Thriftco Stores

National Labor Relations Board - Board Decisions

Aug 22, 1973

205 N.L.R.B. 666 (N.L.R.B. 1973)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Klauser Corporation d/b/a Thriftco Stores and Retail
Store Employees Union , Local No. 367, affiliated
with Retail Clerks International Association, AFL-
CIO. Case 19-CA-5984
August 22, 1973
DECISION AND ORDER
BY CHAIRMEN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 24, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding . Thereafter , the General Counsel filed
exceptions and a supporting brief , and the Respon-
dent filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBER JENKINS, dissenting:
Contrary to my majority colleagues, I would find
that when employee Richard Kirkwood attempted to
assert his right to be paid the contract rate for the
work he was performing, Respondent first unlawfully
threatened him with discharge and then later discrimi-
natorily removed him from the contract unit in order
1 We have noted our colleague' s dissent , but are persuaded that the Admin-
istrative Law Judge's findings are fully supported by the record and that they
compel the conclusions he reached For example, the dissent finds
Respondent 's claim that Kirkwood was incapable of performing the full
scope of the work of senior apprentice clerk to be "specious " But, as the
Administrative Law Judge points out, there is record evidence to support it
Two managers had so advised General Manager McGowan, Kirkwood had
failed to follow instructions with respect to routine tasks, and, despite instruc-
tion, Kirkwood was not able properly to place incoming merchandise at the
proper locations This evidence was not, as the Administrative Law Judge
pointed out, controverted by either General Counsel or the Charging Party
Thus we have concluded that on such issues as this we are prepared to accept
the evidentially supported findings of the Administrative Law Judge rather
than the view of the facts advanced by our colleague
to avoid paying him the wage rate to which he was
entitled.
Kirkwood had two separate periods of employment
at Respondent's Villa Plaza store. The first occurred
while Kirkwood was attending high school and his
employment was arranged pursuant to a special edu-
cation program conducted by the high school. Under
this program, Kirkwood was permitted to work part
time in the morning during school hours with the
initial understanding that he would not be paid for his
work. At the time these arrangements were being
made, Respondent's store manager, Rinehart, was ap-
parently told by school officials that Kirkwood need-
ed exposure to work, but was not capable of becoming
an experienced retail clerk. In any case, Respondent
hired Kirkwood in December 1969 and assigned him
to the performance of work which was covered under
a collective-bargaining agreement between Respon-
dent and the Union, although the Union was never
notified of Kirkwood's employment. After working
approximately 2 months without pay, Kirkwood
asked that he be paid a salary and Respondent started
paying him $1.60 an hour, which was far below the
contract rate for bargaining unit work. Kirkwood
graduated from high school in June 1970, but he con-
tinued to work at the Villa Plaza store until August
1970, when he voluntarily terminated his employment
to attend vocational school.
Kirkwood again sought employment at the Villa
Plaza store in the summer of 1971, after he had decid-
ed to quit vocational school. He was rehired in August
1971, and returned to his former duties, working ap-
proximately 20 hours each week at $1.75 per hour. In
September 1971, Kirkwood requested more work and
his hours were increased to approximately 31-1/2
hours per week. Some time in the early part of 1972,
Kirkwood learned, apparently for the first time, of the
pay scales set forth in the collective-bargaining agree-
ment between the Respondent and the Union. Realiz-
ing that he was being paid a wage rate which was
considerably below the contract rate for such work,
Kirkwood made several requests for a pay increase
with no results. Finally, in April or May 1972, Kirk-
wood asked Kingsberry, the new manager of the Villa
Plaza store, about his previous requests for more mon-
ey. Kingsberry replied that he had not considered that
request and Kirkwood then asked if he could join the
Union. Kingsberry told Kirkwood that if he joined
the Union, Respondent would have to discharge him
since it could not afford to employ him.
Thereafter, Kirkwood complained about his wage
rate to the Union and on June 8, 1972, he filed a
written grievance, which alleged, in substance, that he
was performing work covered by the collective-bar-
gaining agreement and was being paid below the con-
205 NLRB No. 120
KLAUSER CORPORATION
tract scale of $4 an hour for senior apprentice clerk.
