Sentry Food Store

National Labor Relations Board - Board Decisions

Aug 11, 1972

198 N.L.R.B. 879 (N.L.R.B. 1972)

SENTRY FOOD STORE 879
Metcalfe, Inc., d/b/a Sentry Food Store and Retail
Store Employees Union, Local No. 444, AFL-CIO.
Case 30-CA-1753
August 11, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
charge filed by Retail Store Employees Union, Local No.
444, AFL-CIO, herein called the Union, and a complaint
dated December 17, 1971. The complaint alleges, and
Metcalfe, Inc., d/b/a Sentry Food Store, herein called the
Respondent, denies that Respondent committed unfair
labor practices. Both General Counsel and Respondent
have filed briefs.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
On April 20, 1972, Trial Examiner Arnold Ordman
issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief, the General Counsel filed excep-
tions and a supporting brief and an accompanying
brief in support of certain portions of the Trial
Examiner's Decision, the Respondent filed a reply to
the General Counsel's exceptions and brief, and the
General Counsel filed an answering brief to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Metcalfe Inc., d/b/a Sentry
Food Store, Brookfield, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Order.
' We are satisfied that the evidence does not preponderate in favor of a
finding that Dittle's hours were unlawfully reduced even if the Five
employees in the grocery department had their hours reduced early in
January, as claimed by the General Counsel, rather than during the week
before the hearing, as found by the Trial Examiner We also agree with the
Trial Examiner that Sec 8(a)(5) was violated herein and that a bargaining
order to remedy that violation is warranted
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Trial Examiner: This case was heard
before me on January 25 and 26, 1972, pursuant to a
1. THE BUSINESS OF THE EMPLOYER
Respondent is a Wisconsin corporation doing business
under the trade name Sentry Food Store. It has stores in
Monona and Brookfield, Wisconsin, where it sells at retail
meat, groceries, and other commodities. During the year
1970, a representative period, Respondent's gross sales
were in excess of $500,000, and during the same period,
Respondent received goods valued in excess of $50,000
from points outside the State of Wisconsin. Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Statement of Issues
The events here relevant relate only to Respondent's
Brookfield store.
By way of background, it appears that the Union in 1969
made an unsuccessful effort to organize Respondent's
employees at the Brookfield store. Respondent's conduct
during that period became the subject matter of an unfair
labor practice proceeding before the Board, and on June
30, 1969, the Board issued a Decision and Order finding
that Respondent had discharged its employee, Frank Peck,
because of his activities in support of the Union, thereby
violating Section 8(a)(3) and (1) of the Act. Metcalfe, Inc.,
d/b/a Sentry Food Store, 184 NLRB No. 40.
A renewed effort to bring in the Union as the
representative of Respondent's Brookfield store employees
began 2 years later, about October 1971. The issues in this
case arise out of this effort.
On October 13, 1971, Ross Richardson, an employee in
the produce department, called the Union and then visited
the union offices to seek union representation for the
Brookfield store employees. The union representative with
whom Richardson spoke explained organizational proce-
dures and gave him about 20 authorization cards to
distribute to his fellow employees. The printed portion of
the authorization cards provided simply that the employee
signing the card authorized the Union to represent him as
198 NLRB No. 127
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative with the named Em-
ployer. Ross Richardson signed a union authorization card
while he was at the union office and within the next few
days spoke to a dozen of his fellow employees to solicit
their signatures to the cards. As of October 15, about eight
union authorization cards had been signed designating the
Union as bargaining representative for Respondent's
employees. On that day Ross Richardson was informed by
George Weis,' Respondent's assistant store manager, that
he was laid off.
By October 22, at least 21 union authorization cards had
been signed. On that day, the Union wrote to Respondent
stating that a majority of Respondent's Brookfield store
employees in a unit excluding supervisors and meat
department employees had designated the Union as their
bargaining representative, and that the Union requested
recognition and bargaining negotiations in their behalf.
During the period between October 15 and 22, Respondent
converted Ross Richardson's layoff to a discharge.
On October 28, 1971, Respondent replied to the Union's
letter of October 22, stating that the best way to resolve the
question "whether our employees want your union or don't
want your union as bargaining agent is to have a U.S.
Government supervised election, by secret ballot, right
here at our place." The letter continued:
Experience has shown that a Union's claim that its
represents a majority of the employees is more often
wrong than right. Some employees sign union authori-
zation cards because they are threatened or pressured,
and they want to get the pressure off their backs. Time
after time, however, in the privacy of the election
booth, where there is a secret ballot election, the
employees no longer feel pressure and'overwhelmingly
vote against a union. They know what union fines and
union bossism mean and they don't want that to
happen to them.
