Tucker's Minit Markets

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1188 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tucker Enterprises, Inc., d/b/a Tucker's Minit Mar-
kets and Retail Clerks Union Local 1557, Retail
Clerks International Association, AFL-CIO. Case
9-CA- 11299
September 29, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 26, 1978, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting 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 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 Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Tucker Enterprises, Inc.,
d/b/a Tucker's Minit Markets, Bowling Green, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the actions set forth in said recommended
Order.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on October
19 and 20, 1977, in Bowling Green, Kentucky. on the com-
plaint of the General Counsel issued on June 10, 1977.1 and
the answer of Tucker Enterprises, Inc. d/b/a Tucker's
Minit Markets, herein called the Respondent or Company.
both pleadings being amended at the hearing. In issue are
The complaint is based on a charge filed by the Union on April 22, 1977,
a copy of which was duly served on the Respondent by registered mail on
April 25, 1977.
questions of whether the Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended,2 by closing its convenience grocery stores and dis-
charging its 21 employees because of their union and other
protected concerted activities and refusing to rehire all but
three of the employees for the same reasons when it re-
opened the stores several days later; by declining to recog-
nize and bargain with Retail Clerks Union Local 1557, Re-
tail Clerks International Association, AFL-CIO, herein
called the Union, as the exclusive representative of the Re-
spondent's store employees in an appropriate unit; and by
engaging in other unlawful acts of interference with, re-
straint, and coercion of employees in their exercise of statu-
tory rights. At the close of the hearing, the Respondent
moved to dismiss the complaint on the ground that the evi-
dence failed to sustain the alleged unfair labor practices.
Ruling on this motion was reserved and the motion is now
denied in accordance with my findings and conclusions set
forth below. Although waiving oral argument at the hear-
ing, the General Counsel and the Respondent subsequently
filed briefs in support to their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENI
The Respondent, a Kentucky corporation, operates four
retail grocery stores in Bowling Green, Kentucky, under the
active management of Horace A. Tucker, its president and
sole stockholder. Its annual gross revenues derived from
these operations exceed $500,000. In the regular conduct of
its business, the Respondent annually purchases and re-
ceives goods valued in excess of $50,000, which are shipped
directly to its Bowling Green facilities from points outside
Kentucky.
It is admitted and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2). (6). and (7) of the Act.
11. THE LABOR ORG(ANIZArION INVOLVED
The uncontroverted testimony establishes that the Union
is a nonprofit organization which represents employees em-
ployed in the retail industry in southern Kentucky, middle
and eastern Tennessee, and northern Alabama with respect
to wages, hours, and other working conditions embodied in
2 Sec. 8(aX 1) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that "[elmploy-
ees shall have the right to self-organization, to form. join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.... "
Sec. 8(aX3), with certain qualifications not material herein, prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor organization.... "
Sec. 8(aXS) makes it an unfair labor practice for an employer "to refuse to
bargain collectively with the representatives of his employees" designated by
a majority of them in an appropriate unmt.
238 NLRB No. 168
1188
TUCKER'S MINIT MARKETS
collective-bargaining agreements with various employers.
In addition, employees participate in the administration
and management of the Union. Accordingly, I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THiE A.l.iEGED) UNFAIR LABOR PRAC(TIC(ES
A. Introduction; Issues Presented
This case arises out of the Respondent's closing of its four
retail convenience grocery stores on March 16, 1977; dis-
charging its entire complement of 21 store employees; and
reopening these stores several days later, rehiring only three
of its former employees. It is the General Counsel's position
that this action was taken in reprisal for its employees' ac-
tual or suspected union interest and sympathies or other
lawful concerted activities for their mutual aid and protec-
tion and that therefore the Respondent violated Section
8(a)(l) and (3) of the Act. Denying that such was its moti-
vation, the Respondent argues in its brief that it did not
violate the Act as the store closings and employee termina-
tions were due solely to large inventory and cash shortages
it had been experiencing over the years, and especially dur-
ing the preceding 6-month period, its employees' lack of
cooperation to help eliminate this problem, and the need to
get "a fresh new start." Manifestly, this issue presents a
factual question whose resolution rests upon all the facts
and circumstances surrounding the store closings, the dis-
charges. and the refusal to rehire in the reopened stores.
Also to be determined is the question whether the Respon-
dent defaulted in its bargaining obligation in violation of
Section 8(a)(5) and (I) of the Act by refusing to recognize
and bargain with the Union, as the employees' majority
representative, when it received the Union's written bar-
gaining request 2 days after the stores closed. The General
Counsel urges an affirmative finding on this issue, while the
Respondent defends against this allegation on the ground
that at the time it received the Union's bargaining request,
it had no employees in its employ for the Union to repre-
sent and hence the Respondent was not duty bound to hon-
or the request. The final issue to be resolved is whether the
Respondent engaged in various independent acts of inter-
ference, restraint, and coercion of employees prohibited by
Section 8(a)(l), consisting of a threat to close the stores and
discharge the employees if they organized, interrogation of
two employees respecting their union interest and activity,
and the retention and perusal, without the Union's permis-
sion, of the Union's missing organization file containing
signed authorization cards and statements of employees
pertaining to their employment and discharge, and other
papers, which mysteriously came into the Respondent's
possession. We turn to the evidence in the sequence in
which the events occurred.
B. The Evidence
i. The Respondent's proposed institution of a polygraph
program
At the time of the events herein, the Respondent oper-
ated four retail stores in the Bowling Green, Kentucky, area
with a staff of approximately 21 full- and part-time employ-
ees.3 These stores are known as the ByPass store (No. 1), the
Gordon Ave. store (No. 2), the Shive Lane store (No. 4),
and the Russellville Road store (No. 5).4 In general, one
employee was assigned to run a store on each shift. Ap-
proximately five part-time employees periodically took in-
ventory at the various stores.
For several years the Respondent had been experiencing
shortages in inventory and cash. In the hope of meeting this
problem, the Respondent in the summer of 1976 adopted
an inventory control program designed to furnish more reli-
able information concerning its inventory figures. Accord-
ing to the Respondent, this procedure revealed its worst
shortages for the period from June 1976 to mid-February
1977, resulting in lost gross profits of $39,754.29.5 Con-
cerned over the Respondent's continued losses. Horace
Tucker, the Respondent's president and sole stockholder,
consulted with Robert Snyder, a duly licensed polygraph
examiner, in the early part of February 19776 with the ob-
ject of introducing lie detector tests for employees, although
Tucker admittedly regarded most of the employees to be
honest and not responsible for the losses. Consequently.
Tucker made arrangements with Snyder to explain the con-
templated ploygraph program to the employees at two
meetings to be held on March 9 at the Company's office.
There can be no doubt that Tucker's efforts to solve his
shortage problem was not prompted by union consider-
ations inasmuch as no union had vet entered the picture to
organize the Respondent's employees at this time. Indeed, a
number of employees were familiar with the occurrences of
shortages which they attributed, in part, to shoplifting and
requested Tucker to hire additional help to stop it. How-
ever, Tucker would not accept this advice, stating that he
considered such shortages to be minimal. Other reasons
were also cited by employees to account for losses such as
3 The employees who were in the Respondent's employ on March 16 and
are alleged in the complaint to have been discnrmnated against are, as fol-
lows:
Shirley Aldridge
Joyce Anderson
Henry Boards, Sr.
Ann Cadle
Kenneth Connor
Sarah Dalton
Toni Deanng
Roy Evans
Herman Forrester
Lawrence Gibson
Alice Hays
Dean Hays
Winiford Hill
Lora Horton
Angela Ingram
Linda Johnson
Hazel Lewis
Gerald Pearson
Juanita Pemberton
"Pat Delos Welch
Walker Young
Only Aldridge, Anderson, and Gibson were subsequently rehired when the
stores were reopened.
'The No 3 store, known as the Fairview store, was not in existence at the
time of the relevant events.
This figure is based on the fact that the Respondent's gross profit rate
derived from net sales dunng the indicated period was 19.08 percent instead
of 23.5 percent which is the predetermined rate of return expected to be
earned from the Respondent's "131 percent markup" on merchandise offered
for sale. According to the Respondent, the gross profit rate for the 3-year
penod from 1973 through 1975 was 19.31 percent. Whether the asserted
losses accurately or realistically reflect the financial situation or problem at
the time of the events herein, or whether the inventories were carelessly
conducted or whether part of the losses could otherwise be accounted for by
shoplifting or other factors need not be considered for the purpose of resolv-
ing the issues before me since, as will later be shown, the polygraph examina-
tion program was presented to the employees before the Union's appearance
at the stores.
I All dates refer to 1977 unless otherwise indicated.
1189
DECISIONS OF NATIONAlI LABOR RELATIONS BOARD
the careless handling of money by management and inaccu-
rate inventory-taking procedures and practices.
In anticipation of the scheduled meetings, Tucker on
March 4, included in each employee's pay envelope the fol-
lowing letter over his signature:
IMPORTANT NOTlICE TO OUR IMPIOYEES
As a part of our new insurance, bonding and em-
ployment ploicy, all employees, including executives,
will be asked to participate in a scientific evaluation
(Polygraph) examination program sometime in the
near future.
The reason this course of action has become neces-
sary is that. as you may already know, we have experi-
enced considerable losses due to the taking of cash and
merchandise. This has caused losses to the company
and to you, in that it reduces the funds available for
employee benefits. Further, it serves as a reflection on
that vast majority of our employees who are honest,
loyal, and conscientious. IT IS TO PREVENT FURTHER
LOSSES AND TO PROTE('T Al.L CONCERNED THAT WE ARE
INSTITUTING THIS PRO(iRAM. Those few who in the past
have engaged in irregular practices, have no reason for
concern provided they assist us in this program and
cease such practices in the future.
WE ARE PRIMARILY (ONCERNED WIITH IHE FUTiURI.
