Quick Shop Markets, Inc.,

National Labor Relations Board - Board Decisions

Nov 9, 1967

168 N.L.R.B. 180 (N.L.R.B. 1967)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quick Shop Markets , Inc., an Illinois Corporation
and Quick Shop Markets , Inc., a Missouri Cor-
poration and Retail Clerks International Associa-
tion , AFL-CIO, Local 149. Case 14-CA-4092
November 9, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 8, 1967, Trial Examiner Robert Cohn is-
sued his Decision in the above-entitled proceeding,
finding that the 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 de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions
to the Decision and a supporting brief. The Charg-
ing Party filed cross-exceptions and a supporting
brief to which the Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
cross-exceptions, the briefs, and the entire record
in the case, and hereby adopts the findings, conclu-
sions, 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 Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent, Quick Shop Markets, Inc.,
an Illinois corporation, and Quick Shop Markets,
Inc., a Missouri corporation, Florissant, Missouri,
and its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.'
' Section 2(f) of the Trial Examiner's Recommended Order is hereby
amended by substituting the words "on forms provided" for the words "to
be furnished "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: Upon a charge dated
August 29, 1966,1 by Retail Clerks International Union,
' All dates hereinafter refer to 1966 unless otherwise indicated.
Local 149 (herein the Union or Charging Party), the
General Counsel of the National Labor Relations Board,
through the Acting Regional Director for Region 14 of
the Board, issued his complaint on October 27 against
Quick Shop Markets, Inc., an Illinois corporation (herein
the Illinois corporation) and Quick Shop Markets, Inc.,
a Missouri corporation (herein the Missouri corporation).
The complaint alleged that the two corporations (herein
referred to collectively as the Respondent), because of
common officers, ownership, directors, and operators
constitute a single, integrated business enterprise, and ad-
minister a common labor policy with respect to their em-
ployees, and therefore are a single employer within the
meaning of the National Labor Relations Act, as
amended (herein the Act). The complaint further alleged
that by engaging in certain described conduct, more fully
detailed herein, the Respondent violated Section 8(a)(1),
(3), and (5) of the Act.
The two corporations, by their separate, duly filed an-
swers, denied specifically that they constitute a single, in-
tegrated enterprise, denied that their business operations
are sufficient to warrant the Board's assertion of jurisdic-
tion, and generally denied the commission of any unfair
labor practices, as alleged.
Upon the issues thus joined, a hearing was held before
me in St. Louis, Missouri, on December 12, 13, and 14,
in which all parties were present and represented, and
were afforded full opportunity to be heard, to introduce
evidence, to examine and cross-examine witnesses, to
present oral argument, and to file briefs. Oral argument
was waived. Briefs had been filed by counsel for all
parties, which have been carefully considered.
Upon the entire record in this case,2 and from my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE COMPANIES
The Missouri corporation, the older of the two compa-
nies involved, owns and operates some 40 retail food out-
lets called a "Quick Shop" in the State of Missouri.3 At
all times material, it was headquartered in Florissant,
Missouri, a town located on the northern outskirts of St.
Louis. The annual gross sales of the Missouri corporation
are "well over $500,000," thereby satisfying the Board's
jurisdictional standard for this type of enterprise.4
The Illinois corporation, also headquartered at the
same location as the Missouri corporation, owns and
operates a "Quick Shop" in Wood River, Illinois, which
2 Subsequent to the hearing, counsel for General Counsel and for
Respondent filed separate motions to correct the transcript of proceedings
in certain respects Such motions were served on all other parties Having
received no objections, the motions are granted, and the papers have been
placed in the formal exhibit file One additional error in the transcript is
noted by the Trial Examiner as being worthy of correction as follows. p.
442,1 5-6, change "Respondent's Exhibit 15" to "General Counsel's Ex-
hibit 15 "
s The operation may be described as a self-service, convenient food
store that operates 7 days a week, from 7 in the morning until I 1 at night
It maintains a smaller inventory than a regular-size food supermarket, and
presumably trades upon superior convenience to the customer rather than
a large variety of merchandise. All such stores have a substantially similar
(1) floor plan (approximately 2,200 square feet), (2) layout of food and
checkout counters, and (3) outside appearance
4 Carolina Supplies and Cement Co , 122 NLRB 88, 89
168 NLRB No. 30
QUICK SHOP MARKETS, INC. 181
is a town located across the Mississippi River from St.
Louis, also slightly to the north thereof. The Wood River
store is the only facility involved in this proceeding. It
commenced operations in April, and, during the critical
events involved herein, employed five employees.
General Counsel concedes, based upon facts in the
record, that the Board would not assert jurisdiction over
the Wood River facility alone since its annual gross sales
and/or interstate transactions do not measure up to the
Board's standards for asserting jurisdiction. However,
General Counsel urges, based upon the facts hereinafter
detailed, that the Missouri and Illinois corporations con-
stitute a single employer for jurisdictional purposes:
A. Common Ownership
The record shows the following respecting common of-
ficers, directors, and stockholders of the two corpora-
tions:
Missouri Illinois
Pres.
V. Pres .
Sec.
Tres .
Asst . Sec.
T. L. Tinsley
Clyde L. Tinsley'
Clyde L. Tinsley
T. L. Tinsley
Mary Van Gels
T. L. Tinsley
Clyde L. Tinsley
Wm. H. Cunliff
Rm. H. Cunliff
Percentage of
stock owned : Directors
Percentage of
stock owned : Directors
33 1./3% T. L. Tinsley 33 1/3% T. L. Tinsley
33 1/3% Am. H. Cunliff 33 1/3% Wm. H. Cunliff
Clyde L. Tinsley 33 1/3% Albert Cunliff
33 1/3% (Robert N. Jones)**
r Son of T. L. Tinsley
rr Not a director
It is apparent that ownership and control of policy of
both corporations is vested in T. L. Tinsley and his son,
Clyde, along with Wm. H. Cunliff.
B. Interrelationship of Operations
As previously noted , the Missouri corporation is the
older one in point of time , and the Illinois corporation was
established in early 1966 with the Wood River store being
its only operating facility. The Illinois corporation was
established by the same persons who effectively control
and operate the Missouri corporation. The fledgling Il-
linois corporation , apparently lacking the necessary
working capital to provide itself with necessary services,
contracted with the Missouri corporation for the latter to
provide such services as supervision, accounting , payroll,
etc., for a fee based upon a percentage of sales. President
of both corporations , T. L. Tinsley, explained the
procedure:
For this service , the only way you can do, we try
to get a little corporation started , we open one store.
The only way you can do that is you have to have
some guidance. We set up this agreement where this
small corporation can pay this corporation a per cent
' Such supervisory functions mcluoe "suggestions" in the nature of
work layout, pricing, placing of the merchandise on the shelves, and
general appearance of the store Coats also collected and banked all
receipts of the store
6 B & B Industries, Inc , et al, 162 NLRB 832, Overton Markets, Inc,
of sales which would offset the expense of this type
of agreement. We did this with any number of people.
It is the same as franchise operations do for their
franchise stores.
Thus, the record established that the same clerical em-
ployees who work on the books of the Missouri corpora-
tion at its offices in Florissant, Missouri, also perform the
same services for the Illinois corporation, even though
the two corporations necessarily maintain separate books
and records. With respect to supervision, the facts show,
as previously noted, that T. L. Tinsley is a chief executive
officer of both corporations. Under him in the superviso-
ry hierachy is one Daniel Ballard who is supervisor over
the Missouri stores as well as the Wood River store.
Under Ballard is one Ron Coats, who is supervisor over
some eight stores of the Missouri corporation as well as
-the Wood River facility. Coats actually hired several of
the employees at Wood River, and his duties included
regular visitations to that store for the purpose of super-
vising its operation.5 Coats was also the person who ad-
vised the employees of their layoff (more fully discussed
hereinafter), pursuant to the direction of President Tin-
sley. The record also establishes that subsequent to such
layoff of employees, the Missouri corporation transferred
another of its supervisors to work on a temporary basis in
the Illinois store.
