Sentry Food Store

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 367 (N.L.R.B. 1970)

SENTRY FOOD STORE
Metcalfe, Inc. d/b/a Sentry Food Store and Retail
Store Employees Union, Local No. 444,
AFL-CIO. Case 30-CA-1158
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On May 1, 1970, Trial Examiner David S. David-
son issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices alleged in the complaint and recommend-
ing that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Respondent filed
exceptions to the Trial Examiner's Decision and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, Respondent's exceptions
and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Metcalfe, Inc. d/b/a Sentry
Food Store, Milwaukee, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S . DAVIDSON, Trial Examiner : Pursuant to
a charge filed on December 22, 1969 , by Retail
Store Employees Union , Local No . 444, AFL-CIO,
referred to herein as the Union , a complaint issued
' Unless otherwise indicated herein, all findings are based on uncon-
tradicted testimony which I have credited
367
on January 30, 1970, alleging that on November 6,
1969, Respondent discriminatorily discharged
Frank Peck in violation of Section 8(a)(3) and (1)
of the Act. In its answer Respondent denies the
commission of any unfair labor practices.
A hearing was held before me in Milwaukee,
Wisconsin , on March 10, 1970. At the close of the
hearing, oral argument was waived , and the parties
were given leave to file briefs which have been
received from the General Counsel and Respon-
dent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Wisconsin corporation doing
business under the trade name Sentry Food Store.
It is engaged in the retail sale of meats , foods, and
other commodities at Monona and Brookfield,
Wisconsin. During the year 1969, a representative
period , Respondent 's gross sales were in excess of
$500,000 in volume, and Respondent received
meats, food products, and commodities in interstate
commerce directly or indirectly from points outside
the State of Wisconsin valued in excess of $50,000.
I find that Respondent is an employer engaged in
commerce within the meaning of the Act and that
assertion of jurisdiction herein is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local No. 444,
AFL-CIO, is a labor organization within the mean-
ing of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The employment and duties of Frank Peck
Frank Peck was hired by Respondent in February
1969 as an assistant manager-trainee at its Brook-
field store with a pay rate of $3.25 an hour.' During
his employment, Peck answered to Jerome Met-
calfe, owner and general manager of Respondent,
and to George Weiss, store manager.
Peck's duties were to order grocery items for a
portion of the store, place stock on shelves, check
customers out, and bag groceries. On Wednesday,
Friday, and Saturday nights after store closing
hours Respondent employed a crew of about five
part-time employees to stock shelves. Peck was
usually assigned to direct this crew on Friday nights
and whenever he was scheduled to work on the
184 NLRB No. 40
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other nights that the crew worked. In addition, he
sometimes opened or closed the store, and every
third Sunday he was left in charge of the store. At
all other times either Metcalfe or Weiss was present
at the store. Peck estimated that he was left in
charge at the store on an average of about 8 hours
a week, during which the store was open for busi-
ness only 2 or 3 hours.
Respondent received grocery deliveries twice a
week, on Wednesday and Saturday. In connection
with his direction of the shelf-stocking crew Peck
determined on the basis of the rate of sale of in-
dividual items what was to be placed on the shelves
and what was to be retained in Respondent's
storeroom as backup stock. Each member of the
crew had a portion of the store for which he was
responsible and knew generally what his duties
were. When Peck was in charge, he was expected
to oversee the work of the crew and to make cer-
tain that it completed its work properly. The crew
was scheduled to work until 12 or 12:30 a.m. It was
expected to complete its work within the scheduled
time, but if it could not do so, Peck was authorized
to keep it working until the job was completed, and
the crew members understood that they were to
work until they finished.
Peck was instructed that when he was in charge,
if any employee did not do his job or refused to fol-
low Peck's direction, he was to send the employee
home or tell him to see Metcalfe about it. Peck
never had occasion to implement this instruction.2
Peck assumed responsibility for ordering grocery
items for a portion of the store about 3 months
after his employment began, and assumed at that
time that his training period was over. Peck ordered
only from a single source , the Godfrey Company.3
He based his orders on his knowledge of the quanti-
ties necessary to keep the shelves currently
stocked. He had only limited authority to order
stock for advance needs and consulted Weiss be-
fore ordering for any substantial quantity beyond
usual needs.