NOT WITH WHAT HAS HAPPENED IN THE PAST. YOU
WILL W'II.L ONLY BE ASKED ABOUT YOUR WORK WITl i
THIS COMPANY. NO PERSONAI QUESTIONS WIL. HBE
ASKED. YOU WII.I. BE MADE AWARE OF EA(CH QUES-
TION BE FORE TIlE EXAMINATION AND YOU WII.L. BE
ASKED TO ASSISI IN THE FORMUL.ATION OF TIlE QIUES-
TIONS. THE QUESTIONS WI1.. BE ASKED ONI.'Y wr III
YOUR APPROVAI.
The examinations themselves are simple, take little
time, and are in no way uncomfortable or embarassing.
The results will remain entirely confidential. Our entire
employee roster has been made available to the firm
conducting the interviews and they will select at ran-
dom, a cross-section of employees to be interviewed.
The interviews will be conducted during your nor-
mal working hours. There can obviously be no reason
why any employees would object to participating in
this program unless that person has committed irregu-
larities and does not intend to change.
SIN(CE THIS PROGRAM WII.I. BENFFIT AI.I. CONCERNEl).
WE KNOW WE (CAN RELY ON YOUR FUI.I. COOPERA I'ION.
Very truly yours,
H. A. Tucker,
President
Please sign and return to any store manager immedi-
ately.
It appears that only three employees, Linda Johnson,
Sarah Dalton, and Roy Evans,7 signed and delivered to
7 Employee Ann Cadle credibly testified, without contradiction, that while
she was on sick leave before the March 9 meeting, Supervisor David L.
Williams called her on the telephone and asked her whether she would take
management the above letter, indicating agreement to take
the ploygraph test. Evidently disappointed that more em-
ployees did not respond affirmatively to take the test, Tuck-
er telephoned several employees on Monday., March 7. One
of these employees was Hazel Lewis whom Tucker called
four or five times during the day while she was at work at
the Shive Lane store. Lewis, in reply to Tucker's question,
told hi that she was uncertain whether she would take the
ploygraph examination because she had never before been
accused of taking anything and doubted that Tucker had
lost $40,000, as he claimed. In their conversation, Tucker
accused Lewis of being "an instigator" who telephoned em-
ployees at other stores, telling them not to take the poly-
graph test. Lewis denied the accusation and suggested that
they get together to discuss this matter at another time.
Employee Lora Horton was also called by Tucker on
March 7 about taking the polygraph test and informed
Tucker that she would go along with what the other em-
ployees did. Another employee, Henry Boards, Sr., when
called by Tucker on March 7, declined to sign the agree-
ment to take the test until he first discussed the matter with
Tucker, while employee Pat Welch, in response to Tucker's
similar telephone inquiry, stated that he was perturbed
about the test and that the Respondent's proposed meeting
to discuss the polygraph program was a good idea and
should have been held before the letters were given to the
employees. On the same day, Supervisor David Williams
inquired of employee Gerald Pearson why he had not
signed the agreement to take the test and the latter replied
that he would wait to see what the other employees did.8
On Wednesday, March 9, the Respondent conducted two
meetings-one at 2 p.m. for employees scheduled to go on
duty later in the day, and a second meeting at 4:30 p.m. for
those employees coming off the earlier shift. Tucker ad-
dressed the employees, reviewing the persistent problem of
shortages in inventory and cash and the monetary losses the
Respondent was suffering which could lead to bankruptcy.
In the same vein as his March 4 letter, Tucker pointed out
the need for the polygraph program to prevent further
losses: appealed to the employees to cooperate in this pro-
gram: and assured them that he was not concerned with
past irregularities, for which they would not be penalized,
but that he was only thinking of the future. Snyder, the
polygraph examiner, was then introduced and he explained
the operation of the lie detector test and the need for volun-
tary participation. Many questions were asked by employ-
ees which were answered by Snyder. At time the ensuing
discussions were heated and highly emotional, with various
employees voicing their objections to the validity and reli-
ability of the polygraph test and their fears of unfair results
due to nervousness and other factors.
From my evaluation of all the testimony on the subject, I
am not convinced, as the Respondent argues, that the em-
ployees at these meetings expressly refused to submit to the
polygraph examination if' they were required to do so5, al-
the polygraph test and that she agreed, adding that she had taken it on
previous occasions.
The foregoing narration concerning the above conversations is based on
the credible and virtually undisputed testimony of the employees involved in
them.
I Tucker initially testified that, in his opinion, 85 percent of the employees
1190
IUC('KER'S MINI' MARKETS
though it is clear that they were highlycritical of that test.
Significantly, not only is there no evidence that Tucker
polled the employees at these meetings to ascertain their
intentions, but also, although Tucker testified that at the
close of the meetings he planned to proceed with the poly-
graph program, he admittedly did not so advise the employ-
ees at that or any subsequent time, much less warn them
that they risked discharge or other discipline if they refused
to take the test. These factors lend credence to the testi-
mony of the employees that they did not declare at these
meetings their unequivocal refusal to take a polygraph ex-
amination if the Respondent required it but, on the con-
trary, that the employees were generally disposed to take
the test if directed, despite their misgivings. and the ex-
pressed sentiment of some of them that they would go along
with the majority. Moreover, apart from the employees'
criticism of the polygraph test, I find, in disagreement with
the Respondent, no credible evidence in the record disclos-
ing a lack of sympathy for, or an unwillingness on the em-
ployees' part to assist or cooperate with the Respondent in
its efforts to solve the problem of losses it claimed to he
experiencing.
2. The advent of the Union: the request for recognition
In the middle of January, employee Linda Johnson en-
gaged Tucker in a conversation at the ByPass store in the
course of which she asked for a wage increase. When Tuck-
were against taking the polygraph test. with some of them stating that ihes
would not take the test, while others stated that they did not want to take the
test or were afraid to take it and one employee. Htenry Boards, indicated that
he would go along with the majorit. LIater in his testimony. Tucker testified
that at the end of the meetings there was a general consensus among the
employees that nobody was going to submit to the test. including those who
had previously signed the March 4 letter agreeing to take it. Subsequently
however, when asked who changed emplosee Dalton's mind about taking
the test after she had signed the authorization, Tucker gave the following
testimony:
A. Evervbody wanted to do what everyhody else was going to do, so
to speak This was the general thing. In other words there was no con-
clusion as to whether they would or whether they would not Everything
was just as if we hadn't had a meeting.
MR. I AN(;: Mr. Tucker, are you saying that the only conclusion at
the meeting that was held on March the 9th was that the employees had
indicated that they were going to either all take the test or no one was
going to take the test?
A, No, that's not true at all.
Q. Did you not say that the employees had indicated that some of
them had indicated that they were going to go with the majority?
A. Only one had made that statement
Jcit(;G BISGYER: And that one was?
TIE* WIrNESS: That was Henry Boards
Q. How about Sara Dalton?
A. Sara in a general conversation during the meeting had soiced her
opinion, you know, that she wasn't sure about what she wanted to do.
Q But she had presiousls signed the letter stating tht she would he
willing to?
MR. LAN(: Are siOU now saying that the employees did not indicate a
clearcut decision at those meetings?
A. Well, that's right. There was no clearcut decision. That's true
I am not impressed by Tucker's testimony regarding the employees' al-
leged unalterable refusal to submit to a polygraph test. I find his testimony in
that respect to be evasive, inconsistent, and unreliable, as I subsequently find
his testimony to be concerning the reason tor closing the Respondent's stores
and terminating all the employees and rehiring only three of them to work in
the reopened stores
er denied the request, Johnson remarked that what the em-
ployees needed was a union. This evoked Tucker's reponse
that there w'as no need for a union. When Johnson ex-
pressed disagreement because employees were unable to se-
cure raises or benefits, Tucker reacted with a warning that
he would fire every employee and close the stores if the
employees tried to organize a union. ' °
Following this episode, there is no evidence of any em-
ployee action to interest a union to organize the Respon-
dent's employees until about March 8. On that date, Linda
Johnson communicated with Ralph Barron. the Union's
business representative, to apprise him of the employees'
dissatisfaction with their working conditions and benefits
and their desires for union representation. Barron there-
upon explained the procedures to achieve representation
and advised her that he would send her union authorization
cards for employees to sign. In addition, Barron arranged to
meet with the employees at Johnson's home the following
Monday evening. March 14. On March 9, Barron mailed
authorization cards to Johnson who proceeded to solicit sig-
natures from employees and to invite them to the scheduled
meeting. On March 14, the meeting was held in Johnson's
home attended by II or 12 employees. Barron discussed the
tUnion's objectives and the advantages of union representa-
tion. On this occasion, eight employees signed authorization
cards' which were handed over to Barron together with
several other cards previously signed by employees not in
attendance at this meeting.
The next day, March 15, Barron received additional
cards bringing the total number of cards signed by employ-
ees to 14'2 out of 21 store employees. The same da:. Barron
sent the Respondent a letter by certified mail with return
receipt requested, notifying it that the Union represented a
majority of the Company's employees at its four stores and
requesting recognition as the employees' bargaining repre-
sentative in such appropriate unit. The letter also stated
that the Union was ready to submit the signed authoriza-
tion cards to the Company or an impartial third party for
verification and asked for a meeting. As will later be dis-
cussed. this letter was received by the Respondent on
March 18, following the store closings and the discharges of
all the employees.
3. Subsequent events; closing of stores and mass
discharge of employees on March 16
On March 15, the day after the union meeting mentioned
above, Supervisor David Williams, sensing a change in em-
plo'ees' attitude toward him. engaged employee Forrester
in a conversation at the Shive Lane store in which he asked
Forrester what was going on among the employees that he
is The foregoing finding is based on the convincing testimony of Johnson
who impressed me as an individual not inclined to manufacture a story.
Although conceding that he might have said that the employees did not need
a union. Tucker denied making the threatening remarks. As previously
noted. I do not consider Tucker a reliable witness and reject his denial.
