Furr's, Inc.

National Labor Relations Board - Board Decisions

May 13, 1975

217 N.L.R.B. 973 (N.L.R.B. 1975)

FURR'S, INC. 973
Fwrr's, Inc. and Retail Clerks Union, Local 368,
AFL-CIO. Case 16-CA-5603
May 13, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
"(b) Rescind and physically remove from the person-
nel file of Charlotte Royal any reference to the written
warning issued to her on May 18, 1974, so that this
warning shall not be used as a basis for any further
disciplinary action against her."
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
APPENDIX
On January 7, 1975, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the 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 brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge except as noted
below' and to adopt his recommended Order, as
modified. 2
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that the Respondent, Furr's, Inc., Ama-
rillo, Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order of the Ad-
ministrative Law Judge, as herein modified.
1. Add the following as new paragraph 2(b) and
reletter paragraphs 2(b) through 2(d) of the Adminis-
trative Law Judge's Order accordingly.
I We do not adopt the Administrative Law Judge's 8(a)(3) rationale
insofar as he relied, as evidence of Respondent's animus, on a finding that
Store Manager Poteet had threatened a drug clerk with layoff if she signed
a union card This finding is based entirely on hearsay evidence and, al-
though the Administrative Law Judge's use of such evidence in the circum-
stances here was not clearly wrong, we find it unnecessary to rely on this
testimony to establish that Respondent's discharge of Royal violated Sec.
8(a)(3) of the Act
2 We find without merit Respondent's implicit allegations of bias and
prejudice There is no basis for finding that bias or prejudice existed merely
because the Administrative Law Judge credited only the General Counsel's
witness As the Supreme Court has stated " . . total rejection of an op-
posed view cannot of itself impugn the integrity or competence of a trier of
fact.' N.L.R.B. v. Pittsburgh S. S Company, 337 U S 656 (1949)
As to Respondent's additional argument that the Administrative Law
Judge failed to give proper weight to the testimony of Brooks and Burgess
because they were disinterested witnesses, we note that the Administrative
Law Judge gave cogent reasons for discrediting their testimony 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 convinces us that the resolutions are incorrect
Standard Dry WallProducts, Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362
(C A. 3, 1951) We have carefully examined the record and find no basis for
reversing his credibility findings
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the Re-
tail Clerks Union, Local 368, AFL-CIO, or in any
other labor organization of our employees, by dis-
charging or laying off our employees or otherwise
discriminating in regard to their hire or tenure or
condition of employment.
WE WILL offer Charlotte Royal immediate and
full reinstatement to her former position or, if it no
longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of earnings she may have suffered as a result
of our discrimination against her.
WE WILL rescind and physically remove from
Charlotte Royal's personnel files any reference to
the written warning issued to her on May 18, 1974,
so that this warning shall not be used as a basis for
any future disciplinary action against her.
WE WILL NOT interrogate our employees concern-
ing their membership in, or activities on behalf of,
or sympathy for the above-named labor organiza-
tion, or any other labor organization.
WE WILL NOT warn our employees that they will
be discharged or otherwise disciplined if they do
not refrain from becoming or remaining members
of the above-named labor organization.
WE WILL NOT threaten our employees with dis-
charge if they become or remain members or sup-
port the above-named labor organization.
WE WILL NOT keep under surveillance the meet-
ing places, the union activity, or other concerted
activities of our employees engaged in for the pur-
pose of collective bargaining or other mutual aid
or protection.
WE WILL NOT issue untimely written reprimands
to our employees prior to issuance of oral warn-
ings contrary to our rules because our employees
become or remain members of the above-named
labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
217 NLRB No. 161
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of the rights guaranteed them by the National
Labor Relations Act.
All of our employees are free to become, remain, or
refrain from becoming or remaining , members of the
above-named or any other labor organization. -
FURR'S, INC --
DECISION
STATEMENT OF THE CASE
MAuRIcE S. BUSH, Administrative Law Judge: Respon-
dent Fun's, Inc., operates 10 supermarkets in Amarillo,
Texas, and 3 in nearby towns, but the only stores here in-
volved are 3 of its stores in Amarillo.
These are Store Nos. 60, 64, and 54. The issues under the
pleadings with respect to these stores are whether Furr's
engaged in certain unfair labor practices in such stores in
violation of Section 8(a)(1) of the National Labor Relations
Act, such as unlawful employee interrogations , surveillance
of union activities , and various warnings and reprisal threats
against union sympathies and activities.'
In addition there is an issue as to whether Charlotte Royal,
an employee at Store No. 54, was unlawfully discharged be-
cause of her union activities in violation of Section 8(a)(3) of
the Act. About 90 percent of the testimony in the case re-
volves around that issue and related 8(a)(1) issues . With re-
spect to the alleged unfair labor practices under Section
8(a)(1) of the Act at Stores Nos. 60 and 64 , the testimony
offered by General Counsel in support thereof stands un-
denied of record.
The amended complaint herein was issued on August 13,
1974, pursuant to the original , first, second, third, and fourth
amended charges filed and duly served on Respondent on
May 30, June 13, July 15, and August 1 and 7, 1974, respec-
tively. Respondent 's answer denies the alleged unfair labor
practices.
The case was heard before me on September 11, 12, and 13,
1974, at Amarillo, Texas. Briefs filed by the parties on Octo-
ber 16, 1974, have been carefully reviewed and considered.
The page numbers of certain pages in the transcript stand
corrected pursuant to the request of the court reporter.
For reasons hereinafter indicated, Respondent is found in
multiple violations of the Act as alleged in the complaint
except for a failure of proof on two of such allegations as
noted below.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent Furr's, Inc., A Texas corporation, with princi-
pal office and place of business at Lubbock, Texas, is engaged
in the sale and distribution of food and the operation of retail
supermarkets. During the past 12 months, a representative
period , Respondent in the course and conduct of its business
I Not all of these alleged unfair labor practices relate to all of the three
supermarkets here involved
operations , purchased and received goods and merchandise
valued in excess of $50,000 directly from points located out-
side the State of Texas. It is admitted and found that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Retail Clerks Umon, Local 368, AFL-CIO, the Charging
Party, is a labor organization within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Company Operations Here Involved
Fury's operates 13 supermarkets in the greater metropoli-
tan area of Amarillo, Texas . Of these stores, 10 are located
in Amarillotnd 3 are in nearby towns. Only 3 of the 10 stores
located in Amarillo are here involved . They are Store Nos.
60, 64, and 54.
B. First Stirrings of Union Activity in Respondent's
Amarillo Operational Area
The first express indication of record of union activity in
Respondent 's Amarillo division was a union organization
meeting held by Respondent 's employees in the evening of
May 14, 1974 . The meeting was held in the home of Lois
Green , age 40 , who has worked at Respondent's Store No. 64
as a meat wrapper for the past 12 years. The meeting was
attended by some 15 Furr's employees , all of whom signed
union authorization cards. In addition to Lois Green among
those in attendance at the meeting were Green's daughter,
Charlotte Royal, age 20 , who worked as a checker at Store
No. 54 , until her alleged discriminatory discharge on May 27,
1974; Imelda Scott, employed as a checker at Store No. 64;
and Edwin Ray Brooks , age 19, a former employee at Store
No. 54 , who had worked as a stock-checker and as man-in-
charge or manager of Store No. 54 on every third Sunday.
Brooks not only signed a union authorization card at the
meeting but was also very active the next morning trying to
get other employees in his store, Store No. 54, interested in
the Union. However, almost immediately thereafter he lost
interest in organizing the store because of the fear of losing
his job .2 Brooks testified in support of Respondent 's defense
for the termination of Charlotte Royal . Royal , Green, and
Scott testified for General Counsel in support of various alle-
gations of the complaint.
C. Undenied 8(a)(1) Incidents at Store No. 60
Cecil Jackson is store manager of Respondent's Store No.
60 in Amarillo. He has supervision over Randy Lermon, age
18, an employee at Store No. 60.
