Valley Markets, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1971

192 N.L.R.B. 125 (N.L.R.B. 1971)

VALLEY MARKETS, INC.
Valley Markets, Inc. and General Drivers and Ware-
house Employees, Local Union No. 581, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
18-CA-2909
July 20, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On, November 13; 1970, Trial Examiner Phil
Saunders issued' his Decision in the above-entitled
proceeding, 'finding that the Respondent had engaged
in and was engaging 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. He also found
that Respondent had not engaged in certain other
unfair 'labor practices alleged in the complaint and
recommended that 'these - allegations be dismissed.
Thereafter, the General Counsel filed exceptions and
a supporting brief and`the Respondent filed its answer
to the General Counsel's exceptions 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
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 and briefs, the
motion, and the entire-record in the case, and hereby
adopts ' the findings, conclusions, and recommenda-
tions 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 asits Order the Recommend-
ed-Order of the Trial Examiner and hereby orders that
the Respondent, Valley Markets, Inc., Grand Forks,
North Dakota, -its, officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.2
MEMBER JENKINS,'dissenting:
I would find that Martha Kraemer's union activities
were a significant factor in Respondent's decision to
t In adopting the recommendation of the Trial Examiner dismissing the
allegation of `the complaint that Respondent discriminatorily discharged
Martha Kraemer, we-do so on the ground that the General Counsel has
failed to meet the burden imposed upon him of establishing this allegation
192 NLRB No. 23
125
discharge her on January 13, 1970, and thereby
discriminated against her in violation of Section
8(a)(3) and (1) of the Act.
Martha Kraemer was one of the Kraemer family
whose brother Fred was an assistant business agent
for a Laborer's local and a, part-time helper' for the
Teamsters. Fred's wife, Patricia Kraemer, Martha's
sister-in-law, was employed in Respondent's store No.
2, down the street from store No. 3 where Martha
worked as a checker.
As more fully appears in the Trial Examiner's
Decision, the Union made its appearance in store No.
2 in the fall of 1970 when employees Weaver and
Block, at store No. 2, asked Patricia Kraemer to have
her husband arrange a meeting with representatives of
the Teamsters. Such a meeting was held on November
25 at the home of Fred Kraemer. It was attended by
the above named employees and a-few others. Martha
Kraemer was the sole employee present from store
No. 3. It was decided at this gathering to hold an
organizational meeting after the first of the year at
which membership application cards would. be dis-
tributed. This meeting took place on January 13 at the
Teamsters hall.
Following the meeting at the Kraemer home,
Martha Kraemer talked to half or more of her fellow
employees at store No. 3 about the Union, and later,
during the first 2 weeks in January, solicited their
attendance, at the meeting on the evening of Tuesday,
January 13. During the days immediately preceding
and following this meeting Respondent's supervisors,
as the Trial Examiner found, engaged in -numerous
activities in violation of the Act with the intention of
thwarting the organization of its employees. Thus, on
Monday, January 12, the day before the union
meeting and the day prior to Kraemer's discharge,
Restad, manager of store No, 2, together with Lloyd
Corbit, assistant manager of store No. 3, asked
Weaver and Block what they had .heard about the
Union; on the same day Hugo Magnuson, Respon-
dent's, secretary-treasurer who had his office at store
No. 3 and who was Kraemer's immediate supervisor,
asked employee, Marek if "anyone in particular" had
broached the subject to her. On January 15, Magnu-
son, asked Block- if anyone had approached him
concerning the Union. Restad told Weaver that the
employees would lose hours of work if the Union
came in; at the same time he asked employee Server if
she,was for or against the Union and told her that he
had information from Magnuson that if the Union
succeeded in organizing the employees Respondent
would-sell the business.
by a preponderance of the credible evidence.
2 In footnote 10 of the Trial Examiner's Decision, substitute "20" for
"10" days.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner bases his dismissal of the
complaint as to -.Kraemer largely on the ground that
Respondent "had no specific, prior knowledge"
(TXD, Sec. III, • last par.); or "actual or direct
knowledge" (ri(b)-of her individual union activities.
The contention of the General Counsel is' that
knowledge of Martha K raemer's union activities need
not be direct, butmay"be reasonably inferred from the
above , conversations and that, in any event, Respon-
dent knew her to be one ofthe Kraemer family whose
brother and sister-in-law were known to be strong
union supporters, and that Respondent's decision to
discharge her was influenced by the family relation-
ship. Moreover, asthe Trial Examiner'found, Respon-
dent encouraged employees to engage in surveillance
of the dnion' activities of employees. Notably, employ-
ee- Robert Belim, -a personal friend and associate of
Restad, testified that as early- as January I Restad
asked him if there had yet been a union meeting and
told him to -"keep ` (your) eyes and ears open -for,
union activity." During' the next 2 or 3 weeks Behm
had 8 or 10 conversations with Restad `in `which the
two men- "exchanged information concerning the
progress of the Union's organizing drive. In these
conversations Restad asked Behm who was for and
who against the Union. : ' `
On January 12, the day before-the union organiza-
tionmeeting , Fred Kraemer came to store No. 2, as he
did at various times, and while there invited Behnt to
the meeting the, next night. Weaver testified that he
overheard a part of this conversation and that shortly
thereafter, in the coffeeroom,-he overheardBehm tell
Restad'that Fr_edKraemer had justinvited him to the
meeting . The Trial Examiner, though he does not
discredit Weaver's testimony, - at , the 'same time
seemingly does not, accept, it, stating only that it was
not- confirmed by Restad or mentioned by . •Behm.