L Employee Forrester's card was erroneously dated March 15 instead of
March 14.
i: The emplosees who executed these cards were Horton. Welch, Johnson.
l.ewis, Boards. Pemberton, Cadle. Forrester. Connor. Pearson. Dalton. In-
gram. Anderson. and Hill. On March 17. a das after the stores were closed,
Dean Hays Alice Hays, and Roey Evans also signed cards.
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Williams) should know about as the employees were shun-
ning and avoiding talking to him. Forrester replied that he
did not know what Williams was referring to, noting that he
(Forrester) was not treating him any differently than be-
fore.'3
It appears that during the week following management's
March 9 meetings with the employees the Respondent's
President Tucker took no measures to implement his inten-
tion to pursue a polygraph program or to apprise the em-
ployees that they would be required to submit to such an
examination in order to retain their jobs. For all that also
appears, he continued to conduct his business without ma-
terial change until March 16. According to Tucker, he de-
cided that morning to cut expenses in order to escape bank-
ruptcy by terminating the inventory and all the other part-
time employees. About 8 a.m., Tucker summoned Supervi-
sor Williams to his office, advised him of his decision and
then both promptly proceeded to terminate a number of the
part-time employees.
About 9:30 the same morning Williams telephoned em-
ployee Forrester at the Shive Lane store to inquire how
Shirley Aldridge, a new employee who first started working
for the Respondent a few hours earlier, was progressing. In
the course of this conversation, Williams advised Forrester
of Tucker's decision to terminate the inventory and the
other part-time help. The conversation ended with Wil-
liams' bringing up the subject of his inquiry of the previous
day to the effect whether Forrester was sure that he wasn't
aware of anything concerning which Williams should know.
Forrester again replied that he did not know what Williams
was talking about.
In the meantime, the same morning Tucker and em-
ployee Lora Horton drove to a police court hearing involv-
ing a charge of shoplifting allegedly committed at the Rus-
sellville Road store where Horton worked. On the way to
the court, Tucker informed Horton that earlier that morn-
ing he had dismissed the inventory and other part-time em-
ployees in order to cut expenses, which action was necessi-
tated by his losses, and that he and Supervisor Williams
would thenceforth handle inventory. In answer to Horton's
inquiry whether any part-time help would, nevertheless, be
employed weekends, Tucker answered in the negative, add-
ing that he intended to raise prices and reduce volume and
thus eliminate the need for such help.
The police court matter lasted only a short while and
concluded with the release of the accused individual, to
Tucker's disappointment. Tucker and Horton thereupon re-
turned to Tucker's office, during which ride Tucker did not
indicate in any way that he was considering closing his
stores and terminating all his full-time employees. Upon
their arrival at Tucker's office no later than 10 a.m. (May
16) Horton drove off in her own car to the Russellville
Road store where she resumed her duties.
Tucker testified that either on the way back to his office
or after returning there, he suddenly made up his mind to
close his stores and to discharge all his remaining employ-
ees. He thereupon telephoned Williams at the Russellville
Road store about 10 a.m. and, upon Williams' arrival at the
3 This conversation embodies Forrester's credited testimony. Williams ad-
mitted having a conversation in which he inquired about employees shun-
ning and being unfriendly to him.
office, Tucker advised Williams of his decision.'" According
to Williams, Tucker told him he took this action because
"he had had all of the losses he could take." Tucker, his
son, and Williams then immediately proceeded to close
down the stores, beginning with the Russellville Road store,
and to inform the employees of their termination. While at
the Russellville Road store, Tucker told employee Horton
that he took this action on account of his losses and his
inability to identify the employees responsible for them.
However. Tucker did not refer to the employees' lack of
cooperation to locate shortages. When Tucker subsequently
closed the Gordon Avenue store, he told employee Boards
that he and the other employees were being fired because of
the shortages and that he (Tucker) was going "to start
over." The stdre closing operation was completed by II
a.m.
Employee Ann Cadle, while on sick leave, was notified of
her discharge by Tucker when he called her at her mother's
home. She credibly testified, without contradiction, that
Tucker informed her that he had closed all his stores and
fired all his employees, including her and that in response to
her remark that she could not be replaced. Iucker indicated
agreement." Cadle further testified that, while Tucker also
expressed his concern over shortages, Tucker stated that
"the reason [for his action] was that things went on behind
his back. Everyone was pulling in different directions and
the cool treatment that he and Mr. Williams were receiving
from employees." She testified that on this occasion Tucker
did not specifically mention that he was unable to get full
cooperation from the employees. Employee Linda Johnson
also received notification of her discharge when Tucker
telephoned her and in an excitable voice informed her of
the store closings and employee terminations.
To justify his undeniably precipitate action in closing his
stores and discharging his employees en masse, so soon after
the employees had designated the Union as their bargaining
representative, Tucker furnished the following testimony:
As a witness for the Respondent, he explained that since the
March 9 meetings"6 he had not received any "cooperation"
from the employees to solve his problem of losses. When
asked by the Administrative Law Judge what kind of "co-
operation" he sought from the employees, Tucker answered
that he didn't "care how guilty" they were in the past, if
they had "stolen" from him, since he was "willing to forget
anything in the past" if they would "as a group, join hands
with ... [him], with one common goal in mind and that's to
make a profit." Continuing with his explanation, Tucker
seemed to indicate that the employees' lack of cooperation
was their previous refusal to submit to the polygraph test.
'1 The precipitate nature of the discharges and store closings is indicated
by the fact that only a day before (March 15), Williams had advised em-
ployee Sara Dalton that she was granted a raise which would be reflected in
her next paycheck. Moreover, as shown above, employee Shirley Aldridge
had started working for the Respondent that same morrung as a new hire.
"i Tucker also admitted that at the conclusion of the second polygraph
meeting on March 9, he offered Cadle a manager's job at the ByPass store as
soon as she was well enough to return to work. On this occasion, in the
course of discussing the shortages, Tucker also agreed that neither Cadle nor
Horton was a thief and remarked that shortages could have resulted from
"the way they Ithe inventory employees] shuffled the inventory."
51 As noted previously, the March 9 meetings were pnncipally concerned
with the employees' taking a polygraph examination as a means of solving
the problem of lost profits.
1192
TUCKER'S MINIT MARKETS
This idea was pursued further by the Administrative Law
Judge in Tucker's examination.
Q. And their uncooperativeness was their refusal to
take the lie detector test which you felt would rectify
the situation?
A. No sir, no sir, not to object but the thing that I
really meant in this matter, no one came back with any
counterproposals or any kind of solution that they
would suggest that we might do to work this thing out.
It was just that they didn't want to go along."
In answer to the Respondent's attorney's subsequent ques-
tion, Tucker testified that he did not get from the employees
any other such suggestions or solutions to his problems-
adding, "Obviously I knew I wasn't."
Under further examination by the Respondent's attor-
ney. Tucker testified-
Q. Now,... when you made your decision to close
all of the stores and to fire all of the employees, did you
fire them because they refused to take the Polygraph
test or because there was no unanimous agreement...
to take the test?
TEin WITNESS: The Polygraph test-they didn't
agree to it.8
MR. MILLIKEN: Well, let's put it this way. Mr. Tuck-
er, what was the reason for you-(interruption)
THE WIlNESS: Just because I could not get any co-
operation out of my people when I had already lost
forty some thousand dollars. They weren't even willing
to cooperate with me in any way to help me find out
where my leak was.
Q. Now, for say the week or ten days before March
the 16th, what was your frame of mind about this
thing?
A. The only thing that was on my mind was the fact
that these employees were out here as a group running
in every direction and me supposedly, supposed to be
their boss and talking about how we could try to find
out how to grasp a solution to stop the leak. I was
going bankrupt is what it really boils down to if I
would have continued.
During his cross-examination by the General Counsel
Tucker was implored to state concisely and clearly why he
discharged all his employees and he offered the following
response:
A. Because of the disorganization, in general, I
could not put my finger on anybody and get an opin-
ion. It was what somebody else wanted them to do
rather than what I wanted them to do. In other words,
they are going to go along following some other direc-
tion rather than me, which I was the one that was
paying them.
Q. But it was because of these losses, is that right?
' The record is devoid of any evidence that the Respondent solicited any
solutions to the problem of losses at the March 9 meetings or subsequently.
The only significant proposal made at the March 9 meetings was the poly-
graph program.
is Under cross-examination, Tucker testified, in response to the General
Counsel's inquiry as to what he meant by lack of employee cooperation, that
"no one was willing to go along with the program and join hands with me to
make a profit."
A. Yes, that's exactly right. That is the prime rea-
son, certainly.
With the Respondent's verified answer to the complaint
in mind," the General Counsel proceeded to cross-examine
Tucker regarding the basis for the reasons set forth therein
for the discharges. Specifically, the answer alleges, among
other things, that the employees were discharged "for the
further reason that employees had become lax and ineffi-
cient and grossly incompetent in carrying out their duties to
the detriment of Tucker Enterprises, Inc. and had become
rude, uncooperative and inefficient in dealing with custom-
ers causing a decline in the number of customers at all four
stores." When asked whether the stores had lost customers,
Tucker replied that he could not answer because he did not
keep a count; that he did not know how many but that in
fact, there was a loss because "they [the customers] told me
so," although he could not identify the informants. Finally,
Tucker stated that the information came to him after the
discharges were effected and conceded that loss of custom-
ers was not a reason for the termination. As for rudeness of
the employees, Tucker also conceded that he learned about
it after the discharges. When, in a followup question, Tuck-
er was asked whether it was therefore true that employee
rudeness did not enter into his dicharge decision, Tucker
testified that "generally' speaking, that was not the thing. It
was the fact that I could not trust my inventory' with people
who were not keeping up with what was going on. This is
basically' what the situation is. This is where my shortage
mainly is." Upon being further questioned about this inven-
tory problem. Tucker testified that he expected his employ-
ees to curb shoplifting by "keeping a close watch over what
was left to their responsibility." 0
This led to Tucker's examination concerning another rea-
son set forth in his verified answer to the complaint men-
tioned above, as well as in his earlier signed response to the
unfair labor practice charges filed herein," that the "em-
i9 In par VI of the Respondent's answer, verified by Tucker as true, the
following appears as the reasons for the discharges:
[The Respondent] states that the employees mentioned in paragraph
Via of the Complaint were discharged for just cause and just reason:
that the just cause and just reason for the discharge of the employees
mentioned in paragraph Via of the Complaint was because there had
been persisting shortages in all four of the retail stores owned by Tucker
Enterprises, Inc. for several months, not only in cash shortages but in
loss of inventory and stock of goods without explanation from the em-
ployees and without cooperation from them in determination of the
cause of the shortages and for the further reason that employees had
become lax and inefficient and grossly imcompetent in carrying out
their duties to the detriment of Tucker Enterprises, Inc. and had become
rude, uncooperative and inefficient in dealing with customers causing a
decline in the number of customers at all four stores. Further, the em-
ployees had been belligerent and uncooperative in the efforts of Tucker
Enterprises, Inc. to solve the problems which had caused considerable
losses to Tucker Enterprises, Inc. and refused to make any effort relat-
ing to the correction of the problems which existed. As a result the
financial and business condition of the four stores suffered to such an
extent that Tucker Enterprises had no other alternative but to discharge
those employees who were responsible.
