Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1959

122 N.L.R.B. 1369 (N.L.R.B. 1959)

SAFEWAY STORES, INC. 1369
Safeway Stores, Inc. and Retail Clerks International Associa-
tion, Local 187, AFL-CIO. Case No. 30-CA-565. February 11,
1959
DECISION AND ORDER
On September 8, 1958, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Respondent
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board dismissed the complaint.]
i The Trial Examiner at one point in the Intermediate Report inadvertently sets out
the date of the first union meeting as October 15. The proper date is November 20 and
the Intermediate Report is so corrected.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on December 27, 1957, and
on February 19, 1958, respectively, by Retail Clerks International Association,
Local No. 187, AFL-CIO, herein called the Union, the General Counsel of the
National Labor Relations Board, herein respectively called the General Counsel'
and the Board, by the Regional Director for the Seventeenth Region (Kansas City,
Missouri), issued his complaint, dated June 11, 1958, against Safeway Stores, Inc.,
herein called Respondent, alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act.
Copies of the charges and complaint, together with notice of hearing thereon,
were duly served upon Respondent and upon the Union.
Specifically, the complaint alleged that since November 22, 1957, Respondent
(1) unlawfully interrogated its employees about, and inquired into , their union
membership and activities; (2) threatened its employees with various reprisals if
they selected the Union as their collective-bargaining representative ; (3) separately
'This term specifically includes counsel for the General Counsel appearing at the
hearing.
122 NLRB No. 160.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
announced wage increases to its individual employees in order to undermine the
Union and to discourage union activities ; and (4 ) discharged John Richard Hender-
son on November 23, 1957, and thereafter refused to reinstate him, because of his
membership in, or interest in, or his activities in behalf of , the Union.
On June 23 , 1958, Respondent duly filed an answer denying the commission of
the unfair labor practices alleged.
Pursuant to due notice , a hearing was held on July 15 and 16, 1958, at Laramie,
Wyoming, before the duly designated Trial Examiner . The General Counsel and
Respondent were represented by counsel and the Union by an official thereof. All
parties were afforded full opportunity to be heard , to examine and cross -examine
witnesses , to introduce evidence pertinent to the issues , to argue orally at the
conclusion of the taking of the evidence , and to file briefs on or before August 8,
1958. No briefs have been received.
Upon the entire record in the case , and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Safeway Stores , Inc., a Maryland corporation , has its principal offices in Balti-
more, Maryland , and is engaged in the retail distribution and sale of food in about
24 States , including the State of Wyoming , and in the District of Columbia.
Durixlg 1957 , Respondent received for sale at its Laramie , Wyoming , store, the
employees of which are the only ones involved in this proceeding , goods and mer-
chandise shipped directly from outside the State of Wyoming valued in excess of
$1,000,000.
Upon the above admitted facts, the Trial Examiner finds that during all times
material, Respondent was, and now is, engaged in commerce within the meaning
of the Act and that it will effectuate the purposes of the Act for the Board to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association , Local No. 187 , AFL-CIO, is a labor
organization admitting to membership employees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged interference , restraint, and coercion ; the alleged discriminatory
discharge of John R. Henderson
1. The pertinent facts
James H. Feith , the Union 's secretary -treasurer and employed at Respondent's
Cheyenne , Wyoming, store, testified , and the Trial Examiner finds, that about
September 5, 1957,2 William Raper, the manager of the aforementioned store, told
him that Respondent was considering transferring him to the Laramie store as
assistant manager 3 but that O . M. Baker, the district manager, believed, because
of his union activities , that if he were transferred to Laramie he would unionize
the employees ; that he replied , "If I took the job I would not start a union but
if one was organized and I had to join I would"; that Raper remarked that he
"understood that"; and that no further reference was made of the transfer.
Early in October , Feith went to Laramie and discussed with John R. Henderson,
who was then employed at the Laramie store, the unionization of the employees.
On or about October 15 , Feith met, at the house of one of the Laramie store
employees , with about 14 or 15 employees of said store, and discussed with them
"union activities."
Henderson , a lad of 18 years of age , testified, and the Trial Examiner finds,
that: he was a part-time employee from about 1954 to 1957, at Respondent 's Laramie,
Cheyenne , Rock Springs , Wyoming, stores ; his last part-time employment in 1957,
at the Laramie store , was from about mid-September until November 23; during
said period he attended the University of Wyoming which is located in Laramie;
2 Unless otherwise noted all dates refer to 1957.
8 The stenographic report of the 'hearing quotes Feith as testifying that Raper stated to
him on the above-referred-to occasion , "They needed an assistant at Laramie ." The Trial
Examiner distinctly recollects that Feith testified that Raper stated, "They needed an
assistant manager at Laramie." The record is accordingly corrected to coincide with the
Trial Examiner 's recollection.
