Sewell-Allen Big Star No. 52

National Labor Relations Board - Board Decisions

Jul 23, 1986

280 N.L.R.B. 1244 (N.L.R.B. 1986)

1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sewell-Allen Big Star, Inc., No. 3 d/b/a Sewell-
Allen Big Star No . 52 and United Food & Com-
mercial Workers, Local 1529 , AFL-CIO-CLC.
Case 26-CA-11018
23 July 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 24 February 1986 Administrative Law Judge
Philip P . McLeod issued the attached decision.'
The Charging Party filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, fmdings,2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The judge refers to the Respondent as Sewell-Allen Big Star, Inc.
d/b/a Sewell-Allen Big Star No. 52 in the caption on his decision, in his
finding of facts under jurisdiction , and in his first conclusion of law. The
Respondent should be listed as Sewell-Allen Big Star, Inc., No . 3 d/b/a
Sewell-Allen Big Star No. 52.
f The Charging Party has excepted to some of the judge's credibility
findings. The Board 's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F .2d 362 (3d Cir.
1951 ). We have carefully examined the record and find no basis for re-
versing the findings.
The judge inadvertently stated that Stafford's demeanor and lack of
spontaneity indicated that Liles ' testimony was rehearsed. The judge was
obviously referring to Liles' demeanor and lack of spontaneity.
Margaret Guill Theiner, Esq., for the General Counsel.
Howard S. Linty, Esq. (Kullman, Inman, Bee & Downing),
of New Orleans , Louisiana, for the Respondent.
Deborah Godwin, Esq. (Gerber, Gerber & Agee), of Mem-
phis, Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PHILIP P . McLEOD, Administrative Law Judge. I
heard this case on 29 and 30 July and 17 and 18 Septem-
ber 1986 in Memphis, Tennessee. The charge in this case
was filed on 8 February and amended on 13 March 1985.
On 12 March 1985 a complaint and notice of hearing
issued, which was later amended on 3 May. The com-
plaint, as amended, alleges, inter alia, that Respondent
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act).
In its answer to the complaint, Respondent admitted
certain allegations , including the filing and serving of the
charges, its status as an employer within the meaning of
the Act, the status of United Food & Commercial Work-
ers, Local 1529, AFL-CIO-CLC as a labor organization
within the meaning of the Act, and the status of various
individuals as supervisors and agents of Respondent
within the meaning of Section 2(11) of the Act. Re-
spondent denied having engaged in any conduct that
would constitute an unfair labor practice within the
meaning of the Act. At the trial, all parties were repre-
sented and afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses , and to introduce evi-
dence . Following the close of the trial, all parties filed
timely briefs with me, which have been duly consid-
ered.'
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Sewell-Allen Big Star , Inc., d/b/a Sewell-Allen Big
Star No . 52 is, and has been at all times material, a cor
poration with an office and place of business located in
Collierville, Tennessee , where it is engaged in the retail
grocery business . Respondent purchases and receives at
its Collierville, Tennessee facility products, goods, and
materials in excess of $50,000 annually from points locat-
ed outside the State of Tennessee . Respondent's gross
revenues exceed $500,000.
Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
United Food & Commercial Workers, Local 1529,
AFL-CIO-CLC is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Information and Contentions of the
Parties
This case involves a grocery store located in Collier-
ville, Tennessee, known as Big Star No. 52. Prior to Jan-
1 Briefs were originally due to be received on 23 October. Pursuant to
requests by Respondent, the due date for briefs was extended first to 13
November and later to 25 November . The brief for the General Counsel
was mailed to this office by regular mail and to the other parties by certi-
fied mail. It was received by the Charging Party and Respondent on 25
and 26 November 1985, respectively The General Counsel 's brief ad-
dressed to this office was never received. Following an inquiry by this
office, the General Counsel supplied me with a copy of that brief, which
I received on 15 January 1986, accompanied by photocopies of the return
receipts for the briefs mailed to the Charging Party and Respondent. The
brief is dated 22 November and contains a certificate of service showing
that it was mailed to me, the Charging Party, and Respondent on that
day. Having considered these facts , I conclude that the brief of the Gen-
eral Counsel would have been received by this office in a timely fashion
but for actions beyond its control Accordingly , I have decided to re-
ceive the brief of the General Counsel as timely
280 NLRB No. 137
SEWELL-ALLEN BIG STAR NO. 52
uary 1985 , this store was owned and operated by Whit-
ney Chambers . In January , Chambers sold the business as
a going concern to Sewell-Allen Big Star, Inc., No. 3, a
corporation owned jointly by Lex Sewell and Dan
Allen. Chambers employed approximately 60 nonsupervi-
sory employees and 8 management employees. Cham-
bers' employees in the grocery section were not repre-
sented for purposes of collective bargaining , but the five
employees in the meat department were represented for
purposes of collective bargaining by the Union . A collec-
tive-bargaining agreement existed between Chambers and
the Union, which was due to expire on 9 November
1985.
The complaint alleges that Respondent has continued
the employing entity and is a successor of Chambers;
that the Union has requested Respondent to recognize
and bargain with it as the representative of its employees
in the meat department ; that Respondent has refused to
recognize and bargain with the Union ; that Respondent
refused to hire four of the five employees working in
Chambers' meat department because they were repre-
sented by the Union and to avoid a bargaining obligation
with the Union ; and that but for its refusal to hire these
employees to avoid any bargaining obligation , Respond-
ent would have employed in its own meat department a
majority of employees who had previously worked for
Chambers, thereby making Respondent a successor to
Chambers with a resulting obligation to recognize and
bargain with the Union.
Respondent denies that it failed to hire a majority of
Chambers' meat department employees to avoid succes-
sorship status, which would result in it having to recog-
nize and bargain with the Union . Respondent contends
that it failed to hire two of the four for reasons related to
their work, including recommendations Respondent re-
ceived from others, and that it did not hire the other two
simply because they did not apply for and seek work
with Respondent when it took over from Chambers. Re-
spondent argues that because it did not hire a majority of
employees from the bargaining unit at Chambers for rea-
sons which are nondiscriminatory , Respondent cannot be
found to be a successor to Chambers and it therefore has
no duty to recognize and bargain with the Union as the
exclusive collective-bargaining representative of its em-
ployees in its meat department. As described in full
below, I find that Respondent 's reasons for not hiring
these individuals were nondiscriminatory and, as a result,
Respondent is not obligated as a successor to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of employees in its meat de-
partment.
B. Chambers' Relationship with Malone & Hyde, Inc.
Chambers operated Big Star No . 52 pursuant to a
supply agreement with Malone & Hyde , Inc., a large
food wholesaler . Chambers subleased the building from
Malone & Hyde, Inc. and , according to Chambers, there
was a written franchise agreement between him and
Malone & Hyde , Inc. Malone & Hyde was Chambers'
primary supplier of all grocery products , including both
dry groceries and perishables . Chambers also used a
number of other services offered by Malone & Hyde,
1245
Inc., including accounting , advertising, and financial
services . Malone & Hyde was the primary holder of all
Chambers ' fixture and equipment notes. Malone & Hyde
also provided Chambers with property and casualty in-
surance.
