Breaux Mart, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1975

217 N.L.R.B. 485 (N.L.R.B. 1975)

BREAUX MART, INC. 485
Breaux Mart , Inc. andRetail Clerks International As-
sociation, AFL-CIO, Local 548. Case 15-
CA-5371
April 22, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 11, 1974, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respondent
filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith. Specifically, we find
merit in the General Counsel's exceptions to the find-
ing that David Dennard was not discharged for reasons
proscribed by the Act.
The Administrative Law Judge found, and the re-
cord shows, that David Dennard was employed by the
Respondent as a stock clerk on July 6, 1974,' at its
Metairie, Louisiana, store, and was assigned to work
with the night crew under the direct supervision of
John McConnell. On his application, Dennard, a recent
high school graduate with plans for entering Tulane
University, noted his 2 years of clerking experience at
two grocery stores, and submitted a letter from the
manager of his last employer, a Safeway store in Cali-
fornia, stating that he, Dennard, was an "excellent
stock clerk." Dennard had been a member of a union
at his last employer and thought that the Respondent's
70 full- and part-time employees might be interested in
a union. Toward this end, Dennard, on July 10, dis-
cussed organizing procedures with the Union's vice
president, Ronnie Ricard, and thereafter began to so-
licit support from his fellow employees on the night
crew as well as 8 to 10 employees on the day shift.
Dennard's union activities soon came to the atten-
tion of McConnell and Store Manager Tony Moreland.
Thus, on July 15, while on their regular 10 p.m. breaks,
Dennard and several other stock clerks were discussing
the Union. Dennard was explaining his favorable expe-
rience and advantages that unions offered when
McConnell joined the group and stated that a union
1 Hereinafter all dates are in 1974.
was not I ^ssible at the Respondent's store, and ended
the discussion by adding that if the employees organ-
ized "Mr. Breaux would rather close the store than
have a union in it . . . [Mr. Breaux] didn't like people
pushing him around." At or about the same time,
McConnell separately ordered stock clerks Paul
Manale and Victor Leggio to stop talking to Dennard
about the Union and to stay away from him. Based
upon the foregoing credited testimony the Administra-
tive Law Judge properly found that by threatening
store closure and ordering employees to stay away from
Dennard the Respondent violated Section 8(a)(1) of the
Act.
The Administrative Law Judge also found that on
Sunday, July 21, McConnell happened to visit with
Tony Moreland, who had just returned to New Orleans
earlier that day following a week's vacation out of
town. During the course of their conversation in More-
land's apartment, McConnell admittedly related Den-
nard's talkativeness at work, which included, as the
Administrative Law Judge found, Dennard's recent
union advocacy. Moreland replied that he intdnded to
take a "closer look" at Dennard over the coming week.
During the first 2 weeks of his employment, from
July 6 to 22, Dennard was assigned to the paper goods
aisle which was 1 of the 10 or so grocery and dry-goods
aisles under McConnell's supervision. There is little
dispute that during this time Dennard performed his
work well, as judged by his fellow employees and his
supervisors. Indeed, it is undenied that during the fol-
lowing week both Moreland and the Respondent's as-
sistant store manager praised Dennard's work and said
they would try to get him a raise.
On Monday, July 22-the day after Moreland vowed
to take a "closer look"-Dennard reported for work at
7 p.m., his normal starting time, and was informed by
McConnell that he had been scheduled to come in
earlier that day to do price changes. McConnell told
Dennard that his name was on the roster posted in the
store the previous week. Dennard stated that he had
been told that if his hours were changed he would be
orally notified and McConnell had not previously noti-
fied him of the changes scheduled for Monday.
McConnell then spoke to Moreland who told Dennard
that it was not important, not to worry about it, adding
that Dennard could make up the time that week.
On the following day, Tuesday, July 23, Dennard
reported for work at 2 p.m. and started doing price
changes in the paper aisle. However, Moreland reas-
signed him to the liquor aisle which, unlike the other
aisles in the grocery store, was the direct responsibility
of Moreland and not McConnell. Moreland explained
that the liquor aisle was in bad shape, and Dennard
could see that the shelves were bare. Indeed, the regular
liquor aisle stock clerk, Eddie Gammon, had not
217 NLRB No. 56
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked since the previous Friday and was not expected
to' return that week. Moreover, the 60 or so cases of
wine and an undetermined number of cases of liquor
ordered by Moreland each week were normally re-
ceived on Tuesday, Wednesday, and Thursday, and
"spotted" (i.e., deposited) by the supply house delivery-
men at the end of the liquor display aisle . Dennard also
noticed that there was already quite a large back stock
in the liquor storeroom waiting to be shelved on the
display aisle . Briefly, Moreland explained to Dennard,
who was unfamiliar with the operation of a liquor aisle,
that the invoices for each delivery were left with the
cashier, the Respondent's prices were written on the
invoices from the store's own liquor price book, the
prices were then stamped on the merchandise, the bot-
tles were placed on the display shelves, and after he had
finished with the invoices they were to be returned to
the cashier.
After giving these brief instructions Moreland left,
but by his estimation he returned every 10 to 15 mi-
nutes to see how Dennard was progressing. According
to Moreland, nothing appeared to be out of order.
Dennard followed the same routine on Wednesday
and Thursday, splitting his time between the liquor and
paper aisles. In all, he spent about 7 hours on the liquor
aisle , or about one-half of the time the regular stock
clerk would have spent over a comparable period.
Aside from experiencing some difficulty in reducing
the back stock that was already in the liquor storeroom
when he took over on Tuesday, and finding space in the
storeroom for the shipments received that week, Den-
nard encountered no problems. When the night crew
left the store late Thursday night everything appeared
to be in order; Dennard testified without contradiction
that the liquor aisle had been properly "fronted" and
was in good order, and, as was customary, all empty
boxes were removed from the aisles and burned by the
night crew. Again, it is uncontroverted by the assistant
store manager (who took over for Moreland in the
latter's absence all day Wednesday and from- 3 p.m. on
Thursday), and McConnell, and the employees that
there was nothing out of order on the liquor aisle. The
same could be said for the liquor storeroom where
Dennard had stacked some 30 cases of wine and liquor,
leaving some 12 to 15 of these cases on his flatcar.
Indeed, employees who had occasion that week, includ-
ing Thursday, to enter the liquor storeroom, which also
housed cigarettes, candies, and drugs, noticed nothing
out of order.
Upon leaving the store late Thursday night, several
of the store clerks, including Dennard, who was not
scheduled to work the-following day, remained in the
parking lot, and, over a few beers, discussed a number
of subjects of common interest. McConnell joined the
group. At some point, after discussing Mardi Gras,
Dennard began relating his interest in the Union, stat-
ing that if a majority designated the Union as their
bargaining representative the matter would be "out of
Mr. Breaux's hands." McConnell, by his own admis-
sion , replied, "man, if you do-that, Mr. Breaux would
probably close the store down." Dennard concluded
this part of the discussion by announcing that the em-
ployees "were going to have a meeting that Sunday
with [Union Vice President] Ronnie Ricard."
