Cook's Discount Store

National Labor Relations Board - Board Decisions

Jan 4, 1974

208 N.L.R.B. 134 (N.L.R.B. 1974)

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cook United, Inc., d/b/a Cook's Discount Store and
Retail Clerks International Association , Local 156,
AFL-CIO. Case 6-CA-6551
January 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PFNELLO
On September 4, 1973, Administrative Law Judge
Sydney S. Asher issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the. General Counsel filed
a brief in reply.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order except
as modified herein.
Respondent takes exception to the Administrative
Law Judge's conclusion that Supervisor Bailey
created the impression that the union activities of
employee Dutton were under surveillance by Res-
pondent and that Bailey's comment to Dutton
regarding insurance coverage for part-time employ-
ees constituted an implied promise of benefits. We
find merit in these exceptions and reverse the
Administrative Law Judge's Decision insofar as it
finds these remarks of Bailey's to constitute viola-
tions of Section 8(a)(1) by Respondent.
With respect to Bailey's assertion to Dutton on the
eve of the election that he knew that she and Terry,
another employee, were "for the Union," the record
establishes that this was but a statement of what both
Bailey and Dutton knew to be common knowledge
around the plant. Dutton testified that her union
activities were "very open" and well known to
Respondent and to the other employees and that she
made no attempt to hide the fact of her union
support from the store management. The record also
shows that Bailey had observed her speaking with
nonemployee union representatives and leaving the
store with them on a number of prior occasions, and
that other store employee previously had volunteered
information concerning Dutton's union activities to
Bailey.
i The 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
credibility unless the clear preponderance of all of the relevant evidence
Inasmuch as Dutton was well aware that her views
were known to Respondent and the record leaves no
doubt that the supervisor 's knowledge of Dutton 's
union activity was acquired by normal observation of
employee activity and by information volunteered by
other employees , we cannot infer that Dutton
assumed from Bailey's statement that her union
activities were under surveillance . In this context, we
conclude that Bailey's statement was intended as no
more than an introduction to a conversation with
Dutton about the Union in which he told her, inter
alia , that he did not want to try to talk her out of the
way she wanted to vote , but that she should give the
matter serious thought , as the Respondent "had been
pretty fair" to the employees and he did not believe
they needed a union . We therefore find, contrary to
the Administrative Law Judge , that Bailey 's remarks
did not violate Section 8 (a)(1) of the Act . Schrementi
Bros., Inc., 179 NLRB 853; Frank S. Malek and
Azzetta G. Malek, Partners, d/b/a Precision Tool and
Die Mfg. Co., 205 NLRB No. 66, fn. 2.
The allegation of an implied promise of benefit
stems from the same above -described conversation
with Dutton during which, when Dutton asked
Bailey why the part -timers had no insurance cover-
age, Bailey replied that he thought it was "probably a
mistake and should be remedied soon."
There is uncontroverted evidence that the part-time
employees had been covered by Respondent 's group
insurance plan, that a hiatus in coverage had resulted
from Respondent 's change of insurers in November
1972, and that coverage had been restored and in
effect for 1 month at the time of the hearing . Dutton
and Bailey both testified that there had been some
confusion in the store about whether the part-timers
were covered . Dutton herself had commenced
employment with Respondent as a part-timer and, in
accordance with company rules , had become insured
after 90 days of employment . Bailey , who had no
involvement with nor authority regarding the insur-
ance program , had learned of the hiatus in coverage
from a part-time employee . In our view, Bailey was
merely stating his understanding of a situation which
had created confusion around the store and which he
thought should be remedied soon. In these circum-
stances, we view his statement as a protected
expression of opinion, rather than an implied
promise of benefit . See AAA Lapco, Inc., 197 NLRB
274.
Accordingly , we shall dismiss the allegations of the
complaint concerning surveillance and a promise of
benefit.
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544. enfd 188 F.2d 362 (C A. 3). We have carefully
examined the record and find no basis for reversing his findings
208 NLRB No. 16
COOK'S DISCOUNT STORE 135
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Cook United, Inc., d/b/a Cook's Discount Store,
Benwood, W. Va., its officers, agents, successors, and
assigns, shall take the action set forth in the said
Order as so modified.