C. Respondent and Its Relationship with Malone &
Hyde, Inc
Sewell-Allen Big Star , Inc., No. 3 is a corporation
owned jointly by Lex Sewell and Dan Allen. It was ap-
parently formed to purchase and take over the operation
of Chambers' store. Sewell and Allen are also joint
owners of two other Big Star grocery stores in the Mem-
phis area. In addition , Sewell is the sole owner of certain
other grocery facilities in the Memphis area . Malone &
Hyde is the primary supplier of all grocery items for the
three Big Star stores operated by Sewell and Allen.
Sewell and Allen testified that there is no written fran-
chise agreement between it and Malone & Hyde regard-
ing use of the Big Star name. Respondent acknowledges,
however, that it utilizes many of the same services of-
fered by Malone & Hyde that were used by Chambers.
Sewell testified that Respondent utilizes accounting serv-
ices to provide profit-and-loss statements and to provide
information concerning the reporting of sales tax. Re-
spondent utilizes coordinated advertising with other Big
Star stores through Malone & Hyde. Respondent, like
Chambers, subleases the Collierville store from Malone
& Hyde. Malone & Hyde also provides Respondent with
property and casualty insurance . Certain significant em-
ployee benefits, however, including health coverage and
a pension plan, are not secured through Malone & Hyde
but rather are purchased and operated independently by
Respondent.
D. The Sale by Chambers to Respondent
In November 1985 Chambers became interested in sell-
ing his store . Chambers informed Leonard Kay, division
manager of Malone & Hyde, Inc. Kay, in turn , informed
Sewell and Allen that Chambers wanted to sell his store,
and negotiations began toward that end. Chambers re-
called that he had approximately three conversations
with Sewell and Allen by telephone . The first took place
in December with Allen. Chambers could not recall the
date of the second conversation, but it too was a conver-
sation with Allen. The third conversation was between
Chambers and Sewell . Sewell and Allen were provided
information by Malone & Hyde concerning profits and
losses of Chambers' store . On 26 December 1984, Sewell,
Allen, and Chambers met at the offices of Malone &
Hyde and executed a written purchase agreement for the
sale of Chambers ' store to Sewell and Allen. This pur-
chase agreement was drafted and typed by Malone &
Hyde . Present at the 26 December meeting in addition to
Sewell , Allen, and Chambers were Peter Pettit, house
counsel for Malone & Hyde, Leonard Kay , and Ken
Kenworthy, corporate attorney for Sewell and Allen.
Chambers testified that there were two meetings with
Sewell and Allen before the sale closed. He could not
recall the date of the first meeting , but estimated it to be
15 to 20 days before closing . According to Chambers,
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this first meeting occurred at the offices of Malone &
Hyde, and Leonard Kay had been present. Chambers
may well have been referring to the meeting on 26 De-
cember . Chambers testified that in none of the conversa-
tions preceding the 26 December meeting nor during the
26 December meeting itself was there any discussion re-
garding individual employees who had worked for
Chambers . The purchase agreement , signed in the meet-
ing on 26 December, provides in pertinent part:
Employees. Seller agrees to terminate its employees
prior to inventory date [27 January 1985]. Buyer
shall not be obligated to employ any of seller's
present or former employees , nor shall buyer be ob-
ligated to continue in effect any group insurance,
employee retirement or welfare plans which it has
in effect on the closing date.
According to the terms of the purchase agreement, clos-
ing was scheduled to take place at 1 p .m. on 28 January
1985 at the offices of Malone & Hyde.
Sewell and Allen both freely admitted that at some
point prior to the closing date they had a telephone con-
versation with Howard Linzy, Esq., Respondent 's coun-
sel, regarding the legal effect of hiring Chambers' bar-
gaining unit employees . Both admit that at the time they
spoke to Linzy, they knew Chambers' employees in the
meat department were represented by the Union . Neither
Sewell nor Allen knew the date of their conversation
with Linzy , but Sewell placed the conversation sometime
in December 1984. According to Sewell, Linzy told him
that Respondent could hire anyone they wanted to or
not hire anyone they wanted to, that it was strictly up to
them. Linzy also told Sewell "What was considered a
unit in that store and that if we hired a majority of the
unit there was a possibility that we might have to negoti-
ate" with the Union.
At some point in time not long after the purchase
agreement was signed on 26 December, Allen requested
Chambers to supply Respondent with a list of Chambers'
employees and their wage rates . Soon after that, a meet-
ing was arranged by Leonard Kay between Chambers
and Respondent at Malone & Hyde 's Southhaven , Missis-
sippi warehouse facility on the afternoon of 24 January
1985 . According to Chambers, whom I found to be a
credible witness, Kay asked Chambers to bring two
blank pieces of paper and a copy of his collective-bar-
gaining agreement with the Union to the meeting. Cham-
bers did so. The meeting on 24 January consisted of two
fairly distinct parts . During the first part, Sewell and
Allen met with Chambers, and together the three dis-
cussed the list of Chambers' employees. The second part
of the meeting included Sewell, Allen , Chambers, and
Linzy , Respondent 's counsel. In this portion of the meet-
ing, Chambers prepared a letter to his employees inform-
ing them of the store having been sold to Respondent
and of their impending termination . At the same time,
Respondent drafted a letter to employees inviting them
to apply for positions with it . Linzy apparently oversaw
the wording of both letters . Although there is some dis-
agreement on this , which I consider to be a minor point,
it appears that in the second part of this meeting the par-
ticipants also discussed obligations owed by Chambers to
employees such as pension and health and welfare pay-
ments. Chambers acknowledges that he brought a copy
of the collective-bargaining agreement with him to this
meeting . He testified , however, that there was no specif-
ic discussion regarding the contract and that he simply
left a copy of the contract at the meeting. It appears
probable that Chambers gave a copy of the collective-
bargaining agreement to Linzy in the second part of the
meeting on 24 January , but that any discussion regarding
the contract was minimal . The main purpose of the
second portion of this meeting was for Chambers and
Respondent to draft letters to employees advising them
of Chambers' sale to Respondent.
Much controversy surrounds this meeting on 24 Janu-
ary. After 2 days of hearing on 29 and 30 July 1985, this
case was adjourned so that the General Counsel could
initiate proceedings to enforce a subpoena , which it had
served on Chambers. Sometime after selling the store to
Respondent , Chambers moved from Memphis to Kansas
City. Chambers did not appear for the hearing on 29
July, although subpoenaed. After the subpoena was en-
forced, the hearing reconvened on 17 September and
concluded on 18 September . Chambers was on the wit-
ness stand almost the entire day on 17 September. All
parties agree that Chambers' testimony is at times both
confused and confusing . At times his testimony is self-
contradictory, or appears to be so at first blush. It was
Chambers who revealed that a meeting had taken place
between him and Respondent on 24 January . During
their testimony in the prior days of hearing, neither
Sewell nor Allen had mentioned that meeting . In his tes-
timony, Chambers consistently maintained that during
the discussion between him, Sewell , and Allen regarding
the list of his employees , he made no recommendations
to Sewell or Allen about whether to hire any of his em-
ployees. Nevertheless, Chambers described at length and
in some detail comments and evaluations he made of var-
ious employees for the benefit of Sewell and Allen. Re-
spondent takes the position that it relied in large part on
some of these evaluations in deciding not to hire Lane
and Liles . The General Counsel and the Charging Party
question whether this meeting took place at all as well as
all the accounts of it, which have been given by Cham-
bers, Sewell, and Allen.
