Super Valu Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 899 (N.L.R.B. 1969)

SUPER VALU STORES, INC.
Super Valu Stores, Inc. and K 's Super Valu of
Peoria , Inc. and Retail Clerks Union Local 563,
Retail Clerks International Association , AFL-CIO
and The United Retail Workers Union , Party to
Contract. Case 38-CA-563
June 30, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On April 30, 1969, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel, the
Respondents, and the Charging Party filed
exceptions to the Decision and supporting briefs,
and the Respondents filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case , and hereby adopts the
findings, conclusions ,' and recommendations of the
Trial Examiner with the following modifications:
The Trial Examiner found that Respondent Super
Valu did not violate Section 8(a)(2) of the Act by
recognizing the United Retail Workers Union as the
collective-bargaining representative of Respondent's
Lake Street store employees, for the reason that, in
the Trial Examiner's view, these employees were an
accretion to existing contract unit. In light of this
conclusion, the Trial Examiner further found that
Respondent did not act unlawfully by applying its
contract with the URW to these employees; by
informing the employees that they had to join the
URW, as a condition of employment, within 30
days; and by directing employees to talk to a URW
representative on company time in a company
furnished office. As we find that the Lake, Street
store employees were not an accretion to the
pre-existing unit, we conclude that Respondent, by
its actions noted above, violated Section 8(a)(2) and
(1) of the Act.
'In adopting the Trial Examiner 's conclusion that employee Simpson
was discharged for engaging in union activities, we do not rely upon the
finding that Simpson , at the time of his discharge , had failed to sign an
application for membership in the URW.
899
Respondent Super Valu has for some years owned
and operated several grocery stores in the Peoria,
Illinois, area. It purchased its first store in this
locality in 1963 and the employees there were
represented by the Retail Clerks prior to the
purchase and continued to be represented by the
Clerks after the store was taken over by Super Valu.
In 1964, Respondent purchased five new stores and
the employees in these stores, both before and after
the sale, were represented by the URW in a single
unit. By the fall of 1966, when the current contract
between Super Valu and the URW was executed,'
the store whose employees had been represented by
the Retail Clerks and one of the URW-represented
stores had closed. A fifth store was opened in late
1966 and the employees hired to staff that store
were brought under the contract by agreement of
the parties. The Lake Street store was purchased by
Super Valu from Respondent K's early in October
1968. One month prior to the purchase an election
had been held among the employees in this store
which resulted in 13 votes being cast for the Retail
Clerks, 2 votes for the URW, and 18 votes for "no
union." The Board thereafter issued a Certification
of Results of Election.
Each of the Super Valu stores has a store
manager who is responsible for the day-to-day
operation of the store. This store manager is under
the supervision of a district manager whose
jurisdiction includes the six stores discussed above
and a seventh store located in Kankakee, Illinois.
Hiring is done locally, and while the store manager
must obtain the approval of the district manager
before hiring or firing, the store manager's
recommendations in this regard are normally
accepted. The store manager represents Super Valu
in the adjustment of grievances at the first step in
the grievance procedure, and sets the work and
vacation schedules for his store. He has the
authority to grant overtime and time-off. The store
manager orders merchandise from the Super Valu
warehouse and from suppliers approved by the
district manager, and determines the level of
inventory required. The prices at which merchandise
is sold are fixed by the district manager who is also
responsible for the advertising of the stores.
Each store has its own profit and loss statement
and its own bank account and is individually
evaluated by Super Valu. Paychecks emanate from
the Minneapolis headquarters and personnel and
accounting records are kept there.
During 1968, there were 27 permanent transfers
of employees from one store to another within the
five stores covered by the contract. Most of these
transfers involved promotions. The record does not
'The contract does not cover meat department employees. These
employees are represented by another union which has a contract with
Super Valu covering the other stores and which had an identical contract
with Super Valu's predecessor covering the meat department employees at
the Lake Street store Super Valu assumed this latter contract after
purchasing the Lake Street store.
177 NLRB No. 63
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reveal that any temporary transfers were effected
during that period. In the four months between
Super Valu's acquisition of the Lake Street store
and the date of the hearing, one supervisor and one
rank-and-file employee have been transferred from
that store. Both transfers occurred after charges had
been filed in the instant case.
In view of the local autonomy of the Lake Street
store and the considerable authority exercised by the
store manager, particularly with respect to labor
relations matters and employment conditions, and
the infrequent interchange with employees at other
stores, we conclude that the Lake Street store is a
separate, economic unit and not an accretion to the
existing contract unit.' Accordingly, we find that
Respondent Super Valu by recognizing the United
Retail Workers Union as the exclusive bargaining
representative of the Lake Street store employees at
a time when that union did not represent a majority
of those employees, violated Section 8(a)(2) of the
Act. Super Valu further violated the Act by
extending the union-security clause and other
provisions of its contract with the URW to the Lake
Street store employees, by informing employees that
they had to join the URW, within 30 days as a
condition of employment, and by directing
employees to talk to the URW on company time in
a company furnished office.
