Consolidated Foods Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 953 (N.L.R.B. 1967)

CONSOLIDATED FOODS CORP.
Consolidated Foods Corporation and its
wholly-owned subsidiary Lawson Milk
Company and Retail Store Employees
Union , Local 876 , Retail Clerks
International Association , AFL-CIO. Case
7-CA-5717.
June 23, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On March 31, 1967, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
unfair labor practices, and recommended that such
allegations be dismissed. Thereafter, Respondent
filed exceptions, the General Counsel filed cross-
exceptions, and both filed supporting and answering
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-
exceptions, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Consolidated Foods
Corporation and its wholly-owned subsidiary
Lawson Milk Company, Detroit, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations other than those found by the Trial
Examiner.
I Respondent contends in its exceptions that the Trial
Examiner 's credibility resolutions reflect prejudice against
Respondent . On the basis of a careful review of the record, we
conclude that the Trial Examiner 's credibility findings are not
contrary to the clear preponderance of all the relevant evidence
953
and Respondent 's allegations of prejudice on the part of the Trial
Examiner are completely without ment . Accordingly, we see no
reason for disturbing said findings . Standard pry Wall Products,
Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On a charge and an
amended charge filed in Case 7-CA-5717 by Retail Store
Employees Union, Local 876, Retail Clerks
International Association, AFL-CIO (herein the
Union) against Lawson Milk Company (herein
Respondent), the Regional Director for Region 7 (Detroit,
Michigan), on behalf of the General Counsel of the
National Labor Relations Board, issued a complaint and
notice of hearing alleging that Respondent had engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(herein the Act).
Respondent's answer, duly filed, denies the commission
of any unfair labor practices and raises certain affirmative
defenses which will be considered below.
The proceeding with all parties represented was heard
at Detroit, Michigan, on January 4, 5, and 6, 1967. At the
conclusion of the hearing the parties were given an
opportunity to file briefs and briefs were received from the
Respondent and the Charging Party.
Upon the entire record in the case, including the briefs,
and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Lawson Milk Company, a division of Consolidated
Foods Corporation, with its principal office in Cuyahoga
Falls, Ohio, operates retail food stores at various places in
the States of Michigan and Ohio. Respondent
manufactures and distributes across State lines through
its retail stores products valued in excess of $100,000
annually. Respondent admits and I find that it is engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
If. THE LABOR ORGANIZATION
The Union is and at all times relevant hereto has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent since the early 1940's has operated a chain
of retail grocery stores. At the time of the hearing,
Respondent had something over 500 stores located in the
State of Ohio and in the Detroit, Michigan, area had since
August 1965 opened 35 stores and had 41 more under
construction.
Each of Respondent's local stores is manned by a
manager or manager-trainee and both full- and part-time
clerks. In the Detroit area, at the time of the hearing, the
stores were immediately supervised by three district
supervisors, Nichols, Slupe, and Schmidt, under a zone
manager , Hindman, who is responsible for the whole
Detroit operation.
165 NLRB No. 129
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime prior to May' Respondent hired a clerk, Sue
Fletcher, who worked in various stores in the Detroit
region. Prior to May 9 Sue Fletcher's husband, Thomas
Fletcher, applied for employment as a clerk and was so
employed. Thereafter he applied for a managerial position
and commencing on May 9 was transferred on
Respondent's payroll to the position of manager-trainee
and employed at store number 508 located near Detroit.
On May 31 Fletcher took over as manager of store 508,
having completed his training and promised to supply a
cash bond of $500 required of all store managers?
On June 15, Fletcher not having posted his cash bond, a
further action was taken by Respondent transferring him
back to the status of manager-trainee, effective May 31.3
There was no change in his duties. Fletcher continued to
manage store 508. Apparently his wife continued to work
in various stores in the Company through July and August
including at various times her husband's store.
On September 14 Sue Fletcher, then working in store
508, commenced, together with two agents of the Union,
actively organizing the employees of the Company's
various stores in the Detroit area. The organizing
campaign consisted both of calls at the stores and of calls
at the homes of some of the employees.
The employer quickly became aware of the organizing
and initially reacted with an attempt to ascertain the
extent to which it had proceeded. Thereafter on
September 21, a meeting was held of all store managers
and manager-trainees at which they were addressed by
Hindman who instructed them with regard to the Union's
organizing campaign. Respondent also issued a letter to all
store employees on September 24 which stated that it had
complaints from store personnel about "harassment from
squads of union recruiters, particularly at night," and
advised the employees that they have no obligation to talk
to the people or even acknowledge their existence, if they
come to the store they are trespassers and the store
manager has instructions to call the police and have them
ordered out. The letter, which was signed by Vice
President Rastetter, concludes with advice to employees
that if the store manager isn't in the store when the union
organizers arrive that the clerk should call the police and
also call the Company's office in Detroit which will
"pinpoint their route and alert other stores in the area. If
we are able to determine their exact position we will send
out a special reception committee of our own people to
keep them off our property."4
On September 19 the Fletchers were discharged. The
day before that employee Hibblen had been discharged in
another store by the store manager. On September 20 an
employee, Stratman, was discharged in yet another store.
The above discharges are alleged by the General Counsel
to be unfair labor practices. Additional violations of
Section 8(a)(1) by threats and interrogation by various
supervisory personnel are alleged.
B. The Alleged Threats and Interrogations
Employee Ronald Pokorski credibly testified that a few
days before Fletcher's discharge, Division Manager
Hindman came into the store in the evening while Fletcher
was at dinner. As Hindman was preparing to leave he said,
"By the way Ron, has anybody from the Union or anybody
representing the Union been here to talk to you?"
Pokorski denied that anyone had talked to him about the
Union and Hindman left.5
Hindman was not asked about this conversation, and
accordingly, neither admitted nor denied that it took place.
However, he stated that he had no knowledge that any
union organization was afoot until the evening of
September 15 when an anonymous telephone caller
stated, "You are probably now aware of it, but there is
some union activity at the Detroit stores." Inasmuch as
this testimony by no means precludes the possibility of his
having spoken to Pokorski the same evening and in view of
his failure to deny having done so I credit Pokorski whom I
have found to be otherwise credible.
Employee Hibblen, who worked at store 930 under the
supervision of Store Manager Pockey, testified that on
September 16 Pockey called her together with two other
clerks and told them that Sue Fletcher and her friends
were going around trying to start trouble by trying to put a
union in the store, and that if they came in the store the
clerks were not to pay any attention to them and to tell
them that they were not interested. He also said that if
they signed a card, as soon as the Company found out
about it they would be fired, and there would be nothing he
could do about it. Hibblen, who had signed a card, went to
the store the next day and talked to Pockey and told him
that she had signed a card. Pockey told her not to worry
about it because he had taken care of it.6
Pockey was not called to testify. The parties stipulated
that if called to testify Pockey would testify to the effect of
a denial of the allegations in the complaint as to his
conduct.
