Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1962

136 N.L.R.B. 479 (N.L.R.B. 1962)

SAFEWAY STORES, INC. 479
Safeway Stores , Inc. and Retail Clerks Union, Local 560. Cases
Nos. 19-CA-2259 and 19-CA-2321. March 22, 1962
DECISION AND ORDER
On January 8, 1962, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged unfair labor
practices. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this proceeding, and hereby adopts the findings,i conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.2
' In sustaining the Trial Examiner's disposition of the complaint's allegations involving
Tipp, we note that Tipp's testimony tends to support the Respondent's claim as to the
date upon which it became apprised of the confession Tipp had signed for his prior em-
ployer Thus, Tipp himself testified that while he told Respondent's manager, Holman,
during his job interview, that he had been suspected of stealing from People's Market, he
had not in fact done so Furthermore, Tipp testified that his job application contained no
reference to the incident, but merely stated he had left People's Market because of
"working conditions "
2In the notice attached to the Intermediate Report marked "Appendix," the following
sentence is to be included in the last paragraph which appears at the foot of the page:
Employees may communicate directly with the Board's Regional Office, 500 Union Street,
Seattle, Washington, Telephone Number, Mutual 2-3300, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge in Case No. 19-CA-2259 duly filed and served, the General Counsel
of the National Labor Relations Board caused a complaint and notice of hearing to
be issued and served upon Safeway Stores, Inc., designated as Respondent in this
report; service was effectuated by registered mail on September 8, 1961. Within his
complaint, the General Counsel alleged that Respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3) of the
National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519. Respondent
replied by letter, dated September 13, 1961, dispatched to the Regional Director of
136 NLRB No. 42.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Nineteenth Region with four copies attached ; therein Respondent, among other
things, denied certain allegations of the complaint and proffered a brief explana-
tion and the conduct characterized by the General Counsel as sufficient to constitute
an unfair labor practice.
Pursuant to notice , a hearing with respect to the issues was held at Pocatello,
Idaho, on October 12, 1961, before Maurice M. Miller, the duly designated Trial
Examiner. The General Counsel was represented by counsel , Respondent by its
labor relations director . Retail Clerks Union , Local 560, though present through
a representative , entered no formal appearance. When the hearing convened, the
General Counsel's representative moved for judgment upon the pleadings, con-
sistently with Section 102.20 of the Board 's Rules and Regulations , Series 8, as
amended contending that Respondent had failed to answer the complaint within 10
days after its date of service. Respondent however-through A. R. Knowles, its em-
ployee and industrial relations manager-cited the September 13 letter as a suffi-
cient answer to satisfy the Board 's regulation . The General Counsel then moved
for judgment upon the further ground that Respondent 's letter had not been served
upon the Charging Union, pursuant to the requirement set forth in Section 102.21
of the Board's Rules and Regulations . This supplementary motion was denied.
T. I. L. Sportswear Corporation , 131 NLRB 176; Accurrate Forming Corporation,
128 NLRB 653, 654, footnote 2. The General Counsel's original motion was like-
wise denied , since Respondent 's September 13 letter, though silent with respect to
certain allegations of the complaint , reflected both a denial and explanation of
crucial factual allegations therein . Testimony relevant to the issues thus posed was
taken.
Shortly after the October 12 hearing's completion , the General Counsel presented
a motion which requested : ( 1) Consolidation of a newly filed , related charge, Case
No 19-CA-2321, with the previously designated matter; ( 2) amendment of the
complaint in the previously designated matter to add certain allegations and con-
tentions based upon the related charge; and ( 3) reopening of the hearing in the
previously designated matter, for further testimony limited to the new allegations of
the amended complaint . Upon a rule to show cause why the motion should not
be granted , to which Respondent's duly designated counsel responded , the General
Counsel's motion was granted . Directed to answer the amendments thus made part
of the complaint , Respondent filed general and specific denials.
Pursuant to notice , the reopened hearing with respect to the General Counsel's
contentions , set forth in the paragraphs newly added to the complaint by amendment,
was held at Pocatello, Idaho, on November 30, 1961; Respondent was represented,
this time, by counsel.
Each of the parties was afforded a full opportunity to be heard at each hearing
session , to examine and cross-examine witnesses , and to introduce evidence pertinent
to the issues . When their testimonial presentations were complete , the parties
waived oral argument . Respondent's counsel at the reopened hearing, however,
filed a brief , which has been fully considered.
Upon the entire testimonial record in the case, the documentary evidence received,
and my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation; throughout the period with which this
case is concerned, it was engaged in the business of processing, selling, and distrib-
uting food, food products, and allied items. It owns and operates retail stores in
many States, including one in Pocatello, Idaho, involved in this case. During the
12-month period prior to the complaint's issuance, Respondent sold products at its
Pocatello store valued in excess of $500,000; the firm, while engaged in the conduct
of its normal business operations, purchases for, transfers, and delivers, through
its Pocatello store-from points outside the State of Idaho-foodstuffs and other
goods and materials, valued in excess of $50,000 annually.
Upon these jurisdictional allegations of the General Counsel, which Respondent
has not denied, I find that the firm is now-and at all times material has been-an
employer within the meaning of Section 2(2) of the Act, engaged in commerce
and business activities which affect commerce within the meaning of Section 2(6)
and (7) of the Act, as amended. With due regard to the jurisdictional standards
which the Board presently applies-see Safeway Stores, Incorporated, 129 NLRB
1000 (Supplemental Decision; original Decision and Direction of Election not pub-
SAFEWAY STORES, INC. 481
lished in NLRB volumes); Safeway Stores, Incorporated, 99 NLRB 48; Siemons
Mailing Service, 122 NLRB 81, and related cases-I find assertion of the Board's
jurisdiction in this case warranted and necessary to effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union , Local 560 , designated as the Union in this report , is a labor
organization within the meaning of Section 2(5) of the Act , as amended, which
admits employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination against Allen Sims
1. The issues
Within his complaint, the General Counsel charges that Respondent-beginning
on or about July 19, 1961 , and continuing thereafter-discriminatorily restricted
Allen Sims to less employment that he normally would have received, because of his
involvement in union or concerted activity, and particularly because of his attempt
to secure wage payments and conditions of work provided pursuant to the terms of
a trade agreement between the Union and Respondent enterprise . Respondent
denies any discriminatory mistreatment of the employee designated , contending that
his hours of work were reduced at his own request , bottomed upon personal
considerations.