During the investigation of this case , the investigating
Board agent secured an unsigned affidavit from Cham-
bers, which read in part:
I had only one meeting in person with Sewell
and Allen . . . . No employment issues were dis-
cussed.... I recall that Allen asked if all the em-
ployees were good, and I responded that I thought
the employees were all good.... I said I thought
the fairest way to do it would be for Allen to just
interview all the employees to see which ones he
wanted to keep. . . . Allen did not ask for any spe-
cific recommendations concerning any particular
employee , and I did not make any comments about
any particular employees.
SEWELL-ALLEN BIG STAR NO. 52
I never told Sewell or Allen about any problems
I had with any particular employees , nor did I ever
make any recommendations to them regarding the
hiring of any employees.
Later, apparently in preparation of this case for trial, the
General Counsel requested certain information from
Chambers . Chambers wrote the General Counsel on 6
June, stating in part:
As for personnel information , on the job perform-
ance , work and/or recommendations for or against
employment or continued employment of all em-
ployees of Chambers Big Star No. 52 to anyone on
any level, there was no recommendation made. I do
not know how they received their information or if
they did , or from whom , but I know I did not.
The only material I provided was payroll ac-
counts, and all the company's Big Star No. 52 had
service contracts with , such as equipment, etc. I for-
warded most all of the information to Malone &
Hyde.
The only information I did turn over personally
was just a complete list of everyone that was em-
ployed and their titles and wage scale.
After the General Counsel obtained an order requiring
Chambers to obey the subpoena previously served on
him and to testify in this proceeding, Chambers met with
an agent of the Board's Kansas City office. At that time,
Chambers and an attorney, which Chambers brought
with him, reviewed the earlier unsigned affidavit, made
some corrections and additions to it, and signed the affi-
davit. The portion of the unsigned affidavit quoted above
remains substantively intact in the signed affidavit. On
the morning of 17 September, shortly before this hearing
was to reconvene , Chambers first advised the General
Counsel of the fact that he had discussed his employees
individually with Sewell and Allen prior to their taking
over the store . Obviously, the General Counsel and the
Charging Party argue that Chambers ' description of
these comments should not be credited.
I am confronted here with what is fortunately a rarity:
a reluctant, if not recalcitrant, witness who substantially
alters, if not abrogates , an earlier signed statement who I
am, nevertheless, convinced testified truthfully to the
best of his ability before me. During his testimony, there
was no question whatever in my mind that Chambers
perceived any reason or need to protect or promote Re-
spondent . It became apparent from observing Chambers
that he had ignored the earlier subpoena not because of
some identity with Respondent, but out of a belief that
this proceeding did not involve him, and he did not want
to get involved if at all possible . To characterize Cham-
bers as anything other than a disinterested third party is
both unreal and unfair . Even after the General Counsel
had obtained enforcement of the subpoena requiring
Chambers to appear and testify, Chambers met with an
agent of the Board and signed the earlier unsigned affida-
vit. Chambers had no obligation to do this , and if his in-
terest was to promote or protect Respondent , he could
easily have refused.
1247
While Chambers operated Big Star No. 52, he contrib-
uted to a fund along with other owners of Big Star
stores in the Memphis area , which was administered by
Malone & Hyde, and from which they jointly retained
the law firm representing Respondent for purposes of ob-
taining legal advice on labor relations issues . Chambers
testified before me that in June or July 1985, he was con-
tacted by an attorney from this firm named Crutcher.
Chambers testified that it was during this conversation
he realized that the firm no longer represented him.
Chambers testified that Crutcher tried to lead him into
some questions with respect to the instant case, and he
tried not to be led into any questions. I am firmly con-
vinced that Chambers was telling the truth, and I consid-
er it significant evidence of the fact that Chambers has
remained nothing more than a disinterested third party.
In the final analysis, I conclude that Chambers is a truth-
ful witness and that the vast majority of his testimony is
accurate if taken in the proper context and , for the most
part, if taken literally . From having observed Chambers,
I am also convinced that to some extent, his recollection
of the meeting on 24 January was refreshed even as he
testified . With these observations in mind, I conclude
that the following transpired at this meeting on 24 Janu-
ary.
Chambers, Sewell, and Allen had with them the copy
of the list of employees which Chambers had been asked
to supply . Sewell and Allen asked Chambers to tell them
what he could about the abilities, performance , and work
record of Chambers' employees . Using the list of em-
ployees which he had supplied, Chambers discussed
most, although not all , his employees. I credit Chambers
that looking at this list of employees on cross-examina-
tion triggered his memory of what had been said during
this meeting about the various individual employees.
Sewell and Allen testified that each full-time employee
was discussed. Chambers, however, stated that due to
the number of employees and his inability to comment
on the capabilities and performance of certain employees,
not everyone was discussed individually. I find Cham-
bers' testimony in this regard to be more accurate. I find
that Chambers commented on the abilities and perform-
ance of every full -time employee for whom he was able
to do so, and that this constituted the vast majority of
employees , including employees in the meat department
as described below. Some time was also spent in discuss-
ing the night stock crew, including part-time employees
in that department . Chambers testified repeatedly that he
did not make any recommendations to Sewell or Allen
regarding any employee. I believe Chambers' testimony
on this point, and I am convinced that in order to be un-
derstood , this assertion must be taken literally. Chambers
did not tell Sewell or Allen that he did or did not rec-
ommend any individual employee. Instead , Chambers de-
scribed what he perceived as the abilities and shortcom-
ings of each employee, and he left it to Sewell and Allen
to decide whether to hire any or all of those individuals.
According to Chambers , he discussed approximately 24
of his 29 full-time employees . Chambers could not recall
whether he discussed the work performance of five em-
ployees on the list. Chambers is uncertain whether he
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commented on Lane. Chambers testified at one point that
he did not. Chambers testified that Sewell and/or Allen
had told him that they already had previous knowledge
of Lane, and therefore they did not discuss Lane. Else-
where, Chambers testified that he "believes" he made a
statement about Lane, Meat Department Manager Dee
James, and Linda Sowell. Chambers told Sewell and
Allen that the performance of both Meat Department
Manager Dee James and Linda Sowell was excellent.
Chambers was asked by Sewell and Allen about Liles'
work record. Chambers responded that Liles had some-
what of an attendance problem , suggesting that he was
somewhat lazy. Chambers explained, "Not from the
point of missing but to he extent that maybe if he would
cut a finger, or something , he would extend his leave of
absence longer than it was necessary to be off." Accord-
ing to Chambers, he told Sewell and Allen that Liles
also lacked somewhat in "his quality as a journeyman
butcher at that time." Allen's testimony agrees with that
of Chambers concerning comments about Liles. Allen
testified Chambers said that Liles should be a qualified
journeyman meatcutter, but that he could not cut meat
like a journeyman meatcutter should be able to do. Ac-
cording to Allen, Chambers described James and Sowell
as both being excellent. Allen, like Chambers, could
recall no conversation regarding Larry Washington.
Allen testified Chambers stated that Ronny Smith was an
excellent meatcutter. Regarding Lane, the testimony of
both Sewell and Allen differs from that of Chambers.
According to Allen, Chambers said that Lane's produc-
tion was very slow. Sewell testified that Chambers made
the statement, "If I was buying the store, I wouldn't hire
him." This is discussed in greater detail below.
On the following day, 25 January, Chambers posted
the two letters to employees which had been drafted at
the meeting on the afternoon of 24 January. Chambers'
letter to employees advised them of the sale and of the
fact that Respondent would be hiring its own personnel
to staff the store. Chambers told employees that Re-
spondent would be at the store on 26 January to accept
applications and interview employees who might want
employment with Respondent. Respondent's letter in-
formed employees that applications for employment
would be accepted on 26 and 27 January between 9 a.m.
and 6 p.m.