It is, of course, impossible to assess Pockey's credibility
under this circumstance with no opportunity to view his
demeanor and with no cross-examination or direct
examination to ascertain his story. Hibblen appeared to be
a credible witness who answered questions both on direct
and cross-examination frankly and honestly. Some light is
shed by testimony of Sue Fletcher that after her discharge,
having heard that Manager Pockey was the one who had
reported her union activities to Hindman, she asked him
why he had done so. He answered that he didn't like
unions. This would appear to be not only an
acknowledgment of some bias against the organization but
i All dates are in the year 1966 unless otherwise stated
2 Respondent's store manager's manual states that all store
managers employed after July 1, 1966, will be required to post the
cash bond It is not clear what policy with reference to manager's
cash bond was enforced prior to July 1 However, Fletcher
acknowledged that he had been requested and had promised to
post such a bond
3 Whether Fletcher was paid during the 2-week period between
May 31 and June 15 as a manager -trainee at $100 a week or as a
manager at a salary which was explained to be $100 plus a
percentage of the store's sales is not clear Since it is irrelevant to
the issues herein, I make no finding
" There is no evidence that "squads" of union organizers
attempted to organize by intimidating and coercing employees
either at their homes or in the stores as suggested by
Respondent's letter The organizing apparently was conducted by
Mrs. Fletcher with one or two union agents present and by
individual union agents who went to various stores
' This must have been either September 14 or 15. Hindman
testified that he spent all day on September 16 in Akron, Ohio
6 The discharge of Hibblen on the following day, September 18,
will be discussed below
CONSOLIDATED FOODS CORP.
of the fact that he had reported the organizational attempt
to District Manager Hindman.7
I credit Hibblen's account and find that Pockey made
the statements attributed to him."
Ronald Pokorski testified that on the day of Fletcher's
discharge, September 19, he came into the store in the
afternoon and found Supervisor Schmidt and Harry, the
new manager, on the premises. This was the first time he
had met Harry (Narcesian). On this occasion Schmidt
asked Pokorski and Esther Patterson who was a clerk
whether they had signed union cards and both denied it.
Schmidt answered, "Well, I know all the employees
working in this store has signed one of these union cards
and we can check into it real easily." Pokorski denied
knowing anything about the Union and Schmidt turned to
Narcesian and asked, "Harry, what do you think, should
we let- these two kids continue working in the store?"
Harry answered, "If they want to work here they will have
to work hard and do things my way but I don't have any
objection to them working." I find that the juxtaposition of
this observation and the interrogation is reasonably to be
construed as a threat of discharge if the employees had
signed union cards.
Pokorski testified also that the day after the managers'
meeting, concerning the Union, which has heretofore been
placed as having taken place on Wednesday,
September 21, Harry Narcesian came to him and said,
"Give me an honest answer. Tell me did you sign one of
those union cards." Pokorski then denied that he had
signed a union card and Narcesian said , "Well, at the
meeting yesterday we were told if anybody from our stores
had signed one of those union cards that we didn't even
want them working for the Lawson Milk Company." With
respect to the statements by Schmidt, while Respondent's
answer denied the allegation Schmidt did not deny making
the statements attributed to him while he was on the
witness stand. Respondent's brief refers to the statement
by Schmidt only with reference to its contention that the
General Counsel should have submitted corroborating
witnesses. Inasmuch as Pokorski's testimony stands in the
record uncontradicted and Respondent makes no effort
even in its brief to controvert the testimony I shall accept
the statements as having been made.
With, respect to the statements attributed to Harry
Narcesian I have, by way of controversion, only a
stipulation that if he was called to testify he would deny
the allegations in the complaint, I have considered the
effect of such a stipulation above9 and I cannot therefore
accept this as a controversion of the words attributed to
Narcesian in the absence of any'circumstance derogating
to Pokorski's credibility.
Pokorski is no longer employed by Respondent and
apparently quit voluntarily for' reasons of his own. He
therefore appears to have nothing to lose or gain by the
hearing herein . In addition , he impressed me by his
demeanor on the witness stand 'as a truthful and candid
witness. I find therefore with regard to statements
7 Whether this report was the "anonymous " phone call
received by Hindman does not appear
' Respondent 's position is that each of the instances of unfair
labor practices charged , if found, were not coercive by their
nature and were at most isolated situations Perhaps by its offered
stipulation Respondent was not contending that the statements
955
attributed both to Schmidt and to Narcesian that the
statements were made as reported by witness Pokorski.
Nancy Ruiz testified that either on the day that the
Fletchers were discharged, September 19, or in the next
day or two she went to store 908 at which she was
employed on weekends and spoke to Narcesian. Narcesian
introduced himself as the new manager and Ruiz asked
when she should report to work. Narcesian answered "as
usual." During that conversation or a succeeding one
Narcesian asked Ruiz if she had signed a union card and
she answered that she had not. Narcesian said that the
other employees had been asked and that they had acted
"kind of funny about it" and Ruiz again denied having
signed a card. Narcesian told her that if he found out that
she had signed a card or that Esther Patterson or Ronnie
Pokorski, both of whom worked in that store, or any of the
other employees had signed a union card he would have to
let them go. The only other employee present during this
conversation was Vivian Jones, a manager-trainee who
was putting up candy. Jones said , when Ruiz denied that
anyone had talked to her, "If you haven't been approached
by a union member about a card you will be." At this point
a customer came in and the conversation lapsed.
Sometime in October, according to Ruiz, Harry
Narcesian told Ruiz that at a meeting of the managers they
had been told to clamp down on the help and in a discreet
way try to find out who had and who had not signed union
cards. Ruiz said, "Well, you've already tried that" and
Narcesian laughed and answered, "Yes I know."
The above testimony by Ruiz was not controverted
except by the stipulation referred to above. Although
manager-trainee Jones was allegedly present, she was not
called to testify. I did not find Ruiz to be inherently
incredible nor does Respondent appear to contend that
there is any reason why she should not be credited. On
cross-examination Ruiz was asked only whether she was
still working for Lawson's which she answered in the
affirmative. Narcesian's latter statement, placed in
October, was not alleged as an unfair labor practice; I
received it only as evidence of Respondent's continuing
concern with regard to the union organization and for what
corroboration it lends to the testimony with regard to other
interrogations by Respondent' s agents. I find that the
statements were made as Ruiz testified.
An additional allegation of a threat on or about
September 20 by Store Manager Ratz at store 905 was
unsupported by any evidence. I recommend its dismissal.