Restad',was • not, called -as a witness.- Behr, was
questioned as to his conversation with . Kraemer,
which he admitted having, but was not asked if he
reported it to Restad. The Trial Examiner credited the
testimony of Weaver on all other matters, and I see no
reason for not crediting his-uncontradicted testimony
that `he .heard Behm inform t Restad of the union
meeting . That Respondent did know- about .the
meeting; is demonstrated by Behm's further uncon-
tradicted testimony to a conversation between him
and Restad on the morning after the meeting when
Behm was punching in. Restad, who was standing at
the,timeclock, asked Behm if he-had heard what took
place at the meeting.
Clearly, it is, a resonable inference, and one which_ I
draw, contrary to the Trial Examiner, that Respon-
dent believed, prior to discharging her, that Martha
Kraemer, like the,other Kr'aemers, was active in the
Union's organization of Respondent's business.. This
inference is strengthened by a conversation, between
Magnuson and Patricia Kraemer,, following Martha's
discharge, hereafter related.
The Discharge
Martha Kraemer came to work in the fall of 1969. In
November 1969, probably prior, to the meeting on the
25th at Fred Kraemer's home, Magnuson, on Corbit's
demand, called- Martha to his office and-criticized her
work in various particulars, as is fully set forth in,the
Trial Examiner's Decision, attributing her` shortcom-
ings in part to her working Friday, and Saturday
nights at a tavern. When Kraemer told, him, that she
had already quit her night job, Magnuson, decided
only to reprimand her.-From this time forth, her work,
so far as this record reveals, was not again criticized:
On the contrary, Magnuson testified thatit improved
over the "following- few weeks; -. and' Patricia, Kraemer
testified without - contradiction ' t h a t ` about" a week
before Martha was discharged,, `'while ',Patricia was
having a cup of. coffee with Corbit and Restad, the
two assistant store, managers, discussed. ,;the general
inefficiency of the checkers m store No. 3 and Corbit
stated that, while previously Martha had,been coming
to_'work "real tired and worn out," she now,-seemed
"full of energy and pep,"and "seemed to' be doing` a
lot better."
During the early afternoon of'Saturday, January 10,
1970, Corbit observed Kraemer close the bar to the
aisle' leading to her cash register, apparently _ to get
change, and directed three customers' waiting in s line
to an adjacent checker. Corbit went to the cash
register, raised-the bar, and apologized to t e'three in
line for the closing, of the aisle' He did not speak` to
Kraemer nor she ' to him.` Kraemer continued" her
checking the remainder of the day,. and "during the
following Monday and Tuesday.
Later - on . Saturday, Corbit` reported the incident to
Magnuson and demanded that he discharge Kraemer.
According to Magnuson, he thought the' matter'ove'r
and decided that night,,to do so. He did not, however,
communicate any such decision either to Corbit or
Kraemer, until Tuesday- evening at the, end of
Kraemer's shift, after she_hadworked, 2 whole days,
and, after Respondent had became .apprised _of_ the
union -meeting the night before. He- gave, as a reason
for his delay, while testifying, that on Monday, ,as
mayor of the town, he,,,was,, occupied with municipal
duties, although he visited storeNo. 3 to supply it with
money for the cash registers.
Corbit testified that he, looked- for-Magnuson on
Monday because he was "very much Qupset" about
Kraemer and demanded, a decision ,of "what
[Magnuson] was going to do." On Tuesday, Magnu-
son put in-a full day on the job, among'other things,
meeting in the morning with his- store supervisors,
VALLEY MARKETS, INC. 127
including ,Corbit,_ at store No. 2, after which he and
Corbit had coffee and chatted a while, returning then
to store No. 3. I consider it noteworthy that neither
Magnuson-nor Corbit on this occasion, or at any time
during the day, brought up the subject of Kraemer in
spite of Corbit's professed determination to get an
immediate decision from Magnuson to discharge her.
I considerit improbable that if Magnuson had made
up his mind the previous Saturday night to discharge
Kraemer, he could not have found some way of
communicating his decision either to Kraemer or
Corbitbefore Tuesday evening.
At `5' o'clock Tuesday evening, at the end of
Kraemer's shift, he called her to the office and
discharged her, When she asked the reason he told her
that he was reorganizing his business. He admitted
while testifying that this was untrue, but that he
wished to spare her, feelings. This was in sharp
contrast with the assorted and specific reasons given
her 6 weeks previously when Magnuson, according to
his testimony,-had started to discharge her, changing
his mind when"it appeared she had discontinued her
night work." We see no reason to believe that
Kraemefs sensitivity was greater on January 13 than
itwas on November 25.