We shall order that Super Valu withdraw and
withhold recognition from URW as the
collective-bargaining representative of the Lake
Street store employees and that Super Valu cease
giving effect to its contract with URW as applied to
the Lake Street store employees. However, nothing
in our order shall require Super Valu to vary or
abandon any wage, hours, or other substantive
features of its relations with the Lake Street store
employees established in the performance of its
contract with URW. Since Respondent Super Valu
engaged in coercive conduct to force the Lake Street
store employees to join URW, we shall order that
Super Valu reimburse those employees, past and
present, for all dues and other monies illegally
exacted from them by or on behalf of URW
pursuant to the contract.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondents , Super Valu Stores, Inc., Peoria,
Illinois, and K's Super Valu of Peoria, Inc., Peoria,
Illinois, their officers, agents, successors and assigns
shall take the action set forth in the Trial
Examiner ' s Recommended Order as so modified:
See Warehouse Markers, Inc. 174 NLRB No 70
1. Reletter paragraphs B, 1, (a), (b), and (c), as
paragraphs B, 1, (e), (f), and (g) and add the
following as new paragraphs B, 1, (a), (b), (c), and
(d):
"(a) Recognizing URW as the exclusive
bargaining representative of Super Valu's Lake
Street store employees unless and until the National
Labor Relations Board shall certify URW as such
representative.
"(b) Maintaining or giving any force or effect to
its contract with URW with respect to the Lake
Street store employees ; provided, however, that
nothing in this Order shall require Super Valu to
vary or abandon any wage, or other substantive
feature of its relations with its Lake Street store
employees which have been established in the
performance of the said contract.
"(c) Encouraging membership in URW , or in any
other labor organization , by conditioning the hire or
tenure of employment or any term or condition of
employment of its Lake Street store employees upon
membership in, or dues payments to, any such labor
organization , except as authorized in Section 8(a)(3)
of the National Labor Relations Act, as amended.
"(d) In any other manner unlawfully assisting
URW or any other labor organization in obtaining
employee membership therein."
2. Reletter paragraph B, 2, (a) as paragraph B, 2,
(c), and paragraphs B, 2, (b) and (c) as paragraphs
B, 2, (e) and (f), and add the following as new
paragraphs B, 2, (a), (b), and (d).
"(a) Withdraw and withhold all recognition from
the URW as the exclusive bargaining representative
of its Lake Street store employees unless and until
URW has been duly certified as such representative
by the National Labor Relations Board.
"(b) Reimburse all of its former and present Lake
Street store employees for dues and other moneys
unlawfully exacted under its contract with URW,
together with interest at the rate of 6 percent per
annum, computed in the manner set forth in
Seafarers International Union of North America,
Great Lakes District , AFL-CIO , 138 NLRB 1142.
"(d) Preserve and, upon request , make available
to the Board or its agents , for examination and
copying , all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary or useful in checking
compliance with this Order."
3. Insert the following as the first four indented
paragraphs of the Appendix:
WE WILL NOT recognize URW as the exclusive
representative of our Lake Street store employees
unless and until it has been certified as such
representative by the National Labor Relations Board.
WE WILL NOT apply our contract with the URW to
our Lake Street store employees. However , we are not
required to change or abandon any wages or other
terms or conditions of employment which we have given
to our Lake Street store employees under said contract.
WE WILL NOT unlawfully assist URW or any other
union.
SUPER VALU STORES, INC. 901
WE WILL reimburse our Lake Street store employees,
former and present , for dues and other moneys
unlawfully exacted under our contract with the URW.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This case, heard
in Peoria, Illinois , March 4 and 5, 1969, pursuant to a
charge filed October 23, 1968,' and a complaint issued
December 19, presents primarily the question whether the
employees in a grocery supermarket which Respondent
Super Valu Stores, Inc. ("Super Valu"), purchased from
Respondent K's Super Valu of Peoria, Inc. ("K's"),
constituted an "accretion" to a bargaining unit composed
of Super Valu's five other stores in the Peoria area. Other
questions presented concern allegations of discrimination
by Super Valu, and allegations of interference with
Section 7 rights by both Respondents. Upon the entire
record, including my observation of the witnesses, and
after due consideration of the briefs filed by General
Counsel, Respondents, and the Party to the Contract, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS AND THE LABOR
ORGANIZATIONS INVOLVED
K's, an Illinois corporation engaged at Peoria in the
operation of retail grocery stores , annually sells and
distributes products valued in excess of $500 ,000, and
annually receives directly from outside the State goods
and materials valued in excess of $50 ,000. Super Valu, a
Delaware corporation with headquarters at Minneapolis,
Minnesota , operates retail grocery stores in various
locations , including a group of stores in Peoria. The
annual value of the products it sells and distributes
exceeds $500 ,000, and it annually receives in Peoria,
directly from outside the State , goods and materials
valued in excess of $50 ,000. Each of the Respondents is
therefore an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act . The Charging
Party , herein called Retail Clerks , and the Party to the
Contract , herein called URW, are labor organizations
within the meaning of Section 2 (5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Outline of Events
For some years prior to the events here in question
Super Valu had owned and operated several grocery stores
in Peoria and its immediate vicinity . Some other stores in
the area such as, for example , one of the stores owned by
K's, situated at the corner of Lake and Knoxville Streets,
were not owned by Super Valu , but were permitted to use
its name , purchased goods from its warehouse , and were
joined with it in common advertising . There was no
corporate relationship between Super Valu and these
"franchise stores" such as K's, and their labor relations
were entirely separate . Super Valu had a contract with
URW, which was the certified representative of the
employers in the unit consisting of the Super Valu stores.