Respondent assumed operation of the store on sched-
ule as called for in the purchase agreement, and it com-
menced operation on 28 January 1985.
On that same day, the sale of Chambers Big Star No.
52 to Respondent was closed at the offices of Malone &
Hyde as provided for in the purchase agreement. In ad-
dition to Chambers, Sewell, and Allen, the closing was
attended by Peter Pettit and Gerald Lewis, both of
Malone & Hyde.
About 31 January and 8 February 1985, the Union re-
quested Respondent to recognize it as the exclusive col-
lective-bargaining representative of the employees in Re-
spondent's meat department. Respondent has refused,
consistently maintaining that it is not a successor to
Chambers and has no bargaining obligation because it
did not hire a majority of employees represented by the
Union and because the meat department is no longer an
appropriate bargaining unit.
E. Applications and Interviews of Respondent's
Employees
Respondent received job applications from 85 individ-
uals between 26 January and 4 February 1985. Respond-
ent hired 62 individuals. Seventeen former employees of
Chambers were not hired by Respondent. Of these, 13
individuals, including Sowell and Washington, did not
apply. Of the four former employees of Chambers who
did apply and were not hired by Respondent, two were
journeymen meatcutters, Lane and Liles, while the other
two were from elsewhere in the store.
In early January 1985 Allen met with Meat Depart-
ment Manager James at a local restaurant in Collierville.
As Allen testified, the purpose of this meeting was to get
as much information as possible to find out about the
possibilities which the store offered. At this meeting, in-
dividual employees were not discussed. Approximately 3
or 4 days later, Allen had a second conversation with
James by telephone in which employees were discussed.
Allen asked James his opinion of the qualifications of
employees working in the meat department. According
to Allen, whom I credit, James told Allen in effect that
Lane was not the type of employee whom Respondent
should hire, that Lane suffered from low productivity.
Concerning Liles, James told Allen that despite his status
as a journeyman meatcutter, Liles was not really capable
of performing as a journeyman.
On 26 January, Respondent conducted a more formal
job interview with James. James did not actually fill out
an employment application with Respondent until 1 or 2
days later. James testified that he was again asked by
Allen for recommendations regarding meat department
employees. Allen's testimony conflicts somewhat with
James' in that Allen stated he did not discuss meat de-
partment employees with James during this interview.
However, I do not find this significant, for both Allen
and James testified credibly and without qualification
that either on or before 26 January Allen asked James
for recommendations regarding meat department em-
ployees. There appears to be some minor confusion by
Allen whether these recommendations occurred in the
formal interview on 26 January or whether they oc-
curred in conversations preceding that which have al-
ready been described. Further, Allen testified he in-
formed James during the interview on 26 January that
Lane and Liles would be replaced, but that they would
be interviewed anyway if they desired. James recom-
mended that Respondent hire both Sowell and Washing-
ton.
At the conclusion of his interview, Sewell and Allen
asked James to take applications back to the meat depart-
ment and give them to the employees in that department.
When he returned from his interview, James brought ap-
plications back with him. James placed the applications
on a table in the office of the meat department. James
first testified that he told each person in the department
to take an application, fill it out, and they would be
called for an interview. James then corrected himself and
SEWELL-ALLEN BIG STAR NO. 52
testified he might have told the employees they were ex-
pected to come forward to the front of the store for an
interview . Later, when James was asked about this again,
he testified that he could not recall whether he told em-
ployees they would be called for an interview or wheth-
er they were expected to seek out an interview on their
own. For reasons explained below regarding Sowell and
Washington, I do not find this determinative.
The General Counsel argues that Respondent attempt-
ed to discourage employees in the meat department from
applying for work as a result of a statement allegedly
made by James to employees to the effect that it would
be useless or a waste of time for them to apply with Re-
spondent . I fmd the testimony of the General Counsel's
witnesses on this point to be strained , inconsistent, and
contradictory. Lane testified that Liles requested James
to get applications for employees in the meat department,
and that in response to this request James told Liles that
he would get them but that he doubted "it would do any
good to make out an application." When Liles testified,
he was asked how it happened that James got applica-
tions for the employees in the meat department . Liles re-
plied, "I don't know, he just went up front and acquired
them ." Liles testified that after James brought applica-
tions to employees in the meat department , "We asked
him what was going on, about our contract and, you
know, just the basic information about what was fixing
to happen as far as the change of hands ." Liles testified
at that time James said "to just fill out the applications,
to turn them in and see what happens ." According to
Liles, "We asked him and he said he didn't think it was
going to do much good." Liles claims that James made
this statement during a group conversation in which "the
whole meat department employees, Ronny, Linda, Roy,
were there." Lane, however, claimed that the statement
was made during a conversation he simply overheard be-
tween James and Liles.
Lane claims that James' statement was overheard by
Linda Sowell who was standing only 3 feet away from
James at the time . Sowell testified to this same alleged
statement by James. In describing what happened when
James brought applications to the meat department, she
did not testify, as Liles had, that James stated it would
not do much good to apply. In fact, nothing in her de-
scription of the conversation at that time could be con-
strued as an attempt to discourage employees from ap-
plying for work with Respondent . Instead, Sowell de-
scribed a private conversation between her and James
when no one else was around in which Sowell alleges
that the following occurred:
He said that we could-I could fill it [the applica-
tion] out but I wasn't going to be kept, you know.
And I would be interviewed if I filled it out, I
would be interviewed. I did think I was going to be
interviewed but I can't say that he definitely said
that I wasn't going to be hired but that he let me
know , you know, that I wasn't in a roundabout
way. He wouldn't pinpoint it. I tried to get him to
say, you know, one way or the other, but he wouldn't.
[Emphasis added.]
1249
As is already evident, the testimony of Liles, Lane,
and Sowell is inconsistent and even contradictory. Liles
and Sowell may well have attempted to corner James
and get him to commit himself to assure them that they
would be hired by Respondent. James may well have
been reluctant to make such a commitment, particularly
because he was not in a position to make the commit-
ment himself and because he had already been told by
Respondent that it was not planning to hire Lane or
Liles; and from James ' reluctance Liles, Lane, and
Sowell may have independently concluded that there
was some question about whether they would be hired
by Respondent . James, however, credibly denied ever
telling any employees in the meat department that there
was no use for them to submit applications . James also
testified, "The day the applications were handed out I
urged each one to complete the application and be inter-
viewed." I credit James, and I find that James did not
tell Liles, Sowell, or any other employee in the meat de-
partment that there would be no point in applying for a
job with Respondent . I find that James in fact encour-
aged employees to submit applications to Respondent.
The General Counsel argues that as part of a predeter-
mined plot not to hire a majority of employees from the
meat department , Respondent did not call employees
from that department for interviews . Meat department
employees testified that throughout the day on 26 and 27
January they heard employees ' names being called on
the store intercom to come forward for interviews. It is
apparent from the record , however, that meat depart-
ment employees were merely surmising that the purpose
for which employees were called on the intercom was
for interviews . Throughout the normal workday, the
intercom is used extensively to call employees from one
part of the store to another. It is frequently used to call
employees to the front of the store to act as cashiers or
to assist in bagging merchandise . I fmd the record evi-
dence wholly insufficient to prove that other employees
working for Chambers were specifically called on the
intercom for interviews . Moreover , nothing prevented
meat department employees from seeking out an inter-
view, either during the workday while they were at
work or on their own time . Sewell and Allen set up an
area for interviewing near the front of the store on 26
and 27 January . Accordingly , I place no significance on
the fact that employees from the meat department were
not individually invited to come forward for interviews
with Respondent.
