Superex Drugs, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1965

150 N.L.R.B. 972 (N.L.R.B. 1965)

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) While there is evidence that on occasion others were in the area of the
machinery room, or nearby, it would seem that Coble was there quite regularly.
And, as noted, except between 5 and 6 a.m., once or twice a week, Coble was alone
in the store between 3 and 6 a m. In this respect, it is noted that, according to
President Mabee, cigarettes have not been found in the machinery room subsequent
to the termination of Coble.7
(7) While the language used in discharging Coble was equivocal if not evasive,
Cooper uncontrovertedly testified that he used the same language in discharging
Coble's predecessor when his work proved to be. unsatisfactory.
To sum up, the evidence is less than compelling that Coble was correctly sus-
pected by Respondent as being involved in the disappearance of the cigarettes. On
the other hand, the evidence does not preponderate in favor of a finding that
Respondent was unwarranted in suspecting Coble and that its choice of Coble for
discharge was pretextuous in nature.
Nor do I deem it unreasonable that an employer who had fastened upon a suspect,
correct or otherwise, would in an area where tort liability is being extended be
reluctant to depose a ground of this nature to an investigator. Indeed, Respond-
ent's officials did state that another undisclosed ground existed. Finding as I do
that the evidence does not preponderate in favor of the position of the General
Counsel, I shall recommend that this allegation be dismissed.
E. Alleged interference, restraint, and coercion
The complaint alleges that on or about April 2 Store Manager Cooper interro-
gated employees concerning union activities. As set forth, union representatives
visited the store on that occasion and Coble signed a union card. Coble testified
that after the meeting Cooper asked him if he had signed a card and, upon receiving
an affirmative answer, told him to contact the Union and retrieve the card. Cooper,
on the other hand, testified that Coble approached him after the union representa-
tives left and expressed concern over the fact that he had signed a card, Cooper
responding that Coble did not have to sign if he chose not to. Coble also testified
that on or about April 8 Cooper asked him if he had contacted the Union about
changing his mind concerning union representation. According to Cooper, there
was no such second talk.
On the posture most favorable to the General Counsel, I am of the belief that
this evidence, even if credited, is de minimis and does not warrant the finding of an
unfair labor practice. I shall accordingly recommend that this allegation be dis-
missed.
CONCLUSIONS OF LAW
1. The operations of Respondent, Big Bear Super Market No. 3, Inc., affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Building Service Employees' International Union, Local 102, Building Service
Employees' International Union, AFL-CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. Respondent, has not engaged in unfair labor practices within the meaning of
Section 8(a) (3) and 8(a) (1) of the Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclusions of law, it is recommended
that the complaint be dismissed in its entirety.
7I am not unaware that this is equally consistent with someone other than Coble, on
learning of Coble's discharge, deciding to purchase his cigarettes In the future.
Superex Drugs, Inc. and Retail Clerks International Association,
Local No. 31 , AFL-CIO. Case No. 8-CA-3347. January 13,1965
DECISION AND ORDER
On July 29, 1964, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that the Respond-
150 NLRB No. 97.
SUPEREX DRUGS, INC. 973
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the Respondent filed a
brief in support of the Trial Examiner's Decision.
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-
meniber panel [Chairman McCulloch and Members Fanning 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
Trial Examiner's Decision and the entire record in this case, includ-
ing the exceptions and briefs, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except as
noted below.'
[The Board dismissed the complaint.]
'In adopting the Trial Examiner ' s conclusion that the Respondent did not refuse to
bargain with the Union , the Board does not rely on his finding that the Union had not,
when it requested bargaining , been validly designated by a majority of the employees in
the unit as their representative . Peterson Brothers , Inc., 144 NLRB 679. -
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner George L. Powell at Mansfield, Ohio, on
February 18 and 19, 1964,1 pursuant to a charge filed November 18, 1963, and a com-
plaint issued January 8 , 1964, presents three issues: Whether the discharge of Esther
Horvath violated the National Labor Relations Act, as amended , whether Respondent
interrogated and threatened its employees in violation of the Act; and whether
Respondent violated the Act in refusing to bargain with the Charging Party upon its
request.
