Wesselman's Enterprises, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1017 (N.L.R.B. 1980)

WESSELMAN'S ENTERPRISES, INC. 1017
Wesselman's Enterprises, Inc. and Local 99, Amal-
gamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO. Cases 25-CA-9918
and 25-CA-10240
April 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 28, 1979, Administrative Law
Judge Robert A. Gritt issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Wesselman's Enterprises, Inc., Evansville and
Mount Vernon, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I The Administrative Law Judge dismissed various 8(a)(l) allegations
of the complaint. We note that no exceptions were taken to these dismis-
sals. In the absence of exceptions to these findings, we adopt them pro
formna.
Respondent has excepted to the Administrative Law Judge's recom-
mendation that Respondent be required to post the notice to employees
at each of its nine retail grocery stores in the State of Indiana. Since all
of the conduct found unlawful herein occurred in two stores, the Mount
Vernon store in the Southwind Shopping Center and the Weinbach
Center store in Evansville. and since there is no showing that the unfair
labor practices found herein had an impact on the organizational activi-
ties of anyone employed in the other stores. we find that the record
herein is insufficient to justify ordering Respondent to post the notice in
each of its stores throughout Indiana and shall limit the posting require-
ment to the two locations here the unfair labor practices occurred
Read', Inc., 228 NI.RB 1402 (1977).
248 NLRB NO. 129
Delete the first sentence of paragraph 2(c) and
substitute the following:
"(c) Post at its grocery store in the Southwind
Shopping Center in Mount Vernon, Indiana, and
the Weinbach Center grocery store in Evansville,
Indiana, copies of the attached notice marked 'Ap-
pendix."'
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITT, Administrative Law Judge: This
case was heard on November 8, and 9 and December 19,
1978, in Evansville, Indiana, based upon charges filed by
Local 99, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO (herein Amalga-
mated) on May 30 and October 5, 1978, and complaints
issued by the Regional Director for Region 25 of the Na-
tional Labor Relations Board on June 28 and October 26,
1979.1 The complaints alleged that Wesselman's Enter-
prises, Inc. (herein Respondent) violated Section 8(a)(l)
and (3) of the Act by coercively interrogating, threaten-
ing, promising benefits and soliciting grievances of em-
ployees, and by discriminatorily discharging employees
who engaged in union activities. Respondent's timely
answer denied the commission of any unfair labor prac-
tices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. Briefs were submit-
ted by General Counsel and Respondent and were duly
considered. 2
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand, and upon substantive, reliable evidence con-
sidered along with the consistency and inherent probabil-
ity of testimony, I make the following:
FINDINGS OF FACT
1. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that Wesselman's Enterprises, Inc., is an Indiana corpora-
tion engaged in the retail sales of groceries and related
products in the State of Indiana. Jurisdiction is not in
issue. Wesselman's Enterprises, Inc., in the past 12
months, in the course and conduct of its business oper-
ations, purchased and received at its various facilities in
Indiana goods and materials valued in excess of $50,000
i All dates herein are in 1978 unless otherwise specified.
2 General Counsel on February 14, 1979, submitted a motion for the
introduction of evidence and proposed stipulation of facts including pro-
posed G.C. Exhs. 6-12 Respondent filed an opposition to General Coun-
sel's motion on February 23, 1979. On April 12, 1979. General Counsel
withdrew her motion of February 14, 1979, and offered a motion for the
admission of evidence, stipulation of facts and motion to close the record
joined in by all parties. By Order dated October 25. 1979, I received the
motion with attachments as G.C. Exh. 6, numbering 10 pages. and grant-
ed the motion to close the hearing The Order also set a due date for
additional briefs on the wage increase allegation. Only Respondent filed
an additional brief which was duly considered
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directly from points located outside the State of Indiana.
During this same period of time Respondent made sales
of its products, the gross value of which exceeded
$500,000. I conclude and find that Wesselman's Enter-
prises, Inc., is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that Amalgamated is a labor organization
within the meaning of Section 2(5) of the Act.
II. BUSINESS OF RESPONDENT
Respondent operates nine retail grocery stores in var-
ious locations in the State of Indiana. Four of the stores
have adjacent coffeeshops staffed by Respondent's em-
ployees. Two of the stores are involved in this proceed-
ing. The Mount Vernon, Indiana, store in the Southwind
Shopping Center with its adjacent coffeeshop employs 25
employees in the store and 35 employees in the coffee-
shop. The Weinbach Center store in Evansville, Indiana,
employs approximately 50 employees. All stores are op-
erated from a central office where all policies are pro-
mulgated by the owner and president, Aubrey Ryals.
The Weinbach store has been in operation since 1975,
whereas the Mount Vernon store opened October 13,
1977. Job classifications are common among all stores
with each store staffed by a store manager, two assistant
store managers, meat department head, produce depart-
ment head, dairy department head, frozen food depart-
ment head, cashiers, stock people, and where applicable
a restaurant department head, and restaurant employees.
Each store is open 8 a.m. to 9 p.m., 6 days a week and 9
a.m. to 6 p.m., Sundays. The coffeeshops serve from 9
a.m. to 3 p.m. daily. The payroll period for all stores is
Tuesday of each week through the following Monday
with payday each Friday.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory Status of Kissel and Fehd
The record testimony relative to the duties and re-
sponsibilities of meat department managers, Kissel and
Fehd, does not create a factual dispute.
The evidence shows that meat department managers
assign tasks to meat employees and when necessary
change assignments of employees so tasks conform to
customer demands, supply, or promotional items. Albeit
full-time employees are hired by the store manager and
the company president, the department heads are always
consulted and often take part in the actual hiring. De-
partment heads are responsible for hiring and do hire,
part-time employees. Department heads are responsible
for disciplining their subordinates and exercise that re-
sponsibility to the extent of sending employees home for
infractions. Ryals testified that he alone has the ultimate
authority to fire employees. However, he does require a
recommendation from his department heads when any
employee is subject to discharge. Any recommendations
of a department head is given consideration by Ryals in
making the final decision. The weekly schedules of em-
ployees' hours and days are made by the department
manager who also can recommend raises in wages and
starting rates. The appearance of each employee at work
and whether they have time off the job is within the re-
sponsibility of the department manager and is exercised
daily.
Some department heads are salaried and some depart-
ment heads are hourly as decided by the president based
upon the individuals' length of service. Otherwise all em-
ployees in each department are hourly. The department
heads also have the responsibility for the maintenance of
their department and any supporting machines, as well as
the inventory of supplies of products for the consumer.
In addition, all employees in each department are peri-
odically evaluated by the respective department heads.
Discussion and Conclusion
The evidence shows clearly that department heads in
each store, and particularly the meat department manag-
ers, exercise supervisory authority over employees in
their departments. As Ryals, the president, put it with
regard to hiring meat employees, "I like to know that
my manager wants a person and I'm not just giving it to
them, or I'm not pushing somebody on them. I mean
there's a two-way street. I may like you and my meat
manager may despise you." From the inception of hiring
up to a discharge for cause, the department head daily
directs the work of employees in his department. I there-
fore conclude and find that Kissel and Fehd, as meat de-
partment managers, are supervisors within the meaning
of the Act.