C. Control of Labor Policy
As noted, all of the personnel for the Illinois store were
hired by supervision employed on the payroll of the Mis-
souri corporation . They were also laid off or terminated
by the same supervision . Thus, although President Tin-
sley testified that the person who might be in charge of
the Illinois store at any particular time had the authority
to discipline another employee, there were no incidents of
such an event in the record . Indeed , one of such em-
ployees, Marilyn Melton , testified undeniably that she
recommended disciplinary action to Supervisors Coats
and Ballard as a result of some alleged activities of the
stockboys in the store, but that no action came as a result
of such recommendation.
On the basis of all the foregoing, I find and conclude
that there is sufficient common ownership and financial
control , as well as effective day,-to -day supervision of per-
sonnel and labor policies by the Missouri corporation of
the Illinois corporation to constitute them a single em-
ployer for jurisdictional purposes .6 I further find that both
corporations are jointly and severally responsible for
remedying the unfair labor practices which I find herein
were committed at the Wood River facility.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union represents employees of retail
stores in the Wood River area for the purpose of bargain-
ing with their employers concerning wages, hours, and
other conditions of employment, and, as such , it is a labor
organization within the meaning of Section 2(5) of the
Act.7
142 NLRB 615, N L R B v Elias Brothers Big Boy, Inc , 325 F 2d 360,
362 (C A 6), Sakrele of Northern California, Inc v N L R B , 332 F 2d
902 (C A 9), cert denied 379 U S 961
' The foregoing is based upon the undemed and credited testimony of
the Union's business representative
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Establishment of the Wood River Store; and Su-
pervisory Status of the Female Employees
As previously noted, the Wood River store opened for
business in April. Three of the alleged discriminatees
herein (Marilyn Melton, Janet Davis, and her brother,
Richard Tite), were employed during that month; the
other two alleged discriminatees, Jon Greer and Thelma
Clark, were hired in June and August 1, respectively. All
were laid off as a group on August 25. The reason which
prompted that layoff constitutes one of the critical issues
in the case.
Thus, during the period immediately prior to the layoff,
there were five employees at the Wood River store, three
women and two boys.8 Each of the women had a key to
the store and knew the combination to the safe. One of
the women would normally open the store at 7 am., work
until 3, at which time one of the other women would work
the remaining hours until 11 p . m. During the time she
was on duty, the woman would wait on customers, ar-
range merchandise, dust the shelves, order groceries, and
sign receipts for any merchandise which was delivered
such as bread, milk, or ice cream. The functions of the
boys were those of stock clerks, to wit: they kept the
shelves stocked with merchandise, kept the soft drink box
fully supplied with drinks and ice, cleaned the store, etc.
However, it should be noted that they, too, on occasion,
waited on customers and rang up sales on the cash re-
gisters, of which there were two.
Respondent, during the hearing, amended its answer to
contend that at all times material the three women were
supervisors within the meaning of the Act, and that they,
therefore, were not entitled to the protection which the
statute affords employees.9 While the record reflects that
the women do exercise some degree of direction over the
stockboys on occasion, the evidence does not support a
position that the women either possessed or exercised
that degree of authority contemplated by the statute as
requisite to constitute them supervisors within the intend-
ment of Section 2 (11).' 0
Thus, as previously pointed out, the jobs of the
stockboys were of an unskilled and routine nature,
thereby requiring little, if any, direction. In this connec-
tion Coats testified as follows:
Q. Did you give any instructions to the boys, as
you refer to them?
A. Not to do any ordering, no.
Q. With respect to their jobs.
A. I told them I more or less mapped their jobs
out, what they were to do, and that they were to
listen to the girls when they told them to do
8 Both Greer and Tite were of high school age
Section 2(1 1) of the Act defines supervisor as follows
The term "supervisor" means any individual having authority, in
the interest of the employer , to hire , transfer , suspend, lay off, recall,
promote , discharge , assign , reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment
°
Section 2 (3) of the Act excludes from the definition of the term "em-
ployee" any person employed as a supervisor
10 See Precision Fabricators v. N L R B , 204 F 2d 567 (C A 2), cf
West Penn Power Company v N LRB , 337 F 2d 993 (C.A 3)
" Cf Welch Farms Ice Cream, Inc, 161 NLRB 748, see also C R
Hills Division of Shoe Corporation of America, dlbla Hills Department
something . Such as maybe what we call run shelves.
This is putting merchandise up on the shelves in the
front . And on grocery day when they came in they
were to put the merchandise on the shelves, price it
and put it on the shelf, and-
Q. (Interrupting ) Excuse me , were you saying
seeing?
A. Yes, or they had to fill a cooler , and they had
to work the produce as far as keeping it fresh. Going
over this is something that should be done every day.
There is nothing in the record to indicate that the
women had any power with respect to hiring , firing,
promoting , demoting, or otherwise changing the employ-
ment status of thee stockboys. The directions which the
women issued were of a ministerial nature not requiring
the use of independent judgment ; indeed , much of the
work to be performed was done by the women and boys
alike. On the one occasion disclosed by the record of a
recommendation made by one of the women to manage-
ment that one of the boys required discipline , such recom-
mendation was not followed.
I have also considered that should the three women be
deemed supervisors , the result would be more super-
visors than employees . Such a disproportionate ratio has
been considered by the Board to be a significant factor in
determining supervisory status."
On the basis of all of the foregoing , I find and conclude
that the three women (Janet Davis , Thelma Clark, and
Marilyn Melton) were not supervisors , but were em-
ployees entitled to protection of the Act.
B. The Shortages
As previously noted, Thelma Clark commenced work
on August 1, as a part-time employee; that is to say that
she worked during periods when the regular employees
wanted days off. Company records show that she worked
18 of the 24 days which were worked by employees dur-
ing August. Like the other women, she had a key to the
store, was "in charge" while at work, made sales,
operated the cash registers, cleaned and stocked the
shelves, etc. Within a day or two after she started work at
the Quick Shop, she noticed small shortages in the cash
register. That is to say that the money in the drawer was
less than it was supposed to be when compared to the
amount of sales reflected on the tape of the cash register.
She called this to the attention of Supervisor Coats, but
he did not appear concerned about it and told her that it
was not sufficient to worry about. At that time the
shortage was about $4.60. She told Coats that she con-
sidered the store to be a "poorly run operation" because
everybody had access to the cash register and it was not
checked out after an 8-hour shift.12 She also pointed out
Store, 155 NLRB 1163, where, in a similar situation, the Trial Examiner
observed(p 1170)
The anomaly if the heads of the "Hills" departments were to be re-
garded as supervisors, is that there would be a Mexican army of
managerial topheaviness In no instance , so far as appears, does any
department head have more than one person working with him during
a shift, and in some instances none
12 Marilyn Melton, who normally worked the 3 to I I shift, testified that
at the end of the day she would clear the cash register and put all the
change and bills in separate sacks and put it in the safe When Janet Davis
(who normally worked the first shift) opened the store in the morning, she
would normally count out $200 of the money from the safe and put it in
the cash register . Davis then checked the money against the cash register
tapes, and that was presumably the only time during the day that such a
check was made
QUICK SHOP MARKETS, INC. 183
to Coats that when there was just one person on a shift it
was practically impossible to watch the whole store, par-
ticularly when a number of kids came in as they did, since
the store was located in the immediate vicinity of a high
school, a junior high school, and across the street from a
teenage hangout which was utilized by that age group in
the summertime. She suggested that mirrors be placed at
strategic locations in the store, but Coats replied that it
was not the Company's policy to do that unless it was ab-
solutely necessary.13
Later in the month, larger shortages appeared on the
cash register." Clark testified that the day she noticed the
first "big shortage"-it was slightly over $19-she
secured a little brown book in which she recorded each
item she sold (in addition to ringing the sale on the cash
register). Chief Supervisor Ballard, substituting for Su-
pervisor Coats who was on vacation in the Ozarks this
particular weekend, came into the Wood River store in
the early afternoon of Monday, August 22, for the pur-
pose of collecting the money of the previous week. He in-
troduced himself to Thelma Clark (since he had never
previously met her), and observed her making some sales
and afterwards making a mark on a piece of paper. When
he asked her what she was doing, she replied that she was
trying to keep track of what she had sold in view of the
shortages which had occurred. She explained that, in this
way, if a shortage occurred that day she could prove that
it was not her fault. While he was there, Ballard checked
the cash register and found that it was correct except for
a few cents which was accounted for by the fact that
Clark had paid out that amount for bottle deposits. Upon
Ballard's inquiry as to who was responsible for the
shortages, Clark stated that she had worked the previous
week with "Dicky" Tite, and, according to Ballard's
testimony, stated that she did not believe Tite was
honest. 15
Ballard immediately reported to President Tinsley
respecting the condition of the Wood River store. He told
Tinsley that shortages had occurred there and that the
clerk had been writing down what she was selling, and
that the store was "in a mess" respecting placement of the
stock, cleanliness, etc. He also told Tinsley that one of
the employees (Tite) had been accused of wrongdoing.