Ignored by the Trial Examiner in his decision is the
undisputed testimony of Patricia Kraemer that on
January 15, 2-days after-Martha Kraemer's discharge,
and a.payday,-when; Magnuson handed out paychecks
to employeeslhe asked them what grievances they had,
going-on to say that there was-no place in his stores for
a union. When he handed Patricia her paycheck, he
called her attention-to the fact that it reflected a raise
of 20 cents an hour. He volunteered that the raise was
"not a- bribe," 3' and asked her if she was satisfied with
her job. Before 'she could answer, "shaking and
pointing his finger,at me," he warned her that there
was no room in his business for a union. He then
asked, if ,she :had seen Martha Kraemer. When she. did
not reply, hessaid, "Well, it was a case where we had to
fire her."- When she still remained silent, Magnuson
Concluded-by warning that if Martha brought charges
against Respondent, Respondent would "make it
i oiigh on her.' As'the General Counsel points out in
his brief, Magnuson, in this revealing conversation,
managed to sandwich strictures against the Union's
organization, of Respondent's business between an
award of a benefit to Patricia Kraemer on the one
hand, and- a threat- of reprisal against Martha
Kraemer on the-,other,-,thus relating each to the other.
His , remarks concerning Kraemer seems to me
additionally,persuasive that Respondent knew of her
union activity, and his realization that Respondent
was vulnerable to a charge of unfair labor practices.
Finally, f do not give the weight the Trial Examiner
does to the fact that at store No. 2 Respondent did not_
discharge Patricia Kraemer, Weaver, or Block who
were also active in the Union. Regardless of the
progress of the Union at store No. 2, where most of
the employees were union supporters, the discharge of
the Union's most active supporter at store No. 3,
where only a part of the employees were interested,
might well insulate that store from union organiza-
tion.
For these reasons I would find that by discharging
Martha Kraemer on January 13, 1970, Respondent
discriminated against her because of her union
activities, in violation of Section 8(a)(3) and (1) of the
Act.
3 There is no evidence known of a general pay raise at this time,,
although Block , one of the earliest proponents of the Union , received one. '
TRIAL EXAMINER'S DECISION
STATEMENT OF TIM CASE
Plat. SAUNDERS, Trial Examiner: On January 16, 1970,'
General Drivers and Warehouse Employees, Local Union
No. 581, International' Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union, filed a charge alleging that Valley
Markets, Inc., hereafter called the Respondent, Company,
or Valley Markets, had violated Section 8(a)(1) and (3)'of
the Act. The charge was subsequently amended on June 24.
Pursuant to the original and amended charge a complaint
was issued on June 26. The Respondent's answer denied the
supervisory status of one individual and the unfair labor
practices alleged in the complaint. At, the trial parties were
afforded full opportunity to introduce relevant evidence, to
examine -and cross-examine witnesses, to argue orally on,
the record, and to submit briefs. Both the General Counsel
and the Company filed briefs.
Upon the entire record in the case and from my
observation of the witnesses, I hereby make the following: 2
FINDINGs OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a North Dakota corporation having its
principal office and places of business at Grand Forks,
North Dakota, where it is engaged in the retail grocery
business. During the past calendar year, which period is
representative of its operations at all times material hereto,
Respondent had gross sales in excess of $4 million and
purchased goods from points directly outside the State of
North Dakota which were valued in excess of $50,000.
By virtue of its operations as described above, Respon-
dent is now, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
i All dates are 1970 unless specifically stated otherwise.
2 All credibility resolutions made herein based on a composite
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
Valley Markets 'is engaged in the retail `sale of groceries
from its three Grand Forks stores, which operate under the
"Piggly Wiggly" trade name. The three stores comprising
Valley Markets are sometimes referred to as store No. 1,
store No. 2, and store No. 3. Essentially all the events
connected with this proceeding occurred at or related to
stores Nos. 2 and 3.
In late October ' 1969, employees Ronald Weaver and
Richard Block contacted Patricia Kraemer and mentioned
to her .their interest in attempting to set up a union meeting.
These two employees were aware that Patricia Kraemer's
husband, Fred Kraemer, had some prior or present
contacts with at least one of the unions in the vicinity of
Grand Forks.3 After being so contacted, Patricia Kraemer
then spoke to her husband, and aftercontinued interest was
again displayed in November 1969, Fred Kraemer
contacted the Union's business representative, Arvin
Kvasager, and a meeting was set up for November 25, 1969.
This meeting was held -in Fred Kraemer's, home and
Kvasager spoke to the group of employees all of whom
were from store No. 2 with the exception of Martha
Kraemer from store No. 3. At this organizational meeting
Kvasager went into organizing procedures, employees'
rights,, and agreements which the Union had at other stores.
Some cards were signed at this first meeting, and others
distributed. Fred Kraemer made reference in his testimony,
to a certain committee that supposedly was setup right after
their first meeting. for the purpose of getting cards signed
and stated that Weaver, Block, Martha and Patricia
Kraemer, and, one, other person were on this committee.
However, there is no evidence from any other witness to
show such a committee existed, and no evidence from
anyone to show, that this committee ever acted to carry out
its function.
Following the November organizational meeting, Martha
Kraemer returned to store No. 3 and spoke with employees
in this store in an effort to interest them in the Union. She
recalled one occasion while speaking with another employ-
ee concerning the Union when Supervisor Lloyd Corbit
walked through the coffeeroom and stared at her in an
unusual manner . She also talked or reported to Fred
Kraemer quite often. A second, union meeting ,as
scheduled for January 13, and' when Martha Kraemer
learned of 1 this meeting she contacted employees and
attempted to secure their interest in attending the same.