Nine days later, on June 17, 1972, Store Manager
Kingsberry informed Kirkwood that he was being
transferred to Respondent's Lake Crest store because
of a financial need to cut back on the number of
employees. Respondent's Lake Crest store was not
covered under the collective-bargaining agreement
between Respondent and the Union. In his new as-
signment, Kirkwood performed virtually the same
work that he had been doing at the Villa Plaza store
and his rate of pay remained at $1.75 per hour. A few
days after his transfer to the Lake Crest store, Kirk-
wood had a conversation with Respondent's general
manager, McGowan. During this conversation, Mc-
Gowan asked Kirkwood to "call the Union off," and
promised that if Kirkwood did this, he (McGowan)
would help him get a better job in one of
Respondent's stores. Kirkwood agreed to consider the
offer, but later he informed McGowan that he had
decided not to "call off" the Union. On June 26, 1972,
McGowan offered Kirkwood the choice to two other
jobs, both of which were outside the coverage of the
collective-bargaining agreement. Kirkwood elected to
take the maintenance job offered at the Villa Plaza
store which provided for 16 hours of work a week at
$2.50 per hour.
In my judgment, these facts speak for themselves.
There is no evidence that at the time Kirkwood was
rehired, Respondent was misled into believing that he
was still a participant in the high school special educa-
tion program. For that matter, there is also nothing in
the collective-bargaining agreement which would per-
mit Respondent to hire students enrolled in special
education programs. Likewise, there is no evidence
that the Union was even aware of Kirkwood' s initial
employment or his reemployment, much less that they
authorized a special exemption in Kirkwood's case.
Thus, Kirkwood's status at the time of his reemploy-
ment certainly must be considered as that of a regular
employee. Further, it is undisputed that Kirkwood
was performing work covered under the collective-
bargaining agreement, but at a wage substantially be-
low the contract rate. The main thrust of
Respondent's defense to these unfair labor practice
charges is the claim that Kirkwood was incapable of
performing the work of senior apprentice clerk, the
classification to which he was entitled under the col-
lective-bargaining agreement, and thus Respondent
was forced to transfer him outside the bargaining unit.
To me, such a claim is specious. Respondent was
perfectly satisfied with Kirkwood's performance of
unit work when it could obtain his services for $1.75
an hour. Kirkwood is no less competent because Re-
spondent may now be required to pay him the higher
contract rate for the same work.
667
Kirkwood had the right to insist on being paid the
contract rate for the work he was doing, and admit-
tedly in asserting such a contract right, Kirkwood was
engaging in protected concerted activities. Respon-
dent attempted to discourage Kirkwood from engag-
ing in such activities by first threatening to discharge
him and later discriminatorily transferring him out of
the contract unit. Such a response is plainly violative
of our Act and I would so find.'
2 Bunney Bros Construction Company, 139 NLRB 1516
DECISION
STATEMENT OF THE CASE
JERROLD H . SHAPIRO , Administrative Law Judge: The
hearing in this case held on December 12, 1972, is based
upon charges filed by the Union named above on August
4, 1972, and a complaint issued on October 17, 1972, on
behalf of the General Counsel of the National Labor Rela-
tions Board, herein called Board, by the Acting Regional
Director of the Board, Region 19. The complaint alleges
that Klauser Corporation d/b/a Thriftco Stores, herein
called Respondent or the Employer, has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the National Labor Relations Act, herein called the Act.
Respondent filed an answer denying the commission of the
alleged unfair labor practices.
Upon the entire record,' from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Klauser Corporation d/b/a Thriftco Stores is a corpora-
tion organized under the laws of the State of Washington
where it operates retail grocery stores from which it annual-
ly receives gross revenues exceeding $500,000 and for which
it annually purchases supplies originating from outside the
State of Washington valued in excess of $50,000. The Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local No. 367, affiliated
with Retail Clerks International Association , AFL-CIO,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
1 The transcript of the record is hereby corrected in accordance with
General Counsel's unopposed Motion To Correct Transcript
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE QUESTIONS PRESENTED
There are two ultimate questions framed by the plead-
ings.
1. Whether Respondent's store manager Kingsberry told
employee Kirkwood that if he joined the Union, the Re-
spondent could not afford to employ and would discharge
him. If this statement was made, did the Respondent violate
Section 8(a)(1) of the Act.