The following morning, Friday, July 26, Moreland
decided to discharge Dennard, and informed Dennard
when he reported for work on Saturday night. Accord-
ing to Moreland, he told McConnell "the specific rea-
sons I wanted him to fire Dave," and ordered McCon-
nell to fill out Dennard's termination slip. The slip,
which was filled out on Saturday, noted the following:
"Dismissed: did not show up for work-mispriced liq-
uor shipment."
However, the only time Dennard "did not show up
for work" was on the previous Monday and, as men-
tioned above, the Respondent conceded that that inci-
dent was forgotten. As for mispricing the liquor ship-
ment, Moreland testified that late Friday morning a
checkout cashier, Barbara Fletcher, brought to his at-
tention three bottles of Sangria each bearing different,
prices, $1.57, $1.51, and $1.59. Previously, the same
cashier had called his attention to two bottles of liquor
each having different prices, and another instance of a
mispriced bottle of liquor was also discovered. More-
over, when Moreland went to the liquor aisle , he found
a couple of other mispriced bottles of Sangria. More-
land "assumed" that Dennard, and not Gammon, was
responsible for each error. In any event, it is undisputed
that other stock clerks had mispriced as many as 15
cases of goods and were not disciplined-let alone
discharged-in any way. Indeed, the incidence of mis-
priced items was far from uncommon : Barbara
Fletcher testified that discovery of an improperly
priced item occurred with every 9 or 10 customers, and
was not usually reported to a supervisor. Confronted
with these circumstances, Moreland conceded, that
without more, he "would not fire someone for making
several minor mistakes [and, shifting the explanation
for the discharge to a much graver reason , added] but
someone who had completely destroyed a section in a
store, I would have no recourse but to fire him."
At this point it is obvious from Moreland's own
testimony that the mispricing incidents, standing alone,
were not sufficient reasons for the discharge. And, as
Dennard's alleged tardiness was admittedly a forgotten
matter, the Respondent failed to provide any plausible
explanation for the discharge. Of course, this circum-
stance, coupled with the fact that Dennard was a good
employee, twice praised by his supervisors within 2
days of his sudden termination, raises and clearly sup-
BREAU,X MART, INC.
ports the inference that the real reason for his discharge
lay elsewhere . Against this background , we are con-
vinced that Dennard 's union activities contributed at
least in part to his discharge.
Accordingly, we find that the General Counsel sus-
tained his burden of making out a prima facie case of
unlawful discrimination . Thus, within the 10 days
preceding the discharge , the Respondent became aware
of Dennard's union activities, obviously took strong
exception to his efforts by unlawfully threatening store
closure and twice ordering employees to avoid Den-
nard and not to talk to him about the Union, and, on
the very eve of his discharge, again threatened to close
down if the employees exercised their lawful right to
designate a bargaining representative. Throughout,
Dennard was the Union 's leading , if not sole, advocate,
and within hours of his discharge he announced that he
and his fellow employees were planning to meet with
the Union . Knowledge , union animus, the timing of the
discharge, and the failure of the stated nondiscrimina-
tory reasons to withstand scrutiny, all support our con-
clusion.
The Administrative Law Judge apparently agreed
that a prima facie case had been established. But he
found that , on balance , the Respondent had at least met
its burden in rebutting the General Counsel 's case by
supplying additional reasons for the discharge. We
disagree . The additional and shifting reasons for the
discharge are no more convincing than the initial stated
reasons.
As mentioned above, Moreland found that "some-
one . . . had completely destroyed " the liquor section
of the store and, without making any effort to investi-
gate or confront Dennard with this charge, simply "as-
sumed" Dennard was solely responsible . Bearing in
mind that the Administrative Law Judge found that
Moreland was given to "overstatement," this is his
version of what he found late Friday morning when he
investigated the mispriced bottles of wine:
Upon going on the liquor aisle, it practically made
me sick . There were empty boxes thrown about
the liquor aisle . There were full bottles stacked up.
There were loose liquor bottles , wine bottles,
thrown about the aisle . I found 3 or 4 invoices
stuffed in an empty box that if it had been burned
we would have lost those invoices . Between the
kitchen aids , there were other invoices behind
there. Behind the Gallo wine there were invoices
which seemed as though they were practically hid-
den behind there. There was a whole week's in-
voices. -
None of them had been turned in. So I said, God,
this mess , so I went in the liquor room, and I was
going to try to start working myself, when I went
487
in the liquor room, the liquor room was a complete
disaster area, like a hurricane hit. There were bot-
tles thrown about. There were broken liquor bot-
tles. Someone had stacked full cases of bottles
upon half cases of bottles. They had fell [sic].
Cases of bottles had broken. The place was just a
mess. There were even empty boxes in the liquor
room. We couldn't get through to get our drugs.
We couldn 't get through to get the cigarettes. It
was a complete disaster area . Never in my life have
I seen a bigger mess than this was.
Despite this "complete disaster," which, if it existed,
surely posed some danger or at least inconvenience to
store personnel and customers, Moreland stated that he
could not assign any one of the store's employees to
clean it up until 1 day later because the store was busy.
Moreland himself, who was directly responsible for the
liquor section, candidly admitted that he could not
spare any of his time that day to work on the "disaster
area" and, instead, returned to the task of bagging
groceries at one of the store 's eight checkout counters
because "my customers came first." There is no evi-
dence that any supervisor, employee, or even a cus-
tomer ever noticed anything amiss in the liquor aisle
and reported to Moreland. Nor is there any evidence
that Moreland even discussed this "disaster area" with
anyone on Friday. Assuming, as Moreland did, that the
mess was caused on Thursday night, no reason was
advanced why the assistant manger , McConnell, or any
other members of the night crew responsible for clean-
ing up the store had failed to detect anything. Likewise,
neither of the two porters who swept and washed the
floors before the 8 a.m. opening on Friday reported any
mess in the liquor aisle . Moreover, none of the em-
ployees who regularly visited the storeroom to obtain
supplies of candies, cigarettes , and drugs noticed any-
thing wrong in the liquor section . Indeed, the Respon-
dent's own witness, Barbara Fletcher, had been in the
storeroom that day and her testimony makes no refer-
ence to any alleged disorder . In addition , as far as the
record reveals, Moreland never investigated the matter,
or even sought any explanation from McConnell for the
damage supposedly done by a member of his crew.
Finally, and perhaps most telling of all, no mention of
the "disaster area" was made on Dennard 's termina-
tion slip although it was prepared on Moreland 's "spe-
cific" instructions 1 day later.