Respondent contends that the alleged 8(a)(1) violations
are not in fact violations on three grounds: (1) they were
not coercive in their nature, (2) the few alleged instances
of unfair labor practices were isolated in relation to the
fact that the Lawson operation in Michigan included
approximately 36 stores (35 at the time of the hearing), and
also (3) inasmuch as at a managers ' meeting Vice
President Rastetter told the managers not to interrogate or
make threats, "All alleged incidents occurring prior to that
meeting are merely technical in nature ." I do not
were not made but rather that they do not constitute unfair labor
practices . This is the disadvantage of a stipulation of ultimate fact
rather than of facts from which an ultimate conclusion is to be
drawn
' See fn . 8, supra.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understand Respondent's theory and the cases cited for
the third proposition in Respondent's brief neither
explicate nor support the proposition stated by
Respondent.10
I am not persuaded that the threats and interrogation set
forth above are noncoercive in nature as Respondent
appears to argue. Statements to the effect that employees
who join the Union would lose their jobs are per se coercive
in my opinion. The interrogation, viewed against a
background of Respondent's animosity against the Union
explicated both by its coercive threats and by its
promulgation and distribution of the letter of
September 24, 1966, to all employees are clearly coercive
within the meaning of a multitude of Board decisions. Nor
am I impressed by the argument that because of the fact
there are 35 stores involved the threats and interrogations
are too isolated in nature to warrant a remedy. The
frequent interchange of personnel among the stores,
clearly set forth in the record, and the dissemination of
information both by such employees and by telephonic
communication appears to me so widespread that the
effect necessarily to be expected from the half dozen
coercive instances shown on the record cannot be
considered isolated.
Further in consideration of the evidence of ex-Manager
Albrecht that Group Sales Supervisor Slupe informed him
that there had been some union activity throughout the
Company and that they had already dismissed one couple
for it and that any employee caught talking to or
considering calling the Union would be automatically
dismissed," it appears that not only is it reasonable to
believe that the coercive impact of the interrogation and
threats found requires a remedy but that the policy of
Respondent, insofar as it is explicated by Slupe's
statements to Store Manager Albrecht, requires the
issuance of an order with relation to the 8(a)(1) activity in
the hope of averting unfair labor practices of this nature in
the future.
I find that by the interrogation of employees by
Hindman and Schmidt, and by the threats of Narcesian,
Schmidt, and Pockey, set forth above, Respondent has
interfered with, restrained, and coerced employees within
the meaning of Section 8(a)(1) of the Act.
C. The 8(a)(3) Allegations
1. Thomas and Sue Fletcher
The General Counsel contends that the discharge of
Thomas Fletcher, an acknowledged supervisor, is violative
of Section 8(a)(1) of the Act and the discharge of his wife,
Susan, resulted from her attempt to organize the
employees of Respondent and is violative of Section 8(a)(3)
of the Act as well as Section 8(a)(1).
Respondent, on the other hand, contends that Thomas
Fletcher was discharged because of his inadequate work
"' Respondent cited Superior Electric Supply Shop Inc , 1965
CCH NLRB para 9106 I assume that Respondent is referring to
Sophia Electric Supply Shop, Inc, 150 NLRB 1735, in which case
the Trial Examiner found that the only active interrogation alleged
for which there was evidentiary support was an isolated
questioning by a person who is a minor supervisor at best, as well
as a member of the Union, and does not appear coercive in the
circumstances
The Board decision in Armco Steel Corporation, 148 NLRB
1179, which is binding on the Trial Examiner, does not support the
proposition for which it is apparently cited
ii Albrecht was not cross - examined as to this testimony
and his failure to post a $500 bond required of all managers
and that Sue Fletcher was discharged because of a
company policy that when a husband or wife who is a
manager is discharged the spouse who may also be
employed by Respondent is also discharged. Respondent
contends further that, even if it were found that the
Fletchers were discharged because of their attempt to
organize the employees, the discharge of Thomas
Fletcher is a right of the employer and that in any event
Mrs. Fletcher could be discharged for her organizing
activities because she somehow partook of the nature of
supervision , because she was part of a management team
of husband and wife and had a special relationship to
management as the wife of Thomas Fletcher. In support of
its position Respondent cited a large number of cases
especially including Farm Stores, Inc., 131 NLRB 1068;
Heck's Inc., 156 NLRB 760; and Lone Star School Book
Depository, 158 NLRB 72. Further, assuming the General
Counsel was relying on Golub Bros. Concessions, 140
NLRB 120, and Brookside Industries, Inc., 135 NLRB 16,
Respondent attempted to distinguish them.
2. Sue Fletcher's managerial status
In support of its contention that Sue Fletcher is a
managerial employee, Respondent adduced evidence that
it is its design that the stores should be run as "ma and pa
stores" with husband and wife working together and
responsible for the management of the individual stores.
To this end, they pointed out that when a manager takes
over a store he is required to sign certain documents
including a manager's agreement, a $500 bond, a blank
demand note, and a confession of judgment on the note so
that in the event of a shortage Respondent could levy
against the bond and against any monies due and owing
the manager or any inventory or cash shortages that might
develop.12 There is on the manager's agreement a
provision for the signing of the confession of judgment by
the spouse of the manager. Respondent contends that this
evidences the comanagership which it contends to exist.
As counsel for the Chargiiig Party pointed out in his brief
the "joint contract which husbands and wives are said to
routinely sign, involves no joint obligation by the spouse,
except only as a surety to the blank note and confession of
judgment demanded in advance of the manager."
Respondent further contends that Mrs. Fletcher' s joint
managerial capacity is demonstrated by the fact that she
signed bank deposit slips and employees' timecards in the
space set forth thereon for the manager's signature.
Mrs. Fletcher testified that it was not unusual for clerks to
sign such documents. The manager's handbook provides
that in the absence of managers "trusted employees" were
supposed to be delegated the duty of making bank
deposits and apparently therefore signing the bank deposit
slips. As to the employee timeslips Mrs. Fletcher testified
that she had been directed by managers of other stores to
Supervisor Slupe was not called as a witness and no attempt was
made by Respondent to contravene the above evidence I do not
find it inherently incredible and accordingly I credit Albrecht's
testimony in this regard
12 The record is not clear when the signing of these documents
became a condition precedent to employment as a manager The
only evidence with respect to that is a letter dated July 1, 1966,
which indicates that the posting of a bond would thereafter be a
condition precedent It is clear that Fletcher was asked on a
number of occasions both to sign the manager agreement and to
provide the cash bond
CONSOLIDATED FOODS CORP. 957
sign such timeslips when she computed the number of
hours worked by the various employees.13
In any event, the signing by the wife of the manager of
the cash deposit slips and timeslips of employees is not in
itself evidence that she has any supervisory capacity or
that she partakes of the managerial function with regard to
labor relations . As for the argument that she and her
husband worked as a husband and wife team , the record is
clear that at least for portions of the period during which
Thomas Fletcher managed store 908, Susan Fletcher was
employed in other stores located in the Detroit area. There
is no evidence that the spouse of the manager or in
particular that Sue Fletcher had any supervisory capacity,
that she could hire, fire, or affect the earnings of
employees or change or modify their working conditions in
any regard, or that she had any power of responsible
recommendation with regard to these matters. The store
manager ' s manual explicitly provides these powers and
duties to the store manager and in no way provides for
delegation by the store manager.' 4
On the facts appearing in the record I must reject
Respondent's contention that Sue Fletcher was a
managerial employee or occupied a special relationship to
Respondent by virtue of her marital relationship with
Manager Thomas Fletcher.
It is clear that in instances where husband and wife
were both employed by Respondent and either was
discharged the other was let go. Each member of
Respondent's supervisory hierarchy who was called to
testify affirmed and gave examples of Respondent's policy
in this regard. Neither the Charging Party nor the General
Counsel produced any contradictory evidence.