Lermon 's credited and undenied testimony shows that the
following occurred at an unremembered date in June 1974.
Between the hour of 7:30 and 8:30 that night, the Company
held a meeting of the employees of Store No . 60 at a restau-
2 The above finding on Brooks is based on the credited and undemed
testimony of Charlotte Royal
FURR'S, INC. 975
rant, the Camelot, where the employees were addressed by
Robert Hurmence, Respondent 's personnel director, on the
subject of unionism and the Company's policies with refer-
ence thereto, during the course of which Hurmence told the
employees that all talk about having a union at the store had
to be done on their own time and outside of the premises of
the store.'
After the meeting at the Camelot restaurant broke up,
Lemon and Stan Stanbaugh, a checker, returned to Store
No. 60 to sign out as the meeting had been on company time.
Just as they were signing out,' Store Manager Jackson, who
had also been at the meeting, asked them what they thought
of the meeting . Both replied it was all right. Then Jackson
asked them if they had signed union authorization cards.
They untruthfully told Jackson that they had not. Jackson
then ended the conversation by telling them that "if he seen
or heard of anyone signing a union card that he would fire
them."
Respondent did not call Jackson or any other witness to
controvert Lermon's testimony as summarized above.
About 2 weeks later, Houchins came to Mrs. Scott's check
stand and asked her to lock up and go with him to the
backroom. This occurred immediately after Houchins had
received a telephone call from an undisclosed source. In the
backroom, Houchins informed Scott that she should not have
anything to do with the Union , that the Union was not going
to benefit her at all, that if the Union came in Respondent
would have to drop its retirement and insurance benefits and
lay off every employee under 18 years of age.
A few days later Houchins approached the adjacent check
stands of Mrs. Scott and Judy Quantana and there told the
two ladies that because they were having something to do
with the Union, Judy's husband, who was up for a promotion
with the Company, would not get his promotion but would
be discharged instead.
Respondent did not call Houchins or any other witnesses
to controvert the testimony of Mrs. Scott as summarized
above.
Conclusions
Conclusions
Based on the credited and undenied testimony of employee
Lennon, I find and conclude that Respondent through its
Store No. 60 manager and agent , Jackson, coercively interro-
gated Lermon on whether he had signed a union authoriza-
tion card and threatened to fire any employee in his store
whom he found to have signed a union card in violation of
Section 8(a)(1) of the Act.
D. Undenied 8(a)(1) Incidents at Store No. 64 Relating
to Store Manager Houchins
Gene Houchins is store manager of Store No. 64 in Ama-
rillo. Imelda Scott works under Houchins as head checker at
Store No. 64; she had been a checker at the store for nearly
12 years and its head checker for the past 5 years.
As heretofore noted , Mrs. Scott was one of Respondent's
employees who attended the Union 's first organizational
meeting on May 14, 1974, at the home of coworker Lois
Green, a meat wrapper at the same store for the past 12 years.
Mrs. Scott 's credited and undenied testimony shows the
following conversations with Store Manager Houchins who
attends the same church she does and whom she regards as
closer friend than coworker Green. On the morning of May
15, 1974, after the previous night's union meeting at the home
of Mrs. Green, Houchins called Mrs. Scott over to where he
was working at the store and told her that he had heard that
she had gone "to a union meeting last night" at the home of
Mrs. Green . Houchins then asked Mrs. Scott if she had
signed a, union card . Scott evaded his questions by telling him
one of the things she had learned at the union meeting was
that managers were not allowed to ask questions such as he
was putting to her.
3 The complaint does not allege and General Counsel does not claim any
violation of the Act by the speech or remarks made by Personnel Director
Hurmence to Respondent 's assembled employees of Store No 60 It is the
events or incidents following Hurmence 's speech which are alleged to be
violations of the Act.
Based on the credited and undenied testimony of Mrs.
Scott, I find and conclude that Respondent through its Store
No. 64 manager and agent, Houchins , coercively interrogated
Mrs. Scott on whether she had signed a union card , threat-
ened the loss of existing company retirement and insurance
benefits for employees if the Union came to represent the
employees in Store No. 64, and kept under surveillance a
meeting place of the Union and other concerted activities its
employees engaged in for the purposes of collective bargain-
ing or other mutual aid or protection in violation of Section
8(a)(1) of the Act.
E. Further Undenied 8(a)(1) Incidents at Store No. 64
Relating to District Meat Department Supervisor Don
Shirley
Don Shirley is Respondent's district meat department
supervisor . In that capacity he visits and supervises the meat
departments in each of Respondent 's 13 supermarkets in the
greater metropolitan area of Amarillo. On matters relating to
the meat department at Store No. 64 , Store Manager Hou-
chins takes orders from Shirley. Both Shirley and Houchins
in turn worked under the direction and supervision of Done-
van Stafford, divisional supervisor of all of Respondent's 13
stores in the Amarillo district.
Lois Green as heretofore noted has been employed in Store
No. 64 as meat wrapper for the past 12 years and it was at
her home that the Union's first organizational meeting took
place on May 14, 1974.
Mrs. Green's credited and undisputed testimony shows
that Supervisor Shirley made a visit to Store No. 64 some 2
or 3 days after the union meeting at her home and called her
into the backroom of the store for a private conference. There
he said to her, "What 's this I hear about you having union
meetings at your home?" Surprised , Mrs. Green asked him
where he got that information. Shirley replied that Divisional
Supervisor Stafford had telephoned him from one of the other
stores and directed him to come to Store No. 64 and "talk to"
Mrs. Green , "and get the union business straightened out "
Shirley also told Mrs. Green that Stafford had told him that
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if she was not happy as a Furr's employee, she could quit and
go to work for Safeway or Piggly-Wiggly. Green asked Shir-
ley if he wanted to fire her and he replied "No" because she
was "too good an employee." During the course of the con-
versation Shirley asked Green why the Furr's employees were
interested in the Union and she replied "on account of the
benefits and the retirement."
Neither Shirley or Stafford or any other witnesses were
called by Respondent to controvert Mrs. Green's testimony
as outlined above.
Conclusion
Based on the credited and undenied testimony of Mrs.
Green, I find and conclude that Respondent through its meat
department supervisor, Shirley, coercively interrogated Mrs.
Green concerning her union activities in violation of Section
8(a)(1) of the Act.
F. Alleged 8(a)(1) Events and Alleged Discriminatory
Discharge of Charlotte Royal at Store No. 54
Of the 662-page transcript of testimony in this proceeding,
585 pages relate to the alleged discriminatory discharge of
Charlotte Royal from Store No. 54 and alleged related 8(a)(1)
incidents involving her.
Royal, a young married woman of 20, was hired as a
checker cashier at Store No. 54 in February 1974 and ter-
minated on May 27, 1974, by Store Manager Michael Poteet.
She attended the union meeting held on the night of May 14,
1974, at her mother's home, the aforementioned Lois Green
who as above noted is employed as a meat wrapper at another
of Respondent's stores in Amarillo. Store No. 54 has nine
check stands where customers check and pay for their pur-
chases. Royal normally worked at Check Stand No. 3. Of all
the employees in Store No. 54, Royal was the most active in
efforts to organize the store in behalf of Local 368, the Charg-
ing Party herein.4 At the umon meeting at her mother's
home, she picked up five union authorization cards and
passed them out to employees at the store, but never received
any of them back.
The next day after the union meeting at her mother's
house, Store Manager Poteet asked Royal during her working
hours if she had attended the meeting. She said "Yes" and he
asked no further questions at that time. However, that night
while Royal was in the store shopping for groceries on her
own time, Poteet spotted her from his elevated office and
summoned her over the store's loudspeaker to see him at his
office. There he asked Royal her opinion about the Union and
why she wanted to join the Union. She told Poteet that she
was interested in the Union because she believed the Union
could get better wages, insurance benefits, and job security
for the store's employees. Poteet in turn told her of his intense
dislike of unions because of his prior experience in observing
violence erupting from a union's attempt to organize a shop.