Upon the entire record 2 in the case , including my observation of the witnesses,3
and having given consideration to the briefs and the claims earnestly advanced by
counsel , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent , Superex Drugs, Inc., an Ohio corporation , with its offices at
Cincinnati , Ohio, operates retail drugstores in various cities throughout the State of
1 All dates herein refer to 1963 unless otherwise noted.
3 Hearing transcript corrected in accordance with Respondent ' s motion , and agreement
thereto by General Counsel, which is hereby granted to the extent indicated in Appendix.
3 The declaration that my findings are based on my observation of the witnesses is in-
tended to apply to the testimony of each and every witness , and my failure to comment
on the demeanor of a particular witness is not to be taken to mean that in evaluating
his testimony I have not taken his demeanor into consideration Moreover , when I give
logical reasons for rejecting the testimony of a particular witness , either in its entirety or
on a particular point, it should not be assumed that I rely exclusively on such reasons,
and that the demeanor of the witness has not been considered in evaluating his testimony.
When I have indicated that I regard a particular witness as generally untrustworthy, it
is to be construed to mean that I reject his testimony as a whole, unless I explicitly
indicate that I accept his testimony on a particular point.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
Ohio, including its store at 161 Park Avenue East, Mansfield, Ohio, which store is the
only place of business involved in this dispute. Respondent, in the course and conduct
of its business operations, has gross receipts from retail sales of its various stores
totaling in excess of $500,000, and received goods valued in excess of $50,000 from
points outside the State of Ohio into its places of business within the State of Ohio.
I find Respondent is now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges that the Charging Party, Retail Clerks International Associa-
tion, Local No. 31, AFL-CIO, is, and the Respondent admits that it is, a labor organi-
zation within the meaning of Section 2(5) of the Act, and I so find.
M. THE UNFAIR LABOR PRACTICES
Respondent is a recently established, wholly owned subsidiary of The Kroger Com-
pany, operating a chain of drugstores. During its 21/2-year existence, it has experi-
enced a steady growth, and there are now more than 130 drugstores in the chain.
The drugstore at Mansfield, Ohio, was opened in September 1962. It is one of 12
stores in Respondent's Eastern Ohio and West Virginia District, under the supervision
of District Manager Ralph Leonard.
Background: The First Anniversary of the Store's Opening
Leonard addressed the Mansfield employees in September 1963 in what appeared
to be a customary anniversary meeting. He discussed Respondent's business and its
objectives; the progress of the Mansfield store and its problems. He also discussed
the philosophy of the Company's paying competitive wages and fringe benefits, and
he fully described some of the employee benefits offered by Respondent.
Unions were mentioned only once during the meeting. In answer to an employee's
question of whether any of the stores were unionized, Leonard replied that a Mil-
waukee, Wisconsin, store was under union contract. In answer to another question of
what were the terms of the Milwaukee contract, he replied that the contract had
resulted in only minor changes for the employees.
The Paperwork
The operation of the Mansfield store was unsatisfactory in its first year. District
Manager Leonard and others believed that the Mansfield store had not lived up to its
potential. A large part of the problem was the result of overstocking and neglect of
the paperwork in the store.
The paperwork problem had been building up for 3 months. Reports from the store
to District Manager Ralph Leonard were repeatedly late, and unpaid and unproc-
essed invoices were piled up throughout the store.
The daily cash report (or "morning report") is a summary of the sales and the
cash receipts for each day including tallies of the individual cash registers to determine
the errors and payouts made during the previous day. The weekly sales report is a
summary of the daily reports. It is a running tally of the week's activities, requiring
daily supplementation. The comparative volume report is a comparison of current
sales figures for a period with the sales figures for the corresponding period in the
previous month. As in the case of the weekly sales report, the rules of the company
required a daily supplement. Invoices of suppliers are processed or "passed" by
checking the invoice against the delivery and against the appropriate purchase order
and then listing the invoices on a transmittal sheet which is forwarded to the main
office in Cincinnati for payment.