SAFEWAY STORES, INC. 1371
on November 15 or 16,4 he contacted Feith and informed Feith that "the greater
majority of the employees would like a union" and then asked Feith "to talk to
them"; and as a result of this talk with Feith, the latter spoke about the Union
representing the employees at a meeting held on November 20, which was attended
by practically all the store employees eligible for union membership.
Henderson further testified, and the Trial Examiner finds, that early in the after-
noon of November 22, he told his immediate supervisor and personal friend,
Harry Huff, the Laramie store's assistant manager and conceded a supervisor
within the meaning of the Act, that a union meeting was being held that evening
and then invited Huff, whom he knew to be "against unions," to attend the
meeting and give his views with respect to unionization "so that everybody would
have advantage of full discussion"; that Huff declined the invitation; that later in
the day Huff, in his presence, said to Teodor A. Nelson, "Come on, Teddie, let's
go to this meeting. It ought to be a lot of fun"; that at the meeting that evening,
which was held at an employee's home, the Union's contract then in effect at
Respondent's Cheyenne store was fully discussed; that a "heated discussion" ensued
between him and those of his coworkers who favored unionization and Huff and
those who were against joining the Union; and that at this meeting Huff, at his
specific request, announced the granting of a wage increase of which some em-
ployees had been advised early in the day.5
The following morning, November 23, Henderson reported for work about
10 minutes before his scheduled starting time and immediately put on his apron.
Huff, seeing Henderson preparing to go to work, told him that the employees had
been complaining that Lawrence E. Savage, the store manager, put them to work
as soon as they reported for work even though they arrived at the store before
their scheduled starting time and hence Henderson should wait until 9 o'clock
before working. Henderson then proceeded to the front of the store and sat on
one of the stands used for checking customers' purchases.
While Henderson was sitting on the checker's stand waiting to go to work, Huff
came up to him and after making some comment about the Union, questioned
Henderson as to what the latter's father would say if he knew that he, Henderson,
was drinking, smoking, and cutting classes. Henderson got "downright mad" be-
cause Huff referred to his "personal life" which he considered "none of anybody's
business except for me and my family's" and suggested that the conversation con-
tinue in the rear of the store. There, Henderson, who "took it for granted" that
4 Feith, a much more reliable witness than Henderson , placed his first meeting with
Henderson in the early part of October, and the Trial Examiner so finds.
6 With respect to this wage Increase , the following took place at pages 63-64 of the
stenographic report of the hearing:
Mr. MCCLEARN (Respondent's attorney) : At this point I would like to propose a
stipulation with Government counsel with respect to the wage increases . I would
propose to stipulate that it is not contended by the Government that this wage in-
crease was granted in the fall of 1957 in Laramie for the purpose of discouraging
union activity. Is that appropriately stated?
Mr. BARKER (General Counsel) : So that the record will be perfectly clear as to our
stipulation, the General Counsel does not contend that the timing of the wage In-
creases was calculated-that the timing was not for the purpose of defeating union
representation among the employees at the Laramie store.
TRIAL EXAMINER: What are you going to do about subsection (c) of Paragraph IV
of the Complaint?
Mr. BARKER: I was going to address myself to that. Subsection (c) of Para-
graph IV of the Complaint goes merely to the manner In which those wage Increases
were announced to the employees. We intend to prove by our evidence that the
supervisory employees of Safeway announced those wage Increases separately to
individual employees. We make no contention that the wage increases were decided
upon at the particular time that they were placed into effect, merely to defeat the
Union.
Mr. MCCLEARN : In effect, you admit we were going to give them a wage Increase
regardless?
Mr, BARKER : That's right. We say the manner In which you announced the wage
increases violates Section 8(a) (1) of the Act.
Mr, MCCLEARN : Okay.
TRIAL EXAMINER : Do you accept that stipulation?
Mr, MCCLEARN : Yes, sir.
TRIAL EXAMINER : And you so stipulate?
Mr. BARKER : I so stipulate.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the customers who were then in the front of the store could hear him because he
was talking in a loud tone of voice, used profane and obscene language in ad-
dressing his remarks to Huff.