2. Background
a. Supervisory personnel
Throughout the period with which this case is concerned , Store Manager Drew
Holman supervised Respondent's Fifth Avenue, Pocatello, store; Assistant Manager
Banta served as his second-in-command . Within Respondent's supervisory hierarchy,
Holman was responsible to District Manager Ersel P. Platt, supervisor of Respondent's
Ogden district , which runs from Idaho Falls and Rigby , Idaho , on the north to Ogden,
Utah, on the south. District Manager Platt, likewise, functioned under Retail Oper-
ations Manager Hutton, Respondent 's man in charge of retail operations , generally
within a division which included 72 stores in 5 States. Employee and Industrial
Relations Manager Knowles, previously mentioned , functioned as Hutton 's staff assist-
ant, within his special field of responsibility.
During September and October 1961 , Manager Holman's total crew at the Poca-
tello, store numbered 15 , approximately . Most of the grocery clerks were full-time
employees ; two, Allen Sims and Larry Webb , worked part time.
b. The union contract
While Sims was employed by Respondent , the wages , hours, and working conditions
of clerks at the firm's Fifth Avenue , Pocatello, store were governed by a trade
agreement executed September 23, 1958, by Respondent and Local No. 560 of the
Retail Clerks International Association for a 3-year term . The contract in question
covered all persons employed by the Respondent enterprise "actively engaged in
selling or handling merchandise" below the store manager level. With respect to
such employees , wage scales graduated according to proven experience were estab-
lished The trade agreement likewise provided for a 5-day, 40-hour workweek, with
conventional time and one-half payable for overtime , defined to include all work
in excess of 8 hours per day or 40 hours per week. Employees required to perform
Sunday work were declared entitled to pay at the time and one -half rate.
Eight holidays were contractually recognized . Holiday pay for part -time em-
ployees was provided , the amount of such pay to be determined on the basis of
their average part-time hours worked per week, during a designated period prior
to the holiday week . Paid vacation privileges for full -time workers were pro-
vided ; regular part-time workers were, likewise, declared entitled to paid vaca-
tions figured on a pro rata basis , whenever such part-time workers averaged 20 hours
per week or more. Generally, the trade agreement provided that claims for back
wages, overtime , or holiday pay not paid "must be presented through the Union to
the Employer in writing" [emphasis supplied] within 30 days after the firm's payday
for the period to which such claims might apply. Respondent concurrently agreed,
inter alia, not to discharge or discriminate against employees for any lawful union
activity, or for reporting the violation of any contractual provisions to the signatory
labor organization.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Sims' employment history
Store Manager Holman hired Allen Sims as a part-time grocery clerk in June 1960;
Sims began work during the vacation period which preceded his senior year in high
school , continued throughout his senior year , and remained in Respondents employ
during the summer which followed his graduation. He testified, credibly, that
Holman had been "cooperative" with respect to the arrangement of a work schedule
which permitted his school attendance; normally, Sims worked a 5 to 9 p.m. shift.
Testimony provided by the clerk, which I credit, reveals his intention, made evi-
dent throughout his period of employment, to attend college after high school
graduation, beginning with the college's fall semester thereafter. (Presumably, Sims
wished to attend Idaho State College, located in Pocatello; I so find.)
When hired, Sims advised the store manager of his intention. Holman had asked
him if he planned to attend college; told by the newly hired employee that such were
his plans, Holman had said that "they" would try to work out "something" for him
when the time came. (While he denied possession of definite knowledge that Sims
planned to attend college , Holman conceded that Sims had mentioned his plans in
that regard when first employed; likewise, he conceded a promise, then, to work
Sims part-time and help him to college.) Throughout his employment, the clerk's
desire to become a college student never wavered . Questioned with respect to Hol-
man's knowledge on this point, Sims declared that he had discussed his plans with the
store manager several times before his graduation from high school and once after
graduation; that the latter had indicated he would do what he could to help the clerk
get through college; that his plans were known to everybody in the store. This testi-
mony must be considered credible . Holman's denial of knowledge that Sims had
not changed his plans lacked persuasive power ; the language of a memorandum
which he prepared after the present case was filed, coupled with his testimony,
reflects Holman 's concession , further , that his promise to work Sims part-time and
help him through college was coupled with praise for the work which the clerk
did. The store manager could hardly have credited Sims withgood work, coupling
such comments with ,a promise to help him through college, if the subject of college
plans had really been raised only during Sim's first employment interview. While
it is possible that Holman may have been forgetful, and that the clerk's September
reference to his college matriculation requirements-circumstantially noted else-
where in this report-may, therefore, have taken the store manager by surprise,
determination would clearly be warranted, however, that Sims, throughout his period
of employment , freely discussed his desire to become a college student whenever the
subject was broached.
d. The first July complaint
Early in July 1961, Union Secretary-Treasurer Lenaghen received a complaint
that some Safeway employees had been required to unload delivery trucks at the
store, during morning hours, without compensation . Lenaghen and Union Business
Agent Hill sought out Holman, reported the complaint, and noted their protest.
When the manager asked them who had complained, he was told that the name of
the complainant was not material. By way of reply, Holman protested that he had
given good treatment to store workers previously assigned to unload trucks; Lena-
ghen's complaint, however, that some clerks had been directed to unload trucks with-
out compensation, currently, was neither affirmed nor denied. (Respondent's final
disposition of the union protest has not been reported . Reference must be made to the
matter, however, because Holman's reaction to Lenaghen's protest-discussed here-
inafter-may be considered significant in connection with his subsequent treatment
of Sims.) Thereafter, Holman repeatedly questioned several grocery clerks to de-
termine the source of the Union 's protest . When questioned , Sims denied responsi-
bility as the complainant. His testimony with respect to Holman's rejoinder reads
as follows:
and then he went on to say what-he could be as hard-nosed as the other
fellow could be-the fellow that went to the union, and he could cut their hours
and have them work for just unloading trucks, see, if he wanted to do that, if
they wanted him to be tough, too.
