Payless Drug Store of Port Angeles, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1974

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

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Payless Drug Store of Port Angeles , Inc. and Retail
Store Employees Union Local 381 , Retail Clerks
International Association, AFL-CIO. Case
19-CA-6376
April 18, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
a Washington corporation engaged in the retail sale of
general merchandise at Port Angeles, Washington. Re-
,apondent , Reenie Shoe Company, is a Washington corpora-
tion engaged in the retail sale of shoes and related shoe
products in the sole leased department within the facility of
Respondent Payless at Port Angeles, Washington. Both
Respondents annually enjoy a volume of business in excess
of $500,000 and purchase goods and services from outside
the State of Washington valued in excess of $50,000. I find
that the operations of Respondents affect commerce within
the meaning of Section 2(6) and (7) of the Act.
On December 27, 1973, Administrative Law Judge
Martin S . Bennett issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed a brief to the Board in support of
the Decision of the Administrative Law Judge.
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
Decision in light of the exceptions and briefs and has
decided to affirm the Administrative Law Judge's
rulings , findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard at Port Angeles, Washington, on October
9 and 10, 1973. The amended complaint, issued August 28
and based upon charges filed April 24 and August 27,
1973, by Retail Store Employees Union Local 381, Retail
Clerks International Association, AFL-CIO, herein the
Union, alleges that Respondent, Payless Drug Store of Port
Angeles, Inc., herein Payless, has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.' Briefs have been duly submitted.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, Payless Drug Store of Port Angeles, Inc., is
I Reem Shoe Company , also spelled in the complaint as Reeme, is
named in the caption of the complaint as a Party in Interest, and is also
referred to as Respondent Reeme.
2 The initial complaint alleged only certain violations of Section 8(a)(1).
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union Local 381, Retail Clerks
International Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the Issues
Respondent opened its Port Angeles store on October 3,
1972, and in approximately February 1973, the Union
commenced an initial organizational campaign. Meetings
started in March and a demand for recognition was made
on or about April 7. An election was agreed to but
postponed because of the instant charges . The General
Counsel alleges various acts of interference, restraint, and
coercion , contends that these also constituted a refusal to
bargain, and seeks a bargaining order.2
B. Sequence of Events
There is much evidence pro and con in this case, but
perhaps best illustrative of the weakness of the General
Counsel's case is his allegation of surveillance of union
activities.
1. Al Reed enjoys the title of security supervisor for
Respondent, but the record is barren of any indication that
he is a supervisor within the meaning of the Act. Be that as
it may, he visits various of Respondent's stores in a security
capacity, protecting against theft of merchandise by
customers and presumably by employees as well. Thus, he
spent some 4 to 5 days in the Port Angeles store during a
relevant 6- to 8-week period in 1973.
On March 15, 1973, Reed was fortunate or unfortunate
as the case may be to join another employee, Ghiorso, at a
local tavern for a beer. Ghiorso, on this occasion,
announced that he planned to attend a union meeting and
invited Reed to do likewise. Reed expressed reluctance,
Ghiorso opined that the meeting would not take more than
10 or 15 minutes, and proposed that they thereafter partake
of another beer.
Reed ultimately agreed to attend and did so. Some four
union representatives and several employees were present.
Reed was offered and accepted a cup of coffee and, shortly
thereafter, left with Ghiorso for their second beer. While it
Upon appeal, the Regional Director was directed by the Office of Appeals
of the General Counsel to add additional violations of Section 8 (axl) and a
refusal to bargain within the meaning of Section 8(aX5) of the Act.
210 NLRB No. 33
PAYLESS DRUG STORE OF PORT ANGELES, INC.
appears that management learned of the attendance of
Reed at this meeting and directed him not to do so again,
the simple answer is that the record will not support a
finding that he was a supervisor or a representative of
management or indeed that he was engaged in surveillance
of union activities. I see no support for the General
Counsel 's contention herein.
2. The General Counsel has placed much stress upon a
meeting of store employees on March 8. It is undisputed
that the initial theme of this meeting was a discussion by
Store Manager Duane Vernon concerning an impending
sales promotion program and contest with prospective
benefits for participating store employees.
Three witnesses for the General Counsel, Sandra
Chapman, Patricia Lack, and Donna Hugo, in essence
testified that, during the course of this meeting, Vernon
stated that he would rather close the store than negotiate
with the Union. However, three other witnesses for the
General Counsel testified flatly to the contrary. Ellis Ewing
recalled nothing being said by Vernon about the closing of
the store , John Kalbfleisch recalled nothing on this topic,
and John Noonan remembered only a comment at a later
meeting that, in the event of a strike, supervisory personnel
might not be able to keep the store open. Supplementing
the foregoing was the testimony of other witnesses, namely,
Linda Hendrickson, Alice Schnase, Betsy Jacobs, Juanita
Jacobs, and Joel Norris, all to the effect that they recalled
no such threat on this occasion. I find that the evidence
does not preponderate in favor of the General Counsel on
this issue.