F. Roy Lane
Lane has worked as a meatcutter for 37 years. He had
been employed by Chambers for slightly more than 1
year when Chambers sold to Respondent . Respondent
states that it decided not to hire Lane because it had al-
ready formed a negative impression of Lane based on a
job interview Allen had with Lane a few years ago and
because of recommendations from both Chambers and
James that it not hire Lane. Allen testified that approxi-
mately 2 years prior to Respondent's purchase of Cham-
bers Big Star No. 52, Lane had been interviewed for a
job at Big Star No . 189 in Memphis . Allen testified that
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the interview had been conducted in the upstairs office
of the Hickory Hill Big Star No. 182 store. Lane denied
that he had ever interviewed with either Sewell or Allen
prior to Respondent's purchase of Chambers. Allen testi-
fied that the interview with Lane occurred after Lane
had worked at a store owned by Mel Hungate. Allen tes-
tified that during the interview, he was not impressed
with Lane and did not take an application from Lane.
I was not impressed by Lane's denial that such an
interview took place. I credit Allen over Lane. Hungate
corroborated Allen that Respondent called Hungate to
check on Lane's performance. If Allen had not inter-
viewed Lane, there would be no reason for Hungate to
have been called to check on Lane's performance. Hun-
gate's testimony tends to make Allen's testimony more
plausible. Further, Hungate testified credibly he told Re-
spondent Lane had quit his job with Hungate because
the meat department was having distribution, sales, and
profit problems which were in part due to Lane's per-
formance. Based on the mutually supportive testimony of
Allen and Hungate, I conclude that Allen did indeed
interview Lane as he testified sometime prior to Re-
spondent's purchase of Chambers. Further, I conclude
that, based on that interview and Hungate's report to Re-
spondent, Respondent had concluded that Lane was not
a desirable employee.
Allen testified that in addition to having formed his
own negative opinion about Lane based on the earlier
interview and report from Hungate, Respondent also re-
ceived negative reports from both Chambers and James.
As described above, Sewell testified that Chambers made
the statement, "If I was buying the store, I wouldn't hire
him [Lane]." As I have already noted, Chambers' testi-
mony regarding comments he made about Lane was in-
consistent. Chambers testified at one point that he had
not been asked about Lane and at another point that he
was sure he had made some comment, but he could not
remember what he had said. Sewell's testimony, on the
other hand, was very definite and certain. I credit
Sewell. I conclude Chambers is right that they did not
discuss Lane in any detail because, as Chambers testified,
Sewell and/or Allen told him they already had previous
knowledge of Lane. Chambers did comment, however,
"If I was buying the store, I wouldn't hire him." Fur-
ther, James testified credibly and in total agreement with
Allen that he had recommended to Respondent that
Lane not be hired.
In connection with Respondent's purchase of Cham-
bers, Lane sought out Allen for an interview on the
afternoon of 26 January. There is no contention that
during this interview Allen said anything that would sug-
gest an unlawful motive on Respondent's part for not
hiring Lane. Lane in fact admits that during the inter-
view with Allen, Allen told Lane that Respondent was
not going to hire Lane because Respondent wanted to
put its own crew in the store. According to Lane him-
self, Allen said, "They felt they ought to put somebody
in there they know could do the job." Rather than sug-
gesting an unlawful motive, Allen's comments to Lane,
as admitted by Lane himself, suggest Lane was not hired
simply because Respondent perceived him as unqualified
for the position. Considering the credible evidence, I
conclude that from Allen's own negative impression of
Lane from the earlier interview and the negative com-
ments received from both Chambers and James, Re-
spondent decided not to hire Lane based solely on his
job performance and for reasons totally unrelated to the
Union.
G. Robert Liles
Liles worked at Chambers Big Star No . 52 for ap-
proximately 5 years. He served a union apprenticeship
under the direction of Meat Department Manager Dee
James . Respondent states that it decided not to hire Liles
because of negative comments made about his ability by
both James and Chambers. Sewell testified that he re-
ceived a bad report about Liles from Chambers, that
Liles was not as experienced as he should be, and that
Liles was not as good a worker as he should be. As evi-
denced by Chambers' testimony, described above, Cham-
bers corroborates Sewell.
As also discussed above, Allen testified that in a tele-
phone conversation with Meat Department Manager
James during January, they discussed the abilities of indi-
vidual employees in the meat department . Allen testified
credibly that James said , "[Liles] was young and inexpe-
rienced and couldn't do the job of a meatcutter." James
substantially corroborates Allen's testimony . According
to James, whom I credit, he told both Sewell and Allen
that Lane and Liles "were a little less than efficient."
According to James, he also told Sewell and Allen that
"Liles had problems comprehending certain things." It is
apparent from the record that although Liles was given
the title of a journeyman meatcutter by Chambers, and
was paid accordingly pursuant to the collective-bargain-
ing agreement between Chambers and the Union, Liles
did not actually function as a journeyman meatcutter,
nor did he have the qualification or experience to do so.
Liles was used primarily to oversee and stock the
smoked meat cases . It is clear from James ' testimony that
he was asked by Sewell and Allen for his recommenda-
tions about employees to keep and changes to make in
order to make the meat department more efficient. It is
also clear that James recommended to Sewell and Allen
that they not keep Liles.
On the afternoon of 26 January, Liles approached
Sewell and Allen and requested to be interviewed for a
meatcutter position . Allen interviewed Liles. During the
interview, Allen told Liles that he would not be offered
a position. Liles claims that Allen said "he didn't think
he was going to need us-need me." Liles continued:
Well, he told me, you know , he told me that we did
not know how to play ball the way his crew knew
how to play ball and he wanted in a team that he
knew could play ball the way he wanted them to
play ball, you know, and we weren't qualified, he
thought, to do the job.
According to Liles, he then asked Allen if there was any
way Liles could keep his job. Allen replied that there
was not, that Respondent already had a crew to come in
and work, that he was sorry, and that he did not need
Liles' services. During Liles' testimony, I had the distinct
SEWELL-ALLEN BIG STAR NO. 52
impression that Liles was making up or manufacturing
evidence to support the General Counsel's case at two or
three very critical points . This is one of those points. I
do not credit Liles that Allen told him Liles and other
employees in the meat department would not be hired
because they did not know how to "playball." Liles
admits that Allen told him he was not going to be hired
because Allen aid not think he was qualified to do the
work. I am convinced that this is the only reason Allen
gave for not hiring Liles. Moreover, I conclude that it is
in fact the reason Respondent did not offer a position to
Liles. Prior to Liles' interview with Allen, Allen had
been told by both Chambers and James that Liles was
not a qualified journeyman meatcutter. James had recom-
mended that Liles not be hired. I conclude that it was on
the basis of these negative reports and recommendations
about Liles that Respondent decided not to hire Liles.
H. Linda Sowell and Larry Washington
Linda Sowell worked for Chambers as a meat wrapper
for more than 6 years at the time Chambers sold to Re-
spondent . For the last 2 years, Sowell worked as the
only meat wrapper in the department . In addition to
wrapping meat, Sowell trayed meat, made cube steaks,
took inventory, and worked the smoked meat trays.