As for the benefits the Union was proposing to get for the
employees, Poteet asked Royal to compare them against the
Company's existing benefits and to let him know what her
thoughts were on the comparison. Similarly, Poteet also
4 The above finding is based upon the credited and undisputed testimony
of Royal under questioning by the administrative law judge herein
asked Royal to reconsider her support of the Union and to
let him know later what decision she had arrived at. He
further told Royal that if the Union got in, the Company
could not afford to keep as many employees as it had and
would be forced to lay off or discharge some of its employees.
The findings in the above paragraph are based upon the
credited testimony of Charlotte Royal. Throughout her direct
and cross-examination I was impressed with Royal's obvious
integrity, her careful and honest answers to all questions put
to her, and her straightforwardness in admitting lack of infor-
mation on subjects or matters that were not within her knowl-
edge.
Store Manager Poteet while admitting that he had a 5-to-
10 minute talk with Royal on May 15, 1974, flatly denies that
he made the statements attributed to him by Royal in her
testimony as set forth in the above findings, except that he
admits talking to Royal about the subject of having a union
at the store, admits he asked her to compare the Union's
proposed employee benefits against the Company's existing
benefits for its employees, and admits that he told Royal that
the distribution of union cards must be made off company
premises and on the employees' own time under the Com-
pany's no-solicitation rule. In view of Poteet's noted admis-
sions and because of Royal's superior credibility, I discredit
his,denials of the statements attributed to him by Royal as
shown above. I further specifically discredit Poteet's tes-
timony that it was Royal and not he who initiated the conver-
sation about the Union at his conference with her on May 15,
1974. I specifically find that Poteet initiated the conversation
with Royal on the subject of a union shop at the store and that
the whole of his conversation with Royal related to his argu-
ments with her on the demerits of having a union at Store No.
54 of which he was manager.
Aside from the evidence more directly related to the al-
leged discriminatory, termination of Royal but in the nature
of circumstantial evidence bearing on that issue, the record
shows that during the union activity at Store No. 54 Poteet
threatened one of the employees in the store's drug depart-
ment with a layoff if she signed a union card.'
Within the week after Poteet's private talk with Royal
about the union activity in his store, he issued to Royal two
successive pink "Warning" notices and in the following week
a blue "Disciplinary Termination" notice, discharging her as
of May 27, 1974.
' The above finding is based on the credited and undisputed testimony of
Royal under cross-examination by Respondent's counsel as follows
Q (By Respondent's counsel) Do you know of anyone else in that
store [Store No 54] against whom any action was taken because of
union activity other than yourself?
A. (By Royal) From hearsay; Edwin Brooks [the stocker-checker
who was placed in charge of Store No. 54 every third Sunday, but had
no authority to hire or fire employees] had told me that he [Poteet]
threatened one of the drug girls that she would be laid off of her job if
she signed a umon card (Tr 259) (Emphasis supplied.)
It is clear from any reading of Royal's above testimony that the "he" she
had reference to was Poteet, as it was he and not Brooks who had the
authority to terminate an employee. Royal's characterization of the infor-
mation she received from Brooks as "hearsay" is undoubtedly true although
Royal is a layman, not a lawyer Nevertheless, I find that bit of testimony
both credible and acceptable in evidence because there was no objection to
it, no motion to strike, and no denial by either Brooks or Poteet that Royal's
testimony, even if hearsay, was not true
FURR'S, INC.
The first pink warning slip, dated May 18, 1974, accused
Royal of a 10-minute tardiness in reporting to work that day
or, as stated in the notice, "Came to work at 11:10 and signed
in at 11." Under the title "Who witnessed the Act" on the slip
are the I signatures of Tim Cates, Karan Moore, and Mike
Poteet. Of these three named persons, only Poteet testified as
to Royal's alleged tardiness that day. Under the title of
"What was said by the employee in his defense?", Royal
wrote on the slip, "I thought my watch was set with store
time." The warning shows that no prior oral warnings had
been given to Royal for the same or a similar offense.
The written pink warning notice given by Poteet to Royal
was contrary to the Company's own printed "Store Rules"
which states that an "Oral Warning" should be first given to
employees for "violation of a relatively minor nature" such
as "'tardiness" before a written warning is issued for a "con-
tinuous repetition of conduct for-which an employee has been
orally warned."
The testimony on whether Royal was tardy that day is as
follows. Poteet testified that he spoke to Royal about her
tardiness and told her he could no longer tolerate her tend-
ency to be tardy as he had talked to her once before about it.
His testimony that he had orally warned her earlier about her
tardiness is directly contrary to his aforenoted statement in
the pink notice that no prior oral warnings had been given to
Royal for the same offense.
Royal, on the other hand, testified that on the morning in
question she had reported to work at her assigned starting
time, 11- a.m., according to her wristwatch, and was in the
produce room for a period of about 10 minutes memorizing
produce prices for the day as required of all checkers at the
beginning of their shifts when Poteet summoned her to his
office to give her her first pink warning slip. She testified that
as she walked to Poteet's office one of the clocks in the store
showed the time to be 11:10, but that she had already been
at work since 11 o'clock that morning. I credit Royal's tes-
timony that she reported to work on time that morning and
discredit Poteet's testimony that she was late. I discredit
Poteet because as noted heretofore I have found his testimony
to be generally unconvincing and more particularly because
his testimony that he had orally warned Royal about her
tardiness prior to the issuance of the pink warning notice does
not square with his own statement in the warning notice that
Royal had never before been given any oral warnings about
tardiness or any similar offense.
Two days later, on May 20, Royal was given a second pink
warning notice, this time for being "Incourtious (sic) to Cus-
tomer" as of the date of the notice. The warning notice was
signed by Tim Cates, the assistant manager of Store No. 54.
The record shows that Cates issued the notice to Royal upon
the complaint of a customer by the name of Esther Burgess,
who testified herein in behalf of Respondent. However, Mrs.
Burgess' testimony shows that in her complaint to Cates she
was not complaining about any personal discourtesy by
Royal to herself but of an alleged discourtesy she claims to
have observed by Royal to another customer, a Mrs. Marjorie
Boyd, who made no direct complaint to management, did not
appear as a witness, and obviously as shown below had not
asked Mrs. Boyd to make a complaint in her behalf. Mrs.
Burgess testified that as she was having her groceries checked
at Check Stand No. 7 she observed that Mrs. Boyd, a frater-
977
nal order friend, was having her groceries checked at Check
Stand No. 5, operated by Royal and overheard what she
described as a "bickering" between Mrs. Boyd and Royal
over the difficulty of locating the misplaced cash register sales
tape that Royal had run up on Mrs. Boyd's groceries which
Royal needed before she could make change for Mrs. Boyd.
Burgess, before leaving the store and before even talking to
Mrs. Boyd, immediately went to the store's office and there
complained to Cates that, "The girl in check stand No. 5, we
don't need her at this store. I told him that they [Royal and
Mrs. Boyd] were arguing back and forth and that she
[Mrs. Boyd] was my Pythian sister and that she [Royal]
wouldn't give her the slip. I know that much." It was not
until after Burgess had left the store that she met and talked
to Mrs. Boyd and heard her claim that she had not received
the tape showing the total amount -of groceries she had pur-
chased and was therefore uncertain that she had received the
correct change from the large check she had presented in
payment of her groceries. I do not credit Burgess' hearsay
testimony that Boyd had not received a sales slip on her
grocery purchases.
As aforenoted the incident about the misplaced sales check
took place on May 20, 1974. In September 1974 when this
case was heard, Mrs. Burgess had not seen her Pythian friend,
Mrs. Boyd, a woman in her sixties, since the May 20 incident,
but testified that she had tried to contact her friend just prior
to the hearing and found that she was out of town to attend
a funeral.