An earlier document, which was a statement of position in response to the
unfair labor charges, contained similar reasons.
20 Yet, there is credible testimony in the record that employees were con-
stantly calling Tucker's attention to the shoplifting problem and requesting
more help to reduce such losses but that Tucker rmnimized the seriousness of
that problem and denied the employees' request.
21 The following paragraphs of the response to the charges were read into
the record:
The employees of Tucker Enterprises. Inc. were discharged not by
(Continued)
1193
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
ployees were grossly incompetent in carrying out their du-
ties." Tucker affirmed the truth of that assertion, which he
testified was demonstrated by the fact that he was unable to
derive 23.5-percent gross profit out of his grocery operation.
He further testified that the employees were "grossly in-
competent evidently during the full length of their employ-
ment." although he also acknowledged that many of them
were long-time employees with whom he had maintained
good relations and who were rehired on different occasions
after previously quitting their jobs with the Respondent. In
this connection, Tucker testified that in using the phrase,
"in addition" in the statement in his response to the charges
that "in addition employees have become lax and inefficient
and grossly incompetent in carrying out their duties to the
detriment" of the Respondent, he "really" did not intend
the quoted assertion to be a separate and independent rea-
son for the discharge but rather was part of the explanation
of the shortages set forth in the preceding paragraph. A
similar explanation was given by Tucker with respect to the
use of the phrase "for the further reason" pertaining to em-
ployee incompetency and misconduct alleged in his verified
answer to the complaint.
Testifying a day before as an adverse witness called by
the General Counsel concerning the motivating cause for
his discharge decision, Tucker stated, in effect, that he
could not remain in business with his former employees
and, although "I am not blaming anybody and I have not
blamed anybody . . . I am blaming them with something.
Either they were taking merchandise or they were allowing
merchandise to be taken by the people." Upon being con-
fronted with his affidavit given to a Board agent in which
Tucker stated that he became upset with his employees
"trying to run my business," he began fencing verbally with
the General Counsel when the latter referred to the quoted
statement as the reason previously advanced by Tucker for
the discharges. Thus, Tucker testified he was "[d]issatisfied
in [the employees] trying to run it out of business." Then,
after reading the above-quoted statement from his affidavit,
Tucker testified that he meant by it that the employees were
"running . . . [his] business into bankruptcy." When asked
whether it was true that among the discharged employees
were a number whom he had personally known and
trusted, Tucker responded in the affirmative, adding that he
had "now . .come to the point where . . . [he questioned]
why [did he] ever ... trust them." When asked whether he
reason of any Union activity or attempt to organize but because there
had been persisting shortages in all four of the retail stores owned by the
Tucker Enterprises. Inc. for several months not only in cash shortages
but in the loss of inventory stock of goods without explanation from the
employees. The statement made here relates to the shortages of cash
and the shortages of inventory stock of goods for a considerable period
of time and may be very easily verified by the examination of the audit
reports and records of Tucker Enterprises, Inc.
In addition employees have become lax and inefficient and grossly
incompetent in carrying out their duties to the detnment of Tucker
Enterpnses. The employees also have become rude and uncooperative
in dealing with customers causing a decline in the number of customers
at all four stores.
In contradiction of the Respondent's assertions of incompetency and mis-
conduct of employees embodied in this document and in the Respondent's
previously quoted answer to the complaint, the General Counsel presented
contrary testimony of some 15 employees whom I credit as reliable and
trustworthy witnesses
was saying that on March 16 he no longer trusted his em-
ployees. Tucker answered:
Not to the point of their personally taking, but the
action that the' had taken, but the lax manner in
which they were running my business in letting my
merchandise leave if they were not taking it them-
selves, running customers off with their ill-type person-
alities and things of this nature, They were running me
into bankruptcy and I didn't have any alternative.
fIhis last response invited a line of inquiry by the General
Counsel which elicited answers inconsistent with those sub-
sequently given by him as Respondent's witness, as recited
above. Thus, Tucker was unable to identify employees who
"ran off' customers since the complainants had identified
the employees "just [in] general conversations." When ques-
tioned whether he had talked to the offending employees
about the complaints, Tucker answered in the negative be-
cause the complaints were made after the employees were
no longer in his employ. Pursuing this line of interrogation,
the following developed:
MR. LAN(;: SO these allegations of rudeness or im-
proper treatment of customers were not brought to
your attention before the discharges?
A. Not as generally as theys have been since. A lot of
times people have a tendency to hold back.
Jurl)(;i BIS(;YER: The point is, are you now saying
that you also received complaints about individual em-
ployees before the)y were fired?
THE WIrrNFSS: Right, yes sir, right.
Q. Were those employees identified by the com-
plainants to you ... ?
A. I am certain at the time, this is a fact, yes sir. I
am certain at this time.
Q. And did you speak to the employees who . . .
[were] the offender[s]?
A. No sir, they weren't available because they were
not the employees of mine.
Q. But you said before they were fired you had re-
ceived complaints? Didn't you say that just a minute
ago?
A. Not to my knowledge. I don't recall that. Maybe
I have but I can't specifically point to specific times
and people and what have you. Generally.
Q. Before you fired these individuals and closed
your stores, did anyone, any customer come to you to
complain about the treatment that any employee had
given that particular customer'? I am talking about be-
lore you closed your stores?
A. I couldn't specifically make a statement on that.
Your Honor.
Q. Then I suppose you can't make a specific state-
ment as to whether or not you spoke to these employ-
ees about their ill-treatment of customers before they
were fired?
A. Normally this is done by the supervisor again,
because I don't go to the people themselves because
this shows disrespect to my supervisor if I did this.
Q. Did you speak to your supervisor about the
treatment ... of customers to the employees?
A. I would have to say I can't be specific about that
1194
liICKER'S MINII MARKETS
at this point, Y"our Honor. I would have to say at this
point I can't be specific. I won't say that its not possi-
ble. I won't say that.
Tucker categorically denied being aware that the Union
was in the picture at the time he closed down his stores and
terminated his employees. In fact, he testified that he first
learned about the Union's presence at 3:30 p.m. on March
16. when following the store closings and the discharge of
his employees he received a telephone call from a television
newsman who asked him for a statement concerning the
store closings and discharges. According to Tucker, he ex-
plained to the newsman his problem of large inventory and
cash shortages. Tucker further testified that the newsman
thereupon informed him that he understood that Tucker's
"employees were forming a union behind . .. [his] back"
and that the Retail Clerks Union from Nashville was repre-
senting them. Disavowing that he had had any union em-
ployees. Tucker testified, the telephone conversation ended
and he then turned to his former employee, Alice Hays.
who was seated near his desk, and inquired of her whether
she knew "anything about anybody wanting a Union in this
organization" and she replied that she did not know about
other people but that she and he son, Dean. who was also a
discharged employee, were not members.2 ' In addition.
Tucker testified that he was not "exactly sure" whether he
also asked Hays for the identity of the employees who had
signed union cards but that he "might have." although he
was not saying that he did not pose that question to her.
I find it extremely difficult to, and do not, attach any
credence to Tucker's testimony concerning his motivation
for the store closings and employee terminations and his
professed lack of knowledge of the Union's organizational
interest in the Respondent's employees, in view of the dem-
onstrated ambiguities, evasiveness. inconsistencies, and ex-
aggerations in his testimony related above, as well as in his
testimony respecting other matters recorded in the tran-
script of testimony of this hearing.
4. Reopening of the stores
On Friday, March 18. Tucker began the process of re-
opening the stores, rehiring only three former employees
with the rest of the store personnel being new employees.
notwithstanding the fact that the former employees were
experienced and, in the past were trusted: had relatively
long periods of employment with the Respondent; and
who, I find, were not unalterably opposed to submitting to
a lie detector test if required to do so. The Shive I ane store
was the first one to be reopened on the indicated date. To
operate this store Tucker rehired former employees Joyce
Anderson and Shirley Aldridge. Tucker testified that the
reason he reemployed them was that they could not have
been involved in the shortages because Anderson had previ-
ously worked for the Respondent only 2 weeks during
22 Tucker testified that Alice Hays was in her office at the time to discuss
the store closings and her discharge; that. in response to her denial that she
had taken anything from the stores, Tucker conceded that his action might
have resulted in the firing of some inno cent employees who were personally
not guilty of taking merchandise without paying for it: and that since he was
unable to separate the guilty from the innocent, he had "no alternative but to
wipe the slate clean and start anew." It appears that Alice and D)ean Hays
signed union authorization cards the next day, March 17.
which period she was out sick for at least a week and was
not present at the March 9 polygraph meeting, and Al-
dridge had started working for the Respondent the morning
the stores were closed. Tucker volunteered the statement
that at the time he rehired Anderson. the latter advised him
that she had previously signed a union card. : '
On Saturday afternoon, March 19, "practically all, a
goodly number" of the fired employees began to picket the
reopened Shive Lane store-2 and to distribute handbills to
customers, appealing to them to withhold patronage of the
store. The picketing lasted until approximately 6:30 p.m.
when a deputy sheriff served a local court Restraining Or-
der on Union Business Representative Barron and a num-
ber of pickets. Although Tucker testified to his indifference
whether or not employees were represented by a union, for-
mer employees Boards and Johnson credibly testified, in
substance, that at the local court injunction hearing held on
March 28 Tucker gave testimony that he could not and
would not operate under a union.