I would suggest that you contact the National Labor
Relations Board to arrange for an election to be held,
or, if you prefer, let me know and I will contact the
Board.
Following its letter of October 22 to Respondent, the
Union continued its organizational effort. On October 27,
the Union filed an unfair labor practice charge alleging
that Respondent had engaged in conduct violative of
Section 8(a)(1), (3), and (5) of the Act. On December 17,
1971, General Counsel issued a complaint specifically
alleging such violations and, at the opening of the hearing,
amended the complaint to allege an additional violation of
Section 8(a)(3), (4), and (1) of the Act with respect to
Respondent's treatment of its employee, Michael Dittle. As
already noted, Respondent denied generally the commis-
sion of any unfair labor practices.
The issues as alleged in the complaint and presented for
resolution in this proceeding are:
(1) Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging employee Ross Richardson
because of his union sympathies and activities.
(2) Whether Respondent violated Section 8(a)(1) of the
Act by interrogating employee James Wellinghof about
union activities.
(3) Whether Respondent violated Section 8(a)(3), (4),
and (1) of the Act by reducing the working hours of
employee Michael Dittle because of his union sympathies
and because of his action with respect to furnishing
information in connection with the instant hearing.
(4) Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to bargain with the Union as the
exclusive representative of its employees and by engaging
instead in the conduct previously alleged.
These issues will now be considered seriatim.
B. The Discharge of Ross Richardson
Ross Richardson, age 20, was hired by the Respondent
as a full-time employee around the middle of May 1971.
He was assigned to the produce department where he
remained for the duration of his employment. However,
beginning in the latter part of September, contemporane-
ous with a decline in produce department sales which
occurs annually in the months of September and October,
Richardson's working hours were substantially reduced.2
Immediately upon his cut in hours, Richardson com-
plained to Jerome Metcalfe, manager of Respondent and
owner with his brother of all the corporate stock.
Richardson told Metcalfe that he would like more hours,
that he was getting married soon, and asked whether he
could supplement his hours in the produce department by
working part time in the grocery department. Metcalfe
rejected the suggestion but told Richardson a few days
later that Metcalfe was referring him to the Godfrey
Company, from which Respondent held a franchise and
did much of its purchasing, for possible employment.
Metcalfe admittedly had given Richardson at most a
lukewarm recommendation, if not a negative recommenda-
tion, and nothing came of the referral.
Richardson later complained to Assistant Store Manager
George Weis about his cut in hours, pointing out that he
would be better off if he were laid off and drawing
unemployment compensation than he was on his reduced
hour schedule. Weis replied that he would see what he
could do but that only Metcalfe had the authority to lay
people off. Richardson's last appeal, also unsuccessful, was
to Robert Hiltsley, his immediate supervisor in the produce
department. Admittedly very angry by this time , Richard-
son, in the course of his talk with Hiltsley, interjected the
comment, "Why the hell don't you assholes either lay me
off or give me more hours." No criticism was made to
Richardson for this outburst.
Richardson's dissatisfaction with what he regarded as
this unfair treatment prompted his call and visit to the
Union on October 13 and his ensuing organizational
activity as already related.3 Two days later, on Friday,
October 15, at 8 p.m., after Richardson had completed his
working day, George Weis came to Richardson and told
i Identified in the complaint as George Weiss reported further that Richardson had the least seniority in the produce
2 Respondent 's records show that beginning with the week which ended department and was the only one affected by the reduced amount of
September 25, 1971, Richardson 's hours dropped from an average of 38 available work
hours to 22 hours For the remaining 3 weeks of his employment I Richardson initially testified that this visit took place a couple of days
Richardson worked 21 5, 24 0, and 16 3 hours , respectively Respondent after his layoff . He corrected this testimony when shown the authorization
SENTRY FOOD STORE 881
him that he was being laid off. Weis said the reason for the
layoff was because Richardson was an unhappy employee
and because produce sales were going down. Richardson
made an offhand comment in reply to the effect that he
might go to Florida.
Richardson did not work the following Saturday or
Sunday. Early Monday morning, October 18, George Weis
called Richardson on the telephone to tell him that Weis
had no intention of recalling him to work and that
Richardson was fired. Weis repeated on this occasion that
Richardson was unhappy, that produce sales had been
going down, and made a further reference to the fact that
Richardson had reported to work late.4
During the period of the layoff and discharge of
Richardson, Weis did not consult with Metcalfe who was
on a 2-week vacation trip in Canada. Metcalfe did not
return to the store until Monday, October 25, and his only
prior conversation with Weis during that period was by
telephone on Saturday night, October 23.