The second witness to testify about the misplaced sales slip
incident was Charles H. Carlton, known as Rusty Carlton,
age 20. At the date of the incident, Carlton was employed at
Store No. 54 as a stocker-checker under the management of
Poteet, but at the time of the hearing was working part time
for another Furr's supermarket at Lubbock, Texas, a job that
Poteet had helped him get to give him some earnings while
attending Texas Tech in Lubbock. Carlton claims he was in
the office with Cates when Mrs. Burgess complained to Cates
about the alleged discourtesy of Royal arising out of the
misplaced sales slip . As Carlton recalled Mrs. Burgess' com-
plaint to Cates, she complained that she herself had been the
subject of discourtesy by Royal over her own misplaced sales
slip. This is completely contrary to Mrs. Burgess' testimony
that she made the complaint to Cates over Royal's alleged
discourtesy to Mrs. Boyd over her (Boyd 's) misplaced sales
slip and not that of her own sales slip. I accordingly discredit
Carlton's testimony and have serious doubt if Carlton was
even present when Burgess spoke to Cates. For the same
reason I will also discredit his testimony, hereinafter de-
scribed in more detail, that on the Sunday before Royal's
termination he saw her lock her check stand and walk away
for a rest break despite the fact that the man in charge of the
store, the aforementioned Brooks, had told her to wait a
while. (Respondent contends that the immediate cause of
Royal's discharge was that she took a rest break from her
check stand without a clearance from the store manager con-
trary to Respondent's Store Rules.)
Although Cates was the store manager who gave Royal her
pink warning slip for discourtesy to a customer, he was not
called as a witness by Respondent and did not testify herein.
Royal's testimony shows that when she was summoned to the
office within the hour after the misplaced tape incident, the
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
pink warning notice for her alleged discourtesy to a customer
was already made out, and that Cates would not hear her out
when she offered to explain what had happened.
Royal's explanation of what occurred in the misplaced
sales tape incident is as follows . She testified that after she
had checked out Mrs. Boyd's groceries for the total sum of
about $25, Mrs. Boyd handed her a check for more than $200
out of which to pay for her groceries. Royal testified that she
thereupon laid the sales tape on the counter while she went
to another check stand to get the money required to cash the
check. When she returned, she found the sales slip missing
and therefore could not make the necessary change from the
check as she needed to know the exact amount of Mrs. Boyd's
grocery bill before she could give Mrs. Boyd her change. She
looked for the tape in two of the customer's bagged groceries
but could not find it. She then asked Mrs. Boyd if she had put
the tape in her purse. When the customer said she had not,
Royal made another search for the missing tape in the gro-
cery bags and not finding it, she again asked the customer if
she was sure she had not put the tape into her purse. Mrs.
Boyd again said she had not In her third check through the
customer's bags of groceries, Royal found the check which
apparently had been placed there by the sacker and pro-
ceeded to give Mrs. Boyd her change. As Royal was making
the change, Mrs. Boyd said to her, "Young lady, I don't like
to be insinuated that I am stupid." Royal said she hadn't
meant any such insinuation. Not satisfied with that explana-
tion, Mrs. Boyd told Royal that she was the one who was
stupid. Royal told the customer that she did not want to
argue with her but would let her talk to the store manager.
Mrs. Boyd said that was not necessary but she told Royal that
she would not shop at the store any more. She thereupon took
her change and left the store. I credit Royal's version of the
incident as set forth above.
Cates within the hour after the misplaced sales check inci-
dent gave Royal a pink warning notice for her alleged dis-
courtesy to a customer and asked her to put in writing
thereon her "defense." In the place provided for her answer,
Royal wrote, "The lady called me stupid and I had the right
to defend myself, but I didn't start to argue with her." In its
published Store Rules, Respondent has a Store Rule against
"insulting or argumentative treatment of a customer resulting
in a complaint." I find that while there was some natural
tension between Royal and Mrs. Boyd over the misplaced
sales ticket, Royal was not discourteous to Mrs. Burgess over
the matter and with due allowance for the tension over the
seemingly lost sales ticket, Royal did not argue with Burgess
over the matter in the sense of making or insinuating any
accusations to Mrs. Boyd about being stupid.
On May 27, 7 days after Royal's alleged discourtesy to
Mrs. Boyd over the misplaced sales slip incident, Store
Manager Poteet called Royal to his office and fired her for
"Causing trouble Sunday with Sunday Person in Charge." As
developed at the hearing, the "Causing trouble Sunday" is
Respondent's claim that Royal took an alleged rest break
from her check stand without authorization from the store
manager, Brooks, on Sunday, May 26, contrary to Respon-
dent's "Shop Rules" which provide that "leaving work shift
without permission" shall be a cause for suspension or dis-
charge.
On the Sunday in question, May 26, Brooks, the aforemen-
tioned young man of 19, was in charge of Store No. 54 and
thus the store's acting manager that day. It is undisputed that
on that day about noontime Royal, who had reported to work
at 10 a.m., asked Brooks for a 15-minute "rest period" or
break6 from her check stand to which she was entitled un-
der the Company's Shop Rules subject only to a clearance by
the store manager who bases his decision on how busy the
store is with customers at the time of the request for a break.
The record is clear that when Royal asked permission for
a rest break, Brooks asked her to wait because he was one
checker short that day and had to do some telephoning in his
office about getting a replacement-for-the absent checker. But
from that point on there is a direct conflict of testimony as
to whether Royal within minutes thereafter took off anyway
for a rest break without Brooks' permission and against his
instruction that she wait until he found it expedient to let her
go on a break. At the time of Royal's request for a break there
were only three other checkers on duty besides Royal and
each had customers in their lures.
Royal testified that she strictly abided by Brooks' instruc-
tion to wait for her rest break and that she did not leave for
a rest break until 2 hours later at around 2 o'clock when
Brooks approved her subsequent second request for a break.
She denied positively under direct and cross-examination and
under rebuttal that she took a rest break that noon contrary
to Brooks' order that she wait. She testified, however, that
shortly after Brooks denied her noon request for a rest period
break she may have left her check stand momentarily for a
toilet=break but with the candor I found characteristic of all
of her testimony she testified that she had no present recollec-
tion of whether or not she took such a lavatory break. The
record shows through the credited and undenied testimony of
another checker, Velma Roe, that toilet breaks may be taken
by checkers when they are not busy without the express
permission of the manager.
As against Royal's flat denial that she took a rest break that
Sunday noon contrary to orders, Brooks, who has left the
employment of Respondent, testified that some 10 or 15 min-
utes later when he had returned from telephoning for a
substitute for the checker who had not showed up for work
that day, he returned to the area of Royal's check stand and
found that she had closed her register and was walking down
the front aisle of the store. Brooks admits that he did not
speak to or reprimand her at any time that Sunday for her
seeming infraction of his order to stay at her check stand.
However, he told Store Manager Poteet the next day about
-seeing Royal leave her work station on the previous day
without clearance from him.
Two other witnesses testified in behalf of Respondent as to
what they believed to be Royal's taking of an unauthorized
rest break at the Sunday noon hour here in question.
The first of these witnesses is the aforementioned 20-year-
old Rusty Carlton who at the time here involved worked as
a stocker-checker at Store No. 54 under Store Manager Po-
teet but at the time of the hearing had a part-time job with
another Furr's store in Lubbock which Poteet helped him get
as a financial aid while he attends Texas Tech in Lubbock.
Carlton was off duty at Store No. 54 on the Sunday here
6 Not for use of toilet facilities.
FURR'S, INC.
under discussion , but testified that around noontime that day
he was in the store buying a few groceries when he overheard
Royal asking Brooks for a rest break and heard Brooks tell
her to wait a while -as he had to attend to some business in
the office first. Carlton testified that he overheard this con-
versation while he was having his groceries checked at a
check stand adjacent to Royal's. He further testified that he
was still present at the check stand where he was having his
groceries checked some 5 to 10 minutes later when he saw
Royal lock her check stand and leave even though Brooks
had not returned to relieve her.
