Farm Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1961

131 N.L.R.B. 1068 (N.L.R.B. 1961)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to perform services with an object of forcing Russell Benson, Robert Benson,
John Halleran, and William Halleran to join Respondent labor organization and
has thereby violated Section 8(b) (4) (i) (A) of the Act.
3. Respondent has not induced and encouraged individuals employed by L & P,
Miller, and Hoeffner in the manner aforedescribed in paragraph 2, above.
4. Respondent has induced and encouraged and continues to induce and encour-
age individuals employed by the persons described in paragraph 2, above, and in the
manner described in paragraph 2, above, with an object of forcing and requiring
Pereira, Ferazzoli, Merrick, Cary, L & P, Hoeffner, Miller, Meadowbrook, and Sim-
virta to cease doing business with Spar and to force or require Spar to cease doing
business with R & B and has thereby violated Section 8(b) (4) (i) (B) of the Act 34
5. Respondent has not engaged in the conduct described in paragraph 2, above,
with an object of forcing and requiring R & B to recognize and bargain with Re-
spondent as the representative of R & B's employees.
6. Respondent has threatened, restrained, and coerced and is threatening, restrain-
ing, and coercing Spar, Pereira, Ferazzoli, L & P, Miller, Hoeffner, Merrick, Cary,
Sinivirta, and Meadowbrook, with an object of forcing and requiring Russell Ben-
son, Robert Benson, John Halleran, and William Halleran to join Respondent and
has thereby violated Section 8(b) (4) (ii) (A) of the Act.
7. Respondent has engaged in the conduct above described in paragraph 6 with
an object of forcing and requiring the persons named in paragraph 6, above, ex-
cluding Spar, to cease doing business with Spar, and has engaged in the conduct
aforedescribed in paragraph 7 with an object of forcing and requiring Spar to cease
doing business with R & B and has thereby violated Section 8(b) (4) (ii) (B) of the
Act.
8. Respondent has not engaged in the conduct described in paragraph 6, above,
with an object of forcing and requiring R & B to recognize and bargain with Re-
spondent as the representative of R & B's employees.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
81 The evidence that supports a finding of a broad object, paragraph 4 above, e g,
Vance's statements, does not necessarily establish the precise individuals who were in-
duced, according to specific evidence, in order to accomplish the object (paragraph 3,
above).
Farm Stores, Inc., F.S. #2, Inc., and F.S. #4, Inc., Divisions of
Farm Stores, Inc. and Farm Stores, Inc., and F.S. #31, Inc.,
a Division of Farm Stores, Inc. and Local 1010, Retail Em-
ployees Union of South Florida, affiliated with Retail , Whole-
sale and Department Stores Union , AFL-CIO. Cases Nos_
12-CA-1421-1, 12-CA-141-2, and 12-CA-1528. June 7, 196!
DECISION AND ORDER
On November 28, 1960, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. With respect to certain other
unfair labor practice allegations, the Trial Examiner recommended
dismissal thereof. Thereafter, the Respondents filed a brief in sup-
port of the Intermediate Report. The General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
131 NLRB No. 131.
FARM STORES, INC., ETC. 1069
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the Board has delegated its powers in connection with these cases to
a three-member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Farm Stores, Inc., F.S.
#2, Inc., and F.S. #4, Inc., Divisions of Farm Stores, Inc., and Farm
Stores, Inc., and F.S..#31, Inc. a Division of Farm Stores, Inc., their
officers, agents, successors, and assigns, shall :
1. Cease and desist from interrogating employees concerning their
union sympathies in a manner constituting interference, restraint, or
coercion in violation of Section 8(a) (1) of the Act, or threatening
them with loss of employment in consequence of successful union
activities, or in any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the right to self-
organization, to join or assist Local 1010, Retail Employees Union of
South Florida, affiliated with Retail, Wholesale and Department
Stores Union, AFL-CIO, or to form, join, or assist any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain
from any or all of such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their stores in Miami, Florida, copies of the notice
attached hereto marked "Appendix." z Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being signed by Respondents' representative, be posted by Re-
spondents immediately upon receipt thereof, and be maintained for
a period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
1 As Florida has a right-to-work law, we shall delete from the Trial Examiner's recom-
mended order herein the proviso "except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of employment
as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959."