Delinquent and inaccurate reporting hampers the Respondent in its control of the
operations of the Mansfield store and, because of delayed district reports, other stores
as well. The paperwork of a store must be done each day. Leonard requires the
reports to keep acquainted with the day-to-day operations of the stores he supervises,
and he must prepare his own district reports from the daily, weekly, and comparative
volume reports of all of the stores he supervises. Information shown on the reports
is so important to management that Leonard regularly calls the stores in his district
during the week to check the record of sales for the previous day or days from the
daily sales reports.
Managerial Change
The manager of the Mansfield store, John Lettrich, was released from his job on
October 22, 1963, and was immediately replaced by George Pusser, Jr. Pusser had
SUPEREX DRUGS, INC. 975
formerly served as manager of Respondent's drugstore at Athens, Ohio, from July
1963, through October 21, 1963, and prior to that had been employed as assistant
manager of Respondent's drugstore in Ashland, Ohio.
Plagued by late and inaccurate weekly reports, Leonard had constantly harassed
Lettrich, while yet manager, for better and more prompt information. But the
situation had not been corrected by Lettrich.
Paperwork Responsibility
Esther Horvath began her employment with Respondent in August 1962 and for
6 months before her discharge on November 6, 1963, she had had the primary respon-
sibility to make the daily and weekly cash reports, prepare the comparative volume
report, and to process incoming and outgoing invoices, under the supervision of the
manager.
Leonard considered that Horvath was at fault for the tardy and improper bookkeep-
ing. He advised Pusser, on the day that Pusser took over from Lettrich as manager of
the Mansfield store, that Horvath would have to improve the paperwork or be relieved
of her job.
Leonard's statement confirmed a judgment of Horvath that Pusser had previously
formed. While Pusser was assistant manager of the Company's Ashland, Ohio, store,
he sometimes discussed the Mansfield store with Kennedy, who was then its assistant
manager. Kennedy was a classmate and a good friend of Pusser. In these discus-
sions, Kennedy often complained to Pusser that the Mansfield store was poorly
managed and that one of its principal problems was Horvath's poor handling of the
paperwork involved.
When he became manager, Pusser at first attempted to assist Horvath and correct
her in an attempt to eliminate the bad report situation. He discussed the problem with
her several times and offered to provide her with assistance if she needed help. He
assigned another employee, Jean Underwood, to do the daily reports one day (approxi-
mately November 1, 1963), and he did some of the bookkeeping at home at night.
But the daily and weekly reports continued to be late, and Leonard kept after Pusser
for the information he should have received from the reports, to Pusser's
embarrassment.
Horvath required 4 hours or more to prepare a daily cash report while other
employees who had prepared the same type of report for Pusser-at Ashland, at
Athens, and later in Mansfield-had needed only 2 hours. She continued to allow
invoices to accumulate and to become delinquent. Moreover, she objected to the
assignment of Underwood to assist with the reports. She admitted that her reports
were not up to date and that Pusser had talked to her about improving her paperwork.
At the conclusion of his first 2 weeks as manager of the Mansfield store, Pusser
concluded that Horvath either was unable or unwilling to perform satisfactorily as the
bookkeeper. Pusser talked to District Manager Leonard during Leonard's visit to
the store on Wednesday, November 6, of the possibility of replacing Horvath. Leonard
authorized Pusser to discharge her if he wished to do so.
The Discharge of Horvath
On Wednesday morning, November 6, Pusser had assigned Underwood to do the
daily reports for the preceding 3 days. She was working on the last of these re-
ports at 5:30 that afternoon, when Horvath reported for work .4 Underwood was
working at a counter adjoining the prescription counter. Pusser was behind the
prescription counter, only several feet from Underwood, filling prescriptions for
several waiting customers. Connell, another employee, was working at the far end
of the prescription counter, some 10 to 16 feet away from Underwood.
Horvath observed Underwood working on the report and asked Pusser, "Who is
going to do the report?" Pusser replied, "You are going to continue to do the report,
but I have Mrs. Underwood helping us catch up."