3. There is also an allegation, tailored to the March 8
meeting and later meetings, that Vernon threatened to drag
out negotiations until the Union was forced to strike. But
the evidence in support thereof is less than convincing.
Thus, Ellis Ewing testified that Vernon told them that he
wished to give the employees sufficient time to decide what
they wanted. Patricia Lack testified that Vernon said
negotiations could drag out and this might result in a
strike, although she later testified that she did not recall
just how the matter arose. According to John Kalbfleisch,
Vernon said that negotiations could be carried on for a
long time.
As Respondent points out, Lack's testimony reflects a
prophecy rather than a threat of recrimination. Here again,
witnesses Betsy Jacobs, Juanita Jacobs, Tom Ghiorso, and
Joel Norris recalled nothing being said about the dragging
out of negotiations. Indeed, as Betsy Jacobs put it, Vernon
told them that he would negotiate to the best of his ability
to obtain the best contract if a majority of the employees
desired a union. This ties in with the testimony of Vernon,
an impressive witness , that he told the employees on
March 18 that if a majority selected the Union, he would
negotiate a contract from scratch because wage rates in
Port Angeles reflected a lower cost of living than that in
Seattle.
4. The General Counsel alleges that Respondent
promulgated a rule forbidding employees to discuss the
Union during coffee breaks and lunch periods. Here, as
well, the testimony of the witnesses for the General
Counsel leaves much to be desired.
Donna Hugo recalled only that Manager Vernon told
135
the employees at a regular employee meeting that he
wished there to be no arguing and fighting in the
lunchroom. This ties in with the testimony of Vernon that
on a Saturday morning he heard employees yelling and
arguing in the lunchroom for some 25 minutes whereas a
normal break lasts no more than 15 minutes . He went to
the lunchroom, unaware of the topic of discussion , told the
employees that they had exceeded their breaktime, and
added that if they were emotionally upset they could not
properly service customers in such a state . Patricia Lack
recalled nothing being said by management about discuss-
ing the Union on company premises and, indeed, recalled
that the Union was discussed extensively during coffee
breaks.
Sandra Chapman recalled that she voiced her irritation
to Vernon on one occasion about being questioned by co-
workers during her lunch period about the Union. Vernon
told an assemblage that he did not wish employees to be
harassed during their breaks or lunch periods, that store
time was for the Employer, and that he did not want
anyone discussing the Union or anything else "during
working hours." She recalled that the Union was consist-
ently discussed by employees during their break periods.
The General Counsel has relied on the testimony of Ellis
Ewing, a rather vague witness. He claimed that at a
meeting on March 8 Vernon told them not to talk about
the Union during "store hours," not to talk about the "fish
in the sea," and not to discuss the Union during breaks or
lunch periods. Vernon recalled one occasion, at a store
meeting, when Ewing stated, on the sales floor, that he had
invited an employee to attend a union meeting that night.
Vernon responded that he did not care if the fish were
biting or whether there was a union meeting that night, but
that, on the sales floor, the prime responsibility of the
employee was to service the customer.
Here as well there is a plethora of evidence to support
Respondent. Teresa Moulton flatly recalled that, during
March and April, Vernon told the employees at meetings
that they could entertain their own views about the Union,
they were not to discuss this topic during working time on
the sales floor, and that it was "fine" to do so on their own
time. She specifically recalled that the Union was frequent-
ly discussed during coffee breaks in March and April.
Betsy Jacobs recalled that at the March 8 meeting, and
perhaps on other occasions, Vernon stated that the
employees could discuss the Union on their own time, such
as during lunch or on coffee breaks, but not to do so on the
sales floor during working hours. In addition, Sue Williams
testified that they were told during March and April that
they could discuss the Union as they chose, but not to do
so during working time. She as well heard the Union
frequently and openly discussed in the lunchroom during
breaks. Floorman Tom Ghiorso, previously referred to
herein as the one who invited Reed to a union meeting,
recalled that at meetings in March and April, Vernon
asked them to refrain from discussing the Union on the
sales floor, that there was business to be transacted in that
area, but that it was their own choice to discuss the Union
off work, in the lunchroom, or during breaks.
I see little support herein for the General Counsel. The
evidence heavily preponderates, and I find, that Respon-
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent promulgated a rule restricting union discussions to
nonworking time and also forbidding same on the sales
floor during working time . Moreover, the record is entirely
devoid of any evidence of disparate application of this rule
to union topics and not to others.