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ents have taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is dis-
missed, insofar as it alleges that the Respondent violated Section
8(a) (3) of the Act in the discharges of Howard Fraleigh, Adolphe
Brault, and Peter Micewicz.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate employees concerning their union sym-
pathies in a manner constituting interference, restraint, or coer-
cion in violation of Section 8 (a) (1) of the Act, or threaten them
with loss of employment in consequence of successful union
activities.
WE WILL NOT in any like or related manlier interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
Local 1010, Retail Employees Union of South Florida, affiliated
with Retail, Wholesale and Department Stores Union, AFL-CIO
or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in concerted
activities for the purpose of mutual aid or protection as guaran-
teed in Section 7 of the Act, or to refrain from any and all such
activities.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization.
FARM STORES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard before the duly designated
Trial Examiner in Miami, Florida, on September 6, 1960, on complaint of the
FARM STORES, INC., ETC. 1071
General Counsel and answer by Farm Stores, Inc., F.S. #2, Inc., F.S. #4, Inc., and
F.S. #31, herein collectively called the Company or the Respondent. The sole
issue litigated was whether the Respondent had violated Section 8(a)(1) and (3)
of the Act. The Respondent filed a brief with the Trial Examiner after the close
of the hearing.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The parties stipulated and I find that Farm Stores, Inc , Farm Stores #2, #4,
and #31 are 4 of 11- corporations which are commonly and centrally controlled and
which together constitute a single employer. Their combined gross volume of
sales for the past year was in excess of $500,000, and the local purchases by Farm
Stores, Inc., of goods which originated outside the State of Florida during the same
period exceeded $36,000. I find that the Respondent is engaged in commerce
within the meaning of the Act, and that it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties also stipulated, and I find, that Local 1010, Retail Employees Union
of South Florida, affiliated with Retail, Wholesale and Department Stores Union,
AFL-CIO, herein called the Union, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. A picture of the case
The Respondent operates 35 separate retail stores in the greater Miami area-
Each is staffed by a manager and a few clerks, some stores having only one clerk
and others as many as four. The stores are open from 7 a.m. to 11 p.m. They
sell milk, cheese products, ice cream, and cookies to a passing automobile trade,
the stores so constructed as to permit customers to make purchases from their
automobiles.
The chain of command over the stores starts with a Mr. Fogg, the president of
the Company. Beneath him is William Parker, vice president in charge of opera-
tions, who appears to be effectively in charge of running all the stores. In turn,
there are 3 "supervisors," each over about 13 of the stores; these persons circulate
,among the stores aid operate out of the main office. Finally, each store has an
employee designated manager, who works full time in that store; there is also a
category called "relief manager," persons who do a manager's work but on a
rotating basis from store to store relieving the manager of each store on his weekly
day off. Each store is open 7 days a week.
Organizational activities among the store employees started on about March 31,
when Danny Klein, secretary of the Union, visited Howard Fraleigh, a manager
in one of the stores and an old friend of his, and tried to interest him in union
activities. The following Monday, April 4, his day off, Fraleigh accompanied
Klein on a tour of a number of stores; they visited about nine, where he intro-
duced the union agent to employees of those stores in a solicitation campaign.
They distributed authorization cards in favor of the Union, obtained a number of
signatures from employees, and left others to be signed by clerks not then at work.
Fraleigh was discharged on April 7, 1960, and Adolphe Brault, manager of
another store, was terminated on April 14. Peter Micewicz, a clerk, was discharged
on June 26, 1960. The complaint alleges that each of these discharges was moti-
vated by an intent to discourage the union activities of these employees and of others
in the stores. The complaint also alleges certain coercive statements by manage-
ment representatives at the time of these events, in violation of Section 8(a) (1) of
the statute.
While conceding the discharge of each of the three named employees on those
dates, the Respondent denies any unlawful purpose in its action and, as an affirma-
tive defense in each situation, advances incompetence and undesirability of the two
managers and misconduct by Micewicz. The Respondent also denies any illegal
or coercive statements by any of its representatives. With respect to Fraleigh and
Brault, the Respondent also defends on the ground that as managers they were
supervisors within the meaning of the statute. On this basis, if for no other, the
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends there can be no unfair labor practice finding against it for
these discharges.
B. The discharge of Fraleigh and Brault
I think the record as a whole shows clearly that Fraleigh and Brault were dis-
charged because of their union activities. Fraleigh worked from March 1959 to
April 1960; he became a store manager in July 1959 and so remained throughout.