Horvath then flatly stated that she refused to do the reports if Underwood was going
to do them also. Pusser specifically asked her, "Do you refuse to do the morning
report?" When she answered, "Yes," he said, "Well, Mrs. Horvath, you punch your
card out, we can't use you any more." Horvath refused to punch out her card, stating
that he could not fire her. Pusser left the prescription counter to punch out her card
himself.
The above is the credited version of Pusser. Horvath's version in the footnote
following differs somewhat but it does show her resentment that anyone else would
Horvath's hours were 6 until 10 p m.
775-692-65-vol. 150-63
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be assigned to her work. I do not credit the version of Horvath or General Counsel's
witness Connell when they conflict with the testimony of Pusser. Employee Under-
wood who was in the immediate proximity to Pusser and Horvath corroborated Pusser.
Further, according to the credited testimony of Pusser, Horvath followed him into
the backroom where she accused him of firing her "because of Mr. Kennedy." She
likewise asked him, according to her testimony, if the reason she was fired was "this
union business." Pusser denied any mention of "union business" between him and
Horvath and is credited. It is an obvious afterthought on her part or she would have
mentioned it in the presence of Underwood when she was fired. As to the Kennedy
charge, Pusser told her the discharge was not because of that and she appeared to
believe it.5
I find under all the circumstances that Horvath was discharged for insubordination.
As Pusser put it, her refusal to do the bookwork on November 6 was "the last straw."
It was "all [he] could take." Accordingly I will recommend that this allegation in the
complaint be dismissed.6 Therefore it is unnecessary to decide whether or not the
General Counsel sustained his burden of proving that there was company knowledge of
Horvath's union activities before her discharge. It is noted in passing that Connell
instigated the Union and is still an employee of Respondent.
The Organizing Activities and Refusal-To-Bargain Allegation
Claude Steele, business representative of the Retail Clerks, organized the Respond-
ent's store in Mansfield. He testified that when he first contacted an employee (Betty
B Horvath's version of the discharge is that she came to work on November 6 at
5:30 p in. "because I had been off the day before, and there was two reports which I
normally did, waiting to get out, the two daily reports." She noticed Underwood work-
ing on the books so she asked Pusser what he wanted her to do. He told her "invoices."
She said :
"Fine. Where are they " He and I started upstairs . . . . Mrs Underwood was
standing there working on the books and we got side tracked because he was showing
me the different ways that the bookkeeping system was changing, and he was pointing
out the different filing ways I stood there and observed very closely what he
was saying.
When he finished, I said, "Is Mrs. Underwood going to do the books or am 11"
He said, "Why?"
I said, "I would like to know."
He said, "In that case, go punch the timeclock."
I said, "I won't until I talk to Mr. Leonard."
He said, "I will punch it for you, then."
He said, "We won't have that in the store "
I said, "What?"
He said, "Resentment "
Pusser went to the backroom and punched out her timecard. She followed him back
and said,
Well . . . this is not just reason to be fired You could have told me Mrs. Under-
wood was going to do the books. You go out and put up stocks, or work at the
- register. I would be ready to do it.
Connell, testifying for the General Counsel, related that on November 6, at the time when
Horvath came to work, she was entering prescriptions into the Kardex system at the other
end of the prescription counter from Horvath, Underwood, and Pusser, some 10 feet away.
Pusser was explaining something about the books to both Mrs. Horvath and Mrs.
Underwood. Mrs. Horvath stood there and nodded as if she understood.
He asked her if she understood, and she said, "Yes, but there is one question
I want to ask you."
[He] said, "What is that?"
She said, "Is Mrs. Underwood going to do the books or am I."
Mr. Pusser said, "Does it make any difference to you 9"
She said, "Yes, it does."
He said, "In that case, go clock out," and they both left the room to the back.