5. Respondent has a plan whereby employees enjoy a
working condition permitting them to purchase store
products at a discount by use of a company discount book.
The General Counsel contends that Respondent, in its
resistance to the Union, advised employees that their
spouses could no longer use the employee discount books.
But the record is clear , and it is undisputed, that there
always has been a large sign posted in the employee
lunchroom that "Employees only" are authorized to write
up their respective purchases. There is evidence that the
rule was violated in some instances and Manager Vernon
uncontrovertedly testified that, prior to the March 8
meeting, he personally reproached 4 out of approximately
40 employees about violating the rule.
Ellis Ewing testified that employees are given a discount
book with the employee's name therein ; the rule forbidding
purchases by spouses is explained therein, but he personal-
ly broke the rule from the first day of his employment.
John Kalbfleisch recalled only that at the March 8
meeting, Vernon explained the workings of the discount
procedure in terms of an existing employee benefit.
Ewing did recall being told after March 8 by Vernon, as
well as by Assistant Manager Andrew Striefel, that it was
contrary to company policy for spouses to write up
purchases under the discount procedure. Prior thereto, his
wife had exercised this privilege extensively. He admitted
violating the rule from his first day of employment and has
since then been discharged for an unrelated cause . Patricia
Lack recalled that Manager Vernon complained about
spouses using the discount book. She conceded that she
was aware of the rule and that her spouse had never used
the discount book.
The testimony of Alice Schnase, a checker in customer
service , discloses that as early as February 25 she learned
that spouses were violating the rule. She spoke to Vernon
about this, and he registered genuine shock, explaining that
this was contrary to store policy. Vernon declared that he
wished this stopped and this has since been done.
Betsy Jacobs recalled that the handling of employee
discounts was discussed at a number of meetings of
employees prior to March 8. Juanita Jacobs, hired in
October 1972 and no longer in the employ of Respondent,
flatly recalled that upon her hire Vernon explained at an
employee meeting that spouses were not allowed to sign for
discount purchases. I find that the evidence does not
preponderate in favor of the position of the General
Counsel herein.
6. The General Counsel attacks the time clock proce-
dure. He relies upon testimony that department heads were
not required to clock in or out on time . But both Ellis
Ewing and John Noonan, in behalf of the General
Counsel, flatly testified that they were instructed, upon
their initial hire , to use the time clock . Both testified that
they were lax in observing this procedure thereafter.
The simple answer is that the vast majority of employees
and department heads followed the timecard punch-in
procedure . There is ample evidence that employees were
instructed by management that they were to utilize the
timecard procedure and to punch in and out no less than 5
minutes before and after the appropriate punch-out time;
manifestly , this ties in with Fair Labor Standards Act
procedures . I see little here to assist the General Counsel.
7. The General Counsel alleges that Respondent made
forms available to employees whereby they could resign
from the Union . While this is troublesome , here again, the
simple answer is, as employee Sue Williams testified, that
she and another named employee asked Manager Vernon
how to withdraw from the Union . Vernon responded that
he would consult with his attorney and duly advise her.
Vernon uncontrovertedly testified , and I so find, that
after checking with his counsel , he announced to employ-
ees at a regularly scheduled employee meeting that such a
request had been made , that he had checked with his
attorney , that a form reflecting resignation from the Union
had been prepared , and that copies thereof were available
on the desk at the close of the meeting . It is uncontroverted
that 10 such forms had been prepared and were duly made
available on the desk after the meeting . The record does
not disclose if any of these were utilized . I am not
convinced that this supports a finding in favor of the
General Counsel that Respondent arranged withdrawal of
union membership unlawfully within the meaning of the
Act, particularly where this activity was initiated by
employees ; I therefore recommend dismissal of this
allegation . See North American Aviation, Inc., 163 NLRB
863, and Clark Control, Division of A. O. Smith Corpora-
tion, 166 NLRB 266.
8. The General Counsel has also alleged a refusal to
bargain based upon the alleged violations of Section
8(a)(1). As found, these have been dismissed in their
entirety . I see no need therefore to treat with the question
of appropriate unit and majority representation therein
and recommend the dismissal of this allegation of the
complaint.
CONCLUSIONS OF LAW
1. Payless Drug Store of Port Angeles , Inc., is an
employer whose operations affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Retail Store Employees Union Local 381 , Retail
Clerks International Association , AFL-CIO , is a labor
organization within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(aX5) and ( 1) of the
Act.
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:
PAYLESS DRUG STORE OF PORT ANGELES, INC. 137
ORDERS
The complaint is dismissed in its entirety.
3 In the event no exceptions are filed as provided by Sec 102.46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.