On March 19, the second store to reopen was the Gordon
Avenue one, while the remaining ByPass and Russellville
Road stores reopened the following Monday, March 21.
The only other discharged employee to return to work was
Lawrence Gibson who was rehired under the following cir-
cumstances:
On Sunday, March 20. T ucker telephoned Gibson at a
service station where he was then employed and invited
him to his office. Accepting this invitation, Gibson arrived
at Tucker's office where Tucker oflered him a job which
Gibson accepted. Tucker testified as an adverse witness that
in the course of their conversation, he "(p]ossibly . . . may
have" asked Gibson about this "so-called Union move-
ment" and that he "probably did" but he didn't know
whether or not he did, although he was "sure there was a
general discussion." After being shown his affidavit given to
a Board agent, Tucker agreed to the truth of his statement
that he asked Gibson how he felt about "the so-called
Union movement" and that Gibson replied that "he told
the other employees that it wouldn't work and that he
didn't want anything to do with it."25 Tucker further testi-
fied that during this conversation, he hired Gibson because,
after the March 9 meeting mentioned above.2 6 Gibson had
expressed sympathy for Tucker's position and offered to
help him to reorganize the stores and do whatever he
needed "in the way of a security program." Tucker, how-
ever. also admitted telling the Board agent during the inves-
tigation of this case that he rehired Gibson because "he did
not turn into a traitor" against him. When asked what he
meant by the phrase "turning into a traitor," Tucker testi-
fied that Gibson "was the only one who was really sincerely
interested in coming along and helping me get to the bot-
tom of my problems. I had almost $40 thousand stolen and
no one else ... want[ed] to even cooperate whatsoever and
2" Anderson signed a union authorization card on March 14.
24 On March 17, Union Business Representative Barron met with the dis-
charged employees in Linda Johnson's home where it was decided that the
stores would be picketed when the) reopened.
' Employee Johnson credibly testified. without contradiction, that she had
unsuccessfully solicited Gibson to sign a union card.
26 Tucker subsequently testified that he supposed that the last time he
spoke to GCibson before the stores were closed was the da, of the March 9
meeting.
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was just a matter of chaos, you might say." Tucker also
admitted, after refreshing his recollection by reading his
pretrial affidavit, that he noticed that Gibson was not one
of the pickets in front of the Shive Lane store on March 19.
Although Tucker was concededly hard pressed to locate
competent persons to employ in order to reopen and oper-
ate the stores, he never offered discharged employee Sarah
Dalton a job, despite the fact that in a conversation he had
with her on March 16, he acknowledged to her that she was
a good employee and suggested that she call him the latter
part of the following week when he would decide what to
do about the stores. Upon subsequently learning that the
Respondent was reopening its stores and hiring new em-
ployees, Dalton called Supervisor Williams the beginning of
the week of March 21 and inquired why she was not rehired
while Gibson was. Observing that Tucker might have a mis-
take in firing her, Williams stated that he would talk to
Tucker about her and then call her back later. However,
Williams never thereafter communicated with Dalton, as he
had promised he would do; nor were Dalton's efforts to
reach Williams and Tucker successful until Friday, March
25, when she finally reached Tucker. In answer to Dalton's
inquiry whey Gibson was rehired and not she, Tucker
stated that Gibson was "cooperating in everything." Dalton
thereupon replied that she, too, had been cooperative and,
indeed, had signed the agreement to take the polygraph
test. At this point, Tucker asked her whether she had signed
a union card. When she answered in the negative, although
she had actually signed a card on March 15, Tucker in-
credulously repeated his question two or three times and
noted that before he could rehire her she would have to
secure clearance from his attorney, as Gibson had done.
Tucker nevertheless added that as her former full-time27 job
had already been filled, if there were an opening for her it
would be as a part-time employee.25
On April 1, several days after the local court injunction
hearing involving the picketing in this case was held, Linda
Johnson, who had worked for the Respondent during three
different periods, telephoned Tucker and inquired why Gib-
son and none of the other discharged employees had a job
with the Respondent. Tucker replied that it was because
Gibson was "the only loyal employee and that the rest of us
were traitors." When the subject of shortages was raised,
Tucker acknowledged that Johnson had never taken any-
thing from him."
5. The Respondent's rejection of the Union's request for
recognition
As shown above, the Union on March 15, a day before
the store closings, sent the Respondent a letter by certified
mail, requesting recognition as the employees' bargaining
representative. According to Tucker's testimony, he first be-
came aware of this letter when a post office carrier informed
him about I 11 a.m. or noontime of March 18 that there was
2' Prior to her discharge, Dalton had worked 3 years for the Respondent as
a full-time employee.
2s The foregoing findings are based on Dalton's undisputed, credible testi-
mony.
29 The foregoing findings pertaining to Johnson's telephone conversation
with Tucker are derived from Johnson's testimony which I credit. According
to Tucker, Johnson had never approached him about getting her job back: at
least he did not recall it.
a "registered" letter for him in the post office.3 0 Assuming
that the letter was from the Union, Tucker summoned his
attorney to accompany him to the post office to witness its
receipt. There, Tucker accepted delivery of the letter at 1:50
p.m. and signed the notice indicating the date and time of
receipt.
By letter dated March 19, the Respondent's attorney, on
its behalf, answered the Union's letter, rejecting the Union's
request for recognition, as follows:
Mr. Tucker denies that you represent a majority of
his employees, and states that he had no employees at
all on March 18th, 1977 when the letter was received
by him as he had closed all of his stores on the morning
of March 16th, 1977 for just and reasonable cause.
Demanding that the Union remove its illegal picket line at
the Shive Lane store, the letter enclosed a photocopy of a
Restraining Order issued by the Warren Circuit Court.
6. The disappearance of Union Business Representative
Barron's attache case; the Respondent's possession of the
Union's file
In the evening of March 19, after Union Business Repre-
sentative Barron was served with a local court Restraining
Order during the picketing of the Shive Lane store, Bar-
ron's attache case which contained, among other things, the
Union's file pertaining to the organization and representa-
tion of the Respondent's discharged employees, disap-
peared from his car which was parked in the vicinity.
Among other papers in this file, were the 17 union authori-
zation cards signed by the employees3 and employee state-
ments pertaining to their discharge. Tucker testified that he
first saw "this file, or a file or some file" on March 19 when
Barron left it at a telephone booth near the store where he
made a call following the service of the Restraining Order
on him. However, Tucker testified, he did not call Barron's
attention to this oversight because he (Tucker) "felt . . .
[that the file] was in pretty good hands." The Union first
became aware of the existence of its file 7 months later on
October 19, the first day of the hearing in this case when, in
the course of Tucker's examination, as an adverse witness,
by the General Counsel concerning his knowledge that em-
ployees had signed union authorization cards, Tucker an-
nounced that he had the cards in his possession and
brought them to the hearing. Tucker was thereupon ques-
tioned respecting his possession and inspection of the
Union's file and his failure to return it sooner and gave the
following testimonial account:
Around the end of March, "[s]omeone," whom Tucker
could not identify,32 telephoned Tucker's son at his home
and informed him that he had in his possession "some-
thing" he believed Tucker "would like to have." "Evidently,
° The envelope in which the letter was enclosed bore the Union's name
and address in Nashville, Tennessee, and a handwritten notation "Closed 3-
16-77" and a stamped notation "lst Notice March 17, 1977."
1' When the Union's attache case and the Union's file were subsequently
returned at the hearing, the 17 signed authorization cards were introduced
and received in evidence.
52 Tucker testified that, although he asked his son for the identity of the
individual from whom he had received the Union's file, his son declined to
reveal it.
1196
TUCKER'S MINIT MARKETS
... [his] son met" that individual and received the file which
his son, in turn, delivered to Tucker. This file contained
"everything that's got to do with the Union by the employ-
ees." Although Tucker was aware that the file might belong
to Barron or some other Union official or the Union itself,
Tucker testified that he "didn't have any responsibility at
all to return it." It is not clear how long Tucker retained the
file before bringing it to his attorney who advised him to
return it if he could ascertain the rightful owner. However,
as indicated above, Tucker did not return the file until the
hearing in this case. As an adverse witness, Tucker testified
that he had "no idea who the owner ... [of the file was] but
.. .[he thought he] might know." Later, as a witness for the
Respondent, he testified that he did not "know who its
rightful owner was.... [He] had no idea ... [but he] knew
it belonged to somebody involved in this session right here
but . .. [he] didn't know who."
I have no doubt that Tucker was fully aware that the file
belonged to Barron, or at least to the Union or one of its
representatives. This is indicated in his testimony, as eva-
sive and inconsistent as it is. Moreover, I am equally con-
vinced from his testimony that Tucker had carefully and
thoroughly scrutinized the contents of the Union's file while
it was in his possession which obviously contained sufficient
information respecting its ownership. Indeed, when Tucker
visited his attorney in October, 7 months after receiving the
latter's advice to return the file, and was asked bv his attor-
ney whether he still had the Union's file, Tucker gave an
affirmative answer, asserting that he saw no reason to take a
trip to Nashville, where the Union's offices were located, "if
that is who it belonged to," and that he kept the file in his
safe until the owner inquired about it. How Tucker could
expect the owner to make an inquiry, if Tucker did not
notify him that the file was in Tucker's possession, is be-
yond imagination.