Immediately upon his discharge, Richardson informed
the Union what had occurred. In the interview which
followed, the Union informed Richardson that it would file
unfair labor practice charges with the Board and suggested
that Richardson himself file for unemployment compensa-
tion.
Richardson did file for unemployment compensation
with the state authorities, reporting that he had been
discharged. Metcalfe, who had returned from vacation in
the meantime and had familiarized himself with the
situation, opposed the claim. Metcalfe informed the state
authorities that work was available, that Richardson was
not laid off for lack of work, but that, because of
insufficient working hours, Richardson had himself "decid-
ed to leave." At a meeting on November 2, 1971,
Richardson and Metcalfe presented their respective posi-
tions to the state representative. Metcalfe reiterated that
Richardson was not entitled to unemployment compensa-
tion because his termination was not really a discharge but
merely a recognition of the fact that Richardson had
already quit his employment. In due course, the matter was
resolved in favor of Richardson and adversely to Respon-
dent's claim that Richardson was not eligible for compen-
sation. Richardson was awarded unemployment compen-
sation.
In this frame of, reference, the critical question to be
decided is whether Richardson was discharged because of
his union activities and sympathies, and in order to
discourage adherence to the Union, as alleged in the
complaint, or whether, as Respondent insists, the termina-
tion of Richardson's employment was for cause.
The burden of establishing a discriminatory discharge is,
of course, upon the General Counsel. Respondent's
aversion to the Union is apparent on the record. As the
earlier decision of the Board against this Respondent
established, Respondent regarded an employee who
card which he had signed at the union office on the day of his visit The card
was dated October 13 as was the card of Robert Pitz whose signature
Richardson solicited that same day at Respondent 's store following his
return from the union office
4 Weis was even more confused than Richardson concerning dates, and
his testimony varied as to whether the discharge occurred on October 18 or
October 19, or on Monday or Tuesday Weis' final version was that the
supported this very same Union in 1969 as a "Judas" (184
NLRB No. 40). Quite apart from this quite recent history
which is cited here only as background, Respondent's letter
of October 28, 1971, rejecting the Union's current claim for
recognition , was larded with references to union pressures,
threats , union fines , and union "bossism."5 These same
considerations would seem to suggest Respondent's recep-
tivity to the utilization of whatever techniques might serve
to exclude the Union including discharge of union
adherents.
More, however, is required than mere suspicion and
Respondent asserts that, in the case of Richardson, it was
wholly unaware at the time of the discharge that Richard-
son was a union advocates According to Respondent, it
did not become aware of Richardson's union activity until
after it had discharged him.
The defense is suspect. Respondent was not a novice in
the matter of a union organizational campaign, having
experienced such a campaign by the same Union only 2
years earlier; union discussion and solicitation in which
Richardson was a prominent participant was quite preva-
lent among the employees in the store beginning no later
than October 13; and, as will presently be shown,
conversations about the Union took place not only among
the employees in the store, but also between the employees
and Respondent's supervisory hierarchy. To assume under
these circumstances that Respondent was unaware of the
organizational activity in the store and of Richardson's
role therein puts credulity to the test.
Moreover, these circumstances do not stand alone. This
is peculiarily a case where the observations in Shattuck Den
Mining Corporation v. N. L. R. B., 362 F.2d 466 (C.A. 3,
1966) are pertinent. Judge Duniway, with the concurrence
of his two colleagues, had this to say at 470:
Actual motive, a state of mind, being the question, it
is seldom that direct evidence will be available that is
not also self-serving . In such cases , the self-serving
declaration is not conclusive; the trier of fact may infer
motive from the total circumstances proved; otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book. Nor is the trier of fact-here the trial
examiner-required to be more naif than is a judge. If
he finds that the stated motive for a discharge is false,
he certainly can infer that there is another motive.
More than that, he can infer that t}ie motive is one that
the employer desires to conceal-an unlawful mo-
tive-at least where, as in this case, the surrounding facts
tend to reinforce that inference.
Accord: N. L R. B. v. Hartsell Mills Company, Ill F.2d 291,
293 (C.A. 4, 1940); see also Angwell Curtain Company, Inc.
v. N. L R. B., 192 F.2d 899, 903 (C.A. 7, 1951). Here, even
more than in Shattuck, the proffered grounds for the
discharge do not withstand scrutiny in that they are not
only without foundation in the record but they are
telephone message of discharge was made on Tuesday On the basis of all
the testimony , I believe that the discharge occurred on Monday and that
Weis' recollection , plainly not too certain in this regard , was in error
5 Neither the decision in 184 NLRB No 40 nor the present record lays
any foundation to warrant such references
6 Respondent advanced an identical contention in the earlier proceeding
with respect to Frank Peck . 184 NLRB No 40
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constantly shifting, thereby making the "claim of 'non-
discrimination the less convincing.' " N.L.R.B. v. Schill
Steel Products, Inc., 340 F.2d 568, 573 (C.A. 5, 1965).
