Spies Super Market of Pierre, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1974

211 N.L.R.B. 766 (N.L.R.B. 1974)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Discount Corporation , d/b/a Spies Super Market
of Pierre, Inc. and Retail Clerks Local 1665, Retail
Clerks International Association , AFL-CIO. Cases
18-CA-3988 and 18-RC-9618
June 20, 1974
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 15, 1974, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, The Discount
Corporation, d/b/a Spies Super Market of Pierre,
Inc., Pierre, South Dakota, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DIRECTION
It is hereby directed that the Regional Director for
Region 18 shall , pursuant to the Board's Rules and
Regulations , within 10 days from the date of this
Direction, open and count the ballot of Donald
Templeton and, thereafter, prepare and cause to be
served on the parties a revised tally of ballots,
including therein the count of said ballot. In the
event that the revised tally of ballots shows that the
Petitioner has received a majority of the valid ballots
cast , the Regional Director shall issue the appropri-
ate certification of representative. However, in the
event the revised tally of ballots shows that the
Petitioner has not received a majority of the valid
ballots cast, the following shall be applicable.
It is hereby ordered that the election conducted
herein on September 13, 1973, be, and it hereby is,
set aside.
[Direction of Second Election and Excelsior
footnote omitted from publication.]
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: The
hearing in this consolidated matter was held in Pierre,
South Dakota, on January 29, 1974. The unfair labor
practices phase of this case was initiated by charges and
amended charges filed by the Union on September 26 and
December 28, 1973. The General Counsel issued a
complaint on December 28, 1973, alleging violations of
Section 8(a)(1) and (3) of the Act, and Respondent filed an
answer denying the violations alleged.
The representation portion of this case is based on a
petition filed by the Union on June 22, 1973, pursuant to
which an election was held on September 13, 1973. The
election results showed that in a voting unit of approxi-
mately 20 employees, 8 votes were cast for the Union, 8
votes were cast against the Union, and 1 ballot was
challenged. The Union filed objections to the conduct of
the election and the Regional Director issued Supplemen-
tal and Second Supplemental Decisions. The Regional
Director concluded that the challenged ballot and Objec-
tions I and 4 raised substantial and material issues which
he directed to be resolved in a consolidated proceeding
with the present unfair labor practice case.
Upon the entire record in the case, including my
observation of the demeanor of witnesses and upon
consideration of briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
The Discount Corporation d/b/a Spies Super Market of
Pierre, Inc., is a South Dakota corporation engaging in the
retail sale of foodstuffs and general merchandise in Pierre,
South Dakota. Respondent's yearly sales and out-of-state
purchases exceed $500,000 and $50,000, respectively. All
parties agree and I find that Respondent is engaged in
commerce within Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Local 1665, Retail Clerks International
Association , AFL-CIO, herein called the Union, is a labor
organization within Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND
REPRESENTATION ISSUES
These consolidated cases present identical issues, name-
ly, whether Respondent unlawfully interrogated employees
and threatened to eliminate or reduce certain job classifica-
tions for union reasons and whether it also discharged
Donald Templeton for unlawful reasons . Templeton cast
the ballot which was challenged by Respondent upon the
claim that Templeton had quit his employment by the
election day.
Berdell Spies is Respondent's president and Donald
211 NLRB No. 107
SPIES SUPER MARKET OF PIERRE
Stowe its secretary -treasurer . Lee Jensen and Neil Barth
are manager and assistant manager , respectively, of the
Pierre Store involved in this proceeding.
A. Store Manager Jensen 's Activities
Store Manager Jensen had several preelection conversa-
tions with employees concerning the upcoming election.