The franchise stores , such as K's, were independent of this
All dates herein refer to the year 1968 unless otherwise indicated
bargaining unit , and, so far as appears , each such store
was a separate unit.
In the summer of 1968 the Retail Clerks filed a petition
for certification claiming to represent K's employees at its
Lake and Knoxville store . The URW intervened in the
proceeding . In the election held September 6, Retail
Clerks received 13 votes, URW 2 votes, and "no union"
18 votes. Some of the issues in the instant case concern
allegations of unlawful conduct in the period surrounding
the election.
Early in October K's sold the store in question to Super
Valu. The sale involved no "break " in the continuous
operation of the store , or in the employment of
rank -and-file or supervisory employees . Super Valu was
therefore a successor to K's at that store. One was not,
however , the "alter ego" of the other . The two
corporations are separate and distinct , with only a normal
"business" relationship , not a "family" relationship. After
acquiring the new store , Super Valu proceeded to make
immediately applicable at that store the contract which it
had with URW covering the other Super Valu stores in
the area. This conduct is alleged to violate Section 8(a)(1)
and (2) of the Act . Finally, Super Valu after it acquired
the store allegedly discriminated against three employees
because of their support of the Retail Clerks and
unlawfully interrogated employees concerning their union
membership, activities , and desires . We shall discuss the
alleged violations in chronological order.
B. Interference , Restraint, and Coercion Relating to
the Election
Several employees testified to conversations with Store
Manager Joe Gray before and shortly after the election in
which he made statements alleged to violate the Act. Gray
remained as store manager for a few weeks after Super
Valu purchased the store , and then was transferred to
another Super Valu store in the area.
General Counsel adduced testimony that prior to the
election Gray ( 1) told employee Kizziah that, "if the
union came in," the employees would have to work
harder , would have shorter break periods, "and there
would be no more messing around"; (2) told employee
Johnson that Gray knew how everyone was going to vote
in the election ; (3) told employees Wisner and Stuckwisch
that "if the union got in the doors would have to be closed
because Mr . K could not afford to pay union wages"; and
(4) told Wisner that "Mr. K had been going to give us all
a raise until this union thing came up , and now he was
going to have to wait until it was over to see how it came
out." General Counsel also adduced testimony that in the
days immediately following the election Gray on separate
occasions (1) told employees Leach and Wisner that he
and Mr . K (the then owner) had "figured out" how every
employee had voted in the election ; (2) told employees
Brownell and Rubenich, separately , that he knew how the
employee to whom he was speaking had voted ; (3) told
employee Sarah Hendricks that he and the owner knew
that Hendricks had urged certain employees "to join the
union ," and, when Hendricks denied the charge, said "we
know better ;" and (4) told employee Betty Rubenich that
he knew how employee Knott had voted "and that woman
was going to go."
Gray admitted telling Leach that he knew how she had
voted, but indicated that in her case this was common
knowledge . He did not remember discussing the subject
with other employees . He also testified that he did not
threaten that the store would be closed or that the
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees would suffer if "the union" came in, but that
he did state that the employees could get a raise only if
the store made more money, which in turn depended on
their working harder. The then owner of the store, Wilbur
Korsmeyer, testified that in mid-August when he received
notice that an election would be held, he told his
supervisors , including Gray, not to discuss the election
with any of the employees.
I credit the testimony of Kizziah, Johnson, Wisner,
Stuckwisch , Leach, Brownell , and Hendricks, summarized
above , which establishes that K's, acting through Gray,
committed numerous infringements of employee rights,
particularly by threats of reprisal if the store became
organized and by creating the impression of surveillance.
The complaint also alleges that K's violated the Act by
paying election observers for URW for time devoted to
the election while declining to pay observers for the Retail
Clerks for similar time . Although employee Karen
Brownell, a URW observer at the election, testified that
she was paid for the time, I am satisfied from the
testimony of Wilbur Korsmeyer and from the timecard
and earnings record relating to Brownell that she was in
error in this respect. I therefore would dismiss this
allegation.