This recital with respect to Holman's attitude was corroborated by several other
clerks. Kent Steed reported that he had been questioned twice as to whether he had
"turned" Holman "in" for the failure to pay; subsequently , I find , Holman gave
Steed the impression that he had been unable to determine the worker responsible,
and voiced his derogatory view of such a person in terms comparable to those Sims
reported. The clerk was corroborated, also, by Clifford Tipp, union president.
SAFEWAY STORES, INC. 483
3. Discrimination
Shortly thereafter , subsequent to the July 4 holiday, Sims questioned Holman with
respect to his right to holiday pay for 8 hours rather than 4 hours , because of his
prior work record . When he received a reply which failed to reassure him, Sims
called upon Secretary-Treasurer Lenaghen of the Union . (The record suggests some
lack of certainty with respect to the date of the clerk's union visit . Sims fixed
July 17 as the date ; his testimony is credited .) Lenaghen prepared a letter to Labor
Relations Manager Knowles , with a copy for transmittal to the store manager, pre-
senting Sims' claim for more holiday pay. Knowles was further advised that the
clerk's employment record warranted his advancement to the third pay classification
under Respondent's current contract , together with 1 week 's vacation with pay be-
cause of his average hours worked during the previous year.
On July 18, Holman received his copy of Lenaghen 's letter . That day happened
to be Respondent 's payday. When Sims, early that afternoon , reported for his check,
Holman had the letter in his hand. He opened and read it . With the comment,
"You're working for the Union now, huh ." Holman then threw the clerk's check
through the pay window. Sims attempted to explain his reason for making the
claims noted in the letter ; Holman, however, vouchsafed no response. When Larry
Webb, another clerk, subsequently reported to the manager's office for his paycheck,
Holman read Lenaghen 's letter aloud . Webb's testimony with respect to the man-
ager's comment thereafter-which Holman did not deny-reads as follows:
Well, he was quite disturbed that Allen had gone to Mr. Lenaghen rather than
come to himself and complain of his-what he had termed as mistreating them
that-and Mr . Holman was quite upset that Allen would go to Mr. Lenaghen
before he would come to himself and talk to him about it-the raise or the back
pay or whatever it was and talk it over with Mr. Holman and see if they couldn't
get it straightened ; and he was quite upset that Allen had just went to Mr.
Lenaghen and hadn 't even mentioned anything to Mr. Holman . . . Well, he
said that any employee that would consult with Mr. Lenaghen rather than con-
sulting himself about something , that he was just going to cause him lots of
trouble, and he 'd be lots better off without him.
Before leaving the store with his check , Sims reviewed Respondent's posted work
schedule for the current week , to refresh his recollection with respect to his scheduled
starting hour that day. When he reported at 4:40 p .m. ready for work on his regu-
larly scheduled 5 to 9 p .m. shift, he noticed a newly posted schedule for the calendar
week to follow, which listed him for merely 12 hours' work . (Sims testified, cred-
ibly and without contradiction , that work schedules for each calendar week were
normally posted by Respondent 's store manager on Thursday or Friday of the pre-
vious week . The schedule noted , however-posted on Tuesday , July 18, contrary to
normal practice-covered the July 23-29 calendar week.) Sims was scheduled for
8 hours on Sunday, 5 days off , and 4 hours of Saturday duty. This substantial re-
duction of his scheduled work hours was never explained.
On Wednesday, July 19 , however, Sims noted a revision of the newly posted sched-
ule, pursuant to which he was scheduled to work 4 hours on Thursday of the July 23-
29 calendar week. During subsequent weeks-before his employment was ter-
minated under circumstances to be noted-Sims was scheduled to work and worked
no more than 17, 23, 19, 26, 24, and 22 hours per week.
Some time during this period , however, the part-time clerk received the full amount
of holiday pay which Lenaghen had claimed in his behalf. Likewise , he received the
wage raise , coupled with cash in lieu of a vacation , which Lenaghen had noted as
due him under the Union's contract with the Respondent enterprise.
At first, the part-time clerk noted no significant change in his work, though he
received fewer checkstand tours of duty . During August , however, he received no
work as a checker, serving primarily as a store "back boy"; he overheard Assistant
Manager Banta tell a checker , once, not to call him for such work because of his
"back boy" designation . Sims was never told, directly , that he would no longer
serve as a checker, but believes that Banta's comment about his "back boy" status
was made with knowledge that he (Sims ) would overhear.
Early in September , the part-time clerk was scheduled to take his college entrance
examinations . He foresaw that he would be unable to report for one of his scheduled
workdays ; with respect to another date he foresaw that he would have to report 1
hour late. Sims discussed his situation with Holman ; the latter advised him that he
was free to do what he liked . He completed his examination schedule and paid his
641795-63-vol. 136-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matriculation fees; then he saw Holman's newly posted work schedule for the
September 10 through 16 calendar week, during which his college classes were set
to begin. Sims was scheduled to work 7 to 11 a.m. on Sunday and 11 a.m. to 3 p in.
on the other workdays. This schedule would clearly conflict with the college pro-
gram ; Sims testified credibly, that compliance with the schedule could reasonably be
expected to prevent his attendance at college classes. (Simultaneously, Larry
Webb-previously a full-time clerk-was assigned regular part-time work with a
5 to 9 p.m. shift, to permit his college study. This schedule was coupled with a 1 to
6 p.m. shift for Webb on the sixth day of his workweek, when he was not required
to attend school.) Sims decided to consult the store manager. He declared that
he would not be able to work his newly scheduled hours while attending college
classes, and requested a change so that he could continue work while a student.
Holman, however, declared that he was not running a college but a business, and that
Sims would have to do whatever he had to do.