I discredit Carlton's testimony as outlined above for two
reasons. One is that Carlton has shown himself as heretofore
noted to be a wholly unreliable witness in another connection.
In his testimony relative to Royal's pink warning slip for
discourtesy to a customer, Carlton testified that Mrs. Bur-
gess, a customer, in his presence complained to Assistant
Manager Cates about a discourtesy she herself experienced at
the hands of Royal. This was obviously not true because Mrs.
Burgess, who is the best authority on what she told Cates,
testified that she complained to Cates, not about personal
discourtesy by Royal to herself, but what she believed to be
discourtesy by Royal to another customer, Mrs. Boyd. I infer
from this disparity that Carlton was not even present when
Burgess made her complaint to Cates or if he was present,
that he is a totally unreliable witness for all purposes on vital
issues in this proceeding.
My second reason for discrediting Carlton's testimony
about Royal leaving her check stand on the Sunday noon here
under discussion is that he stated that he was still waiting to
be checked out some 5 or 10 minutes after Brooks had asked
Royal to wait for her break when he saw her lock her register
and walk off. Common experience shows that normally cus-
tomers do not have to wait in line 5 to 10 minutes to get their
groceries checked out. Thus Carlton's testimony as a whole
raises, serious doubts that he was even in the store on the
Sunday noon here under discussion. Royal testified that she
had no recollection of seeing Carlton that Sunday noon. In
summary I do not credit Carlton's testimony of the events
that Sunday noon as they relate to Royal.
The last witness to testify as to the events of that Sunday
noon as they relate to Royal was Jerry Graves, a 17-year-old
high school boy who is employed as a part-time sacker at
Store No. 54. Royal likewise had no recollection of seeing
Graves at the time here under discussion. In his direct tes-
timony, Graves testified that on that Sunday noon he was at
Check Stand No. 4, then unattended and nonactive, for about
8 minutes putting in a supply of sacks in its sack bin. He
testified that while he was placing sacks in the sack bin, he
overheard Royal at adjacent Check Stand No. 3 asking
Manager Brooks for a rest break and heard Brooks tell her
that she could not have one right then "because we were busy
and that he would let her take one later." He further testified
that in a little while he saw Royal close her stand and walk
off, although she had about four customers waiting in her line
to be checked out and that he did not see her come back.
Under cross-examination, Graves testified, contrary to his
testimony on direct examination, that at the time he saw
Royal lock up and leave her check stand he did not know
whether she had requested permission for a break before that
time.'
979
I do not credit Graves' testimony that Royal took off on
a rest break without permission on the Sunday noon here
under discussion for a number of reasons. One is the pervad-
ing impression by his demeanor throughout his testimony
that he was not being truthful and that he was inventing the
story about his being even present when Royal asked Brooks
permission for a rest break, in order to stay in the good graces
of Store Manager Poteet. Another reason is the above-noted
conflict between Graves' testimony under direct and cross-
examination. A third reason is that it is difficult to believe
that he was present at Check Stand No. 4 for a period of 8
minutes, as he testified, just for the purpose of filling its sack
bin with paper sacks" as that appears to be a task that could
be accomplished in a fraction of that time. It was during that
8 minutes that Graves claims he heard Royal ask Brooks for
a rest break, heard Brooks ask her to wait a bit, and within
minutes thereafter saw Royal go off on an unauthorized rest
break. My final reason for questioning Graves',testimony that
he was present when Royal asked Brooks for a rest break is
that he testified that Royal had four customers waiting in line
at her check stand when she closed her cash register and took
off for her rest break. I do not credit that testimony. From
my observation of Royal throughout her long testimony, I
was impressed by her sense of conscientiousness and credit
her testimony that she would not leave her check stand if
customers were waiting in line before her to be serviced.
Common experience shows that when a checker prepares to
take a break she will signal that fact for some minutes in
advance by placing a chain across her service line as a signal
that she is about to go off duty.
With the discrediting of the testimony of Carlton and
Graves as to the events of Sunday noon on May 26, 1974,
having to do with the question of whether Royal took an
unauthorized rest break at that time there remains only the
seemingly conflicting testimony of Royal and Brooks, the
then acting manager, as to whether Royal took a rest break
without Brooks' permission contrary to Respondent's pub-
lished "Shop Rules."
Of the two, I credit Royal's firm, unqualified, unwavering,
and positive testimony that on the Sunday noon here involved
she did not take a rest break because when she had asked for
a break Brooks had asked her to wait although she was then
7 The above finding is based on Graves' testimony under cross-examina-
tion as follows:
Q. (By counsel for General Counsel) How many customers did you
say were at Mrs Royal's checkstand when she left?
A. (By Graves) About four
Q About four customers?
A Yes
Q Did you know she had requested permission for a break before
that time, or did you know anything about that?
A. No (Emphasis supplied)
I interpret this testimony by Graves under cross-examination to be in direct
conflict with his prior testimony under direct examination that he had heard
Royal ask Acting Manager Brooks for a break and that Brooks had asked
her to wait a while., An alternate interpretation of Graves' above-quoted
testimony under cross-examination is that he did not know whether Royal
asked permission a second time before she left her check stand If this is the
interpretation to be placed on Graves' testimony under cross-examination,
it likewise raises a serious question as to Graves' credibility because if he
really was at the No 4 check stand when Royal asked Brooks' permission
for a rest break and was there when Royal left her check stand, he was
obviously in a position to know whether Royal made a second request for
a rest break before she left her stand.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to a 15 -minute rest break under the Company's shop
rules subject only to a clearance from Brooks . Her testimony
shows that her first authorized rest break came at 2 o'clock
that afternoon and that it was the first break she had had
since starting work that morning at 10 o'clock . Any reading
of Royal 's testimony , whether under direct or cross-examina-
tion , reveals a witness whose testimony is entitled to the
highest probity by virtue of her obvious and consistent
honesty and integrity . This is perhaps best illustrated by the
following question and her answer thereto:
JUDGE BUSH Did you take time off, even briefly to go
to the rest room , between 11:00 and 12:00?
THE WITNESS, Not that I remember; could have, but in
a situation like that you're only just gone a couple of
minutes and the company does excuse that, but you do
have to have permission , but I don 't recall leaving at all
until I left for my break [i.e., at 2:00 p.m.].
Although I was also impressed by the general honesty of
Brooks, both as I listened to him and as his testimony appears
in the transcript , I find that his testimony does not have the
same ring of certainty as Royal 's. Under cross-examination,
Brooks, for example, in response to some questions gave an-
swers which contradicted or qualified his direct testimony or
reflected uncertainty as to such matters of importance as
whether at the time Royal asked permission for a rest break
there were two or three other checker-cashiers on duty and
available to look, after customers. Another factor which
causes me to discredit Brooks' testimony is that, although he
claims to have seen Royal walk away from her check stand
some 10 to 15 minutes after he had denied her a rest break,
he did not even speak to her about it, let alone reprimand her,
according to his own admission. Normally a manager, who
sees an employee engage in a prohibited act, would on the
spot call it to the employee 's attention . For these reasons I do
not credit Brooks' testimony that Royal took a rest break on
the Sunday noon here involved without his permission con-
trary to Respondent's shop rules.
However , it is noted that even if the evidence justified a
finding that Royal took an unauthorized rest break on the
Sunday noon here involved which could subject her to dis-
charge under the Company 's shop rules, such a finding would
still leave open the question of whether Respondent seized
upon that infraction of its rules as a pretext for the dis-
criminatory firing of Royal because of her union activities.
Notwithstanding Royal 's testimony that she does not recall
taking a toilet break on the Sunday noon here involved, she
left open the possibility that she "could have." While a toilet
break technically also requires the permission of the store
manager, Royal's testimony under questioning by the ad-
ministrative law judge shows that such a break may be taken
"if we're not busy, as long as we let one of the other checkers
or manager know where we are going we just lock our regis-
ter, put a chain up and go and report right back."