2. Whether in violation of Section 8(a)(1) and (3) of the
Act the Respondent transferred Kirkwood from one store
to another and changed his job duties from retail clerk to
janitor because Kirkland had grieved to the Union about
Respondent's failure to pay him the hourly rate of pay
called for by the Respondent's collective-bargaining agree-
ment with the Union.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Government's Case
Respondent operates several retail grocery stores in the
State of Washington including its Villa Plaza store located
in Pierce County. The employees employed in this store,
commonly known as retail clerks, are represented by the
Union for purposes of collective bargaining in a multi-em-
ployer bargaining unit composed of employers, including
Respondent, who do business within the geographical con-
fines of Pierce County. The most recent multiemployer col-
lective-bargaining agreement which covers the Villa Plaza
store was negotiated on behalf of the employers by Allied
Employers, Inc., an employer association, and is effective
from April 1, 1971, until April 1, 1974. The agreement cov-
ers all of the employees who handle and sell merchandise
at the Villa Plaza store, between 20 and 25, and contains the
standard union-security provision which requires unit em-
ployees to join the Union after 30 days of employment.
Richard Kirkwood, the alleged discriminatee, began
work at the Villa Plaza store in December 1969 at which
time he was a high school student enrolled in a special
education program. Briefly stated under this program the
school places the student on a job during normal school
hours without pay for which he receives school credit. It was
pursuant to such a program that Kirkwood was initially
employed in December 1969.
Kirkwood was employed at the Villa Plaza store from
December 1969 until August 1970 at which time he volun-
tarily terminated his employment. He performed bargaining
unit work: "Bagged" and carried out groceries for custom-
ers; Clean up work, i.e. swept and hosed down sidewalk in
front of store before it opened;' and, Worked in the back
room checking in deliveries, i.e. checking the supplies deliv-
ered against the invoices to make sure each item had been
delivered. He worked from 8 a.m. to 12 p.m. on Monday
through Friday, the high school releasing him from school
for work. For the first 2 months he received no pay but then
asked store manager Samuel Rinehart if he could get paid.
Rinehart went to his superior, general manager Michael
2 The testimony of union representative Hayes that "light housekeeping
duties" performed by all clerks is bargaining unit work is undisputed
McGowan, and told him that even though students em-
ployed under the special education program did not usually
get paid, that Rinehart felt the Employer should compen-
sate Kirkwood for his work as he was doing a fine job and
it would give him more incentive and help him out financial-
ly. McGowan stated that if Rinehart was able to work the
payment to Kirkwood into the portion of the store's budget
allocated to labor, he could pay Kirkwood. Rinehart begin-
ning in or about February 1970 paid Kirkwood the mini-
mum wage of $1.60 an hour which he continued to receive
until he terminated his employment. Kirkwood graduated
from high school on June 6, 1970, and thereafter continued
to work at the Villa Plaza store keeping the same hours,
receiving the same pay, and performing the same work.
Kirkwood terminated his employment in late August 1970
for the reason that he had enrolled at the Clover Park Voca-
tional School where he received instruction in the laundry
and drycleaning program. Kirkwood explained to Rinehart
that he was quitting work because he was enrolling in this
school.
Kirkwood dropped out of the vocational school on June
13, 1971, and thereafter on a number of occasions asked
assistant manager Grant Smith if there were any job open-
ings at the Villa Plaza store. Smith said no. Thereafter, on
August 11, 1971, store manager Rinehart over the phone
contacted Kirkwood and asked him if he was available for
work, explaining that the employee who checked the sup-
plies delivered to the store against the delivery invoices had
been terminated. Kirkwood accepted and began work the
next day, August 12, 1971. Kirkwood initially worked only
20 hours a week from 8 a.m. to 12 p.m. Monday through
Friday. In late September 1971, however, at his request, he
was given additional hours and from that time worked 32-
1/2 hours each week, Monday through Friday, from about
8 a.m. to 3 p.m. with 1/2 hour off for lunch. Kirkwood did
substantially more than just check in supplies, in fact over
50 percent of his time was spent bagging and carrying out
groceries to customers' automobiles. He also did light
housekeeping work, swept and hosed down the sidewalk in
front of the store, and on occasion stocked shelves.
Kirkwood was reemployed at the hourly rate of $1.75.