It follows that the issue herein, with regard to the
Fletchers, is whether Thomas Fletcher was discharged
because of his failure to post the cash bond and because of
the Respondent's dissatisfaction with his achievement and
his wife discharged as a concomitant thereto or whether
Susan Fletcher was discharged because of her union
activity and Thomas Fletcher discharged as a result. The
former alternative is urged by the Respondent, the latter
by the Charging Party.
When Thomas Fletcher was hired he was asked to post
a bond of $500 with the Employer. During his training
period he attended a meeting of managers in training and
managers of stores at which the managers were told that it
was necessary for them to sign the managers contract.
Fletcher declined to sign the contract at that time stating
that he wanted to consult his family attorney. District
Supervisor Schmidt acknowledged that no attorney would
advise his client to sign such a document. It does not
appear that thereafter any request was addressed to
Fletcher to sign the contract. However at various times
until his discharge District Supervisor Schmidt and
Division Manager Hindman called upon him to put up the
$500 cash bond. Fletcher never did.
In accordance with Respondent's custom, when
Fletcher was put in charge of store 908, a beginning
inventory was conducted. From that time he appears to
have been in sole charge of this store under the somewhat
sporadic supervision of Schmidt. Fletcher testified and the
Company's record appeared to confirm that during the
period from May 31 until his discharge on September 19,
the business of the store increased slowly but steadily.15
On July 5 and again on August 5 inspections of the store
were conducted by Schmidt who in each case found a
number of items that required improvement. In addition,
on June 7 Schmidt wrote a disciplinary memo to Tom
Fletcher which states "Store hours are from 8 a.m. to
11 p.m." and "All male employees must wear a white shirt
and tie."
An inventory was taken on August 16, 1966. Some 3
weeks later, according to the testimony of Vice President
Rastetter, the result of the inventory reached his desk
showing a shortage of $2,160. Rastetter testified that he
was upset by this shortage and that he called Hindman and
told him that he would have to do something about the
shortage and recommended that he replace Fletcher and
get the store conditions straightened out. Rastetter
testified that on September 16 he asked Hindman if
Fletcher had posted his bond and signed the manager
agreement. Once again, he testified, he brought up the
inventory shortage and said that something had to be done
right away. At this point Hindman advised Rastetter that
there were union representatives contacting the personnel
in the store, and he wanted his advice with regard to
"releasing any people." Rastetter states that he advised
Hindman that in the case of Fletcher "he was a
management trainee and in a management capacity and
was not covered under the Act and he saw no problem in
discharging him with the justification that we had." At this
time he told Hindman to discharge Fletcher on the
following Saturday. Hindman suggested that he do it on
Monday and Rastetter agreed.'s
Pursuant to Rastetter's instructions, on the morning of
Monday, September 19, Schmidt went to store 908 before
opening time and himself opened the store. When the
Fletchers appeared he immediately demanded to know
what had become of $136 which he alleged the store was
short. Tom Fletcher, who had left the previous day at
noon, asked to see the books and pointed out that the cash
deposit for the day before which was to have been made by
Ronald Pokorski was not entered and stated that there was
no shortage. Schmidt said in essence that he was
discharging Fletcher and that he would have discharged
him anyway as he had orders to do so. He also discharged
Mrs. Fletcher at the same time. When asked why, he said
13 1 do not consider that Respondent's display of a number of
timeslips not signed by Mrs Fletcher from another store in
which she had worked as disproving her assertion that she
had signed such timeslips in other stores. There is no evidence
that all timeslips in each of the stores in which she worked, for
the period in which she worked, were displayed to her.
14 Although Respondent has contended throughout this
proceeding that it is a strong company policy to maintain the "pa
and ma" type store, nothing in the store manager's manual refers
to this policy or provides any special relationship between the
managers , spouse , and the Company
15 The Company's records reflect an increase of approximately
13 or 14 percent
'S Rastetter testified that on a visit to store 908 on July 20, he
found the store in bad condition with a burst bag of potatoes on
the floor, a shortage of merchandise in the bread rack and dairy
case, rotten bananas on the service counter, and old lunch meat in
the dairy case Hindman testified that the bananas should have
been dumped several days before He also testified that on July 19
he and Schmidt had reset the store and had left it in good
condition He did not explain how bananas which should have
been dumped several days before survived his own observation of
the preceding day.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"For the same reason."11 Fletcher asked his wife for a
calling card of one of the union representatives and went
to the phone to make a call. Schmidt turned to him and
said, "I don't know who you're going to call but your union
friends can't help you." At this point Fletcher asked him
why he was being discharged and Schmidt answered
"inability to post bond. 1118 The Fletchers were discharged
and returned after they attempted to go into the backroom
to remove their personal possessions. Schmidt would not
permit them to do so. He brought them out their personal
possessions but failed to bring out a set of screwdrivers
that Fletcher had left in the backroom. When Fletcher
attempted to retrieve his screwdrivers Schmidt called for
the police to eject him. The officer, however, accompanied
Fletcher to the backroom where he retrieved his
screwdrivers and left.
Respondent claims that the inventory shortage of $2,100
was the final motivating factor in Fletcher's discharge.
The entire inventory in the store ranged from $10,000 to
$15,000.19
Included among the records relating to store 908
received in evidence at the instance of the employer are
inventory sheets dated April 29, May 31, October 25, and
November 15. The April 29 inventory shows a shortage of
$383.45. That of May 31 shows a shortage of $2,102.08.
The inventory of October 25 shows an overage of $774.81
and that of November 15 a shortage of $700.84.
The store manager' s manual states that any shortage
greater than $100 is beyond a reasonable range and the
Company will make a proper deduction from the
manager's pay to bring his shortage to a safer level.
Assuming that the figures on the inventory sheets are true
and the company policy is what the manual states it to be,
it is incomprehensible to me that a shortage of $2,100
would not be so alarming to management that an
immediate investigation would not ensue rather than the
rather mild action on the part of Rastetter and Hindman to
try to get Fletcher to post his cash bond and sign his
manager's contract and to look around for a replacement
manager for him. It appears clear that until September 16
Respondent was more interested in getting a cash bond
than in discharging Fletcher, and it can only be assumed
that if Fletcher had in fact posted the bond and signed the
contract by that date Hindman and Rastetter would have
been satisfied. There is no evidence that the $2,100
shortage, as of May 31 when Fletcher took the store over,
caused any comment or that the wild fluctuation from a
$700 overage to a $700 shortage after his discharge caused
any concern. Nor does it appear that District Supervisor
Schmidt considered that the inventory shortage was the
cause for discharge. He testified that when asked by
Fletcher the reason for his discharge he said that it was for
failure to file the $500 bond. This in turn is corroborated by
the testimony of Hindman that when he discovered the
inventory shortage he told Schmidt "There is one thing
you are going to have to do and that is either get Tom
i' The daily cash sheet put in evidence reveals an entry for the
18th, $126 63 short It further reveals that the day's starting cash
on the 19th, the day of the discharge, was $113 09 larger than it
had been on the 17th, the last day on which Fletcher had checked
out It also contains an entry on the 18th as follows-"7.00 p o "
and the initials "A.S " which I take to mean $7 paid out with
Schmidt's signature
i" Schmidt testified that he had previously told Fletcher that
his purpose for coming to the store that morning was to discharge
him for failure to post his bond and Fletcher answered, "You can't
do that to me The Union will protect my job." Schmidt answered,
Fletcher as a manager or he is going to have to go." At this
time he told Schmidt to take the manager agreement to
Tom Fletcher and that he wanted the agreement and he
wanted the bond or else. Hindman also testified that about
that time he received a telephone call from Vice President
Rastetter who told him that he should either get the bond
or discharge Fletcher. Rastetter testified that in at least
one conversation between the 10th and the 16th of
September he told Hindman to "get with it and get the
bond" from Fletcher. It thus appears that the entire drive
on the part of Respondent was to get Fletcher's bond and
the discharge was only the alternative in the event he
failed to post his bond. Accordingly, I discredit the
testimony of Rastetter that the decision to discharge
Fletcher was made on September 6 when he ascertained
that Fletcher's inventory showed a shortage.