On Saturday, September 9, Holman asked the part-time clerk if he would be able
to work his schedule hours for the calendar week to follow. When Sims explained
that he would be unable to do so because of his college enrollment, Holman declared,
I find, that Respondent would have to terminate him. He was thereupon discharged.
Two weeks before the October 12 hearing session, Sims reported to union repre-
sentatives that his job application at another Pocatello supermarket had been re-
jected, under suspicious circumstances.
Sims reported, when he applied, he had been asked to return. Upon his return
the next day, however, he had been received coldly, with a positive declaration with
the market had no employment for him. Lenaghen declared a suspicion that Sims'
prospective employer had checked on him with Respondent's manager. Business
Agent Lish of the Sheet Metal Workers was requested to telephone Holman and
solicit his opinion about Sims. Lish complied. His testimony with respect to Hol-
man's reaction reads as follows:
Well, I called Mr. Holman and told him that I'd had an inquiry on this Mr. Sims,
and he wanted to know who I was. I told him I was Terry Lish with the Gem
Sheet Metal and I wanted to know what type of a boy this Sims was. He told
me that he had been a real good boy, that he picked him up, sent him through
high school and served him with employment, and he was going to send him
through college, or was sending him through college, I don't know which. And
I asked him what type of a worker he was, and he said that he was-had been
a real reliable worker but it seemed that Lenaghen had gotten a hold of him
and pounded all this union stuff into his head, and that you kind of had to watch
him or you couldn't quite rely on him.
This testimony, given in rebuttal, was corroborated by Lenaghen and Business Agent
Hill, who had listened to the conversation on telephone extensions. Holman was
never recalled to record a denial. With matters in this posture, Lish must be credited.
4. Conclusions
Considered as a whole, the present record provides substantial support for the
General Counsel's contention that Sims received less part-time work than he nor-
mally would have received, because he prosecuted a complaint against Respondent's
store manager with the Union's assistance. Sufficient testimony has been presented,
further, to warrant a determination that Holman's September revision of the part-
time clerk's work schedule-calculated to forestall any reasonable possibility that
Sims might be able to continue part-time work while a college student-reflected
discrimination, motivated by statutorily proscribed considerations. Substantially,
record evidence will sustain the conclusion that:
(1) Early in July-when surprised by a union claim that employees required to
unload trucks had not been properly compensated-Holman clearly revealed his
willingness to take reprisals against any store worker whose complaints, regardless
of their merit, might reflect upon his managerial capacity.
(2) When Sims presented such a complaint, with respect to his presumptively low
compensation for the July 4 holiday, Holman revealed resentment, coupled with a
declaration that he would cause such a worker "lots of trouble"; the manager sug-
gested that he would be "lots better off" without such a worker's services.
(3) The part-time clerk subsequently received a sharply curtailed work schedule,
which persisted, with minor variations, for quite a few weeks.
(4) When ready to begin his college study, Sims received a revised work schedule
reasonably calculated to require a choice between continued part-time work for the
SAFEWAY STORES, INC. 485
Respondent enterprise and college work. When he protested this work schedule
revision, he was terminated.
(5) Subsequently, when contacted for a reference, Holman characterized Sims
as a reliable worker, who had become less reliable since "union stuff" had been
pounded into him.
The store manager made no effort to deny resentful statements which various
clerks attributed to him, with respect to the worker responsible for the Union's July
truck complaint. Neither did he deny testimony that he had declared his readiness
to cause "lots of trouble" for store clerks who would consult the union secretary-
treasurer, rather than their manager, with respect to any complaint
Basically, Respondent's defense seems to rest upon Holman's testimony that:
(1) he had secured the services of a full-time employee to replace Larry Webb and
another clerk, both scheduled to resume college study during the fall semester; (2)
Respondent's part-time help at the Pocatello store had been "cut down" to make
room for such a full-time replacement on the store crew; (3) Sims' declaration of
his college enrollment plans had come as a complete surprise; and (4) revision of
the part-time clerk's work schedule was dictated thereafter by Respondent's need
for his services during stated hours. Such contentions, however, fail to persuade.
Available evidence fully sustains the General Counsel's contention that Sims
suffered a substantial reduction of hours just after Holman was notified of Lenaghen's
claim for holiday pay in his behalf. While the record provides no basis for a chal-
lenge to Holman's testimony that Respondent never promised definite amounts of
work or fixed work schedules for part-time clerks, company records do reveal that
Sims had averaged 36 hours weekly during the 1961 calendar year, before his sched-
uled hours for the July 23 through 29 week were reduced. Except for 6 weeks
during the first 6 months of the year, Sims' record showed more than 30 hours
worked weekly; out of 20 weeks during which his hours exceeded the figure stated,
the supposed part-time clerk worked 6 weeks of 40 hours or more During 3 July
weeks just before his reduced schedule was posted, Sims worked 44, 40, and 48 hours,
respectively. This period of substantial service could have resulted from his utiliza-
tion to replace fellow clerks on vacation; Holman so testified. But Respondent
made no effort to show that the store's need to rely upon his services as a vacation
replacement ceased during the week of his reduced hourly schedule. Conceding, for
the sake of argument, that Holman may have begun a search for some new full-time
clerk when apprised by Webb-early in July approximately-of his desire to attend
college, no testimonial presentation has been made to explain management's decision
that such a full-time replacement would have to be transferred from another store
forthwith, more than 1 month before his services could conceivably become neces-
sary. The clerk purportedly transferred-apparently one Chigbrow by name-
does not seem to be employed at the Fifth Avenue, Pocatello, store currently.
Likewise, Holman's revelation of reluctance to accommodate Sims further, with
respect to the preparation of a part-time work schedule reasonably calculated to per-
mit the clerk's pursuit of his college study plans, cannot be considered satisfactorily
explained The store manager may have been "running a grocery store" rather than
a college, but his prior success in devising work schedules calculated to permit
Respondent's effective utilization of Sims as a part-time clerk despite his school
attendance belies any present contention that similar schedule formulations after
September 9 were no longer feasible.
Once the General Counsel has established, through circumstantial or direct evi-
dence, that revised conditions of work, prima facie, reflect a statutory violation,
respondents must-should they wish to prevail-assume the burden of producing
evidence to explain any challenged course of conduct as legitimately motivated.