Tinsley instructed Ballard to return to the store when this
employee was working and interrogate him concerning
the matter, and report back to Tinsley.
Ballard returned to the store on Monday night, August
22, but Tite was not working, having requested Greer to
substitute for him because Tite was sick. Ballard then
went to the cash drawer, took out the cash register sheets
and showed them to Marilyn Melton (who was on duty at
the time), and showed her-the-shortages which appeared
thereon. According to Melton's testimony, she told Bal-
lard she was glad she had not been working during days
of the shortages.16
The following day Ballard reported to President Tin-
sley the results of the previous evening's activities, i.e.,
that Ballard had been unable to talk with Tite concerning
the shortages since the latter had not come in to work that
evening. Tinsley instructed Ballard to take an inventory
of the store as soon as Coats returned from his vacation
(he was expected back that day). Coats testified that he
received a call from Ballard on Tuesday afternoon and
was instructed to report to the Wood River store at 6:30
the following morning to take an inventory. Coats and
Ballard conducted the inventory that Wednesday as
scheduled, Coats counting the merchandise while Ballard
ran the adding machine. Both testified that except for a
coffeebreak, neither stopped what they were doing to
converse with any other person. They completed the in-
ventory shortly after 1 p.m. Ballard then took the raw in-
ventory figures to the offices of Respondent and had them
tabulated. He received the results later that afternoon
which showed a shortage of $252.16. This represented a
"shrinkage" of 4.21 percent of gross sales during the
period from July 30 through August 23. Ballard im-
mediately called Tinsley who was then in Springfield,
Missouri, on a business trip, and reported the results of
the inventory. Tinsley, upon hearing the results of the in-
ventory, instructed Ballard to let Coats run the store for
a while "and to just let everyone go until we could get the
things straightened out ...."1 7
Ballard then called Coats and advised him of the out-
come of the inventory. He instructed Coats that "we had
to let the people go" and that he (Coats) was to run the
store with the help of some other supervisors until "we
could straighten the thing out."
C. The Union Campaign
Meanwhile, the employees had determined to join the
Union and all had signed union'cards on August 18.18
Marilyn Melton telephoned Robert Schreier, business
representative of the Union, on August 17, and he came
to her house on August 18 and brought five union cards
with him. All the employees signed the cards on August
18 and returned them to Schreier. All of the cards were
signed at the Quick Shop except that of Greer who signed
his at his home in the presence of Schreier. There is no
evidence or contention that an agent or supervisor of
Respondent was present during the signing of any of the
cards.
13 The foregoing findings are based upon the undemed testimony of
Clark Coats conceded that he did not call the shortages to the attention of
his supervisors
14 There is some dispute on the record as to whether these shortages oc-
curred during the weekend beginning August 12 or 19 General Counsel's
witnesses who testified concerning the issue contended that the shortages
occurred on the former date while Respondent's witnesses contended the
latter Respondent, in its brief, argues that the General Counsel's wit-
nesses deliberately conspired to prevaricate concerning this point in order
to make it appear that the shortages occurred prior to the signing of the
union cards on August 18 While I find, based upon my consideration of
all of the testimony in the record as a whole, that the Respondent's wit-
nesses were correct in this point, i e , that the shortages did in fact occur
during the weekend commencing August 19, 1 do not believe that the
General Counsel's witnesses deliberately lied about the matter, but were
undesignedly confused and mistaken concerning the dates of the events
15 The foregoing findings respecting the contents of the conversation
between Clark and Ballard are based upon their respective testimony
which, in its essential respects, is mutually corroborative Clark was not
interrogated as to the matter concerning Richard Tite
11 Ballard testified that he mentioned the shortages to Melton that even-
ing but that he did not recall what she said about them
11 Ballard testified that a 4 21-percent shrinkage is a "bankruptcy
shrinkage" which a business could not maintain and stay solvent He
maintained that any shrinkage over I-1/2 percent is something that "needs
to be looked into "
16 See G C Exhs 8 through 12
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The August 25 Layoff
Coats, pursuant to Ballard's telephonic instructions on
Wednesday afternoon, August 24, laid off all the em-
ployees on Thursday, August 25. He first spoke with
Janet Davis (who was on duty at the time) about 10 a.m.
He told her that due to the inventory shrinkage and the
shortages shown upon the cash register , he was going to
run the store for a while with the help of other supervision
and that her services would no longer be required. He
asked her to give him the keys, which she did. He also
asked Davis to tell her brother, Richard Tite, that he was
also laid off, which she did. Coats then called Marilyn
Melton and Thelma Clark and told them the same thing
he had told Davis and asked them to bring in their keys,
which they did. He then called Greer and advised him of
the layoff but since Greer did not have a key, there was
no reason for him to come in and Coats did not see him.
In none of the conversations on Thursday among Coats
and the employees was the Union mentioned.
On Friday morning, August 26, the employees
established a picket line about the Wood River store,
which continued at least until the time of the hearing. The
legend on the picket signs is as follows:
Quick Shop
Employes [sic]
ON STRIKE
For A Reasonable Contract
PLEASE
DO NOT
PATRONIZE
This Firm
Thank You Local 149*
Retail Clerks Intl. Assn . AFL-CIO
Affiliated With Alton -Wood River Area
Federation of Labor
* The blocking out of the numbers "344 " and replacing
them with the numbers " 149" is reflected as it appears on
the original sign. See G.C. Exh. 14.
E. The Union's Attempt to Secure Recognition
On August 22, Business Representative Schreier,
armed with the five cards from the employees at the Il-
linois -store, prepared a letter to President Tinsley advis-
ing the latter of the majority status of the Union and
requested recognition.19 He testified that he mailed the
letter about 11 a.m. that day and that, in the presence of
one Thomas McNutt, a national coordinator of the Retail
Clerks International Association, proceeded to Tinsley's
office to show him a copy of the letter; that they went into
"See G C Exh 15(c)
20 Tinsley testified that he went to Springfield, Missouri, on Tuesday
morning on a business trip , and stayed there until Friday evening , that he
had never received any indication that he had been called upon by any
union representative at any time , and that he did not know a person by the
name of Schreier before the heanng However , I note that the charge in
this case was signed by Robert Schreier , that it was served on the
Respondent by certified mail, and was actually signed for on September
15, by Thomas Tinsley (See G C Exhs I (a) and (b)
21 See G C Exh 15
22 See Resp Exh 6
23 An allegation in the complaint that Coats coercively interrogated em-
ployees concerning their union activities in May was dismissed on
the office and identified themselves to the receptionist
there; that she informed them that Tinsley was not in at
that time and that she did not know when he would
return; that they asked her if they could leave their names
and telephone number, and asked her to tell Tinsley to
contact them, and they did; however, they were never
contacted further by Tinsley.20 Schreier did not leave a
copy of the letter requesting recognition with the recep-
tionist at Tinsley's office.