Thus, the record is less than clear-indeed, quite the
contrary-as to what Respondent's asserted cause was. As
already noted, Metcalfe's position in the unemployment
compensation proceeding was that Richardson had not
been discharged at all but had voluntarily quit his
employment. On the other hand, George Weis, who in
Metcalfe's absence was the operative head of the establish-
ment during the time the relevant events occurred, made
no such claim and acknowledged that both the March 15
lay off and the discharge which occurred a few days later
were in his determinations. In both instances, Weis
informed Richardson that the reason for the actions was
because Richardson was unhappy and because produce
sales were going down. In the discharge conversation, Weis
also alluded to the fact that Richardson had been late for
work.
None of these several assertions stands up upon
examination. There is no credible or probative evidence
that Richardson had voluntarily quit his employment.
Richardson's comment, when he was laid off on March 15,
that he might go to Florida certainly does not warrant the
inference that he was quitting nor did George Weis so
assume. On the contrary, only a few days later, Weis called
Richardson to inform Richardson that Respondent had no
intention of calling him back to work and that he was fired.
I am satisfied that Metcalfe's contention that Richardson
had quit, a contention which Weis, so far as appears, did
not endorse or even suggest, was improvised by Metcalfe
as a stratagem to obfuscate the real situation.
Weis' reference to Richardson's tardiness as a reason for
the discharge would also seem to fall in the category of an
afterthought. The record support for this contention would
appear to flow from Weis' testimony that he believed he
had mentioned something to Richardson about coming in
on time when the latter came in "a minute or so" late.
However, Weis acknowledged that he had made the same
comment to other employees and could not recall any
occasion when Richardson was ever seriously late. Tardi-
ness was obviously not a significant factor in Richardson's
work record.
Respondent's claim that it took the action it did because
Richardson was unhappy and because produce sales had
fallen off might appear to be a more plausible justification.
There can be no question that Richardson, a young man
planning on marriage, was disappointed when his hours
and earnings were cut and when his efforts to ameliorate
that situation were unavailing. Arguably, Weis could have
felt that he was doing Richardson a favor when he laid him
off. Moreover, it is also true that work was slow in the
produce department during September and October. Yet
while work was admittedly slow in the produce depart-
ment, there was enough so that a substantial number of
hours which Richardson could or would have worked had
to be taken care of by detailing employees from other
departments to fill in for Richardson.
The short answer, however, is that it need not be
determined whether the October 15 layoff was economical-
ly justified. The complaint does not put the lawfulness of
the layoff in issue; it puts in issue the lawfulness of the
discharge which occurred a few days later on October 18.
The real question is whether Respondent, as it asserts, had
valid cause for converting Richardson's layoff to a
discharge, or whether, as General Counsel contends, that
conversion was the product of a disciminatory and
antiunion motivation.
As to this aspect of the case, it is clear that the end of the
slow season in the produce department was rapidly
approaching and no present exigency existed because
Richardson was already in layoff status. Moreover, it could
fairly be anticipated that with the approaching holiday
season, Richardson's services would soon be needed on a
full-time basis, thus serving Respondent's needs and at the
same time obviating the basis for Richardson's dissatisfac-
tion. In this context, the lack-of-work justification for the
discharge is likewise wanting in persuasiveness. This is
especially so in the light of undisputed evidence that
despite the annual decrease in production sales during
September and October, no one had ever been discharged
from the produce department in prior years.
Respondent at the hearing invoked still another ground
for its action, namely, Richardson's incompetence, a,
ground never communicated to Richardson at the time the
action was taken. Yet here, too, the facts of record fail to
support Respondent. Weis himself discounted any sugges-
tion that tardiness was a factor in Richardson's work
performance. Similarly, Weis testified that while he had on
occasion criticized Richardson for other reasons, this was
standard practice for him with respect to other employees
in the produce department, all of whom with the exception
of Richardson were still working in that department.
Respondent also adduced testimony that Produce Supervi-
sor Hiltsley had complained to Respondent about Richard-
son's work, that Wendt, a fellow employee, had made
similar complaints to Respondent, and that Richardson
generally did not carry out his assigned duties. Yet,
significantly, Respondent did not call Hiltsley, Richard-
son's immediate superior, to testify nor did Respondent
question Wendt, who did testify as witness for General
Counsel, concerning Wendt's criticism of Richardson.