B. Interrogation, Threats, Promises of Benefit, and
Solicitation of Grievances
Joseph testified to four instances of interrogation in-
volving Meat Manager Kissel at the Mount Vernon
store, Meat Manager Fehd once at the Weinbach store
and Ryals once in the company office.
Joseph worked in both stores during his employment,
starting at Mount Vernon under Kissel and transfering in
August 1978 to Weinbach under Fehd.
Joseph testified that on May 13 during a general con-
versation with Kissel and other employees, Kissel asked,
"If I knew anything about Fannie trying to organize a
union." Joseph stated to Kissel that Fannie had asked
him if he knew Wayne Underhill, the union organizer,
and asked what kind of man Underhill was. Joseph told
Kissel that he had suggested to Fannie that Underhill
was a nice man and helpful to people. Two weeks after
Fannie was dismissed, the meat employees were working
and talking. Joseph testified that, "Kissel was just start-
ing conversation and wanted to know if anybody had
heard anything about the union or about Fannie Tenni-
son." Each of the several employees present said they
had not heard anything. Joseph further testified that
around July 17 or 18 in the meat department with other
employees present another conversation took place. "He
[Kissel] was just making conversation, wanted to know if
anybody had heard anything about the union or Fannie
Tennison, what was going on." Joseph responded to
Kissel, "Her case goes to court on November 8. Mr.
Kissel said, 'Well, how do you know this?' I said 'Well
WESSELMAN'S ENTERPRISES, INC. 1019
my wife works at Great Scot and that's posted on their
bulletin board."' No further discussion t k place.
Neither Kissel nor the other meat employees at the
Mount Vernon store testified to the alleged interroga-
tion.
Joseph also testified that the encounter he had with
Fannie in the meat department on Saturday, May 13, oc-
curred as testified to by Fannie. Joseph did add that he
informed Kissel and the assistant store manager, Rick
Perry, of the incident. Mr. Kissel responded to Joseph,
"Just to keep quiet about it and let Mr. Ryals handle it."
Perry made no response to Joseph. About 2 weeks later
Ryals summoned Joseph to his office. Joseph testified, "I
explained to him [Ryals] as I did to Urban Kissel and
Mike Holder of what had happened on that Saturday
night. And he asked me my opinion about the union and
what I thought about them, and . . . I told him I was
against it.... we did discuss about my wife, my wife's
employment there." Ryals responded, "We didn't need
this kind of trouble around there, around the store."
Joseph further testified to interrogation by Meat Man-
ager Fehd at the Weinbach store:
Q. Did you ever discuss the union with Mr.
Fehd?
A. Yes Ma'am.
Q. When? On one occasion, or more than one oc-
casion?
A. To the best of my knowledge, only one occa-
sion that I ever spoke to him about it.
Q. Can you recall the approximate date?
A. I'm thinking of August, late August when I
spoke to him about it or he brought the subject up.
We was in the meat department working and he
brought the subject up about the union.
Q. Okay. Hold it just there. You were in the
meat department. Any other people present?
A. No Ma'am.
Q. All right, what did Mr. Fehd say to you?
A. He asked me if I knew anything about the
union trying to organize and I told him "No," and
he told me that Mr. Underhill had been out to see
him about it, that he didn't sign a card and that he
had signed a card before, but changed his mind this
time, because he thought it had stopped him from
getting a promotion and raises over the previous
years.
Q. And you again-I'm sorry-you denied that
you knew anything about it, is that right?
A. Right.
Fehd denied having any conversation with Joseph
about the Union other than hearing Joseph relate to
some employees an instance in a local warehouse where
an employee was fired for damaging merchandise and
the job steward fought for the employee and got his job
back. Joseph stated that he did not think it was fair for
the steward to do that and he thought that was a bad
point for the Union.
Ryals denied any conversation with Joseph about the
Union in June 1978 but did testify to a 15-minute conver-
sation with Joseph about Joseph's wife getting on full
time at the store.
Fannie Tennison testified to two instances of interroga-
tion. One each, by Ryals and Store Manager Holder on
May 13, 1978, and threats, promises, and solicitation of
grievances by Holder on May 13, 1978. The alleged
unfair labor practices occurred in several conversations
with Fannie and Holder and Fannie, Holder, and Ryals.
Fannie initially engaged in union activity Friday, May
12. She talked to one cashier at work and one employee
after work. On Saturday, the next day, when she came in
to work she went to the office to get some change.
Holder told her that Ryals was coming in that day.
Fannie testified, she stated, "It's a bad time for him to
come down as far as I'm concerned." Holder asked why
and Fannie responded, "Because of the union and every-
thing that's going on. I just don't think this is a good
time for him to come down." Holder said, "What Union?
What are you talking about?" Fannie said, "I am work-
ing with the union and this is just bad timing on his part
as far as I am concerned. Well, I've got to go back to
my register." Holder said, "Well, let's talk about it. You
don't have to go back to your register, they'll watch it
for you." Fannie and Holder began walking down the
aisle. Fannie told Holder that she had been in touch with
the Union. Holder said, "Did they call you? If they did,
that's against the law." Fannie said, "No, he didn't call
me, I called him." She told Holder that Wayne Underhill
was the union representative that she contacted. Holder
said he wanted to talk about it some more. Fannie told
Holder, when break time came that she would have
coffee with him and tell him all about it. About 10 a.m.
they went to the private dining area in the coffeeshop.
Holder said he wanted to know why Fannie had
called a union, if she thought that she was getting unfair
treatment around there it really did surprise him because
they had always gotten along so well and they had
always been able to talk about everything that had come
up. Holder said he just didn't understand why Fannie
called Mr. Underhill. Fannie said, "The reason I did is
because I'm interested in a union and I think I can help
get one in. With a union, I feel like we would have job
security and would get our raises without having to beg
for them like we have around here." Holder asked if
Brian or Rick, the assistant store managers, had done
anything to Fannie and if they had he would straighten it
up. Fannie said, "If one of them [Rick or Brian] were in
a bad mood one day they had the authority to fire any of
us girls, no matter what it was over. I didn't think that it
was right." Holder said, "Well, they've got the authority
to send you home, but they don't have the authority to
fire you. They know better than to fire you anyway."
Fannie and Holder then discussed Fannie's daughter,
Susie, being fired by Cathy from the coffeeshop. Holder
said Ryals was coming down to take care of the Cathy
matter. A week before Fannie had discussed with Holder
whether or not Cathy was a qualified supervisor. Holder
said Ryals was going to offer her a position she had
before she was transferred to Mount Vernon as coffee-
shop manager. Fannie stated that Holder asked her opin-
ion about whether the store would go union. Fannie said,
"Yes I do and I can tell you a lot of good reasons why I
think that it would go over." Fannie then named off the
individuals in the store with corresponding reasons why
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each would want the union. Holder then asked Fannie if
she would tell Ryals some of the things she had told
Holder. Fannie said she would. Fannie testified, "I
hadn't intended to talk to Mr Ryals. I thought that I
could just talk to Mike [Holder] and get things straight-
ened out."