Connell testified she heard everything said at the prescription counter. But she did not
corroborate Horvath's testimony that Horvath told Pusser she would not punch out until
she talked to Leonard nor to Pusser's reply that he would "punch it for you, then."
e Although it has had no bearing on my Decision, it is noted that the Ohio Bureau of
Unemployment Compensation has examined the testimony of Pusser and Horvath and has
concluded that Horvath was discharged for just cause.
SUPEREX DRUGS, INC. 977
Connell) of the store he was told the employees were pretty well satisfied. Then later
on October 24, employee Betty Connell, the same employee, called him to her home
and signed a union authorization card and gave him the names of other employees.
The following morning he called employee Esther Horvath and talked to her. She
signed a card and, in addition, gave him house numbers of some of the employees; he
knew the streets. By November 9 he had cards signed from the following nine
employees: Esther Horvath; Betty Connell; Betty Chapman; Cheryl Ferguson; Wayne
McDowell; Thomas Davis, Jr.; Lenore Perry; Jean Wolfe; and Sherlie Wagner.
Respondent stipulated that there were 13 employees as of November 11. The General
Counsel urged the finding of 14 employees on the ground that Esther Horvath was
discriminatorily discharged on November 6. ,
After her discharge, Horvath telephoned Leonard (according to his credited testi-
mony) at his home in the evening of November 6 and asked for her job back. She
said she was willing to run a cash register and do other work but did not want to do
the paperwork if others were doing part of it. She told him she was "going to take
this to the Union." This reference to the Union was, according to Respondent, when
they first learned of any union activity at the Mansfield store.
Steele also telephoned District Manager Ralph Leonard several days later and
demanded that Respondent put Horvath back to work, but Leonard referred Steele to
William Tatter, the personnel manager having an office in Cincinnati, Ohio. Steele on
November 11, called Tatter demanding that Horvath be put back to work, demanded
recognition, and requested a card check of employees. Tatter, who credibly testified
that he had worked with the Respondent through union drives at 10 identified stores,
said that following his usual practice he referred Steele to the National Labor Rela-
tions Board through the normal procedures. He testified that his usual practice in
situations of this sort was that the Union would ask for an election and this is what
he meant by referring him to the National Labor Relations Board. Steele testified that
Tatter told him there were laws in situations of this sort. I find from this testimony
that Tatter told Steele, in effect, to go to the National Labor Relations Board for
purposes of recognition.? According to Steele's testimony he asked Tatter if he
would be agreeable to a card check and when Tatter said "there were laws" he under-
stood it to mean Tatter would not agree to a card check. The same day, Novem-
ber 11, Steele sent a telegram to Tatter in which he requested recognition as a
bargaining agent of the employees in the Mansfield store, requested that they enter into
negotiations for a collective-bargaining contract, and offered to enter into a cross-check
of signed representation cards by a third party to prove its majority status. This tele-
gram was signed by the president of the Local, James R. Barney. Tatter made no
reply to the telegram believing, as he testified, that his earlier telephone conversation
took care of the matter. The Company was advised of the next step when it was served
the next week with notice of the filing of a charge in the instant case alleging a refusal
to bargain in good faith.8
The position of the General Counsel is that the unit of employees included 14
people, and that the Retail Clerks had 9 authorization cards. However, on testimony
by the individual employees who had signed the cards it was determined that some
employees who signed the cards thought it was to be used to secure an election. The
first of these in point of time and testimony was employee Cheryl Ferguson, student
and part-time employee, who on cross-examination stated that she thought the card
was to be used to permit the Union to go to an election .9
Horvath, herself, admitted that when she signed the card she was given permission
to have the Union get enough cards so that they could have an election and then if
the Union won the election it could represent them 1°
7 There was some conflicting testimony as to whether it was on November 11 when
Steele called Leonard but it is unnecessary to reconcile this discrepancy if any.
8 Charge filed November 18.
9 Cheryl Ferguson stated •
I asked him how we got a union in the store and he says, "Well, if we get enough
cards signed, we can have an election," and then if the election passes, then we start
to negotiate because I had never been confronted with the union before.
30 Esther Horvath's testimony:
Q. At the time you signed the card, was it your understanding that there would
be an election of some sort to see if the union had a right to talk to you?
