I am pre-diabetic
and that it was my medication that made me sleepy,
and he said he didn't care, that he would not look
further than the fact that I was sleeping on the job and
he didn't care what the reasons were for. I, at that time,
gave him a note from Dr. Jones, that said that I was not
supposed to go back into work for a week, plus or
minus, until I had seen him again, and it didn't make
any difference to Ken Johnson. I also asked him if
Kresge would continue to pay my doctor's expenses
and he said that he wasn't sure, that I would have to
check with James Dickey.
With respect to the facts as to what occurred on
February 22, 1976, 1 find that Vought, on February 22,
1976, stood and watched Miller while she slept for 12 to 15
minutes as is revealed by the following credited excerpts
from Vought's testimony.
A. Well, in a fairly routine check of the area I saw
the piece of equipment assigned to her vacant. I, of
course, wondered where she was, scattered around a
couple of yards and saw no sign of her, and by walking
up closer to her machinery I noticed she was curled up
quite comfortably and fast asleep on the equipment. I
stood watching for her approximately 12 to 15 minutes
and during that interval I asked her in a normal tone of
voice, much as I'm using now, "Ronda, are you
J? I find from all the facts that the conversation Hattemeyer heard
between Vought and Nester occurred on April 12, 1976.
ZR Hattemeyer was a witness presented by the Charging Party. Hattemey-
er testified to the fact that the conversation occurred on April I I or 12, 1976.
asleep?" I asked this again after a few seconds and
received no reply. At the end of this interval another
employee driving a Barrett tractor hauling a rather
rattletrap trash cart rumbled by. The noise from this
trash cart woke Ronda up with a start. I was the first
thing she saw. She exclaimed only, "Jesus Christ," and
then looked at me silently. I returned the silent stare for
a while and said something to the effect of, "Ronda,
you've done it this time," words more or less to that
effect, then turned on my heel and left. This was the
conclusion of this interaction with Ronda.
Vought reported the incident of Miller's sleeping on the
job to Manager Johnson who told Vought to suspend
Miller for the evening. Vought credibly testified to the
effect that what then occurred is as revealed by the
following credited excerpts from his testimony.
Q. Did you, in fact, suspend her at that time?
A. I did. I then called John Pettengill, a fellow
supervisor, and requested that he bring Miss Miller to
the front office. The three of us sat down together and
after a period of silence I asked something similar to
Ronda like, "You were asleep, weren't you?" She
replied with words similar to, "Well, what can I say?"
or "I can't deny it," something to that effect.
Q. Did she indicate at this time to you that she was
taking a drug?
A. Not at this time, shortly, thereafter. After
Ronda's statement in agreement to the charge, I told
her that I was suspending her for the evening, that she
was to return at the regular time the next day. The
interaction was then considered concluded by all three
of us, perhaps indeed we even made movements to
leave. And as an afterthought Ronda mentioned that
she did have a prescription for medication which in her
opinion could possibly have increased her susceptibility
to drowsiness. I of course was not qualified to render a
judgment on that matter and I requested her to bring
the prescription with her the following evening. She
then left.
In addition to the foregoing main facts, the parties
introduced other testimony and evidence into the record.
Thus, the Respondent introduced evidence to past dis-
charges for sleeping on the job. However, evidence was
also adduced revealing a recognition by the Respondent of
effect of medication upon employees. Hattemeyer credibly
testified to the effect that on April 11 or 12, 1976,17 she
overheard a conversation between Supervisor Alex Vought
and Supervisor Nester wherein Nester asked Vought why
Miller had been fired instead of waking her up and sending
her home, and wherein Vought stated that he was following
orders from Johnson to get rid of the union people, and
that they had to get them out of the warehouse before they
did more harm than they already had.18
Evidence was also presented to reveal that Miller, after
her discharge, presented a statement from the company
The Respondent introduced testimony and exhibits (time cards of
Hattemeyer and Nester) which reveal that Hattemeyer and Nester were not
at work on April I I, but were at work on April 12, 1976, at a time consistent
with Hattemeyer's testimony. Nester testified that he did not recall a
(Continued)
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doctor indicative that the medication she had been taking
on February 22, 1976, could have caused her to have fallen
asleep.