At this point Ryals walked in. Fannie testified she said,
"Well come on in. We want to talk to you, too." Ryals
grinned and said what's going on. The three then dis-
cussed the situation of Fannie's daughter being fired by
the coffeeshop manager. Fannie then said, "Mr. Ryals,
I'm going to try to help organize a union out here. I
talked to Underhill and I'm going to try to help him or-
ganize a union. I've got some white cards and I'm trying
to get them signed." Ryals said, "What do you want a
union for?" Fannie said, "Job security for one thing. Plus
our wages would be higher and we would get our raises
on a regular basis. We wouldn't have to ask for them."
Ryals said, "I don't know why you want a union, but if
you do, that's your prerogative. The union can't do a
damn thing for you except take your money and not do
anything for you." Fannie responded, "Mr. Ryals my
husband has been in the union for about 16 years and
there's very little that I've had to do without during
those 16 years." Fannie then walked out and left the two
men together.
Fannie talked with Holder again in the aftenoon.
Fannie testified, "Sometime after 1:00 p.m. Mike said
that he wanted to talk to me some more about what we
were talking about this morning. I said allright." Fannie
went on her break in the coffeeshop and Holder came
over, sat down, and they started talking. Fannie and
Holder talked for 2 hours. They went over the same
things several times, over and over. Fannie testified, "I
asked him what did he have against the union," and
Holder related an incident of a friend that had a dispute
with his union. Fannie stated to Holder, "I'm not saying
that a union is the best thing in every instance. I know
that they've got their drawbacks, but they're good, also,
in a lot of circumstances." Holder replied, "I've never
worked with a union before. I don't think I could get
along with one. Now, if we had a union out here we
would have to lay off some of the checkers." Fannie
said, "Well, that doesn't really bother me, because I'm
number four. If you started laying off in alphabetical
order starting at the top, you would have to layoff two
before you get to me, because the number one girl had
been fired." The two then discussed wages at a competi-
tor and Wesselman's, in particular, the cashiers. Holder
told Fannie she was in for a surprise next Friday. Fannie
said, "What are you talking about." Holder responded,
"Well, you're going to get a big surprise when you get
your check Friday." Fannie replied "Mike, you know
that while this union negotiations and things are going
on, you cannot give a person a raise. Is that what it is?"
Holder said, "Well, I can't say but you'll get a surprise,
that your paycheck will be quite a bit bigger Friday."
Fannie asked Holder how much, but Holder said he was
not allowed to tell how much. Fannie and Holder then
discussed some prior discharges of employees. Holder
then told Fannie, "You don't have to worry about job
security. I'd never fire you. You'd be the last one out of
this place that I would ever fire."
Fannie stated that the meeting closed with Holder
asking if she would change her mind about the Union.
He would do almost anything to keep from getting a
union in. He knew a man in Evansville that owned a
coal mine and he would talk to him and get Susie a job
paying more money than she is making now, if that was
what Fannie wanted. He would do almost anything to
keep from getting a union in. Fannie told Holder she
would think it over because she had to go home. Fannie
agreed to reconsider because she had gotten along so
well with Holder. She kind of hated it in a way that she
had gone ahead and called the Union.
Holder's testimony of the substance of the conversa-
tions between Fannie, Ryals, and himself does not differ
markedly from Fannie's; however, Holder did testify, "I
asked her [Fannie] how come [why Fannie was for the
Union] and she said because her daughter wasn't treated
fair at the store." Holder also recalled telling Fannie that
Ryals was coming to the store that day, particularly to
go over the payroll sheets for the 6-month review.
Holder also stated that he did not initiate the 2 p.m. con-
versation in the coffeeshop, nor did he invite Fannie to
the coffeeshop on her break. Fannie, during the conver-
sation, asked about a head checker's job because she said
she would like to be head checker.
Holder admittedly told Fannie that if the Union came
in she would have to work some night hours and would
not be able to continue working basically day hours.
Holder denied making any statements to Fannie that lay-
offs would occur if the Union were successful at Wessel-
man's. Holder also denied that he told any employees
that they would have a surprise in their paychecks on
Friday.
Ryals' testimony of the Saturday morning conversa-
tion with Fannie and Holder, although not as complete,
is not too different. Ryals admits to surprise when
Fannie told him she was going to help organize the store
but he denies any interrogation of Fannie. He admittedly
told Fannie, "If I didn't like Wesselman's and didn't like
the people I worked for, I wouldn't work for them."
Ryals denies interrogating Fannie or Joseph about their
own union membership activities or desires or those of
other employees. Ryals also denies that any conversation
about wages, either in general or specifically Fannie's
wages, took place while he and Holder were talking to
Fannie.
Discussion and Conclusions
Joseph's testimony relating to interrogations by Meat
Manager Kissel is uncontroverted in the record. Joseph's
testimony of interrogations by Fehd and Ryals stands
controverted as well. The testimony, however, whether
controverted or not, must constitute substantial evidence
or it has no probative value. Indeed, mere conclusions or
expressions of feelings do not satisfy the standard for res-
olution of issues. That standard being proof of facts. I
cannot find that the evidence of interrogation by Kissel,
even viewed in a light most favorable to General Coun-
sel, has probative value. Joseph himself characterizes the
incidents as "just starting conversation," and "just
WESSELMAN'S ENTERPRISES, INC. 1021
making conversation." I am persuaded that the meat de-
partment employees openly discussed any subject includ-
ing the Union both with and without participation of the
meat manager and on all occasions free of any interfer-
ence or coercion from the manager. Therefore Respon-
dent has not violated the Act through Meat Manager
Kissel.
Joseph's testimony of his conversation with Fehd in
late August wherein Fehd allegedly asked if Joseph
knew anything about the Union trying to organize the
store and then relating to Joseph the visit from Union
Representative Underhill is denied by Fehd. As positive
as the assertion is, it is somewhat diluted by other testi-
mony of this witness; however, there is plausible continu-
ity. Joseph joined the Union and agreed to solicit signed
union authorization cards from other employees in mid-
July. His efforts to solicit began in earnest in mid-August
in the Weinbach store's meat department. Although
Joseph characterized his effort as slyly working around
the store, his testimony relates to solicitations of supervi-
sors as well as rank-and-file employees. Fehd admitted
he was told by Underhill of Joseph's participation in the
organizing drive and places the time he acquired this in-
formation as several days after he became manager on
August 18. Fehd denies that he told Dyer of his informa-
tion and denies telling Joseph about Underhill's visit.3In
spite of Fehd's denials and regardless of Joseph's source
of knowledge relating to Underhill's visit to Fehd's
home, it is most likely that Fehd, as manager, would at-
tempt to confirm the report by asking Joseph himself. I
further conclude that Fehd had knowledge or at least a
suspicion of Joseph's union activity in the approximately
8-day period that Joseph worked with Fehd before
Fehd's promotion to meat manager. I, therefore, credit
Joseph's testimony of the conversation and find that
Fehd interrogated Joseph in violation of the Act.