J. M. Lassing, et al., d/b/a Consumers Gasoline Stations, 126 NLRB 1041, 1042,
footnote 6; Idaho Concrete Products Co., 123 NLRB 1649, 1663; cf. National Van
Lines, 123 NLRB 1272, 1274. Herein, Respondent's presentation can hardly be
considered sufficient to overcome the General Counsel's case.
A determination that Respondent's proffered explanation will not stand up, when
subjected to scrutiny, provides strengthened support for the view-urged by the
General Counsel's representative-that challenged conduct was not properly moti-
vated. N.L.R.B. v. Thomas W. Dant, Robert E. Dant, et al, d/b/a Dant C. Russell,
Ltd, 207 F 2d 165, 167 (C.A. 9); N.L.R.B. V. Bird Machine Company, 161 F. 2d
589, 592 (C.A. 1). Considered as a whole, therefore, the present record will fully
warrant a conclusion that Sims suffered a reduction of hours, and final termination,
because of his reliance upon union support in the prosecution of claims against the
Respondent enterprise. I so find.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discrimination against Tipp and Steed
1. Background
Clifford Tipp-still employed full-time as a journeyman grocery clerk at Respond-
ent's Fifth Avenue, Pocatello , store-began his most recent employment approxi-
mately 3 years ago. Before October 12 , he was considered "first man" under Re-
spondent '^s assistant manager. He was responsible for three store sections , which he
had to stock and fill; routinely, he prepared orders for replacement stock whenever
his inventory got too low . Further, he was required to man a check stand, build
store displays , and perform certain office detail work , which included checking
reports subject to Holman 's direction . Additional periodic tasks were likewise his.
Once each week, normally on Sunday or Monday night , Tipp and another designated
clerk were assigned to mop and wax the supermarket floor. Once each month,
approximately , Holman would request him to conduct "price checks" of competitive
markets; this responsibility would normally be discharged on his scheduled day of
rest. (During part of Tipp 's 3-year stint as a once-weekly floor mopper and waxer,
Sims functioned as his helper . Subsequent to Sim's termination , Tipp was assisted,
alternately , by Steed or Ranstrom , another clerk . The two-man crew received a
special $14 fee for such cleanup work, which they customarily split equally. When
designated to check competitive prices, Tipp received extra compensation computed
at his time and one-half rate. ) Because of his special duties, Tipp was permitted to
carry one of five sets of store keys. Upon occasion, he was required to open or close
the market . When serving as floor moppers and waxers , Tipp and his helper were
permitted within the store after normal hours . Tipp's key set permitted him to open
and close the market upon such occasions.
Kent Steed-likewise still employed as a full -time grocery clerk-has a record
of 1 year's work at the Fifth Avenue, Pocatello, store. Like Tipp, he routinely pre-
pares orders for three floor sections , stocks and fills each section as required, and
builds displays when needed Between Sims' termination and October 12, he served
as Respondent 's Sunday produce clerk . Reference has already been made to his
service as Tipp 's helper on store cleanup, two or three times monthly.
2. Their prior testimony
Elsewhere in this report , reference has been made to the fact that these workers
testified for the General Counsel at the October 12 hearing session . Both gave testi-
mony under subpena. Primarily, their reports dealt with Holman' s reaction when
told of the Union's complaint that some employees had not received compensation
for unloading trucks; neither was called upon to give testimony relative to the sub-
stantive merit of Sims' case . Neither Tipp nor Steed was cross-examined about
Holman's reaction to the truck complaint. Holman was never requested to confirm
or deny their testimony on that subject. No confirmation or denial was volunteered.
3. Reassignment
During the evening of October 13 Holman told Tipp that his duties would be
substantially modified . He was given an additional floor section to stock and fill;
concurrently , he was told ,that he would no longer be called upon to service a check
stand. The clerk was likewise deprived of his office "paper work" duty. He was
requested to surrender his store keys; subsequently , all of the store locks were
changed , together with the office safe combination . (Elsewhere in this report, ref-
erence has been made to the fact that five sets of keys had been distributed to store
personnel . No more than two sets are presently held by company representatives,
Store Manager Holman , and the firm's assistant manager. Grocery clerk Reed
Glover, Tipp 's successor as Holman's office helper , has access to Assistant Manager
Banta's keys, which he may borrow when working a late shift , so that he can close
the store .) Tipp was also deprived of certain work valued for its prestige signifi-
cance or higher rates of compensation . Relieved of responsibility for a regular
check stand , Tipp described himself as the store 's "No. 1 bagger and carry out boy";
his tone was calculated to convey the belief that such duties are menial . Before Oc-
tober 12, Tipp had regularly worked Sundays for his time and one -half rate. Since
that date he has been scheduled for Sunday work to a limited degree, possibly no
more than twice. (Company records sufficient to establish the Sundays on which
Tipp worked , after October 12, were not produced . Tipp confessed a lack of con-
fidence with respect to his recollection on this point. Whatever the facts may
be, there can be no doubt that Tipp 's opportunities for Sunday work were curtailed.
I so find . Subsequently , Tipp learned , further, that he would no longer be requested
SAFEWAY STORES, INC. 487
to run "price checks" on competitors, which had previously netted him extra compen.
sation. The clerk was likewise told that he would no longer be expected to function
as a floor mopper or waxer on Sunday, October 15, or thereafter. Tipp never
received an explanation for this revision of his work responsibility.
Sometime during his Sunday, October 15, shift, Steed questioned Holman as to
whether he might expect designation to help Tipp as a floor mopper and waxer that
evening; he was told not to bother about such an assignment. (Record evidence re-
veals that Respondent had engaged someone not connected with the store crew for
the weekly cleanup function; the contractor hired had agreed to perform necessary
cleanup work for $12 per week.)
Though previously designated to work as a produce clerk every Sunday after
Sims' termination, Steed likewise found his Sunday work limited. (Testimony with
respect to Steed's precise work schedule-though presumably possible based upon
company records-has not been provided. His own recollection with respect to
his Sunday work record, after October 12, cannot be considered definitive. Steed's
testimony that his Sunday work was curtailed, however, has not been disputed.)