If credence is given to Brooks' testimony that some 10 or
15 minutes after he denied Royal a rest break, he saw her, as
he was coming from his office, leave her check stand, the
record suggests and I find that at that time Royal was taking
an imperative toilet break and not the rest period break that
she had asked for and been denied.
The next morning, May 27, Brooks informed Store
Manager Poteet that he had seen Royal leave her work stand
without permission some 10 or 15 minutes after he had asked
her to wait for her requested rest break . His testimony shows
that he did not suggest , let alone recommend , to Poteet that
Royal should be disciplined for leaving her stand without his
permission . Brooks also told Poteet that Royal was some 8
or 10 minutes late getting back from her subsequent regular
1-hour lunch break that Sunday afternoon and that one of the
checkers , James Dunn , had told him that Royal had said that
he, Brooks , should keep a sacker up front at all times to help
the checkers . Royal's lunch break hour that Sunday was from
3 to 4 p .m. According to Brooks, Royal did not report back
to work until about 4 :08 p.m . I credit Royal 's explanation
that she took only 1 hour for lunch that day and that if she
did not report back to work until about 4:08 p.m., it was
because she did not leave her work stand until about 3:08
p.m., because of the necessity of clearing customers through
her check stand before she closed up. Thus, while I credit
Brooks' testimony that Royal reported back to work at 4:08
p.m., that Sunday, I discredit his testimony that Royal was
late in reporting back to work as I credit her testimony that
she took only the allowable hour for her lunch break after its
actual commencement.
On the basis of Brooks' report to h im as set forth above,
Poteet, age 24 , without asking Brooks' advice, wrote out a
"DISCIPLINARY TERMINATION REPORT" form call-
ing for Royal's discharge . Under the printed heading in the
form , "Reason For Termination ," Poteet wrote , "Causing
Trouble on Sunday with Sunday Person in Charge," the per-
son in charge having been 19-year-old Brooks . Upon Poteet's
request, Brooks placed his signature under the printed head-
ing, "PLEASE NAME WITNESSES , IF ANY, TO AC-
TION WHICH BROUGHT ABOUT DISCHARGE."
With the discharge paper ready, Poteet called Royal into
his office when she reported to work the next morning (May
27) and terminated her. Brooks , who had reported Royal's
alleged unauthorized rest break of the day before (Sunday)
and who had placed his signature on the termination notice,
was not present at Royal 's termination . The only other per-
son present at the time of Royal 's discharge was Lydia Smith,
56, who placed her signature on the termination notice as a
witness to the discharge . Smith has been employed as a
checker with Respondent for 20 years and as a Fun 's roving
checker-trainer at the 13 Furr's stores in the Amarillo district
for the past year and a half.
There is a conflict of testimony between Poteet and Royal
over the reasons he gave her for her termination. Mrs. Smith
as the only outsider to witness the discharge also had a differ-
ent version of what took place. In her initial testimony she
testified that from her discussion with Poteet, "The main
thing" or reason why Royal was terminated "was her coming
in tardy." This was not the reason Poteet gave in his tes-
timony for firing Royal.
Poteet testified that he told Royal that he "could not toler-
ate insubordination from the man in charge on Sunday.
[This was a reference to Brooks who was not present at
Royal's termination .] She was not showing respect. She was
not doing the job, showing respect for him by locking up her
check stand and leaving . If the man told her to do something
FURR'S, INC.
she was to do it if he was in charge. I could no longer tolerate
her attitude, that at that time I would have to terminate her."
Royal testified that at her discharge "the only thing" Po-
teet said to her was, "Charlotte, we don 't have any trouble
in our store on Sundays , regardless of who is in charge."
(Emphasis supplied.) She further testified that Poteet handed
her the preprepared blue termination slip and told her to
"Sign here." As directed she signed the blue slip and as she
recalled it, made a statement on the slip that she "didn't know
I was causing trouble, that I was tired and need a break." The
blue slip (G.C. Exh. 4), shows that the precise words she used
on the slip are, "I needed a break ; couldn't get one because
someone got one in line before me." In her rebuttal testimony,
Royal was again asked if Poteet did "in any way discuss with
you the reason for your termination.... " To this she re-
plied, "No, he did not say anything except, "We do not have
trouble on Sundays in our store , regardless of who is in
charge."
As heretofore indicated , Mrs. Smith under cross -examina-
tion, initially testified that from discussion with Poteet over
the reasons he had for Royal 's termination , she learned that,
"The main thing was her coming in tardy." Asked if there
was "any other thing, other than her tardiness , that he
[Poteet] relied on particularly" for Royal 's discharge, Smith
replied, "Not to me." But a moment later contrary to her
initial testimony she testified that the reason Poteet gave
Royal for her discharge was "the incidents that happened on
the Sunday before."
For reasons that are apparent from Mrs. Smith 's inconsist-
ent and largely hearsay testimony , I find her testimony un-
reliable and not creditable as to what Poteet said to Royal at
her termination . With the elimination of Smith 's testimony
on that question, there remains only the conflicting testimony
of Poteet and Royal as to what Poteet told Royal at the time
he fired her.
I ci edit Royal's testimony that the "only thing" Poteet told
her at the time of her discharge was, "Charlotte, we don't
have trouble in our store on Sundays , regardless of who is in
charge." I find from this that Poteet did not identify in any
way to Royal the specific conduct on her part that had caused
trouble in the store the previous day when Brooks was in
charge of the store . I specifically infer and find from Royal's
testimony that Poteet did not tell Royal that she took an
unauthorized rest period on the Sunday noon here involved
and that she was being terminated for that reason . I infer and
find from Royal's testimony and from the record as a whole
that Poteet was intentionally nonspecific to Royal about the
precise misconduct for which he was discharging her because
he knew that if he accused her about taking an unauthorized
rest break, she would have denied it and sought to prove
through Brooks that Poteet was wrong in his accusation as
her credited testimony in this proceeding shows. It is signifi-
cant that Poteet did not have Brooks present when he fired
Royal although Brooks' signature was on Royal 's discharge
notice as her accuser of improper conduct.
Turning now to Poteet's testimony , I discredit anything in
his testimony which directly or indirectly indicates that he
informed Royal that he was discharging her for taking an
unauthorized rest period break.' I find that the only thing
981
Poteet told Royal at her termination conference was that he
-was discharging her solely because she had caused trouble to
Acting Store Manager Brooks on the Sunday preceding the
Monday of her discharge as stated in her discharge notice and
that he did not specifically describe or identify the kind of
trouble she had caused Brooks. Royal's credited testimony
shows that she took Poteet's statement to mean that she was
being discharged merely because she had asked Brooks for a
rest break which he had not seen fit to grant her. I specifically
find that Poteet did not inform Royal that she was being
discharged for taking a rest break without permission.
In summary I find and conclude , based upon the contents
of Royal's termination notice (G.C. Exh. 4) and Royal's cred-
ited testimony, that the only explanation Poteet gave Royal
for her discharge was that she had caused trouble on the
Sunday in question-to Brooks as acting manager of Store No.
54 that day but without identifying the trouble she had
caused.
But whether the reason for Royal's discharge was her caus-
ing trouble to Acting Store Manager Brooks on the Sunday
here involved or for taking a rest period break without per-
mission from the acting manager in violation of Respondent's
shop rules, as contended by Respondent, the basic issue re-
mains of whether Respondent seized upon one or "the other,
of these reasons or both as pretexts for the discriminatory
discharge of Royal because of her union activities in violation
of Section 8(a)(3) of the Act.
Although Royal's formal written termination notice shows
only a single cause for her discharge , namely, the unspecified
trouble she caused "on Sunday with Sunday Person in
Charge," Respondent at the hearing sought to show that
there were also a host of other reasons that caused Poteet to
terminate Royal.
One of these "other" asserted reasons was her alleged tend-
ency to be tardy in reporting to work. She received only one
pink warning slip for tardiness as of May 18, 1974, and no
oral warnings for being tardy at any time prior to May 18.