C. Concluding Findings
1. With respect to the store closings, discharges, and
refusal to rehire
As previously noted, the General Counsel contends that
the Respondent, in violation of Section 8(a)(1) and (3) of
the Act, closed its stores, discharged its employees and re-
fused to rehire all, except three, of his former employees to
man its reopened stores, because of the employees' actual
or suspected union interest and other lawful concerted ac-
tivities for their mutual aid and protection. The Respon-
dent, on the other hand, argues that its action was legiti-
mately motivated by large cash and inventory shortages it
had been experiencing for years, the employees' lack of co-
operation to solve this problem, and the urgent need to get
"a fresh new start."
The question whether employees were illegally termi-
nated because of their union or other concerted activities is
not susceptible of easy determination as it essentially in-
volves an inquiry into the employer's state of mind. As di-
rect evidence of motive, which is not also self-serving, is
seldom available, resolution of his issue requires that all the
facts and circumstances surrounding the dismissals be care-
fully appraised with due recognition being accorded to the
settled principle that an emplover may discharge his em-
ployees for any reason, good, bad or indifferent, provided
he is not motivated by union considerations or the employ-
ees' other protected concerted activities. Of course, it is
equally well established that the existence of a "justifiable
ground for dismissal is no defense if it is a pretext and not
the moving cause."3
From my analysis of the evidence, I am led to the conclu-
sion that the store closings, mass discharges, and the refusal
to rehire were prompted by union considerations and the
employees' other protected concerted activities. It is clear
that within 2 days after the Union held its first employee
meeting where the employees designated the Union as their
bargaining agent, the Respondent, without any prior notice
or warning, closed its stores and terminated its entire work
force, despite the fact that it appears that the Respondent's
business was still profitable in the face of its asserted short-
ages34 and despite the further fact that many, if not most of
the employees were experienced and enjoyed long satisfac-
tory records of employment with the Respondent. Such pre-
cipitate action and timing suggest that the Union's appear-
ance on the scene was more than a strange coincidence
when the Respondent's President Tucker decided to take
those drastic measures. Quite the contrary, the Respon-
dent's sudden and extreme action lends support to the infer-
ence that the store closings and mass discharges were dis-
criminatorily motivated. Fortifying this inference is the fact
that the grounds advanced by Tucker at the hearing for his
decision were seriously undermined by his lack of candor,
evasiveness, inconsistencies, and ambiguities evident in his
testimony, as found above, and could only be viewed as
transparent attempts to conceal his true, but improper, rea-
son. As one court observed, "Where an asserted business
motive is discredited . . . the Board is free to treat it as
pretextuous and infer discrimination on account of union
activity."3
Also quite revealing of his unlawful motivation for the
store closings and discharges is the disparate treatment
Tucker accorded to all but threew of the discharged em-
ployees, most of whom had signed union authorization
cards, in rehiring for the reopened stores, as compared to
the treatment accorded to Gibson, a nonunion employee
whom Tucker was keenly aware had not joined the Union's
picket line at the Shive Lane store the day before Tucker
offered him a job. As discussed above, in their conversation,
which resulted in Gibson's reemployment, Tucker interro-
gated Gibson as to how he felt about the "so-called Union
movement" and Gibson, in turn, declared his antiunion at-
titude, informing Tucker that he had previously told the
employees that the Union "wouldn't work and that he
VN.L.R B v. Solo Cup Company, 237 F 2d 521. 528 (C.A. 8. 1956); to the
same effect. Shattuck Denn Mining Corporation (Iron King Branch) v.
N L.R.B, 362 F.2d 466, 470 (C.A. 9. 1966).
3 According to the Respondent's evidence, Its rate of gross profit for the 8-
month penod preceding the events herein was 19.08 percent instead of 23.5
percent, although the gross profit rate for the 3-year penod from 1973
through 1975 was only 19.31 percent.
35 Winchester Spinning Corporation v. N LR B., 402 F.2d 299. 306 (C.A. 4,
1968); see also Shattuck Denn Mining Corporation, supra.
15 As noted above, the three rehired employees were Gibson and Aldndge,
who began working for the Respondent a few hours before the stores were
closed, and Anderson who was in Tucker's employ for 2 weeks about half of
which time she was on sick leave.
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn't want anything to do with it." At the hearing, Tucker
admitted that he rehired Gibson because "he did not turn
into a traitor" against him. On the other hand, Tucker was
not favorably disposed to recall any of the other discharged
employees for a reason that appears to be related to the
employees' designation of the Union as their bargaining
representative. Thus, upon learning of Gibson's reemploy-
ment, employee Dalton, whom Tucker and Supervisor Wil-
liams regarded as a good worker, finally reached Tucker by
telephone after previous efforts to contact had failed and
asked him why Gibson was rehired and not she. When
Tucker answered that Gibson was "cooperating in every-
thing," Dalton replied that she, too, had been cooperative
and, indeed, had signed the agreement to take the poly-
graph test. Tucker thereupon asked her whether she had
signed a union card and received a negative answer, even
though Dalton had actually signed a union authorization
card on March 15. After repeating his inquiry two or three
times and apparently getting the same negative response,
Tucker informed Dalton that to be rehired she was required
to secure a clearance from his attorney. Employee Johnson
was similarly rebuffed a few days later in her attempt to
obtain reemployment for herself and the other discharged
employees. In a telephone conversation with Tucker in
which she protested Gibson's reemployment and Tucker's
refusal to rehire her and the other discharged employees,
Tucker pointed out that Gibson was "the only loyal em-
ployee and that the rest of . . . [the employees] were trai-
tors." In the context of the facts and circumstances herein, I
find that Tucker's references to traitors and Gibson's loy-
alty were thinly disguised references to union adherents and
Gibson's commendable antipathy to the Union.
The Respondent, nevertheless, argues that discrimination
could not be found as there is no proof that Tucker was
aware of the Union's presence at the time of his decision to
close the stores and terminate the employees. Although it is
true that there is no direct evidence of Tucker's awareness
of the Union at that time, this does not preclude the finding
of knowledge based on circumstantial evidence.
7 I find
such an inference of knowledge is warranted by the evi-
dence summarized above. Moreover, there is additional evi-
dence to support an inference of knowledge. Thus, a day
before the store closings, Supervisor Williams became sus-
picious that something exceptional was afoot which in-
duced him to ask employee Forrester what was going on
among the employees who were shunning him and whether
there was something he (Williams) should know about. The
next morning, approximately one-half hour before Tucker
decided to close down, Williams called Forrester and again
inquired whether he was sure he wasn't aware of anything
about which Williams should know. Also indicating that
Tucker did not make his decision without knowledge or
suspicion of the Union's presence are his remarks to em-
ployee Cadle when he notified her of the store closings and
the termination of all the employees, that he took those
measures because "things went on behind his back. Every-
one was pulling in different directions and [he and Williams
were receiving] . . . cool treatment . . . from employees."
In sum, I find that the Respondent closed the stores, ter-
"7 N.L.R.B. v. Wal-Mart Stores, Inc., 488 F.2d 114, 116 118 (C.A. 8, 1973).
minated all the employees and refused to recall all but three
employees to operate the reopened stores in reprisal for the
employees' actual or suspected union interest and activities.
Indeed, the Respondent's action effectuated the prophetic
warning Tucker made to employee Johnson just 2 months
earlier to close the stores and fire the employees if the em-
ployees sought union representation. Accordingly, I con-
clude that the Respondent's conduct constitutes discrimina-
tion in employment to discourage union membership and
therefore violates Section 8(a)(3) and (1) of the Act. The
fact that Anderson, one of the three reemployed employees,
had informed Tucker when she was rehired that she had
previously signed a union card does not detract from a find-
ing of unlawful motivation in the store closings, mass dis-
charge and refusal to hire. Apart from not knowing what
commitment Tucker had exacted from Anderson as the
price of reemployment, her treatment does not exculpate
the Respondent for the discrimination practiced against the
other employees.3 8
In addition to antiunion motivation bor the store closings,
discharges. and refusal to rehire found above, I find that a
substantial contributing cause was the employees' protected
concerted activity in opposing and criticizing the Respon-
dent's proposed poloygraph program. This plan was actu-
ally the only means the Respondent was then considering to
resolve the problem of cash and inventory shortages. With-
out repeating the details, it is clear that the employees had
misgivings about the program and only three employees
signed the agreement to take the lie detector test and one
verbally agreed to submit to the test. Sorely disappointed
by this poor response and after failing to persuade a num-
ber of employees to change their attitude, Tucker tele-
phoned employee Lewis on March 7 and accused her of
being "an instigator" in telling employees not to submit to
the polygraph test. At the subsequent March 9 meetings,
which were called to explain the polygraph program, the
employees virtually in one voice expressed their criticism
and apprehension of, and objections to the validity and re-
liability of the lie detector test. Notwithstanding their mis-
givings about this program, the employees did not declare
an unequivocal position that they would not submit to the
test, if the Respondent required them to take it, even
though some employee sentiment was expressed that they
would follow the majority. However, at no time following
these meetings did the Respondent advise the employees
that they were required to take the polygraph test, much
less warn them that they risked discharge or other discipline
if they failed to heed the advice. Instead, as discussed
above, Tucker a week later abruptly closed the stores and
terminated the employees.
Section 7 of the Act guarantees to employees "the right
to ... engage in ... concerted activities for the purpose of
... mutual aid or protection.... "To terminate employees
for exercising this right violates Section 8(a)(1) of the Act.?
Even if the discharges are caused in part only by the em-
'3 Nachman Corporation v. N.L.R.B.. 337 F.2d 421, 424 (C.A. 7. 1964).
where the court observed that "a discriminatory motive, otherwise estab-
lished, is not disproved by an employer's proof that it did not weed out all
union adherents." Accord: N.L.R.B. v. W. C. Naborr dl/ba W(. C Nabors
Compain, 196 F.2d 272. 276 (C.A. 5. 1952).
1 N.,L. R B v. Washington Aluminum Companm, Inc., 370 U.S. 9, 16 17
(1962).