Thereafter, he made an unsuccessful attempt to get an in-
crease in pay under the following circumstances. In or about
February 1972, Kirkwood learned about the Union and its
collective-bargaining agreement covering the retail clerks
and determined he was not receiving the rate of pay called
for by this agreement. This was true. Accordingly, in or
about February 1972, Kirkwood asked store manager Ger-
ald Kingsberry 3 for a raise in pay. Kingsberry stated he
would consider the request. In about April or May 1972,
Kirkwood asked Kingsberry if he had considered his re-
quest for more money. Kingsberry said no, whereupon
Kirkwood asked if he could join the Union. Kingsberry
answered if Kirkwood joined the Union, the Respondent
could not afford to employ Kirkwood and would have to
discharge him. The findings in this paragraph pertaining to
Kirkwood's request for more money and Kingsberry's re-
plies are based upon Kirkwood's credible testimony. I have
3 Kingsberry became the manager of the Villa Plaza store in late August
1971 replacing Rinehart who left the Respondent's employ
KLAUSER CORPORATION
rejected the testimony of Kingsberry. Of the two, Kirk-
wood, while testifying on this particular matter, impressed
me as the more credible witness. Also, the reliability of
Kingsberry's testimony relating to Kirkwood's request for
money was tarnished by Kingsberry's false testimony that
in February 1972 he granted Kirkwood's request for more
money and increased his hourly rate of pay from $1.75 to
$2. Respondent's payroll records show no such increase but
corroborate Kirkwood's testimony that he received no more
than $1.75 an hour.
Kirkwood, denied an increase in pay, complained to the
Union and on June 8, 1972, met with Ronald Hayes, the
Union's grievance director, and filed a written grievance
which in substance alleged that he was doing bargaining
unit work and not being paid the rate of pay called for by
the Union's contract with the Respondent. Hayes indicated
that the Union would process Kirkwood's grievance.
Shortly after June 8, a union business representative,
Charles Edmonds, informally advised Respondent' s general
manager, McGowan, that the Union intended to process a
grievance over Kirkwood's employment and advised Mc-
Gowan to check into the matter. On June 14, 1972, Mc-
Gowan received a copy of a letter from the Union addressed
to Allied, the Employer's bargaining representative, griev-
ing over Respondent' s treatment of Kirkwood. In pertinent
part the letter stated:
We are in receipt of a grievance from Mr. Richard
Kirkwood, a current employee of the Klauser Corpora-
tion, Tacoma, Washington. Mr. Kirkwood advises that
he was originally hired in August of 1971 and works an
average of approximately 32-1/2 hours per week. Mr.
Kirkwood, whose job duties include those of Courtesy
Clerk, Backroom Man, and Stocker, is presently being
paid $1.75 per hour. When Mr. Kirkwood questioned
his store manager, Gerald Kingsbury, [sic] relative to a
wage adjustment and Union benefits, Mr. Kirkwood
was told that the Company could not afford any in-
creases, and further, that if Richard was to contact the
Union regarding the matter, he would be fired immedi-
ately.
In accordance with the terms of the current collective
bargaining agreement, we request that Mr. Kirkwood
be immediately advanced to his proper classification
(Senior Apprentice Clerk) and be made whole for all
wages lost as a result of the Employer's failure to ob-
serve the Union Contract... .
On Saturday, June 17, 1972, Kingsberry notified Kirk-
wood that effective Monday, June 19, he was transferred
from the Villa Plaza store to the Respondent's Lake Crest
store, told Kirkwood that the decision to transfer him had
been made by general manager McGowan and that the
reason for the transfer was, "to cut back on employees, they
had to make up some money." The Lake Crest store is
outside the Union's geographical jurisdiction and it is not
located within the geographic boundary of the multiem-
ployer collective-bargaining agreement , Pierce County.
On Monday, June 19, 1972, Kirkwood began work at the
669
Lake Crest store and remained there for 4 days, June 19
through June 22, worked from 8 a.m. to 5 p.m. doing ba-
sically the same work which he had been doing at the Villa
Plaza store and received the identical hourly rate of pay. It
took him 20 more minutes to get there from home compared
to Villa Plaza.