The complaint alleges that Amos Restad is a supervisor
within the meaning of the Act and the Respondent's answer
denied this status but the 'Company did not seriously
dispute'Restad's supervisory capacity at the trial before me.
This record, shows that Restad is the „assistant store
manager at store No. 2 and in performance of his duties
makes assignments of work, directs and assigns overtime,
8 Fred Kraemer is a senior law student at the University of North
Dakota in Grand Forks, and currently is the assistant business agent for
Laborers Local 580, and also has worked for sometime as a part-time
helper for the Teamsters. Patricia Kraemer is the Respondent's head
prepares and implements the weekly work schedules, if and
when necessary makes corrections on employee timecards,
and on, occasions decides, if employees can have time off
from their work. I find that Amos Restad is a supervisor
within the meaning of the Act.
It is alleged that at various times in Januarys there were
certain instances of illegal interrogations, threats, and,
surveillance on the part of management, The ^ credited
evidence in this respect reveals the following: On or about
January 12, Supervisor Amos Restad„ and Lloyd Corbin
asked employees. Ronald Weaver and Richard Block if they,
had heard any talk or rumors about the Union and inquired
as to the type of rumors they had heard; during the middle
of. January, Hugo Magnuson, the Respondent's secretary
and- treasurer, inquired of Ronald Weaver if he had been
approached by the Union; on or about January; l6, Restad
told Weaver that the store would lose money and hours by
going ' union-Weaver testified that on this occasion
Supervisor Restad was referring to a union contract°with
the Piggly Wiggly store in Fargo;,on,orabout,January 1,
Restad asked employee Rober Behm- if he knew whether
there, had been .a union ,meeting, and told him to keep his
eyes and ears open; on January 15, Hugo Magnuson Asked
Richard Block if he had heard any talk about the Union
and,if anyone had approached him about the Union; ,on or
about January 16, Restad told Block that if the Union came
in his time would be cut,to 40 hours and as a result he
would lose -money; on or about January 13, Hugo
Magnuson asked Marie Marek if she knew anything about
the Union and inquired if anyone in particular had
approached her; and on or about January 17, Restad, asked
employee ' Martha Server. what she thought, about the'
Union, inquired, if, she was for or against the Union, and
then told Server he had information from Hugo Magnuson
that if, the Union were successful ,in organizing the
Company would, sell out, and also told her that upon
unionization certain employees would lose money because
they could not then work so many hours.
The foregoing conduct and statements attributed to , the
Respondent are not instances of objective inquiry asto the
propriety of recognizing a labor'organization, and neither
do they amount to=the exercise of free speech under Section
8(e) of the Act. Rather they include attempts to-inquire into
desires of employees by asking them if they 'were for or
against the Union, what, they thought of the ,Union, had
anyone approached them, further interrogations on various
occasions about possible rumors and ,,activities . of the
Union, threatening employees with loss of hours or
earnings and the closing of the business or selling out if the
Union organized, and _encouraging employees to engage in
surveillance of union ' activities. The above constitute
violations of Section 8(aXl) of the Act I so find.
Amos Restad did not testify in the trial before me, and
therefore all statements attributed to him stand undenied
and, in fact, the Company openly, admits- the 8(aX1)
statements attributed to management by witnesses 'for the
General Counsel.
bookkeeper at store No. 2, and the only alleged 8(aX3) in this proceeding,
Martha .Kraemer, is a sister to' Fred Kraemer and worked in store No. 3
prior to her discharge on January 13.
VALLEY MARKETS, INC. 129
Throughout his brief, the General Counsel points to
background incidents and testimony reflected in this
record, and whereby it is argued that the Company
evidenced continual hostility and that such overall factors
must also bear on the discharge here in question.
Specifically, the General Counsel points to a situation on
January 15, when Magnuson himself handed out some of
the paychecks, and while doing so asked certain employees
if they had any grievances and if they were satisfied
working at the store. He then went on to tell these
employees that in his small business there was no room for
a union as there might be in a larger operation. At a
meeting of -Employees on January 17, Hugo Magnuson
according to the testimony of Patricia Kraemer told those
assembled the following: "Hugo mentioned that he thought
everyone had heard of the union rumors about his store
going union , and he also said that it was a
federally-protected activity and we had the freedom to
talk about the Union in the store so long as it didn't
interfere with the customers. And then he went on to say
that in his small business that there was no room for a
union and that in a larger concern maybe a union would be
very helpful. And " then he showed us this authorization
card, read it to us ," and said `I suppose a few of you people
have already signed a card like this.' And then he went on
to say that we could not sign this authorization card on
company time, or coffee breaks, don't sign it on store time
at all." -
By the way of additional background, this time presented
by the Respondent, it was shown that in the past Hugo
Magnuson, as mayor of Grand Forks, has appointed union
representatives to governmental bodies and-had also paid
for advertising in union publications. The General Counsel
points out that Arvin Kvasage, the °Charging Party herein,
had not been reappointed by Magnuson to the housing
authority when his term expired in July. However,
Kvasager's testimony did not indicate whether or not he
wanted or would accept a second appointment.