Some of these circumstances troubled the Adminis-
trative Law Judge, but he also found, based on cor-
roborative testimony, that there was some disarray,
although certainly not of the magnitude Moreland de-
scribed. We do not disturb this finding, but we note that
in each instance these witnesses testified to circum-
stances as they appeared long after the decision to dis-
charge Dennard had been made . Thus, Eddie Gammon
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visted the store on Friday night and happened to notice
that the liquor aisle, after a busy day when no one was
assigned to care for the area , was in disarray . On Satur-
day and Sunday bag boy Steve Murphey spent consid-
erable time cleaning up the storeroom , checking prices
on the liquor aisle , and marking some of the bottles
Dennard had left untouched in the storeroom the previ-
ous Thursday. Cashier Kay Hood assisted Murphey on
Sunday . - Finally , when Gammon returned on
Monday-4 days after Dennard had last
worked-he noticed mismarked and misplaced bottles
on the liquor aisle. But it is clear that by this time
less-experienced employees had had their hand in
working this unfamiliar section of the storeroom and
the liquor aisle.
Therefore, we must return to Moreland's descrip-
tion, albeit overstated, of the condition of the liquor
section on Friday. To repeat, according to Moreland,
he found filled and partially filled cases of liquor and
wine bottles in the liquor aisle. In this regard, Respond-
ent made no effort to consider a most plausible reason
for this circumstance; namely, that the invoices submit-
ted in evidence show that at least two deliveries were
made on Friday, consisting of 2 cases and 19 bottles of
6 different kinds of wine. Indeed, Moreland, who al-
ways ordered the liquor, would have known that deliv-
eries would be made on Friday and , according the usual
procedure, would be "spotted" in the display aisle.
Dennard could hardly be blamed for the presence of the
liquor and wine in the aisle because he was not on duty
that day. Moreover, Moreland did not try to ascertain
from McConnell, or anyone else, how empty boxes
could have been left behind by the night crew. As for
the invoices, the Administrative Law Judge specifically
found that Moreland had never explained to Dennard
their real significance. We agree and note that, al-
though he was told to return them to the cashier when
he was "finished," Dennard explained that he was not
"finished" with them and intended to use them again
in stocking shelves . In any event, no invoices were lost,
and even if they had been lost, Respondent's own wit-
ness , Gammon, testified the cashier kept a duplicate
copy of each invoice. Finally, it is undisputed that
broken bottles were normally kept in boxes on the
storeroom floor for the purpose of submitting claims
against the liquor supply company which delivered
them. Dennard testified that there were about 30 boxes
of liquor in the storeroom on Thursday. Of these boxes,
some 12-15 had been delivered that day, and Dennard
placed them- on a flatcar which he wheeled to the store-
room. Yet there is no mention of the flatcar in More-
land's testimony. If Dennard had risked the chance
that another clerk in need of a flatcar would damage
goods while unloading it,-this was not explained to him
by Moreland. Indeed, it does not appear that Moreland
gave Dennard any instructions at all with regard to the
operation of, and work to be performed in, the store-
room.
Finally , contrary to the Administrative Law Judge,
we find that on Saturday evening when Dennard re-
ported for work he was informed by McConnell and
then Moreland that he had done a poor job on the
liquor aisle . It appears that Dennard then demanded to
see the aisle and, after Moreland refused this request,
the discussion became heated . This circumstance, and
all of the foregoing evidence , convinces us that the
Respondent seized upon a pretext for Dennard's dis-
charge, and was really motivated by his union activi-
ties.
Based on the foregoing and after a review of all of the
evidence, and the inferences which can be reasonably
drawn therefrom , we conclude that the Respondent
violated Section 8(a)(3) and (1) of the Act by discharg-
ing David Dennard on July 27, 1974, at least in part
because of his union activities.
In view of the foregoing violations of Section 8(a)(3)
and (1) of the Act, we shall issue a new Order as
provided below.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations-Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Breaux Mart,
Inc., Metairie, Louisiana, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that the store will close if
they select a union to represent them.
(b) Instructing employees not to discuss unions with
each other.
(c) Discouraging membership in, or activities on be-
half of, any labor organization by discharging em-
ployees or otherwise discriminating against them in any
manner, with regard to their hire and tenure of employ-
ment , or any term and condition of employment, be-
cause of their union activities.
(d) In any other manner interfering with, restraining,
or coercing any employee in the exercise of his rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer David Dennard immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, without preju-
dice to his seniority or other rights previously enjoyed,
and make him whole for any loss of pay due to the
discrimination against him by awarding him backpay
from the date of his discharge to such time as he re-
ceives a valid offer of reinstatement, the computation
BREAUX MART, INC.
of such moneys to be in accord with the Board's Deci-
sion in F W Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its store in Metairie , Louisiana, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 15, after being duly signed by Respon-
dent's authorized representative, shall be posted by Re-
spondent 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.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
2 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection and
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT discourage membership in, or ac-
tivities on behalf of, any labor organization by
489
discharging employees or otherwise discriminat-
ing against them in any manner, with regard to
their hire and tenure of employment, or any term
and condition of employment, because of their
union activities.
WE WILL NOT threaten to close the store if em-
ployees select a union to represent them.
WE WILL NOT instruct employees not to discuss
unions with each other.
WE WILL offer David Dennard immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights,
and make him whole for any loss of pay suffered
by reason of the unlawful conduct against him.
BREAUX MART, INC
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
case was heard at New Orleans, Louisiana, on October 8 and
9, 1974.' The proceedings were initiated by unfair labor
practice charges filed July 30 by Retail Clerks International
Association, AFL-CIO, Local 548 (the Union). Based on
these charges a complaint issued August 30 alleging that
Breaux Mart , Inc. (Respondent) had committed unfair labor
practices in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended (the Act). The Re-
spondent filed an answer admitting jurisdiction but denying
the commission of unfair labor practices.
The issues are whether Respondent unlawfully threatened
employees with store closure if they unionized, ordered em-
ployees not to talk to union adherent John David Dennard,
and whether_Dennard was fired because of this union activity.
Upon the entire record, including my observation of the
witnesses and consideration of the briefs filed by the General
Counsel and the Respondent, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
Respondent is a Louisiana corporation engaged in the op-
eration of a chain of retail grocery stores in Jefferson Parish,
Louisiana, including a store at Metairie, the only facility
involved in this case. In the operation of its business Respond-
ent annually receives gross revenues in excess of $500,000 and
purchases and receives goods and services valued in excess of
$50,000 directly from points outside Louisiana. It is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
Respondent's Metairie store is described in the record as
a large supermarket. The market includes a grocery depart-
ment, a produce department, and a meat department. The
selling area, exclusive of the meat department, consists of 14
aisles where goods are displayed. Eight checkout counters are
1 All dates herein are in 1974 unless otherwise indicated.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arranged across the front of the store. The number of cashiers
manning these checkout counters varies depending on the
volume of business.