Holding in abeyance for the moment the asserted affirmative reason for his dis-
charge advanced at the hearing by the Respondent, the evidence indicative of anti-
union motivation in the discharge is clear and uncontradicted. He was apparently
the most active person attempting to bring the Union into the Company. The
Respondent knew he had visited the stores with Business Agent Klein, for Parker,
the vice president, asked others if they had received visits and learned the fact from
them. Three days after Fraleigh visited the stores with the union agent, on a
Wednesday, not the usual payday, his supervisor, Stecker, discharged him without
advance warning. Stecker said he hated to release Fraleigh and gave "big turn-
over" as the first explanation. When Fraleigh asked whether the Union was at the
bottom of it, Stecker answered, equivocally, "I expect to be promoted and I can
use that. Go along with me, will you? You won't suffer for it." Fraleigh's testi-
mony as to his conversation with Stecker that day stands uncontradicted; Stecker
was not called to testify.
Brault was with the Company about 21/2 years; he spent most of his time as a
manager. He was on vacation for 3 months during 1959, returning in September,
when he was restored to work in a few days as a clerk, and a few months later,
made a manager again . One of the stores which Fraleigh visited on April 4 was
Brault's; Brault signed a card, and took one which he later gave to the clerk on the
afternoon shift. On Sunday, April 10, Vice President Parker visited Brault's store
and asked "did you have the visit of a unionman?" Brault said "yes," and added it
was Fraleigh who had visited him in company with the union agent. Parker then
asked whether Brault had signed a union card, and when he learned affirmatively,
added: "You will have to choose between the Union and the Company."
Brault went to a union meeting on April 13; the next day he was discharged
without advance notice. At 3 p.m. Supervisor Stecker called Brault to his auto-
mobile and said: "I got orders from the office this morning to replace you." Stecker
said he had nothing against the manager but "I've got to make a report to the
Company and give them some reasons. . I'm going to put down . running
out of milk and being short on your inventory." When Brault defended his per-
formance, Stecker said he knew the Company did not have "a leg to stand on," and
that ". . . the main reason is the union, because you signed a card and you went
to a meeting." He even added: "The Company has ways to find out" who went to
the union meeting.
As stated, Stecker did not testify. Parker, who did testify, admitted he asked
Brault whether he had signed a union card and told him that a vote for the Union
in the coming election would be deemed a vote against the Company. Moreover,
Rett, another store manager, also testified without contradiction that a day or two
after Brault was discharged, he spoke to Supervisor Stecker about it and asked why,
and Stecker replied, "For being interested in the union or union activities."
Against this clear and direct evidence of antiunion animus, the Respondent's
assertion at the hearing that each was released for cause apart from union activities
is entirely unpersuasive and, on the record as a whole, fails of probative evidence.
Parker testified that Brault was discharged because he too often ran short of milk
in the store, because he was untidy in the way he ran the store, and because he
was personally obnoxious, in that he needed a shave most of the time, wore very
dirty clothing, and even had B O. He conceded, however, that he never warned
Brault of any of these things; he said he told Supervisor Stecker to do so, but
Brault's testimony that no one ever criticized him stands uncontradicted. Brault
explained that on several occasions he did run short of milk, but that this was
caused by unannounced changes in the price of milk in the course of a number of
price wars that occurred in the Miami area. While insisting that sudden changes in
prices could only have explained the shortage of milk in Brault's store on very few
occasions, Parker, later in his testimony, also admitted that in the year 1959 price
wars had taken place for 168 days, and that the same experience would prevail
during 1960.
More significant, however, particularly in the absence of the testimony of Stecker,
who, according to Parker, carried out his instructions, is Parker's testimony that he
decided to get rid of Brault back in 1959, before he went on vacation. He said he
instructed Stecker not to rehire Brault at the end of the 3-month vacation ending in
September. But Stecker did rehire Brault immediately upon his return and made him
FARM STORES, INC., ET C. 1073
a manager again . Further, Parker testified that he made another final decision to dis-
charge Brault 3 months before the actual discharge. Again, however, it was not
until Brault had participated in union activities, and told Parker he intended to con-
tinue to favor the Union, that Supervisor Stecker carried out the asserted 3-month old
decision by the vice president to discharge the man. In the total situation, Parker's
bland- assertion at the hearing that Stecker just liked Brault and therefore literally
ignored his own superior's instructions so many times, is very unpersuasive. Par-
ticularly must this assertion fail in the light of the uncontradicted testimony that
Stecker told Brault when he discharged him it was because of his union activities.