On Wednesday, June 21, the Union's grievance director,
Hayes, and its executive director, Rich, met with
Respondent's general manager McGowan and discussed
the Union's grievance, namely, that Kirkwood be made
whole for all wages lost by the Respondent's failure to ob-
serve the contract and that he immediately be advanced to
the contractual classification of senior apprentice clerk
which at that time paid $4 per hour. McGowan in response
told the union representatives that Kirkwood was not capa-
ble or able to perform the duties of a retail clerk, that
Kirkwood was a student enrolled in a special educational
program who did not have the aptitude to do the work of
a retail clerk, that the Respondent was helping Kirkwood
and if the Union pursued its claim, McGowan would have
to lay Kirkwood off. The foregoing is based on Hayes'
undemed testimony. Hayes first testified these remarks were
all that he recalled was said by McGowan. Hayes was then
asked what the response of the Union's representatives
(Hayes and Rich) was and answered, "we advised McGow-
an that we would check it out." Counsel asked, "check what
out" and Hayes testified that McGowan had said Kirkwood
was not working as a retail clerk but had been employed
strictly as a janitor and that was what the union representa-
tives were going to check out. I do not credit this testimony
which was not corroborated by Rich. I realize it was not
denied. However, I received the impression from the man-
ner in which Hayes testified on this point that the testimony
was contrived. This belief is reinforced by the record as a
whole. There is no evidence that the Union's representatives
checked out the allegation supposedly made by McGowan
that Kirkwood had performed only janitorial work. To the
contrary, the record shows that the investigation conducted
by the Union was aimed solely at discovering whether, as
McGowan claimed, Kirkwood was enrolled as a student in
a training program and whether he was capable of doing the
work of a retail clerk. Finally, the letter from Hayes to
McGowan dated June 27 summarizing the results of the
Union's investigation makes no mention of any alleged
claim by McGowan that Kirkwood had been employed
solely as a janitor. Based on the foregoing, I find that Mc-
Gowan at the meeting of June 21 did not contend that
Kirkwood had been employed solely as a janitor.
On Thursday, June 22, Kirkwood, who as described
above had been transferred to the Lake Crest store on June
19, was notified to report to the Company's Parkland store
the next day to meet with McGowan. They met on June 23
and McGowan stated he wanted "to help" Kirkwood. Kirk-
wood, who was planning on getting married in the near
future, asked if he could take time off from work to get
marred. McGowan said "yes." McGowan asked Kirkwood
to call the Union off of his back and stated if Kirkwood did
this, that McGowan would help him get a better job in one
of the Company' s stores. Kirkwood agreed to consider the
matter.
Kirkwood considered McGowan's proposition and on
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either Saturday, June 24, or Sunday, June 25, returned to
McGowan's office and told McGowan that he had decided
not to call off the Union. Thereafter, McGowan notified
Kirkwood that he wanted to meet with him again, and they
met on or about Monday, June 26, at which time McGowan
told Kirkwood he wanted to employ him as a janitor for 3
nights at one store and 2 days at another. Kirkwood replied
he would think about the offer. He notified McGowan 2
days later he would accept the day work, whereupon Mc-
Gowan told him to report to the Villa Plaza store. On Wed-
nesday, June 28, Kirkwood reported to the Villa Plaza store
at which time manager Kingsberry told him he would be
doing maintenance work at the store for 4 days a week, 4
hours a day, at the rate of pay of $2.50 per hour. After taking
time off for his honeymoon, Kirkwood began work Mon-
day, July 10, and is employed doing only maintenance-type
work (cleaning up) 4 days a week, 4 hours a day, at $2.50
per hour. This type of work is not covered by the union
contract.
On July 10, 1972, Hayes using the phone told McGowan
that the Union, as previously stated in its letter dated June
27, intended to press Kirkwood's grievance. McGowan took
the position that the Union had not checked out the matter
thoroughly and indicated the Company would fight the
grievance, causing the Union to spend its money and
warned that if the Union did pursue the matter, that Kirk-
wood would be laid off because of an economic cutback.