C. Recognition of the UR W
At the time Super Valu acquired the store in question,
URW and Super Valu had a 3-year contract, effective
September 25, 1966, which by its terms applied to the
employees (with specified exclusions) in the stores in
Peoria and Pekin .' Immediately prior to the acquisition,
Super Valu operated five stores under that contract, three
in Peoria and two in Pekin . Included in the contract was a
clause requiring employees covered thereby to become
members of the URW "on or after the 31st day following
the beginning of such employment."
Super Valu, even before the purchase was completed,
and at all times thereafter, has taken the position that its
contract with the URW became applicable to the
employees at the store in question as soon as Super Valu
acquired it. Little purpose would be served in detailing the
various manifestations of this position , including a
prepurchase meeting at which a supervisor told the
employees they would be covered by the contract, and
later "encouragement" of membership by directing
employees during working hours to go to the store office
to see URW representatives who were there for the
purpose of obtaining applications for union membership
as required by the contract . Counsel for both sides
conceded that the legality or illegality of Super Valu's
conduct turned on whether by operation of law the
contract became applicable to the employees in the store,
or, to use the term of art, whether it was an "accretion"
to the preexisting unit.
As Judge Prettyman recently stated , "to define and
draw a line as a factual matter between an `accretion' and
a `separate economic unit ' is often a task of delicacy
depending upon many factors." Local 919, Retail Clerks
International Association [Super Markets General Corp.]
v. N.L.R.B., 416 F.2d 1118 (C.A.D.C.). Recent Board
decisions attest the "delicacy" of the task. Note the
opposite results in successive cases, Shop 'n Save Co.,
Inc., 174 NLRB No. 156, and Mott's Shop-Rite of
Meriden , Inc., 174 NLRB No. 157; and see also the
'The current Rand McNally atlas shows that Peoria, a city of 127,000, is
10 miles from Pekin , a city of 30,000
closely divided decision in Warehouse Markets , Inc., 174
NLRB No. 70. As the decision in each case turns on the
ultimate assessment by the final reviewing authority of all
the factors in the case, I believe I can best discharge my
function as the original arbiter by listing all the factors
that appear to me to be relevant, and by drawing my own
conclusion therefrom. The underlying facts are not in
dispute.
In 1963 Super Valu purchased a Peoria store from K's
known as the Second Street store. At this time Super
Valu had no other stores in the area. The employees at
the Second Street store, both before and after its
acquisition by Super Valu, were represented by the Retail
Clerks. This store, however, closed in 1966. Meanwhile, in
1964, Super Valu acquired five stores in the area from
another company, and the employees in these stores were
represented by URW, which had a single contract
covering these stores. At the time Super Valu executed its
current contract (September 1966 through September
1969) with URW, the contract covered four stores, as not
only the Second Street store but one of the other group
had closed. A fifth store, located in Pekin, was opened
later in 1966, and the employees hired for that store were
brought under the contract under the principle of
accretion, apparently without contest. The instant case
involves a sixth store, located in Peoria, and differing
from the previous acquisition in that this was a going
concern rather than a new facility.
Each of the stores has a store manager who is
responsible for the day-by-day operation of his store, but
who is subject to supervision by the district manager
whose territory embraces these six stores plus a seventh in
Kankakee , Illinois. The store managers hire and fire
subject to the approval of the district manager which is
ordinarily forthcoming. The store managers order
merchandise from the Super Valu warehouse or, in the
case of a few commodities, from suppliers approved by
the district manager . Similarly store managers may call
only certain approved establishments if repair services are
required . The store manager represents Super Valu in the
adjustment of grievances at the first step in the grievance
procedure, and sets the work and vacation schedules for
his store . Each store has its own profit and loss statement
and its own bank account. Funds are banked in Peoria but
are transferred weekly to the Super Valu's Minneapolis
headquarters . Paychecks emanate from Minneapolis, and
personnel and accounting records are maintained there.
The prices at which the stores sell merchandise are
fixed by the district manager, who is also responsible for
the advertising of the stores. The supplying of uniforms
and aprons is also handled by the district manager.
During 1968, there were 27 transfers of employees from
one store to another within the five stores covered by the
contract. In the 4 months between Super Valu's
acquisition of K's Lake and Knoxville store and the date
of the hearing, one rank-and-file employee and one
supervisor had been transferred from that store to other
stores in the area.
The contract between URW and Super Valu did not
cover meat department employees. Those employees were
represented by another labor organization which had a
contract with Super Valu covering the other five stores,
and which had had an identical contract with K's covering
the store in question. According to the testimony of
Kenneth Martinsen , the manager of labor relations for the
entire Super Valu chain, Super Valu took over the meat
department labor contract at the Lake and Knoxville store
as a "successor employer ," whereas when it opened the
SUPER VALU STORES, INC. 903
fifth store some years before it had added the meat
department employees in that store to the preexisting
four-store unit by "accretion." Pressed as to why he
regarded the two matters differently, Martinsen explained
that in the earlier instance , unlike that involved in
acquiring the Lake and Knoxville store, there had been no
preexisting contract.