Peck had no authority to hire or discharge em-
ployees, although on one occasion he suggested to
Weiss that a member of the part-time night crew be
released because he did not want to work Friday
nights when the crew regularly worked. The em-
ployee stopped working shortly thereafter, but the
record does not indicate whether or not it was a
result of Peck's recommendation. Peck did not in-
terview applicants for employment and played no
part in the scheduling of work for other employees.
Within the portion of the store for which he was
responsible for keeping merchandise stocked, Peck
had authority to ask stockmen or other employees
to assist him. Peck punched a timeclock, as did
Store Manager Weiss, and was paid time and a half
for hours worked in excess of 40.
L Others, who like Peck opened or closed the store, were also given this
instruction They included the dairy department manager and a part-time
employee of long standing with no title who was sometimes left in charge
during the evening
Respondent contends that Peck was a supervisor
within the meaning of the Act. As Respondent con-
tends, Peck's status is to be determined from his
authority and not from his title. However, the facts
set forth above, which were undisputed, persuade
me that Peck lacked the indicia of supervisory
authority essential to a finding of supervisory status
and that his authority to direct other employees in
their work was routine. Accordingly, I find that
Peck was not a supervisor within the meaning of
the Act.4
2. The Union's attempt to organize Respondent's
store and Metcalfe's knowledge thereof
In the latter part of October 1969, the Union
mailed letters to a number of Respondent's em-
ployees, and a few days later, on October 28, Union
Business Agent Ronald Kazel visited Peck at his
home. Kazel told Peck that the Union was trying to
organize Respondent's store and explained some of
the benefits under contracts it had with other em-
ployers, including Sentry Food Stores owned and
operated directly by Godfrey Company and other
independently owned Sentry Food Stores. After
some discussion Peck signed a union authorization
card.
During the remainder of the week, Peck spoke to
a few other employees about the Union, indicating
his support for the Union. On Friday night, October
31, he spoke with part-time checker Nancy Gingras
commenting that in his view it would be ad-
vantageous to have the Union come in. She in-
dicated some doubt as to whether or not the Union
was good for her.
On that night, General Manager Metcalfe in-
itiated a conversation with Peck about the Union.
Metcalfe told him that "as you well know" there
was a group trying to organize the store. Metcalfe
said that he did not know who started it, but that he
did not believe it was necessary for a group of out-
siders to become involved in Respondent's busi-
ness . He mentioned that Store Manager Weiss, the
meat market manager, and several other employees
had been with him for a number of years, and that
if he didn't treat them right, they probably would
not have stayed with him for that length of time.
Metcalfe said that he knew that those people would
not have started the organizing campaign. Peck did
not respond other than to agree that the employees
mentioned by Metcalfe were loyal employees and
that Metcalfe must have treated them fairly and
justly or they would not have stayed. At the conclu-
sion of his comments, Metcalfe told Peck that he
had told him all he wanted to say and that Peck
could return to work.
Metcalfe concededly learned of the Union's or-
ganizing attempt in the latter part of October from
' Respondent operated pursuant to a franchise from Godfrey and
purchased the majority of its food products from Godfrey
'Buckeye Village Market , Inc, 175 NLRB No 46, The Great Atlantic &
Pacific Tea Company, 132 NLRB 799, 801
SENTRY FOOD STORE
employees who brought him copies of letters that
were mailed to their homes and mentioned to him
that they had been contacted by mail or telephone.
Nancy Gingras was among the employees who told
him of union contacts.
Sometime in October after learning of the or-
ganizing campaign , Metcalfe contacted McGlynn,
Peck, and Associates, an organization which had
performed credit and personnel background in-
vestigations for him in the past. Metcalfe asked Mc-
Glynn to conduct "research" with respect to the
Union and two of its agents . According to Metcalfe
he asked for this investigation so that he would
know what kinds of individuals he was dealing with.