1. Delete paragraphs 1(b) and (c) and reletter
paragraph 1(d) as I (b).
2. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF IHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit employees of the grocery
side of our store from becoming involved in
organizing employees of the discount side on
behalf of Retail Clerks International Association,
Local No. 156, AFL-CIO, or any other union, or
otherwise indicate to them that union activities
are inconsistent with continued employment by
us.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join or assist any union, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from such
activities, except to the extent that such right may
be affected by an agreement requiring union
membership as a condition of employment, as
authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended.
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 compli-
ance with its provisions may be directed to the
Board 's Office , 1536 Federal Building, 1000 Liberty
Avenue , Pittsburgh , Pennsylvania 15222 , Telephone
412-644-2977.
DECISION
SYDNEY S. ASHER, Administrative Law Judge: On
February 5, 1973, Retail Clerks International Association,
Local No. 156, AFL-CIO, herein called the Union, filed
charges against Cook United, Inc., d/b/a Cook's Discount
Store, Benwood, West Virginia, herein called the Respon-
dent.' An amended charge was filed on February 12, 1973,
and a second amended charge on March 27, 1973. Based
on these charges and amended charges the General
Counsel of the National Labor Relations Board, herein
called the General Counsel, on April 26, 1973, issued a
complaint alleging that since on or about December 15,
1972, the Respondent-has interfered with, restrained,,and
coerced its employees in certain specified respects. It is
alleged that this conduct violated Section 8(a)(1) of the
National Labor Relations Act, as amended (29 U.S.C. §
151, et. seq. ), herein called the Act. The Respondent filed
an answer admitting the jurisdiction of the Board but
denying that the Respondent had committed any unfair
labor practices.
Pursuant to notice a hearing was held before me at
Wheeling, West Virginia, on May 31 and June 12, 1973,
and at Pittsburgh, Pennsylvania, on June 26, 1973. All
parties were represented and participated fully in the
heanng. At the start of the hearing the General Counsel
was permitted to amend his complaint and the Respondent
was permitted to amend its answer. At the close of the
hearing the Respondent moved that the complaint be
dismissed in its entirety because of the failure of the
General Counsel to establish a prima facie case. Ruling on
this motion was reserved; it is now granted in part and
denied in part, in accordance with the Decision herein.
After the close of the hearing, the Respondent filed a brief
which has been carefully considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
COOK UNITED, INC.,
D/B/A COOK'S DISCOUNT
STORE
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
FINDINGS OF FACT
A. Preliminary Matters
The complaint alleges, the answer admits, and it is found
that the Respondent is, and at all material times has been,
1 The name of the Respondent appears as amended at the heanng.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer engaged in commerce as defined in the Act,
and its operations meet the Board's jurisdictional stand-
ards; 2 and that the Union is, and at all material times has
been, a labor organization as defined in the Act.
B. The Setting
The Respondent's Benwood store is a separate building
with its own separate parking lot; it is not part of a
shopping center. There are two sides to the store: the
grocery side where food is sold and the discount side where
soft goods are sold. Both sides are reached by the public
through a common lobby which contains the key depart-
ment, some automatic coin-operated vending machines,
and some public telephones. There is entirely separate and
distinct management and supervision for each of the two
sides.
Approximately 50 employees work on the grocery side.
During all material times, the Union has been the
collective-bargaining agent for the employees on the
grocery side, except employees of the meat department,
who are represented by the Meat Cutters' Union Local
590, herein called the Meat Cutters. The grocery side is
open around the clock, 7 days a week, 361 days a year; it is
closed only 3 days each year.
Approximately 100 workers are employed on the
discount side. Normally the discount store closes at 9:30
p.m. In May 1971 the Meat Cutters filed a petition with the
Board seeking to represent the employees on the discount
side; the Union intervened (Case 6-RC-5825). An election
was held in January 1972.3 Neither union won; a certificate
of results ultimately issued in August 1972.
Another campaign among the discount employees was
begun by the Union in August 1972. In December 1972 the
Meat Cutters filed a second petition seeking to represent
the employees on the discount side; the Union intervened
(Case 6-RC-6359). An election was held in February
1973 but the ballots have been impounded and no tally of
ballots has yet issued.