The normal considerations favoring and opposing
"accretion" are present in this case. The principle of
self-determination suggests that the employees in this store
who recently rejected the URW by an overwhelming vote
should not be brought against their will under the aegis of
that union. On the other hand, if the employees of any
one of the other stores in the chain are equally opposed to
the URW, they are nevertheless bound to it under
principles of majority rule. Cf. the majority and dissenting
opinions in Pittsburgh Plate Glass Company v. N.L.R.B.,
313 U.S. 146. Considerations of stability seem to favor
accretion, for the newly acquired store will apparently be
operated in a fashion indistinguishable from that of the
other five stores already in a single unit, and employee
transfers from store to store appear to be sufficiently
frequent (the 27 transfers in 1968 actually mean 54
changes , as each transfer is out of one store and into
another ) as to raise significant problems of seniority and
of transfer from one union to another or to no union if
the new store is not added to the unit . But this
consideration is not unique on this record , and may reflect
nothing more than reexamination of principles which were
already the subject of reexamination (and of differing
views) in Sav-On Drugs, Inc., 138 NLRB 1032. Possibly a
difference of approach is indicated if the issue is whether a
petitioning union may be granted a single store unit rather
than whether an existing multistore unit should be
expanded by accretion. In Warehouse Markets, Inc., 174
NLRB No. 70, the Board adopted a decision of Regional
Director Meter in which he noted that "the factors
considered in determining these two questions are very
similar ." In that case the Board , by a divided vote, found
"no accretion" on facts closely analogous to those in this
case , but not identical . In that case the store in question
was owned by a separate corporation , a circumstance
absent here . Also in that case in the 9 months between the
opening of the new store and the date of the Regional
Director's decision there had been only two or three
occasions in which employees from that store had been
interchanged with employees of other stores in the chain.
I see little purpose to be served in prolonging this
discussion . I lean to the view that in the long run it is
sounder policy to view the instant case as one of
accretion , and hence find no violation in Super Valu's
applying its URW contract to the employees at this store.
See in addition to the cases cited above Weis Markets.
Inc., 142 NLRB 708, 710; Meyer Supermarkets, Inc., 142
NLRB 513; The Pep Boys, 172 NLRB No. 23.'
'I find the Board ' s decisions in Purity Food Stores, Inc.. 160 NLRB
651, Frisch's Big Boy Ill-Mar, Inc., 147 NLRB 551, and Davis Cafeteria.
Inc, 160 NLRB 1141, distinguishable on their facts . Mindful of the
Board' s strictures (Insurance Agents ' International Union (Prudential Ins.
Co ), 119 NLRB 768, 773, Iowa Beef Packers , Inc. 144 NLRB 615, 616),
I am, of course, not influenced by the fact that the orders in those cases
were denied enforcement (376 F.2d 497 (C.A. 1), 356 F.2d 895 (C.A. 7),
396 F.2d 18 (C.A. 5)), or by the fact that the Board ' s petition for certiorari
in the Purity case was denied , 389 U.S. 959 Even more distinguishable on
its basic facts, of course , is Appleton Electric Co., 120 NLRB 451, 127
NLRB 1509, 129 NLRB 1347, although certain of the considerations
which moved the Seventh Circuit to set that order aside (296 F.2d 202,
206-207) might appear applicable.
D. The Resurgence of the Retail Clerks and Alleged
Violations Relating Thereto
After Super Valu started operating the store in
question, a number of employees there signed cards
indicating a desire to be represented by the Retail Clerks.
The complaint alleges four violations in this regard: the
discharges of employees Karen Brownell and John
Simpson, allegedly for activity on behalf of the Retail
Clerks, a reduction in the work hours of employee Mary
Knott for the same reason, and alleged unlawful
interrogation by Mel Williams, the manager of the bakery
department.
According to the testimony of several employees,
Williams showed an inordinate interest in ascertaining
who was distributing cards on behalf of the Retail Clerks.
Employee Kizziah testified that on October 29 Williams
asked her "who was the checker who gave [Kizziah her]
card for the other union." According to Kizziah, she
either did not reply or replied that she did not know, and
Williams then asked another employee, Mary Knott, if
she knew "who the checker was that was handing out the
cards," to which Knott replied in the negative. Employee
Johnson testified that on October 31 she heard Williams
ask the night baker if the latter knew who "was passing
out that other union's cards," and heard the reply that it
was one of the checkers. (In point of fact, the checker in
question, Mary Robb Leach, was subsequently
transferred, involuntarily, to another store, but the
complaint alleges no violation with respect thereto,
although a charge was filed naming Leach as a
discriminatee .) Williams recalled asking the night baker
for what union the cards were being circulated, but denied
asking the identity of the person involved. Williams also
denied ever asking anyone else about the circulation of the
cards for the Retail Clerks, stating that his inquiry of the
night baker was "the one and only occasion that I ever
expressed any interest [in that topic] whatsoever." I credit
the disinterested testimony of Kizziah and Johnson over
that of Williams in this regard, and find that, by
Williams' repeated inquiries of employees as to the
identity of the employee distributing cards on behalf of
the Retail Clerks, Super Valu violated Section 8(a)(1) of
the Act.