On Friday, October 31, Respondent posted a
notice informing employees that there would be a
meeting for all store personnel on Monday,
November 3, at 9 p.m. All employees were
requested to attend. The meeting was held as
scheduled. Metcalfe told the assembled employees
that he wanted to say a few words about the group
trying to organize the store. He said he believed
that all of them had heard about it and that he did
not believe his employees needed an outside group
to do their bargaining for them. He told them that
either as individuals or through an appointed
spokesman for the group they could meet with him
at any time and discuss problems, grievances, dis-
agreements , or whatever. He pointed out that the
union representatives did not work for nothing but
that like anyone else in order to live they had to
earn money. He said that they earned money by or-
ganizing stores like Respondent's and they made
their livelihood from the dues employees paid.
Metcalfe also told the employees that if the
Union represented them every employee would be
treated equally, and, as an example, stated that if
an employee wanted to have a particular night off
or a change in hours it would not be possible
because after a schedule was posted it could not be
deviated from in any respect. Metcalfe concluded
his remarks by telling the employees he would leave
so that they could discuss their views among them-
selves.
3. Peck's discharge
On Thursday, November 6, 1969, around noon
Metcalfe asked Peck how late he was working that
day. Peck replied that he was scheduled to work
until 5 p.m. Metcalfe told Peck that he wanted to
see him before he left. At about 4:45 Metcalfe
called Peck to the office area near the front of the
store and asked Peck to accompany him to another
office area located on an upper level above the
selling area of the store.
After arriving there, Metcalfe told Peck that he
had been with Respondent for almost a year and he
' Peck testified that in August Metcalfe told him that he was not assisting
Weiss enough , that Metcalfe was aware that Peck had come to work on oc-
casion with alcohol on his breath , and that Metcalfe did not want these
369
thought Peck was ready for an advancement, but as
Peck knew, with Metcalfe and Weiss serving as
managers, there was no place for Peck to advance
with Respondent. Metcalfe told Peck that for this
reason he was sending Peck to the Godfrey Com-
pany office to see its personnel men about employ-
ment at one of its directly owned stores. Peck said
that he hoped that he had done nothing to cause
any problem. Metcalfe replied that he had not.
Metcalfe told Peck that he would give him a per-
centage of his vacation pay because he had been
there 9 months. Then Metcalfe gave Peck a cloth
bank bag and said "here is a little gift on your leav-
ing, 30 silver dollars." Metcalfe told Peck to punch
out, and Peck gathered up his personal belongings
and left. Although Metcalfe had told Peck in Au-
gust 1969 that he was dissatisfied with his work,5
Metcalfe made no reference to his dissatisfaction
with Peck during his conversation with him.
On the next day, November 7, Peck went to
Godfrey's offices and was hired after being inter-
viewed as assistant manager of Godfrey's Wau-
kesha, Wisconsin, store, where he started work on
the following Monday. The Waukesha store was
represented by the Union.
4. Concluding findings
Metcalfe did not dispute the accuracy of Peck's
version of his terminal interview, but testified that
he decided to discharge Peck around noon on
November 6, because he became convinced that
Peck monitored a call Metcalfe received at that
time from McGlynn, relating to the reports Met-
calfe had requested on the Union and its represen-
tatives. I find it unnecessary to discuss in any detail
the evidence pertaining to the alleged monitoring,
which Peck denied, because even Metcalfe testified
that after hearing Peck's denial at the hearing, he
was willing to rehire Peck and would not make the
same snap judgment again. Thus, Respondent does
not seriously contend that Peck monitored the call,
but stresses that Metcalfe believed Peck had moni-
tored the call when he discharged Peck and that he
discharged Peck because of that belief.
After hearing Metcalfe's testimony and observing
him as he testified,6 I find it impossible to credit his
testimony as to his reason for terminating Peck.