The crux of this case is whether or not the Respondent
discriminatorily discharged Martha Kraemer. The Compa-
ny maintains they experienced some difficulty with
Kraemer in the performance of her work due to'her attitude
or conduct, attendance, tardiness, till 'inaccuracies, lan-
guage, and her part-time employment elsewhere.
Martha Kraemer was first employed by the Respondent
in August or September of 1968 as a checker in store No. 3.
At the-time she was hired, Hugo Magnuson called Martha's
sister in law, Patricia Kraemer, at store No. 2 asking what
kind of an employee she would make, and Pat Kraemer
recommended Martha for employment. Because of some
prior difficulties, as reflected in this record, meat market
manager and assistant manager of store No. 3, Lloyd
Corbit, objected to her employment. But nevertheless, she
was hired and shortly after entering the Respondent's
employ-was transferred to the office as the third girl, but a
few months thereafter was transferred back to the position
of checking 4 at which she remained until her discharge on
January 13.
/' Martha Kraemer testified and admitted that in Novem-
ber 1969, Hugo Magnuson talked to her concerning her
work. On this occasion they went to the produce room of
the store where Garfield Bosnian and Corbit were also
present. Magnuson told I; rraemer, among other complaints,
that they knew she had a part-time job and it was affecting
her work because she was getting too tired. Magnuson also
told her he could not have an employee of his working in a
place like where she was working; namely, a bar in Ardoch,
North Dakota. Magnuson then told Martha Kraemer that
she would have to quit working in the bar or it would result
in her discharge. At some point in this conversation she
began to cry and told Magnuson she needed the money and
would have to work more hours. Magnuson finally decided
to keep her on and she was then given more hours of work
on Saturdays.
Magnuson stated that Kraemer's work improved for a
few weeks following this November meeting with her.
Patricia Kraemer testified that, approximately a week
before Martha was discharged she was present in the coffee
room of store No. 2 with Lloyd Corbit and Amos Restad,
and on this occasion Corbit was talking about how bad the
checkers were at store No. 3 and then stated that Martha
Kraemer had been coming to work real tired and worn out,
but that lately she had been full of energy and seemed to be
doing a lot better. Patricia Kraemer then^said she was glad
to hear this because Martha was her sister-in-law.
Lloyd Corbit testified that on Saturday, January 10, he
observed Kraemer temporarily close her checkout stall
while customers were in line so she could get more change
for her till even though she had been told todo this during
the slack times. Corbit also stated that around noon on this
same day, he noticed Kraemer close the bar to her checkout
stall or counter while customers were still'in line, and she
then informed the customers they would have to go to
another checkout stand. Corbit immediately went over, to
Kraemer's stand, lifted the bar up, and apologized to The
customers waiting in line. Corbit explained that you always
keep the checkout counter open until all customers are
through checking out. Corbit went on to testify ,that this
incident made him extremely angry, and later in the day he
contacted Magnuson and told him, "God damn it, Hugo,
this has" got to be it," and he then related the circumstances
surrounding the events of that morning and urged
Magnuson to discharge Martha Kraemer.
Hugo Magnuson stated that it was clear to him that
Corbit was very upset, and on that Saturday night he
reached the conclusion to terminate her after the complaint
and conversation with Corbit. Since the store is not open on
Sunday, Magnuson had decided to discharge Kraemer the
following Monday, but due to city functions as mayor and
other matters in Alexanderia, Minnesota, he Was unable to
terminate Kraemer until the following day, Tuesday.
At the end of the working day on January 13, Magnuson
told Martha Kraemer that he was reorganizing the stores
and he felt she would be happier elsewhere. He had her
check prepared, plus 2 weeks severance pay. Kraemer
asked Magnuson why she was being terminated and was
again informed that it was because they were reorganizing
the stores. Kraemer asked if he would give her a good
4 Respondent's witnesses testified that Martha Kraemer was made the designated had to be at their checkout station at all times.
number one checker at this time, and which meant that the person so
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendation, and he replied that he would. Magnuson
,stated that whenever it is necessary to discharge employees
he always tell them the same thing-reorganizing the store
and not being happy together-to make it as easy as
possible, and the 'specific reason or reasons for the
discharge have already been gone into, with Kraemer in the
meeting with her in November, as aforementioned.
It is the position of General Counsel that Martha
Kraemer was the initial "spear carrier" for the Union in
store No. 3 as she was the only one from this store who
attended the first organizational meeting. The General
Counsel also mentions the family relationships involved
between Fred, Patricia, and Martha Kraemer, and argues
that the Respondent's hostility to the Union was vented in
the very week that Martha Kraemer was discharged. In his
conclusions the General Counsel summarizes as follows:
Counsellor the General Counsel contends the record
herein fails to disclose a credible defense to the
discharge of Martha Kraemer. Because the Respondent
offered various pretexts to explain the reason for her
discharge and in view of her involvement with the
organizing campaign, the Respondent's knowledge of
her and her family's connection with the campaign, the
extreme hostility of the Respondent to the unionization
of its stores, the timing -of her discharge and Corbit's
statement a week prior to the discharge, the Trial
Examiner can and should infer that the real reason for
Martha Kraemer's discharge was her involvement and
connection with the union organizing campaign."