The letter requesting recognition, which Schreier
mailed on August 22, was returned to him about a week
or 10 days later, unopened, and marked "refused" by the
post office department .21 Tinsley explained that the letter
was refused not because it was mailed by the Union, but
that there had been a longstanding rule in his Company,
dating from 3 to 5 years, that he personally is the only one
in his office with authority to receive registered mail un-
less it is specifically designated to another employee. In
support of this contention, Respondent introduced a
memorandum from the post office department dated
November 29, involving subsequent certified mail which
had been sent to Tinsley and had been returned to the
sender marked "refused."22 In any event, there is no
evidence or contention that Respondent, or Tinsley,
received the original or a copy of the Union's request for
recognition prior to the layoff of the employees, or, in-
deed, prior to the hearing herein.
F. The AllegedAntiunion Statements in August
The complaint, as amended, alleges that on several oc-
casions in August and September, the Respondent, by its
supervisor Ronald Coats, made certain coercive state-
ments to employees which violated Section 8(a)(1) of the
Act. The first of such statements allegedly occurred on or
about August 24, when, according to the complaint,
Coats coercively interrogated employees at the Wood
River store concerning their and other employees' union
membership and activities.23
In support of this allegation, General Counsel offered
the testimony of Janet Davis and her brother Richard
Tite. The former testified that on August 24, she had a
conversation with Coats in which he asked her if the
"union man" had been there, and if she had signed a card.
She replied "yes" to both questions. In addition, he
inquired as to whether "all of us had signed one," to
which she also replied in the affirmative.
Davis also testified as to another conversation she had
with Coats on the following day, August 25, at which
time he told her, in the backroom of the store, that due to
the inventory shrinkage and shortages in the cash drawer,
he was going to run the store for a while with the help of
supervision. He asked her for the keys, and to advise her
brother to the same effect. She complied with both
requests. 24
Respondent ' s motion at the heanng, after General Counsel rested , in view
of the conceded lack of evidence to support the allegation
24 There appears to be an ambiguity in the transcript of proceedings (pp
146-147) respecting Davis' testimony due to an error made by either the
interrogator or the court reporter Thus, on p 146, the interrogator asked
whether "on the 25th" she saw Coats and had a conversation with him, to
which she replied " yes," and related the conversation respecting the union
matters Then on p 147, the interrogator inquired whether "on the next
day, August 25, did [she] see Mr Coats" She replied "yes" and
proceeded to relate the conversation regarding the impending layoff
Accordingly, it is clear that she had two conversations with Coats, as
she testified
QUICK SHOP MARKETS, INC. 185
Coats, on the other hand, testified that he had only one
conversation with Davis during this period and that was
on Thursday morning, August 25, when he laid her off.
His version of this conversation corroborates her in all
essential respects.
Tite testified that on August 24 he had a conversation
with Coats in the backroom of the Quick Shop the con-
tents of which may perhaps be best expressed in his own
language:
A. Well, we were back there and he asked me if I
had joined a union. We were back there talking and
he asked me how come, and he asked me how the
union got in and who had joined and who had all
joined the union. I told him all the girls joined before
I did and I had joined. He told me I had a good job
and all that, and he says if you want to keep the job,
you better tell the union that you never wanted to
keep it, you know, stay in the union. He asked me if
they had told me if they had told me about the union
dues and fees. I kept changing the subject, talking
about shortages and I asked him if he thought I had
done it. He said no, he didn't think I had ever taken
anything out of there. He kept talking about the
union and he said don't tell anybody you know about
what we were talking about. He said go and tell the
union you don't want to join. I said I had just gone
along with the rest of the girls.
Q. At any time did you mention the name, did he
mention the name Tinsley to you?
A. Yes, he told me that Tinsley had already told
him to tell us that there would never be a union here,
so don't try and get a union.
Coats admitted that he had a conversation with Tite
during the afternoon of August 24, the purpose of which,
according to Coats, was to find out what Tite knew about
the shortages. Coats testified that Tite denied knowledge
of how the shortages occurred; that all he (Tite) knew was
that Thelma Clark had blamed him and that he would like
to see her fired. Coats denied that the subject of the
Union was mentioned during the conversation.
G. Analysis and Concluding Findings as to August
Antiunion Statements
There is no question but that, if believed, the foregoing
statements attributed to Coats by Davis and Tite con-
stitute coercive interrogation and threats violative of Sec-
tion 8 (a)(1) of the Act. Resolving credibility of witnesses
is almost always a difficult and delicate task, and is not
less so here. Respondent' s counsel argued that this is a
"clear cut case ... of fabrication ... where obvious per-
jury has been committed." I cannot agree that such
wholesale prevarication existed here. While some wit-
nesses impressed me more than others as respects can-
dor, forthrightness, directness , and other attributes of
demeanor , I find insufficient indication of deliberate
fabrication either by way of demeanor or character of
testimony. I thus make my credibility findings based upon
demeanor considerations " along with the consistency and
inherent probability of testimony."25
Applying the foregoing principles to the instant conver-
sations, I find the substance to be substanially as Davis
and Tite testified. The former impressed me as an honest
and candid witness. The latter, who was of more tender
years, appeared more flighty and somewhat less sure of
himself. However, neither impressed me as being pos-
sessed of a character or temperament that would enable
them to fabricate.
On the other hand, Coats was not impressive as a wit-
ness . On critical questions he was reluctant and evasive,
and, particularly in a later conversation with Clark and
Melton (discussed infra), he was less than candid as to its
contents. Also, as discussed more fully infra, I have con-
sidered the probability that the conversations occurred
when they did from the circumstances that Tinsley likely
learned on Tuesday of the union activities at the Wood
River store, and directed his subordinates to inquire
further into the matter.
Accordingly, I find that Respondent, by its agent and
supervisor, Coats, on August 24, violated Section 8(a)(1)
of the Act by coercively interrogating and threatening
employees concerning their union activities.
H. Alleged Coercion on the Picket Line
The complaint alleges that on two occasions in Sep-
tember, Supervisor Coats, by making certain statements
to the employees after the picketing began, restrained and
coerced them in violation of Section 8(a)(1) of the Act.
Thus, it is alleged that on or about September 7, Coats
notified employees that he knew who had started the
Union at the store. In support of such allegation, Janet
Davis testified that she had a conversation with Coats on
or about that date at the beauty shop where she worked,
which was located in the same row of stores as the Quick
Shop.26 According to her testimony, Coats said that he
thought Clark or Melton had started the Union because
they had stayed on the picket line the longest. Coats was
not interrogated concerning this particular conversation.
However, assuming that it was made as Davis testified,
I find that it was merely a statement of opinion protected
by Section 8(c) of the Act, and does not constitute
restraint and coercion within the meaning of Section
8(a)(1).
The complaint further alleges that on or about Sep-
tember 16, Coats advised employees that they had been
fired because of the Union and informed them that the
store was not union and was not going to become union.
Testimony in support of this allegation was offered by
Melton and Clark Melton testified that as Coats was
leaving work that day he stopped his car at the picket line
and asked Thelma Clark and her, "What good we thought
it was going to do to harass the girl they had working in
there?"27 Melton denied harassing her, and then testified
that Coats had a conversation with Thelma Clark which
she (Melton) did not hear. She then asked Coats how he
would like to be on a picket line and see a replacement
doing his work, to which he replied, "It is your fault you
are out here, you should have known when you received
those union cards you knew you would be fired." Clark
then inquired, "You mean you fired us for signing the
union cards?" Coats replied yes, that they knew what the
salary was when they went to work there and if they did
not like it they should not have gone to work. After a
further short discussion concerning working conditions
in which Melton testified that she did not like having to
"put up with 16 year old snots," Coats left.