Metcalfe was a wary and hesitant witness,
frequently pausing at length before answering rela-
tively simple questions. The heart of his examina-
tion dealt with his "gift" of 30 silver dollars to Peck
and the reasons for it. Only with reluctance did
Metcalfe concede that he could not recall any other
discharged employee to whom he gave a gift,
despite the fact that the conclusion merely restated
testimony he had already given. When asked the
form of his gift, Metcalfe displayed even greater
things to reoccur
Metcalfe testified as an adverse witness called by the General Counsel
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reluctance before conceding that it was 30 silver
dollars. Then, when asked why he gave Peck 30
silver dollars , Metcalfe replied simply that it was a
gift, evaded the question in two different ways,
again replied merely that it was a gift , and when the
question was repeated for the fifth time , Metcalfe
paused and asked counsel to repeat the question
again . Only after Respondent 's counsel interjected
with an offer to stipulate that Metcalfe gave Peck
30 silver dollars as a symbol that Peck was a Judas,
did Metcalfe answer the question , stating that the
"gift" was a symbolic way of saying that Peck had
been a Judas because he monitored the telephone
call.
There can be no doubt that the 30 silver dollars
were given Peck as a symbol that he was a Judas as
Metcalfe ultimately testified. But Metcalfe's
testimony as to the reason he considered Peck a
traitor cannot be credited. Surely, if Metcalfe's
conscience were not troubling him, there was no
reason for his extreme hesitancy and reluctance to
explain the "gift." Rather one would have expected
him to have been eager to explain away the other-
wise adverse connotation of his act. Moreover, if
the alleged monitoring had been on Metcalfe's
mind, there was no reason why he should have ex-
pected Peck to understand his allusion on
November 6, for he never made Peck aware that he
suspected him, and if Metcalfe suspected Peck,
there was no reason for him to have invented a
false reason based on lack of opportunity for ad-
vancement to justify a discharge in the middle of a
workweek and just before what are usually the 2
busiest days in the retail grocery business.7
Having rejected Metcalfe's explanation, one does
not have to look far to find the reason for Peck's
discharge. Respondent was opposed to the or-
ganization of its employees. Although there is no
direct evidence that Metcalfe gained knowledge of
Peck's union activities, Metcalfe concededly knew
of the organizing campaign and had received re-
ports of the union activities from employees, in-
cluding one to whom Peck had spoken of his sup-
port for the Union. However, it is unnecessary to
find that Metcalfe knew of Peck's union activities
based on these facts alone or considered with Met-
calfe's rather pointed remarks to Peck on October
31, for the inference of knowledge is readily drawn
from Metcalfe's conduct on November 6. Through
the "gift" of 30 pieces of silver to Peck as a sym-
bolic gesture Metcalfe spoke more eloquently then
with words to tell Peck he considered Peck a trai-
tor. The only plausible alternative to the rejected
explanation given by Metcalfe is that Metcalfe
deemed Peck a traitor because he had learned that
Peck was supporting the union campaign which
r Although Respondent suggests that Peck was transferred and not
discharged , its answer states that Peck was discharged and it is clear that
Respondent terminated Peck's employment Perhaps to avoid liability or
perhaps for the humanitarian reasons expressed by Metcalfe at the hearing,
Respondent helped Peck to get alternative employment with a different
employer , but Peck was nonetheless discharged
Metcalfe opposed . The same act which reveals
Metcalfe's knowledge , coupled with the admitted
assignment of a false reason to Peck for his ter-
mination , suffices also to establish that Peck's ter-
mination was caused by his union activities and in-
tended to discourage them . Accordingly , I find that
Respondent violated Section 8(a)(3) and ( 1) of the
Act by discharging Frank Peck.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III , above, occurring in connection with the
Respondent 's operations described in section I,
above, have a close, intimate , and substantial rela-
tionship 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.