Even more significantly, Respondent did not produce any
of Richardson's work cards in evidence although Respon-
dent testified that it was its practice to note reprimands on
these cards. These omissions are significant and furnish a
basis for an inference that evidentiary support for
Respondent's claims was lacking.
Finally, Respondent offered even another and different
explanation for the discharge. Thus, Weis, at one point in
his extensive testimony in this regard, stated: That the
discharge really came about because following Richard-
son's layoff, an employee in the nightcrew quit; that Weis
anticipated legal complications if he replaced that employ-
ee while another employee (Richardson) was on layoff;
that he communicated this concern to an employee of
Godfrey Company; that this employee, unidentified,
advised him to solve his problem by discharging Richard-
son; and that he, Weis, decided to follow that advice. I find
this explanation, viewed against the others proffered by
Metcalfe and Weis, equally implausible.
In sum, I conclude that the total inadequacies and
SENTRY FOOD STORE
shifting bases proferred to justify Respondent's action
fortify the conclusion drawn from the other evidence of
record that Respondent's real motivation for the discharge
of Richardson was to punish him for his activity in behalf
of the Union and to discourage the union adherence which
he was promoting. I find that Respondent by this conduct
violated Section 8(a)(3) and (1) of the Act.
C. The Interrogation of James Wellinghof
As already noted, the complaint alleges that Respondent,
acting through its agent , George Weis , on or before
October 15, 1971, interrogated an employee about his
knowledge of a union campaign at Respondent 's Brook-
field store.
The relevant evidence can be quickly summarized. The
incident in question arose in the course of a conversation
between George Weis and employee James Wellinghof.
According to Wellinghof, Weis approached him in the
store on a Tuesday night-Wellinghof could not specify
the date nor state whether the conversation occurred
before or after Richardson's discharge. Weis asked
Wellinghof whether there was any talk about unions and
Wellinghof replied that he didn't know. Weis then said,
according to Wellinghof, that unions have a perfect right to
try to unionize a store as long as they do not do it on the
premises.
Weis admitted that he had talked to Wellinghof and
fixed the time of the conversation as being after Richard-
son's discharge. He testified further that he had either
asked Wellinghof if anybody had contacted him or had
suggested that there might be people over to contact him.
Wellinghof replied, according to Weis, that this had
already happened.
Weis' testimony on this aspect of the case was forthright.
He volunteered that as soon as he learned of the union
campaign, he initiated conversations with a number of
employees whom he named. In each instance the tenor of
his message was that they might be visited by union
representatives, they should listen if they wanted to but
they should remember there were two sides to every story,
and "if you have any questions, ask me."
It may well be, and the record does not preclude a
finding, that Weis in this regard questioned other employ-
ees, as he did Wellinghof, as to whether they had been
approached . But there is neither an allegation nor evidence
that there were threats or promises fairly be regarded as
intimidating or coercive of having that tendency. In an
effort to strengthen the case in respect to the interrogation
of Wellinghof, General Counsel in his brief cites other
instances of alleged questioning and surveillance . Without
detailing these instances which were not, in any event,
alleged as violations, I find a lack of probative evidence to
support an allegation that Respondent engaged in interro-
gation in violation of Section 8(a)(1) of the Act as alleged
in the complaint.
D. The Reduction in Dittle's Working Hours
Michael Dittle, a college student, was a part-time
employee of Respondent, hired as a packer at $1.77 an
883
hour . On October 15, 1971, Dittle obtained a union
authorization card from Richardson , signed it, and
distributed a few more union authorization cards among
his fellow employees . The record is silent as to whether
Respondent was aware of these activities. In any event,
about a month later on November 27, 1971, Respondent
made Dittle a stocker , a job which carried a wage rate of
$2.55 an hour, a higher rate that he had previously earned.
The next event of significance here occurred when
Respondent's counsel , James C . Mallien , was preparing the
instant case for trial . Dittle , who was called as a witness for
General Counsel , testified extensively on both direct
examination and on cross-examination as to his involve-
ment in this pretnal preparation . On direct examination,
Dittle testified that on a Monday after New Year's Day,
either January 3 or 10, 1972 , while he was at work, he was
asked to speak to Respondent's counsel who was in an
upstairs office of the store . Dittle stated that he complied
with the request . According to Dittle 's direct testimony,
Respondent's counsel neither advised Dittle of his right to
remain silent , nor advised him that no reprisals would be
taken if he did remain silent . Rather , Respondent 's counsel
merely introduced himself and asked whether Dittle had
been interrogated . Dittle mentioned the name of employee
Bentrup in that connection . The questioning then turned to
the discharge of Ross Richardson at which point Dittle
refused to answer any further questions . Thereupon Dittle
said counsel warned him that if questioned at the Board
hearing Dittle's answers had better be true because counsel
had recorded his conversation with Dittle on a tape
recorder.