B. The Respondent's Case
Respondent's case-in-chief must be viewed in the context
of the provisions in the collective-bargaining agreement
which pertain to job classifications and rates of pay. The
agreement with the Union contains one basic job classifica-
tion, "clerk." For each 3 months of experience, up to 1 year,
an employee covered by the agreement automatically re-
ceives an increase in his hourly rate of pay. An employee
with 1-year experience automatically arrives at the top of
the wage scale,' is classified as a "journeyman clerk" and is
paid $4.57 per hour. There is one exception to this scheme
of things, employees classified as "courtesy clerks." A cour-
tesy clerk, as defined in the contract, must be under 18-1/2
years of age and work less than 24 hours a week. The em-
ployees meeting this standard acquire no seniority as regu-
lar employees and the Employer is allowed to pay them
$2.42 per hour. In short, under the contractual scheme of
things, the Respondent, once an employee is employed,
must make sure that the employee has the aptitude and
ability to learn the more complicated unit work such as
operating a cash register or using the order code system in
stocking shelves. It does not make good business sense for
the Respondent to pay permanent employees the top rate of
pay ($4.57 an hour) for doing such menial tasks as "box
boy" work. General manager McGowan in this regard testi-
fied that when a courtesy clerk reaches the age of 18-1/2,
the Respondent in its normal course of business decides
whether the employee is qualified for promotion and if not
immediately terminates the employee to prevent the em-
4 There is one higher classification which is not, however, relevant to this
case
ployee from becoming a permanent unit employee whose
rate of pay would be automatically increased as the requisite
number of hours of work experience were acquired under
the contract. It is in this context that the transfer and change
of Kirkwood's job duties by Respondent must be judged.
Kirkwood when he began work for Respondent in De-
cember 1969 was 18-1/2 years old and a high school student
enrolled in a special education program in contrast to the
regular study program. The Union's executive secretary,
Rich, testified that the special education program in which
Kirkwood was enrolled is "for the people [who] are not quite
up with the school." The program attempts to provide expe-
rience in a work environment for a student who has a limit-
ed aptitude for the usual high school curriculum. The
student is placed by the school on a job during normal
school hours for which he receives credit toward his diplo-
ma.
Kirkwood's initial employment by the Respondent took
place under the following circumstances. A teacher, Mr.
Hope, at Kirkwood's high school notified Store Manager
Rinehart that he had a student, Kirkwood, who needed
work experience. Hope explained to Rinehart that Kirk-
wood was in the school's special education program and
was available for employment in the morning during school
hours and there would be no pay involved. He specifically
told Rinehart that Kirkwood needed exposure to work but
was not capable of becoming an experienced retail clerk,
stating that he did not believe Kirkwood had the aptitude
to learn how to handle a cash register. Nevertheless, Hope
stated that Kirkwood needed exposure to a work situation,
pointed out that the Respondent at one of its other stores
was using students who like Kirkwood were enrolled in the
special education program, and asked Rinehart to take on
Kirkwood. Rinehart told Hope to have Kirkwood come for
an interview. At the interview Rinehart, impressed by
Kirkwood's appearance and eagerness to learn, employed
Kirkwood for part-time work in the morning during school
hours with the understanding that he would not be paid.
There is no evidence or contention that Rinehart employed
Kirkwood to fill a specific job vacancy.
Briefly stated, I find that Respondent initially hired Kirk-
wood primarily as a favor to the high school in order to give
Kirkwood work experience in connection with the school's
special education program in which Kirkwood was enrolled.
If Kirkwood had not been connected with this education
program, Rinehart testified he would not have employed
him, "because I would not feel he was capable of being a
regular retail clerk." I credit this testimony. The circum-
stances surrounding Kirkwood's hire by Rinehart, particu-
larly Hope's comments to Rinehart, lends support to this
testimony. Also, Rinehart, who is no longer employed by
Respondent, was an impressive witness. Rinehart did admit
that Kirkwood was a good worker during his employment
under Rinehart's supervision. However, as described earlier
in the decision, Kirkwood for the most part performed the
least skilled jobs. In this regard, Rinehart testified that,
based on his observation of Kirkwood, "I [didn't] think he
[was] capable of carrying on the duties that a retail clerk
must do, such as running the checkstand [referring to the
cash register], giving change. Sometimes you get into a situ-
ation where you could become very frustrated, and I don't
KLAUSER CORPORATION
think [Kirkwood] is capable of handling that situation."