Steed, I find, requested Holman to explain the discontinuance of his designation to
help Tipp with store cleanup. Holman declared that he could provide no explanation.
4. Conclusions
With the record in this posture, the General Counsel contends that Respondent
"discriminatorily assigned Clifford Tipp and Kent Steed to fewer hours of work,
reduced their premium pay, assigned them to lower classifications of work, and
further, in the case of Clifford Tipp raised unfounded doubts as to his honesty"
because of their concerted or union activity and testimony during the October 12
hearing session.
When counsel for Respondent moved-after the General Counsel rested-to dis-
miss the complaint relative to Tipp and Steed's treatment, his motion was denied.
Justice, however, requires frank acknowledgment that the General Counsel's prima
facie case was minimal. His case would appear to rest, merely, upon the following
considerations:
(1) The timing of Holman's decision to deprive Tipp of previous routine as-
signments and to give him new, menial, responsibilities. Since the store manager
concededly acted within 1 day of Tipp's October 12 testimony, some slight justifica-
tion may exist for an inference that Tipp's testimony motivated Respondent's de-
cision. While Steed does not appear to have been told, forthwith, of changes in
his own work schedule, his loss of any chance to earn extra pay as Tipp's helper
with floor cleanup work clearly derived from Holman's decision to deprive the
latter of such responsibility.
(2) Holman's failure to provide a reasonable explanation for the changes thus
made, even when requested.
(3) Record testimony which could conceivably be considered sufficient to justify
an inference that Holman's recall of Tipp's store keys, coupled with the firm's modi-
fication of the store locks and revision of the store's safe combination, represented
a departure from routine practice, possible revelatory of proscribed motives for
Tipp's subjection to discrimination.
Absent record evidence calculated to present some rational justification for Re-
spondent's course of decision, such a minimal case presented by the General Counsel
could, conceivably, sustain a determination that Tipp and Steed suffered discrimina-
tion, with respect to the terms or conditions of their employment, for some reason
statutorily proscribed. When Respondent, however, presents a justification-rational
on its face-for the treatment Tipp and Steed received, which justification cannot be
rejected because unworthy of credence, the General Counsel's contention cannot
stand.
Its most readily discernible flaw may be found in the limited scope of Tipp and
Steed's protected conduct. Nothing in the present record suggests their current
participation in concerted activity for mutual aid or protection, apart from their
testimony herein pursuant to the General Counsel's subpena. That testimony, more-
over, held merely collateral significance; though credited, Tipp and Steed merely
provided "background" justification for the determination, previously noted, that
Holman possessed a disposition to resentment or pique when subjected to some
union complaint suggestive of malfeasance on his part or lack of capacity. Note
has been taken of the fact that Respondent's representative did not cross-examine
Tipp or Steed with respect to the significant aspects of their direct testimony. When
called as Respondent's witness, Holman was not even asked to contradict or deny
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their recitals. Clearly, with matters in this posture, the General Counsel cannot
contend that Respondent was strongly motivated toward reprisal.
Webb, whose testimony related directly to Holman's motivation for his treatment of
Sims, remains a part-time clerk at Respondent 's store. No claim of discriminatory
treatment has been presented in his behalf. Respondent has provided credible testi-
mony sufficient to reveal a rational justification for Tipp and Steed 's treatment.
Briefly, Respondent proffered reports calculated to show that: ( 1) Substantial cash
shortages were discovered within the store during July, August, and September,
1961; (2) these shortages were sufficient to generate considerable concern by Holman,
District Manager Platt, and the Pocatello store clerks; (3) about October 4, just be-
fore he left on the second week of a long-planned vacation , Holman learned of the
possibility that Tipp had taken money from a previous employer; (4) Holman sought
to check this information during the morning of October 12 , upon his return from
the vacation trip noted to testify at the first hearing session , when he learned-for
the first time-that Tipp had left a written confession regarding his responsibility
for a monetary defalcation with his previous employer; ( 5) District Manager Platt
and Retail Operations Manager Hutton were given this information by Holman
later, some time during the evening of the hearing day; (6 ) Hutton subsequently
directed Holman to revise Tipp's duties so as to restrict his prior ready access to the
store cash; (7) Respondent, some time during this period, revised its Sunday store
hours, whereby such hours were reduced from 12 to 9; and (8) such a Sunday hours'
revision permitted Respondent to maintain service on such days with a single, rather
than a staggered , crew given 8 hours work . Respondent contends that every change
suffered by Tipp and Steed derived directly from Hutton's decision to revise Tipp's
sphere of duty, coupled with a decision to reduce the store 's Sunday hours.
This presentation cannot be considered deficient in plausibility . The General
Counsel has not challenged Respondent 's claim that cash shortages did arise, three
times, during the months of July, August , and September of the calender year.
Nor has any question been raised with respect to Respondent 's contention that each
cash shortage was sufficient in amount legitimately to generate concern. ( Respond-
ent makes no claim that routine investigations revealed the source of any cash
shortages . Whether or not the shortages were ever explained satisfactorily, how-
ever, there can be no doubt that Holman necessarily devoted considerable time to
his search for an explanation.)
There may be some reason to doubt Holman's statement that one store clerk
repeated a rumor suggestive of Tipp's possible complicity in a cash shortage dis-
covered by his previous employer. The fact that such a rumor , presumably long
current, was not brought to the store manager's attention before October 4, may be
considered somewhat suspicious; wonder about the failure of any store employee
to mention .the matter previously, during Holman's 3-month period of travail over
repeated cash shortages , might well be justified . Such wonder, however , would not
justify rejection of Holman's testimony in this connection . Questions might be
justified , also, with respect to Holman's failure to check forthwith on the possibility
of the rumor's correctness . Mere suspicion of Holman 's explanation for his failure
to act promptly , however, would not warrant rejection of his testimony purportedly
explaining his behavior.