Respondent contends that the discharge of Fletcher was
finally ordered on the 16th, a Friday, to take place on the
following Monday. On Monday morning Schmidt appeared
to effect the discharge and did so, forcing both Fletchers to
leave the store immediately. This is contrary to the
Respondent's policy of requiring an exit inventory upon
the discharge of a manager for any cause. Although
Respondent had, by its own testimony, ample opportunity
to have an inventory clerk present on the following
Monday and although it appears that on other occasions
Schmidt took inventory, no inventory was taken on the
19th when the Fletchers were discharged nor was any
opportunity given Thomas Fletcher to be present for the
taking of an inventory. Quite the contrary, an inventory
was allegedly taken the next day which showed a greater
shortage. Respondent provides no explanation for its own
breach of its rules. It is clear that other managers upon
being relieved of their functions in a store took part in their
exit inventory.
Fletcher credibly testified that the afternoon of his
discharge he called on Hindman seeking an explanation
for his discharge and asking for his paychecks. At the
close of the interview, Hindman said, "Mr. Fletcher, tell
your wife as well as yourself to stay out of our stores and if
you don't we will have an injunction issued against you and
you will be in big trouble." This together with Schmidt's
pugnacious attitude toward the Fletchers the same
morning is not in my opinion consistent with Respondent's
story that the discharge resulted from Fletcher's inventory
shortage, which was not uncommon , or his failure to post a
bond.
Respondent contends that it had no knowledge as of the
morning of September 19 that Mrs. Fletcher was engaged
in the union organizatioh. However, this contention can
scarcely stand in the face of the factors presented on the
record. In the first place Division Manager Hindman states
that he received an allegedly anonymous telephone call on
the evening of the 15th. While he denies that Fletcher's
name was mentioned in the telephone call, coincidence is
strained when one considers his appearance at store 908
"What union , I don't know anything about any union " I do not
credit Schmidt's version If he knew nothing about any union he
was probably the only one connected with the Company at that
point that was so ignorant I credit Fletcher's version
iS Schmidt testified that in an inventory taken September 20,
the shortage had reached the sum of $4,500 No records were
adduced to support this assertion . It should be noted that this
figure is in excess of one-third of the stock charged to the store at
the time of Fletcher's discharge. It seems improbable that a
shortage of over one -third of the merchandise could remain
unnoticed even to an untrained eye
CONSOLIDATED FOODS CORP. 959
before 6:30 p.m . on the same evening questioning
Pokorski about the union organization . Further doubt is
raised by the admission of Pockey that he called the office
and reported the organizing activities of the Fletchers,
particularly in view of the fact that Pockey knew of Mrs.
Fletcher 's activity by the 16th . The inference that
Hindman knew of Fletcher ' s union activities by the
evening of the 16th is corroborated by his conversation
with Rastetter in which he discussed the feasibility of
discharging Fletcher in spite of the union organization and
was told that the union organization would not affect
Fletcher since , as a supervisor , he was not protected under
the Act.
I believe and I find that while Respondent was seriously
contemplating Fletcher's discharge prior to September 16,
in the event Fletcher did not post his bond , the decision to
discharge Fletcher and his wife resulted from
Respondent ' s knowledge that Mrs. Fletcher was
spearheading the union organization.
Inasmuch as Mr. and Mrs . Fletcher appear to have been
the only man and wife that were discharged at this time I
find as additional corroboration the admission by District
Supervisor Slupe on September 19 or 20 to Mr. Redpath
that there had been some union activity throughout the
Company, they had already dismissed one couple for it,
and any employee caught talking to or considering calling
the Union would be automatically dismissed.20
Respondent contends that an employer has "the
absolute right to discharge supervisors even though they
may have been engaged in concerted or union activities
without the charge being considered a violation of the
Act." Respondent places its main reliance on the Board's
decision in Farm Stores , Inc., 131 NLRB 1068, in which
case the employer discharged two supervisors who
themselves engaged in union activities and one of whom
assisted the union organizer by visiting the employer's
stores with the union organizer . Superficially the instant
case strongly resembles Farm Stores. However, there is
one important distinction that must be noted. In Farm
Stores the supervisors themselves engaged in union
activity and were discharged. Their discharge stemmed
solely from the fact that they , as supervisors , were not
protected by the Act and the employer had the right to
forbid such union activities among supervisors . The broad
rule on which Farm Stores is predicated has been followed
by the Board since the Taft -Hartley amendments were
added to the Wagner Act, but in the intervening years
several exceptions to the rule have been laid down by the
Board . Three classes of cases have developed therefrom.
First that an employer may not discharge a supervisor if
his defense is that he refuses to commit an unfair labor
practice for the employer . Jackson Tile Manufacturing
Company, 122 NLRB 764, enfd. 272 F.2d 181 (C.A. 5). A
second exception was established in the instance of a
supervisor who gave evidence before the National Labor
Relations Board . The third exception as spelled out in
Golub Bros. Concessions, 140 NLRB 120 , is where a
supervisor is discharged because he or she is the spouse of
an employee who has engaged in union or other protected
activities . Under these circumstances the rank - and-file
employees of Respondent can "reasonably ... fear that
the employer would take similar action against them if
they continued to support the union."
Respondent asserts that the Golub case should not be
followed first because it is not the law since it has not been
tested in the courts, and second because it is
distinguishable on its facts. I must reject the first
contention; it is predicated on a misstatement of
procedural law. A decision of the Board is binding on the
Trial Examiner unless and until reversed by the Supreme
Court or overruled by succeeding decisions of the Board.
As to the second, Respondent's attempt to distinguish the
Golub case fails. The factors that Respondent points out as
distinguishing are that in Golub there was evidence that
the employer admitted the discharge of the supervisor
resulted from the union activities of the employee spouse
and second that there were no business reasons for the
discharge in Golub as Employer contends there is for the
discharge of the Fletchers here. In my opinion neither of
these are distinguishing factors. In the first place I have
found above that the Employer through Supervisor Slupe
did admit the cause of the discharge, and in the second
place I have found that while there may have been
business reasons for the discharge of the Fletchers it was
the union organizing activities of Susan Fletcher that
"tipped the scale" and formed the proximate cause of the
action taken at the time and in the manner in which it was
taken.