In addition to the foregoing, Johnson testified at one
point, and I credit his testimony to such effect, that
Vought, prior to Miller's discharge, had advised him that
Miller had been taking medication. Later Johnson testified
in contradiction of this testimony but I do not credit such
contradiction. Johnson also testified in a contradictory
manner as to whether he had reviewed Miller's personnel
file before the discharge of Miller. I do not credit his
testimony to the effect that he reviewed Miller's personnel
file before her discharge. Considering his contradictory
testimony and the facts as to what was told Miller on
February 23, 1976, I find the facts as indicated.
Considering all of the foregoing, I am persuaded and
conclude and find that the preponderance of the facts
reveals that the Respondent discharged Miller on February
23, 1976, because of her union activities but on the pretext
that she was being discharged for sleeping on the job. Thus,
the facts reveal that the Respondent, prior to Miller's
discharge, was aware of her union activities, that the
Respondent was hostile to the Union and had made threats
of discharge, that the Respondent was aware that Miller
had been on medication, and that the Respondent
undertook no investigation to determine the cause of
Miller's sleeping despite knowledge of her being on
medication. Under such circumstances, the facts prepon-
derate for a finding that the discharge was discriminatorily
motivated. Further, the testimony of Hattemeyer also
reveals evidence that Miller's discharge was for discrimina-
tory reasons. Accordingly, I conclude and find that the
Respondent violated Section 8(a)(3) and (1) of the Act by
the discharge of Miller on February 23, 1976.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
conversation with Vought in April 1976, about Miller's discharge, but
recalled a conversation during the week of February 23 and after Miller's
discharge. Nester's testimony was to the effect that Vought merely told him
that Miller was fired because she was caught sleeping on the job. Vought's
testimony was to the effect that he did not recall telling Nester that he did
not wake Miller up because he wanted to get rid of union adherents. The
Respondent, on cross-examination of Hattemeyer, developed that Hattem-
eyer had not told the NLRB of this conversation prior to the hearing, had,
on April 13, 1976, told employee Miller of the conversation, had later at an
undisclosed time told employee Lowe of the conversation, that Lowe had
reported the conversation to the Charging Party's Attorney Uhlig, that
Uhlig had telephoned her the night before she testified, and that she talked
with Uhlig on the day of the hearing. I have considered carefully the
testimony of witnesses Hattemeyer, Vought, Nester, the exhibits, and all of
the circumstances. Hattemeyer, as a witness, appeared frank, forthright, and
truthful. Vought and Nester did not appear to testify fully or frankly. I
CONCLUSIONS OF LAW
I. S. S. Kresge Company, the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Truck Drivers and Helpers, Local 696, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL-CIO, is and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Ronda Miller on February 23, 1976,
by restricting employee Frear's movements on or about
April 22, 1976, by restricting employees Hubbel and
Brumm's movements on or about April 26, 1976, and by
discriminatorily changing Jon Lowe's duties on May 5,
1976, and thereafter, Respondent had discouraged mem-
bership in a labor organization by discriminating in
violation of Section 8(aX3) and (1) of the Act.
4. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent engaged in
unfair labor practices proscribed by Section 8(a)() of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It having been found that the Respondent discharged
Ronda Miller on February 23, 1976, in violation of Section
8(a)(3) and (1) of the Act, the recommended Order will
provide that Respondent offer her reinstatement to her job,
and make her whole for loss of earnings or other benefits
within the meaning and in accord with the Board's
decisions in F. W. Woolworth Company, 90 NLRB 289
(1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
except as specifically modified by the wording of such
recommended Order.
It has beer found that the Respondent unlawfully gave
Jon Lowe a reprimand slip on April 23, 1976, for alleged
"intimidation." It will be recommended that the Respon-
dent be required to remove such reprimand slip and other
writings related thereto from Lowe's personnel files.
found Hattemeyer to appear the more credible witness of the three. I find it
strange that the Charging Party, even at time of hearing, did not present this
witness to the General Counsel for his consideration and presentation.