In efforts to establish company knowledge of Martha
Kraemer's union activities prior to her discharge, the
General Counsel relies to some extent on certain 8(a)(1)
conduct by the Company previously set forth and found
violative, herein. However, in these respects it must be
pointed out and noted that such interrogations and conduct
in no way disclosed Kraemer's identity with the Union. The
General Counsel also mentions an incident wherein Fred
Kraemer came into store No. 2 on January 12 and invited
Robert, Behm to_the union meeting scheduled for January
13. Ronald Weaver testified he heard some of this
conversation and shortly thereafter went into the coffee-
room where he then overheard Behm telling Supervisor
Amos Restad that Fred Kraemer had just invited him to the
union meeting. There is no confirmation of the above by
Restad as he .did not testify at the hearing, and the "other
witness for the General Counsel best suited to state whether
he informed Restad that Fred Kraemer had invited him to
the union meeting would be, of course, Behm himself.
However, Behm gave no such testimony but merely stated
that Kraemer had invited him to the meeting, and Behm
did not testify that he then passed on this information to
Restad. -
The second incident relied on by the General Counsel to
establish company knowledge is Martha Kraemer's testi-
mony that Lloyd Corbit walked in the coffeeroom
unexpectedly while she was conversing with another
employee about the Union. Martha admitted that Corbit
did not stop nor did he say anything, but testified his facial
expression showed disapproval. Corbit denied that this
incident happened, and Martha also admitted that she
never spoke about the Union directly in front of
management . She further stated that at the ' time Corbit
walked by he was 3 or 4 feet from her and, in fact , she had
stopped talking . From my observation of'Martha Kraemer
and listening to her as a witness , it was readily noticeable
she has an extremely soft voice , and even if this incident
and conversation happened I would have considerable
doubts if anyone just walking by could have , accidentally
overheard what she was saying even if she had continued
talking . There is absolutely no foundation for any
assumptions that the Company gained union knowledge at
the time when Martha Kraemer was contacting employees
in an effort to get them to attend the second union meeting
on January 13. She even admitted on ,cross -examination
that no one from management was around on these
occasions . The total or exact extent of Martha -Kraemer's
union activities cannot be fully determined by, this record,
but it appears she mainly attended the first union meeting
and then tried to get fellow employees at , store No., 3
interested in the Union and attend the second meeting. No
one ever gave Martha any union authorization , cards, to
have signed and this fact is also admitted in her testimony.
This record is , also completely devoid of 'any serious
contention or testimony to the effect that the Company had
any knowledge whatsoever that Martha Kraemer was.the
only employee from store No. 3 at ,the initial meeting,of the
Union in November.
In the final analysis of this stage of the case , there is no
reliable or credited testimony that the Company had, any
actual or direct knowledge of Martha Kraemer's; activity
for the Union prior to her termination.
Against a solid array of substantial credible testimonial
evidence supporting Respondent's contention that Martha
Kraemer was terminated for cause as indicated previously
herein, there is a dearth of evidenceto support the theory of
General Counsel-who, of course carries the burden,,of
proof here-that Kraemer was dismissed because, of her
union membership , sympathy, or activities, or to discourage
union, membership . It is of course obvious that mere union
membership and activities do not -insulate an employee
from discharge for other reasons.
Union membership and activities is not a shield behind
which a discharged employee can take .refugeand claim
discrimination. The burden remains upon .the
General Counsel to prove that the reason for the
discharge was the employer's anti -union hostility.^An
employer is not obliged to treat a union member
differently or with , greater deference- than,.4ny of his
other employees . Poor performance, misconduct, and
insubordination , for example, do, not have to, , be
tolerated merely because the offenders are among the
plant's most active union supporters . An- employer's
stated , oppostion to unionization is, not in itself
,sufficient evidence to sustain a finding that;an employee
was discharged because of discrimination against ,, a
union" [N.L.RB..V. Bangor Plastics, ,Inc.,,392 F .2d 772,
777 (C.A. 6).]
This record adequately reflects that Kraemer's conduct
on January 10, when she closed the , bar to her stall or, till
while customers were still in line waiting to be checked out,
angered Corbit to such an extent he urged most strongly to
Magnuson that Kraemer would have ' to be terminated, and
VALLEY MARKETS, INC. 131
a recommendation' to which Hugo Magnuson acceded.
Corbit testified that for-his services he is paid both a salary
and a bonus, .and then--went on to state that the way
Kraemer was working-and treating customers, "she was
taking money out of my pocket because she wasn't doing us
any good, probably losing, customers, not handling them
properly, and tome this istaking money out of my pocket."
Under such circumstances it appears to me that Corbit had
a, very legitimate reason to, be angered when he viewed
Kraemer's shut, down checkout counter on a busy Saturday
morning.
Roth Hugo Magnuson and Lloyd Corbit also gave
testimony indicating prior complaints on Kraemer's, work.