On cross-examination by Respondent 's counsel at the
instant hearing, Dittle 's memory was refreshed in several
particulars . He acknowledged that the interview in ques-
tion could not have occurred on January 3 or 10 as he had
previously testified, but probably did occur on December
27. Dittle acknowledged further being told at the outset of
the interview that the questions he would be asked would
relate to the allegations of interrogation and discharge set
forth in the complaint. Generally , Dittle confirmed, a little
more fully than he had on direct examination , the subject
matter of the interview , although in both direct and cross-
examination he could not recall much of the conversation
that took place. He agreed, however, that the interview
ended with the participants on good terms and shaking
hands.?
General Counsel does not allege-indeed in his brief he
specifically disavows-that this pretrial interview was
violative of the Act. Nor does the record appear to warrant
such a finding. But General Counsel does argue that
because Dittle did not cooperate fully at the interview,
Respondent thereafter discriminatorily reduced Dittle's
working hours, thereby violating Section 8(a)(3), (4), and
(1) of the Act.
The evidence as to Dittle's working hours is not in
dispute. As already noted, Dittle, a college student, was
always a part-time employee except for the summer of
1971 when he did not have school sessions . Omitting the
first few weeks of his employment, Dittle 's working hours
ranged between 17 to 22 hours per week . On the week
7 Respondent 's counsel did not testify
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ending January 1, 1972, Dittle worked 32.2 hours; January
8, 20.7 hours; January 15, 20.7 hours; January 22, 12
hours; and January 29, 11 hours. The record is also clear
that during the holiday season from before Thanksgiving
through New Year's, the increase in business calls for more
working hours, that thereafter business declines, and that
after the holiday season, working hours throughout the
store are cut. It also appeared that during the week before
the hearing in the grocery department in which Mike Dittle
worked, five employees had their hours cut, and the cut in
hours in the case of two of these employees was greater
than it was in the case of Dittle.
In the light of these facts, a claim that Respondent's
action in cutting Dittle's hours was discriminatonly
motivated is somewhat suspect. General Counsel seeks to
discount the overall cut in hours on the ground that the
record does not show that, with respect to the employees
other than Dittle, the cut in hours was involuntary and that
the other employees may have sought the cuts. General
Counsel argues also that Respondent did not produce
business records to document that these cuts were actually
made. The latter suggestion would appear to be only an
afterthought; no issue as to these cuts was made at the
hearing, and General Counsel did not seek the production
of the records. The first contention that, except for Dittle,
the other employees whose hours were cut may have
sought the cuts is sheer speculation without any support in
the record.
Under all the circumstances, I find that there is no basis
for a finding that the cut in Dittle's working hours was
discriminatorily motivated, or that Respondent violated
Section 8(a)(3), (4), or (1) of the Act in that regard.
E. The Refusal To Bargain
The complaint alleges, and Respondent denies, that
Respondent has failed and refused to bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act.
As already noted, the Union wrote to Respondent on
October 22, 1971, asking for recognition and bargaining for
a unit of employees described as follows:
All employees employed at Metcalfe Sentry Food
Store, 13255 W. Hampton Ave., Brookfield, Wisconsin,
but excluding these employees employed in the meat
department, store manager, and supervisor as defined
in the LMRA Act as amended.
On October 28, 1971, Respondent countered the Union's
request for recognition and bargaining with a proposal for
a Board-conducted election.
8 G C Exh 5 lists 44 individuals who were,workmg for Respondent at
the time of the Union's demand for recognition No meat department
employees are included in this list General Counsel urges, and I agree, that,
of the 44 individuals, the following should be excluded from the appropriate
unit because of their relationship to Jerome Metcalfe and/or because of
their supervisory status
E Metcalfe-father of Jerome Metcalfe and chairman of the board
M Metcalfe-mother of Jerome Metcalfe and secretary-treasurer
George Weis-assistant manager of the store
H Kapelke-head checker
R Hiltsley-produce manager
H Vatsatkio-deli-bakery manager
R Riley-assistant store manager (under Weis)
Omitting these 7 individuals, the appropriate unit consists of 37 employees
General Counsel urges that Joe Laundry whose job is making pizzas and
Respondent does not question that the unit of employees
sought by the Union is appropriate. I find that it is. I find
further that the Union at all times relevant here enjoyed
majority status among the employees in that unit. On the
basis of the evidence adduced at the hearing, I find that the
unit consisted of either 36 or 37 employees.8 As of October
22, 1971, the date of the Union's request for recognition, 21
valid union authorization cards had been signed. One more
was signed on October 24, another on October 26, and still
another on November 11 .9
However, the existence of majority status does not
without more establish that Respondent's refusal to
bargain was wrongful or justify the imposition of a
bargaining order. Rather, the question then becomes, as
framed by N.L.R.B. v. Gissel Packing Company, 395 U.S.