The store employs about 70 employees, many of whom are
teenagers who work part-time or at night. They are not repre-
sented by a union. The management team consists of Store
Manager Tony Moreland who has overall responsibility, an
assistant manager who is in charge when Moreland is not on
duty, a produce manager, a meat department manager, and
manager-trainee John McConnell. McConnell is in charge of
the night crew of stock clerks who place the merchandise on
- shelves in the store aisles. McConnell is a supervisor within
the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is an unincorporated association which admits
to membership employees of various employers , including
employees of Respondent , and which represents employees
with respect to wages, hours, and other terms and conditions
of employment . It is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Threats, Coercion, and Restraint
1. The issues
The complaint alleges, and the answer denies, that Re-
spondent, in the person of its supervisor, John McConnell,
violated Section 8(a)(1) of the Act in two regards: Firstly,
that on July 15 and 26 he threatened employees that the
owner,of the store would close it down if the Union organized
the employees; secondly, that on three occasions in late July
he ordered employees not to talk to, nor to discuss union
activities with, a known union advocate. The evidence estab-
lishes that the union advocate in question was the alleged
discriminatee John David Dennard. At the hearing Respon-
dent's counsel admitted, and the testimony of witnesses in-
cluding McConnell indicates that McConnell in fact had di-
rected employees not to talk with Dennard. The issue on this
second allegation, therefore, is whether such managerial limi-
tation on discussion among the employees was an unfair labor
practice. I fmd below that on the first issue Section 8(a)(1)
was violated as alleged, and on the second issue Section
8(a)(1) was violated on two of the three occasions alleged.
2. The hiring of Dennard
Respondent employed Dennard as a stock clerk during a
3-week period from July 6 to 27. At the time of the hearing
he was 19 years of age.
Prior to his employment with Respondent Dennard had
almost 2 years' experience working in supermarkets. Thus,
during the preceding 2 years he had worked at a Safeway
store in Houston, Texas, as a bagboy for 2-1/2 to 3 months
and as a stock clerk for 8-1/2 months. Following this he had
worked at another Safeway in San Diego, California, as a
bagboy for 3 months and as a stock clerk for 8 months. None--
of this experience involved the pricing of merchandise nor did
any of it involve the handling of liquor merchandise.
In applying for employment with Respondent, Dennard
cited his past experience and offered a laudatory letter of
recommendation from-his Safeway store manager in San
Diego. Respondent's Store Manager Moreland hired him as
an experienced stock clerk relying on his claim of experience
and also on the letter of recommendation. Although the letter
was not offered in evidence, Moreland testified without objec-
tion that the letter "stated that Dave Dennard was an excel-
lent stock clerk and there was nothing in the supermarket
that he couldn't master and do an excellent job of."
3. Dennard's union activity
During his employment with Safeway Dennard had been
a member of the Union. He thought Respondent's employees,
who were unrepresented, would be receptive to the idea of
union representation . On July 10 he contacted the Union's
vice president, Ronnie Ricard, and generally discussed with
him the procedures for organizing the store employees.
Thereafter he talked to all of his fellow workers on the night
crew, as well as 8 or 10 on the day crew, telling them about
the Union and endeavoring to learn if they would be receptive
to union representation.
Store Manager Moreland testified that prior to the time of
Dennard's discharge he had no knowledge of his union activ-
ity. As detailed hereinafter, however, the record establishes
that manager-trainee McConnell was present on some occa-
sions when Dennard discussed the Union. His knowledge of
Dennard's union activity is attributable to Respondent.
4. Threats that the store would close
a. The mid-July conversation in the store
During the 10 p.m. breaktime on the evening of Monday,
July 15, some of the stock clerks on the night crew, including
Dennard, Donald Comeaux, Steve Childress, and possibly
two others, gathered in the vicinity of the checkout counters
in the front of the store to engage in casual conversation.
Dennard was telling Comeaux about the advantages of union
representation. He talked about the benefits he had received
as a union member in California, including vacation benefits
and higher wages. He expressed the view that the union
operation in Safeway was superior to that of Respondent.
During this conversation McConnell joined the group. Ac-
cording to Dennard's testimony McConnell stated he did not
think a union at Respondent's store was possible. Dennard
replied that it was economically feasible because stores in
California had unions, their employees enjoy higher pay, and
the stores also make a profit. McConnell then stated that Mr.
Breaux would rather close the store than have a union in it
and he did not like people pushing him around. Comeaux
testified that when Dennard was telling about how the union
operation in Safeway was a lot,better than at Breaux Mart,
McConnell said Respondent's operation was not that good,
that its chain was not as big as Safeway and a union would
not work; that Mr. Breaux was a millionaire and could afford
to close it.
McConnell denied that he had such a conversation or that
he'made such statements. I do not credit his denial. Based on
the testimony of Dennard and Comeaux I fmd that on the
BREAUX MART, INC.
evening of July 15 McConnell told them in substance-that the
Union could not work in Respondent's operation and that
Respondent's owner would close the store rather than have
a union in it. I base this finding on the fact-that both Dennard
and Comeaux were clear about the occasion of the conversa-
tion and in general supported each other respecting what was
said. The testimony of each suffers from possible bias; Den-
nard because he was later discharged and is an interested
party in the present matter, and Comeaux because he too was
later discharged and because his father was a union supporter
in another industry. On the other hand some bias may be
imputed to McConnell because of his supervisory status with
Respondent.
I further find that McConnell, by suggesting to employees
that Respondent would close the store rather allow the em-
ployees to unionize, interfered with, restrained, and coerced
them in the exercise of their rights guaranteed in Section 7 of
the Act and thereby committed an unfair labor practice pro-
hibited by Section 8(a)(l)..
At the time of the July 15 conversation Moreland was on
vacation in Atlanta. When he returned to New Orleans on
Sunday, July 21, McConnell met him at his apartment to
report on conditions in the store. Among other- things
McConnell told him that Dennard had been B-S-ing a lot
and had not been carrying his freight. This news did not
prompt Moreland to do anything, but he determined to have
a closer look at Dennard's performance during the coming
week.
b. The July 26 session in the parking lot
On Thursday, July 25, the night crew and a few from the
day shift worked through the evening hours, finishing up °
shortly after midnight. As they were not scheduled to work
Friday they decided to get some beer and relax in the parking
lot for what is described in the testimony as a "bull session."
Those present included McConnell, Dennard, Comeaux,
Paul Manale, Victor Leggio, Pat Voss, Ed White, and some
of the' day shift clerks. There is dispute in the testimony
regarding which Thursday night this get-together occurred.
McConnell placed it during the prior week which would have
been the 19th of July. I find he was mistaken about this.
Dennard was fired on Saturday, July 27, and he testified that
the parking lot meeting was after work on the Thursday
before he was fired. He is corroborated by Manale who testi-
fied it occurred around inventory time. Inventory was taken
Sunday, July 28, the day after Dennard was discharged. Co-
meaux did not place the time although he testified about what
happened. Leggio, who according to McConnell was present,
was not asked about the parking lot session although he
testified about other matters. I credit the testimony of Den-
nard and Comeaux and find that the parking lot session
occurred in the early hours of Friday, July 26.