With regard to Ryals' alleged interrogation of Joseph
occurring within a 2-hour conversation, Joseph related
only several statements and a question. The statements
were apparently offered by General Counsel to establish
animus of Ryals. Joseph's testimony is disjointed and
wholly without chronology, making, in my view, the
drawing of any inference difficult at best. Ryals denied
any interrogation of Joseph but did admit that Joseph re-
quested full-time employment for his wife in a conversa-
tion lasting considerably less than 2 hours. Without con-
sidering the credibility of Ryals' denial of interrogation
of Joseph, the evidence is not persuasive. The generaliza-
tions made by Joseph were somewhat defined by leading
questions from counsel and when considering the source
of definition, the probative value suffers. ,Joseph's one-
on-one conversation with Ryals followed/an incident in
the store between an employee and a customer. Albeit,
the customer was also an employee and the incident, as
affirmed by Joseph, exceeded the tolerable bounds for
any retail establishment. As Joseph testified, Ryals said,
"we didn't need this kind of trouble around the store." I
infer Ryals' remarks to be directed to the unpleasant con-
frontation between Fannie Tennison, her husband, and
3 Dyer's refusal to take Fehd into his confidence with regard to union
activity of employees lends support to Fehd's denial
Joseph at the meat counter not the union activity of the
store employees. Accordingly, I conclude and find that
Ryals did not interrogate Joseph in violation of the Act.
Fannie's testimony of interrogation, threats, promises,
and solicitations, as well as Holder's and Ryals' opposing
testimony, disclose the somewhat lead position that
Fannie held among employees. Fannie appeared to be
the unofficial spokesperson for the employee group. Ob-
viously, as she and Holder both stated, her status was
founded upon her ability and willingness to talk about
problems. In most recounts of conversations between
witnesses, the actual substance lies somewhere between
the two versions and not always is the determining
factor one of credibility. Holder impressed me as a wit-
ness striving to recall the events as they happened with-
out regard for any assessment of the value of his testimo-
ny to support a position. Fannie, on the other hand, was
quick to characterize the nature of her source as well as
inject her expressions and conclusions. Were I to credit
Fannie with the most accurate versions of the several
conversations I still would not find the violations as al-
leged by General Counsel. This is so because I do not
view Fannie's testimony as most substantial or probative
of the facts, particularly where, as here, the conversa-
tions consumed an excess of 3 hours and chronology is
lacking. Unquestionably, Fannie was angered at Ryals
and the store for having fired her daughter and, through
the coffeeshop manager, effectively squelching several
subsequent employment opportunities. Her testimony
clearly shows that she was prompted to talk to Holder
and Ryals to give them "What for" and to vindicate her
daughter. As Fannie stated, she cannot remember it all
because she said a lot. In my view Fannie was deter-
mined to get even and part of her scheme was to drop
the union bombshell. 4 I do not credit Fannie's testimony
relating to who initiated the conversations. I do credit
Holder's testimony in most instances and particularly
wherein he states that Fannie voluntarily offered conver-
sation or initiated the conversation herself. I do not
credit Fannie's reference to wages at Wesselman's where
she states Holder told her she was in for a surprise next
Friday. The testimony was not spontaneous even though
buttressed by remarks such as, "It came up several times
while we were having the conversation." This lack of
spontaneity also makes it difficult to accept the stated
length of the conversation. I do credit both Holder's and
Ryals' denials that any discussion of specific wages took
place. I further credit Holder's statements that he told
Fannie that Ryals was coming to the store to go over
payroll records and 6-month increases, and that he had
not told Ryals of Fannie's prior complaint of her daugh-
ter's discharge from the coffeeshop. Fannie's testimony
to the contrary I do not credit.
General Counsel, in her argument, acknowledged the
relationship that Fannie enjoyed with Holder, contend-
ing that such a relationship is particularly coercive be-
4 Fannie's response to counsel's "Why?": "Because we had got along
so well, I kind of hated it in a way that I had went ahead and called the
Union." "Why?" "Well, it seemed like it upset him so bad, and I just felt
like maybe if things were straightened out, and since I didn't have to
worry about getting fired, I just thought maybe I'd think about reconsid-
ering it"
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of the greater credibility and authenticity of the
source. I recognize that in some circumstances such a
view would be valid, but contrary to General Counsel I
do not find that in the case here. 5 Fannie was seeking an
individual redress of her grievance involving her daugh-
ter's discharge and more. What General Counsel relies
upon as serious threats, not isolated and presumptively
the subject of discussion and repetition among employ-
ees, I conclude to be statements communicated in an at-
mosphere of discussion initiated and controlled by the
rank-and-file employee, Fannie Tennison. I find Fannie's
testimony of purpose instructive, "I thought that I could
just talk to Mike [Holder] and get things straightened
out." As Ryals admitted to other employees (which is
the only subsequent reference to Fannie's conversation
with Holder and Ryals), "Fannie gave me the best chew-
ing out I had in a long time." The test of an 8(a)(l) vio-
lation is correctly stated by General Counsel: "The test
is whether the Employer's conduct may reasonably be
said to have a tendency to interfere with the expression
of employees' rights, and not whether the employees are
actually coerced." The alleged threats of layoff and re-
duction in hours; the alleged promises of economic bene-
fits; and, the alleged solicitation of grievances were made
in the circumstance of a discussion conceived by Fannie
Tennison and voluntarily initiated and extended by her.
The discussions took place in neutral surroundings with-
out the necessary investigative motivation on the part of
Respondent. I do not conclude that Fannie Tennison's
rights to engage in union activity were interfered with,
or that Respondent, by engaging in conversation with
Fannie, created a circumstance which would impart to
the employee a sense of intimidation and restraint re-
specting continuation of her exercise of Section 7 rights.
Fannie vehemently announced her support for and active
participation in behalf of the Meatcutters to both Holder
and Ryals. Holder, in spite of Fannie's expressed alle-
giance, was genuinely reacting to Fannie's search for re-
dress of grievances. With the exception of Holder's offer,
to get Fannie's daughter a job paying more money then
she is now making in return for Fannie's change of mind
about the Union, I find no violation of the Act. I do find
that Holder's offer to Fannie is a promise of benefit
which restrains employees' free exercise of Section 7
rights.