In the instant case the activities of Susan Fletcher were
well known to the employees. She had called at many of
the stores with union agents during the 5 days of her
organizing campaign prior to her discharge. Under the
circumstances the employees could reasonably apprehend
that the Employer would take similar action if they
continued their organizing activities. Accordingly, I find
that the discharge of Thomas Fletcher constitutes a
violation of Section 8(a)(1) of the Act and of Susan Fletcher
a violation of Section 8(a)(3) of the Act.-'
3. Jean Marie Hibblen
Jean Hibblen testified that she was employed by
Respondent about the middle of July and worked about a
month and a half. She was discharged September 18.
Hibblen was employed at store 930 although she worked
for some period of time at store 915. Her manager at 930
was Gene Pockey.
On September 14 Hibblen was working at store 915. Sue
Fletcher came to the store and asked her if she would sign
a card for the Union. She did so. The next day she returned
to work at store 930 and the following day she and two
other clerks, Dorothy Sagarto and Sandy Hallcheck, were
called together by Pockey who said "Sue Fletcher and
friends were going around trying to start trouble by trying
to put a union in the store. And if they came in the store
[do] not ... pay any attention to them and tell them that
we were not interested." He also said that if they did sign a
card, as soon as the Company finds out about it they would
be fired, and there was nothing that he could do about it.
After Pockey left for the day Hibblen told Hallcheck
that she had signed a card and that she didn't know at that
20 Respondent contends that this admission is incredible
because the supervisors were informed at the managers ' meeting
that the company policy was not to question or threaten
employees concerning union activities However Slope's
statement was made before the managers' conference at which
Rastetter allegedly set forth the ground rules
t' Respondent contends that it is not guilty of the unfair labor
practices charged because other known union supporters were
not discharged "The fact that Respondent retained other
members of-the Union" does not exculpate them from the
charge of discrimination as to those discharged See Golub,
supra ,
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time that she could be fired for that and asked Hallcheck
to call Pockey that night and tell him and to try to help
Hibblen so that she wouldn't be fired. Hallcheck agreed to
do so. The next day Hibblen was not scheduled to work but
went to the store during the afternoon and talked to
Pockey. She told him about having signed a card and
Pockey told her not to worry about it because "He took
care of it." The following day, Sunday, September 18,
Pockey called Hibblen, who was then working, into the
backroom and told her that the Company had made
another cut in his pay and he had to let one or two
employees go and that she was the one that had to go. He
told her to look for a new job and said that he would pay
her for the rest of the week to look for another job. She
looked for a job and found it in a few days and was paid up
until that time.
Pockey was not called as a witness.
Sales Supervisor Schmidt testified that store 930
opened for business July 29, and that he knew of a Shirley
Jones or Jean Jones that worked at that store who is now
calling herself Marie Jean Hibblen. Schmidt testified that
he was present in the store on August 31 for approximately
5 hours taking inventory during which time he observed
Jean Jones and Sherry Sample, another clerk, working in
the store. In his opinion neither clerk was satisfactory.
Their customer approach was not good, they didn' t smile
at the customers, they didn't greet them and they didn't
say thank you to them, and they didn't know how to work
the adding machine properly. He testified that on
completion of the inventory he complained to Pockey
about the girls and told Pockey to instruct them how to
handle customers and how to perform their other duties.
Approximately a week later, on September 8, Schmidt
was in the store again and took inventory again .22 On this
occasion he noted no improvement in the two girls and told
Pockey that they were unsatisfactory in his opinion and
that Pockey should get rid of them. Because Pockey was
having a sale, denominated as a 6-week followup
promotion, commencing the next day and he anticipated
that the store would be very busy during the promotion
and he needed the help in the store, Schmidt suggested
that the two girls should be laid off after the promotion.
Accordingly, Jean Jones was laid off approximately
September 20. Sherry Sample quit the week after the
followup promotion.
The record does not reveal the length of the followup
promotion. It is clear that Hibblen was employed in
another store during at least part of the period between the
8th and 18th, when she was discharged. This does not
appear to be consistent with Schmidt's testimony that she
was not discharged at an earlier date because she was
needed in Pockey's store during the promotion. Also it is
notable that throughout his testimony Schmidt referred to
Hibblen as Jean Jones and there is no testimony from
Hibblen, nor was she asked on cross-examination, whether
she ever called herself Jones or was known by that name.
In addition the other girl, Sherry Sample, whom Schmidt
designated as having been working with Hibblen on both
occasions, August 31 and September 8, was not elsewhere
22 There is no explanation for the fact inventory was taken on 2
consecutive weeks Vice President Rastetter testified that an
inventory is normally taken every 30 to 45 days and that the
Company tries to achieve somewhere between 40 and 45 days He
testified that should they find an operation on one inventory is
extremely short the district supervisor may request an inventory
at a more frequent interval Presumably, therefore, the inventory
had been found to be extremely short although in view of the fact
identified as an employee at store 930. Hibblen testified
that there were three other employees working at the store
while she was employed there, Sagarto, Hallcheck, and
another woman whose name she doesn't know . It seems
improbable that she would not have known the name of
Sherry Sample, an unusual name, if she had worked with
her all of 2 days and presumably longer . I note also that
Hibblen did not testify that she had ever been criticized for
her work. It seems improbable that given direct orders to
speak to her about her performance by Schmidt, Pockey
would not have mentioned the matter to Hibblen. She was
not cross-examined in this regard and of course Pockey
did not testify. And finally, it seems improbable that if
Pockey had direct orders on September 8 to discharge
Hibblen because of her performance, he would have
discharged her under the pretext that he was required to
cut down his expenses rather than for the real reason.23
Under all the circumstances, I am convinced that
Schmidt was mistaken in his testimony and had someone
else in mind at some other store. His testimony with regard
to the person he knew as Marie Jean Jones appears to have
no relationship with the facts set out in Hibblen's account
which I found credible.
It is clear that Store Manager Pockey was very
antiunion . It was he that initially reported the organizing
efforts of the Fletchers because he stated he didn't like
unions. It was he that threatened his employees that
anyone joining a union would be discharged and there was
nothing he could do about it. I cannot advance him credit
on the basis of a stipulation that if called he would deny
the commission of the unfair labor practice charge and I
can find no corroboration in Schmidt's testimony.
All the elements of a classical 8(a)(3) pretextual
discharge are here present. Animus on the part of the
discharging supervisor, Pockey, union activity on behalf of
the employee and knowledge thereof on. behalf of the
Employer, and a pretextual reason given for the
discharge,24 altogether give rise to the inference that the
discharge was in fact because of the union activity, and
this is corroborated by Pockey's threat 2 days before the
discharge that he could not do anything for any employee
who signed a union card; they would be discharged.
Accordingly, I find the discharge of Jean Marie Hibblen to
be an unfair labor practice within the meaning of Section
8(a)(3) of the Act, consummated in order to discourage her
union activities and that of other employees.