The events with which we are here concerned, which
took place in December 1972 and January and February
1973, must be viewed against the backdrop of the above-
related facts.
C. The Conduct of Joel Morrison
1. Facts
On December 14, 1972, at about 11 p.m. two nonemploy-
ee representatives of the Union and three employees of the
grocery side stood in the lobby and handed out pamphlets
and union cards on the Union's behalf to employees of the
discount side then coming off duty. (The discount store
apparently closed at 11 p.m. that night, somewhat later
than usual.) Among the employees of the grocery side who
participated in this activity was Lawerence J. Evans, the
2 The Respondent is, and at all material times has been, an Ohio
corporation , operating a chain of retail department stores in various States
One such store, the only one involved in this proceeding, is located in
Benwood, West Virginia. During the 12-month period immediately prior to
April 26, 1973, the Respondent's gross revenue at its Benwood, West
Virginia , store exceeded $500,000 During the same period, the Respondent
received goods valued at more than $50,000 at its Benwood, West Virginia,
Union's shop steward, who was at that time off duty. The
two nonemployee solicitors were arrested for trespassing
on the complaint of a representative of the Respondent.
The next morning at about 10:30 a.m., while Evans was
on duty in the grocery store, he was called to the office of
Joel Morrison. then manager of the grocery store,
admittedly a supervisor as defined by the Act. According
to Evans, Morrison asked if Evans "had been helping out
on the other side" the previous night; Evans answered that
he had helped union organizers hand out pamphlets;
Morrison remarked that he (Morrison) had been instructed
to inform Evans "to either work for the Union or work for
the Company, one or the other"; and Morrison added that
if Evans "kept on getting involved on the other side
[Evans] could wind up getting myself in ajam and lose my
job"; Evans answered, "Okay," and the conversation
ended. Evans further testified that during his talk Morrison
stated that he did not want any of his employees
organizing for the Union on company time, or bothering
any other employee who was on company time; Evans
replied that "that was fine with me." Morrison's version of
this conversation was different. According to Morrison, he
asked Evans what he had been doing the night before; 4 he
(Morrison) told Evans "that what he did on his own time
was his business, but if any of his people were locked up
and they didn't show up for work the next day and they
didn't report in, they could end up losing their job"; and
that Evans replied that he (Evans) "would get a hold of his
union representative and get an answer back to me on
whatever he was doing." Morrison denied telling Evans he
would either have to work for the Union or work for the
Respondent, or that he had to take his choice. Evans
impressed me as a more accurate and reliable witness than
Morrison; therefore I find that the conversation took place
substantially as related by Evans, and I specifically do not
credit Morrison's denial that he told Evans to choose
between the Union and the Respondent.
Later that day Evans and Leo Rawlings, a nonemployee
representative of the Union, approached Morrison in the
grocery store. According to Rawlings, Rawlings asked
Morrison if he had prohibited Evans from assisting in
organizing "on the other side" on his own time; Morrison
replied that "employees on the grocery side were to stay on
their side, not to get involved in the discount organizing
side" [sic]; Rawlings asserted that employees had a "right
to help organize the unorganized on their own time and not
on company time"; and threatened that should Morrison
persist in this prohibition, Rawlings would file charges
against the Respondent; and Morrison replied: "I guess
you know what you're doing." Evans generally corroborat-
ed this version, except that he testified that Morrison's
final remark was that Morrison did not want to get
involved and would rather let the Respondent's personnel
office take care of it.
Morrison's version of the conversation was as follows:
store which were shipped there directly from sources outside the State of
West Virginia
3 Meanwhile, in June 1971, the Meat Cutters had filed charges against
the Respondent (Case 6-CA-5538) and so had the Union (Case
6-CA-5559). Both cases had been settled in September 1971
4 Prior to this conversation Morrison had checked Evans' timecard and
ascertained that Evans had been "off the clock" the previous night
COOK'S DISCOUNT STORE 137
Q. (By Mr. Williamson) Tell us what transpired
during this conversation?