If anything more is needed to dispose of the Respondent's assertion as to Brault,
it is the fact that he was used extensively to train new managers for the various
stores. Parker described him as an- excellent teacher of managers. Indeed, as will
appear below, men were not taken, after a period of training with Brault, until
Brault was satisfied they were qualified. But if, as Parker insisted Brault indeed was
so undesirable an employee, ran his store in so untidy and unsatisfactory a fashion,
and lacked the minimum judgment required to keep his store adequately stocked, the
last thing the Company would do is use him as an example for employees to be
hired to run other stores.
With respect to Fraleigh, Parker said that the sales volume of his store was so low
for weeks before the discharge that he told Stecker, the supervisor, to reduce the
payroll of that store. Stecker removed one of the clerks, and when he suggested
eliminating another half day of clerk work, the manager, Fraleigh, said he could not
adequately care for the store with so reduced a staff and that he would quit if the
help were further curtailed. Parker said he kept telling Stecker to do something
about this, even to discharging Fraleigh if necessary, but that Stecker stalled. The
actual discharge came 3 days after Fraleigh toured the stores with the union agent
soliciting membership in the Union.
Somewhat inconsistently with his general affirmative testimony, the vice president
also said that "about 2 or 3 weeks" before the discharge, he sent a complimentary
note to Fraleigh because he was so satisfied with his method of keeping inventory
accurately. Of equal significance here is the fact that when Stecker did discharge
Fraleigh, he did not tell him the reason was because the payroll was too high, or
because Fraleigh refused to remain with a limited complement of clerks.
On the total record there is no question and I find that the Respondent discharged
both Brault and Fraleigh because of their attempts to bring the Union into the
Company, and because they were favorable to union activities
C. The supervisory status of the store managers
Brault, a store manager for several years, called as the first witness for the Gen-
eral Counsel, gave very detailed testimony respecting the duties, responsibility, and
authority of store managers with this Company. Upon completion of his testimony,
the General Counsel stated that he rested upon Brault's testimony to support the
essential complaint, allegation that store managers were not supervisors within the
Act; he also stated that the supervisory issue as to Fraleigh must be resolved in like
fashion in the light of Brault's testimony. Much more briefly, Fraleigh himself also
spoke of his work duties; further, Rett and Jones, also store managers, testified and
had occasion to say something about their duties as managers In addition, on
behalf of the Respondent, Vice President Parker gave his version of the supervisory
status of store managers. In substance, his version varied not too greatly from that
of Brault, differing primarily in matters of emphasis or inference.
I think the record as a whole requires a conclusion here that store managers are
supervisors within the meaning of Section 2(11) of the statute I rest this finding
primarily upon the testimony of Brault himself; it is supported in large measure by
details filled in by Rett
Brault's testimony follows. He started with a general description of his duties as
we have to look after the place, order the goods and the merchandise,
make the report, balance the cash and make the weekly reports, clean, keep the place
in good condition ." Restating , again in general terms, he said his duty was " to
take care of the place, keep the place clean and make my reports, cash reports, and
weekly reports to the Company, and see that everything was running to the benefit
of the Company."
The manager opens the store at 7 in the morning and works to 3 o'clock. The
clerks, who vary from one to four in the different stores, have shifts from 3 in the
afternoon to 11 p.m., or from 7 a.m. to 3 p.m during the day with the manager, or
split shifts, from 4 to 9 p in. in the afternoon Clerks are paid $1 05 per hour and
managers $ 1.15. Depending upon the weekly volume of business , the wage of a
599198-62-vol 131-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager increases at 5 cents per hour as the volume grows. Two, managers who
testified said they earned $1.20 for this reason, and it appears that other managers
earned more. This increase in hourly rates is not available to other employees.
Cash, as it accumulates during the day, is placed in an inner vault by the em-
ployees; it is recoverable only by the touring supervisor who visits the store once a
day. Preparing for this visit of the supervisor, the manager prepares a daily cash
receipt report covering the previous day's operation. The supervisor then checks the
manager's report against the actual cash and takes the money away.
Each employee, including the manager, signs an attendance sheet when he arrives
to work and when he departs at the end of his shift., Daily the manager examines
the attendance report, certifies the accuracy of the entries thereon, signs his name to
the bottom, and forwards it to the main office. As to those employees who close the
store at 11 at night or end their shift after the manager has left, the manager relies
upon their honesty.