The group talked of many things. The longer time residents
of New Orleans told Dennard about Mardi Gras which he
had never seen. They talked of cars, girls, the cashiers, and
sex. According to Dennard, whom I credit, they discussed
racial problems including unemployment among Blacks in
the New Orleans area. Dennard then brought up the subject
of the Union arguing that if-people were paid adequate wages
they could afford to feed their families and would not need
491
unemployment compensation. He spoke of how the Union in
California had gotten him $400 in backpay. According to
Comeaux, whom I credit, Dennard compared Respondent's
store with Safeway stores, contending that Safeway, a union-
ized operation, used superior methods for stocking the stores.
He said employees could get more money with the Union and
that they should get 51 percent of the employees in all of
Respondent's stores and then the matter would be out of Mr.
Breaux's hands. According to Dennard he also told the group
that on the following Sunday he was meeting with Union
Organizer Ronnie Ricard.
According to McConnell, whom I credit, Dennard talked
,about his union, how he liked it, how it had gotten him some
money. McConnell testified that he responded as follows,
"and I told him, man, if you do that, Mr. Breaux would
probably close the store down . .. .
Based on these admitted comments by McConnell, a super-
visor, I find that on July 26 Respondent committed an unfair
labor practice in violation of Section 8(a)(1) by threatening
employees that the store would probably close if the Union
should organize them. Even though the comments were made
in a social situation by a supervisor as young as many of the
ordinary employees, they were coercive. Although it was
after working hours, they were still in the environs of the
store. In spite of his youth, McConnell was in charge of all
stock clerks working at, night. During the hours after the
store was closed to the public, he ordinarily was the only
management official on the scene. To the night crew he was
the boss. He was the one who told Dennard on Saturday July
27 that he was discharged. It is unlikely that ordinary em-
ployees would take his comments lightly. The risk that they
would not was part of his responsibility as a supervisor. Lucy
Ellen Candy Division of F & F Laboratories, Inc., 204 NLRB
121 (1973).
5. Management directs employees not to talk with
Dennard
The complaint alleges and the answer denies that Respond-
ent independently violated Section 8(a)(1) of the Act when on
three separate occasions during the latter half of July McCon-
nell ordered employees not to talk to a known union advocate
and not to discuss union activities with him. The known
union advocate was Dennard.
As noted earlier McConnell was in charge of the night crew
of stock clerks whose job it was to move merchandise from
the warehouse area in the rear of the store to their respective
aisles and to stock the shelves with priced merchandise. The
stock clerks are all young men in their late teens. McConnell
himself is only 19. McConnell's testimony indicates that
excessive conversation among these stock clerks was a con-
stant problem. He admitted that he frequently admonished
each stock clerk to stop talking and to get on with his work.
According to him he told them not to talk with anyone while
working.
a. Instructions to Comeaux
Thus, McConnell testified that although Comeaux was one
his best workers, he had to speak to him every night about
the talking, not just with Dennard, but with anyone. He
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finally took action with respect to Comeaux by taking him off
of the night crew during thethird week of Dennard's employ-
ment. According to McConnell, Comeaux had been talking
excessively for a month. It is not alleged that this transfer of
Comeaux was an unfair labor practice.
Comeaux testified, as noted earlier herein, respecting the
incident on July 15 when McConnell indicated that the store
might close if the employees unionized. He further testified
that following this incident on July 15 he returned to work
in his aisle and McConnell came back to him saying, "I don't
want you talking to David (Dennard) anymore." Comeaux
asked him why and McConnell replied, "Because you can
talk to him on breaktime." Comeaux admitted that he had
been earlier warned about talking too much.
The evidence respecting the warning to Comeaux not to
talk with Dennard does not amount to an unfair labor prac-
tice. None of the evidence other than the timing involved
indicates that it was a warning not to discuss union activities
with Dennard. On the contrary the evidence indicates that he
had permission to talk without limitiation during breaktime
and McConnell was only trying to keep him working and not
talking during working time.
b. Instructions to Leggio
McConnell also admitted talking nightly to Victor Leggio,
warning him to quit talking and to quit goofing off. He testi-
fied Leggio was talking in the aisle and also in the furnace
room. He took no action respecting Leggio because he did not
consider it serious.
Leggio, a youth of 18 years, testified that around mid or
late July on an occasion when he was in the stockroom in the
rear of the store, McConnell told him, "Don't be talking to
Dave about the Union." He said okay. Leggio admitted that
McConnell had had to speak to him more than once about
talking, telling him to stop talking and to work. But he fur-
ther testified that on this particular occasion McConnell
made no mention of his work. Leggio was a credible witness.
McConnell denied generally that he had told any stock
clerk to stop talking to Dennard because they were talking
about the Union. He admitted, however, that he heard Den-
nard talk of the Union during his second week of employment
and also during the incident in the parking lot. I credit Leggio
over McConnell because in his demeanor he appeared to be
a more forthright witness. He was more disinterested in the
litigation than McConnell, who was a supervisor. And as
already found herein, McConnell had expressed his view that
the store would close if the employees organized and had
committed an unfair labor practice in doing so. I find that he
committed a further unfair labor practice by instructing
Leggio not to talk to Dennard about the Union. The form of
this instruction was such as to allow Leggio to talk about
other things to Dennard while barring him from conversing
about the union topic. This was an invasion of employee
rights to discuss the topic.
c. Instructions to Manale
McConnell also admitted that he talked to Paul Manale
almost nightly about his excessive talking and finally dis-
charged him in August. According to McConnell excessive
talking was one of several reasons for the discharge.
Manale, 18 years of age, testified that on one occasion prior
to the discharge of Dennard when he was loading a flat car
with merchandise in the warehouse area of the store. He
asked McConnell if he had heard about the Union and
McConnell replied that he had. According to Manale,
McConnell added, "I would advise you to stay away from
Dave."
Manale's recounting of the language used by McConnell
was specific but he was vacillating and unclear about when
it occurred. He first testified that the incident was not long
after Dennard was hired. On cross-examination he referred
to his pretrial affidavit in which he had placed the incident
around August 1. At that point Dennard had already been
discharged. He explained this by saying he was unsure of the
date. He then again placed the incident shortly after Dennard
had arrived. He later testified that his recollection at the time
he gave the pretrial affidavit was better than at the time of
the hearing and he placed the incident around the latter part
of July. Later he said it was around August but he was certain
it was before Dennard was discharged. In sum Manale was
clear about what was said, but very vague about when, other
than that it was sometime during the employment of Den-
nard.
McConnell did not specifically deny making this statement
to Manale. On balance I find that Manale should be credited
in that the incident occurred during the period Dennard was
an employee. Because the advice to stay from Dennard fol-
lowed immediately upon his answer to Manale that he knew
about the Union, I find that he was advising him to stay away
from Dennard, the union advocate. Being a supervisor and
making these remarks during working hours at Manale's
work station, I find that they amounted to an instruction
from McConnell to Manale to stay away from Dennard. This
was an interference with employee protected rights and there-
fore an unfair labor practice.