Rinehart's opinion is corroborated by the testimony of his
successor, Kingsberry , who testified that based upon his
observation of Kirkwood at work that it was his opinion
that Kirkwood was not capable of progressing from the
menial unitjobs into the more skilledjobs, including the job
of cashier.
The decision to transfer Kirkwood out of the bargaining
unit was made by General Manager McGowan, whose testi-
mony regarding his motive for engaging in this conduct is
not controverted by the record as a whole. Also, when he
gave this testimony he appeared to be telling the truth.
McGowan testified that he transferred Kirkwood out of the
bargaining unit to the Lake Crest store and then changed
his duties from unit work to nonunit janitorial work because
he wanted to try to find a position for Kirkwood that was
commensurate with his ability and aptitude. McGowan be-
lieved that Kirkwood had neither the aptitude nor ability to
satisfactorily perform the tasks of a journeyman clerk, a
classification which Kirkwood would automatically be enti-
tled to if he continued in the bargaining unit.5 McGowan
testified Kirkwood did not have the ability to satisfactorily
perform the duties of a cashier or to satisfactorily restock
shelves using the Employer's order code system. McGowan,
at the hearing, explained, "if you were to ask [Kirkwood]
today, if a lady brought up ajar of baby food that was eight
for ninety six cents and she brought up one how much
would you charge her, brought up two what he would
charge her, or three, you would find that he would not be
able to perform that." His opinion that Kirkwood lacked
the ability and aptitude to satisfactorily fill the position of
a journeyman clerk, McGowan testified, was based on: (1)
Manager Rinehart and Manager Kingsberry had told him
that they did not believe Kirkwood was so qualified; (2)
McGowan knew that Kirkwood initially had been hired
through the local high school under its special program for
slow learners; (3) on various occasions when McGowan
assigned Kirkwood to perform a routine task, Kirkwood
failed to follow his instructions; and (4) despite constant
instruction, Kirkwood could not properly place the incom-
ing merchandise he was checking in the proper area within
the back of the store.
The testimony of Rinehart, Kingsberry, and McGowan
concerning their belief that Kirkwood lacked the aptitude
or ability to perform satisfactorily as a journeyman clerk
was not controverted by the General Counsel or the Charg-
ing Party.
C. Discussion and Ultimate Findings
Respondent employed Kirkwood to perform work cov-
ered by its contract with the Union, but did not pay him the
contractual rate of pay. Kirkwood filed a grievance with the
Union. The Union demanded that Respondent classify
5 The Union in its letter to the Respondent of June 12 , 1972, demanded,
among other things, "that Kirkwood be immediately advanced to his proper
classification (senior apprentice clerk ) " This classification calls for 9
to 12 months experience and pays $4 an hour The next classification in the
automatic scheme of things is "journeyman clerk" and calls for over 1-year
experience and pays $4 57 an hour
671
Kirkwood as a bargaining unit employee covered by the
union contract, pay Kirkwood the rate of pay called for by
the contract, and reimburse him for moneys not paid in the
past. Upon its receipt of this grievance, the Respondent
immediately removed Kirkwood from the bargaining unit
and reassigned him from unit work to nonunit janitorial
work. The General Counsel contends that in removing
Kirkwood from the coverage of the contract the Respon-
dent was motivated by its animus toward him because he
sought the assistance of the Union in processing a grievance
and because he attempted to implement the wage provisions
of the union contract. The Respondent in its answer to the
complaint denies this and affirmatively alleges that it had
an oral agreement with the Union exempting Kirkwood
from the coverage of the union contract, that Kirkwood was
transferred and his duties changed so as to remove him from
the contractual bargaining unit only after the Respondent
learned that the Union considered Kirkwood to be covered
by the Union contract, and that the Respondent thereafter
failed and refused to employ him as a bargaining unit em-
ployee for the reason that he "was not competent to perform
bargaining unit work as a regular employee."