Sowell was considered a good employee.
Larry Washington had worked for Chambers only
about 3 months when the store was sold to Respondent.
Washington apparently worked a shift that began in the
late afternoon at approximately 4:30 p .m. The record re-
flects little more about his work duties or capabilities,
but it is apparent that he must have been considered a
good employee because James recommended to Re-
spondent that he be hired.
The General Counsel contends that both Sowell and
Washington applied for work with Respondent but were
not hired . Respondent states that it never received appli-
cations from Sowell or Washington , and that if it had, it
would have hired both individuals. As might be expect-
ed, considerable record evidence is devoted to the appli-
cations of Sowell and Washington.
When James returned from his interview with Sowell
and Allen on the morning of 26 December, he brought
with him applications for other employees in the meat
department . Sowell testified initially that she was alone,
behind the meat counter, when James handed her an ap-
plication . Later in her testimony , Sowell stated that she
was with Smith , Liles, and Lane when she received her
application from James . Sowell testified that James told
all four employees that they could use James ' office to sit
down and fill out the applications immediately . Accord-
ing to Sowell , they did so, and the applications were left
lying together on the desk in James' office . Later that
morning, Liles moved the applications from the desk to a
table by the timeclock and coffee machine in the cutting
room. Liles testified he told James two or three times
that Assistant Store Manager Burcham had told him the
applications had to be turned in at the front of the store,
but James never offered to take them to the front of the
store for the employees . It is unclear why Liles might
think that James would assume the burden of returning
the applications. In any event, Liles testified that during
1251
his lunchbreak he took the stack of applications to the
front of the store and gave them to Assistant Store Man-
ager Burcham . Regarding this, Liles testified:
Q. [By General Counsel] Which applications did
you take to the front, Mr. Liles?
A. [By Liles] I took Ronny Smith's, Linda
Sowell's, Roy Lane's , and myself's applications.
Q. And what did you do with them?
A. I gave them to Randall Burcham up front.
Q. And he's the assistant store manager?
A. Yes, ma'am. I handed the applications to him
and he looked through all of them, you know, to
see if they were all there and they were.
He's the one, well, he told me that he was the
one to receive the applications and he would give
them to, you know, Mr. Sewell or Mr. Allen.
Q. Did he tell you what else would happen after
he got the applications, did he give you any other
instructions?
A. Yes, ma'am . He said that he would come back
to the market and get us when they were ready to
see us.
Liles impressed me as sometimes stretching the truth
and sometimes making up testimony when he thought
the need existed . Both his demeanor and his testimony
left me with the distinct impression that he was trying all
too hard to fill gaps that otherwise existed in the General
Counsel's case. Burcham denied even receiving the appli-
cations from Liles as well as telling Liles that employees
would be called to the front of the store for interviews. I
do not believe Liles that Burcham looked through appli-
cations that Liles might have given to Burcham , nor that
Burcham said he would come back to the meat depart-
ment and get employees when Sewell and Allen were
ready to see them . Liles may well have given applica-
tions to Burcham, but I am convinced that Burcham did
not look through them and that Liles himself does not
know which applications he may have turned in. If Bur-
chain in fact received applications , I am also convinced
that he did nothing more than add them to whatever
other applications might have already been turned in by
other employees.
It is clear that Liles did not turn in Washington's ap-
plication. Washington was scheduled to report to work
at 5 p .m. on 26 January . He came to the store about 4:30
p.m. in order to fill out an application. Washington testi-
fied that when he asked for an application at the front
desk where applications were being taken , he was told
that no more applications were being given out and that
he should return the following week. Washington admit-
ted that he was totally unable to identify who it was
who told him this. In any event, when Washington re-
ported to work in the meat department he learned that
James had gotten him an application . Washington initial-
ly testified that after he had filled out the application, he
"gave it back to James." Washington continued: "He
took it with his application and he say he was going to
turn it in with his application . That's the last I've seen of
the application ." Later, Washington testified somewhat
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
differently . Washington testified that after filling out the
application , "I put it right there on the desk, right with
his application." James credibly denied that he received
Washington's application after it was completed. James
testified that he does not know what might have hap-
pened to Washington 's application . I credit James. What-
ever may have happened to Washington 's application, it
is clear that James did not turn in the application, and
there is no evidence that Respondent ever received an
application from Washington.
Sewell testified that Sowell and Washington were not
hired solely because it did not receive applications from
them . James candidly testified that he recommended to
Sewell and Allen that both Sowell and Washington be
hired. Sewell and Allen acknowledged with equal
candor James' recommendation and state that Sowell and
Washington would have been hired if Respondent had
received applications from them . With only the limited
reservation discussed below, I credit Sewell and Allen.
Allen was asked by the General Counsel whether he
received applications from employees prior to interviews
he conducted with those employees. Allen replied,
"They brought them in with them ." Allen was then
asked again , "Did you receive any applications prior to
the interview?" Allen replied, "I don't think so." Allen
noted that he did not have any managers or assistant
managers through whom he might receive applications,
that at that time such people were employees of Cham-
bers. Allen testified he did not receive any applications
from employees through Chambers ' managers or assist-
ant managers. In later testimony , Allen again admitted
that he was not positive how he received the applica-
tions of Ronny Smith, Liles, and Lane . Lane testified
credibly that when he sought out Allen for an interview,
Allen already had Lane's application in his possession.
Exactly what happened to Sowell 's application is un-
known . I credit Respondent that neither Sewell nor
Allen ever received applications from Sowell or Wash-
ington . The limited reservation I have about Respond-
ent's position is why Sewell or Allen did not seek out
and solicit applications from Sowell and Washington in
view of the fact that James had specifically recommend-
ed that they be hired . It seems logical that in taking over
an existing store , a buyer would specifically invite appli-
cations from those employees who had been recommend-
ed to it by name . The most plausible answer lies in the
fact that during this 2-day period during which Respond-
ent was taking applications from and interviewing Cham-
bers' employees, Respondent was so busy interviewing
employees that it did not have time to personally seek
out and invite the applications . This is particularly plausi-
ble because Respondent received applications from and
interviewed approximately 50 of Chambers ' employees.
There were 13 Chambers ' employees who did not apply.
The number of people being interviewed and the number
of people who did not apply were both so large that Re-
spondent may well not have had time to seek out and so-
licit applications from individual employees . Moreover,
my limited reservation about Respondent's position is
considerably overshadowed by the questions that are
raised by the fact that neither Sowell nor Washington ac-
tively pursued their application by requesting an inter-
view with Sewell or Allen. It is their lack of assertive-
ness that has given rise to most of the troubling factual
issues in this case . Ultimately, the General Counsel's case
is based on a number of inferences that it would have me
draw against the Respondent. Such inferences are neces-
sary, however, only because of the lack of assertiveness
on the part of Sowell and Washington in pursuing an ap-
plication with Respondent. Under such circumstances, I
believe it is both unwise and unfair to draw such infer-
ences against Respondent unless the evidence convinc-
ingly supports them. Such convincing evidence is simply
not present in the instant case . The fact that meat depart-
ment employees were not individually called for inter-
views does not convince me of any unlawful intent. It is
not clear that other employees were called by name for
interviews. Sowell testified that she returned to the store
on 28 January and spoke to James about her application.