There is no question about whether Mc Connell was within
his rights to direct employees to keep working during work-
ing hours and to avoid talking which interfered with work if
such restrictions were applied evenhandedly to all conversa-
tions irrespective of whether they involved the topic of union-
ism. However, in the two incidents above found to be viola-
tions, McConnell either explicitly or in context singled out
the union advocacy of Dennard and attempted to interfere
with other employees associating with him.
B. The Alleged Discrimination
1. The issue
The complaint alleges, and the answer admits, that on July
27 Respondent discharged Dennard and has since refused to
reinstate him.2 The Complaint also alleges that Dennard
was discharged and thereafter not reinstated, because of his
union activity. Respondent denies this motive, contending
that he was discharged for cause. I find below that there is
2 During the hearing Respondent amended its answer to allege the date
of discharge as July 26, but then at a later point offered evidence that the
date of discharge in fact was July 27. 1 find it was July 27.
BREAUX MART, INC.
insufficient evidence to establish that he was unlawfully dis-
charged.
2. Dennard's regular duties
Because of his past experience Dennard was hired as a
stock clerk. For about 2 weeks he worked on aisle 4 stocking
paper goods. McConnell was his regular supervisor.
According to fellow workers he was a competent stock
clerk. Paul Manale considered him faster than some other
clerks. Donald Comeaux had heard both McConnell and
Store Manager Moreland say Dennard was a good worker.
And McConnell himself testified that during Dennard's first
week he did a good job. But, according to him, during the
second week-he had trouble finishing his work and was doing
lots of talking with other clerks.
During his first 2 weeks Dennard's regular hours on Mon-
day were 7 p.m. to midnight, and on Tuesday and Friday 7
p.m. to 2 a.m. He was not regularly scheduled to work at
other times unless verbally instructed by McConnell. A writ-
ten schedule of hours for stock clerks was ordinarily posted
on the door of the manager's courtesy booth: However, Den-
nard relied instead on verbal instructions from McConnell
and did not look at the schedule.
For the Monday of his third week Dennard was listed on
the written schedule as due to report for work at 2 p.m.
According to McConnell, he had told Dennard the previous
Friday to report on Monday at 2 p.m. to do price changes.
Dennard denied that he had been so instructed by McConnell
and I credit his denial. After he reported at his regular time
on that Monday, McConnell asked if he had done the price
changes and he replied no. McConnell then showed him his
name on,the written schedule which called for him to appear
at 2 p.m. but told him not to worry about it. McConnell took
no action because of Dennard's alleged failure to show up at
2 p.m. He testified, "I didn't deem it necessary. What was
done was done." Dennard continued to work. At the end of
the week when he was discharged McConnell made a written
entry on an employees's status change report indicating as
one of the reasons for his dismissal that Dennard "Did not
show up for work." In view of Dennard's continued employ-
ment after Monday, particularly his assignment on Tuesday
to the added responsibilities of the liquor aisle, any failure on
his part to report on time on Monday was condoned. As a
basis for discharge, this reason was clearly dredged up.
3. The liquor aisle and stockroom
Supervision of the liquor aisle and the stockroom where
unshelved liquor was stored were the direct responsibility of
Store Manager Moreland. The liquor stockroom was a small
room at the front of the store where drug items and cigarettes
as well as liquor were stored.
Liquor deliveries to the store come regularly on Tuesdays,
Wednesdays, and some on Thursdays. Liquor supply house
deliverymen would spot the cases of merchandise delivered at
the end of the liquor aisle. The stock clerk assigned to the
liquor aisle would then shelve as much merchandise as possi-
ble directly from these cases using a copy of the distributor's
invoice and the store liquor price book as guides in pncing
the merchandise. At the end of his shift the liquor clerk
493
moved excess merchandise, whether in open or unopen cases,
to the liquor stockroom. As with other types of merchandise,
empty boxes were burned by the stock clerks.
The regular stock clerk assigned to the liquor aisle was
Eddie Gammon, a 16-year-old part-time employee. He testi-
fied that when first assigned to liquor aisle he received train-
ing from Store Manager Moreland and also from the man
who had preceded him as liquor clerk. His training lasted
between 3 and 4 hours. Because of illness Gammon did not
work during the week of July 22-27, although he did show
up on Friday night, July 26, to find out if he was to work the
following Monday. The last previous occasion on which he
had worked was Friday, July 19, at which time, according to
him, he had left the liquor aisle and the liquor stockroom in
good condition.
4. Assignment of Dennard as temporary liquor clerk
On Tuesday, July 23, Dennard reported at 2 in the after-
noon for the purpose of making price changes in the paper
aisle where he was regularly assigned. Moreland, however,
instructed him not to work his price changes on the paper
aisle that day, that someone else could do it. Moreland stated
that the liquor aisle was in bad shape and he wished Dennard
to straighten it out in preparation for inventory the following
Sunday. Although Dennard was an experienced stock clerk,
he had not previously worked with liquor, so he was unfamil-
iar not only with the aisle, but also with the merchandise.
When Dennard first observed the shelf and the liquor aisle on
Tuesday, the shelves were quite bare.
According to him his orientation in working the liquor
consisted of Moreland showing him the backstock in the
liquor stockroom, the merchandise stacked in the aisle, the
invoices obtained from the office with the prices written on
them, and the instructions from Moreland, "Now, have at it."
This is obviously an understatement. On the other hand
Moreland, who was inclined to overstate, testified that he
trained Dennard. According to him he had a cashier write the
prices on invoices for him, gave him the liquor price book,
and spent between 45 minutes to an hour in the liquor aisle
explaining the operation to him, including the importance of
the invoices. He testified that he specifically told Dennard to
bring the invoices to the office girl when he finished to avoid
loss. It does not appear that he explained to Dennard the legal
consequences of a failure to pay for the liquor within 15 days
of delivery which would result in the purchaser being stop-
listed and unable to purchase liquor from any distributor in
the state. Dennard did understand that he was supposed to
turn the invoices into the office when he was finished with
them. But, the importance of doing this as he finished with
each invoice apparently escaped him because he kept all of
them in the aisle where he was working for the balance of the
week.
5. Dennard's performance as liquor clerk
a. Condition of the liquor aisle
After his initial orientation of Dennard, Moreland re-
turned to him every 10 or 15 minutes on Tuesday to see how
he was doing. Moreland did not observe anything out of
494 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order. Dennard told him he was getting along okay. Bearing
in mind that the liquor operation was the immediate responsi-
bility of Moreland, I think he would have been quick to notice
anything significantly wrong with the liquor operation on
Tuesday afternoon. Because he did not, I infer that on that
day things were substantially in order.
After he worked on the liquor aisle during the afternoon
of Tuesday, Dennard continued to perform his regular duties
on the paper aisle during the evening hours. He did the same
thing on Wednesday and Thursday.
Wholesale liquor deliveries to the store were made on Tues-
day, July 23, Wednesday, July 24, and also on Thursday, July
25. Ninty percent of Dennard's work on the liquor aisle was
pricing and shelving the newly received merchandise. As he
finished working on the liquor aisle each day he put the
invoices received up to that point on the shelves behind the
bottles instead of turning them in to the girl in the office.