On an occasion 2 or 3 weeks before the election , employees
Diane Bartels and Cindy Taylor asked Jensen whether they
could exchange their respective days off , and Jensen said
they could . During this conversation , according to credible
testimony of Taylor and Bartels , Jensen inquired whether
they had decided how they were going to vote and he told
them that, should the Union come in, they would be
unable to change working days once the weekly work
schedule was posted . Jensen also told them he would seek a
wage increase for those employees who voted against the
Union . Jensen had other contemporaneous conversations
with Taylor , and he inquired on one such occasion whether
the union representative had seen her yet. During a
"casual" conversation with employee Jessie Hall, Jensen
remarked that he felt that "working conditions would be
tightened a great deal" if the Union came in. A week or
two before the election , Jensen asked employee Patricia
Dehne how Dehne thought "the election would go" and
how she thought the students (high school students
working for Respondent ) felt about the election. Jensen
told Dehne that part -time work would have to be cut back
if the Union won the election with the result that "more
would be required of the people that worked there ." In the
latter part of August , according to employee Roxie Frey's
credible testimony , Jensen asked how Frey felt about the
Union and Frey replied she didn 't know . Jensen repeated
the question , and this time Frey said that unions have both
good and bad points , whereupon Jensen told her "to be
sure and vote any way."
B. President Spies' Speeches
President Spies conducted two preelection meetings for
employees during working hours on or about September
10. Some employees attended one meeting and the other
employees attended the second . According to credible
accounts thereof , Spies told the employees that Respon-
dent would not increase its payroll should the Union come
in, and that the Union 's higher wage scale would therefore
cause a substantial cutback in the number of part-time
employees ; Spies also mentioned that the Union "didn't
want older employees around either."
Spies testified , in effect, that his comments about
part-timers were in response to employee questions from
the floor.
C. Donald Templeton 's Termination
Templeton was a "student" employee, by which is
meant, as stated above, that he worked for Respondent
while still in high school. At the time of this hearing in
January 1974, he was a junior or in his third year of high
school. Templeton began working for Respondent in May
1973, putting in about 20 hours weekly; during some
summer weeks he worked as many as 40 hours; and at the
767
time of his termination in September he was working about
14 hours weekly, but only on weekends.
Three weeks or so before the September 13 election,
Templeton gave Assistant Manager Barth 2 weeks' notice
that he was quitting. Manager Jensen was on vacation at
the time. Upon Jensen's return 3 days after Templeton's
mentioned notice, Jensen requested Templeton not to leave
and it was thereupon arranged that Templeton would
continue working for Respondent, but only on weekends.
Templeton worked successive weekends until the weekend
immediately following the election of September 13, as
discussed hereinafter.
The complaint alleges that Respondent unlawfully
discharged Templeton on September 10. Respondent
denies having discharged Templeton and claims, rather,
that the latter quit. Templeton's ballot at the September 13
election was challenged by Respondent on the ground that
Templeton's employment had been severed by that date.
Apart from this severance matter, no other question is
raised concerning Templeton's employee status or his
eligibility to vote.
Templeton's termination is enmeshed in the one of the
aforementioned meetings conducted by Spies and attended
by Templeton on September 10. In explaining to the
employees why they didn't need a union, Spies told the
employees on that occasion that Respondent was paying
"the best wages or one of the best wages in town" and that
Respondent had a student trainee plan under which
trainees receive a beginning hourly rate of $1.36 with a
raise to $1.60 after 3 months of satisfactory performance.
Templeton spoke up at that point and said he had been
working some 4 or 5 months and had not received a raise.
Spies responded that Templeton should have received a
raise. Spies then told the employees that "if the union came
in, we'd be making less money because of the union dues
each month." Templeton thereupon stated that $1.36 was
an "unfair" rate and that a friend of his was receiving
higher wages at another local establishment. Spies then
suggested that if anyone was unhappy with his wage, he
could look elsewhere. According to Templeton's and
employee Mark Linderman's credible testimony, Temple-
ton told Spies that he had obtained other employment and
had quit work weekdays for Respondent and that he was
with Respondent weekends only. Templeton, Linderman,
and other witnesses credibly testified contrary to Spies'
testimony, that Templeton did not say he had completely
quit Respondent's employ. Shortly after the meeting,
according to Spies' and Jensen's testimony, Spies informed
Store Manager Jensen that Templeton had quit. This,
according to Jensen, was the only time Spies had ever told
Jensen whom Jensen should or should not hire.