Universal Camera Corporation v N L R B 340 U S 474
xs She started working at the beauty shop on a regular basis several
days after the picketing commenced
" On an undisclosed date subsequent to the time picketing began, but
before September 16, Respondent had hired a female replacement named
Pamella Lee Kuykendall
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark's testimony corroborated Melton's in all essen-
tial respects regarding this conversation. She then
testified as follows regarding the conversation between
herself and Coats which Melton stated she (Melton) did
not hear:
He said, "Well, in the first place, you guys have
got no business being out here." I said, "What do you
mean?" He said, "You are not employees." I said,
"We were never told we were fired," and he said, "I
am telling you now." I said, "Why?" He said, "Well,
it should have been evident when I handed you your
check that you were fired." I said, "You didn't say
we were fired." He said, "I am saying it now." I said,
"Why?" He said, "Well, the day you people filed the
union card you didn't have a job any longer." I said,
"Because we signed union cards, we got fired?" He
said, "I had orders from the head man to let you all
go." I asked him three times, I said, "Ron, are you
actually telling us because we signed union cards that
we are fired?" He said, "That is right." I said, "Why
didn't you say that to our business manager?" He
said, "I haven't got to talk business with your busi-
ness manager. As far as I am concerned, I don't have
any use for him whatsoever. This store is not a union
store. It isn't going to be a union store and it will,
never be a union store." He go mad and said, "I
should never have stopped in the first place to talk to
you. I ought to have known I can't talk to you sen-
sibly," and he took off.28
Coats testified to a conversation he had on the picket
line with Clark and Melton on September 17, at the close
of the workday. His testimony with respect to the alleged
harassment of Kuykendall is mutually corroborative with
that of Melton and Clark. He did not recall any conversa-
tion with Melton but accused Clark of trying to put words
in his mouth to the effect of telling them that they were
fired and to also state that to the business agent. How-
ever, Coats stated that he said nothing and drove away.
On cross-examination, he admitted stating to Clark on
this occasion that "you knew what we were paying when
we hired you," but denied stating that if she wanted more
she should not have taken the job. He also admitted
telling Clark on this occasion that "I told her they had
been let go at the time that I called her on the telephone."
This was assertedly in response to her statement as to
why didn't he tell their business agent that they were
fired.
1. Analysis and Concluding Findings as to the Picket
Line Statements
As with the pre-picket line conversations, there can be
no question but that if Coats made the statements at-
tributed to him on the picket line, on or about September
16, such threatening and coercing remarks respecting
union activities of the employees constituted independent
violations of Section 8(a)(1) of the Act, as alleged. The
credibility issue here involved has been an equally dif-
ficult one for me. Marilyn Melton impressed me as an
honest and candid witness who answered questions
directly and forthrightly. Clark was more abrupt, tended
to be argumentative, and obviously became confused on
the matter of dates. However, much of her testimony con-
cerning the September 16 incident was mutually cor-
roborative with that of Coats and Melton. As previously
noted, Coats was not impressive as a witness, being quite
evasive and reluctant on critical points. In addition, with
particular respect to the September 16 incident, his
testimony on direct examination consisted simply of his
discussion with the pickets concerning their harassment
of Kuykendall after which he left; yet, on cross-examina-
tion, he was forced to admit that he did have some con-
versation with them respecting the cause and manner of
the layoff. The statements attributed to him by Clark are,
of course, directly related to the subject matter of his ad-
missions, and I believe that he made them substantially as
she testified. I thus find and conclude that his statements
that the employees were fired because they had signed
union cards and that the store would never be a union
store interfered with, restrained, and coerced the
employees 29 in the rights guaranteed by Section 7 of the
Act, thereby violating Section 8(a)(I) thereof.
J. Analysis and Concluding Findings as to the Alleged
8(a)(3) Violations
The critical issue to be resolved in a consideration of
the alleged violations of Section 8(a)(3) is whether the
layoff of August 25 was motivated by the employees'
union activities, as contended by General Counsel, or by
economic circumstances caused by the employees' dere-
lictions, as argued by Respondent. Of course, a necessary
prerequisite to the former contention is a determination
that the Employer was aware of such union activities
prior to the decision to terminate. Direct evidence of such
knowledge is provided in the instant case through the
credited testimony of Davis and Tite that they related to
Coats on the afternoon of Wednesday, August 24, the cir-
cumstances regarding the employees' signing of the union
cards. In addition to such evidence, however, I also rely
upon the following circumstantial evidence which, in my
opinion, provides a basis for a reasonable inference that
Respondent learned of the union activities at least by
Tuesday, August 23, and lends substance and continuity
to the finding that Coats, in fact, engaged in such inter-
rogations the following day.30
Thus, the record shows that Business Agent Schreier
called upon the Respondent on Monday afternoon, Au-
gust 22, introduced himself by name and position and,
when told that President Tinsley was not in, left his name
and telephone number with the receptionist. It may be
reasonably assumed that on the following day, Tuesday,
August 23, Respondent received the certified letter
which was postmarked on August 22 and mailed in Al-
ton, Illinois (only a few miles from St. Louis). Although
the letter was not opened, the return address in the upper
left-hand corner of the envelope stated as follows:
R.S.E.U. Local 344
402 State Street
Alton, Illinois 62002
The receipt of the foregoing letter with the above-
quoted legend of the sender, taken with the visit of Busi-
ness Representative Schreier the previous day, leads to
a reasonable inference, in my opinion, that -Respondent
28 The record herein (see G C Exhs. 6 and 13) reflects that all five dis-
cnmmatees were issued checks dated August 25, which was the last pay-
ment made by the Company to them as wages Melton's check was issued
in the amount of "no dollars and no cents" because her deductions and
grocery bill came to the same amount as her wages
29 As I find the employees to have been discnmmatordy terminated on
August 25, it follows that they were "employees" on September 16
ao See Texas Industries , Inc, 156 NLRB 423, 424, F W Woolworth
Company v NLRB , 121 F 2d 658,660 (C A 2)
QUICK SHOP MARKETS, INC. 187
became aware as of Tuesday, August 23, that a labor or-
ganization was interested in contacting the Employer on
a business mission .31 Although President Tinsley was out
of the city on Tuesday, the record shows that he was in
frequent contact during this period with Ballard concern-
ing the Wood River store so that it may further be
reasonably inferred that he was advised by his office of
the Schreier visit and of the receipt of the unopened
letter. I am convinced that Tinsley, upon learning of such
activities by the Union, instructed Ballard and/or Coats
to ascertain the extent thereof. It was this impetus that
led to Coats' interrogation of Davis and Tite on Wed-
nesday, August 24, the results of which were reported to
Tinsley who then gave the direction to lay off the whole
group. I thus find and conclude that prior to making the
decision to lay off the employees, Tinsley was made
aware of their union activities.32
As respects the Respondent's "true purpose" or "real
motive" for effecting the layoff,33 there is no question but
that shortages existed and that the store was "in a mess,"
all of which presumably prompted the taking of the inven-
tory. 34
Thus, in the late afternoon of Wednesday, August 24,
when Tinsley made the decision to lay off, the results of
the inventory provided sufficient justification. However,
at that time he was also apprised of the union activities of
the employees to which he was clearly opposed, as
reflected by Coats' statements to the employees. Faced
with these dual considerations, the ultimate question
becomes what actually prompted Tinsley to make the
decision to terminate all of the employees in the Wood
River store. After careful consideration of all the
evidence in the record, I am convinced that the General
Counsel has sustained his burden of proving that the "real
reason" for effecting the terminations at the time was to
discourage union membership, in violation of Section
8(a)(3) of the Act. In reaching such a conclusion, I have
considered the following factors (not listed necessarily in
order of importance):
1. Respondent was aware of the union activities of all
of the employees and was opposed thereto;
2. The terminations took place immediately and
abruptly following such knowledge of union activities
without any notice or warning to the employees;
3. Although Respondent amended its answer at the
hearing to plead that the employees were terminated "as
a disciplinary measure pending the outcome of the in-
vestigation," it does not appear that Respondent made
any real effort to investigate the causes of the alleged
shortages. Respondent argues that it was prevented from
making such an investigation by the conduct of the em-
ployees themselves;
The strike made impossible a kind of investigation
that would have normally been conducted; using the
polygraph, comparison of sales under direct super-
visor as compared with use of "girls in charge" and
the other natural frustrations that could not possibly
have been foreseen.35
31 It Is to be recalled that the Wood River store , which is adjacent to Al-
ton, is the only facility of Respondent in Illinois
32 In making this finding I have also considered and given weight to
Coats' statement to Clark on the picket line on September 16,
heremabove referred to
33 See Radio Officers' Union of the Commercial Telegraphers Union
(A H Bull Steamship Company) v N L R B, 347 U.S 17, N L R B v
Brown , dlbia Brown Food Store , 380 U S 278
3' General Counsel appeared to be taking the position at one point in
the hearing that the inventory -taking and the results thereof, were per-
But it was the Employer's conduct in precipitately lay-
ing off the employees - not the employees' conduct -
which rendered impossible a comparison of sales under
direct supervision. Also, the fact that the employees
chose to establish a picket line to protest the Employer's
conduct did not foreclose the Employer from seeking to
conduct an investigation via the use of a polygraph if it
chose to do so; however, there is no evidence in the
record that the employees were invited to subject them-
selves to such an investigation. Accordingly, this defense
of the Respondent does not withstand close scrutiny.