There is no evidence to indicate that things were not in
order when he finished working the aisle on Wednesday.
McConnell had been in the store on both Tuesday and
Wednesday, he testified that he never checked the liquor
aisle . Moreland was not on duty Wednesday. But the assist-
ant manager (who did not testify) was on duty. According to
the uncontradicted testimony of Dennard, after they had
finished work in the evening the assistant manager showed
Dennard some grocery shelves that had been poorly stocked
by another clerk. The assistant manager told him that he,
another clerk named Rick, and McConnell were the only
ones in the store really worth having. He said he would try
to get Dennard a pay raise. There were no reports that day
that the liquor aisle was in disarray. I infer that as of that
point, except for the invoices left in the aisle, it was in order.
Dennard also testified that the next afternoon, which
would have been Thursday, Moreland came to him during his
lunchbreak and told him he thought he was one of the best
stockboys he had ever seen and would try to get him a raise.
This testimony also is not contradicted.
Moreland was in the store that day. For the first hour he
was in the courtesy booth; for the next 4 hours he was in aisles
1 through 8 "ordering the store." This brought him to within
one aisle of the liquor which was number 9. Moreland had
lunch from 12:30 to 1:30. From 1:30 to 2:30, according to
him, he was all over the store, but mainly was bagging grocer-
ies at the cashier's checkout counters. At 2:30 he left for a
doctor's appointment and did not return that day. Consider-
ing that he was working near the liquor aisle during some of
the morning and in the early afternoon was at some point all
over the store, I infer that at the time he left at 2:30 the liquor
aisle was not in obvious disarray. If, as I find below, the liquor
aisle was in disarray on Friday in terms of having boxes and
cases strewn around, it must have gotten that way after 2:30
Thursday afternoon.
Dennard admitted that on Thursday he did not get every-
thing out on the liquor shelves. He left 12 to 15 unfinished
cases on a flat car at the back of the aisle. He testified that
he blocked out the shelves so that they looked full even where
they were not and left them neat; that everything he put up
was priced; that he burned all the empty boxes and did not
leave any in the aisle. But he kept the invoices and the price
book in the aisle because he had more work to do.
Dennard also testified that when he left on Thursday night
the liquor aisle was straight, prices were okay, and no boxes
were stacked in the aisle. He said, "I am saying that I did not
mess that aisle up." He further testified, `-lo, sir, I did not
mess that aisle up intentionally or by accident. I know what
I am doing and I can stock it. It is a pretty basic thing."
Yet the evidence is overwhelming that on Friday the liquor
aisle was in considerable disarray. According to Moreland
the problem surfaced between 10 and 11 on Friday morning
after cashiers brought to his attention three incidents of mis-
priced liquor. This caused him to inspect the liquor aisle. He
testified he found several bottles of mispriced Sangria, loose
liquor bottles strewn around, opened cases apparently left
over from the night before still sitting in the aisle, whole cases
which had not been moved to the liquor stockroom, empty
boxes which had not been burned, and invoices for the entire
week's deliveries, some behind merchandise on the shelves
and a few in an empty box where there was a risk they would
be inadvertantly burned.
Eddie Gammon, the regular liquor clerk corroborated
Moreland as to the condition of the liquor aisle. Gammon had
been out all week but called at the store on Friday evening
to see if he could go to work on Monday. At that time he
looked at the liquor aisle and found it "in disarray." He
testified, "I couldn't believe what I had seen." According to
him, there were several items on the aisle with three different
prices, wine was in the liquor section, bourbons were in the
whisky sections and whisky was in the bourbon section, bot-
tles which should have been priced with a stamper had been
priced with a label gun in a manner which would allow prices
to be altered by a customer. And Steve Murphey who worked
in the liquor stockroom the next day (Saturday) testified that
during that day when he was in the liquor aisle obtaining
prices or moving cases from the aisle to the stockroom, two
or three customers complained to him about mispriced mer-
chandise.
The problem may have been complicated by additional
deliveries of liquor on Friday. Although the "received" stamp
on them is not entirely clear, three of the liquor invoices in
evidence appear to be for goods delivered on Friday. Under
normal practice such merchandise would be spotted by the
delivery man at the end of the liquor aisle.
I find that on Friday the liquor aisle was not in satisfactory
condition, although not in as bad condition as Moreland's
testimony indicates. I make this limited finding because his
demeanor as a witness and his testimony as a whole indicate
he was given to overstatement. Further, he did nothing to
correct the situation until the next day. There was some
reason for this because the store was busy on Friday and,
although it was also busy Saturday, Moreland had more peo-
ple working on that day. Nevertheless, if the liquor aisle was
in as disastrous shape as Moreland's testimony indicates, he
would have done something about it immediately. As it was,
he let it go until Saturday morning when he put a couple of
extra cashiers and stock clerks on the liquor aisle in the liquor
stockroom with instructions to clean them up.
b. Condition of the liquor stockroom
Dennard testified that when he left on Thursday night the
liquor stockroom was neat and straightened out and that it
BREAUX MART, INC.,
was ready for inventory except that unopened cases had not
been marked . Opened cases were marked on the outside. He
admitted he had not gotten to all incoming stock on Thurs-
day. He also admitted that the room was full of back stock.
He testified it looked messy because there were 30 boxes on
the floor, but then said, however, that they were stacked
neatly. He also stated that there was a box half filled with
broken bottles saved for the purpose of making claims to the
liquor distributors.
On Friday one of the cashiers who doubled as drug clerk
complained to Moreland that she could not get back to the
drugs in the liquor stockroom. After inspecting the liquor
aisle Moreland also inspected the stockroom. He described
what he found as "a disaster area-a mess." According to
him bottles were thrown about, full cases had been stacked
on half cases and had fallen over resulting in broken bottles,
and there were empty boxes in the room, all of which
impeded access to the drug and cigarette supplies. He testified
it was then that he decided to terminate Dennard.
Other evidence also corroborates Moreland regarding the
condition of the liquor stockroom. Gammon saw it Friday
night and found it in disarray. On Saturday morning Mur-
phey was instructed by Moreland to straighten out the liquor
stockroom. According to Murphey, whom I credit, most of
the cases were not marked with the price in preparation for
inventory, there were broken bottles on the floor, different
types of liquor had been put in the same boxes, unmarked
bottles had been placed on the shelves, various types of liquor
had been scattered in different places so that all the same
types of liquor were not together. In Murphey's words, "It
was just a mess." He spent 2 hours working there Saturday
and did not finish, and Sunday he worked an additional 5 to
6 hours, with help for 3 to 4 hours from a cashier, before the
place was cleaned up.
6. The discharge of Dennard
The circumstances of Dennard's discharge are substan-
tially undisputed. On Saturday evening, July 27, he came to
the warehouse area of the store shortly before 7 p.m. when
he was scheduled to start work. Moreland, who had come to
the rear for coffee, told him he did not like the job he had
done on the liquor aisle; that it was one of the worst he had
ever seen . Dennard explained he had done the best he could.