When Savage , who was in his office , located quite some distance from where
Henderson and Huff were, heard Henderson using a "fluent line of cuss words and
swearing" 6 in such a loud tone of voice he left his office to ascertain the reason
for the use of such language. Because the shouting of "cuss words and swearing"
continued while en route to Henderson , coupled with the fact that he "wasn't
tolerating any kind of loud language which could be heard all over the store" and
the fact that on at least one previous occasion he had reprimanded Henderson and
another employee for wrestling and engaging in horseplay in the store , he, upon
arriving where Henderson and Huff were , informed Henderson that he was fired
and then he turned to Huff, employee Mains, and Nelson, who were in the vicinity
of Henderson and Huff, and said, "I want you three fellows v for [witness] to this
here procedure of me firing Mr. Henderson."
Doris Phillippie, a former employee of the Laramie store , testified , and the Trial
Examiner finds, that she attended the November 20 union meeting; that the fol-
lowing day, she and Savage had a talk about the Union 8 wherein the following,
to quote Phillippie , was said:
Well, he told me the bad points of the Union and he said that in some in-
stances he thought that some places did need a union but he didn 't think that
we did, and I told him at the time if that's the only way I could get a raise,
which I felt like I was entitled to, I would go union if that was the only way
I could get my raise. . . . And he said, "I'm not telling you what to do.
That's up to you."
Jean Bonier 9 testified credibly that the "extent" of what transpired at the No-
vember 22 meeting consisted of nothing but "arguing and screaming and shouting"
by Henderson and Huff; that during the morning of November 22, Savage told her,
"We [are] going to get a raise" increase but he did not disclose the amount thereof;
that in November, Huff remarked , "If the Union came in, that [the employees
would] lose their scrubbing time and their unloading trunk time" and that on or
about February 8 or 9, Huff remarked that he knew the names of three of the
four employees who had voted for the Union at the Board-conducted election of
February 6 , 1958,10 but "thought" that Richard Duran was the fourth one; and
that during December, Savage conducted meetings of employees, after store hours,
for the purpose of hearing employees ' "gripes and moans"; and that in November,
Huff commented , "If the Union is going to hurt me , I'm going to tell the old
man." 11
Employee Richard Duran testified , and the Trial Examiner finds, that about a
week after the November 22 union meeting , Savage told him that when the general
wage increase went into effect the employees would be receiving almost as much
as the .then prevailing union scale; that about a week after the Union 's second
general meeting Huff said to him and Mains, to quote Duran , "He didn't want
the Union because it would hurt his wages"; that Savage told him that it was up to
the employees to vote either for or against the Union in the forthcoming Board-
conducted election; that after said election , Savage remarked , to again quote Duran,
"He knew that this damned Union wouldn 't go"; that in response to Huff's inquiry
as to how he voted in the aforementioned election, he replied that he voted against
the Union , to which Huff responded , "You're a smart kid."
Gerald Hansen , a former employee testified , and the Trial Examiner credits his
testimony, that a day or 2 days after the November 22 union meeting , Huff told
him that if the Union organized the store the Union would cut the employees' hours
and would probably reduce their wages and then proceed to explain "the disad-
vantages about the Union" ; that on about the same day he had the above con-
versation with Huff, Savage remarked that the Union would "cut [the employees']
8 Savage testified that he knew it was Henderson who was talking because he recognized
his voice..
9 Namely, Huff, Mains , and Nelson.
8 The Union was openly discussed in the store among the employees and between the
employees and Huff and between the employees and Savage.
9 Bronson also credibly testified that during a discussion with Savage with regard to
the forthcoming Board-conducted election , referred to below, Savage remarked, "Vote like
you want to, that's your right."
10 The Union lost the election by a vote- of 18 to 4.
11 Meaning Savage.
SAFEWAY STORES, INC. 1373
hours and pay"; and that the day following the Board-conducted election Savage
said to him, to quote Hansen , "He said that we won the election 18 to 4 and he
said that they wouldn't take our truck unloading or scrubbing time away from us."
According to the credited testimony of Paul Morton, Savage, during the course
of a conversation about the forthcoming Board-conducted election, told him, to
quote Morton, "It was just our own free will to vote [the Union] in or vote it out,
whichever we felt was to our advantage"; that at the November 22 union meeting
about 15 or 20 employees were present , including himself; that the purpose of
the meeting was to ascertain the employees' desire with respect to unionization;
that when Huff was told that if the Union successfully organized the store Huff
would have to become a member thereof, Huff stated that in that event he believed
he would request a transfer to a store where he would not have to join a union,
because he did not believe a union could be of any benefit to him.