Turning to the alleged discriminations, Knott's case
must be dismissed for failure of proof. She was unable to
testify because of injuries, and, while the record
establishes her support of the Retail Clerks and a sharp
reduction in her hours of work at a time coinciding with
the resurgence of that union ' s organizing activity, it also
establishes that she was the newest employee in the bakery
department. Williams testified that there was a need to
economize on labor in that department, and Knott's
reduction in hours lasted for only 2 days, when absences
followed by a resignation in the department led to her
being called back to full-time work. The complaint as to
her must therefore be dismissed. Indeed, General Counsel
in his brief apparently abandons the Knott matter.
Although a closer question is presented as to whether
the discharge of Karen Brownell was for union activity, I
find that in her case also the General Counsel failed to
sustain his burden of proof. Brownell signed a Retail
Clerks card on October 24, the same day on which the
original unfair labor practice charge was served on Super
Valu, and she was discharged October 26. However,
according to employee Johnson, a witness for General
Counsel, it was on October 23 that District Manager Dale
Thorpe told her that he was "going to have to let someone
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go" from the bakery, and that Karen Brownell was "not
worth her salt." (Brownell had also signed a card for the
Retail Clerks the preceding May, but had acted as an
observer for the URW in the September election.)
According to Brownell, when Bakery Manager
Williams laid her off on October 26 he gave her no reason
except that he had orders to do so. About 1 week later she
went to see District Manager Thorpe, who said she had
received too many personal telephone calls and did not do
her work. The following Tuesday, October 29, Thorpe
offered to put her back to work, but she declined as she
had obtained another job.
Williams denied telling Brownell that he had orders to
let her go. According to Williams, he and Thorpe had
reached a decision some days before to reduce the
employee complement in the bakery department, and they
considered Brownell the least competent. One difficulty in
the case is that Williams followed store seniority in
selecting Knott for reduction of hours, but ignored it in
selecting Brownell for discharge, and adhered to the latter
decision even after a junior employee, Kizziah, offered to
quit so that Brownell could remain. Also, according to
Kizziah, Williams spoke to her on three different
occasions concerning Brownell's layoff, first telling her
that he was going to lay Knott and Brownell off until
business picked up , later saying he "had orders" to let
Brownell go, and finally - several days after the layoff -
attributing it to excessive use of the telephone.
Williams' testimony that he decided Brownell was too
slow and that he selected her for discharge for that reason
is not altogether convincing, but the burden of proof is on
General Counsel, and on this record I lean to the view
that he has established only suspicious circumstances.
Brownell was not particularly noted for her support of the
Retail Clerks, and there is some evidence that the decision
to discharge her predated her signing a card. She had
spoken in support of the Retail Clerks in recent informal
discussions with employees, but apparently not more so
than others not discharged or laid off. Also, the record
establishes that Super Valu has effected a substantial
reduction in the number of employees in the bakery
department at this store. On balance, I would dismiss
Brownell ' s case as not proved.
I reach a contrary conclusion with respect to the
discharge on October 26, 1968, of John Simpson, a sack
boy. Simpson late in October obtained Retail Clerks cards
from Mary Leach, and spoke to several of his fellow
employees in an effort to persuade them to sign the cards.
He was discharged at the end of the week in which he
engaged in this activity. At the end of November, after
the filing of an unfair labor practice alleging
discrimination against Simpson, Thorpe, the local district
manager, offered Simpson his job back, stating (according
to Simpson) that "the Minneapolis office put a little
pressure on," but Simpson declined the offer. Thorpe
testified that he did not use the -word "pressure," but
recalled telling Simpson that Thorpe had received a call
from Minneapolis. According to Thorpe, the Minneapolis
office had noted that Simpson's name was off the payroll
but it had received no separation notice regarding him.
Left unexplained by Thorpe's version is why this
circumstance should have led to an offer to reinstate
Simpson. But all this, of course, is after the event, and
sheds little, if any, light on the question whether Simpson
was discharged for cause or for union activity.
According to Thorpe, Simpson was discharged because
he was unable to work Thursday nights, because he was
"very slow in returning from carryouts," and because his
work "was inadequate as far as putting frozen food up."
Thorpe testified that in the 2 weeks which elapsed between
Super Valu's acquisition of the store and the discharge, he
had observed Simpson on one occasion standing idle for I
or 2 minutes with merchandise in front of him which he
should have been loading. This occurred over a week
before Simpson's discharge. Thorpe further testified that
when Store Manager Gray asked that Simpson be let go
because he could not work Thursday nights, Thorpe
agreed because "with my observation of this man, our
organization would be better off without his services."