4. The Respondent's posttermination conduct is in-
consistent with the asserted economic defense. That is to
say that Coats advised the employees at the time of ter-
mination that they were simply laid off temporarily pend-
ing an investigation of the reason for the shortages;36 yet
no investigation was ever conducted and none of the em-
ployees were ever recalled. This tends to confirm Coats'
later statement to Clark - on September 16, on the picket
line - that the employees were actually fired - not laid off
- on August 25, because they signed union cards. But the
Respondent argues in its brief (p. 39):
Since there was no way to determine whether only
a few or all of the employees on August 24 were guil-
ty of the misconduct which caused the shortages and
since the employees by their own choice had im-
plicated each other, no recall was necessary.
In the first place, the foregoing statement does not ac-
curately reflect the testimony in the record. Only two of
the employees (Clark and Tite) accused each other of
misconduct; nevertheless, Respondent chose to lay off all
of them. Assuming without deciding that some were guil-
ty of misconduct which would have entitled the Employer
to terminate them permanently, the fact that such ter-
minations were effected without effort at prior or post in-
vestigation reflects adversely on the asserted reason for
the termination.
5. Finally, I have considered , in assessing the legitima-
cy of Respondent 's asserted motive, the failure of
Respondent to take into account the fact that the Wood
River store was located near a teenage center which
resulted in much loitering in the store by children of that
age, who may very well have been responsible for some
of the inventory shortage.
Based upon all of the foregoing circumstances, I find
that the stated motive of Respondent does not withstand
scrutiny and that I may, within the law, therefore infer
that there is another motive- in this case, an unlawful
one-which prompted the termination of all the em-
ployees. As was recently stated by the Circuit Court of
Appeals for the Ninth Circuit in Shattuck Denn Mining
Corporation v. N.L.R.B., 362 F.2d 466,470:
Nor is the trier of fact-here the trial examiner -
required to be any more naif than is a judge. If he
finds that the stated motive for a discharge is false, he
certainly can infer that there is another motive. More
petuated by Respondent without sufficient economic motivation, and
were calculated to provide an excuse for the layoff. While it is true that a
taking of inventory would not appear to provide a resolution to the cash-
drawer shortages, the fact remains that the store was in a mess" from a
display-of-stock viewpoint, and an inventory had not been taken for a
period of almost a month Accordingly, I am not prepared to hold that the
inventory -taking was a mere pretext
35 Respondent 's brief, pp 38-39
36 As previously noted, Respondent amended its answer at the hearing
to so plead
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than that, he can infer that the motive is one that the
employer desires to conceal-an unlawful mo-
tive -at least where, as in this case, the surrounding
facts tend to reinforce that inference.
I find and conclude that the termination and refusal to
recall the alleged discriminatees herein constitutes a
violation of Section 8(a)(3) of the Act, and will recom-
mend an appropriate remedy.
K. The Alleged Refusal to Bargain
In order to prevail in proof of a violation of Section
8(a)(5), General Counsel must show that the Union, at
the time of the request for recognition, represented a
majority of the employees in an appropriate unit, and that
the Employer refused to bargain with the Union, lacking
good-faith doubt of the Union's majority status. There ap-
pears to be no question in this case that at the time of the
attempted demand, the Union represented all of the em-
ployees of the store, which presumptively constituted an
appropriate unit. 37
The Respondent vigorously asserts that there can be no
refusal to bargain collectively in violation of Section
8(a)(5) since, in this case, there was no clear and
unequivocal demand for bargaining communicated to the
Employer by the Union, citing N.L.R.B. v. Columbian
Enameling & Stamping Co., 306 U.S. 292, 59 S. Ct. 501,
83 L. Ed. 660. However, the reason for the failure of
communication was the Respondent's policy of not allow-
ing a subordinate employee to accept certified mail. While
there is no substantial evidence here that such policy was
discriminatorily motivated38 the fact remains that the
Union attempted by the usual customary communication
channels to advise the Respondent of its majority status
and to request recognition. The record further shows that
before the Union was advised that its efforts in this regard
had failed, the Employer had terminated the employees,
thus making a resort to Board processes; i.e., the filing of
a petition under Section 9, impossible.39
As the record shows, on the day following the layoff, a
picket line was established in which all of the employees
initially participated and carried picket signs the legend of
which stated, in part, "employees on strike for a reasona-
ble contract." There can be no question but that the Em-
ployer's agents observed the employees and the signs dai-
ly. Shortly thereafter, on August 29, the Union filed a
charge in this case alleging a refusal to bargain on the part
of the employer.
It has been held that a request to bargain need not be in
haec verba, "so long as there was one by clear implica-
tion." 40 Here the definitive request failed because of the
Respondent's actions. However, the establishment of the
picket line and the above-quoted language on the picket
signs clearly showed that a majority of the employees
desired union representation, and implied a request for
recognition. Thus, the circumstances here, as in Scobell
Chemical Company v. N.L.R.B.,41 " .. cannot be con-
sidered to be anything less than a continuing demand for
recognition and bargaining."42 I find and conclude that,
under all circumstances, the Union's request for recogni-
tion was effectively communicated to the Employer as of
August 26, and that the Respondent's failure and refusal
thereafter to bargain constituted a violation of Section
8(a)(5) of the Act.43
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section
8(a)(1), (3), and (5) of the Act, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent did, on August 26,
wrongfully and illegally refuse to bargain with the Union,
after the Union was, on August 18, designated as the ex-
clusive bargaining representative of all the employees in
an appropriate unit, or, in the alternative, even if the
Respondent has not refused to bargain with the Union, I
find that in order to assure that the desires of Respond-
ent's employees be not frustrated in the future, it will be
necessary to include in the remedial order, an order that
Respondent, upon request of the Union, bargain collec-
tively with the Union.