Moreland apparently left without saying anything further.
McConnell then came back and told Dennard he had done
one of the worst jobs he had ever seen on the liquor aisle, and
besides, he had misworked it. McConnell continued that he
had also been late on Monday so they no longer needed him.
Dennard testified that he was angry, shakey, and frustrated
at being fired and that heated discussion resulted. Moreland,
returning to the scene, told Dennard that he thought he was
one of the worst stock clerks he had ever seen. Dennard
demanded they take him to the liquor aisle and show him his
mistakes. But Moreland refused. Dennard accused him of
firing him because of his union activity. Moreland denied it,
saying he knew nothing about the Union. Dennard again
asked to be shown the liquor aisle and Moreland again
refused. Moreland told him to leave the store. The heated
discussion, within hearing of customers, continued from 5 to
10 minutes while Moreland and McConnell gradually ush-
495
ered him out through the front of the store. Dennard was not
shown the employee status report prepared by McConnell
which indicated he was dismissed because he "did not show
up for work-mispriced liquor shipment." The fact that the
report was not shown to him is immaterial inasmuch as sub-
stantially the same information was given to him verbally.
7. The motive for the discharge
Some of the circumstances in this case indicate that Den-
nard's activity on behalf of the Union, including his talk of
the advantage of union representation , and his attempts to
interest other employees in the Union and to arrange a meet-
ing of employees with a union official, motivated Respondent
to discharge him. Thus, the violations of Section 8(a)(1) by
McConnell in twice stating that the store would probably
close if the Union came in, and his admonitions to two other
clerks not to discuss the Union with Dennard, all show an
antiunion attitude on the part of management.
Respondent is chargeable with 'knowledge of Dennard's
union activity. It is undisputed that McConnell knew of his
union activity. Respondent contends that Store Manager
Moreland made the decision to discharge and he did not
know. The record shows that Moreland made the decision.
His testimony and that of McConnell indicates the decision
was his and not anyone lower in management. The record is
silent on whether he discussed the matter with higher man-
agement.
In support of its contention that Moreland was ignorant of
Dennard's union activity Respondent points to Moreland's
denial of knowledge both in his testimony and at the time of
discharge; McConnell's testimony that he did not pass on his
own knowledge to Moreland because he did not want him to
know he was drinking beer with the boys; and the evidence
that Moreland was away on vacation during the second week
of Dennard's employment.
But Dennard's testimony, which I credit, indicates he was
talking union during all 3 weeks of his employment. During
the third week Moreland was on duty during part of two day
shifts when Dennard worked.
Although McConnell indicated he was embarrassed to tell
Moreland about the "bull session" on July 26, it should be
noted that that was during the third week. As already found
herein, McConnell knew of the union activity in mid-July,
during Dennard's second week while Moreland was in At-
lanta. When Moreland returned on Sunday, July 21, McCon-
nell conferred with him in his apartment. This itself seems
unusual since the record does not indicate anything but a
business relationship between them . It is inconceivable that
McConnell did not then apprise Moreland about his own
knowledge of the union activity. -McConnell felt strongly
enough about the Union to have already declared his senti-
ments to employees and to have committed unfair labor prac-
tices in so doing. In these circumstances I do not credit
Moreland's denial of knowledge, even though he also made
it at the time of discharge, nor McConnell's testimony that
he did not fill him in on this subject. If on the Sunday he filled
him in about other store conditions , he would also have men-
tioned this topic. I find that at the time of discharge both
McConnell and Moreland knew of Dennard's activity.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another circumstance tending to show discriminatory mo-
tive is the timing of the discharge, without notice to Dennard,
shortly after the "bull session" of July 26 and shortly before
a proposed meeting the next Sunday with a union official. The
timing, together with the other circumstances noted above,
would sustain a finding of discriminatory motive if the record
stopped there, but it does not.
As noted above, there is substantial evidence of cause for
discharge. In his testimony Moreland may well have exag-
gerated the cause, but his testimony does not stand alone.
There is adequate evidence corroborating him on the proposi-
tion that Dennard had demonstrated incompetence in han-
dling the liquor.
I exclude from this demonstrated cause his failure to show
up early the previous Monday afternoon because, as noted
earlier herein, I find Respondent's reliance on that incident
to be pretextual. -
The General Counsel urges that Respondent's reliance on
Dennard 's mishandling of the liquor was also pretextual. He
contends that Moreland did not confront Dennard and obtain
his explanation for the alleged incompetence. But Dennard's
own testimony establishes that before McConnell gave him
the,word Moreland told him he thought he had done a poor
job and Dennard gave as his explanation that he had done the
best he could. This was a confrontation of sorts. In fairness
to Dennard it must be noted that he apparently was given
more to do than he could handle. Moreland may well have
made a managerial misjudgment in sending a boy on a man's
job and in failing to insure that adequate supervision was
given. But inequities unrelated to protected conduct are of no
concern in an unfair labor practice case.
The General Counsel also emphasizes that Moreland
refused to show Dennard his mistakes on the liquor aisle.
This might be persuasive if the record did not show that
Dennard had become loud and obstreperous within hearing
of customers. Moreland had no practical alternative but to
usher him out of the store.
It is possible to speculate that Respondent mounted an
elaborate scheme to set Dennard up by sabotaging the liquor
aisle and stockroom. But it is unlikely that Moreland would
have run the risk of damage to store business that such a
scheme would have involved.
The issue of motive boils down to some evidence of dis-
criminatory motive and clear evidence of cause for discharge.
There is nothing in this case which justifies a finding that
Respondent ignored the lawful reason and acted on the un-
lawful one. In these circumstances there is insufficient evi;
dence to sustain a finding that Respondent acted substantially
from a discriminatory motive. John C. Mandel Security
Bureau,Inc., 202 NLRB 117, 121 (1973). Thus the General
Counsel has failed to establish by a preponderance of evi-
dence that the motive for the discharge was one forbidden by
Section 8(a)(3). Absent a finding of unlawful discharge, there
is no basis for finding an obligation to reinstate.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III above,
occurring in connection with the operations described in sec-
tion I, above, have a close,' intimate, and substantial relation-
ship to trade, traffic, and commerce between the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce. They are
unfair labor practices affecting commerce within the meaning
of Sections 8(a)(1) and 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 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. Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section
7 of the Act, and has committed, and is committing, unfair
labor practices within the meaning of Section 8(a)(1) of the
Act by: (a) telling employees that the store would close if they
selected a union to represent them, and (b) instructing em-
ployees not to discuss the Union with a known union advo-
cate.
4. Respondent has not committed an unfair labor practice
in discharging and in failing to reinstate, John David Den-
nard. -
5. The unfair labor practices found above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom and
take certain affirmative action to effectuate the policies of the
Act, including posting appropriate notices at its premises.
[Recommended Order omitted from publication.]