Ryals' alleged interrogation of Fannie following her
announcement of union support is not a per se violation
of the Act. Circumstances must exist that show the ques-
tion occurred in a context of solicitation of information
otherwise prohibited, and having a tendency to impede
employees' exercise of statutory rights. I do not find that
5 The General Counsel cited Super Thrift-Markets, Inc., 233 NLRB 409
(1977), and Coach and Equipment Sales Corp., 228 NLRB 440 (1977), in
support of her theory, but in these cases the manager overstepped the
bounds by relying on his relationship with the employee and playing
upon the employee's sympathy for that relationship to deter further union
activity and by threatening a cessation of the previously friendly relation-
ship if the union prevailed. In the instant case the relationship between
Holder and Fannie was only the catalyst that brought the two together
and was not made a concurrent issue with the union organizational drive.
Additionally, the discussion in question did not deal with the substance of
a campaign engaged in by the Employer or the Union but only that sub-
stance advanced by Fannie to Holder and Ryals.
to be the case here. Fannie's testimony included Ryals'
responsive opinion of unions which is permissible under
Section 8(c). Additionally, Ryals unequivocally acknowl-
edged Fannie's right to support the Union. In an atmo-
sphere free of union hostility and animus such interroga-
tion passes the test advanced by the Board. The discus-
sion between Holder and Fannie as joined in by Ryals
remained, in my view, open and free of intimidation. I
therefore conclude that Respondent, through Ryals, did
not coercively interrogate employee Fannie Tennison.
Ryals admittedly replied to Fannie, during the discus-
sion, "Fannie, if I didn't like Wesselman's and didn't like
the people I worked for, I wouldn't work for them."
Albeit, General Counsel did not allege this statement as
an implied threat, nor plead a constructive discharge in
the alternative, but she did argue "threat" in her brief.
Notwithstanding my determination of the general atmo-
sphere of the discussion, I conclude and find that Ryals'
statement is an implied threat of discharge of Fannie
Tennison. I find additional support for this finding in my
finding below with respect to the 8(a)(3) allegation.
C. Wage Increase of May 19, 1978
Fannie Tennison was one among three witnesses of-
fered by General Counsel to support the wage increase
violation. Fannie testified that Ryals told employees the
company policy was to review and raise wages every 6
months, but a manager could use his discretion to give a
raise at any time to an employee who merited such an
increase. Fannie stated that although the company policy
was as stated she was not expecting any increase. Fan-
nie's testimony recalling a conversation with Mike
Holder, was, "It seems like it was in March, I'm not
sure. It could have been-could have been-oh, well, it
was right-it was in April, the first part of April. It was
right after I came back from the hospital.... I said,
Each of us are supposed to get a raise after six months.
What about it? Are we going to get it or not? And he
said, I don't know what you're talking about. I'll have to
talk to Ryals.... So about two weeks later he hadn't
come back to me and said anything. So I asked him if he
found out from Mr. Ryals what had been said. And he
said, There was not going to be any raises! This was
about two weeks before I was fired."
The other witnesses for General Counsel and Respon-
dent stated that it was the Company's policy to give
raises every 6 months after Ryals sees all employees.
Each expected the raise given on May 19, 1978. Strupp
stated that everybody was ready for the raise and re-
called one boy who asked Ryals when raises were due.
Ryals replied that each employee after 6 months of em-
ployment would be evaluated and then get a raise.
The exhibits offered by stipulation of the parties show
that of the eight stores; three received a wage increase
on May 16, 1978; three received a wage increase on May
23, 1978; the Weinbach store received a wage increase
on May 26, 1978; and the Mount Vernon store received
a wage increase on May 19, 1978.
WESSELMAN'S ENTERPRISES, INC. 1023
Discussion and Conclusions
General Counsel amended the complaint to allege that
a wage increase given to employees at the Mount
Vernon store on May 19 was a violation of Section
8(a)(1) since the alleged purpose was to discourage em-
ployees from joining or supporting Amalgamated. Gen-
eral Counsel's theory of the violation is bottomed on the
contention that Respondent varied from its stated policy
and practice of reviewing wages every 6 months. Gener-
al Counsel contends that some employees who did not
have 6 months' service may have gotten an increase. A
total of six witnesses, a stipulation, and several exhibits
were offered by the parties in support of their respective
positions.
At the outset I note that General Counsel's theory
refers to an increase on May 19, but part of her theory
relates to periods of time predating May 19 by as much
as 6 months. I also note particularly that General Coun-
sel's lead witness, Fannie Tennison, in her second stint
on the witness stand, stated that Ryals told the prospec-
tive employees in a prehire interview of the store's
policy to review wages every 6 months and grant in-
creases based upon the review. Ryals also told the assem-
bled prospects that each store manager had the authority
to grant a raise to individual employees within the 6-
month period if the manager was satisfied the employee's
performance merited the interim increase. Fannie herself
received such an interim increase from the store man-
ager, as did several other employees in January 1978,
just after all employees had received a 10-cent increase
due to a rise in the Federal minimum wage.
It is undisputed that the 6-month wage review is Re-
spondent's stated policy. In fact, with the exception of
Fannie, all witnesses called relative to the wage increase
stated that they looked forward to the wage increase re-
ceived and fully expected it. The specific instance of the
new boy recalled by witness Strupp leaves no doubt of
the employees' expectation of an increase. Fannie's testi-
mony contrary to this expectation is not credited. I con-
sider the remarks of "no wage increase" that Fannie at-
tributes to Holder as the final element in the synthesis of
embellishments and afterthoughts offered by Fannie
throughout her testimony.
I therefore conclude and find from the record evi-
dence that Respondent's granting of a wage increase at
the Mount Verson store on May 19 was in keeping with
its stated policy of wage reviews at all its stores and was
not motivated by a desire to discourage membership in,
or support for, Amalgamated. Accordingly, Respondent
has not violated the Act by the granting of wage in-
creases at the Mount Vernon store.
D. Discharges
I. Fannie Tennison-May 15, 1978
Fannie stated that following the conversational en-
counter with Ryals and Holder on Saturday, May 13, she
had Sunday and Monday off. On Monday, May 15, she
was to pick up and drive Beverly Wiltshire to work. She
called Wiltshire about 9:30 a.m., to confirm the pickup.
Soon thereafter Ryals called her at home. Fannie testi-
fied, "After I got through talking to her [Wiltshire] the
phone rang and it was Mr. Ryals. He said, 'Fannie this is
Aubrey.' I said, 'Yes.' He said, 'Aubrey Ryals in Evans-
ville.' I said, 'Mr. Ryals, I know who you are. 'He said,
'Are you still mad?' I said,'At who?' He said, 'At me.' I
said, 'Yes.' He said, 'At Mike.' I said, 'I've never been
mad at Mike at anytime.' He said, 'I think that you
should go out and pick your check up, Fannie. Your
check is ready.' I said, 'Oh, you're firing me, huh?' He
said, 'No, it's nothing like that. And I'll give you a good
job recommendation. You can draw your unemployment
if you want to. We'll help you get that.' I said, 'Mr
Ryals, I don't understand that. I don't have a job. My
check is ready. I can draw unemployment or use you for
a job recommendation, but yet I'm not fired.' He said,
'Well whatever.' I said, 'Mr. Ryals, I want to thank you
for firing me, because you've helped my cause just that
much more. And I've got someone else listening in on
the phone'. He said, 'Fannie, that's allright. I don't never
say or do anything that I'm ashamed of."'
