Tolly's Market, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1970

183 N.L.R.B. 379 (N.L.R.B. 1970)

TOLLY' S MARKET , INC. 379
Tolly's Market , Inc.-Ben Franklin and Retail
Clerks International Association Local 418 Af-
filiated with Retail Clerks International Associa-
tion , AFL-CIO. Case 38-CA-768
discharge of a relative of a union activist is violative of Sec 8(a)(3) and (1)
of the Act if the discharge is related to the union activity See Golub Bros
Concessions, 140 NLRB 120
TRIAL EXAMINER 'S DECISION
June 15, 1970
DECISION AND ORDER
BY MEMBERS FANNING , BROWN , AND JENKINS
On March 16, 1970, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The General Counsel filed a brief in support of the
Trial Examiner's Decision, to which the Respond-
ent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , Tolly's Market, Inc.-
Ben Franklin , Decatur , Illinois , its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner 's recommended Order.
i These findings and conclusions are based , in part , on credibility deter-
minations of the Trial Examiner , to which the Respondent has excepted
Having carefully reviewed the record , we conclude that the Trial Ex-
aminer 's credibility findings are not contrary to the clear preponderance of
all the relevant evidence Accordingly, we find no basis for disturbing those
findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d
362 (C A 2) We agree with the Trial Examiner that Miss Woodrum was
discharged because her mother married the union organizer It is noted that
the Union had recently expressed to the Respondent an interest in
representing the Ben Franklin employees The Board has held that the
Statement of the Case
PAUL E. WEIL, Trial Examiner: On charges filed
September 22, 1968, by Retail Clerks International
Association Local No. 418 affiliated with Retail
Clerks International Association, AFL-CIO, herein
called the Union, against Tolly's Market, Inc.-Ben
Franklin, herein called Respondent, the General
Counsel by the Acting Officer-in-Charge for Subre-
gion 38 (Peoria, Illinois ) issued a complaint and
notice of hearing on November 12, 1969, alleging
that Respondent violated Section 8(a)(3) and
8(a)(1) of the Act by the termination of an em-
ployee, Vicki Woodrum, and its subsequent refusal
to reinstate her. By its duly filed answer Respond-
ent denied the commission of any unfair labor
practices and alleged that Vicki Woodrum was not
discharged but quit her job. I heard the matter at
Decatur, Illinois, on February 5, 1970. All parties
were represented at the hearing and had an oppor-
tunity to call witnesses and introduce evidence, to
state their positions on the record, and to file briefs.
The parties waived oral argument at the close of
the hearing . Briefs have been received from the
General Counsel and the Charging Party. Respond-
ent submitted proposed findings of fact and con-
clusions.
After the close of the hearing, before briefs were
filed, Respondent moved to reopen the record for
the purpose of receiving in evidence two timecards
of Vicki Woodrum. Arrangements to do this were
made at the hearing, when an ambiguity appeared
with regard to the period during which Miss
Woodrum was on vacation. No response to Re-
spondent's motion was received. The motion is
granted, and the timecards are received as Re-
spondent's Exhibits (a) and (b).
Upon the entire record in this matter and in con-
sideration of the briefs and proposed findings and
conclusions, I make the following findings and con-
clusions:
1. THE BUSINESS OF THE RESPONDENT
It is alleged and admitted that Respondent is an
Illinois corporation engaged in operating retail
variety stores in Decatur, Illinois , with an annual
gross volume of sales exceeding $500,000 and an-
nual purchases of goods and material valued in ex-
cess of $50 ,000 transported directly to its stores in
Decatur , Illinois, from points in States other than
the State of Illinois. It is admitted and I find that
Respondent is and has been at all times material
herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
183 NLRB No. 46
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is and has been at all times material
herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent operates a number of grocery mar-
kets in and around the city of Decatur, Illinois. In
conjunction with some or all of the grocery markets
Respondent additionally operates variety stores
known as Ben Franklin Stores. Commencing in
January 1968 the Union through the efforts of one
Robert Camp commenced organizing the em-
ployees of three of the grocery markets. The or-
ganizational campaign resulted in a petition for an
election being filed with the National Labor Rela-
tions Board by Mr. Camp. An election was held, set
aside by action of the Board, and a second election
held on March 27, 1969, pursuant to which the
Union was certified as the representative of the
grocery employees in a three-store unit.
When the union agents including Robert Camp
first sat down with the Employer to negotiate for a
contract covering the three-store grocery unit the
Union's spokesman asked if there was any possibili-
ty of talking about the employees of the Ben
Franklin stores at the same time . He was informed
that it was not possible.