595 (1969), whether Respondent's course of conduct was
such as to justify a bargaining order without resort to an
election. Such an order would obviously be appropriate,
under Gissel, in "exceptional" cases marked by "outra-
geous" and "pervasive" unfair labor practices. This is not
such a case.
However, the Supreme Court in Gissel also approved the
Board's use of a bargaining order
in less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency to
undermine majority strength and impede the election
processes . . . . In fashioning a remedy in the exercise
of its discretion, the Board can properly take into
consideration the extensiveness of an employer's unfair
labor practices in terms of their past effect on election
conditions and the likelihood of their recurrence in the
future. If the Board finds that the possibility of erasing
the effects of past practices and of ensuring a fair
election (or a fair rerun) by the use of traditional
remedies, though present, is a slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order, then
such an order should issue. [395 U.S. at 614-615.]
The Supreme Court then made reference (p. 615) to still a
third category of cases "which, because of their minimal
impact on the election machinery, will not sustain a
bargaining order."
At first blush this case would appear to fall in the third
category. Of the several allegations of unfair labor
practices made by General Counsel in this case, I have
found adequate support for only one, the discriminatory
discharge of Ross Richardson. To be sure, the discharge of
a leading union adherent for discriminatory reasons cannot
be regarded as trivial. Yet in the total context of this case,
whose work station is in the meat department should also be excluded On
this basis there would be 36 employees in the unit However, I am unable to
determine on the basis of this record whether or not Laundry should be
excluded
9 Respondent, in its brief to the Trial Examiner, does not challenge the
validity of any of these cards as valid designations of the Union as
bargaining representative for the employees concerned On this aspect of
the case, Respondent contends merely that it had a good-faith doubt of the
Union's majority and that it has engaged in no conduct which would
preclude an election to determine the majority issue In any event, the
record would provide a possible basis-which I do not find adequate-to
challenge the validity of cards signed by employees O'Hearn and
Wojoiechowski Even assuming arguendo the invalidity of these two cards
majority is nonetheless clearly established
SENTRY FOOD STORE 885
standing alone, it would not appear that the discharge of
Ross Richardson would so "undermine majority strength
and impede the election processes " as to warrant a
bargaining order. Indeed, the record shows, that even after
the discharge the Union was able to obtain a few more
authorization cards.
Yet this case does not stand alone. It has a history. Less
than 2 years earlier Respondent had frustrated an
organizational effort by this same Union when, as the
Board found, Respondent discriminatorily discharged
Frank Peck, a leading union adherent. Respondent was
directed at that time to cease and desist , inter aha, from
"[d]iscouraging membership in Retail Store Employees
Union, Local No. 444, AFL-CIO [the Union herein], or
any other labor organization, by discriminating in regard
to the hire and tenure of employees or any term or
condition of their employment." 184 NLRB No. 40. Yet, as
soon as the employees renewed their effort, as they did in
this case, to bring the Union in as their bargaining
representative, Respondent in the teeth of the order issued
against it only 16 months earlier utilized the same
discharge technique to subvert the renewed organizational
effort.
The traditional remedy imposed by the Board in the first
case did not operate to prevent Respondent from resorting
to the same unlawful technique in the current situation.
There is no reason to suppose that a like remedy imposed
in the instant case would be more effective.10 In view of
Respondent's demonstrated proclivity to frustrate the
organizational efforts of its employees, "the possibility of
erasing the effects of past practices and ensuing a fair
election-by the use of traditional remedies is slight"
(Gissel, supra at 615). Although singled unfair labor practice
was found in each case , the cumulative impact is no less
than that which would have been created by a broader
pattern of unfair labor practices. More particularly, the
likelihood of "recurrence" to which Gissel also makes
reference , is markedly pertinent here.
In sum, I find that Respondent's conduct here amounted
to an unlawful refusal to recognize and bargain with the
Union in violation of Section 8(a)(1) and (5) of the Act. I
find further that the remedy of a bargaining order is
appropriate either for an 8(a)(5) or an 8(a)(1) violation.
The conduct of Respondent in this case viewed against the
background of its conduct in the earlier case emphasizes
the likelihood of its recurrence in the future. Gissel, supra.
the meat department and guards and supervisors as
defined in the Act, constitute a unit appropriate for
collective bargaining.
3. At all material times, the Union has been the
designated representative of the majority of the employees
in the aforesaid unit.