It was found above that the pink warning notice for being
tardy on May 18, 1974, was not justified under the credited
testimony herein. I further find that there is no creditable
evidence that Royal has been repeatedly or consistently tardy
in reporting to work. I further find that insofar as Royal's
alleged tardiness is used as a reason for her discharge, it is a
pretextual reason for her termination.
Another reason given for Royal 's discharge was that her
voice was unpleasantly loud over the store's loudspeaker sys-
tem when she called for a sacker to help her sack customer
groceries when she was busy. As the administrative law judge
in the case, I was asked to take "judicial notice" by counsel
for Respondent "as to whether or not Mrs. Royal has what
would be called a loud voice" from "the tone in which she has
been talking during her testimony." I replied and here find
that Royal "speaks in a normal voice" and that "She speaks
clearly, distinctly , in a normal voice." By her own admission,
Royal's voice carries when she gets excited as she might very
well be to the Company's advantage if she gets no response
the first time or two she calls for a sacker when in need of
8 The only testimony Poteet made in this connection is in itself indirect,
equivocal, and unconvincing , to wit, that he informed her that , "She was not
showing respect . She was not doing the job, showing respect for him
[Brooks] by locking up her check stand and leaving-"
982 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistance. I find this carrying quality about her voice is a
trivial and pretextual reason for her discharge.
Another reason given for Royal's discharge is that she has
been discourteous to and argumentative with customers. The
only asserted specific alleged incidence of this was treated
above and found to be lacking in proof. I do not credit any
general statements from witnesses that she was discourteous
to customers. I find that Respondent's excuse that Royal was
discharged in part because of her discourtesy to customers is
also pretextual.
Another reason given by Respondent in justification in part
for Royal's discharge was that on occasion she would ask
adjacent checkers the price of unmarked grocery items con-
trary to company rules. However, the record shows that this
is common practice among all or most of Respondent's
checkers. I find that this reason for Royal's discharge is also
pretextual.
Still another reason advanced for Royal's discharge relates
to a requirement under one of Respondent's shop rules which
requires all employees not only "to complete his own time-
card each day in ink" but also requires that employees "must
total and sign their timecards at the end of the workweek."
Royal's testimony shows that in the several months she was
employed at Store No. 54 she never totaled up the hours she
worked each week with the possible exception of a time or
two, but that she was never called on this until the Friday
prior to her discharge when her check was for the first time
held up because she did not total up her hours for that week.
There is credited testimony that other employees likewise
failed to total up-their hours of work per week without ever
being called on for this by management. I fmd that Royal's
failure to add up her hours of work per week is another
pretextual reason for her discharge.
Royal's credited and undisputed testimony shows that
prior to the union meeting at the home of her mother, Mrs.
Lois Green, who was employed in Respondent's Store No. 64,
she invited fellow employees at Store No. 54 to attend the
May 14, 1974, union meeting at her mother's home. I find
and infer that it was from some of these fellow employees that
Store Manager Poteet gained the knowledge that Royal had
been in attendance at the union meeting and that this led to
his questioning her about the meeting as set out in detail in
the above findings.
Royal's testimony shows that some 10 days or so prior to
her discharge while she was on duty at her check stand she
passed out a union authorization card to a boy named
Kenneth Howard, a sacker, at Kenneth's request. The cred-
ited circumstances of this incident are best told in Royal's
words. "At this time that Kenneth Howard had heard about
these cards he came to me in my check stand and asked if he
could have a card and if I would tell him about the union. I
said, `Yes, I will tell you when I'm off.' I said, `If you want
a card I have one in my pocket.' He took one but I did not
solicit him. He came to me about the situation and I did let
him take a card "
The above incident was observed by Larry Jenkins, 25, who
was then an assistant manager of Store No. 54, but is now an
assistant manager of Store No. 60. He gave testimony in
behalf of Respondent. Jenkins' testimony shows that upon
seeing Royal passing out the card to Howard, one of the
store's sackers, he immediately told Store Manager Poteet
about it. Poteet in his testimony fixed the date of that report
to him as being May 15, 1974, the date on which as shown
above he summoned Royal to his office and talked to her
about the subject of having a union at the store. During the
course of that meeting, according to the combined testimony
of Poteet and Royal, Poteet did not actually accuse Royal of
passing out union cards to other employees but warned her
that she was not to pass out union cards on company time as
that was contrary to the Company's "no-solicitation rule" as
set forth in Respondent's shop rules. The shop rules provide
for a written warning for "making unauthorized solicita-
tions" on company time. No such warning was given Royal.
I find that, under the circumstances shown above, Royal's
passing out a card to Howard at his request was not a solicita-
tion. In any event I find that the incident of Royal's passing
out a union card to Howard insofar as Respondent uses it as
one of its justifications for her discharge is pretextual.
In summary I find that Poteet had knowledge of Royal's
union activities for some 10 days prior to her discharge
through reports from other employees whom she had invited
to attend the union meeting held at her mother's home on
May 14, 1974, through his questioning of Royal about her
union sympathies and interests the day after, and through a
report he had from an assistant store manager that he had
seen Royal passing out a union card to one of the store's
sackers.
Royal's credited and undenied testimony shows that dur-
ing the period of her employment with Respondent at Store
No. 54 she was never accused by management of not being
efficient or productive in her work at the store.
Discussion and Conclusions
On the basis of the above findings of fact, the questions for
determination here are whether Charlotte Royal was dis-
criminatorily discharged on May 27, 1974, in violation of
Section 8(a)(3) of the Act and whether for a period of about
10 days prior to her discharge she had been made the subject
of a number of 8(a)(1) violations of the Act. As heretofore
noted, some 585 pages of the 662-page transcript of testimony
in the case relate to events in Store No. 54 where Charlotte
Royal was employed as a cashier-checker.
There are briefly reviewed here the acts and conduct of
managerial personnel at two of Respondent's other stores,
Nos. 60 and 64, found above to be in violation of Section
8(a)(1) of the Act because they are very similar to the acts and
conduct of Store Manager Poteet at Store No. 54 as found
above. With respect to Store No. 60, it was found in an earlier
section of this Decision on the basis of undisputed and cred-
ited testimony that its store manager, Jackson, coercively
interrogated employee Randy Lermon on whether he had
signed a union authorization card and that Jackson had also
threatened to fire any employee in his store who signed a
union card, in violation of Section 8(a)(1) of the Act. With
reference to Store No. 64, it was similarly found above on the
basis of undenied and credited testimony that its store
manager, Houchins, had coercively interrogated employee
Imelda Scott on whether she had signed a union card, and in
addition had threatened the loss of existing employee benefits
if the Union came to represent the employees in his store, and
kept under surveillance a meeting place of the Union and
FURR'S, INC.
other concerted activities of its employees in violation of
Section 8(a)(1) of the Act. It was also found above with
reference to Store No. -64 on the basis of undenied and cred-
ited testimony that Respondent's meat department supervi-
sor, Don Shirley, who has supervision over all 13 Fun's
stores in the Amarillo district, on a visit to Store No. 64
engaged in the coercive interrogation of a meat wrapper, Lois
Green, in violation of Section 8(a)(1) of the Act.
The findings with reference to Store No. 54 show that Store
Manager Poteet engaged in similar acts and conduct at Store
No. 54 with respect to employee Charlotte Royal, commenc-
ing on May 15, 1974, the day after Royal had attended the
union meeting at the home of the aforementioned Lois Green,
her mother. On that date, May 15, as shown by the above
findings, Poteet asked her if she had attended the union meet-
ing the night before at her mother's home and engaged her
in extensive conversation about the Union. In the course of
the conversation, Poteet asked Royal her opinion about the
Union and why she wanted to join the Union. When she
replied that she was interested in the Union because she
believed it would obtain better wages, insurance benefits, and
job security, Poteet asked her to compare the Company's
preexisting employee benefits with what the Union was
proposing to get for the employees and let him know her
thoughts on the matter. He similarly asked Royal to recon-
sider her support of the Union and to let him know what
decision she had arrived at. He also told her that if the Union
got ia, the Company would have to let some of its employees
go because it would not be able to afford to keep all the
employees it now does.