The testimony of both Thorpe and Simpson establishes
that a few days after Simpson's discharge (which occurred
on October 26, 1968) he saw Thorpe at the store and
asked why he had been discharged. Thorpe testified that
he gave Simpson the reasons outlined above; Simpson
testified that Thorpe disclaimed the Thursday matter as
"not the real reason." Both witnesses agreed that Simpson
said he should have been warned if his work was at fault.
According to Simpson, Thorpe simply responded that this
was the manager's job. Thorpe testified that he told
Simpson to return the next Friday at 5 p.m. and that
Thorpe would "see what I can do about putting you back
to work." Simpson "did not remember" any such
suggestion by Thorpe and did not appear on the Friday
evening in question, but obtained other employment late
in November.
Store Manager Gray testified that Simpson would be
"sitting down in the bottle area lots of times" when he
was supposed to be stacking bottles, and that he also said
he could not work Thursday nights. Simpson himself
testified that he never refused to work Thursday nights
but had expressed a preference not to work those hours
because of his school schedule. Originally Simpson, like
the other sack boys, worked only three nights a week, but
on one occasion he took on a fourth night (Thursdays),
substituting for another employee who "had some
conflictions," and thereafter he was regularly scheduled
for four nights. After Simpson explained his problem to
Store Manager Gray, the latter posted a schedule which
did not include Thursday work for Simpson, but shortly
thereafter Simpson was discharged.
The various grounds urged by Super Valu to explain
the discharge of Simpson do not withstand scrutiny. The
suggestion that he was slow returning from carryouts
apparently has been abandoned. No evidence was adduced
in support of Thorpe's assertion to that effect, and several
checkers testified that they had no complaint to make
against Simpson. Thorpe's single observation of him as
being idle for a minute or two scarcely seems to call for
the supreme penalty, especially as I have some difficulty
in crediting Thorpe's testimony that although he gets into
the stores "quite often," Simpson was the only sack boy
he ever observed standing around for a minute or two and
not working. In any event there is affirmative testimony
from Stuckwisch, another sack boy who was senior to
Simpson, that Simpson was given the preferred
assignment of putting away frozen foods because the
supervisor said Simpson did a better job than Stuckwisch.
Also, according to Thorpe, it was Store Manager Gray
who suggested to Thorpe that Simpson be discharged, and
Gray's expressed reason was only the boy's "refusal" to
work Thursday nights . Gray also testified that he found
Simpson sitting down in the back room when he should
have been stacking bottles, but this also was not
mentioned to Thorpe as a ground for discharge.
The apparent immediate cause of the discharge was
Simpson's reluctance to work Thursday nights. But
SUPER VALU STORES, INC.
Simpson worked as many nights as any of the other boys,
and indeed had only had the added Thursday assignments
because he substituted for another boy on one such night.
Under the circumstances it seems odd , to say the least,
that he rather than some junior employee (of whom there
were several among the sackers) should have been let go
for what appears to have been a common aversion to the
Thursday night assignment.
All of the foregoing, of course, while it casts some
doubt on the assigned reasons for Simpson's discharge
does not establish affirmatively that the real cause was
some statutorily protected activity. But cf. Shattuck Denn
Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A.
9); Betts Baking Co. v. N.L.R. B., 380 F.2d 199, 205
(C.A. 10). The record does establish that Simpson was
active in distributing cards for the Retail Clerks, a matter
which could scarcely remain secret in a store of only 40
employees. See Hesmer Foods, Inc., 161 NLRB 485, 490,
491, enfd. November 17, 1967 (C.A. 7, No. 16306), cert.
denied 391 U.S. 905; Angwell Curtain Company, Inc. v.
N.L.R. B., 192 F. 2d 899, 903 (C. A. 7); N. L. R. B. v. Joseph
Antell, Inc., 358 F.2d 880 (C.A. 1). Also, Simpson had
failed to sign an application for membership in the URW
by the time he was discharged.
In this state of the record the following testimony of
Rose Wisner , one of the checkers, acquires considerable
significance . Wisner was a comparatively disinterested
witness, although she had been an observer for the Retail
Clerks in the September election . She impressed me as
testifying carefully and accurately , and in several other
respects her testimony was fully corroborated. In the
particular matter referred to below , her testimony was not
corroborated by Joe and Dan Gray ( the store manager
and his assistant), but I regard her as a truthful witness,
who would not and did not fabricate the following
account:
Q. Do you recall being present at a conversation
between Joe Gray and Danny Gray regarding John
Simpson?
A. Yes, sir.
Q. When did this conversation take place, if you
recall?
A. I believe it was November 7th.
Q. Where did it take place?
A. In the break room.
Q. About what time of day was it?
A. I am not sure . I believe it was in the afternoon.
Q. Was anyone there other than the three of you I
have mentioned?
A. I don' t remember.
Q. Will you tell the Trial Examiner what was said in
this conversation and who said it?
A. Joe was talking to Danny, and he said, Joe said,
"It is just like that thing that happened with Simpson.