Based upon the facts set out in detail in the section of this
decision dealing with the Respondent 's case-in-chief I find
that Respondent has established that in transferring Kirk-
wood out of the bargaining unit covered by the union con-
tract that it was motivated by a belief that he was not
competent to perform bargaining unit work as a regular
employee.6 The testimony of McGowan, Rinehart, and
Kingsberry on this issue were internally consistent and
largely in agreement with one another. Nor, is their testimo-
ny controverted by the record as a whole and it is supported
by the Respondent's effort to keep Kirkwood in its employ
in a nonunit position more commensurate with his abilities
rather than abruptly terminate him. While the timing of
Kirkwood's transfer out of the unit shortly after the filing
of his grievance and the Respondent's displeasure over the
grievance gives rise to suspicion , these circumstances do not
amount to evidence of discriminatory motivation capable of
overcoming the economic justification shown by Respon-
dent for its conduct. Therefore, I shall recommend the dis-
missal of the allegations in the complaint that Respondent
violated Section 8(a)(1) and (3) of the Act by transferring
Kirkwood to the Lake Crest store and thereafter assigning
him to janitorial work at the Valley Plaza store.
In arriving at this conclusion I have considered the state-
ment by Store Manager Kingsberry to Kirkwood that if he
joined the Union, the Respondent could not afford to em-
ploy him and would have to discharge him. Kingsberry,
however, played no part in the eventual decision to dis-
charge Kirkwood. The statement was made in the context
6 I have not discussed or judged Respondent 's further contention that the
evidence establishes either an oral agreement with the Union exempting
Kirkwood from the coverage of the union contract , or that the Respondent
in good faith believed there was such an agreement These issues, in my
opinion , are not relevant to a decision of the ultimate issue in the instant case,
the motive of Respondent in transferring Kirkwood out of the bargaining
unit Assuming the Respondent violated the terms of its union contract in
its employment of Kirkwood , this does not mean that Respondent lost the
right to transfer Kirkwood out of the contractual bargaining unit for legiti-
mate business reasons Here , Respondent has demonstrated that its transfer
of Kirkwood out of the unit was meted out for legitimate business reasons.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Kirkwood's request for more money and was made in
response to Kirkwood's inquiry, whether in order to get
more money he could join the Union. In my opinion the
statement in the context in which it was made is ambiguous
and is not inconsistent with the lawful manner in which
Respondent treated Kirkwood. As set out above, Respon-
dent discharged Kirkwood as a clerk for the reason that he
was not qualified to receive the high rate of pay which went
with the classification journeyman clerk, a classification
which in the immediate future would automatically be be-
stowed upon Kirkwood if the Union had its way. In this
connection Kingsberry credibly testified:
Q. What did it mean to you if [Kirkwood] joined the
Union? What did you believe that would mean as far
as his employment was concerned, if you had any be-
lief?
A. At the particular time, or even now, he would
have to be paid on a progressive scale calculated on the
number of hours he worked per week, per year. He
would have to be given a periodic increase of pay.
Based on the foregoing, I find that Kingsberry's statement
itself or taken in conjunction with the record as a whole
does not establish that the Respondent's treatment of Kirk-
wood, as alleged in the complaint, was unlawfully motivat-
ed. In addition, I do not believe, as alleged in the complaint,
that Kingsberry's statement (if Kirkwood joined the Union,
the Respondent could not afford to employ him and would
have to discharge him) interfered with, restrained or coerced
employees in the exercise of their statutory rights within the
meaning of Section 8(a)(1) of the Act. Viewed in the context
of this case, the statement is too vague to constitute an
unambigous threat of discharge based on the act of Kirk-
woodjoining the Union, rather than as a threat of discharge
if Respondent was forced by the Union to reclassify Kirk-
7 McGowan admitted at the hearing that in not classifying and paying
Kirkwood in accordance with the union contract the Respondent was acting
in complete violation of the contract if the Union had not orally agreed to
exempt Kirkwood
wood to a position for which he was not qualified and which
would cost the Respondent more money. In sort, the warn-
ing is too ambiguous to be outlawed by Section 8(a)(1) of
the Act. In any event, in the circumstances of this case,
including the fact that Respondent has a collective-bargain-
ing agreement with the Union which contains a union-se-
cunty clause requiring union membership after 30 days and
there is no evidence that Respondent is generally discourag-
ing unit employees from joining the Union, I am of the
opinion it would not serve any useful purpose to issue a
cease-and-desist order based on this isolated bit of conduct.
Accordingly, for these reasons I shall recommend that this
portion of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Klauser Corporation d/b/a Thriftco Stores is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Store Employees Union, Local No. 367, affiliat-
ed with Retail Clerks International Association, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The complaint is dismissed in its entirety.
8In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes