Zolan Sales of Kansas, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1969

178 N.L.R.B. 238 (N.L.R.B. 1969)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zolan Sales of Kansas , Inc., Zolan Sales, Inc., d/b/a
Rail Sales Soopers and Retail Store Employees
Union , Local 782, affiliated with Retail Clerks
International Association , AFL-CIO. Case
17-CA-3738
August 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On May 13, 1969, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Zolan Sales of
Kansas, Inc., Zolan Sales, Inc., d/b/a Rail Sales
Soopers, Kansas City, Missouri, and Kansas City,
Kansas, their officers, agents, successors, and
assigns, shall take the action set forth in the Trial
'While agreeing with the Trial Examiner that Respondent 's refusal to
recognize the Union violated Sec 8(a)(5) and ( 1), and that an order to
bargain is appropriate , we do not adopt his rationale , except to the extent
that it is consistent herewith We find that Respondent ' s extensive unfair
labor practices so diminished the possibility of ensuring a fair election that
employee free choice is more effectively ascertained by the use of signed
authorization cards than by an election indeed, Respondent 's Sec 8(a)(1)
and (3 ) violations are of such a pervasive character as to require, in the
circumstances of this case , an order to bargain to repair their unlawful
effect The Sinclair Company, 164 NLRB No 49, enfd 397 F 2d 157
(C A I), 395 U S 575 Since on October 14, 1968, the Union had an
unquestioned majority of validly signed authorization cards, an order to
bargain is appropriate See N L R B v Gissel Packing Company, 395
US 575
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN, Trial Examiner This proceeding
tried before me at Kansas City , Missouri , on March 17
and 18, 1969, involves a complaint ' pursuant to Section
10(b) of the National Labor Relations Act (herein the
Act), which as amended alleged that Zolan Sales of
Kansas, Inc., and Zolan Sales , Inc., d/b /a Rail Sales
Soopers (herein Respondent or Company ), interfered with,
restrained , and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act, discriminatorily
discharged two employees because of their assistance to
and support of Retail Store Employees , Local 782,
affiliated with Retail Clerks International Association,
AFL-CIO (herein the Union ), and refused to bargain with
the Union as the duly designated majority representative
of its employees , in violation of Section 8(a)(1), (3), and
(5) of the Act. By answer , Respondent admitted certain
allegations of the complaint , but denied the commission of
any unfair labor practice . For the reasons hereafter stated,
I find that the credible evidence sustains the allegations of
the complaint, and recommend the usual remedial order
At the trial the parties were represented by counsel, and
were afforded full opportunity to examine and
cross-examine witnesses , to introduce relevant evidence, to
argue orally on the record , and to submit briefs Oral
argument was waived Briefs submitted by the parties have
been duly considered.
Upon the entire record in the case ,' including my
observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT'
1. UNFAIR PRACTICES ALLEGED
A. The Organizational Campaign and the Demand
for Recognition
In early October the Union began an organizational
campaign among Respondent's employees,' and by
October 14, had obtained 21 signed authorization cards
Each card is regular on its face, and authorizes the Union
to represent the signer for purposes of collective
bargaining. No evidence was adduced, nor is there any
claim, that signatures to these cards were obtained by any
false or misleading representation
'Issued January 31 , 1969, upon a charge filed November 13, 1968
The General Counsel has filed with me a motion to correct the record
in certain respects set forth in said motion Counsel for Respondent agrees
that certain of these corrections are necessary , but objects to the
remainder , claiming that some are substantive , that he does not recall the
precise language used, and that while the requested changes might more
accurately reflect what was intended , the reporter 's transcript provides a
more accurate basis for determining the actual testimony than does the
memory of counsel I have checked each of the requested changes against
the transcript and find that the proposed changes are not substantive, but
are necessary to correctly reflect the proceedings before me Accordingly, I
grant the General Counsel ' s motion in its entirety
'No issue of commerce or labor organization is presented The complaint
alleges and the answer admits facts which establish those jurisdictional
elements I find those facts to be as pleaded
'Respondent operates three retail food markets , Store No I being
located in Kansas City , Missouri , and Stores No 2 and No 3 in Kansas
178 NLRB No. 42
RAIL SALES SOOPERS
Early in the afternoon of October 14, the Union sent
Respondent a telegram which the latter received at
approximately 3.30 p.m that day. The telegram stated
that the Union represented "a substantial majority" of the
employees in the three stores, in an appropriate unit,' and
requested a meeting at Respondent's office the following
day "at which time we will prove to you our majority,"
and following such proof a date be set to negotiate a
contract In a telephone conversation later in the
afternoon of October 14, confirmed by letter of that day,
the parties agreed to and did meet at Respondent's office
during the afternoon of October 24 Between the inception
of the Union's campaign and the meeting on October 24,
certain events occurred which the General Counsel
contends were violative of Section 8(a)(I) of the Act,
which will now be detailed.
B. Interference, Restraint , and Coercion
(a) On or about October 8, several employees including
specifically Carroll Arnold and Richard Henry or Richard
Kendrick, were at work in the produce room of store No
3 Employee Huddleston, whose work schedule did not
begin until 4 p m., and who had arrived at the store some
15 minutes early, went to the produce room and in talking
to the other employees stated that they would be earning
$2.28 an hour if they joined the Union, rather than $1 60
they were then being paid. Immediately after this
statement Huddleston observed Store Manager Caplan, an
admitted supervisor, and whom he had not previously
observed, standing about 3 feet away. Caplan then stated,
"That is the best way for you boys to lose your jobs, now
get to work."6 In view of the testimony that Caplan was
so close to Huddleston when the latter made the
aforementioned statement, and that Huddleston spoke in a
normal tone of voice, I find that Caplan heard
Huddleston's statement, and that his remark was in
response thereto
(b) On October 10, employee Arnold went to Caplan's
office and asked the latter if it was company policy to
discharge employees who joined a union . Caplan replied
that it was his understanding that employees who joined a
union would be discharged Arnold then told Caplan that
he had signed a card for the Union,' but did not want to
lose his job. Caplan then stated that signing a card did not
mean anything, but that those who joined the Union
would be let go '
City, Kansas Although Store No I is separately incorporated from the
other stores , the complaint alleges, the answer admits , and I find that the
entire operation constitutes a single integrated enterprise
'The telegram described the unit as " All employees excluded the overall
store manager , employees whose work is wholly and exclusively performed
in the meat department of the store, guards and supervisors as defined in
the Act " The complaint describes the unit as "All regular full-time and
regular part -time employees employed by the Respondent at its three
stores " excluding store managers , store co-managers, meat department
employees , professional employees , guards and supervisors as defined in
the Act Although the language employed by the Union in its demand
differs somewhat from that of the complaint , I find and conclude that the
variance is insubstantial in nature, and that the Union' s telegram
constituted an appropriate demand The parties stipulated and I find and
conclude, that the unit pleaded in the complaint is appropriate
`These findings are based on a composite of the credited testimony of
Huddleston and Arnold on this point Although Huddleston was confused
as to the identity of Richard Henry and Richard Kendrick , I do not regard
this as critical or as having an adverse effect on his credibility Of greater
importance is the fact that Caplan, although denying that he discussed the
Union with Huddleston or Arnold, did not deny that this incident
occurred , or that he made the remarks which they attributed to him
239
(c) On or about October 11, Caplan called a meeting of
all employees in his store. After the business of the
meeting concluded, an unidentified employee asked
Caplan what the Company's policy was about employees
joining the Union. Caplan replied that employees who join
the Union do so at their own risk.'
(d) On or about October 17, Caplan engaged
Huddleston in conversation, asking whether the latter had
signed a card for the Union Huddleston replied that he
had "°
(e) On March 14, 1969, the Friday before the trial of
this case began, Al Childers, comanager of store No. 3,
told Arnold that he had seen the latter's affidavit, knew
what was in it and knew what was going to happen in
court because he had been through the same thing, and
that the Union was just using the employees "
C. The October 24 and October 31, Meetings12
The October 24 meeting was attended by Spangler and
Miller, representing the Union, and by President Meyer
Gilgus, Vice President Zolan Gilgus, Vice President and
Secretary Weiner, Sales Supervisor Lindman, and
Attorney Stone, representing Respondent. After some
preliminary remarks, the serious discussion opened with
Miller stating that the union representatives were there to
prove their claimed majority status, and handed Weiner
24 authorization cards." Weiner separated the cards by
stores, into three groups. After putting to one side the
cards of Larry Atkins, Tom Friesner and James Rourk10
as well as the cards of Bernadean Neal and Carroll
Arnold," and then checked the cards against a list of
employees he had before him. Completing his check,
Weiner stated, "Well, you do have a majority." Weiner
then commented that it seemed unfair that the many
part-time employees whom Respondent had, should have
an equal voice with full-time employees as to whether
there should be a union in the stores, and proceeded to
check whether the hours worked by the card signers
exceeded those worked by nonsigners, and on completion
of the latter check stated, "Well you do have a majority,
but it's a slim one." At this point, President Gilgus turned
to Attorney Stone and asked "what do you
recommend?'' Stone replied, "They do have a majority."
'Arnold had done so on October 8
'Based on the credited testimony of Arnold As heretofore stated,
Caplan initially denied that he ever discussed the Union with Arnold
However, when pressed, Caplan admitted that Arnold did come to him
about signing a union card Caplan claimed that he understood that
Arnold ' s parents did not want him to sign a card, and that he told Arnold
to discass the matter with the Union
'Based on a composite of the credited testimony of Huddleston and
Arnold
"Based on the credited testimony of Huddleston I do not credit
Caplan' s general denial , above referred to
"Based on the credited and uncontradicted testimony of Arnold
Childers was not called as a witness
"In addition to the foregoing allegations of interference , restraint, and
coercion, the General Counsel contends that the discharges of Huddleston
and Arnold which occurred on October 23, and November 8, respectively,
were discriminatory The facts with respect to those discharges are
hereafter set forth
"The cards so tendered by Miller were those referred to in Appendix A,
attached See particularly fn 4 thereof
"Weiner told the Union that these three employees were mentally
retarded and unable to perform specific tasks without constant supervision,
and for that reason not properly includable in the unit
"The first because she had given notice of her intention to quit in a few
weeks because of pregnancy, and the latter because his mother did not
want him to sign a card.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following this the parties discussed certain economic
issues, with the Union presenting a blank copy of its form
contract which contained wage rates, and these as well as
certain aspects of Respondent' s business were discussed.
Thereafter the discussion again turned to the allegedly
retarded employees, Respondent asserting that it could not
afford to employ them at rates suggested by Union, and
the Union, while contending that these employees were in
the unit, expressed willingness to make special
arrangements to them After the discussion of these and
other economic issues, the Union presented for
management' s signature a form entitled "Certification of
Results of Card Check " Respondent refused to sign the
document, some unidentified representatives of
management stating that they wished to discuss the matter
further among themselves and with their attorney, and
that Respondent could be trusted not to "pull anything
funny." The meeting concluded with an agreement that
the parties would meet again at Respondent's office on
October 31.
When the parties met on October 31, Weiner
admittedly told the Union that Respondent doubted
the Union represented an uncoerced majority in an
appropriate unit , and that the Union should take the
matter up with the Board. Spangler protested that after
the card check on October 24, Respondent had conceded
the Union's majority, and questioned Weiner's use of the
term "uncoerced majority," asking "who did we coerce?"
Weiner replied that Spangler did not understand,
repeating,"We doubt if you have an uncoerced majority,1, 1
adding, "I doubt if I even remember who signed the
cards." On this note the meeting concluded."
"When asked what he meant by "uncoerced majority ," Weiner stated
that possibly the employees who signed cards did so under pressure from
other employees or Union representatives Asked if he had any evidence to
indicate that such might be a fact, Weiner answered, "No "
"My findings with respect to the October 24 and 31 meetings , are based
on a composite of the credited testimony of Union Agents Spangler and
Miller, and those parts of the testimony of Weiner and Zolon Gilgus not
inconsistant with that of Spangler and Miller Particularly , I do not credit
the testimony of Weiner and Gilgus to the effect that at the meeting of
October 24 , the Union produced only 14 cards, that the card check
disclosed that the Union did not have a majority , that Exhibit R-1
correctly reflects the results of the card check , and their denial that
Respondent at any time conceded the Union's majority I do so for several
reasons In the first place, there can be no question but that the Union had
the 24 cards, which are in evidence , all dated and delivered to the Union
prior to the meeting There is no evidence nor is it contended that the
cards were signed at some other time and dated back In this state of the
testimony , it strains credulity to believe that the Union would have
withheld 10 cards from Respondent , particularly so when according to
Weiner's own testimony , the Union lacked only one card of establishing its
majority Secondly, Lmdman, Respondent 's supervisor of retail sales, who
attended the October 24, meeting , and for whose credibility Respondent
vouched when it called him as a witness, testified that upon completion of
the card check Weiner told the Union representatives , " from all indications
it looks like you have a majority here " Thirdly, I find it significant that
Respondent did not call either Company President Gdgus, or Attorney
Stone as witnesses Its failure to do so appropriately gives rise to the
inference that their testimony would not support Respondent ' s position
See Halliday v United States , 315 U S 94, 99, Interstate Circuit v
United States , 306 U.S. 208, 225-226, N L R B. v Reed & Prince Mfg
Co , 130 F 2d 765, 768 (C A 1) And finally, Weiner admits that following
the card check , the parties discussed various aspects of the Union's form
contract and Respondent 's business , and then set a date for a further
meeting because Respondent 's representatives wished to discuss the matter
further among themselves and with their attorney if, as Weiner claimed,
the card check disclosed the Union's lack of majority status, I fail to
understand Respondent's request for time to consider the matter further,
or the need for a further meeting Weiner 's response to my question
seeking an explanation for that course of action - that "there was obviously
D The Union's Majority Status
As the Board had uniformally held, the critical date for
determining the Union's majority, absent unusual
circumstances, is the date the employer receives the
Union's recognition demand. That date, in the instant
case, is October 14, as evidenced by Respondent's letter of
that date confirming the agreement to meet on October
24. The payrolls in evidence, for the workweek ending
October 16, show a total of 41 persons employed as of
October 14, eight of whom were admittedly supervisors,
leaving 33 unit employees. Twenty of the 33 had prior to
October 14, designated the Union as their bargaining
representative (see Appendix A, attached) a clear
majority.1e Accordingly, I find and conclude that on
October 14, the Union was the duly designated majority
representative in the unit, the appropriateness of which
has been conceded."
E. The discharges of Huddleston and Arnold
1. Huddleston
Huddleston, a schoolboy stocker-bagger, worked at
Store 3 from about 4 p.m. to 9 p.m., during the week, and
apparently a greater number of hours on Saturdays and
Sundays. The record does not show for what period
Huddleston had been employed, but it appears that he was
on duty when Caplan became manager of the store about
mid-September That Caplan was aware of Huddleston's
interest in and activity on behalf of the Union is evident
not only from the incidents above referred to, but from
Caplan's admission that prior to Huddleston's discharge
some merit in [the Union's] having come to see us," is without meaning
and is plainly a transparent attempt to avoid the impact of his admitted
conduct
"Even if it be assumed that October 24, the day the parties conducted
the card check , was the appropriate date for testing the Union ' s majority
status, the Union then had even a larger majority than it had on October
14 For this purpose the October 30 payroll would constitute the starting
point That payroll also contained the names of 33 unit employees, and is
basicly the same as the October 16 payroll, with the following adjustments
At Store 1, Helen Anthoney did not appear , she having been terminated on
October 15 However, Joe Williams a card signer was hired on October 17
At Store 2 , the names of Garry Stein and Lincoln Young (neither being a
card signer ), do not appear on the October 30 payroll However, the name
of Michael Blachett appears on this payroll, but as his time card shows his
first day of work to have been on October 25 , he was not in employee
status as of October 24 At Store 3, the October 30 payroll does not carry
the names of Dave Huddleston and Dick Kendrick (both card signers) who
appeared on the October 16 payroll, and the name of Stephanie Hotujak
(who did not sign a card ), is added The time cards show that Hotujak's
first day of employment was October 29, hence she was not in employee
status on October 24 The time cards also show that Kendrick was
terminated on October 21, and Huddleston on October 23 However, as I
hereafter find that Huddleston was discriminatorily discharged, he
remained in employee status and must be counted in determining the
Union's October 24 majority status Thus, of the 33 names on the October
30, payroll the names of Blachett and Hotujak must be deleted , and the
name of Huddleston must be added , making the unit complement 32 Of
these 32, the names of 20 who had signed a card on or before October 23,
appear on Appendix A with an asterisk To this must be added Joe
Williams, whose name does not appear on Appendix A, because he was
not on the October 16, payroll Thus on October 24, the Union had valid
authorization cards from 21 of 32 employees.
"Respondent introduced some evidence tending to show that Helen
Anthoney , Joe Williams , Lincoln Young , Frank Ruis , and Fred Stein were
not regular employees , and hence not within the scope of the unit as
defined I find it unnecessary to consider these contentions for should all of
them be resolved in accord with Respondent 's contentions the Union would
still have a clear majority
RAIL SALES SOOPERS
he was aware that the latter had been contacted by
Spangler whom he knew to be a Union agent. On October
23, Caplan told Huddleston that the latter was being
terminated as of the end of that day, but if business
picked up and he were again needed, he would be called
The parties stipulated that during the month of
November, Respondent hired two stocker-sackers for
work at Store 3 However, Huddleston heard nothing
from Respondent until January 31, 1969, when he received
a telegram offering him reinstatement to his old job at the
same rate of pay and working conditions Huddleston
accepted the offer and returned to work.20
2 Arnold
Arnold, like Huddleston, was a schoolboy who worked
at Store 3 part time during the week, and on Saturdays
and Sundays. As above stated, Caplan admitted that
Arnold had informed him on October 10, that he (Arnold)
had signed a card for the Union.
During the morning of November 4, Arnold went to the
union office and complained to Spangler that the
Company was requiring employees whose hours of work
approached 40 in the week, to punch in on the timecard of
some employee who had lesser hours, thus depriving
employees of overtime pay Spangler promised to look
into the matter. That afternoon, Arnold reported to work
just prior to his usual 3 p.m. starting time When he
attempted to punch in on his timecard, he found on it
various times written in by hand. Arnold took the card to
Caplan, who stated that Arnold had too many hours and
he had to cut them Caplan also directed Arnold to leave
work that day at 6 p m , instead of the usual store closing
hour of 9 p.m. Later that afternoon, Arnold met
Comanager Childers in the produce room and asked him
why Caplan was in such a bad mood. Childers replied that
Caplan knew that Arnold had gone to the Union about
the timecards and that he was angry about it because he
was really doing Arnold a favor by permitting him to
work the extra hours 21
On Friday, November 8, Arnold reported for work as
usual, and about 6 p.m asked Comanager Childers for
permission to take the following day off, explaining that
he wished to visit a close relative who was dying 22
Childers commented that Saturday was a busy day, that
Arnold would be needed, and that it was too late to
"Caplan testified that when he discharged Huddleston , he told the latter
that "because of his attitude that I would not need him any longer "
Caplan admitted that the foregoing statement was not based on personal
observation , but on reports made to him by Comanager Bukovoc, and that
on one occasion ( the time not appearing in the record ), he told Huddleston
and Arnold that he knew goods were being improperly marked , that at
times they could not be located in the store when needed , and that their
attitude toward the comanagers was not what was expected , and had to
change Caplan further testified that on the day Huddleston was discharged
he received a report from Bukovoc that Huddleston was not working, and
that when he (Bukovoc ) assigned work to Huddleston , the latter replied
that he had worked at the store longer than Bukovoc and that he didn't
have to take instructions from him, or follow his directions I do not credit
Caplan Moreover, I deem it significant that Bukovoc was not called as a
witness by Respondent , nor was the failure to do so explained The
reasonable inference from this is that Bukovoc would not support Caplan's
testimony , nor Respondent 's position in that regard Halliday v United
States, supra, Interstate Circuit v United States, supra, N L R B v Reed
& Prince Mfg Co, supra I so infer
"Nothing herein should be construed as a finding that Respondent did in
fact maintain the practice of which Arnold complained No finding with
respect thereto is necessary to the disposition of the case I only find that
Arnold made such a complaint to the Union
241
rearrange schedules and get a replacement, but agreed to
call Caplan at home and discuss the matter with him.
About a half hour later, Childers told Arnold that he had
discussed the matter with Caplan, and that the latter had
directed that Arnold be terminated. Childers further told
Arnold that the latter was a good worker who would have
no problem getting another job, but that Caplan "was
mad at [Arnold] about going to the Union about timing in
on other people's timecards.. ... Arnold heard nothing
further from Respondent until he, like Huddleston,
received a telegram on January 31, 1969, offering
reinstatement, which offer he accepted, and has since been
so employed 23
II. ANALYSIS AND CONTENTIONS
A. The Independent 8(a)(J) Allegations
I find and conclude that Respondent violated Section
8(a)(1) of the Act by the following:
(a) Caplan's statement "That is the best way for you
boys to lose your jobs," made as I have found, in response
to Huddleston's statement to his fellow employees that
under a union contract they would be earning a
substantially higher rate of pay, was under the
circumstances, merely another way of saying that
discussion of or assistance to the Union would result in
discharge
(b) Caplan's statement to employees generally on
October 11, that employees who joined the Union did so
at their own risk, as well as his statement to Arnold that
employees who joined the Union would be discharged
Both were plainly threats to the job security of employees
if they assisted or supported the Union
(c) Caplan's interrogation of Huddleston as to whether
the latter had signed a union card. In view of the fact that
so far as the record shows Huddleston was the only
employee interrogated, Caplan's interrogation of
Huddleston could not have been for the limited purpose of
determining whether the Union's demand for recognition
was well founded. Moreover, there is no evidence that the
interrogation was accompanied by assurances against
reprisal. Sturksnes Construction Co., Inc, 165 NLRB No.
102; N.L.R B. v. Berggren & Sons, Inc., 406 F 2d 239
(C A. 8), enfg. 165 NLRB No. 52.
(d) Childer's statement to Arnold that he had seen the
latter's affidavit, knew what was in it , and that the Union
was just using the employees. Although I have not been
cited to, and my independent research has failed to reveal
"Arnold admitted that he was aware of the serious illness of his relative
when he reported for work about 3 p in , and that he said nothing about it
until his conversation with Childers Arnold testified that he had intended
to discuss the matter with Caplan, but got busy and Caplan left the store
about 5 30 p in , as was usual , before he could do so
"Based on the credited and for the most part, uncontradicted testimony
of Arnold Respondent did not call Childers as a witness, nor in any way
explain its failure to do so. The fact that the General Counsel sought to
call Childers as a rebuttal witness, but was unable to do so because due to
some misunderstanding counsel for Respondent had released Childers and
the latter was not then available, does not diminish the fact that it was
Respondent 's duty to call Childers as a part of its affirmative case, and
that it did not do so Again , the inference is permissable that Childers
would not have supported Respondent' s contentions . Caplan testified that
when Childers called him at home, the latter merely reported that Arnold
was unable to come to work the following day, but that no reason was
given him , and that he simply stated that he could not run the store that
way, and directed Childers to terminate Arnold Caplan admitted that he
had on more than occasion given employee Richard Billings time off so
that he might pick up his brother at an army reserve station
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any case where the Board has considered whether an
employer's statement that he knows the contents of
affidavits employees furnished during the Board's
investigation is coercive, it has consistently held the
questioning of an employee as to whether he gave an
affidavit, what information the affidavit contained, or to
supply a copy thereof, was coercive and hence violative of
Section 8(a)(1) of the Act See, i.e , Hilton Credit Card
Corp, 137 NLRB 56; Henry I Segal Co, 143 NLRB
386; W T Grant Co, 144 NLRB 1179, Montgomery
Ward and Co., 154 NLRB 1197, 1259-62 The theory of
these cases is that a request of the nature indicated
"interferes with the Board's efforts to secure vindication
of employees' statutory rights and thus interferes with the
enjoyment of such rights in violation of Section 8(a)(1)."
(Henry I Segal, supra), or as stated in W T Grant,
supra at 1 182
Knowledge by an employee that his employer may
obtain copies of his statement serves only to inhibit that
employee's willingness to give a statement at all or to
disclose all matters of which he has knowledge for fear
of incurring the employer's displeasure and possible
reprisal.
So far as inhibitory effect is concerned, there would seem
to be little practical distinction between asking "What did
you tell the Board agent ," or saying "I know what you
told the Board agent " Indeed, if any distinction does
exist, the latter statement would seem to be more
coercive, in the first case the employee may refuse to
answer and hope that the employer may never find out
what the employee disclosed, while in the latter, it is
definite that the employer knows what he disclosed
Accordingly, I find and conclude that Childers' statement
to Arnold was coercive and hence violated Section 8(a)(1)
of the Act.
B. The Discharges
1. Arnold
Upon the facts above stated, I am convinced and
therefore find and conclude that Arnold was discharged on
November 8, because of his assistance to the Union and
his final act on November 4, of enlisting the Union's aid
to eliminate what he regarded as Respondent's unlawful
act of depriving him of overtime pay The evidence is
clear, as I have found, that Caplan knew Arnold had
signed a card for the Union and he told the latter that it
was company policy to dismiss employees who joined the
Union And when on November 4, Arnold complained to
the Union that Respondent was depriving him of
overtime, he was promptly told by Childers that Caplan
knew that Arnold had gone to the Union about the
timecards and was angry about it.2d And finally on
November 8, the first time Arnold asked for time off, he
was discharged, with Childers again disclosing the true
motive, that Caplan was still angry because Arnold had
gone to the Union about the time cards. Under these facts
I can only conclude that Arnold's alleged unreliability-a
charge in no way substantiated by evidence-was simply a
subterfuge seized upon in an effort to obscure the true and
unlawful motive for the discharge.
"Respondent argues that this fact may not properly be considered
because the record fails to establish how Caplan became aware of that
fact The crucial question however , is not how that information came to
Caplan, but rather that it did That Caplan knew it and became angry
about it, not only was not denied by Caplan, but is established by the fact
2. Huddleston
Huddleston, I also find and conclude, was discharged
because of his assistance to the Union That Caplan was
aware of and resented Huddleston's assistance to the
Union from the inception of the latter's campaign, is
made plain by Caplan's remark, to the effect that
discussion of the Union was "the best way" to bring
about a discharge. And on October 17, Caplan found it
necessary to interrogate Huddleston as to whether the
latter had signed a union card. Within a week thereafter,
on October 23, Huddleston was discharged without
warning and only with the explanation that bad business
required his termination. Not only is there a complete
absence of evidence that business conditions were in fact
such as to require a reduction in force, but the parties
stipulated that in November (the exact dates not
appearing), Respondent hired two new stocker-sackers.
And when there is added the fact that at the trial
Respondent sought to justify the discharge of Huddleston
and Arnold on the ground that they had stolen cigarettes,
and engaged in other conduct, grounds which I find were
not the basis for the discharges," I can only conclude that
some other reason motivated Huddleston's discharge, and
in light of Respondent's antipathy to Huddleston's union
activity, and in context of Respondent's other unfair labor
practices, the only reasonable conclusion is that the Union
activity motivated the discharge As the Court of Appeals
for the Ninth Circuit said in Shattuck Den Mining Corp.
v. N L R B , 360 F. 2d 1018 at 1020:
If he [the trier of fact] finds that the stated motive
for a discharge is false, he certainly can infer that there
is another motive. More than that, he can infer that the
motive is one that the employer desired to conceal -an
unlawful motive-at least where, as in the instant case,
the surrounding facts tend to reinforce that inference.
Accordingly, for the reasons stated, I find and conclude
that Huddleston and Arnold were discharged in violation
of Section 8(a)(3) and (1) of the Act
that Childers made the statement to Arnold, a fact which Childers did not
deny
"Respondent 's witness Billie Byrnes , who at the time of the events here
involved worked as a cashier at Store 3 , but who on February 1, 1969, was
promoted to assistant store manager, testified that in the latter part of
September or early in October ( 1) she once discovered Huddleston using
the ladies rest room, (2) that Huddleston , Arnold, and other employees hid
out in the store and failed to answer repeated calls for assistance at the
checkout counter, and (3) she observed Huddleston (and Arnold) on more
than one occasion , taking cigarettes without paying for them Byrnes
further testified that she reported each of these infractions to management
immediately after she observed them I deem it unnecessary for the
disposition of this case to make any finding as to whether Huddleston or
Arnold did or did not engage in the conduct Byrnes attributed to them for,
assuming that they did so, it is clear and I find that neither was discharged
for any such reason Byrnes admitted that the restroom incident was
treated by her and by management as a joke With respect to hiding out in
the store , and the taking of cigarettes, those instances , if they occurred at
all, took place at least 2 weeks before Huddleston's discharge , and at least
a month before Arnold's discharge, and in the interim, according to
Byrnes, management knew the facts It is inconceivable to me that if
Respondent really regarded these incidents as a breach of duty, that it
would have permitted these employees to remain in employment status as
long as it did, and it certainly would not have offered them reinstatement,
as it did on January 31, 1969, for in a retail store pilferage by employees is
normally regarded by management as an unpardonable offense I can only
conclude, therefore , that the aforementioned conduct, if it in fact occurred,
played no part in Respondent 's decision to discharge Huddleston or
Arnold
RAIL SALES SOOPERS 243
C. The Refusal- to-Bargain Allegations
Where the General Counsel seeks to impose a
bargaining obligation upon an employer because a
majority of the employees in an appropriate unit have
signed cards authorizing the Union to represent them in
their employment relations, the General Counsel has the
burden of proving not only the majority status of the
Union, but that the employer refused the Union's
bargaining demand in bad faith John P Serpa, Inc , 155
NLRB 99, 100; Aaron Brothers of California, 158 NLRB
1077, 1078-79 The criteria by which the General
Counsel's contentions are to be judged in such cases, were
stated by the Board in Hammond & Irving, Incorporated,
154 NLRB 1071 In that case the Board held that when
the Union's claim of majority status is based on cards, an
employer may reject the Union's demand for recognition
and.
. may insist upon a Board election as proof of [the]
Union's majority if it has a reasonable basis for a bona
fide doubt as to the Union's representative status in an
appropriate unit. If, however, the employer has no such
good faith doubt, but refuses to bargain with the
majority representative of its employees because it
rejects the collective-bargaining principle or desires to
gain time within which to undermine the Union and
dissipate its majority, such conduct constitutes a
violation of Section 8(a)(5) of the Act. In determining
whether the employer's action was taken to achieve
either of said invalid purposes, the Board considers all
the surrounding circumstances as well as direct evidence
of motivation Absent such direct evidence, where
extensive violations of the Act accompany the refusal to
grant recognition, they evidence the employer's unlawful
motive and an inference of bad faith is justified. [154
NLRB at 1073]
Applying the foregoing principles to the facts of the
instant case, there are a number of factors which lead me
to the conclusion that the General Counsel has established
by a preponderence of the evidence that Respondent
rejected the Union's demand for recognition not because it
had a good faith doubt of the Union's majority status, but
rather because it rejected the principles of collective
bargaining.36 Irvin N Rothkin, d/b/a Irv's Market, 175
NLRB No 121. The factors which, in my judgment
dictate that conclusion, are-
1. On October 8, at the very inception of the Union's
campaign Huddleston is told that discussion of the Union
was "the best way" to lose his job, and 2 days later
Arnold is told that it is company policy to discharge
employees who join the Union.
2. On October 17, Huddleston is interrogated as to
whether he signed a union card, and he admits that he
did. On October 23, Huddleston is discriminatorily
discharged.
3 On November 8, roughly a month after the Union
began its campaign, Arnold, the only other employee
shown by the records to have admitted to Caplan that he
"indeed counsel for Respondent so concedes In his brief (pp 24-25),
counsel refers to the conflict in the testimony of Union Agents Spangler
and Miller on the one hand , and Company Representatives Weiner and
Gilgus on the other, as to whether or not the card check established the
Union's majority , and in discussing whether the subsequent refusal to
bargain, under the circumstances , established Respondent ' s bad faith,
counsel stated, "If the testimony of Miller and Spangler is believed up to
this point , General Counsel has more than proved his case ." As above
stated, I have resolved the conflict in the testimony to which counsel refers,
by crediting Spangler and Miller
signed a union card, is likewise discriminatorily
discharged.
4. At the October 24, meeting after examining and
checking against his records, all the cards signed by
employees, Respondent's top officials not only raised no
questions as these designations, but conceded the Union's
majority status. Not until a week later, apparently after
consulting labor counsel, did Weiner for the first time
express doubt that the Union represented an uncoerced
majority," but admitted that he had no evidence
indicating that the Union's majority might in fact be
coerced.
Accordingly, I find and conclude that since October 24,
Respondent, in violation of Section 8(a)(5) and (1) of the
Act, refused to bargain with the Union as the duly
designated majority representative of its employees in an
appropriate unit.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 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 the conduct set forth in section I, B, 1, above,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by Section
7 of the Act, and thereby engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discharging Huddleston on October 23, because
of his activity for and assistance to the Union, and by
discharging Arnold on November 8, because of his
concerted activity and assistance to the Union,
Respondent discriminated against Huddleston and Arnold
in regard to their hire or tenure of employment,
discouraging membership in the Union, and thereby
engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(3) and (1) of the Act.
5. All regular full-time and regular part-time employees
employed by Respondent at its three stores in the Kansas
City, Missouri, and Kansas City, Kansas, area, excluding
store managers, store co-managers, meat department
employees, 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
6. At all times since October 14, the Union has been
the duly designated collective bargaining representative of
the employees in the aforesaid unit, within the meaning of
Section 9(a) of the Act
7. By failing and refusing on October 24, and at all
times thereafter, to recognize and bargain with the Union
as the collective bargaining representative of the
employees in the aforesaid unit, Respondent has engaged
in and is engaging in unfair labor practices proscribed by
Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
"These are obviously words of art which Weiner would not have used
except after consultation with someone versed in the field of labor
relations
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed them by Section 7 of the Act, and in
view of the nature and extent of these and other unfair
labor practices herein found, which go to the very heart of
the Act, it will be recommended that Respondent be
required to cease and desist from in any manner infringing
upon the exercise of such employee rights. N L R B v
Entwistle Mfg Co, 120 F.2d 532 (C.A 4), California
Lingerie, Inc , 129 NLRB 912, 915
Having found that Respondent discriminatorily
discharged Huddleston and Arnold, it will be
recommended that it make each of them whole for any
loss of earnings suffered by reason thereof, by paying to
each a sum of money equal to the amount they
respectively would have earned from the date of the
discrimination to the date of reinstatement which occurred
on or about February I, 1969, less his net earnings during
said period Such backpay, with interest at the rate of 6
percent per annum, shall be computed in the manner set
forth in F W Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co , 138 NLRB 716 It will also
be recommended that Respondent be required to preserve
and upon request make available to authorized agents of
the Board, all records necessary or useful in computing
the amount of backpay due the aforesaid employees.
Having additionally found that on October 24, and at
all times thereafter, Respondent unlawfully failed and
refused to recognize and bargain with the Union as the
collective bargaining representative of its employees in an
appropriate unit, I shall recommend that it be required to
do so upon request, and if an understanding is reached
embody the same into a signed agreement
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusion of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the National
Labor Relations Board order Zolan Sales of Kansas, Inc ,
and Zolan Sales, Inc , an integrated enterprise doing
business as Rail Sales Soopers, its officers, agents,
successors and assigns, to
1. Cease and desist from
(a) Telling employees that the best way to lose their
jobs is to discuss the Union.
(b) Telling employees that they join a union at their
own risk.
(c) Telling employees that those who join a union would
be discharged.
(d) Interrogating employees as to whether they had
signed a union card.
(e) Telling employees that its supervisors or agents had
seen the affidavits which employees had furnished Board
agents, and that the Union was just using them.
(f) Discouraging membership in Retail Store Employees
Union, Local 782, affiliated with Retail Clerks
International Association, AFL-CIO, or any other labor
organization of its employees, by discharging, or in any
other manner discriminating against any employee in
regard to his hire, tenure, or any other term or condition
of employment.
(g) Failing or refusing to bargain collectively with the
aforesaid Union, as the exclusive collective- bargaining
representative of its employees in a unit composed of all
regular full-time and regular part-time employees
employed at its 3 stores in Kansas City, Missouri, and
Kansas City, Kansas, excluding store managers,
comanagers, meat department employees, professional
employees, guards and supervisors as defined in the
National Labor Relations Act
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of their 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, or to refrain
from any and all such activities
2. Take the following affirmative action found
necessary and designed to effectuate the policies of the
Act:
(a) Upon request, recognize and bargain collectively
with Retail Store Employees Union, Local 782, affiliated
with Retail Clerks International Association, AFL-CIO,
as the exclusive collective-bargaining representative of its
employees in the aforesaid unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody such understanding into a signed
contract
(b) Make whole David Huddleston and Carroll Arnold,
Jr , for the loss of earnings suffered by reason of the
discrimination against them in the manner set forth in the
section hereof entitled "The Remedy."
(c) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary or useful in
computing the amount of backpay due, as herein
provided
(d) Post at each of its stores in Kansas City, Missouri,
and Kansas City, Kansas, copies of the attached notice
marked "Appendix B."28 Copies of said notice on forms
furnished by the Regional Director for Region 17 of the
Board (Kansas City, Missouri), shall after being duly
signed by an authorized representative be posted
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are
customarily posted, and all reasonable steps necessary to
insure that said notices are not altered, defaced, or
covered by any other material, shall be taken.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the receipt of this Decision, what
steps it has taken to comply herewith 29
"In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order " shall be substituted for the words
"Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the aforesaid Regional
Director, in writing, within 10 days from receipt of this Order , what steps
it has taken to comply herewith "
RAIL SALES SOOPERS
APPENDIX A
Unit employees on October 16 payroll and in case of
card signers, the date of such signing
NAME Date of Card
Store No. I (if one signed)
*Larry Adkins Oct. 8
Helen Anthony' Oct. 10
*Charles Brown Oct. 9
*Larry Combs Oct; 11
*Randy Dickenson Oct 9
*Tom Freisner Oct. 8
*Bernadean Neal Oct. 9
*James Roark Oct. 9
*Wihelmina Robinson Oct. 9
*BerleeStaton2 Oct; 23
William Wilcox Oct. 9
Orthell Wilson
Store No. 2
*Ella Douglas
Danny Griffith
Oct. 9
*Ernest Hadl Oct. 10
*Charles Holmes Oct. 10
Gary Morman
*Owen Meeks Oct. 10
*Frank Ruis Oct; 9
*MarySanchez Oct 10
Gary Stein
Lincoln Young
Store No. 3
Jim Anderson
Pat Anderson
*Carroll Arnold
*Richard Billings
Billie Byrns
Oct 8
*San Ensly Oct. I 1
Eugene Hall
*Rich Henry Oct. 9
Ruth Hicklin
*Dave Huddleston3 Oct. 14
Dick Kendrick Oct. 9
Total employees 33 Total card signers 204
'Helen Anthony's timecards in evidence show that she initially went to
work on September 30, and worked through October 15, at which time she
was terminated As she was on the payroll and at work on October 14,
I include her as an employee and count her card, as of October 14
'Although Berlee Staton signed a union card , she did not do so until
October 23, hence I have not counted her card toward the union majority
as of October 14
'Huddleston signed a card on October 14, and delivered some to Union
245
Agent Spangler about 4 p.m of that day As the Union did not have this
card when it made its recognition demand , I do not count it toward the
Union's majority on October 14.
'In addition to the 20 cards shown in the above schedule there was
introduced in evidence a card signed by Jessie Trammel on October 9.
However, her name does not appear on any of the payrolls in evidence,
and the absence is unexplained Accordingly, I have disregarded her card
In addition to Berlee Staton , mentioned above, and who signed a card on
October 23, Joe Williams also signed a card on October 23 These two
cards, the card signed by Huddleston on October 14, and the card of Jessie
Trammel, which I have disregarded , plus the 20 cards signed prior to
October 14 , makes up the 24 cards which Union Agents Spangler and
Miller, testified were given Weiner on October 24.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a formal trial before a Trial Examiner of the
National Labor Relations Board at which all sides had the
chance to present evidence, it has been found that we
violated the law and we have been ordered to post this
notice to inform our employees of their rights.
WE WILL NOT tell our'employees that the best way to
lose their fobs is to discuss a union.
WE WILL NOT tell our employees that they join a
union at their own risk.
WE WILL NOT tell our employees that those who join
a union will be discharged.
WE WILL NOT question our employees as to whether
they have signed a union card.
WE WILL NOT tell our employees that our supervisor
or agents have seen the affidavits which our employees
may furnish to agents of the Board, and that the Union
was just using the employees.
As it has been found that we violated the law when
we fired David Huddleston and Carroll Arnold, Jr.,
each of whom has now been reinstated to their former
jobs, WE WILL make up the pay each of them lost,
together with 6-percent interest.
WE WILL, upon request, bargain collectively with
Retail Store Employees Union Local 782, as the
exclusive collective-bargaining representative of our
employees in a unit composed of all regular full-time
and regular part-time employed at its three stores in
Kansas City, Missouri, and Kansas City, Kansas,
excluding store managers, store comanagers, meat
department employees, professional employees, guards
and supervisors as defined in the National Labor
Relations Act, with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment, and if an understanding isNeached we
will embody the same into a signed contract.
The law gives all our employees these rights:
To organize themselves
To form, join, or help unions
To bargai i as al group through a representative they
choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
WE assure you WE WILL NOT do anything to interfere
with you in the exercise of these rights. Every
employee is free to become or remain a member of
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Store Employees Union Local 782, or any other This notice must remain posted for 60 consecutive days
union , or not to become or remain a member of any from the date of posting and must not be altered, defaced,
union . or covered by any other material.
ZOLON SALES OF KANSAS,
INC., AND ZOLON SALES,
INC., D/B/A RAIL SALES If employees have any question concerning this notice
SOOPERS or compliance with its provisions they may communicate
(Employer) directly with the Board' s Regional Office, 610 Federal
Dated By Building, 601 East Twelfth Street, Kansas City, Missouri
(Representative) (Title) 64106, Telephone 816-374-5282.