Fannie then drove to Wiltshire's home and told her of
Ryals' phone conversation. Later Fannie called Mike
Holder and told him that Ryals had fired her. Holder ex-
pressed ignorance about it. Fannie testified that Holder
said to her, "He [Ryals] wanted me to do that, but I
wouldn't do it. I would turn my keys in before I'd fire
you." Fannie called Holder again and told him not to
give her job away because she planned on coming back
to work. Holder said alright. Fannie refused to go out
and pick up her check so Holder mailed it to her.
Ryals denied firing Fannie and denied having a phone
conversation with Fannie on Monday, May 15. Ryals
maintained that Fannie quit and asked for her check, but
rather than go in to pick it up she asked that it be
mailed. Ryals stated that Holder told him Fannie wanted
her check so he told Holder to write it. Holder did not
state to Ryals that Fannie was quitting.
Holder stated that he neither fired Fannie nor was he
asked to fire her by Ryals. He did have two phone con-
versations with Fannie on Monday, May 15, about her
separation. Holder testified, "She said, 'Mr. Ryals just
called me up and fired me.' She was upset and crying. I
told her, 'Fannie, I don't know anything about it."'
Holder then called Ryals and told him Fannie had called
saying she had been fired by him on the phone. Ryals
said, "Well, I don't know anything about it." Holder
asked, "What should I do?" Ryals said, "Well, I don't
know. Why don't you go on and get her check rady.'
Holder then prepared Fannie's check.
About an hour later Fannie called Holder and asked if
her check was ready. Holder told her yes, and Fannie
stated, "Well I'm not going to pick it up. I'm coming
back to work tomorrow." Holder then told Fannie that
he did not think Ryals wanted her back.
Discussion and Conclusions
General Counsel alleges that Fannie Tennison was dis-
charged by Respondent's owner, Aubrey Ryals, for dis-
criminatory reasons. Respondent defends the allegation
contending that Fannie voluntarily quit her employment
and that no discharge conversation ever took place.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The resolution of the alleged discharge rests solely on
credibility since the union activity of Fannie admittedly
was known to Respondent just prior to the critical date.
Although Fannie's testimony is vague or forced when
reference is made to dates and hours, the substance is
supported by both a disinterested witness and an adverse
witness. Fannie testified that Ryals phoned her and sug-
gested she pick up her check and seek employment else-
where. Fannie stated that she immediately reported the
phone call and its substance to Store Manager Holder
and Cashier Beverly Wiltshire. Both Holder and Wilt-
shire testified credibly throughout the hearing and each
corroborated Fannie's report. Although Ryals denied a
phone call to Fannie on May 15, wherein she was dis-
charged he admittedly ordered Holder to prepare Fan-
nie's check. Ryals suggests that this order to Holder fol-
lowed Holder's report to him that Fannie wanted her
check after responding to Holder's inquiry about the
phone call, "Well, I don't know anything about it." Al-
though Ryals' testimony places the burden of preparing
the check on Holder, he specifically denied that Holder
reported any voluntary quit of Fannie. Holder's testimo-
ny places the burden of preparing Fannie's check on
Ryals since Holder did not know what to do. As Holder
stated, he did not know who to believe. As previously
noted, Holder impressed me with his willingness to
answer questions and his candor. His demeanor was alto-
gether convincing and I do credit his version of the con-
versation with Ryals. Wiltshire's testimony though short
was straightforward and restricted to what she could
specifically recall. I credit Wiltshire's testimony. Fannie's
testimony was clear and unwavering and on critical
points corroborated by credible witnesses. I therefore
credit Fannie's testimony relating to the discharge con-
versation with Ryals. Ryals' testimony relative to the al-
leged discharge was short, to the point, and contained
specific denials. Albeit, all the pieces do not come to-
gether from the previously credited testimony, Ryals'
testimony adds nothing but confusion. 6 I therefore do
not credit Ryals' denial of the phone conversation as re-
called by Fannie, nor do I credit Ryals' version of how
Fannie's final check was initiated. Accordingly, I con-
clude that Fannie Tennison was discharged by Ryals on
May 15. I further conclude and find that her discharge
was motivated by the pronouncement of her organizing
efforts in behalf of Amalgamated only 2 days before. I
note with particularity that almost immediately following
Fannie's proclamation of allegiance to the Union, Ryals
impliedly threatened her with discharge, as I have previ-
ously found. Having found Fannie's discharge was moti-
vated by her union activity, it follows that Respondent
thereby violated the Act and I so find.
2. Alan Joseph-September 18, 1978
Joseph offered testimony of his union activity begin-
ning on July 18. His organizing efforts followed on the
heels of his openly expressed dislike of unions and his job
at Wesselman's. Joseph stated that besides talking up the
8 E.g., Holder testified that when Fannie suggested she would not
accept her final check but would come back in to work the following
day, Holder responded, I don't think Mr. Ryals wants you back.
Union during working hours with fellow employees, as
well as supervisors, he secured several signed authoriza-
tion cards from fellow employees.
Joseph stated that he worked alone Sunday, September
17, starting at 9 a.m., and performed all the tasks as-
signed to him by his supervisor, Fehd. This was Joseph's
third Sunday work at this store. In addition, this Sunday
was a heavy day for special cuts which took most of his
time preventing him from cleaning and stocking the
meats as usual. However, he leveled off the meat counter
per instructions before quitting around 3 or 4 p.m. The
store was open for business until 6 p.m. Joseph recalled
that if the meat counter was short any meat products on
Monday morning it could only be ground meat. This
shortage was explained by the fact that stored ground
meat was not available and Joseph was not qualified to
run the grinder to make more. He also recalled leaving a
box of bacon unrefrigerated in a shopping cart which he
had intended to stock in the meat cases.
The following morning Joseph began work at the
usual hour by reworking the meat counter which usually
takes about an hour. Fehd also helped him replenish the
meat supply in the cases and restocked the packaged
meat case. Fehd spoke to Joseph about the bacon, the
meat cases, and also about pads but according to Joseph
did not say much. Joseph acknowledged that several
weeks before Fehd had told him to cut down on the use
of pads which was contrary to his previous training at
the other store. Joseph worked the entire day Monday
without incident excepting a noontime conversation with
Fehd about the bacon that had been left out. When he
was getting ready to leave after punching the timecard
Dyer called to him, "Before you leave, I'd like to talk to
you." They walked to the bakery department to be alone
and Dyer told Joseph he should seek other employment.
Joseph asked why and Dyer enumerated: The bacon he
left out; the condition of the meat counters that morning;
and the omission of pads underneath the packaged meat.
An argument ensued and Joseph demanded the presence
of Meat Manager Fehd. Fehd appeared shortly. Joseph
and Fehd discussed Joseph's use of too many pads and
Fehd's instructions to cut down on the use of pads.