4. Dorothy A. Stratman
Dorothy Stratman was employed on September 19 and
20 at Lawson's store 905 under the supervision of Store
Manager Rudell Ratz. Stratman testified that she was
hired on or about September 12 or 13 to come to work on
September 19. She worked at her old job until the 16th and
then quit and on Monday, the 19th, came to work at 8
o'clock in the morning ; she had been told that she would
work a short day because she was in training on Monday
and worked from 8 until 4:30 and that Tuesday, the 20th,
she worked from 8 until 1. She said that there was no
that Rastetter also testified that it took 3 weeks for inventory
results to be computed, this does not necessarily follow.
21 A week after her discharge, Hibblen testified, Mrs. Pockey
who had not therefore worked at store 930 was working there as a
clerk in the Lawson uniform
14 I find that Pockey's avowed reason for the discharge was a
pretext in view of the fact that after the discharge his wife was
employed in the place of Jean Hibblen.
CONSOLIDATED FOODS CORP. 961
complaint about her work and that while Ratz was strict
and businesslike she had no trouble with her during that
time.
On the 20th, about 5 minutes before she got off work, a
union agent came into the store and both Stratman and
another girl, Barbara, whose last name Stratman did not
know talked to the union men and signed cards.
Stratman testified that she returned to the store about 4
o'clock in the afternoon to buy some milk and met Ratz
who told her at that time what she would be paid ($1.25 an
hour) and that she would be paid every 2 weeks. A
customer came in and Stratman started to, leave; Ratz
asked her to wait and she did so. After the customer
departed Ratz asked Stratman whether she talked to a
man representing a union and whether she signed a card.
Stratman acknowledged that she had done so, whereupon
Ratz became angry and said, "Lawson's is not a union
store and if you signed his card now you can sign your
timecard and I'll pay you off and you're through."
Stratman started to leave and the union man , Mr. Allen,
came into the store. Stratman told Allen that she had just
been fired for signing the union card and Allen went back
into the store and told Mrs. Ratz that he would see her in
court for discharging Stratman. Ratz then said she was
dissatisfied with Stratman's work but hadn't said anything
before that time, and that Stratman was already fired.
Allen took a statement from Stratman and left her.
Stratman then went to the home of Barbara who lived
across the street, and asked Barbara if she had been fired
and told Barbara that she had told Ratz that she had
signed a union card. Barbara said that she had not been
fired and called Ratz who said that she (Barbara) was not
fired.
Ratz' story is so completely different that almost every
statement made by Stratman is controverted. Ratz
testified that she hired Stratman on Saturday,
September 17, to come to work on September 19;
Stratman showed up for work a half hour late; and during
the entire morning when she was scheduled to work
Stratman proved to be so inept that Ratz concluded she
might have made a mistake in hiring her. Because
Stratman did not appear to be catching on Ratz had her
continue working until after 4 in the evening hoping to
teach her how to do the work. That afternoon, according to
Ratz , she told Barbara Starzyk, who was also employed,
that Barbara would probably be getting more hours
because she thought she would have to discharge
Stratman and also complained to another employee, Doris
Caul, about Stratman's work.
The next morning Stratman came into work late again
and continued to work poorly. Prior to noon Ratz had to
leave the store, and she left Stratman and Starzyk to do
the work while she was away, instructing Starzyk to wait
on the customers and Stratman to bag candy, weigh it, and
mark the price on it. She returned about 3 o'clock and
found Starzyk alone in the store, the breadbox was in the
middle of the floor and the bread was helter-skelter on the
bread rack, sour cream was on the window in the milk
cooler, and in the backroom, in the sink, a can of corned
beef was mutilated, hacked up into chunks, and beside it a
chopped ham. She testified that she threw the corned beef
away and returned the 7-1/2-pound can of chopped ham for
credit to her supervisor, because the meat was spoiled
because it had been left out. Manager Ratz asked Starzyk
what had happened and Starzyk disclaimed any
responsibility and went on to tell her that she had had
visitors, including the sales supervisor and a man from the
Union, and told her that the man from the Union had
talked extensively with Dorothy, and that Dorothy talked
half the time she was away from the store; that she had
made terrible mistakes on the scales and had a bad
attitude with the customers and that Stratman had shown
the store timebook to the man from the Union. Later in the
day according to Ratz a customer, Mrs. Seigfried, came
into the store and told her that a clerk had shorted her 31
cents and refused to give it back to her, and she wanted
her money.25 Stratman returned to the store at 4 or 4:30
according to Ratz' testimony, and Ratz asked her what was
wrong, what had happened, and specifically asked her
about the incident with Mrs. Seigfried, the mistakes she
had made, and about the meat in the sink. According to
Ratz, Stratman said that she left the meat in the sink
intending to go back and get it, and forgot it. As to
Seigfried, Stratman said she had not made a mistake and
that she wasn't going to give the woman back 31 cents. At
this point Ratz told Stratman that she was discharged and
Stratman started to cry and said "I can't leave this job
now, I have quit my other one. You can't fire me because I
signed a union card." Ratz testified that she answered, "I
don't give a damn what you have signed. Since you're so
damn handy signing things I have just one thing and that's
your timecard, Dorothy. Sign it and leave." After some
discussion Ratz paid Stratman for the time she had
worked with a personal check and Stratman left. Almost
immediately Stratman and a man came walking back in
the store and the man said "Lady did you know you've just
committed a federal offense for which you could be fined
$10,000 or worse?" He identified himself as being from a
labor union. The two had further conversation which is
irrelevant to the issue.
Seigfried testified that she was in the store around noon
on both September 19 and 20 and that she observed
Stratman on both occasions. On the first occasion
Stratman did not wait on her and Seigfried had to wait
until another clerk, whom she identified as Starzyk, got
around to waiting on her. On the second day, after she had
waited a length of time, and the store was crowded,
Stratman waited on her. When she got home she found
that she had been overcharged 31 cents. She went back to
thet store and complained to Stratman; apparently an
argument ensued, during the course of which, she
testified, Stratman said that she did not overcharge her
and called her a liar and refused to return the 31 cents.
Seigfried testified that she then left the store and returned
later and complained to Ratz.
Barbara Starzyk testified that she worked on the 19th
from 11 a.m. until 2 p.m. with Stratman and that on that
day, Stratman had difficulty adding orders and putting tax
on the orders and in telling one type of meat from the
other. That afternoon she went back to work for an hour
acid on that occasion had a discussion with Ratz in which
she asked whether she could get more hours at the store.
Ratz answered, "Well I wouldn't worry about it because I
am pretty sure I am not going to be able to keep this new
girl.. "She' s not working out." On Tuesday, the 20th,
Starzyk testified, she worked from 11 until 2 or 3 with
YS Ratz also testified that her daybook shows a shortage of $1 80 shortage rather than Starzyk who also had commenced work that
for September 19 and a shortage of $7.60 for the 20th. There is no week, or Ratz herself
reason shown that Stratman would have been responsible for the
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stratman. Ratz left shortly after Starzyk arrived, leaving
instructions that Stratman was to weigh and bag candy so
as to become acquainted with that job and the two were to
put up the bread and Stratman was supposed to clean the
glass on the milk cooler. She testified that she did not
recall whether Stratman cleaned the glass. She testified
also that she did not open any can of corned beef. She also
observed that Stratman was slow to catch on and that the
bread came in late and Stratman was not able to complete
putting it up before time to leave. She testified that when
Ratz returned after Stratman had left that she told her that
the supervisor had been in the store, that a union man had
come in and that both girls had signed union cards. She
said that Ratz was upset about the breadboxes being out
and about some sour cream on the door that she brought to
Starzyk's attention. Starzyk had not noticed it theretofore.