The other night Simpson was going out the door and
Dale came up to me and said , `See that guy going out
the door there?' " And Joe said, " I said yes." And he
said that Mr. Thorpe asked him , "Have you got any
gripes about him?" And Joe said "I said `No, he does
his work all right . The only thing is, I have asked him
to work Thursday nights and he doesn ' t like to work
Thursday nights.' "
Joe said Mr. Thorpe said "That's good enough . Get rid
of him ." Joe said he said "What?" Joe said Thorpe said,
"Get rid of him."
So that after John had been fired, John came back in
the store and talked to Mr. Thorpe.
905
Q. Is this part of the same conversation that you are
telling us about?
A. Yes.
Q. Who said this?
A. Joe was telling this.
Q. Go ahead.
A. And he said, Joe said, "I went to Thorpe and told
him `We need another boy; we are short because of
Simpson being fired . We need another boy . Do you want
me to call Simpson back or do you want me to hire a new
boy?' " He said Mr. Thorpe said, "Hire a new boy."
Q. Do you know if thereafter a new boy was hired?
A. Yes, sir.
Q. When?
A. I believe it was the same evening.
In the light of the entire record I find that Simpson's
support of the Retail Clerks was a substantial cause of his
discharge, and that Super Valu accordingly violated
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. By threatening reprisals if the employees chose a
union to represent them and by telling employees that
management knew how they had voted or would vote in
the election , K's engaged in unfair labor and practices
affecting commerce within the meaning of Section 8(a)(1)
and 2(6) and (7) of the Act.
2. By inquiring among employees as to the identity of
the employees distributing cards on behalf of the Retail
Clerks, Super Valu engaged in an unfair labor practice
affecting commerce within the meaning of Sections 8(a)(1)
and (7) of the Act.
3. By discharging John Simpson for his support of the
Retail Clerks, Super Valu engaged in an unfair labor
practice affecting commerce within the meaning of
Sections 8(a)(3) and (1) and' 2(6) and (7) of the Act.
4. Super Valu did not commit an unfair labor practice
in recognizing the URW as the representative of the
employees in the newly acquired store and in applying the
existing contract with URW to the employees in that
store.
THE REMEDY
I shall recommend an order directing each Respondent
to cease and desist from its unfair labor practices. I shall
further recommend that Super Valu make Simpson whole
for the period between his discharge and his refusal of
reinstatement , under the formulas set forth in Crossett
Lumber Co., 8 NLRB 440, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Inasmuch as K's no longer owns the store in question
and no longer employs the superior guilty of the unfair
labor practices , I see no purpose to be served in requiring
any notice to be posted at the other locations operated by
K's. I shall , of course, recommend that a notice be posted
by Super Valu, but this may be limited to the violations
occurring after it took over the store. The prior violations
had to do with K's antiunion conduct and are not relevant
to the existing situation in which the employees have a
bargaining representative.'
Had I not dismissed the allegation of unlawful assistance to URW, i.e.,
but for my holding that the new store is an accretion to the Super Valu
bargaining unit, I would have ordered not only that Super Valu cease
recognizing the URW at this location, but also that it refund the dues and
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, upon the foregoing findings and
conclusions and upon the entire record , I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following:
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Officer-in-Charge for Subregion 38, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
ORDER
A. Respondent K's Super Valu of Peoria, Inc., its
officers, agents, successors , and assigns , shall cease and
desist from:
1. Threatening employees with reprisal if they select a
union as their bargaining representative.
2. Giving employees the impression that their union
activities are under surveillance.
3. In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
B. Respondent Super Valu Stores, Inc., its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees as to their union activity or
that of fellow employees.
(b) Discharging or otherwise discriminating against any
employee because of his activity on behalf of any labor
organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make John Simpson whole in the manner set forth
in the portion of the Trial Examiner's Decision entitled
"The Remedy" for losses suffered as the result of his
discharge in October 1968.
(b) Post at its store at Lake and Knoxville Streets,
Peoria, Illinois, copies of the attached notice marked
"Appendix."` Copies of said notice, on forms provided by
the Officer-in-charge for Subregion 38, after being duly
signed by its representative, shall be posted by
Respondent, immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
initiation fees the employees paid pursuant to the union -security
agreement I call this to the Board ' s attention in the event it disagrees with
the accretion holding
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Officer- in-charge for
Subregion 38, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that.
WE WILL pay John Simpson for wages he lost
between his discharge in October 1968, and his refusal
of our offer to reinstate him in December of that year.
WE WILL NOT take or threaten to take any action
against any employee for engaging in activity on behalf
of any labor organization.
WE WILL NOT question our employees concerning
their activity, or that of fellow employees in support of
any labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights under Section 7 of the Act.
SUPER VALU STORES, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Subregional Office, 4th Floor,
Citizens Building , 225 Main Street, Peoria, Illinois 61602,
Telephone 309-673-9061, Extension 282.