A. I believe that Mr. Rawlings carried the conver-
sation and he told me that whatever these people did
on the other side I had no control on it and that they
wouldn't do it while they were on the clock, which I
knew they were not. That was pretty much the bulk of
the conversation.
Q. What did you say to him?
A. I agreed with him.
Q. Do you recall him at any time or did he at any
time ask you whether you were threatening Mr. Evans?
A. Not that I recall.
Q. Did he at any time threaten you with charges
before the Board?
A. I don't recall this either.
I find that the conversation occurred essentially as
described by Rawlings, who impressed me as a forthright
and candid witness.
2. Contentions of the parties
The complaint alleges, and the answer denies, that on or
about December 15, 1972, Morrison "threatened employ-
ees with loss of employment if they engaged in activities on
behalf of the Union." In support of this allegation the
General Counsel contends that what Morrison told Evans
the morning after Evans helped hand out pamphlets for the
Union "constitutes a threat of loss of employment directed
toward Mr. Evans because of his activities on behalf of the
Union." The Respondent, conversely, maintains in its brief
that "there exists not a shred of credible evidence upon
which it could be concluded that Morrison threatened
Evans." Moreover, the Respondent argues that "the
solicitation that prompted Morrison to [speak to Evans]
had taken place in the lobby-unquestionably a part of the
Discount selling area and while customers were in the
Discount Store."
3. Conclusions
I agree with the General Counsel that Momson violated
Section 8(a)(1) of the Act by stating to Evans on December
15, 1972, at approximately 10:30 a.m., that Evans must
"either work for the Union or work for the Company, one
or the other. Recently, in Padre Dodge, 205 NLRB No.
39, a management representative told an employee that he
knew that the employee was proumon. then asked the
employee: "if he wasn't happy where he was working, why
did he continue employment?" The Board stated, "Such
remarks clearly convey to an employee the threat that
management considers engaging in union activities and
continued employment incompatible" and held these
remarks violative of Section 8(a)(1) of the Act. Here, the
choice Momson gave Evans was, in substance, give up
helping the Union organize the discount employees, or
leave. On the authority of Padre Dodge, I conclude that this
constituted a warning that organizing employees on the
discount side was incompatible with continued employ-
ment on the grocery side, and threatened discharge should
such activities be continued.
Morrison's illegal conduct did not end there. Later that
day he informed Rawlings, in Evans' presence, that
"employees on the grocery side were to stay on their side,
not to get involved" in organizing the discount side.
Morrison thereby iterated the illegal warning he had given
Evans earlier that day.
The Respondent points out that the lobby, where Evans
solicited on his own time the night of December 14, 1972,
was a selling area. Presumably, although the Respondent
does not clearly spell it out, the Respondent would have
me conclude from this that Evans' solicitation that night
was not protected activity and that Morrison therefore had
a right the next day to warn Evans that a repetition of such
conduct might call for disciplinary action. I do not reach
this argument because that is not what Evans was told.
Morrison did more than merely warn against a repetition
of the previous night's activities in a selling area. He went
much further and prohibited all cooperation between the
grocery employees and those who solicited support for the
Union from employees on the discount side. Thus, the
prohibition was overly broad and unjustifiably hampered
the employees in the exercise of their legitimate right to
help organize the unorganized. For this reason, I decline to
determine, as immaterial, whether the lobby constituted a
nonselling area of the store. It follows, and I conclude, that
so far as Morrison's conduct is concerned, the Respon-
dent's motion to dismiss the complaint must be denied.
D. The Conduct of Charles Bailey
1. Facts
On February 22, 1973, the day before the Board-
conducted election, Charles Bailey, assistant manager of
the discount side, approached Marsha Dutton, an employ-
ee of the discount side, while she was at work. Bailey stated
that he knew that Dutton and Patsy Terry, another
employee of the discount side, were for the Union. He said
he wouldn't try to talk Dutton out of voting the way she
wanted, and advised her that she should vote whatever way
she wished, but admonished her "to think about it because
it made a difference how [she] voted." He added that the
employees "really don't need a union" because the
Respondent "has been pretty fair" to them. Dutton asked
why part-time employees did not have insurances Bailey
replied: "it was probably a mistake by the company and
that it should be remedied very soon." 7
2. Contentions of the parties
The complaint alleges, and the answer denies, that on or
about February 22, 1973, Bailey "created the impression
s I do not intend to imply that Momson's warning to Evans regarding
organizing on working time was in any way improper
6 Dutton had previously been a part-time employee, but at this time was
a full-time employee. Part-time employees had at one time been covered by
the insurance program but this coverage had ended sometime before this
conversation took place. despite a company policy not to withdraw existing
benefits.