Respondent challenged Templeton's ballot at the Sep-
tember 13 election purportedly on the ground that he was
no longer in Respondent's employ. Jensen posted the
weekly work schedule immediately after the election, and
Templeton's name was not on the list . When Templeton
reported for his regular weekend work the following night,
Jensen told Templeton he had quit. Templeton told Jensen
that he had not quit and was ready to go to work. (Jensen
had, in fact, asked Templeton on Wednesday, the day
before the election, what days Templeton wanted to work
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the upcoming weekend. Templeton said Friday and
Saturday nights and Sunday, and Jensen agreed.) Jensen
was asked to explain why if there had been some confusion
concerning Templeton's having quit, the matter wasn't
resolved when Templeton did show up for work. Jensen's
only explanation was that Spies had said Templeton had
quit and, as indicated earlier, that Jensen took his (Spies)
comment to mean that Templeton was not to be restored to
employment. Spies did not claim that Jensen misinterpret-
ed his no-rehire directive, and Spies also did not explain
why he gave such instruction to Jensen.
Respondent urges that Templeton indicated on four
separate occasions that he intended to, and then did, quit
his employment. The first occasion, according to Respon-
dent, was the time 3 weeks before the election, that
Templeton gave a 2 weeks' notice of quitting to Barth. The
second incident mentioned by Respondent was the
occasion of Jensen's return from holiday when Jensen
dissuaded Templeton from quitting and arranged for
Templeton to remain on a weekend basis. The third
incident was the September 10 meeting on which occasion
Respondent claims Templeton told Spies he had quit. The
fourth occasion was a purported report to another
employer "in early September" that he had quit his
employment with Respondent.
Respondent adduced the testimony of Mrs. Mary Ward
to support its contention respecting the aforementioned
fourth occasion. Mrs. Ward is vice president of Snappy
Delivery, Inc., another local concern. Templeton had
worked occasionally for Snappy Delivery during the
summer on days he was not working for Respondent.
School resumed in late August, and Mrs. Ward testified
that Templeton inquired of her son early in September
concerning the availability of weekday (not weekend)
employment with Snappy Delivery, and Mrs. Ward
recalled Templeton's explanation that Respondent's late
hours on weekdays would interfere with his studies at
school. Mrs. Ward testified that she and her son advised
Templeton not to leave Respondent and that Templeton
said he had already quit. Templeton testified that he did
speak with Mrs. Ward and son concerning weekday
employment, but he denied having said he had quit
Respondent's employ entirely. Even if Mrs. Ward was of
the opinion that Templeton said he had quit Respondent
entirely, rather than weekdays only, the fact is that
Templeton had quit working for Respondent on weekdays,
and it was only weekday employment that he was inquiring
about at Snappy Delivery. Templeton did work for Snappy
Delivery the weekend immediately following the election
but that was after Jensen told him on Friday that he was
no longer employed by Respondent.)
use the word "quit" in his remarks to Spies concerning
weekday employment. Even if Spies did believe Templeton
had quit, Spies did not explain why he, in effect, instructed
Jensen not to rehire Templeton and it is this instruction
that, in fact, brought about the termination. Were it not for
such instruction, Jensen obviously would have permitted
Templeton to work once Templeton explained that he,
Templeton, had not quit-for only 3 weeks earlier Jensen
had asked Templeton not to leave Respondent's employ
and arranged to have Templeton continue working on
weekends and on the day before the election Jensen had
agreed with Templeton concerning Templeton's work
schedule that weekend. If Spies, on the other hand, did not
believe Templeton had quit, then the "quit" explanation
was concocted out of whole cloth for the purpose of getting
rid of Templeton.