The manager accepts applications for employment from ay persons who seek-it
and forwards the application to the main office; he also notes his impression as to
whether the man looks good or not to him. He is authorized to grant a clerk an
hour or two off on request; in such case he performs the other man's work. When
a clerk desires a whole day off or longer, the manager reports to the office and calls
for a replacement.
The manager trains new employees, including managers for other stores. Brault
said this is a 2-week training program, and that upon its conclusion he certifies the
competence of the new employee and recommends his hiring to the Company.
Brault described this final report as telling his superiors what he thought of the man's
ability and approving his fitness. Brault trained half a dozen men, and Rett said he
trained between 8 and 10 men.
Continuing with his testimony, Brault gave a number of illustrations of how he
functioned as a manager and what his duties were. He said he once reprimanded
a clerk for discourtesy toward customers. He said that "a couple of times weekly"
he returned to the store in the afternoon after his regular shift and "I would check
on them, especially if there were new men who worked or I wanted to see to it that
the men were doing the right thing . . if they were doing the right thing accord-
ing to the orders received from the office." Brault candidly testified: "That is what
we get the 10 cents more an hour for, is to see that the place is run according to
the instructions from the company or from the supervisors." He said that when-
ever the Company received complaints at the main office, they would advise him by
telephone and that he then would check upon the men involved.
Fraleigh, also a store manager, departed from Brault's testimony only by saying
that he never visited his store after hours.
Rett, in support of the complaint, said that whenever an applicant came in look-
ing for a job, he had him fill out an application form, and if the man looked good to
him he would add such an impression to the form before sending it to the office. He
also testified that on one occasion, when a newspaper advertisement was published
for a man needed in his store, Stecker, the traveling supervisor, told Rett to look
after the matter when applicants arrived. Two persons applied for the job, and
Rett chose the one that looked preferable to him and hired him. He also said that
on one occasion, when a clerk reported to work drunk, another clerk called him,
Rett, at his home during the evening. In consequence, Rett went to the store and
sent the man home Rett also testified generally that "if the man wasn't saisfactory
and didn't do his work right or anything like that I'd ask the supervisor if he could
replace him with someone else or transfer him to another store." He said this was
the authority as he understood it, but that he recalled no incident when he exer-
cised it
Finally, Jones, also a manager, testified that he warned clerks about violating
company rules and discharged three men. Pressed for details, it developed that
what he meant was there were occasions when trainees assigned to him did not prove
satisfactory and he sent them home or failed to recommend their hiring.
Vice President Parker added little to the foregoing testimony. He said a manager
has charge of the store, and can hire and fire clerks. He then qualified this flat
assertion by saying the manager usually discusses the question with the supervisor,
that he does not usually discharge a man himself, that it happened on one occasion
when a man came in drunk, or something "of an emergency nature."
As a minimum I think the foregoing testimony of the managers themselves shows
clearly that they responsibly direct the work of the clerks in the stores These are
not Conduits for relaying main office instructions to the rank-and-file workmen
Their admitted duty is to "see to it" that company regulations are followed, and to
report disregard of orders to the travelling "supervisors." Indeed if they did not
exercise at least some supervisory authority, it would mean that, except for the
FARM STORES, INC., ETC. 1075
approximately 15 minutes daily visit to each store by the visiting "supervisor," all
the employees in all the stores work their entire shift with no supervision whatever.
As Brault candidly admitted, the managers receive a pay differential to discharge
this very supervisory responsibility. On the entire record, I find that Brault and
Fraleigh, at the time of their discharge, were supervisors within the meaning of Sec-
tion 2(11) of the Act.'
It is now well established that supervisors are not entitled, under the statute, to
the protection afforded rank-and-file employees, and that the discharge of a super-
visor in order to curtail his union activities is not an unfair labor practice. L. A.
Young Spring and Wire Corporation v. N.L.R.B., 163 F. 2d 905 (C.A.D.C.), cert
denied 333 U.S. 837. It is not claimed, and the record does not indicate , that the
discharge of the two managers constituted an unfair labor practice under any other
theory or precedent. Accordingly, I shall recommend dismissal of the complaint
with respect to the discharge of Brault and Fraleigh.
D. The discharge of Peter Micewicz
Micewicz was a clerk in one of the stores for about 6 months ending June 26,
1960, when he was discharged. It does not appear that he took any steps towards
joining the Union or in any other way engaged in union activities.