7 The findings of fact regarding this conversation are based on a
synthesis of the testimony of both participants. who were basically in
agreement Although Bailey did not testify that Terry's name was
mentioned , he did not deny Dutton's testimony that it was
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among . . . employees that Respondent was keeping their
activities on behalf of the Union under surveillance" and
also "promised employees economic benefits in order to
dissuade them from joining or assisting the Union or
selecting it as their bargaining representative." Pointing to
the remarks of Bailey to Dutton, set forth above, the
General Counsel maintains: "This statement constituted
first an implication of surveillance . . . and the rest of the
statement concerning the insurance coverage implied
promise of benefits to the employees."
The Respondent admits that Bailey was a supervisor
within the Act's definition, but in its brief, argues:
.. . in mentioning Dutton's support for the Union,
Bailey was merely stating the obvious. Under the
circumstances, the statement could not possibly have
been coercive. . . . One cannot spy on what people are
not trying to hide . . . Bailey's alleged isolated
statement to Dutton simply does not contain the
restraining and coercive elements prerequisite to an
8(a)(1) violation.
As to the statement concerning insurance, the Respon-
dent argues (1) "In commenting that the mistake should be
corrected, Bailey did no more than suggest to Dutton that
the Company should honor its policy against withdrawing
benefits that have been extended to employees"; and (2)
"In any event it is undisputed that Dutton was a full-time
employee and already covered by the hospitalization
program."
3. Conclusions
I conclude, in agreement with the General Counsel, that
by stating to Dutton that he knew that she and Terry were
supporters of the Union, Bailey created the impression that
their union activities were under observation. It is true that
Bailey was not shown to have obtained this information
illegally; other employees had apparently volunteered to
him that Dutton and Terry were prounion and he himself
had seen Dutton in the company of nonemployee union
representatives. It is also true that he was neither required
to shut his eyes to what went on openly nor to stop his ears
against information volunteered to him. His vice, however,
was in telling Dutton what he knew, thus emphasizing the
importance the Respondent placed on such matters and
necessarily tending to impede her willingness (and that of
Terry) to continue such activities in the future. And this is
so even if the past union activities of Dutton and/or Terry
had not been furtive. Accordingly, Bailey's conduct
constituted coercion proscribed by the Act.
As for Bailey's remark concerning insurance, this
reference to remedying a "mistake" constituted an implied
promise to improve the lot of the part-time employees,
whether the past lack of insurance is looked upon as
deliberate or accidental. The Board's announced test
regarding the legality of benefits promised during the
pendency of an election is as follows: "What is unlawful
8 Hudson Hosiery Company, 72 NLRB 1434, 1437 See also Tonkawa
Refining Co, 174 NLRB 619, enfd. 434 F.2d 1041 (C.A 10, 1970); and
Stoner Lumber, Inc, 187 NLRB 923, 930 enfd. in pertinent part 80 LRRM
2767 (C A 9, 1972)
under the Act is the employer's granting or announcing
such benefits (although previously determined upon bona
fide) for the purpose of causing the employees to accept or
reject a representative for collective bargaining."s The
Supreme Court, in N.L.R.B. v. Exchange'Parts Co., 375
U.S. 405 (1964), approved this principle.