Rather than suggest that James evidenced some intent on
Respondent's part not to hire Sowell , James told Sowell
that she was needed . That presented a perfect opportuni-
ty for Sowell to then approach Sewell or Allen personal-
ly. However, she did not do so . Employees who sought
out Sewell and Allen were accorded interviews. There is
no reason whatsoever to believe that if Sowell or Wash-
ington had pursued their applications and sought an
interview that it would have been denied to them. Even
Liles and Lane, whom Respondent had decided not to
hire, were interviewed.
The General Counsel asks me to infer that Sowell's
and Washington's applications were conveniently mis-
placed by Respondent in an attempt to avoid hiring a
majority of Chambers' employees from the meat depart-
ment. In short, Sowell and Washington failed to take the
necessary and reasonable steps to express their interest in
employment with Respondent. Both Sowell and Wash-
ington knew that Respondent was interviewing prospec-
tive employees, and nothing prevented either from ap-
proaching Sewell or Allen personally . I credit Respond-
ent that if it had received applications from Sowell or
Washington, it would have hired them. Accordingly, I
conclude that Respondent 's failure to hire Sowell and
Washington was not based on any unlawful predetermi-
nation not to hire them to avoid having to recognize the
Union.
1. Stafford's Alleged Statement
Liles testified that during approximately May 1985 he
returned to the Collierville store and spoke to manage-
ment trainee Larry Stafford2 about Liles' employment
situation. According to Liles, Stafford told Liles that he
had known about Liles' termination the day before it oc-
curred. Liles testified that Stafford told him Stafford
heard managers talking in the office and had heard them
2 Stafford is responsible for the operation of the front end and mainte-
nance of the store's appearance. Each evening from approximately 6 until
11 p.m., he is the person of highest authority in the store over other em-
ployees. Neither the store manager nor the assistant store manager is reg-
ularly present at this time. Stafford has the authority to discipline em-
ployees; to send employees home, if necessary; and to authorize employ-
ees to leave early. Stafford assigns work to employees in the store. I find
Stafford to be a supervisor within the meaning of the Act.
SEWELL-ALLEN BIG STAR NO. 52
say that Liles and others in the meat department would
be terminated rather than hired by Respondent because
of the Union. For reasons more fully described below, I
find Liles' testimony more than a little suspect.
During examination by counsel for General Counsel,
Liles testified:
Q. [By Ms. Theiner] And do you remember what
you talked with Mr. Stafford about?
A. [By Liles] Well, we were talking about the sit-
uation with the job and that we were going to court
in May, that I hated that it happened and Larry
told me that he knew about it a day before, that he
knew we were going to be terminated in the
market.
Q. What else did he say?
A. He said that he was up in the office and heard
it.
Q. What did he say he heard?
A. He heard that I was going to be terminated
and a few other people in the market and he was in
the office when he heard it.
Q. Why were you going to be terminated?
MR. LINzY : Objection.
JUDGE McLEOD : Was anything else said and, if
so, by whom, in your conversation with Mr. Staf-
ford?
A. Okay, sir , he told me that he knew about it a
day before and that we were going to be terminated
and that was basically everything that he said about
the termination of our jobs, the day before the store
was sold.
Q. Do you recall anything he said as to your
being terminated?
A. Okay, we just talked , we just talked in the
usual manner, Larry said, "Well, take care of your-
self," and I, you know, I left shortly after that. I re-
member him, we talking about the-him telling me
about being terminated, that he knew about it, but the
other stuff was just common, you know, talk Nothing
considering [sic] much of nothing . [Emphasis added.]
Obviously not satisfied with this answer, the General
Counsel reexamined her witness as follows:
Q. [By Ms. Theiner] Mr. Liles, when you talked
with Mr. Stafford , what was the first thing that he
talked to you about?
A. [By Liles] About he was sorry that we'd lost
our jobs.
Q. And then what did he said [sic]?
A. Well, I said I was too-what he said. Well,
after I talked to him he said that he knew about it a
day before the store was sold.
Q. And then what did he say after that?
A. O.K. He told me that he was in the office the
day before and he heard the manager talking.
Q. And did he tell you what they said?
A. He told me that the market employees, myself
and the others, were going to be terminated, that
they were no longer going to use us due to the
Union. He did use the word union.
Q. Did he say anything else?
A. As far as the termination of our jobs?
Q. Yes.
A. No, ma'am.
Q. Did he say who was talking?
A. No, ma'am, he did not
Q. Did you ask him?
A. No, ma'am.
1253
It was clear from Stafford's demeanor and the lack of
spontaneity in his answer "due to the Union. He did use
the word union," that Liles' testimony had been re-
hearsed . It was as if Liles had dropped his most impor-
tant line, and then suddenly remembered it. Not only
does Liles' own testimony and demeanor belie its truth,
but I fmd it totally incredible that if Stafford had actual-
ly said this to Liles, Liles would not have asked who it
was that had made this statement. On cross-examination
by Respondent's counsel , Liles testified:
Q. [By Mr. Linzy] And would you tell us, please,
what you said and what he said and the order in
which it was said?
A. [By Liles] Okay, if I can just about put it in
the same way I told her . We greeted each other and
asked how we had been doing and I told Larry that
I hated that we lost our jobs and I wish we could
have stayed on. Larry said, "Yes," he knew, that
things were rough on me and I said, "Yes," and he
said , "Well, I knew about it a day before it hap-
pened." He said, "I was in the office and I heard
the managers talking," you know, that I was going
to be terminated.
Q. Is that the end of the conversation?
A. No, sir. We kept on talking and I asked him,
he knew about it a day before and he said , "Yes." I
said, "Was it just me?" and he said, "No," that he
had heard that they were going to terminate all of
us and I said , "Well, we go to court Monday and
maybe everything will work out right for us." I left.
I had a sick child, the only reason I went in the
store was because I saw Larry going into the store
as I was leaving Super D next door with some med-
icine for my child.
Q. And was that the end of the conversation?
A. Yes, sir, it was.
As can be seen from his testimony , on cross-examination
Liles again failed to include any reference to the Union
in the alleged statement by Stafford. I am convinced that
Liles did not remember that line during two out of three
versions of that alleged conversation for the simple
reason that it did not occur . Stafford testified that Liles
returned to the Collierville store two to three times after
his termination . Stafford recalled having a conversation
with Liles, but approximated its time to have been a
week or two after Respondent purchased the store. Nei-
ther Liles nor Stafford is certain of the timing of the
conversation , and I do not find that to be a significant
flaw in either's testimony . Stafford credibly denied tell-
ing Liles that he had overheard a conversation such as
that reported by Liles. Stafford confirms that during the
conversation Liles brought up his employment situation
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Respondent. Stafford testified that it was Liles who
brought up the subject of the Union as a possible reason
he was not hired by Respondent , and each time Liles did
so Stafford changed the subject by asking Liles about his
wife, who had just had a baby. Stafford's description of
the exact conversation with Liles is somewhat illogical,
but I am convinced he was telling the truth when he tes-
tified that he did not make the statements attributed to
him by Liles and that it was Liles who suggested that
Liles had not been hired because of the Union. I discred-
it Liles and find that Stafford did not say that employees
in the meat department had not been hired because of
the Union.
Analysis and Conclusions
As the General Counsel acknowledges , a successor
employer is under no obligation to hire any or all em-
ployees of the former employer. The selection process,
however, may not be influenced by discriminatory con-
siderations proscribed by the Act. Howard Johnson Co. v.