From the findings as briefly summarized above and more
fully set forth in the prior section of this Decision, I find and
conclude that Poteet as a statutory supervisor and agent of
Respondent engaged employee Royal in a conversation on
May 15, 1974, during the course of which he coercively inter-
rogated her about her union sympathies and activities and
both warned and threatened discharge or other reprisals to
employees in Store No. 54 if they engaged in union activities
as alleged in the complaint in violation of Section 8(a)(1) of
the Act.
Again referring to the prior section of this Decision, it was
found therein that Poteet on May 18, 1974, gave Royal a
written reprimand for her first alleged offense of being 10
minutes tardy in reporting to work that day. I further found
that such a written reprimand or warning was contrary to the
Company's own shop or employee rules which classifies "tar-
diness" as a violation "of a relatively minor nature" and
provides for a prior oral warning for such an offense and
states that a written warning shall be given only for "continu-
ous repetition of conduct." It was found above under Royal's
credited testimony that she was not tardy in reporting to
work on the date of the reprimand and that therefore the
written reprimand was not justified. But whether justified or
not, I find from the record as a whole that the reprimand was
given Royal for the purpose of interfering with and coercing
her because of her union activities in violation of Section
8(a)(1') of the Act as alleged in the complaint.
The complaint alleges two additional acts by Poteet in
violation of Section 8(a)(1) of the Act, both of which are set
forth in paragraph 7(e) of amended complaint. These read as
follows: [1] "Respondent, by its supervisor and agent Michael
983
Poteet, on or about May 15, 1974, interrogated and required
employees to report to him union activity then in progress;
`and . . .' [2] by its supervisor and agent Michael Poteet, on
or about May 20, 1974, reduced hours of work; . . . for the
purpose of interfering with and coercing its employees be-
cause they became or remained members of the Union or gave
any assistance or support to it." Both allegations relate under
the evidence herein exclusively to statements or actions by
Poteet to, or with respect to, Royal. I find a failure of proof
in support of the allegation that Poteet "required" Royal "to
report to him union activity then in progress," as I have been
unable to find 'any evidence in support of that allegation. I
accordingly will recommend that that allegation be dismissed
for failure of proof.
With respect to the allegation that Poteet reduced Royal's
hours of work per week because of her activities in violation
of Section 8(a)(1) of the Act, I find that while it is undisputed
that Poteet did reduce Royal's hours of work against her
wishes shortly before he discharged her, I find that this was
not a violation of the Act because there is unrefuted evidence
that Poteet simultaneously also reduced the working hours
per week of a number of employees with the least amount of
seniority, which includes Royal, for the bona fide business or
economic reason of meeting a company requirement that
each of its 13 stores in the Amarillo district produce $45 in
sales per man hour which Poteet's store had not been meet-
ing. I note that General Counsel's brief does not appear to
address itself to that issue. For the reasons stated above, I find
and conclude that there has been a failure of proof that Re-
spondent reduced Royal's hours of work per week because of
her union activities and accordingly will recommend that the
allegation of the complaint here under consideration be dis-
missed for failure of proof.
With respect to Royal's discharge of May 27, 1974, Re-
spondent denies that she was discharged because of her union
activities as alleged in the complaint in violation of Section
8(a)(3) of the Act. While the record is clear and not disputed
that Respondent through Poteet had knowledge of Royal's
efforts to organize Store No. 54 for about 12 days prior to her
discharge, the Company's defense is that it discharged Royal
solely because she was an unsatisfactory employee for a num-
ber of reasons, such as her alleged tardiness in reporting to
work or after a lunch break, her admitted failure to total up
her work hours for each workweek on her timecards contrary
to company rules, her alleged discourtesy to customers and
to other employees, her alleged loudness in calling for sacker-
helpers over the store's loudspeaker, and as a culminating
reason her alleged taking of an unauthorized rest break on the
day before her discharge. Of these reasons, Respondent
places major reliance on Royal's alleged record of repeated
tardiness in reporting to work, her alleged discourtesy to a
customer, and alleged taking of an unauthorized rest break
on the day before her discharge. Contrary to these conten-
tions, the findings above show that Royal was not repeatedly
or habitually tardy in reporting to work, that she was not
discourteous to the customer she was accused of being dis-
courteous to, and that she did not take an unauthorized rest
break on the day preceding her discharge as accused.
On the basis of the entire record, I find and conclude that
all of the reasons given by Respondent for Royal's termina-
tion are pretextual and that the real reason for her discharge
984 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
was her union sympathies and activities in organizing Re-
spondent's Store No. 54.
Furthermore, even if Respondent had reason to be dissatis-
fied with Royal's services for all or most of the reasons ad-
vanced for her discharge, I find and conclude from the record
as a whole that the primary reason for her discharge was her
union activities at Respondent's Store No. 54.
I accordingly find that Royal's discharge is in violation of
Section 8(a)(3) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
the Union is a labor organization, within the meaning of the_
Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of the
Act, Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. By discharging Charlotte Royal because of her union
activities, Respondent engaged in discrimination to discour-
age membership in the Union, thereby engaging in unfair
labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent through its supervisor and agent, Michael
Poteet, has not, as alleged in the amended complaint, re-
quired employees to report to him union activity then in
progress and has not by its said supervisor and agent reduced
the hours of work for the purposes of interfering with and
coercing its employees because they became or remained
members of the Union or gave any assistance or support to
it, within the meaning of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action of the
type which is conventionally ordered in such cases as pro-
vided in the recommended Order below, which I find neces-
sary to remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act. Because of
the character and scope of the unfair labor practices found,
I shall recommend a broad cease-and-desist order.9
9 NLR.B. v. Express Publishing Company, 312 U S. 426 (1941), N.L.R.B.
v Entwistle Mfg. Co., 120 F.2d 532 (C.A 4, 1941); Consolidated Industries,
Inc., 108 NLRB 60 (1954), and cases cited therein.
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:
ORDER10
Furr's, Inc., Amarillo, Texas, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Clerks Union, Lo-
cal 368, AFL-CIO, or any other labor organization of its
employees, by discharging or in any other manner dis-
criminating against employees in regard to hire or tenure of
employment or condition of employment.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Warning employees that they would be discharged or
otherwise disciplined if they did not refrain from union activi-
ties.
(d) Threatening employees with discharge or other disci-
pline because of their union activities or support.
(e) Keeping union activities of its employees under surveil-
lance.
(f) Giving written reprimands to employees who under
company rules are entitled to a first oral warning prior to the
issuance of a written reprimand.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed to.
them by Section 7 of the Act.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Offer Charlotte Royal immediate and full reinstatement
to her former job, or if her job no longer exists, to a substan-
tially equivalent position, without prejudice to her seniority
or other rights and privileges and make her whole for any loss
of pay she may have suffered by payment to her of a sum of
money equal to that which she would normally have earned
from the date of her discharge to the date of such offer of
reinstatement, less her net earnings during said period (Cross-
ett Lumber Co., 8 NLRB 440 (1938)), said backpay to be
computed on a quarterly basis in the manner established by
the Board in F W. Woolworth Company, 90 NLRB 289
(1950), together with interest thereon at the rate of 6 percent
per annum (Isis Plumbing & Heating Co., 138 NLRB 716
(1962)).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary, to
determine the amount of backpay due under this Order.
10 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, 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
FURR'S, INC. - Y 985
(c) Post at its Amarillo, Texas, Stores Nos. 54, 60 and 64
copies of the attached notice marked "Appendix B."" Co-
pies of said notice on forms provided by the Regional Direc-
tor for Region 16, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
ately 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 the Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 16, in writing,
within 20 days from the date of this Order what steps have
been taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges unfair labor practices not herein found.
i