Magnuson stated that he spoke to, her several times,about
her work.5 In" the spring of 1969, Corbit spoke to Kraemer
about coming in late and not filling her money change
makers `and in the late `summer of -1969, he ^ talked to
Kraemer about her language among the younger girls, not
staying at"her till-or]stall, not getting to work on time, and
taking time off when she was suppose to be at work., It
seems to me `this testimony 'by' Magnuson and ^ Corbit of
prior complaints against Kraemer is also'further substanti-
ated by the fact'that iii `November 1969, probably even
before the initial union organizing-meeting, Magnuson was
on the threshold, of terminating Kraemer when he called
her-into'the produce room `of the store, as aforestated., On
this-occasion Magnuson Icompiained to'her about telling
dirty stories to customers; closing her till down, not being
careful enough iii handlingumoney, not being courteous to
customers, working part-time in a bar, and not-having her
heart in the job at the stbie. It seems to me this November
complaint session with Kraemer is most significant in that
it highlighted and pinpointed the numerous difficulties
store'-official`s were having with her and in all probability
before any possible'union activity on the-part of Kraemer.,
Martha Kraemer denied telling -stories or jokes to
customers; but- another checker 'at store' No. 3, Connie
Paulson; gave reliable,testimony that on occasions she had
overheard Martha' telling -dirty stories' to older men.
Regardless of''whether-or not other checkers told stones or
whether - cerfain -'customers may have found Kraemer's
stories somewhat entertaining, is relatively unimportant so
long as -this =particular' type of conduct by Martha' was
deemed offensive and improper` by management.
There `is considerable=testimony in this record bearing on
certain aspects as=to possible deficiencies pointing 'to
Martha Kraemer's till operations,. Store No. 3 has six till&or
cash- registers and there are-generally two full-time checkers
and six part- iine- checkers. Martha always worked on till
number 4. This, record shows that the initial desire for a
union sprung: from some alleged money shortage at one of
the stores and, in these respects,'according to,tlie testimony
by ' Ronald Weaver, he and Richard Block did not like the
manner in ' which -this matter was being' handled by
management . Weaver ,stated„ `There, was suppose to knave
been a-money shortage atthestore and we were all suppose
to take,a,lie detector test, we Were not asked to, but were
5 Hugo Magnuson takes charge''of the office at store No: 3 so he was in
a position to constantlyrobserve Kraemer.
6 The checkers are suppose to refill their change makers during the slow
part of` each 'day, and are not suppose to run out of change when checking
out customers because this requires a trip to the officer
just told to do it, and we did not like the idea of just being
told and there were other such incidents in the store that
occurred." I point out the above to show that any and all
references ,to till operations or money shortages must have
been considered by many as extremely serious, and
evidence that this subject matter was not just brought up
over-night by the Respondent to merely hang or base
discharges on.
The Company produced testimony through Patricia
June, bookkeeper in Store No. 3, to the effect that
occasionally a part-time checker will take over a till which
had not been ' read or totaled out following the operation of
it by a full-time checker, but testified in the case of Martha
Kraemer her till was totaled out before any part-time -help
took over from her, and went on to state that she had
received instructions from Hugo Magnuson to,check out or
read Martha's till at the end of each day. June testified that
most, checkers are usually "pretty close" when,they, are
checked out.
Connie Paulson, also a checker at store No. 3, testified
that after Christmas 1969 Martha's till was "quite abit-off,"
and that Martha was worried as Magnuson "had already
given her , a last chance once before." Paulson further
testified thatfor some time.management had been checking
each till at. 5 p.m. and before any part-time help took over
the tills, because- the tills were not checking out right, and
stated, it was,wabsolutely, mandatory for them-to,read or
check out Martha Kraemer's till upon instructions- from
Magnuson. Paulson related that "once-in-awhile" tills will
check out over or short, but usually within a few dollars.
Magnuson mentioned in his testimony that he often talked
to the checkers about the operations of their tills as it was
important they be accurate. From August 1969 until her
discharge, i `Kraemer was short in her till operations
approximately. 41 days during this period and her largest
amount was,$45.65 in August 1969,,and on January 13, the
day of her -discharge she had a shortage of_$14.65.8 On the
basis of this record, it, is impossible to make a comprehen-
sive comparison on the shortages of Kraemer in relation-
ship with'all the other checkers,.but for purposes here there
is a sufficient showing which, does reveal that management
had an adequate basisfor being concerned with Martha's till
operations and had justification in complaining about her
carelessness in handling money when Magnuson called the
aforementioned November conference with Kraemer.
' Martha Kraemer admitted thatshe was'absent from work
now and, then because of illness but -stated she called in
each time, and also admitted that she had been late-to work
on occasions and that actually her morning reporting time
was changed at the end of 1969, so she could then get to
work at a later time without being tardy. - '
From this record, I am unable to place any emphasis or to
draw any meaningful implications, from the, family
relationships o€1 the Kraemers as -suggested by the General
Counsel. While Martha quite frequently contacted her
brother, Fred Kraemer,'- about the Union, following the
November organizational meeting, she did so by telephone
T The exact day or date of the November 1969 conference with Kraemer
is not given, but the first organizational meeting was not held until
November 25, 1969.