Detroit Local Joint Executive Board, 417 U.S. 249 (1974).
The General Counsel correctly argues that when all
other factors for finding a successorship are present, a
new owner's failure to hire its predecessor 's employees
will not defeat a fording of successorship if the employer
refused to hire the predecessor's employees because of
their affiliation with a union . Magnolia Manor Nursing
Home, 260 NLRB 377 (1982); C.J.B. Industries, 250
NLRB 1433 (1980).
Respondent has stated the matter simply but effective-
ly in its brief:
It is not unlawful for the employer to make deci-
sions about initial terms and conditions of employ-
ment where it is uncertain that the seller 's employ-
ees will constitute a majority of the purchaser's
work force. Howard Johnson Co., supra. Once it be-
comes clear that a majority of the purchaser's work
force will or will not be made up of the seller's em-
ployees, the legal result simply follows-bargain if
there is a majority of the seller's employees or do
not bargain if there is not a majority . NLRB v.
Burns Security Services, 406 U.S. 272 (1972). Should
the employer refuse to hire someone because of that
person's union activity or because that individual,
along with the employment of others, would give
rise to a bargaining obligation, that is unlawful ac-
tivity.
In their briefs, the Charging Party and Respondent
both acknowledge that the Board 's decision in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F .2d 899 (1st Cir.
1981), cert. denied 455 U.S. 983 (1982), applies in the
successor context . Accordingly , if the General Counsel
establishes a prima facie case that unlawful motivation
was the reason for the successor not hiring the predeces-
sor's employees, the burden of proof shifts to the succes-
sor to prove that the predecessor's employees would not
have been hired even in the absence of protected con-
duct.
In the Charging Party's brief, counsel acknowledges:
"The case at hand is characterized by an abundance of
circumstantial rather than direct evidence and a lack of
much direct evidence ." In fact, even the circumstantial
evidence is far from abundant . In the present case, I find
no credible evidence that Respondent purposely took
steps merely to avoid a bargaining obligation with the
Union.
The General Counsel and the Charging Party would
have me infer not only animus but an unlawful motiva-
tion on Respondent's part in the present case for not
hiring Lane , Liles , Sowell , and Washington as a result of
a prior decision in which Sewell -Allen Big Star, Inc. was
found to have engaged in several unfair labor practices.
Sewell-Allen Big Star, JD-(ATL)-38-84 (May 4, 1984). In
that decision , Sewell-Allen Big Star , Inc., as well as Pic
Pac Foods, Inc. and Giant Foods , Inc., subsidiaries of
Malone & Hyde , Inc., along with several other respond-
ents, were found to have unlawfully withdrawn recogni-
tion from the Union . Sewell-Allen Big Star, Inc. d/b/a
Big Star No. 189 and Sewell -Allen Big Star, Inc. No. 2
d/b/a Big Star No. 103 were individually found to have
solicited employees to withdraw from the Union ; solici-
tied employees to abandon the Union; threatened em-
ployees if they continued to support the Union ; interro-
gated employees concerning whether they had decided
to abandon the Union; and solicited employees to bring
grievances to the employer rather than to the Union.
Counsel for the Charging Party correctly argues that
the Board may properly use evidence from a prior unfair
labor practice proceeding as evidence of present union
animus . I have considered the prior decision. I note too,
however , that there is little or no evidence of animus in
the present case and no evidence whatever that Re-
spondent has engaged in any unfair labor practice re-
motely similar to those enumerated above. In short, even
if I were to fmd that Respondent harbored some animus
against the Union in the present case, I would and do
nevertheless fmd that Respondent did not employ Lane,
Liles, Sowell, and Washington for reasons unrelated to
the fact that they had been represented for purposes of
collective bargaining by the Union when they were em-
ployed by Chambers.
The General Counsel contends that during the sale by
Chambers to Respondent Malone & Hyde acted as Re-
spondent 's agent. The complaint was specifically amend-
ed to include such an allegation. Over the objection of
Respondent's counsel , I allowed considerable evidence to
be introduced on that issue based on what I now realize
was the mistaken belief that resolution of that issue had
some direct bearing on the substantive unfair labor prac-
tice allegations of the complaint . The facts bearing on
this issue have been discussed in detail above . In the por-
tion of the General Counsel 's brief devoted to argument,
there is a very brief section directed to the contention
that Malone & Hyde acted as agent of the Respondent.
Both the General Counsel and the Charging Party, how-
ever, failed to articulate in what way the substantive alle-
gations of the complaint are advanced even if I find that
Malone & Hyde did act as an agent for Respondent in
the purchase of Chambers Big Star No. 52 . Be that as it
may, I find that Malone & Hyde did not act as an agent
for Respondent in the purchase of Chambers Big Star
SEWELL-ALLEN BIG STAR NO. 52
No. 52 but rather acted in its own interest . Chambers
subleased the Collierville store from Malone & Hyde, as
Respondent does now. The prior decision in Sewell Allen
Big Star, supra, notes the testimony by Joseph R. Hyde,
president of Malone & Hyde, that "Malone & Hyde
owns rights to the name Big Star on a territorial basis."
Once Chambers decided to sell the Collierville store, it
was to Malone & Hyde 's own advantage to help Cham-
bers find a suitable buyer, one who would continue the
business in a profitable manner . By doing so, Malone &
Hyde was advancing its own business interests by guar-
anteeing a continued source of sales for itself . In order to
advance its own business interests, Malone & Hyde acted
as an intermediary between Chambers and Respondent
and assisted in the preparation of various documents nec-
essary to the sale . Under such circumstances, Malone &
Hyde can hardly be said to be an agent of Respondent.
Malone & Hyde's relationship with Respondent is one of
supplier to customer , not one of agent to principal. I
shall therefore dismiss that allegation of the complaint.
For the reasons already stated at length above, I fmd
that Lane , Liles, Sowell, and Washington were not of-
fered employment with Respondent for reasons unrelated
to the fact that they had been represented by the Union
while employed by Chambers. In view of my conclu-
sions, I find it unnecessary to reach Respondent's argu-
ment that the meat department no longer constitutes a
unit appropriate for purposes of collective bargaining or
the General Counsel 's argument that a visitatorial provi-
sion should be made a part of the appropriate remedy.
Accordingly , I shall recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Sewell-Allen Big Star, Inc. d/b/a
Sewell-Allen Big Star No. 52 is an employer engaged in
1255
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Food and Commercial Workers Local 1529,
AFL-CIO-CLC is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
3. Malone & Hyde, Inc. did not act as agent of Re-
spondent in connection with Respondent 's purchase of
Chambers Big Star No. 52.
4. Respondent did not refuse to hire Roy Lane,
Charles Liles, Linda Sowell , or Larry Washington be-
cause of their union activities or because they were rep-
resented for purposes of collective bargaining by the
Union while they were employed by Chambers Big Star
No. 52, but rather Respondent failed to hire those indi-
viduals for lawful reasons . For lawful reasons, Respond-
ent did not hire a majority of employees in the appropri-
ate collective bargaining unit within the meat department
at Chambers Big Star No . 52, and therefore Respondent
is not obligated to recognize or bargain with the Union
as the exclusive representative of its employees in that
same bargaining unit.
5. Respondent has not violated Section 8(a)(1), (3), or
(5) of the Act as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
eds
ORDER
The complaint in Case 26-CA- 11018 is dismissed in its
entirety.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.