Having found that the Respondent discriminatorily ter-
minated the employees on August 25, and has, at all
times since that date, failed and refused to reinstate them
to their former positions, I shall recommend the usual
remedy of reinstatement and backpay except as
hereinafter noted:
Respondent argues in its brief that the usual remedy of
reinstatement should not be ordered in this case because
of employee misconduct which occurred both before and
37 See Primrose Super Market of Salem, Inc., 148 NLRB 610, enfd
353 F.2d 675 (C A. 1), cert denied 382 U S 830 The record is silent as
to whether any of the other stores of Respondent were organized There
is no evidence that any other labor organization was seeking to organize
the employees on a broader basis
38 Compare Filler Products, Inc v N L R B., 376 F.2d 369 (C A 4)
31 Thus this case is distinguishable on its facts from Filler Products,
Inc v. N.L.R B , supra
40 Joy Silk Mills, Inc v N L R.B., 185 F 2d 732,741 (C A D.C ), cert
denied 341 U S 914
41 267 F 2d 922
42 Id, at 925 See also N L.R B v Albuquerque Phoenix Express, 368
F 2d 451 (C A 10)
43 It should be noted alternatively that I would have included in my
Recommended Order herein a direction that Respondent bargain with the
Union respecting the wages, hours, and working conditions of the em-
ployees at the Wood River store, in the circumstances of this case, even
had I not found an 8(a)(5) violation Thus, the Board has, with court ap-
proval, in similar situations, ordered that an employer bargain with the
Union where the employer's unfair labor practices resulted in the dissipa-
tion of the Union's majority and the destruction of the conditions for a fair
election in which the Union could have demonstrated that majority. "To
require the Union to submit to another election under these circumstances
would be to permit Respondent to profit from its own unlawful conduct at
the expense of the Union and the majority of the Respondent's em-
ployees." Northwest Engineering Company, 158 NLRB 624, enfd. 376
F 2d 770 (C A D C); see also Wausau Steel Corporation v N L.R B,
377 F 2d 369 (C A 7), Western Aluminum of Oregon, Incorporated, 144
NLRB 1191.
QUICK SHOP MARKETS, INC 189
after the layoff, and/or because economic circumstances
dictated a reorganization of the Wood River operation. I
cannot agree with these contentions, except with respect
to Thelma Clark, as hereafter discussed.
Although, as previously noted, shortages apparently
existed both in the cash register and in the inventory prior
to the layoff, none of the employees was shown to have
been implicated in the shortages or proven to have been
responsible therefor. The most that the evidence shows
is that a couple of the employees accused each other of
misconduct, but the Employer never made such an ac-
cusation (at least prior to the hearing in this case), or
made a complaint to the proper authorities.44 But
Respondent further argues that a foremost "signal for
dishonesty" was the use by Clark of a private tally of the
sales made. According to Respondent, this could "serve
no useful purpose except to protect one with the propen-
sities of a thief." While it may well be that Respondent's
procedures (or lack of them) respecting the checking of
the cash registers would not adequately protect Clark
from accusations simply because she made a private tally,
I do not regard her attempted use of the tally as indicative
of dishonesty, particularly where, as here, she clearly en-
gaged in such conduct in an attempt to protect herself
(and Respondent should have realized it); at the same
time she suggested to Coats that Respondent attempt to
protect itself from thievery by placing mirrors at propi-
tious places in the store . This testimony is undenied and
clearly does not reflect a character bent upon felonious
conduct.
In sum, the evidence is not sufficient to bar any dis-
criminatee from reinstatement based upon conduct an-
tedating the layoff.
Respondent further contends that certain conduct en-
gaged in by the pickets - particularly Thelma Clark -
should bar their reinstatement. In support of this conten-
tion, Respondent offered the testimony of two customers
of the store. The first customer testified that as he crossed
the picket line one of the pickets (identified as Thelma
Clark) yelled at him, saying he was "no good" because he
crossed the line. He also testified that if the Respondent
recalled Clark to work, he would no longer patronize the
store. The second customer witness testified that as he
and a friend approached the store, Clark said that "[w]e
couldn't go in because they was on strike." The customer
replied that "[They] could go in if [they] wanted to," and
made reference to constitutional rights. Whereupon,
Clark referred to the customer as a "prick" and a "scab."
The customer admitted that he returned the compliment;
i.e., he referred to Clark as a scab. In addition, the
customer testified that on one occasion Business Agent
Schreier, who was walking with the pickets, advised the
customer "not to say anything to the picket, or he
[Schreier] was going to put a cut over my eye."45
Andrew Murry, Respondent's new store manager,
characterized the picketing as peaceful except as to Thel-
ma Clark who engaged in an "excess of hollering at peo-
ple and calling them various names from time to time."
(However , when pressed as to the latter , he was unable to
support the last phrase.) He also testified that he ob-
served Clark taking down license numbers of customers'
cars parked in front of the store 46
After a careful consideration of all the record evidence
respecting any employee misconduct which would bar
their reinstatement, I have concluded that there is insuffi-
cient evidence that any of the employees, with the excep-
tion of Thelma Clark, engaged in any such misconduct. In
resolving this issue, I believe it to be a proper and valid
distinction that picket line activities directed to the public
demand a higher standard of conduct than those directed
to other employees. The Board assumed the validity of
that premise in Montgomery Ward & Co., Inc.," but con-
cluded, in the circumstances of that case, that the em-
ployees' conduct in response to the customer's provoca-
tion did not warrant a denial of reinstatement. The court
denied enforcement, basing its decision, in part, upon the
fact that no witness testified that the employee provoked
the use of the profane words which were admittedly ut-
tered by the picketer.
The factual situation in the instant case is similar to that
in Montgomery Ward, the language used by the picketer
here being only slightly less profane and offensive .411
Here, however, there was clearly no provocation on the
part of the customer, unless it can be urged that the mere
crossing of a picket line constitutes a sufficient provoca-
tion. Clark uttered the offensive and derogatory language
first, and it was only then that the customer replied in
kind.
Under all the circumstances, I will recommend that
Respondent not be required to reinstate Thelma Clark,
and its backpay liability shall only run from August 25
until October 14.49
Finally, Respondent argues in its brief that no rein-
statement should be ordered with respect to the two
stockboys because Respondent, since the layoff, has ef-
fected a reorganization of the store so that it will be
operated solely by a "working manager and two others
with no part-time help." Respondent also points out that
after the two stockboys were released, they returned to
school.