8 See Resp . Exh. 4.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Fred himself was only in store No. 2 on one or two
occasions and there is no proof that he ever was physically
present in store No. 3 where Martha worked . In passing, it
is noted that at the time of the trial before me Patricia
Kraemer was still employed by the Company as the head
bookkeeper, and it appears from this record that Patricia
was probably as interested and as active for the Union as
Martha, and even permitted the Union to use her home for
their first meeting.
In concluding it is further noted in passing that the two
employees who originally instigated the entire movement
for, the possible advent of the, Union were Richard Block
and Ronald Weaver, and they are both still , with the
Company. If by indirect means the Respondent had
acquired any 'knowledge of Martha Kraemer 's union
activities, then it is not too unreasonable to assume that by
similar means the Company, in all probability , would also
have'-gained knowledge of the union activities of Block,
Weaver, and Patricia Kraemer.
There have been some tendencies in the past to
automatically look with considerable skepticism at any
employer who assigns more than one or two reasons for a
discharge. The argument and theory being that in such
situations the employer has actually no defense-and is
merely hoping that one of his many reasons will hold up. In
the instant case the Company has given numerous defenses
for the termination in question, but, unlike some other cases
and circumstances, I have found here a stjficient basis for
each separate defense presented by the Company, and,the
sum total of their reasons adding up to a justifiable
discharge.
In -the final analysis , the Respondent has. shown its
decision to terminate was based on sufficient reasons, and
this record further shows that the Company had no specific
prior knowledge of Martha Kraemer's individual union
activities . I find that it has not been established by
substantial credible evidence ,' as required, that Respondent
discharged Martha because of her union membership,
sympathy, activities, or support, or in order to discourage
union membership . This, the measure and limit of theissue,
here, has simply not been proved.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning, of-Section 8(a)(1) of the Act,
my Recommended-Order will require Respondent to cease
and desist therefrom and to take such affirmative action as
will effectuate the policies of the Act.
As I have found that Respondent did not discriminatorily
discharge Martha Kraemer, , I shall recommend that this
8(aX3)-allegation in- the complaint be dismissed.
Upon - the basis of the above findings of fact and the
entire 'record in this case, I make the following:
CONCLUSION OF LAW
1. Respondent is an employer engaged in commerce
within meaning of Section 2(2),(6), and (7) of the Act.
2. The, Union is- a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating certain of its employees, by
encouraging surveillance, and by threatening them with
closing and loss of certain benefits , Respondent , has
engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(axl).
RECOMMENDED ORDER
Upon the-basis of the above findings of fact, conclusions
of law, and the , entire record in thecase , I recommend that
Respondent its officers, agents, successors, and -assigns,
shall:
1. Cease and desist from:
(a) Threatening employees -with loss- of hours or pay and
selling out the business. -
(b) Interrogating employees ,;to ascertain if they had been'
contacted, if they were for or against the Union, who had
approached them, and what rumors,and activities they had
heardabout or,engaged in.
(c), Encouraging its employees to engage in surveillance.
(d) In any other like or related , manner interfering with,
restraining,or coercing its employees in-the exercise of their
rights to self-organization, to form labor organizations,, to
join or assist the Union named herein, or, any other labor
organization, to bargain -collectively through representa-
tives of their own choosing, and to engage in any, other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from anyor
all such activities.
2. Take the following affirmative , action which, is
necessary to effectuate the policies of the Act:
(a) Post at its three stores in Grand Forks, North, Dakota,
copies of the attached notice marked"Appendix."9-Copies
of said notice , on forms provided by the Regional Director
for - Region 18, shall after being duly, signed by , the
Respondent's authorized representatives, be posted by the
Respondent immediately upon receipt , thereof and main-
tained 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 the Respondent to ,insure that said notices are
not altered,,defaced, or coveredby any other material.
(b) Notify the, Regional Director for Region 18, in
writing, within 20 days- from the date of the receipt of this
Decision, what steps ithas taken to comply herewith.10
I- FURTHER RECOMMEND that the , allegation in the
complaint , that Martha Kraemer was , discharged in
violation of Section 8(aX3) of the Act be dismissed.
s 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, conclusionsand order, and all
objections thereto shall ' be deemed ' waived for all purposes. 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- be changed to read -"Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations. Board." , -
io In the event that this Recommended Order be, adopted by the Board,
this provision shall-be modified to-read : "Notify said Regional Director, in
writing, within 10 days from the-date of this Order, what steps the
Respondent has taken to comply herewith.-
VALLEY MARKETS, INC. 133
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT directly or indirectly threaten employ-
ees with loss of hours or pay, nor will we threaten to sell
out or close the stores because of their union activities.
WE WILL NOT interrogate employees to ascertain if
they'have been contacted by union people.
WE. WILL NOT interrogate employees to ascertain if
they are for or against the Union, who, had spoken to
them, nor will we ask or inquire what union rumors and
activities they have heard about or participated in.
WE WILL NOT encourage our employees to engage in
the surveillance of union meetings and activities.
WE WILT. NOT in any other like or related manner
interfere with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to form
labor organizations, to join or assist General Drivers and
Warehouse Employees, Local Union No. 581, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-'
housemen and Helpers of America, or any other labor
organization to bargain through-representatives of their
own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
VALLEY MARKETS, 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 . Fourth Minneapolis, Minneso-
ta 55401, Telephone 612-725-2611.