Nevertheless, the Charging Party had rights with respect to representation
and presentation of evidence. There is no evidence to reveal that the
handling of such presentation had been for an improper reason or that the
General Counsel had reasons to oppose the presentation of such evidence.
In final analysis, credibility must be determined on the evidence, record,
testimony, and demeanor of witnesses. Hattemeyer is an employee who was
working for the Respondent at the time of her appearance as a witness and
and has no apparent interest in the outcome of the proceeding. (See Georgia
Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961)). I found Hattemeyer to appear
the more credible witness of the three and credit her testimony over
Vought's and Nester's where in conflict.
22
S. S. KRESGE COMPANY
It has been found that the Respondent discrimatorily
changed Jon Lowe's duties on May 5, 1976, from that of a
back order M-l person to that of a stock-picker driver.
The record indicates that as of the time of this Decision
and Order the functions of a back order M- 11 person may
have been eliminated for nondiscrimatory reason. Accord-
ingly, it will be recommended that the Respondent cease
and desist from such discrimatory changes, and reinstate
Lowe to the position of back order M- II person if it still
exists, and if not, treat him in a nondiscrimatory manner in
employment, and make him whole for loss of earnings of
other benefits within the meaning and in accord with the
Board's decisions in F. W. Woolworth Company, supra; Isis
Plumbing & Heating Co., supra, except as modified
specifically by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER ' 9
The Respondent, S. S. Kresge Company, Lawrence,
Kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment because of their
union or protected concerted activities.
(b) Threatening employees with discharge or other
reprisals, or issuing warning notices because of their union
activities or protected concerted activities.
(c) Creating the impression of surveillance of employees'
union activities.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Ronda Miller immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights previously
enjoyed, and make her whole for any loss of pay or other
benefits suffered by reason of the discrimination against
her in the manner described above in the section entitled
"The Remedy."
(b) Reinstate Jon Lowe to his position as a back order
M- Il person if it still exists, and if not, treat him in a
nondiscriminatory manner in employment without preju-
dice to his seniority or other rights previously enjoyed, and
make him whole for any loss of pay or other benefits
suffered by reason of the discrimination against him in the
manner described above in the section entitled "The
Remedy."
(c) Remove from Jon Lowe's personnel files the repri-
mand slip and any other record thereof pertaining to a
reprimand given to him on April 23, 1976, for "intimida-
tion."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports and all other records
necessary to analyze the amount of backpay due under the
terms and this recommended Order.
(e) Post at Respondent's warehouse at Lawrence,
Kansas, copies of the attached notice marked "Appen-
dix." 20 Copies of said notice, on forms provided by the
Regional Director for Region 17, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days therafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
Is 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.
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Ronda Miller immediate and full
reinstatement to her former position or, if such position
no longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights
previously enjoyed, and make her whole for any loss of
pay or other benefits suffered by reason of the
discrimination against her.
WE WILL reinstate Jon Lowe to his position as a back
order M-l I person if it still exists, and/or if not, treat
him in a nondiscriminatory manner in employment
without prejudice to his seniority or other rights
previously enjoyed, and make him whole for any loss of
pay or other benefits suffered by reason of the
discrimination against him.
WE WILL remove from Jon Lowe's personnel file the
reprimand slip and any other record thereof pertaining
to a reprimand given him on April 23, 1976, for
"intimidation."
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or otherwise discriminate
against employees in regard to hire or tenure of
employment, or any term or condition of employment
because of their union or protected concerted activities.
WE WILL NOT create the impression of surveillance of
our employees' union activities.
WE WILL NOT threaten employees with discharge or
other reprisals, or issue warning notices because of their
union activities or protected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accordance with Section 8(a)(3) of the
Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organization, except to the extent provided by Section
8(aX3) of the Act.
S. S. KRESGE COMPANY
24