With respect to the 1957 wage increases, Savage credibly testified that each year
the district manager, who, in 1957 had 13 stores under his supervision would con-
sult, sometime during the last 3 months of the year, with the managers of said
stores and ascertain their recommendations as to increasing the wages of their
respective employees; that in November 1957, the district manager sought his
recommendations for increasing the wages of his employees; and that after the
district manager approved his recommendations, "I contacted most of the employees
in the store and told them that there was a raise coming through."
Savage further credibly testified, and the Trial Examiner finds, that: whenever
any employee sought his advice as to how to vote in the 1958 Board-conducted
election, "I always specifically told them that it was in their own bill of rights and
they had their own right to vote for the Union"; that he personally is not "in
favor of the Union" organizing his employees because he "thought that the com-
pany was offering all the benefits that the Union would give"; previous to Novem-
ber 23, he had reprimanded Henderson and others for wrestling and engaging in
horseplay in the rear of the store; he discharged Henderson solely because the
latter had, in a tone of voice which could be heard throughout the store, used cuss
words and swore; in his 28 years of service with Respondent he never heard any
employee shout swear words so that they could be heard throughout the store,
especially when customers were in the store; he and other employees had, on occa-
sion, swore, using such words as "hell" and "damn," but neither he nor any
employee swore or used foul language loud enough to be heard by customers;
at the request of the employees he inaugurated, after store hours, .meetings of
employees; these meetings were held for the purpose of ironing out certain griev-
ances the employees allegedly had; the meetings, attendance at which was volun-
tary, were discontinued because the employees lost interest therein; and because
the female employees had abused the "coffee break" privilege it was discontinued
for a few weeks.
B. Concluding findings
The Trial Examiner is convinced, and finds, upon the evidence, as epitomized
above, that Henderson was discharged for cause and not for the reasons advanced
by the General Counsel. The Trial Examiner further finds that Raper's Septem-
ber 1957 remarks to Feith regarding refraining from union activities if he became
assistant manager of the Laramie store were not violative of the Act for the
obvious reason that members of management may not interfere with employees'
union activities. The Trial Examiner also finds that the remarks of Savage and
Huff to the effect that if the Union successfully organized the employees the Union
would cause the employees the loss of certain benefits were not in violation of
Section 8(a)(1) of the Act as they were no more than predictions that if the Union
were to represent the employees it would demand the elimination of such benefits,
and that in supporting the Union the employees would be supporting such demands.
Such predictions of future events beyond the control of the speaker have been held
by the Board to be protected by Section 8(c) of the Act, as mere expressions of
opinion.12 The Trial Examiner does not consider the isolated remark of Huff to
Bronson in November. to the effect that if the Union successfully organized the
store the employees thereof would lose certain scrubbing and unloading time,
standing alone and unrelated to any other anti-Union conduct on behalf of Re-
spondent, to be sufficient to warrant a finding of interference, restraint, or coercion
under the Act.13
Upon the record as a whole the undersigned finds that the allegations of the
complaint that Respondent violated Section 8(a)(1) and (3) of the Act have not been
33 Cary Lumber Company, 102 NLRB 406; A. L. Gilbert Company, 110 NLRB 2067.
is Bob Morgan Motor Company, Inc., 106 NLRB 334.
;1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained by the credited evidence. Accordingly, the Trial Examiner recommends
that the complaint be dismissed, in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Safeway Stores, Inc., Laramie , Wyoming, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks International Association, Local No. 187, AFL- CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act have not been sustained.
[Recommendations omitted from publication.]
International Union of Operating Engineers, Local 150, AFL-
CIO [Fluor Company, Ltd.] and Eugene Russell . Case No.
13-CB-428. February 1 2, 1959
DECISION AND ORDER
On January 24, 1957, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, a copy of
which is attached, finding that the Respondent had not engaged in
any of the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety. Thereafter
the General Counsel filed exceptions to the Intermediate Report and
a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case. To the extent and for the reasons stated below the
Board finds merit in the General Counsel's exceptions . Otherwise
the Board adopts the findings, conclusions, and recommendations of
the Trial Examiner.
1. The Trial Examiner found that the record in this case was in-
sufficient to conclude that an unlawful hiring arrangement existed
between the Respondent Union and the Company. We disagree. In
April, 1955, the Fluor Company was engaged in a construction proj-
ect at Hammond, Indiana. Following its usual practice the Com-
pany first met with the local Building Trades Council and informed
the participating labor organizations of the number and type of
employees it would require. There was in effect at this time a con-
tract between the Respondent Union and the Calumet Division of
the State Chapter of the Associated General Contractors of Indiana
which provided, in pertinent detail, that the Union would furnish
122 NLRB No. 154.