Let us apply this rule to the case before us. Although
Bailey purported not to be trying to persuade Dutton to
vote against the Union in the forthcoming election, this is
precisely what he was attempting to do. His purpose in
approaching Dutton, an eligible voter, and telling her that
the Respondent had been good to its employees must have
been to win over her vote; otherwise there would have been
no point to it. In the light of Bailey's belief that the Union
would not be a good thing, his seeking out Dutton the day
before the election and commencing a conversation about
the Union, and in the context of his contemporaneous
creation of the impression of illegal surveillance, I am
convinced and find that Bailey's implied promise that the
Respondent would extend insurance coverage to part-time
employees was made for the purpose of influencing Dutton
not to support the Union. And the fact that Dutton
personally did not stand to gain from the promised benefit
does not require a different result. Accordingly, the
Respondent's motion to dismiss the complaint, insofar as
Bailey's conduct is concerned, is denied.9
E. The Conduct of Terry E. Kelley
1. The incident in mid-December
Prior to the matters here relevant James E. Hayman had
been an employee of the Respondent at its store in
Columbus, Ohio. While so employed, Hayman had joined
the Union's Columbus local, and obtained a membership
card which he carried in his wallet.
Later, after intermediate transfers, Hayman was trans-
ferred to the Respondent's Benwood store, where he
worked on the discount side. In m.d-December 1972, at the
beginning of the workday, Hayman had a conversation
with Terry E. Kelley, manager of the discount store, an
admitted supervisor within the Act's definition. According
to Hayman's testimony on direct examination, Kelley
approached him while at work in the major appliance
department and asked if Hayman knew that representa-
tives of the Union had been in the store the night before (a
reference to the pamphleting in the lobby, described
above); Hayman answered in the affirmative. Kelley
remarked that he had had the Union's representatives
jailed for soliciting. Hayman stated he had a union card;
Kelley asked to see it and Hayman gave it to him. Kelley
asked Hayman who was David Rittenhouse (whose
signature was on the card) and also the difference between
Local 1059 and Local 156; Hayman's answer to both
questions was that he did not know. Kelley then made a
telephone call while Hayman was only 5 feet away;
Hayman overheard Kelley ask the person at the other end
of the line the difference between Local 1059 and Local
9 In so holding, I do not mean to imply any illegality in Bailey's remark
to Dutton that Dutton should think about the Union "because it made a
difference how [Dutton] voted "
COOK'S DISCOUNT STORE 139
156, and who Rittenhouse was. Hayman could not hear the
answers. When the telephone call had been completed,
Kelley returned Hayman's union card to him and left. On
cross-examination Hayman testified that Kelley opened
the conversation by asking what Hayman thought of the
Union; Hayman replied that he had previously belonged to
it and he was in favor of it; when Kelley asked why,
Hayman responded that it had obtained good benefits for
the employees. Kelley then asked whether Hayman had
talked to other employees of the Respondent about the
Union and Hayman answered that he had; Hayman
handed Kelley Hayman's union card and Kelley "got on
the telephone and called somebody."
Kelley's version was quite different. According to Kelley,
he was directed by one of his superiors to find out whether
the Union's local in Columbus and in Wheeling were the
same ; while walking through the store Kelley stopped at
the major appliance department to use the telephone there
to call Morrison to see if Morrison knew the answer;
Kelley asked Morrison the question over the telephone;
Hayman, who was standing nearby, volunteered to Kelley
that that was the local he had once belonged to in
Columbus, its number was 1029, and pulled out his wallet.
Kelley testified further that he could not recall saying
anything at all to Hayman. Karl Wolford, then manager of
the major appliance department at the Benwood store,
generally corroborated this, but added that Hayman made
a gesture as if to offer his billfold to Kelley, and Kelley
said no, he (Kelley) did not want to see it.10
2. The incident in January
The second incident related by Hayman allegedly
occurred in mid-January 1973, between noon and 1 p.m.,
while Hayman and Kelley "were just walking through the
store." According to Hayman, Kelley asked if Hayman
knew the difference between the Union and the Meat
Cutters; Hayman answered that he knew they were two
different unions; Kelley asked why Hayman favored the
Union; Hayman replied that he had been in the Union and
liked their "better benefits"-on which he elaborated.
Kelley inquired whether Hayman had been questioned
about the Union by other employees; Hayman said he had
been asked by his fellow workers "what they [the Union]
had to offer." Kelley inquired whether Hayman had
attended any union meetings; Hayman answered "No."
Finally, Kelley asked if Hayman knew of anyone who had
attended such meetings; once more Hayman's response
was negative.