One of the markets which had a Ben Franklin
store operated in conjunction with it was known as
the Northland store. At this store all checkouts
were through the grocery department so that the
Ben Franklin store had no cashiers. It was staffed
by Manager Rosalie Kaul, by Vicki Woodrum, and
by several high school and college students working
part time. The functions of the personnel employed
at the Northland Ben Franklin store consisted of
stockkeeping, including ordering and keeping stock
clean, pricing merchandise, arranging display space
and keeping it filled. They were also expected to
assist customers.
Vicki Woodrum had been employed in the
Northland store for approximately 3 years. She and
Rosalie Kaul, the manager, have been close per-
sonal friends through much if not all of that time
and in fact lived together until February or March
of 1969 at which time Miss Woodrum's father suf-
fered a heart attack and she apparently moved into
his home to take care of him.
On June 14 Union Organizer Camp married
Vicki Woodrum's mother who was then employed
at one of Respondent's other stores as a cashier. At
that time Vicki Woodrum was in California on a 2-
week vacation. She returned from her vacation in
order to work on June 22 in place of Miss Kaul who
normally worked on Sunday. During the next week
Miss Kaul asked Miss Woodrum if she would con-
sider a transfer, stating that she thought that her su-
pervisor, Ed Boals, would like to split the two girls
up and suggesting that Miss Woodrum would
probably be transferred to another store. Miss
Woodrum said that she would prefer to go to the
store in the Pines rather than the one at the Mall.'
The following Saturday, July 5, about 4 p.m.,
Miss Kaul and Miss Woodrum left the store and
went to a local bowling alley where they had a
drink and a conversation. Their accounts of the
conversation differ widely. According to Miss
Woodrum, Miss Kaul asked her to quit, stating that
otherwise she would have to discharge her. Miss
Woodrum declined to quit because she could not
draw unemployment compensation if she did,
whereupon Miss Kaul assured her that she could
say anything she wanted at the employment office
and Miss Kaul would back her up. Miss Woodrum
asked what was wrong with her work and Miss Kaul
assured her that there was nothing wrong with her
work, that she had so informed Mr. Boals, but that
he had said to get rid of Miss Woodrum. Miss
Woodrum also testified that she thought Miss Kaul
said that they already had somebody to take her
place. She commented to Miss Kaul that she
thought the reason she was being discharged was
because of her mother's marriage to Mr. Camp to
which Miss Kaul answered, "You are right."
Miss Kaul's version as I stated was completely
different. She testified that she had criticized Miss
Woodrum because her work was poorly done on
the morning of July 5 and that later that day Miss
Woodrum came to her and said she was quitting
because she was not happy with the working condi-
tions or with her salary. At this point Miss Kaul ac-
cording to her testimony suggested they go to the
bowling alley and have a drink. There she asked
Miss Woodrum again why she wanted to quit so
badly and Miss Woodrum answered that she was
not happy and she would not put forth the effort to
do her work, and she was no longer "going to be
friends" with Miss Kaul.
The girls agreed that after their conversation at
the bowling alley they returned to the shop where
Miss Woodrum picked up her purse and then
proceeded to Miss Woodrum's home. Again their
stories differ as to what took place there. Accord-
ing to Miss Woodrum they arrived to find her
father with three other persons. As they walked in,
Miss Kaul stated that Miss Woodrum had just quit
her job. Her father asked what she meant, "quit her
job," to which Miss Woodrum answered that she
did not exactly quit, she was given a choice and
told that she was going to be fired anyhow so that
she did not have a job. She stated that at this point
she went to her bedroom to change her clothes. Ac-
cording to Miss Kau] the two girls walked into the
house and Miss Kaul suggested, "Let's go to the
rodeo, everybody." Miss Woodrum looked at her
father and said, "Guess what, I just quit my job."
' Miss Kaul did not testify with regard to this conversation nor did she
deny that it took place Accordingly I credit Miss Woodrum
TOLLY'S MARKET, INC.
Miss Kaul said, "That's right." Mr. Woodrum said,
"Is that right?" and Miss Kaul said, "Yeah, that's
right. Are you going to the rodeo with us?" It ap-
pears that Miss Kaul went to the rodeo alone. Miss
Kaul also testified that Miss Woodrum departed at
this point to change her clothes.