198
TUCKER'S MINIT MARKETS
ployees' protected concerted activities, they are still unlaw-
ful, despite the existence of good grounds for the termina-
tion.40
Guided by these principles, I find that the employees'
opposition to the institution of a polygraph program falls
within the ambit of concerted activity for mutual aid and
protection safeguarded by the Act. As shown above, this
was demonstrated especially at the March 9 meetings where
the employees aired their virtually unanimous criticism of
and objections to the polygraph program in an obvious elk-
fort to dissuade the Respondent from pursuing it further.
Certainly, the institution of a polygraph program. involving
as it does a degree of job insecurity, affects the employees'
working conditions and hence is a matter of legitimate con-
cern to the employees4 ' and for group action aimed at per-
suading their employer to abandon it. Of course, the Re-
spondent was privileged to inaugurate the polygraph
program in the face of employee opposition and to dis-
charge any employee who refused to take the test. How-
ever, this is not the case here, as the evidence establishes
that before the store closings and discharges the Respon-
dent had not put the program into effect or implemented it
or otherwise required the employees to comply or suffer
dismissal or other discipline.
In view of the foregoing. I find that the employees were
entitled to statutory protection for their concerted activity
in voicing their opposition to the Respondent's contem-
plated polygraph program and that their discharge for such
activity violated Section 8(a)(l) of the Act. Even were it
assumed that valid reasons to some extent entered into the
Respondent's decision to close the stores and terminate the
employees, I find that the employees' protected concerted
activity, as well as their union involvement previously dis-
cussed, was a substantial moving cause and that therefore
the store closings and discharges would still violate the
same statutory provisions.4?
2. With respect to interference, restraint. and coercion
As discussed earlier in this Decision, the Respondent's
President Tucker in mid-January warned employee John-
son that if employees selected a union to represent them, he
would close all his stores and fire every employee. On
March 20, while interviewing discharged employee Gibson
for reemployment, Tucker interrogated Gibson concerning
the "so-called Union movement." In the latter part of
March, when discharged employee Dalton applied for her
former job, Tucker inquired of Dalton whether she had pre-
viously signed a union card. When she replied in the nega-
tive, although she had signed a card before the store clos-
ings, Tucker skeptically repeated the same question two or
three times. Clearly,. under settled law, Tucker's warning
and interrogation were forms of interference, restraint, and
coercion of employees violative of Section 8(a)( 1) of the
Act.
"4 N.L.R.B . Adam Loos Boiler Works C(o., 435 F.2d 707 (C.A. 6. 1970);
J. P Stevens & Co., '. NL.R.B, 380 F.2d 292, 300 (C.A. 2. 1967). cert
denied 389 U.S. 1005.
" Medicenter, NMid-South Hospital, 221 NLRB 670, 675 678 11975).
"J. P. Stevens & Co., supra; ,V L R B . Jamesioa'n Sterling (Corp., 211
F.2d 725, 726 (C A. 2, 1954).
The General Counsel also contends that Tucker's reten-
tion of 1Union Business Representative Barron's file con-
taining organizational materials relating to the Respondent,
such as employee statements concerning their discharge
and signed union authorization cards, and Tucker's perusal
of' this material constituted a violation of Section 8(a)( 1 ) of
the Act. I agree.
As shown above, Tucker mysteriously came into posses-
sion of the file through his son and, despite his attorney's
advice to return it to the owner, retained it for some 7
months until it was returned in October dunng the trial of
this case. I find that Tucker, although fully aware that the
file belonged to the Union. if not to Barron. deliberately
refrained from notifying the Union that he had the file in
his possession. Moreover. I find that. while a perfunctory
inspection of the file was all that was needed to ascertain
ownership Tucker's testimony indicates that he carefully
read the contents including the employee statements and
signed union authorization cards. In these circumstances. I
conclude that Tucker's conduct, manifestly designed to col-
lect organizational information without the Union's permis-
sion and to which information he was not otherwise enti-
tled, amounts to an improper intrusion into the employees'
organizational activities and the Union's internal affairs
which Section 8(a)( 1) of the Act prohibits.
3. With respect to the refusal to bargain
a. Appropriate unit. the U iio i maloriVoti t(uIS
For several years, the Respondent has operated in the
Bowling Green, Kentucky, area, four retail convenience
grocery stores located three or less miles from each other.
The entire enterprise is managed by Respondent's President
Tucker from his office where policy is determined, payroll is
prepared. and employees are hired. On March 16, 1977,
there were a total of 21 full and regular part-time store and
inventory clerks in the Respondent's employ. In general,
one store clerk is assigned to run a store on each shift, while
inventory clerks. usually part-time employees, conduct in-
ventories periodically at each store. Several store clerks
regularly work in two or more stores. All of these employ-
ees are directly supervised by David Williams; are paid an
hourly wage rate: receive the same 10 percent discount on
purchases: have the same holiday pay arrangement: and
enjoy vacation and Christmas benefits which vary accord-
ing to their length of employment or some other reason.
The Respondent contends that four store clerks were des-
ignated store managers and therefore were supervisors to be
excluded from the bargaining unit. The individuals who oc-
cupied that position immediately before their discharges on
March 16. 1977. were identified by the Respondent as Ha-
zel Lewis. Ilora Horton, Henry Boards, and Pat Welch, who
was an acting manager temporarily replacing an individual
who had quit. The record establishes that store managers
do not have any employees working under them to super-
vise: nor do they otherwise possess supervisory authority
over employees. Instead, the evidence discloses that the
store manager's duties and working conditions are actually
the same as those of other store clerks except that the store
managers usually work on the day shift and have the addi-
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional responsibility of preparing certain daily reports and
making bank deposits. Accordingly, I find that, as store
managers do not possess any of the indicia of supervisory'
authority over employees as defined in Section 2(11) of the
Act, they are included in the unit. 43
On the basis of the foregoing facts, it is found that the
following unit is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b):
All full-time and regular part-time employees em-
ployed by Tucker Enterprises, Inc., d/b/a Tucker's
Minit Markets at its four stores in Bowling Green,
Kentucky, including store managers, but excluding all
office clerical employees, and all professional employ-
ees, guards and supervisors as defined in the Act.
As the evidence recited in the preceding part of this De-
cision establishes that since at least March 15, 1977, when
the Union mailed its request for recognition to the Respon-
dent, and March 18, 1977, when the Respondent received
the letter, more than a majority of the employees in the
bargaining unit had voluntarily signed authorization cards.
I find that at all material times the Union has been the
exclusive collective-bargaining representative of the em-
ployees in an appropriate unit.
b. The Respondent's refusal to recognize and bargain with
the Union
It is undisputed that, by letter dated March 19, 1977, the
Respondent rejected the Union's request for recognition
and refused to bargain with it as the employees' exclusive
representative on the ground that the Respondent no longer
had any employees in its employ on March 18 when it re-
ceived the Union's letter. However, having found above
that the Respondent's discharge of all its employees on
March 16 was in violation of Section 8(a)(1) and (3) of the
Act, the employees retained their status as employees. As
there is no question that the Union enjoyed majority status
evidenced by the signed authorization cards, and which sta-
tus was confirmed by the number of employee pickets at the
reopened Shive Lane store on March 19, 1977, I1 find that
the Respondent breached its statutory bargaining obliga-
tion owing to the Union and therefore violated Section
8(a)(5) and (1) of the Act.
IV. FHE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found and
take certain affirmative action designed to effectuate the
policies of the Act.
I have found that the Respondent unlawfully discharged
all its employees because of their actual or suspected union
14 It follows that Lewis, Horton, Boards, and Welch, as employees, are
entitled to statutory protection against their unlawful discharge, as I have
previously found.
U As noted above. Respondent's President Tucker subsequently had the
occasion, which I find he utilized, to verify the Union's majority status when
he inspected the authorization cards in the Union's file then in Tucker's
possession. These were the cards which were introduced and received in
evidence at the trial of this case.
and other protected concerted activities and unlawfully re-
fused to rehire all but three of them when it reopened its
stores shortly thereafter. To remedy these unfair labor prac-
tices, it is recommended that the Respondent offer all of the
discharged employees" - immediate and full reinstatement to
their former jobs or, if thsoe jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered by
reason of their unlawful discharge by payment to each of'
them of a sum of money equal to that which each one
normally would have earned from March 16, 1977, the date
of discharge, to the date of the offer of reinstatement, less
his net earnings during the said periods. Backpay shall be
computed with'interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). (See, generally, Isis Plumbing & Heating
Co., 138 NLRB 176 (1962)). To facilitate the computation,
as well as to clarify the named employees' right to reinstate-
ment, the Respondent shall make available to the Board,
upon request. payroll and other records necessary and ap-
propriate for such purposes.
In addition to the foregoing relief. I find that effectuation
of the policies of the Act requires that the Respondent be
ordered to recognize and bargain, on request, with the
Union as the exclusive representative of the Respondent's
employees in the unit found appropriate herein. This rem-
edy is plainly needed because the unfair labor practices
committed by the Respondent are of such a serious and
pervasive nature as to preclude the holding of a free and
fair election to redetermine the Union's majority status
which has already been established by signed union autho-
rization cards and confirmed by the number of pickets at
the Shive l ane store on March 19, 1977. Thus, the employ-
ees cannot lightly, ignore the extremes to which the Respon-
dent was willing to go to undermine their self-organization-
al rights when it closed its stores and discharged the
employees en masse in reprisal for their union and other
concerted activities and, for the same reason, thereafter re-
fused to hire all, except three, of the discharged employees
when it reopened the stores a few days later. Such conduct
can only serve to demonstrate to employees the Respon-
dent's hostility to the Union and its inflexible determination
not to deal with their duly designated bargaining represent-
ative. Indeed. not only did Tucker interrogate two employ-
ees concerning their union interest when they applied for
"J They are: Boards, Cadle, Connor, Dalton. Dearing, Evans, Forrester,
Alice Hays. Dean Hays, Hill, Horton, Ingram, Johnson, Lewis, Pearson,
Pemberton, Welch, and Young. Although three additional employees, Al-
dndge, Anderson, and Gibson, were reinstated when the Respondent re-
opened the stores, they will also be included in the reinstatement order as it
is not clear whether their reinstatement was in conformity with Board re-
quirements concerning reinstatement to their former or substantial equiv-
alent jobs without prejudice to their senionrity and other rights and privileges.
' There appears to be a special question concerning the amount of back-
pay due employee Hazel Lewis. She testified that on March 11, 1977, she
gave the Respondent notice that she was quitting her job but, at the request
of Supervisor Williams, she agreed to stay on for a week to enable Williams
to secure a replacement. However, while still in the Respondent's employ,
she and all the other employees were unlawfully discharged on March 16,
1977, as found above. In these circumstances, the determination of the
amount of backpay due her, as well as that due the other named individuals,
will be left to the compliance stage of this proceeding.
1200
t CKER'S MINIT MARKETS
their jobs back in the reopened stores and rehired only the
one who was antiunion, but Tucker also declared that he
did so because the latter individual was "loyal" while all the
other discharged employees were "traitors." The lingering
effects of the Respondent's action, which the Respondent's
President Tucker had warned an employee 2 months earlier
that he would take if the employees secured union represen-
tation is readily apparent. In short, I find that a bargaining
order is necessary to remedy the Respondent's unfair labor
practices and to prevent the Respondent from benefiting
from further delay in fulfilling its bargaining obligation."
In view of the nature of the discrimination for union sup-
port and sympathies which "goes to the very heart of the
Act."`4 there exists the danger of the commission by the
Respondent of other unfair labor practices proscribed by
the Act. Accordingly, I recommend that the Respondent be
ordered to cease and desist from in anv other manner in-
fringing upon the rights guaranteed employees in Section 7
of the Act." Posting of an appropriate notice is also recom-
mended.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case. I make the following:
CON( LU SIONS (F I.AwS
I. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of the employees listed below, to discourage
membership in, and activities on behalf of the Union, the
Respondent engaged in unfair labor practices in violation
of Section 8(a)(3) and (1) of the Act.
Shirley Aldridge
Joyce Anderson
Henry Boards
Ann Cadle
Kenneth Connor
Sarah Dalton
Toni Dearing
Roy Evans
Herman Forrester
Lawrence Gibson
Alice Hays
Dean Hlays
Winiford Hill
Lora Horton
Angela Ingram
Linda Johnson
tHazel Lewis
Gerald Pearson
Juanita Pemberton
"Pat" Delos Welch
Walker Young
4. By discharging the above-named employees for engag-
ing in protected concerted activities for mutual aid and pro-
tection, the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1 ) of the Act.
5. All full-time and regular part-time employees em-
ployed by the Respondent at its four stores in Bowling
Green, Kentucky, including store managers, but excluding
all office clerical employees, and all professional employees.
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4 N.L.R.B v, Gissel Packing Co, Inc, 395 U.S. 575 (1969); Trading Port,
Inc, 219 NLRB 298. 300 (1975); see also Beasleo Energs, Inc .d/b a Peaker
Run Coal Cormpan'. Ohio Division : 1, 228 NLRB 93 (1977)
N" L.R.B v Entwistle Mfg (o., 120 F.2d 532, 536 (C.A. 4. 1941).
49 L. R B s. Express Publishing Comparei, 312 U.S. 426, 433 (1942).
6. Since March 15, 1977 and at all subsequent times, the
Union has been the exclusive bargaining representative of
the employees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
7. By refusing since on or about March 18, 1977. to rec-
ognize and bargain collectively with the Union. as the ex-
clusive representative of the employees in the aforesaid ap-
propriate unit, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
8. By warning an employee that if the employees se-
lected a union to represent them, the Respondent would
close all the stores and fire the employees; by interrogating
an employee during a job interview concerning the "so-
called Union movement" and another employee who ap-
plied for her job back whether she had signed a union au-
thorization card: and, without the Union's permission, by
retaining the Union's missing organizational file and by in-
specting employees' statements concerning their discharges.
union authorization cards signed by employees, and other
papers which were contained in that file, the Respondent
interfered with, restrained and coerced employees in the
exercise of their statutory rights in violation of Section
8(a)(1) of the Act,
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
IUpon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER '
Ihe Respondent. Tucker Enterprises, Inc., d/b/a Tuck-
er's Minit Markets. Bowling Green, Kentucky. its officers,
agents, successors, and assigns, shall:
1. ('ease and desist from:
(a) Discouraging membership in Retail Clerks Union
Local 1557, Retail Clerks International Association, AFL-
CIO, or any other labor organization, by discharging or
refusing to rehire employees or in any other manner dis-
criminating against them in regard to their hire or tenure of
employment or any term or condition of employment.
(b) Discharging or refusing to rehire employees for en-
gaging in protected concerted activity for mutual aid and
protection with respect to wages, hours, or other terms and
conditions of employment.
(c) Refusing to recognize and bargain with the above-
named Union, as the exclusive representative of the Com-
pany's employees in the unit described below, concerning
rates of pay, wages, hours of employment and other condi-
tions of employment:
All full-time and regular part-time employees em-
ployed by the Company at its four stores in Bowling
Green, Kentucky. including store managers, but ex-
so In 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 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.
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding all office clerical employees, and all profes-
sional employees, guards and supervisors as defined in
the Act.
(d) Warning employees that, if they select a union to
represent them, it will close all its stores and terminate
them: coercively interrogating employees concerning their
union membership, sympathies and activities; and, without
the Union's permission, retaining the Union's missing file
and inspecting employees' statements concerning their dis-
charge or other organizational matters. union authorization
cards signed by employees or other union papers contained
in the Union's file.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted ativities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3) of the
Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer the employees named below immediate and full
reinstatement to their former jobs, or if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have
suffered by reason of their unlawful discharge, in the man-
ner set forth in the section of this Decision entitled "The
Remedy."
Shirley Aldridge
Joyce Anderson
Henry Boards
Ann Cadle
Kenneth Connor
Sarah Dalton
Toni Dearing
Roy Evans
Herman Forrester
Lawrence Gibson
Alice Hays
Dean Hays
Winiford Hill
Lora Horton
Angela Ingram
Linda Johnson
Hazel Lewis
Gerald Pearson
Juanita Pemberton
"Pat" D)elos Welch
Walker Young
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records. social security payment records. timecards,
personnel records and reports, and all other records neces-
sary or useful in analyzing the amount of backpay due and
the right to reinstatement and employment under the terms
of this recommended Order.
(c) Upon request, bargain collectively with Retail Clerks
Union Local 1557, Retail Clerks International Association,
AFL-CIO, as the exclusive representative of the Respon-
dent's employees in the above-described unit, concerning
rates of pay, wages, hours of employment, and other condi-
tions of employment and, if an understanding is reached.
embody such understanding in a signed agreement.
(d) Post at its grocery stores in Bowling Green, Ken-
tucky, the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director for
Region 9. after being duly signed by the Respondent's au-
thorized representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places
where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
n' In the event that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLsOYEIIS
POSTED BY ORDER Oi 1lil
NATIONAI. LABOR REI.AIiONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of those activities.
WI wI.l.L NOT discharge or refuse to rehire any em-
ployee or otherwise discriminate against him because
of his membership in, or activities on behalf of. Retail
Clerks Union Local 1557, Retail Clerks International
Association, AFL-CIO, or any other labor organiza-
tion.
WE W'ILL NOT discharge or refuse to rehire any em-
ployee for engaging in protected concerted activity for
mutual aid and protection with respect to wages.
hours, or other terms and conditions of employment.
Wi vWIl.l. NOT refuse to recognize and bargain collec-
tively with Retail Clerks Local 1557, Retail Clerks In-
ternational Association, AFL CIO, as the exclusive
representative of the Company's employees in the unit
described below, concerning rates of pay,. wages, hours
of employment, and other conditions of employment:
All full-time and regular part-time employees em-
ployed by the Company at its four stores in Bowling
Green, Kentucky, including store managers, but ex-
cluding all office clencal employees, and all profes-
sional employees, guards and supervisors as defined
in the Act.
WE WIL.l NOI warn our employees that, if they select
a union to represent them, we will close all our stores
and terminate them; or interrogate our employees con-
cerning their union membership, sympathies or activi-
ties: or, without the Union's permission, retain the
1202
TUCKER'S MINIT MARKETS
Union's file and inspect employee statements concern-
ing their discharge or other organizational matters,
union authorization cards signed by the employees. or
other union papers and documents.
W Wit l.l NOT in any, other manner interfere with.
restrain, or coerce employees in the exercise of their
right to self-organization. to form labor organizations.
to join or assist the above-named Union or any other
labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection. or to refrain
from any and all such activities. except to the extent
that such right may be affected by an agreement re-
quiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3) of
the Act.
Wi wll.I bargain collectively, on request, with the
above-named Union, as the exclusive representative of
all the employees in the unit described above. with re-
spect to rates of pay. wages, hours of employment, and
other conditions of employment and. if an understand-
ing is reached, embody such understanding in a signed
agreement.
Wi wtl.l. offer the employees named below immedi-
ate and full reinstatement to their former jobs, or if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of earnings suffered by reason of their unlawful
discharge.
Shirley Aldridge
Joyce Anderson
Henry Boards
Ann Cadle
Kenneth Connor
Sarah Dalton
Toni Dearing
Roy Evans
Herman Forrester
Lawrence Gibson
Alice Hays
Dean Hays
Winiford Hill
Lora Horton
Angela Ingram
Linda Johnson
Hazel Lewis
Gerald Pearson
Juanita Pemberton
"Pat" Delos Welch
Walker Young
All of our employees are free to become, remain or re-
frain from becoming or remaining members of Retail
Clerks Union Local 1557, Retail Clerks International Asso-
ciation, AFL CIO, or any other labor organization, except
to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act.
Tt ( KitR ENI iRPRIS-.S, IN( . D/B/A 'Tt 'KER'S
MINII MARKFI S
1203