On the afternoon of Friday, June 24, Vice President Parker went to that store on
one of his usual rounds Micewicz was alone and the two engaged in a conversa-
tion that lasted over 'a half hour. Both men testified as to this visit, and their ver-
sions were not different in substance, but rather in terms of the tenor of the con-
versation and the general attitude of the clerk toward his superior.
Micewicz said he did not recognize Parker, whom he had never seen, and was
about to ask for his credentials. Parker testified that upon learning Parker's iden-
tity Micewicz opened the conversation by saying, "You are the damned man I want
to see." It is agreed that Parker asked Micewicz had he received the Company's
letter on the subject of the Union, and asked him what did he think of it. Mice-
wicz replied he did not think much of the letter. There was some talk between
them concerning the Union and then, according to Micewicz' uncontradicted testi-
mony, Parker said: "I won't go for a union or we won't go for a union." At this
point, the clerk volunteered the information that he had been asked by the Union
whether he would be willing to serve on a negotiating committee in the event the
Union became the bargaining agent. When Parker asked the clerk how he had
answered, Micewicz said he would have to think about the matter before deciding.
Micewicz then started to criticize the way the Company was running its business;
he admitted telling Parker the officer did not know what was going on in the store;
he said he made a number of suggestions as to how business could be improved.
Parker tried to leave, but Micewicz importuned him to remain, held him back, and
continued to belabor his criticism of the Company's methods. He told Parker he
was interested in earning more money, and in obtaining a manager's job; he even
told Parker the Company should not hire managers from outside but should promote
clerks instead. Parker was impatient to leave, but Micewicz, as he himself con-
ceded, refused to let him go.
Parker described Micewicz' talk 'as a continuous tirade that the Company "don't
know what you are doing, . I could run the place better than you could do."
Parker srid Micewicz became louder and.louder, his face becoming red, and even
accused Parker of discriminating among people in his choice of managers.
Parker continued to testify that after leaving the store he thought over what had
happened and decided that it would be in the best interest of the Company not to
retain so volatile and excitable a man to deal with its customers. He said he then
decided to discharge the clerk, and immediately so advised Supervisor Jacobsen, who
bpd charge of that store among others, and that in consequence Micewicz was
released.
Micewicz did not work the next day Saturday. and when he reported shortly before
I n m on Sunday, June 26, he found Jacobsen waiting for him . As Micewicz re-
called this terminal conversation, the supervisor said to him "you are through": when
he asked the supervisor why. Jacobsen replied- "No employee of mine is telling my
boss that he doesn't know his business ." Micewicz closed his testimony by saying,
"TI-tit "o at that and T said `Solon", Carl No haul feelin"s "'
To the extent that there is disagreement in the testimony of Micewicz and Parker,
I credit Parker's version of his conversation with the clerk. Essentially they dis-
agreed only on the extent of the clerk's indignation toward the vice president and
i T°" Great Atlantic ct Pacific Tea Company, 121 NLRB 1193 • Armour and Company,
119 NLRB 122 .
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fervor of his criticism of the superior and the Company's way of doing business.
From my observation of Micewicz as a witness I formed a clear impression that he
is unusually aggressive and somewhat impertinent in his attitude toward the Re-
spondent. Indeed, he seemed to recognize an inclination toward pugnacity when he
explained that Jacobsen, on Sunday, walked toward the back of the store "maybe
afraid I'd whack him." It is clear therefore, and I find, that he spoke offensively to-
ward the vice president the first time they -met.
Such behavior toward his superiors appears on its face as quite plausible cause
for discharge. Weighed against it, whatever indications there may be in the testi-
mony of antiunion motivation in the discharge appears as extremely weak. Al-
though the record does not reveal the contents of the letter which the Company
wrote employees about the Union, and of which Parker asked Micewicz' opinion, it
probably was the Company's vehicle for conveying to employees its opinion that they
would do well not to select a union in the forthcoming election.
Parker's inquiry as to what Micewicz thought of the letter, therefore, was merely
an attempt to discuss the pros and cons of collective bargaining generally. Simi-
larly, after the clerk voluntarily informed Parker that the Union had approached him
for possible participation later, the vice president's question as to what Micewicz
replied appears as no more than a continued discussion of a subject not brought up
by the company representative but raised by the employee himself. On the total
evidence, it neither appears that Micewicz in fact was in favor of the Union, nor that
the Company had reason to believe he was. His final statement to Parker was he
had not made up his mind about the subject at all.