Again, Kelley's version differs radically from that of
Hayman. According to Kelley, Kelley was walking through
the store and when he approached the major appliance
department Hayman volunteered that organizers for the
Union had been at his home the previous night "bother-
ing" him to sign a card; Kelley did not reply and kept on
walking. Kelley's version was corroborated in substantial
part by the testimony of Wolford, who was present.
Wolford, however, could not recall any mention of the
Union "trying to get him [Hayman] signed up."
10 Kelley also testified to an antiunion remark Hayman made to him
about 2 weeks earlier. Wolford corroborated this I deem it unnecessary to
3. The alleged incident in February
The final episode was allegedly enacted in February
1973. Hayman had attended a union meeting on February
7. The next day, February 8, he was due to start work at
12:30 p.m. According to Hayman, at the start of his
workday, Kelley said to him: "I understand that you
attended a meeting last night"; Hayman answered, "Yes."
Kelley asked who had attended and whether Hayman
knew of anyone who had signed a card or whether he
himself had done so. Hayman replied "No." Kelley then
asked Hayman what he thought the Union's chances of
winning the election were and Hayman responded that he
"really didn't know," but if any union were to get in, he
(Hayman) would "most definitely" prefer that it should be
the Union, and explained why. Kelley testified that he did
not recall any conversation with Hayman around this date.
He denied that he had asked any employee what his or her
feelings were regarding the Union.
4. Contentions and conclusions
The complaint alleges, and the answer denies, that
Kelley "interrogated employees concerning their union
membership, activities and sympathies, and the union
membership, activities and sympathies of their fellow
employees" on or about December 15, 1972, in January
1972, and on or about February 5, 1973, and in addition
that on the later date he had also "created the impression
among [the Respondent's] employees that Respondent was
keeping their activities on behalf of the Union under
surviellance."
The General Counsel 's entire case as to Kelley's conduct
depends solely on the uncorroborated testimony of
Hayman, which was contradicted in large part by the
testimony of Kelley and Wolford. Kelley seemed to me to
be a forthright and candid witness whose testimony made
sense . On the other hand, Hayman impressed me as an
unreliable and undependable witness. His testimony was
difficult to follow and this was not because he was
inarticulate but rather because he kept changing his
description of events in important respects. Moreover he
was a disgruntled former employee. I am of the opinion
that Hayman's testimony lacked sufficient probative
weight to carry the General Counsel's required burden of
proof. Accordingly, the Respondent's motion to dismiss
the complaint is granted, insofar as the conduct of Kelley
is concerned.
Upon the basis of the above findings of fact, and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Cook United, Inc., d/b/a Cook's Discount Store, is,
and at all material times has been, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks International Association, Local No.
156, AFL-CIO, is, and at all material times has been, a
discuss the testimony of these witnesses concerning this earlier event
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization within the meaning of Section 2(5) of
the Act.
3. By prohibiting employees of the grocery side of its
store from becoming involved in organizing employees of
the discount side, or otherwise indicating to its employees
that union activities were inconsistent with continued
employment by the Respondent; by creating the impres-
sion that it was engaging in surveillance of its employees'
union activities; and by promising benefits to its employees
in order to discourage them from supporting the above-
named labor organization; thereby interfering with, re-
straining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has
engaged in or is engaging in any unfair labor practices
other than as found herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
iORDER"
Cook United, Inc., d/b/a Cook's Discount Store,
Benwood, West Virginia, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Prohibiting employees of the grocery side of its store
from becoming involved in organizing employees of the
discount side, or otherwise indicating to its employees that
union activities are inconsistent with continued employ-
ment by the Respondent.
(b) Creating the impression that it is, or has been,
engaging in surveillance of its employees ' union activities.
(c) Promising benefits to its employees in order to
discourage them from supporting any labor organization.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights protected by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its store in Benwood, West Virginia, copies of
the attached notice marked "Appendix." 12 Copies of such
notice, on forms provided by the Regional Director for
Region 6, after being signed by an authorized representa-
tive of the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and shall be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily displayed. Reasonable steps shall be taken by
the Respondent to insure that these notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed,
insofar as it alleges that the Respondent violated the Act
other than as found herein.
ii In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall , as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings , conclusions , and Order, and all objections shall be
deemed waived for all purposes
i2 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 "