Joseph testified he stated to Fehd, "And the meat pads,
the only thing you told me you wanted them under was
the ribeyes, because I was wasting too much on the
other stuff and we really didn't need it. And he [Fehd]
said, 'Yes that was right,' he nodded his head yes." Nei-
ther Dyer nor Fehd said anymore to Joseph. The con-
versation was ended by Joseph nodding his head, stating
"Okay," turning around and walking out.
Fehd stated that when he came in Monday morning,
September 18, the meat cases were disgusting. They
were dirty with 3 to 4 feet of vacant spaces in them. He
saw the bacon left in the cart and put it in the refrigera-
tor. Fehd immediately called Ryals to explain that he did
not work the day before and therefore was not responsi-
ble for the mess. Fehd called Ryals because he was
afraid Dyer might blame him before he could get it
cleaned up. Fehd confronted Joseph that morning about
the bacon and the condition of the meat cases but did
not counsel with Joseph on any pending discipline. Fehd
did counsel with Dyer during the day about Joseph and
WESSELMAN'S ENTERPRISES, INC 1025
told Dyer that he figured Joseph had just quit because
he was due to go on vacation, also Fehd had heard
Joseph was looking for another job. Fehd figured if
Joseph did not find another job while on vacation he
would continue working as he did the last Saturday and
Sunday. Fehd considered that Joseph had not done any
work those 2 days so he recommended to Dyer that
Joseph be dismissed.
Several days later Fehd threw out one-third of the
bacon, approximately 8 pounds, and placed the other
two-thirds in the meat case for sale.
Dyer arrived in the store that Monday morning about
8 a.m. He began by touring the store. When he saw the
meat cases he was flabbergasted at the condition of both
the prepackaged and fresh meat cases. There were bare
spaces where merchandise had not been stocked and pro-
motional items were not on display. Dyer confronted
Fehd about the condition of the cases and then learned
of the unrefrigerated bacon. He instructed Fehd to check
it out. An hour later Fehd reported to him that Joseph
had said he was too busy with special cuts to stock the
cases on Sunday. Fehd added that Joseph had been fall-
ing down on the job the last 2 weeks, was not following
instructions on the use of absorbent pads, and had on one
occasion refused to cut a chicken for a customer. Fehd
recommended to Dyer that Joseph be dismissed. Dyer
called Ryals and told him of Fehd's recommendation.
Dyer testified that Ryals said, "You two decide what is
best for your store."
Dyer ordered Joseph's check about 2:30 or 3 p.m.
Dyer had not given any warning to Joseph about his
performance nor did he relate the impending discharge
to Joseph. Dyer approached Joseph at 4 p.m., and told
him to look for another job while on vacation. Dyer told
Joseph his performance was unsatisfactory and Fehd had
recommended dismissal. In response to Joseph's inquiry,
Dyer told him three reasons for the discharge: Failure to
follow Fehd's instructions on the use of pads; failure to
properly stock the meat cases; and failure to cut up the
chicken for the customer. Fehd was called into the con-
versation at Joseph's request and related to Joseph the
reasons for his recommendation: Failure to use pads as
instructed; failure to properly service the meat counter;
and leaving the bacon unrefrigerated. Dyer stated that
Joseph became loud and boisterous using some X-rated
words when calling him a liar. Joseph then left the store.
Dyer admitted that several employees in late August
or early September told him that Joseph was soliciting
authorization cards and that he probably informed Ryals
of the solicitation. Dyer also told his No. 2 man, Owens,
but specifically did not tell Fehd fearing that Fehd him-
self might be in on the organizational effort. Dyer also
stated that although neither he nor Fehd worked in the
store on that fateful Sunday the assistant manager
worked the entire day.
Discussion and Conclusions
General Counsel contends that Joseph was discharged
because of his union activity not for his job performance
as advanced by Respondent.
The Board has held repeatedly that, if an employee en-
gages in conduct for which he would have been termi-
nated in any event, thereby providing his employer with
sufficient cause for discharge, the Board cannot find the
discharge unlawful by merely showing that the employee
engaged in union activity. Golden Nugget Inc., 215
NLRB 50 (1974). In the Board's view, extended organiz-
ing efforts by an employee do not insulate him against a
discharge for cause. Moreover, in determining whether
there was a discriminatory motivation for the discharge,
the Board does not consider the reasonableness of the
employer's action in discharging the employee or its
agreement with the employer's stated reasons. An em-
ployer is always permitted to terminate those employees
who do not measure up in productivity or who other-
wise do not observe the usual shop rules. However, an
employer may not discharge an employee where the real
motivating purpose is to do that which Section 8(a)(3)
forbids. Lawson-United Feldspar & Mineral Co., 189
NLRB 350 (1971). If a discharge is motivated by antiun-
ion reasons then the discharge is violative of the Act
even if the employee engaged in conduct sufficient to
warrant his discharge. Such illegal motive can be evi-
denced by several factors, e.g., disparity of treatment,
union animus, coincidence of the discharge with the em-
ployee's union activity or the employer's knowledge
thereof, variance of the employer's discipline procedures
and an implausible explanation from the employer for the
discharge. McGraw-Edison Company v. N.L.R.B., 419
F.2d 67 (8th Cir. 1969).
The record clearly shows that Joseph was an efficient
employee. Ryals alluded to the difficulty of working
under Kissel who was responsible for training Joseph
and who had employed Joseph previously when he was
in business for himself. Holder, Joseph's store manager
for almost a year, contrasted with Joseph's employment
under Manager Dyer for slightly over a month, charac-
terized Joseph as an excellent employee who gave him
no problems. The union activity of Joseph was admitted-
ly known to Manager Dyer and his assistant Owens. Ac-
cording to Dyer, he probably informed Ryals of Joseph's
union efforts. Joseph's uncontroverted testimony, in con-
junction with my previous finding relative to Meat Man-
ager Fehd, shows knowledge of his activity among all
supervisors in the store. All of Respondent's knowledge
of Joseph's union activity predates his discharge by 2
days to 2 weeks, thus placing the discharge and the
union activity coincidently close in time. Additionally, in
terms of any employer's usual acceptance of union orga-
nization of its employees, Joseph represents a turncoat,
having been antiunion at the outset but swinging over to
the union side shortly before his discharge. As Meat
Manager Fehd stated, maybe he was hasty in recom-
mending Joseph's termination. Such a reservation from
the immediate supervisor could only be based upon the
conduct originally thought to warrant discharge. Neither
Fehd nor Dyer testified to any meaningful investigation
of what they perceived to be lack of performance by
Joseph. Joseph, at the first concern shown by Fehd,
placed in issue his single handling of the meat market on
that particular day. Respondent had at its disposal the re-
cords to prove or disprove Joseph's protest. Respondent
offered nothing more than a cursory look around the
meat locker for leftovers which it maintained would
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have evidenced Joseph's workload of special cuts. That
is no more a measure of productivity than the amount of
waste. Respondent had the entire record of supplies, in-
ventory, and sales of meat on the critical Sunday. If Jo-
seph's explanation of his workload was false it could
easily have been shown. In absence of the offer of such
evidence I infer that Joseph's account is true and accu-
rate thereby negating Respondent's claim that Joseph
failed to perform his assigned tasks.