4. By refusing to recognize and bargain with the Union
as the exclusive bargaining representative of the employees
in the aforesaid unit Respondent has violated Section
8(a)(1) and (5) of the Act.
5. Respondent has not violated the Act in the other
respects alleged in the complaint.
REMEDY
In order to effectuate the policies of the Act and enforce
its mandate , I will direct Respondent to cease and desist
from engaging in the unfair labor practices found and from
like or related unfair labor practices.
Affirmative relief is likewise appropriate and necessary
in the circumstances. Accordingly, I will direct Respondent
to reinstate Ross Richardson to his former position or, if
such position no longer exists , to a substantially equivalent
position , and to make Ross Richardson whole for earnings
lost as a result of his discharge by paying him an amount of
money equal to that which he would normally have earned,
absent the unlawful discrimination, from the date of his
discharge to the date of Respondent's offer of reinstate-
ment, less his net earnings, if any , during such period.
Backpay shall be computed on a quarterly basis, and
interest at 6 percent shall be added. See F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Finally, I shall direct Respondent to bargain collectively,
upon request , with the Union as the exclusive bargaining
representative of the employees constituting the unit found
appropriate here, and to embody any understanding
reached in a signed agreement.
To facilitate these ends , the remedial order will include
the customary record -keeping and notice-posting provi-
sions.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record , and pursuant to Section 10(c) of the
Act, I recommend the following:
ORDER ii
CONCLUSIONS OF LAW
1. By discharging Ross Richardson to discourage union
activities Respondent has violated Section 8(a)(3) and (1)
of the Act.
2. All employees employed at Metcalfe, Inc., d/b/a
Sentry Food Store, 13255 West Hampton Avenue, Brook-
field, Wisconsin, excluding those employees employed in
10 The Respondent may feel that the cost of reinstatement and backpay
and the requirement to post notices are small price to pay for keeping the
Union out Moreover, it is a distinct likelihood that repeated rebuffs to the
employees will chill , if not destroy , their legitimate efforts to select a
collective-bargaining representative A possible answer , of course, is to
obtain court enforcement of a Board order and thus set the stage for
contempt proceedings against a recalcitrant respondent While this may
serve to rectify the recalcitrance , it is in its very nature a time-consuming
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 discharging or otherwise discriminating
against any person in regard to the hire or tenure of his
employment or any term or condition of his employment.
procedure which will do little to vindicate the statutory rights of the
employees, the real victims of the misconduct
11 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations . be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to bargain collectively concerning wages,
hours, and other terms and conditions of employment with
the above-named Union as the exclusive bargaining
representative of all employees employed at its Brookfield,
Wisconsin, store, excluding those employees employed in
the meat department and guards and supervisors as
defined in the Act.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the rights
guaranteed under Section 7 of the National Labor
Relations Act, as amended.
2. Take the following affirmative action necessary to
effectuate the policies of the National Labor Relations Act,
as amended:
(a) Offer Ross Richardson immediate and full reinstate-
ment 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, and make him
whole for lost earnings in the manner set forth in the
section of the Trial Examiner's Decision entitled "Reme-
dy„
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Upon request, bargain collectively in good faith with
the above-named Union as the exclusive bargaining
representative of the employees in the above-described
unit, and embody in a signed agreement any understanding
reached.
(e) Post at its store in Brookfield, Wisconsin, copies of
the attached notice marked "Appendix." 12 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
12 In the event that the Board 's Order is enforced by a Judgment of the
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
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge , or otherwise discriminate
against any employee to discourage activities in
support of Retail Store Employees Union, Local No.
444, AFL-CIO, or any other union.
WE WILL offer to take back Ross Richardson to his
old job and pay him for earnings he lost as a result of
his discharge.
WE WILL, upon request, bargain collectively and in
good faith with the above-named Union as the
exclusive bargaining representative of all the employees
described below about their wages, hours, and working
conditions, and, if agreement is reached, we will sign
such an agreement. The employees are:
All employees employed at Metcalfe, Inc., d/b/a
Sentry Food Store, 13255 W. Hampton Ave.,
Brookfield, Wisconsin, excluding those employ-
ees employed in the meat department and guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with the right of employees to engage in self-organiza-
tion or collective bargaining or to refrain from such
activities.
METCALFE, INC., D/B/A
SENTRY FOOD STORE
(Employer)
Dated By
(Representative) (Title)
WE WILL NOTIFY immediately Ross Richardson, if
presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon applica-
tion after discharge from the Armed Services, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Commerce Building, 744 North Fourth Street, Milwaukee,
Wisconsin 53203, Telephone 414-224-3870.