With respect to the most crucial element of Respondent 's defense-Tipp's con-
cession that he had given a written confession to his previous employer con-
currently with the termination of his employment-record evidence presents a clear-
cut credibility problem . While a witness , Tipp conceded execution of the confession.
The clerk however-when questioned about the discussion which preceded Respond-
ent's decision to hire him-could only state "belief' that his prior execution of the
written confession had been mentioned . Holman's testimony reflects a categorical
denial that Tipp said anything about the existence of a written confession (Tipp's
job application , noted for the record , contained no reference to such a confession.
Despite his testimony that the circumstances of his prior termination had been
discussed with Holman and his assistant , the written application did not even
refer to the possibility that Tipp 's most recent separation from employment had
been effectuated under a cloud of suspicion ; the form merely referred to his ter-
mination because of working conditions .) With matters in this posture, Holman's
testimonial declaration that he learned of the clerk 's written confession on Octo-
ber 12 , for the first time , cannot be rejected as contrived.
Respondent's reaction to the store mangaiger 's newly acquired information cer-
tainly seems to have been restrained . Counsel for the firm , in his brief , puts it
well;
SAFEWAY STORES, INC. 489
[Respondent] does not charge Mr. Tipp with dishonesty. It does not imply or
infer that Mr. Tipp was responsible for the cash shortages in the summer of
1961. It is not concerned with the merits of the incident at Mr. Tipp's former
place of employment or whether he was guilty or innocent. None of those
matters is in issue here. Respondent's position is simply that in October of
1961, knowledge of the prior written confession, for the first time, came to the
top authority in the area, Mr. Hutton. Acting on that information he made
the decision which sound and reasonable business judgment dictated: Confine
Mr. Tipp's duties to a less critical area, away from the cash.
Such a reaction cannot really be said to suggest Respondent's predisposition to
seize upon newly acquired knowledge as a pretextual justification for discrimination,
with respect to Tipp's employment terms and conditions.
When, pursuant to Hutton's decision, the clerk was deprived of store cleanup
work, Respondent engaged an independent contractor to provide the service.
Engagement of such a contractor necessarily deprived Steed of his previously
recognized opportunity for extra work as Tipp' s assistant . Steed's loss of extra
compensation as Tipp's helper, therefore, cannot be considered reflective of dis-
crimination statutorily proscribed.
While some doubt cannot be resolved with respect to the precise date of Respond-
ent's decision to curtail Sunday store hours, their curtailment has not been disputed.
Reduction of the Sunday store hours from 12 to 9-for business reasons insofar
as the record shows-necessarily relieved Respondent of any need to provide extra
clerks for staggered Sunday shifts; fewer clerks would be required to staff the store
for a normal 8-hour working day. Counsel for Respondent would argue that the
only reasonable inference warranted, with the record in this posture, is an inference
that Respondent attempted to equalize the available Sunday work among its quali-
fied employees. I find merit in such a contention.
By way of summary: With respect to Tipp and Steed, the General Counsel's case
stands revealed as purely circumstantial. Contentions based upon circumstantial
evidence may be found warranted only when all the circumstances proved are
consistent with each other, consistent with a hypothesis that the Respondent enter-
prise is guilty, and, conversely, inconsistent with the hypothesis of innocence, or
any other rational hypothesis except that of guilt. Leslie v. United States 43 F. 2d
288, 290 (C.A. 10); 16 Corpus Juris 763. Due regard for the principle stated re-
quires a determination, based upon the present record, that the General Counsel
has failed to established his contention-with respect to Respondent's treatment of
Tipp and Steed particularly-by a preponderance of reliable and probative evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain activities of Respondent set forth in section III, above , since they occurred
in connection with business operations described in section I, above, have had a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and, absent correction, would tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent engaged and continues to engage in
certain unfair labor practices , it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action, in-
cluding the posting of appropriate notices, designed to effectuate the policies of the
Act, as amended.
Specifically, it has been found that Respondent enterprise-through its Pocatello
store manager-discriminated with respect to the hire, job tenure, and employment
conditions of Allen Sims, by reducing his working hours to less than the number
of hours he normally would have received and by promulgating a work schedule
calculated to cause his termination or forced resignation, for statutorily proscribed
reasons. Thereby, employees of Respondent enterprise, generally, were interfered
with, restrained, and coerced in the exercise of rights statutorily guaranteed. To
effectuate the statutory objectives, therefore, a recommendation will be made that
the Board order Respondent to offer Sims immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges. See The Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 NLRB 827, for a definition of the phrase
"former or substantially equivalent position" used in this report. Additionally, a
recommendation will be made that Respondent be ordered to make Sims whole
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of pay, or other incidents of the employment relationship, which he
may have suffered by reason of the discrimination practiced against him, by the pay-
ment to him of a sum of money equal to the amount which he normally would have
earned in Respondent's employ, except for the reduction of his hours of work and
final separation ,from employment, between the date when a discriminatory reduc-
tion of his hours was effectuated and the date of any proper reinstatement offer
which Respondent may make, hereafter, pursuant to recommendations made else-
where in this report, less his net earnings during the period indicated. Crossett
Lumber Company, 8 NLRB 440, 497-498; Republic Steel Corporation v. N.L.R.B.,
311 U.S. 7. Pay losses suffered by Sims should be computed on a quarterly basis,
pursuant to the formula which the Board now utilizes. F. W. Woolworth Company,
90 NLRB 289, 291-294; N.L.R.B. v. Seven-Up Bottling Company of Miami, Florida,
Inc., 344 U.S. 344. Respondent should preserve and make available to the National
Labor Relations Board or its agents, upon request, for examination and copying,
all payroll records, social security payment records, timecards, personnel records
and reports, and all other records necessary to permit an analysis of the backpay
due the discriminatee, and his reinstatement rights, pursuant to these
recommendations.
Respondent's course of conduct-legitimately attributable to the firm's Pocatello
store manager and found violative of the statute-goes to the very heart of the Act,
as amended. N.L.R.B. v. Entwistle Manufacturing Co, 120 F. 2d 532, 536 (C.A.