Sunday and Monday were normally Miss
Woodrum's holidays. On Monday, July 7, she
called Miss Kaul and said that unless Miss Kaul told
her that she was discharged she was coming to
work the next morning. Miss Kaul said at that time
that she was discharged. Later Miss Woodrum
came to the conclusion that she should not be
discharged over the telephone. Accordingly, the
following day, Tuesday, she went to the store and
clocked in and found that her name was not on the
schedule but that another employee was working.
She left the store and went to another Ben Franklin
store where she found Mr. Boals. She told him that
she understood that she had been fired. Boals an-
swered, "Weren't you told that Saturday night?"
She then asked for her check and he said that he
did not think she could get it because the checks
would not be made out until the next day. She went
upstairs to get her check but was unable to get it on
that occasion.'
Discussion
It is apparent that if I credit Miss Woodrum's
testimony the General Counsel must prevail.
Respondent's defense rests completely on the
testimony of Miss Kaul and in turn if I credit her,
Respondent must prevail. I credit Miss Woodrum; I
discredit Miss Kaul for the reasons set forth
hereinafter.
Respondent would have us believe that Miss
Woodrum quit because Miss Kaul was requiring her
to do her work better-to do a better job of house
cleaning, of marking merchandise, of taking care of
customers, and so forth, because her pay was too
small, and because of the failure of her friendship
with Miss Kaul.
Miss Kaul testified that commencing in April
1969 for reasons inexplicable to her the quality of
Miss Woodrum's work depreciated rapidly. She
frequently called Miss Woodrum to task for this
and at first Miss Woodrum would improve for a
brief period of time but that her work would then
begin to deteriorate again. On July 5 Miss Kaul
found the counters assigned to Miss Woodrum to
be understocked and messed up, merchandise to be
incorrectly displayed or not displayed at all, the un-
derstock to be dirty and covered with an accumula-
tion of dust, and the merchandise to be marked in-
correctly or not at all with the price as required by
the store. This occasioned the complaint she made
to Miss Woodrum which in turn led to Miss
Woodrum's resignation.
Respondent called as a witness a young girl who
had been assigned to the counters usually assigned
381
to Miss Woodrum during Miss Woodrum's vaca-
tion. This employee testified that when she was as-
signed the cases the stock was in poor condition
and it was dirty and incorrectly marked with prices.
She testified that she spent the time during Miss
Woodrum's vacation correcting the situation,
cleaning up the understock, pricing the merchan-
dise, and correcting the displays.
Respondent also produced an application for em-
ployment signed by Mary Sanders, whom Respond-
ent identifies as the employee hired by Miss Kaul
to take the place of Miss Woodrum after Miss
Woodrum resigned. The application is dated July 7,
1969, in the handwriting of Miss Sanders, and Miss
Kaul testified that it was on July 7 that she first in-
terviewed the applicant. However the reverse side
of the application contains a report of the interview
of Miss Sanders dated July 3, 1969, and states that
the applicant was hired July 3, 1969, to report on
July 7, with Miss Kaul's signature. Miss Kaul
testified that she had no explanation for the date
July 3 appearing on the document and stated that
she never heard of this employee prior to the night
of July 6 when she found out about her from the
manager of another store. Under the circumstances
that the records of Respondent tend to impeach
Miss Kaul's testimony in this regard one would
think that Miss Sanders would be produced by
Respondent as a witness to resolve the difficulty.
This was not done nor is any explanation therefor
forthcoming. Accordingly I can only conclude that
Respondent did not produce Mary Sanders because
her testimony would not corroborate that of Miss
Kaul. The date on the application does however
corroborate the testimony of Miss Woodrum that
Miss Kaul when discharging her stated that she had
already hired her replacement.
I further find that the actions of the two girls in
going together to Miss Woodrum's home after the
conversation in the bowling alley is inconsistent
with Miss Kaul's version of what took place at the
bowling alley. If in fact Miss Woodrum quit in part,
as Miss Kaul testified, because she and Miss Kaul
were no longer friends it appears improbable that
they would have left together and that Miss Kaul
might have expected Miss Woodrum to go to the
rodeo with her. On the other hand, assuming the
fact to be as stated by Miss Woodrum, it is not all
inconsistent that Miss Kaul, having admittedly been
required to ask Miss Woodrum either to quit or be
fired and attributing this to Boals, her supervisor,
would have expected a continuity in her friendship
with Miss Woodrum.
The record contains no evidence that Miss
Woodrum had ever expressed dissatisfaction with
her wages or asked for them to be raised.
Finally with regard to the conversation that took
place at Miss Woodrum's home I find it beyond be-
2 This conversation was not denied by Mr Boals, who was present in the
hearing room when Miss Woodrum gave her testimony
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lief that the conversation would have taken place as
Miss Kaul testified. Miss Woodrum is blind in one
eye. She did not find it easy to secure a job.