V. THE REMEDY
Having found that Respondent violated Section
8(a)(1) and (3) of the Act, I shall recommend that
it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
As I have found that Respondent discriminatorily
discharged Frank Peck on November 6, 1969, I
shall recommend that Respondent be ordered to
offer him immediate and full reinstatement to his
former job, or if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges, and to
make him whole for any loss of earnings he may
have suffered by reason of the discrimination
against him by payment to him of the amount he
normally would have earned as wages from the date
of his discharge to the date of an offer of reinstate-
ment, less net earnings , to which shall be added in-
terest at the rate of 6 percent per annum, in ac-
cordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716
Upon the basis of the above findings of fact and
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Metcalfe , Inc. d/b/a Sentry Food Store, is an
employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Retail Store Employees Union , Local No.
444, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
8 Although the evidence indicates that Peck rejected an offer of rein-
statement prior to the hearing and may not have suffered any loss of
earnings , the adequacy of the reinstatement offer and the extent , if any, to
which Peck lost earnings are better left to the compliance stages of this
proceeding for resolution Transport, Inc of South Dakota, et al., 181
NLRB No 69
SENTRY FOOD STORE
3. By discriminatorily discharging Frank Peck,
Respondent has engaged in and is engaging in un-
fair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and ( 3) and 2(6) and
(7) of the Act.
RECOMMENDED ORDERS
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in this case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend
that Respondent Metcalfe, Inc. d/b/a Sentry Food
Store, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Store
Employees Union, Local No. 444, AFL-CIO, or
any other labor organization , by discriminating in
regard to the hire or tenure of employees or any
term or condition of their employment.
(b) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their rights to self- organization , to form
labor organizations , to join or assist Retail Store
Employees Union, Local No. 444, AFL-CIO, or
any other labor organization , to bargain collectively
through representatives of their own choosing, and
to engage in any 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 rights may
be affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment , as authorized in Section 8(a)(3) of the Act,
as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Frank Peck immediate and full rein-
statement to his former job or, if that job no longer
exists , to a substantially equivalent position without
prejudice to his seniority or other rights and
privileges previously enjoyed.
(b) Make Frank Peck whole for any losses he
may have suffered by reason of the discrimination
against him in the manner set forth in the section of
the Decision above entitled "The Remedy."
(c) 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 relevant and necessary to a
determination of compliance with paragraphs (a)
and (b), above.
(d) Notify Frank Peck if presently serving in the
Armed Forces of the United States of his right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(e) Post at its Houston, Texas, place of business
371
copies of the attached notice marked "Appen-
dix."10 Copies of said notice, on forms provided by
the Regional Director for Region 30, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by it 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 the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 30,
in writing, within 20 days from,the receipt of this
Decision, what steps have been taken to comply
herewith. t t
In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 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
10 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 be changed to read "-
Posted Pursuant to a Judgment of the United States Court of Appeals En-
forcing an Order of the National Labor Relations Board "
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Frank Peck immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights or privileges, and WE
WILL make him whole for any losses he may
have suffered as a result of his discharge.
WE WILL notify Frank Peck if presently serv-
ing in the Armed Forces of the United States
of his right to full reinstatement upon applica-
tion in accordance with the Selective Service
Act and the Universal Military Training and
Service Act, as amended, after discharge from
the Armed Forces.
WE WILL NOT discourage membership in
Retail Store Employees Union, Local No. 444,
AFL-CIO, or any other labor organization, by
discriminatorily discharging any of our em-
ployees.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of their rights to self-organization, to
form labor organizations , to join or assist
Retail Store Employees Union, Local No. 444,
AFL-CIO, or any other labor organization, to
bargain through representatives of their own
choosing , and to engage in other concerted ac-
tivities for the purposes of collective bargain-
ing or other mutual aid or protection, or to
refrain from any and all such activities , except
to the extent that such rights may be affected
by an agreement requiring membership in a
labor organization as a condition of employ-
ment , as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
METCALFE , INC. D/B/A
SENTRY FOOD STORE
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office , 2d Floor Commerce Building, 744
North 'Fourth Street , Milwaukee , Wisconsin 53203,
Telephone- 414-272-3861.