Fehd offered Joseph's slacking the 2 weeks prior to
the discharge but failed to inform Joseph of his concern
at any time. Likewise the unrefrigerated bacon will war-
rant, from me, no more probative weight than Respon-
dent accorded it. The bacon was merely refrigerated and
the greater portion was placed on sale to the public sev-
eral days following the discharge. Additionally there is a
variance in the reasons, advanced by Dyer and Fehd, for
Joseph's discharge. Dyer contends that part of his con-
sideration was the chicken incident which Joseph states
was never mentioned. Joseph's recall of the incident is
uncontroverted and is credited. According to Dyer,
Fehd did not consider the chicken but did consider the
bacon. The chicken incident was even less meaningful
than the bacon since obviously the customer involved
was satisfied since Joseph's part of the incident was not
questioned by management. In my weighing of the
chicken incident I am assuming that any issue between a
customer and an employee in a retail establishment re-
ceives priority attention. Here there was none. As Gen-
eral Counsel points out, the use of absorbent pads by
Joseph according to Respondent is ambivalent. In one in-
stance (and I emphasize one instance) not enough pads
were used in another too many pads were used. If as Re-
spondent suggests Joseph was not following orders on
use of pads it is not surprising. The wrapping of meats;
the tare weights; the inspections by the State; and cuts of
meats offered for sale should not, in my mind, vary from
store to store. Joseph testified to his experience and his
training at Respondent's other store. Ryals testified to
the uniformity throughout all his stores. If there is sup-
port for variation in the meat markets Respondent failed
to provide it on this record. Indeed, if Respondent had
provided such evidence, the culpability of Joseph, work-
ing under new management and new rules, would have
strained the gravity of Joseph's omission or commission
as the case may be. I conclude and find that several as-
pects of Respondent's action and reaction demonstrate
the pretextual nature of Joseph's discharge: (1) the failure
of Respondent to conduct an adequate investigation de-
signed to elicit facts and particularly the failure to in-
clude the assistant store manager on duty the entire
Sunday in question; (2) the failure of Respondent to
warn Joseph of any discipline as a result of any investi-
gation; (3) the failure of Respondent to treat the chicken
incident as any thing more than an occurrence until Jo-
seph's subsequent conduct came into question (I specifi-
cally credited Joseph that this incident was not men-
tioned. Additionally Respondent did not offer contro-
verting evidence of the omission testified to by Joseph.);
(4) Respondent's use of the bacon incident prematurely
and as the evidence shows ultimately the incident
became miniscule; (5) the ambiguity of the Respondent
relative to absorbent pads and the demonstrated variance
in instructions by supervisors in stores otherwise meant
to operate uniformly; and (6) the final reservation ex-
pressed by supervisor Fehd when reconsidering his rec-
ommendation of discharge. Therefore, the misconduct
complained of by Respondent was not substantial enough
to form the basis for the discharge.
Further, I note with particularity that the union activ-
ity of Joseph was open and notorious among rank-and-
file employees as well as supervisors. Respondent's
knowledge of the union activity, in terms of time, was
proximate to the decision to discharge. Dyer's testimony
of his personal guarding of company policy toward
unions from someone suspected of union activity only
lends credence to my conclusion that Respondent's rea-
sons for the discharge were pretextual and that Respon-
dent's actual motivation was based upon Joseph's union
activity. Accordingly, I find that Respondent discharged
Joseph for engaging in union activity in behalf of Amal-
gamated and thereby violated the Act.
CONCLUSIONS OF LAW
1. Urban Kissel and Lee Fehd, meat department man-
agers of Respondent, are supervisors within the meaning
of Section 2(11) of the Act.
2. Respondent by coercively interrogating Joseph con-
cerning his union sympathies, through Meat Department
Manager Fehd, has engaged in an unfair labor practice in
violation of Section 8(a)(l) of the Act.
3. By promising benefits to Fannie Tennison in order
to discourage her activities in support of Amalgamated,
Respondent, through Store Manager Holder, has violat-
ed Section 8(a)(l) of the Act.
4. Respondent, through Owner Ryals, impliedly threat-
ened employee Tennison with discharge in violation of
Section 8(a)(1) of the Act.
5. By the discharges of employees Fannie Tennison
and Alan Joseph on May 15 and September 18, respec-
tively, Respondent engaged in discrimination in regard to
tenure of employment or other terms or conditions of
employment thereby discouraging membership in or ac-
tivities on behalf of a labor organization in violation of
Section 8(a)(l) and (3) of the Act.
6. General Counsel has failed to prove by a preponder-
ance of the evidence the allegations in the complaint al-
leging additional interrogations, threats, solicitation of
grievances, or granting of wage increases.
7. The aforesaid violations found constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily discharged Fannie
Tennison and Alan Joseph, employees, I find it necessary
to order it to offer them full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, with backpay comput-
WESSELMAN'S ENTERPRISES, INC. 1027
ed on a quarterly basis and interest thereon to be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977),7 from May 15 and September 18, the
respective dates of discharge to the date of proper offer
of reinstatement.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER8
The Respondent, Wesselman's Enterprises, Inc., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union member-
ship, activities, or sympathies.
(b) By implication, threatening employees with dis-
charge for engaging in union activities.
(c) Promising benefits to employees to discourage their
selection of a union as their collective-bargaining repre-
sentative.
(d) Discharging, laying off, or otherwise discriminat-
ing against employees in order to discourage membership
in, or activities on behalf of, Local 99, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, or any other labor oraganization.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Fannie Tennison and Alan Joseph, if it has
not already done so, immediate and full reinstatement to
their former positions or, if those positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings or benefits
they may have suffered by reason of Respondent's dis-
crimination against them as set forth in The Remedy sec-
tion of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at nine retail grocery stores in the State of In-
diana copies of the attached notice marked "Appendix." 9
I See, generally, Isis Plumbing and Heating Co., 138 NLRB 716 (1962).
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 find-
ings, conclusions, 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.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity
to present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this notice.
WE WILL NOT interrogate employees concerning
union membership, activities, or sympathies of our
employees.
WE WILL NOT threaten employees with discharge
for engaging in union activities.
WE WILL NOT promise benefits to our employees
in order to discourage membership in Local 99,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, or any other labor
organization.
WE WILL NOT discharge, layoff, or otherwise dis-
criminate against any employee in order to discour-
age membership in, or support of, said labor organi-
zation or any other labor organization.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act.
WE WILL offer to Fannie Tennison and Alan
Joseph immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privi-
leges, and WE WILL make them whole for any loss
of earnings or benefits which they may have suf-
fered by reason of our discrimination against them,
with interest thereon as provided by the National
Labor Relations Bord.
WESSELMAN'S ENTERPRISES, INC.