I do not think the record as a whole presents sufficient substantive proof that
Micewicz was discharged for the purpose of discouraging union activity by him
or by any other employees. He did not engage in union activities; there is no
reason to believe the Respondent may have mistakenly believed him to be pro-
union minded; he gave the company cause to discharge him and he was immediately
thereafter released with the very misconduct as the stated reason And, finally, his
last cavalier remark to Supervisor Jacobsen-"no hard feel ings"-strongly indicates
Micewicz himself did not then associate the discharge with the Union in any way,
but instead may have felt he rather deserved to be released. Accordingly, I shall
recommend dismissal of the complaint as to Micewicz also.
E. Independent violation of Section 8(a) (1)
In addition to the foregoing the record contains the following uncontradicted
testimony. Covert Corbin, a clerk in Manager Brault's store, signed a union card at
the manager's request. He testified that Parker visited the store late one night shortly
thereafter and asked him whether a unionman had been around to see him Corbin
denied having seen anyone.
Dale King worked from about October 1959 to sometime in August 1960 as a
clerk most of the time and during the last month of his employ as a relief manager.
He testified that while he was a clerk sometime in April or May 1960 Parker visited
his store one day. During their conversation Parker asked- "How do you stand on
this union business," and King replied: "I believe I'd say, well, whatever the majority
of them wants, its alright with me." Parker then told King- "Well, we don't want
this We won't have it . if we have to have this we will hire men like Foy."
King explained that Foy is his son, a 22-year old youth who worked for'the Com-
pany a year or so, and that he, the father, is 54 or 55 years of age.
Parker's only reference to the foregoing testimony of King was that it was "pretty
much right "
Parker's unequivocal statement to King, a middle-aged man, that if the employees
chose a union the Company would hire young men was a clear and direct threat of
reprisal in retaliation for adherence to the Union. No precedent need be cited to
support a finding that such a threat is a clear coercion within the meaning of Section
8(a)(1) of the Act and constitutes an unfair labor practice. His immediately pre-
ceding interrogation as to where King stood "on this union business," might, in other
circumstances, be viewed merely as that form of interrogation which the Board has
said is not a per se violation of the statute? Here, however, the threat to replace
older employees, such as King himself, with younger men, following as it did im-
mediately upon the question as to King's union sympathies, made the question a
direct intimidation in that it served to warn King of his own exposure to the danger
of the retaliation promised by the vice president in the same conversation. Interro-
gations coupled with such threats are not privileged in law?
2 Blue Flash Express, Inc., 109 NLRB 591.
8 California Compress Company, Inc., 121 NLRB 1388.
TRI-ASSOCIATED DRYWALL CONTRACTORS, INC., ETC. 1077
Accordingly, I find that Vice President Parker violated Section 8(a)(1) of the
Act, both in his interrogation as to King's union position, and in threatening him
with economic disadvantages in the event the union campaign were successful. I also
find, in the context of this threat, that his interrogation of Corbin was a further vio-
lation of Section 8(a)( I).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in 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.
Upon the basis of the above findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Farm Stores , Inc., F. S. #2, Inc ., F. S. #4, Inc., and F. S. #31 , Inc., Divisions
of Farm Stores , Inc., are engaged in commerce within the meaning of the Act.
2. Local 1010 , Retail Employees Union of South Florida, affiliated with Retail,
Wholesale and Department Stores Union , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union sympathies and by threaten-
ing them with loss of employment in consequence of successful union activities, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Tri-Associated Drywall Contractors , Inc., Chapter of Painting
& Decorators Association , Petitioner and Los Angeles County
District Council ; Orange County District Council ; Riverside
County District Council ; San Bernardino County District
Council ; Ventura County District Council ; San Diego County
District Council ; United Bro . of Carpenters , AFL-CIO, and
Los Angeles District Council ; Orange Belt District Council;
Ventura County District Council ; San Diego Local 333, United
Bro. of Painters, Decorators , AFL-CIO and Gypsum Drywall
Industry Union, Ind.' Case No. 21-R,11-668. June 7, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Max Dauber, hearing officer.
'At the hearing, the various district councils were referred to by numbers, but no
motion was made to amend their names to include these numbers. Although all the labor
organizations here involved were referred to at the hearing and in the pleadings as
Intervenors , they are all parties named in the petition . Gypsum Drywall Industry Union,
Ind., is herein referred to as Gypsum , while the other labor organizations are referred to
collectively as the Unions.
131 NLRB No. 132.