Nevertheless Miss Kaul would have us believe that
she walked in and announced that Miss Woodrum
had quit and her father's only remark was, "Is that
right?" and no explanations were sought or offered.
Mr. Woodrum's testimony that he questioned his
daughter's statement that she had been given the
choice of quitting or being fired and after his
daughter went into her room to change her clothing
had a discussion with Miss Kaul as to the relative
advantages of quitting or being discharged is much
more probable under the circumstances. The fact
that his testimony is corroborated by the apparently
honest testimony of two disinterested witnesses who
were present is convincing to me.
Further corroboration of course is to be found in
the telephone conversation on the following day
undenied by Miss Kau], in which she told Miss
Woodrum that she was discharged and in the con-
versation between Miss Woodrum and Mr. Boals on
the following Tuesday in which he gave her the
same information. Under all the circumstances in
the case I credit Miss Woodrum's account of her
discharge, including her testimony that Miss Kaul
admitted that the reason for the discharge was her
mother's marriage to the union organizer.3
I find that Respondent, by discriminating against
Miss Vicki Woodrum, discouraged the union or-
ganizational activities of its employees and inter-
fered with, restrained, and coerced them in the
exercise of their rights to join the Union if they so
desired. By so doing I find Respondent violated
Section 8(a)(3) and (1) of the Act.
IV. THE REMEDY
Having found that Respondent discriminatorily
discharged Vicki Woodrum in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that
Respondent cease and desist from such unfair labor
practices and be required to take certain affirma-
tive action which the Board finds necessary to
remedy and remove the effects of such unfair labor
practices and to effectuate the policies of the Act. I
shall recommend that Miss Woodrum be offered
immediate and full reinstatement to her former or a
substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and
be made whole for any loss of pay she may have
suffered by reason of the discrimination against her
from the date of the discrimination, July 5, 1969, to
the offer of reinstatement. Loss of pay shall be
computed as prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716. I shall also recommend that
Respondent be ordered to make available to the
Board, upon request, payroll and other records in
order to facilitate the checking of the amount of
backpay due.
CONCLUSIONS OF LAW
1. By discharging Vicki Woodrum because of
her mother's relationship with an agent of the
Union and in order to discourage activities on be-
half of the Union, Respondent committed unfair
labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
On the findings, conclusions, and the entire
record it is hereby recommended that the Board
issue the following:
ORDER
Tolly's Market, Inc.-Ben Franklin, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Clerks
International Association Local 418 affiliated with
Retail Clerks International Association, AFL-CIO,
or in any other labor organization of its employees,
by discriminating against any employee because of
his relationship with the Union by discharging him.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their right to self-organization, to form
labor organization, to join or assist the above-
named or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in any other concerted ac-
tivities for the purposes of collective bargaining or
other mutual aid or protection or to refrain from
any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Vicki Woodrum immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and make
her whole for any loss of pay which she may have.
suffered as a result of the discrimination against her
in the manner set forth in the section herein enti-
tled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
recommended Order.
(c) Post at its stores in Decatur, Illinois , copies
' I do not view the unemployment compensation referee's decision as
corroborative inasmuch as it appears on its face to have been based on
a hearing at which no representative of Respondent was present
TOLLY'S MARKET , INC. 383
of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Officer-in-
Charge for Subregion 38, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Officer-in-Charge for Subregion
38, in writing , within 20 days from the receipt of
this Decision , what steps have been taken to
comply herewith.'
4 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Officer - in-Charge for
Subregion 38, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
WE WILL offer Vicki Woodrum immediate
and full reinstatement to her former or sub-
stantially equivalent position, without preju-
dice to her seniority or other rights and
privileges, and make her whole for any loss of
pay which she may have suffered as a result of
the discrimination against her.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist the
above-named labor organization or any other
labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
the purposes of collective bargaining or other
mutual aid or protection or to refrain from any
or all such activities.
All our employees are free to become or refrain
from becoming members of the above-named or
any other labor organization.
TOLLY'S MARKET, INC.-
BEN FRANKLIN
(Employer)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Retail Clerks International Association Local
418 affiliated with Retail Clerks International
Association , AFL-CIO, or any other labor or-
ganization by discriminatorily discharging our
employees because of their relationship to the
Union and their activities in connection
therewith.
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Savings Center Tower, 10th Flooor,
411 Hamilton Boulevard, Peoria, Illinois 61602,
Telephone 309-673-9282, Extension 282.