4). Nevertheless, the record evidence persuades me that the manager's conduct
derived primarily from considerations of personal pique or resentment, and that
such conduct cannot be considered revelatory of a purpose, generally, to limit lawful
rights of employees. Under circumstances of the sort revealed by the present
record, no broad cease-and-desist order would seem to be warranted; recommenda-
tion will be made, therefore, that the Board merely order the Respondent enter-
prise to cease and desist from infringement, in any like or related manner, upon
employee rights statutorily guaranteed.
In view of the foregoing findings of fact, and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Safeway Stores, Inc., is an employer within the meaning of Section 2(2) of
the Act, engaged in commerce and business activities which affect commerce within
the meaning of Section 2(6) and (7) of the Act, as amended.
2. Retail Clerks Union, Local 560, is a labor organization within the meaning of
Section 2(5), as amended, which admits employees of Safeway Stores, Inc., to
membership.
3. By its discriminatory reduction of the work hours of Allen Sims, coupled with
the promulgation of a work schedule reasonably calculated to cause his termination
or forced resignation, and by its consequent interference with, restraint, and coercion
of employees in the exercise of rights statutorily guaranteed, Respondent engaged
and continues to engage in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act, as
amended.
4. General Counsel has failed to establish, by a fair preponderance of the reliable,
probative evidence, that Respondent has discriminated against Clifford Tipp and
Kent Steed within the meaning of Section 8(a)(1), (3), and (4) of the Act, as
amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record in
the case, it is recommended that the Board, pursuant to Section 10(c) of the
National Labor Relations Act, as amended, order that the Respondent, Safeway
Stores. Inc., its officers, agents, successors, and assigns, shall:
I Cease and desist from:
(a) Discouragement of membership in Retail Clerks Union, Local 560, or any
other labor organization, by the assignment of employees to less employment than
they normally would have received, by the promulgation of work schedules reason-
ably calculated to cause their termination or forced resignation, or by discrimination
in any other manner with respect to their hire and tenure of employment, or any
term or condition of their employment, except as authorized under Section 8(a) (3)
of the Act, as amended.
(b) Interference with, restraint, or coercion of employees, in any like or related
manner, in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist Retail Clerks Union, Local 560, or any other labor organiza-
SAFEWAY STORES, INC. 491
tion, to bargain collectively through representatives of their own free choice, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, authorized in Section 8(a) (3)
of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act, as amended:
(a) Offer Allen Sims immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority and other rights and
privileges, and make him whole in the manner set forth in "The Remedy" section
of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to permit an analysis of the backpay due the employee designated, and his reinstate-
ment rights, as set forth in "The Remedy" section of the Intermediate Report
(c) Post at its place of business in Pocatello, Idaho, where the unfair labor prac-
tices were committed, copies of the notice attached hereto marked "Appendix." I
Copies of said notice, to be furnished by the Regional Director of the Nineteenth
Region, shall, after being duly signed by a representative of the Respondent enter-
prise, be posted immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to ensure that these notices are not altered, defaced, or covered by any other
material.
(d) File with the Regional Director of the Nineteenth Region, in writing, within
20 days of the date of service of this Intermediate Report and Recommended Order,
a statement setting forth the manner and form in which it has complied with these
recommendations 2
1In the event of Board adoption of this Recommended Order, the words "A Decision
and Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
In the notice In the further event of enforcement of the Board's Order by a decree of
a United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a
Decision and Order"
'In the event of Board adoption of this Recommended Order, this provision shall be
modified to read: "Notify the Regional Director for the Nineteenth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Retail Clerks Union, Local 560, or any
other labor organization , by the assignment of our employees to less employ-
ment than they normally would have received, by the promulgation of work
schedules reasonably calculated to cause their termination or forced resig-
nation, or by discrimination against them in any other manner in regard to their
hire and tenure of employment, or any term or condition of their employment,
except as authorized in Section 8(a) (3) of the Act, as amended.
WE WILL NOT interfere with, restrain, or coerce our employees in any like
or related manner, in the exercise of their right to self-organization, to form,
join, or assist Retail Clerks Union, Local 560, or any other labor organization,
to bargain collectively through representatives of their own free choice, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, authorized
in Section 8(a)(3) of the Act, as amended.
WE WILL offer Allen Sims immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay, or other incidents
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employment relationship, which he may have suffered by reason of the
discrimination against him.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except as that right may be -affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment, authorized in Section 8(a)(3) of the Act, as amended. We will not dis-
criminate in regard to hire or tenure of employment, or any term or condition of
employment, against any employee because of membership in or activity on behalf
of any labor organization.
SAFEWAY STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Pipe Fitters Local Union No. 392, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, AFL-CIO [Alco Products,
Inc.] and Ivan H. Lewis. Case No. 9-CB-873. March 22, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 23, 1961, the Board (Members Leedom and Fanning
dissenting) issued its original decision 1 in the above-entitled pro-
ceeding, finding that the Respondent had violated Section 8 (b) (1) (A)
and (2) of the Act by the maintenance of, and participation in, an
exclusive hiring arrangement and practice whereby Alco Products,
Inc., hired only pipefitter employees referred or cleared by the Re-
spondent Union; and by causing the Company to withhold employ-
ment from the Charging Party, Ivan H. Lewis, because he was not
a member of the Respondent Local.
Respondent has filed a motion for further reconsideration in view
of the Supreme Court's decision in Local 357, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667.
In Local 357, International Brotherhood of Teamsters, etc., supra,
decided after the Board's decision in the instant case, the Supreme
Court rejected the Board's Mountain Pacific doctrine,2 under which
exclusive hiring arrangements, in order to be regarded as lawful, were
required to contain certain specific provisions relating to selection and
referral of applicants for employment. As the instant case involves
an exclusive hiring arrangement held to be unlawful because of its
failure to conform to the requirements of the Mountain Pacific
1 Pipe Fitters Local Union No. 392, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO
(Alto Products, Inc.), 130 NLRB 663.
2 See Mountain Pacific Chapter of the Associated General Contractors, Inc., et al.,
119 NLRB 883, 893.
136 NLRB No. 46.