Ratz then took Starzyk in the backroom and showed her a
mutilated can of corned beef and asked her if she had
opened it. She testified she also told Ratz that Dorothy
brought the timebook out to the front counter, where it is
not supposed to be, and filled out her timecard and that
when the union man asked how many employees worked
in the store Stratman shoved the book toward him and he
looked through it.
Starzyk testified that after she went home Stratman
came to her home, asked if she was fired and told her that
she had just been fired for signing a union card. Starzyk
called Ratz and told her that Dorothy Stratman had just
been to her home and said that she had been fired for
signing a union card and asked if she also had been fired.
Ratz then said "I did not fire Dorothy Stratman for signing
a union card. If you were going to go you would have been
fired before you left the store to go home this evening."
Ratz told her to come back to work at the regular time the
next day.
Doris Caul, another clerk, testified that on the evening
of September 19 she dropped into the store as a customer
and talked to Ratz. She asked how the new girl was
working out and Ratz told her that she wasn't working out
very well and she didn't think she was going to be able to
keep her.
On her demeanor I do not credit Ratz except to the
extent that she was corroborated by consistent testimony
of other persons. Her testimony and that of others made it
clear that she is a hard and exacting supervisor,
demanding and quick-tempered. I do not say this to her
discredit. A store manager who is personally liable for any
shortages, as she was, would in my opinion necessarily be
exacting toward her subordinates. But her demeanor and
her testimony on the witness stand displayed a depth of
malice and prejudice against Stratman so great that I am
convinced that it colored all of her testimony. I believe she
seriously exaggerated the problems that she had with
Stratman.26 Ratz' spiteful, bitter, and envenomed
mannerisms and tone in her testimony left no doubt in my
mind of her personal bias.
The testimony of Starzyk and Caul, however, convinces
me that in fact as early as the evening of the 19th, before
any union activity was undertaken by Stratman, Ratz was
already contemplating her dismissal and Starzyk's
testimony concerning her activities the next day, the 20th,
together with the complaint of Mrs. Seigfried, and
Stratman's handling of that situation convinces me that
Stratman would have been discharged whether or not a
26 For example, her description of the canned meat in the sink
as having been literally hacked to pieces and mutilated beyond
union man talked to her on the 20th. Accordingly, I cannot
find that the discharge was in any way effected in order to
discriminate against employees because of their union
activities or to interfere with, restrain, or coerce them in
their union activities. I shall recommend that the
allegation with regard to the discharge of Stratman be
dismissed.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having
found that Respondent violated Section 8(a)(1) of the Act
by discharging Thomas Fletcher, a supervisor, I further
find that Thomas Fletcher's reinstatement with backpay is
necessary in order to restore to Respondent's
nonsupervisory employees their full freedom to exercise
the rights guaranteed them in Section 7 of the Act. Having
additionally found that Respondent terminated Susan
Fletcher and Jean Hibblen in violation of Section 8(a)(3) of
the Act, I shall recommend that Respondent offer Thomas
and Susan Fletcher and Jean Marie Hibblen immediate
and full reinstatement to their former positions or to
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of pay suffered by reason of the
discrimination against them, by payment to them of sums
of money equal to that which they normally would have
earned from the date of their termination to the date of
said offer of reinstatement less their net earnings during
such period. The amounts due shall be computed in
accordance with the formula proscribed in F. W.
Woolworth Company, 90 NLRB 289, and interest is to be
computed on the amount so determined in accordance
with Ists Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is and at all times relevant hereto has
been a labor organization within the meaning of Section
2(5) of the Act.
3. By terminating the employment of Thomas Fletcher,
a supervisor, Respondent has interfered with, restrained,
and coerced its nonsupervisory employees in the exercise
of rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By terminating Susan Fletcher and Jean Marie
Hibblen, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
5. By coercively interrogating and threatening its
employees with discharge if they joined or supported the
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. Respondent has not violated the Act by the discharge
of Dorothy A. Stratman as alleged in the complaint.
RECOMMENDED ORDER
Upon the entire record in this case and pursuant to
Section 10(c) of the National Labor Relations Act, as
redemption is scarcely corroborated by Starzyk's description of
the allegedly mutilated can.
CONSOLIDATED FOODS CORP.
amended, I recommend that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating any of its employees coercively
concerning their union activities, interfering with their
union activities, and threatening them with loss of
employment if such activities were engaged in.
(b) Discouraging membership in Retail Store
Employees Union, Local 876, Retail Clerks International
Association, AFL-CIO, or any other labor organization of
its employees by discharging any of its employees or in any
other manner discriminating against them with respect to
their hire or tenure of employment or any term or
condition of their employment.
(c) Interfering with, restraining, or coercing its rank-
and-file employees in the exercise of their rights
guaranteed in Section 7 of the Act, by discharging any
supervisor because the spouse or any other relative of
such supervisor employed by them is a union supporter or
adherent or is engaged in any activities on the Union's
behalf.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action in order to
effectuate the policies of the Act:
(a) Offer to Thomas Fletcher, Susan Fletcher, and Jean
Marie Hibblen immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of their discharge in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Notify Thomas Fletcher, Susan Fletcher, and Jean
Marie Hibblen 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.
(c) 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.
(d) Post at each of its stores in the Detroit, Michigan,
area copies of the attached notice marked "Appendix."27
Copies of said notice, to be furnished by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.28
Sr 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
963
Z" 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
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Laboi
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate any of our employees
coercively concerning their union activities, interfere
with their union activities , or threaten them with loss
of employment if such activities were engaged in.
WE WILL NOT discourage membership in Retail
Store Employees Union, Local 876, Retail Clerks
International Association, AFL-CIO, or any other
labor organization of our employees by discharging
any of our employees or in any other manner
discriminating against them with respect to their hire
or tenure of employment or any term or condition of
their employment.
WE WILL NOT interfere with, restrain , or coerce our
rank-and-file employees in the exercise of their rights
guaranteed in Section 7 of the Act, by discharging any
supervisor because the spouse or any other relative of
such supervisor employed by us is a union supporter
or adherent or is engaged in any activities on the
Union's behalf.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed to them in
Section 7 of the Act.
WE WILL offer to Thomas Fletcher, Susan Fletcher,
and Jean Marie Hibblen immediate and full
reinstatement to their former or substantially
equivalent positions , without prejudice to their
seniority and other rights and privileges , and make
them whole for any loss of earnings they may have
suffered by reason of their discharge.
CONSOLIDATED FOODS
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
Note: We will 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.
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, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.