It may very well be that, as a result of the picketing,
Respondent ' s business contracted to a degree which
would make operation of the store by a three rather than
a five-man crew economically feasible. However, this
may be but a temporary situation which might be changed
upon the Employer's compliance with the remaining
aspects of my Recommended Order, or a change in
economic circumstances.50
In any event , I do not believe this issue to have been
fully litigated on this record, and, under the circum-
44 Thus, this case is distinguishable from N L R B v Big Three Weld-
ing Equipment Co , 359 F 2d 77 (C A 5), relied on by Respondent, where
the employees "admi [tted] serious misconduct in pilfering the company's
property
45 Neither Clark nor Schreier denied the remarks attributed to them,
and, as the witness appeared to be candid and forthright , I credit his
testimony
46 Murry's testimony was also undemed , and I credit it
41 155 NLRB 999, enforcement denied 374 F 2d 606 (C A 10)
48 In that case the picketer used the words "bastard" and " son-of-a-
bitch " Here the words were "prick" and "bastard "
41 This date was based upon the customer witness ' testimony (on
December 14) that Clark's offensive conduct took place "about two
months ago "
10 In this connection , I note G C Exh 2 which reflects that during the
period from the opening of the Wood River store until August I, gross
sales rose from approximately $1,500 per month to $8,000 per month
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, believe the issue should be more appropriately
resolved in the compliance stage of this proceeding.51
Therefore, I will recommend the customary reinstate-
ment and backpay order (excepting Clark) subject to
Respondent being able to prove in the compliance stage
of the proceeding that it has not employed , and does not
intend to employ at the Wood River store, any em-
ployee (s) who would work substantially the same number
of hours and perform substantially the same functions as
Tite and Greer . Should Respondent be able to so prove
its contention, then backpay to Greer and Tite shall be
limited to the period beginning with the date of the dis-
crimination against them to the date of Respondent's
reorganization of its Wood River store . Such employees
not entitled to immediate reinstatement shall nevertheless
be placed on a preferential hiring list in accordance with
seniority or other nondiscriminatory standards , and shall
be offered employment before any new , employees are
hired.52
Accordingly, it will be recommended that Respondent
offer employees Marilyn Melton, Janet Davis, Richard
Tite, and Jon Jeffrey Greer immediate and full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss of
earnings he or she may have suffered by reason of the dis-
crimination against them , by payment to each of them of
a sum of money equal to that which he or she would have
earned as wages from the date of the discrimination
against them to the date of offer of reinstatement in a
manner consistent with Board policies as set forth in
F. W. Woolworth Company, 90 NLRB 289. Interest on
backpay shall be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. (This recom-
mendation respecting Respondent ' s offer of reinstate-
ment and backpay to Tite and Greer is subject to the
caveat set forth in the preceding paragraph hereof.) It will
be further recommended that Respondent make Thelma
Clark whole for any loss of earnings she may have suf-
fered by reason of the discrimination against her by pay-
ment to her of the sum of money equal to that which she
would have earned as wages from the date of the dis-
crimination against her to October 14, 1966 . Such com-
putation of backpay is to be made in a manner consistent
with Board policies set forth in the Woolworth and Isis
Plumbing cases, supra.
As the unfair labor practices committed by the
Respondent were of a character which go to the very
heart of the Act, it will be recommended that the
Respondent cease and desist from infringing in any other
manner upon the rights of employees guaranteed by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Quick Shop Markets, Inc., an Illinois corporation,
and Quick Shop Markets , Inc., a Missouri corporation,
the Respondent herein , is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Clerks International Association,
AFL-CIO, Local 149, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing its em-
ployees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act, as found hereinabove , the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire or tenure of
employment of the named discriminatees herein, to
discourage membership in a labor organization , Respond-
ent violated Section 8 (a)(3) and (1) of the Act.
5. All employees employed by the Respondent at its
Wood River , Illinois, store , excluding guards and super-
visors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
6. At all times since August 18, 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 August 26, and at all
times thereafter, to recognize and bargain with the Union
as the collective-bargaining representative of the em-
ployees 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 labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact , conclu-
sions of law , and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended , it is recommended that the National
Labor Relations Board order that the Respondent , its of-
ficers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees re-
garding their activities on behalf of Retail Clerks Interna-
tional Association, AFL-CIO, Local 149, or any other
labor organization.
(b) Soliciting employees to abandon their activities in
support of the above -named Union , or any other labor or-
ganization.
(c) Threatening to close down its operation if the em-
ployees select union representation.
(d) Telling employees that they would be - or were -
fired because they had engaged in activities on behalf of
the above-named Union.
(e) Failing or refusing to bargain collectively with the
above-named Union as the exclusive collective-bargain-
51 Respondent 's contentions are based solely upon testimony of its own
witnesses , which is essentially self-serving But the Court of Appeals for
the Second Circuit has stated. "To establish that an employer has reduced
or adjusted his business to an extent eliminating the job of a discrimmatee
requires careful analysis of the books and records of the employer during
the backpay period " N L R B v Mastro Plastics Corporation , 354 F 2d
170 (C A 2), enfg 136 NLRB 1342 The Board has also affirmed aTrial
Examiner's statement that " mere self-serving and conclusionary state-
ments by Respondent that he would have laid off the [discnmmatees] . .
for economic and nondiscriminatory reasons do not suffice to deprive
those claimants of their remedial rights " W C Nabors d/b/a W C
Nabors Company, 134 NLRB 1078, 1088 , enfd. as modified 323 F 2d
686 (C A 5), cert denied 376 U S. 911.
52 Cf Biscayne Television Corporation, 125 NLRB 437, 438-439,
Cleaver-Brooks Mfg Corporation, 120 NLRB 1135, 1136-37
QUICK SHOP MARKETS, INC.
ing representative of its employees in the unit herein
found appropriate.
(f) Discouraging membership in the above-named
Union, or any other labor organization of its employees,
by discriminatorily discharging, or in any other manner
discriminating against any employee in regard to his hire,
tenure, or other term or condition of employment.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, and to engage in other concerted ac-
tivities 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 rights may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action found neces-
sary and designed to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Retail Clerks International Association, AFL-CIO,
Local 149, 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 un-
derstanding is reached, embody such understanding in
a signed contract.
(b) Offer to Marilyn Melton, Janet Davis, Richard
Tite, and Jon Jeffery Greer, immediate, full, and uncon-
ditonal reinstatement to his or her former or substantially
equivalent position, without prejudice to their seniority or
other rights, privileges, or working conditions, and make
each whole for any loss of earnings he or she may have
suffered, in a manner set forth in the section hereof enti-
tled "The Remedy."
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) Make whole Thelma Clark for any loss of earnings
she may have suffered by reason of the discrimination
against her, in the manner set forth in the section hereof
entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(1) Post at its Wood River, Illinois, store and at its
Florrisant, Missouri, headquarters, copies of the attached
notice marked "Appendix."53 Copies of said notice, to be
furnished by the Regional Director for Region 14, after
being duly signed by its authorized representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(g) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith. 54
191
IT IS FURTHER ORDERED that the complaint herein be
dismissed to the extent that it alleges violations of the Act
not found herein.
53 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
54 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT discourage membership in or activi-
ties on behalf of Retail Clerks International Associa-
tion, AFL-CIO, Local 149, or any other labor or-
ganization, by discharging any of our employees or
in any other manner discriminating against our em-
ployees in regard to hire or tenure of employment or
any other term or condition of employment, because
of their union membership or activities.
WE WILL NOT coercively interrogate our em-
ployees regarding their union sympathies in order to
discourage our employees from joining, remaining
members of, or assisting Retail Clerks International
Association, AFL-CIO, Local 149, or any other
labor organization.
WE WILL NOT solicit our employees to abandon
their activities in support of the above-named Union,
or any other labor organization.
WE WILL NOT threaten our employees that we will
discharge them if they join a union.
WE WILL NOT tell our employees that this store
will never be a union store.
WE WILL NOT refuse to bargain collectively with
Retail Clerks International Association, AFL-CIO,
Local 149, as the exclusive representative of all em-
ployees in the appropriate unit with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor or-
ganizations, to join or remain members of or assist
the above-named or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, and refrain from any
and all such activities, except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Marilyn Melton , Janet Davis,
Richard Tite , and Jon Jeffrey Greer full reinstate-
ment to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges , and we will make them, along
with Thelma Clark, whole for any loss they may have
suffered as a result of the discrimination against
them , in the manner described in the Trial Ex-
aminer 's Decision.
WE WILL notify Marilyn Melton, Janet Davis, Jon
Jeffrey Greer, and Richard Tite if presently serving
in the Armed Forces of the United States of their
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
WE WILL , on request , recognize and bargain with
Retail Clerks International Association , AFL-CIO,
Local 149, as the exclusive collective-bargaining
representative of our employees in a unit comprised
of all employees at our Wood River , Illinois, store
excluding guards and supervisory employees as
defined in the Act, regarding their rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody the same in a signed contract.
Dated By
QUICK SHOP MARKETS,
INC., AN ILLINOIS CORPORA-
TION: QUICK SHOP MAR-
KETS, INC., A MISSOURI
CORPORATION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
,directly with the Board's Regional Office, 1040 Boat-
men's Bank Building , 314 North Broadway, St. Louis,
Missouri 63102, Telephone 622-4167.