It appears, therefore, that Spies desired to be rid of
Templeton under both alternatives and he gave Jensen the
appropriate implementing instruction. What motivated
Spies' instruction? So far as this record establishes, the
explanation is to be found in the events of the preelection
meeting conducted by Spies. Spies sought at that meeting
to persuade employees that it was not in their interest to
support the Union in the upcoming election. Templeton
,openly declared his disagreement with Spies at the meeting,
and I can only conclude that Spies was motivated to sever
and that he terminated Templeton's employment because
of the prounion character of Templeton's remarks. Res-
pondent has thereby violated Section 8(axl) and (3) of the
Act. On the basis of Jensen's and Spies' other conduct
recited above, I also find that Respondent has further
violated Section 8(a)(l) of the Act by coercively interrogat-
ing employees concerning union matters and by threaten-
ing economic reprisal for union considerations.
CONCLUSIONS OF LAW
1. Respondent is an employer within Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within Section
2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) by
discharging Donald Templeton and has further violated
Section 8(a)(1) by coercively interrogating employees
concerning union matters and by threatening to curtail or
eliminate certain job classifications for union reasons.
4. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
5. Objections I and 4 are established in Case
18-RC-9618 and such conduct warrants setting aside the
election of September 13, 1973.
Conclusions
Although I have found that Templeton had not quit on
or about September 10 and that he did not tell Spies at the
September 10 meeting that he had severed his employment
with Respondent, it is possible that Spies might have
believed Templeton had said so, because Templeton did
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action, including
reinstating and making whole Donald Templeton, in order
to effectuate the policies of the Act. All backpay
computations shall be in accordance with F. W. Woolworth
I Although Templeton could apparently always have weekend employ- employment with Respondent because Respondent was open on Sunday
ment with Snappy Delivery, he testified that he preferred weekend whereas Snappy Delivery was not.
SPIES SUPER MARKET OF PIERRE 769
Co., 90 NLRB 298, and Isis Plumbing & Heating Co., 138
NLRB 716.
I shall also recommend in the representation case that
Templeton's ballot be opened and counted, and that the
Union be certified if a revised tally shows the Union to
have won the election. If the revised tally shows otherwise,
it will be recommended that the election be set aside and a
second election conducted.
Upon the foregoing findings, conclusions, and the entire
record and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER2
The Discount Corporation , d/b/a Spies Super Market of
Pierre , Inc., Pierre , South Dakota , its officers , agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with elimination or curtail-
ment of certain job classifications for union reasons.
(b) Coercively interrogating employees concerning union
or organizational matters.
(c) Discharging or otherwise discriminating against
employees for activities or sympathies for Retail Clerks
Local 1665, Retail Clerks International Association,
AFL-CIO, or any other union.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Donald Templeton reinstatement to his
former job or, if this job no longer exists , to a substantially
equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole, as set
forth in "The Remedy" section above , for any loss of
earnings suffered as a result of the discrimination against
him.
(b) 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 and the
right of reinstatement under the terms of this Order.
(c) Post at its store in Pierre , South Dakota, copies of the
attached notice marked "Appendix."3 Copies of said
notice , on forms provided by the Regional Director for
Region 18 , after being duly signed by Respondent , shall be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(d) Notify the Regional Director for Region 18, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that Templeton 's ballot be
opened and counted and that the Union be certified if a
revised tally shows the Union to have won the election.
Otherwise , it is recommended that the September 13, 1973,
election be set aside and a new election conducted.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
3 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL reinstate Donald Templeton and make him
whole for earnings lost since his discharge.
WE WILL NOT threaten to terminate or curtail any
job classifications for union reasons.
WE WILL NOT interrogate employees concerning
union matters or Board elections.
WE WILL NOT discharge or discriminate against
employees in any other way to discourage or in reprisal
for union activities or sympathies.
Our employees are free to join or assist Retail Clerks
Local 1665, Retail Clerks International Association,
AFL-CIO, or any other union.
THE DISCOUNT
CORPORATION D/B/A SPIES
SUPER MARKET OF PIERRE,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 316
Federal Building, 110 South 4th Street, Minneapolis,
Minnesota 55401, Telephone 612-725-2611.