A. I understand they were trying to get enough cards to authorize an election.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tommy Davis , high school student and part-time employee, on cross-examination,
testified that Steele had explained to him when he signed his card that there would be
an election.11
Wayne McDowell , on cross-examination , testified that Steele did not tell him which
way they were going (either on cards or on election ) when he signed his card, but he
was under the impression they would go for an election.12
Steele admitted that he did tell the employees when he contacted them that there
were two ways to handle the cards that he wanted them to sign . One would be through
a card check and the other would be through an employee election.
In view of the admissions of these witnesses for the General Counsel that the cards
were to permit the Union to go to an election , I find that the Union did not have a
majority of the employees in the unit requesting the Union to bargain for them without
first going to an election . Accordingly , as the Union did not have a majority on
November 11 when it requested bargaining in the telegram there can be no refusal to
bargain in good faith on the part of Respondent.
There is insufficient evidence in the credited testimony to find that Respondent did
not in good faith question the majority status of the Union. By asking for an election
(which it in effect did ) it was not only following its past practice but it did nothing
upon which a finding can be based that it questioned the majority status in order to
delay and to cause a defection in the Union . 13 I find there is insufficient evidence to
establish a refusal to bargain in good faith and will recommend this allegation in the
complaint be dismissed . See Fleming & Sons of Colorado, Inc., A Division of
Fleming & Sons, Inc., 147 NLRB 1271 . Compare : Florence Printing Co. v.
N.L.R.B ., 333 F. 2d 289 (C.A. 4).
The 8(a)(1) Allegations
In addition to the allegations alleging the discriminatory discharge of employee
Horvath and the refusal to bargain in good faith on November 11, the complaint
alleges that Respondent Superex, through its agents George S. Pusser, general manager,
and Michael A. Daugherty, assistant manager, from November 2 had interfered with
and restrained and coerced employees in their Section 7 rights by interrogating its
employees concerning their activities on behalf of, sympathies for, and membership
in, the Union, and threatening its employees with loss of wage increases and other
economic reprisals if they assisted or supported the Union or otherwise engaged in
union activities.
Betty Connell, testifying for the General Counsel, stated that a week after Horvath
had been discharged she, Horvath, came in to have lunch with her, and, as Horvath
left, Daugherty asked Connell "how is the little organizer today." Connell thought
that this Deferred to Horvath and thought that the word "organizer" meant that
Daugherty was referring to Horvath's union activities. As Respondent had learned
from Horvath on the evening of her discharge that she was taking her case to the
u Tommy Davis' testimony:
Q. Mr. Davis, were you one of those that asked Mr. Steele if there would be
an election?
A. I did.
Q. Did you understand that there would be an election of some kind to see whether
the union would have the right to represent you?
A. Yes.
Q. You did understand that?
A. Yes.
Q. Did Mr. Steele explain that to you, did he?
A. Yes, he did.
'2 Wayne McDowell's testimony:
Q. Did you understand which one was going to be followed?
A. The way I took it, of course, he never-he just told us two ways. They were
possible ways. I don't think he came out and said which way it was going to go. I
imagine it was up to the way the company reacted the route he would take, I don't
know, but I was under the impression that there may be an election.
'B The General Counsel argued in its brief that the violations of Section 8(a) (1), which
will next be dealt with, plus Horvath's discriminatory discharge, are incompatible with
a good-faith refusal to recognize.
SUPEREX DRUGS, INC. 979
Union, and as Steele had told Leonard that he was going to seek Horvath' s reinstate-
ment because he thought that she had been discharged for her union activities, I can
see nothing coercive in this remark even assuming that Daugherty did refer to Horvath
as a union organizer.
Horvath gave testimony which was relied upon by the General Counsel to establish
union animus by Pusser and an inclination on his part to interfere with and coerce
employees.
She said that after she had signed the card on October 25 and before her discharge
on November 6 she overheard a conversation between Pusser and an employee of the
Ashland store . Her testimony, in relevant part, follows:
Q. [General Counsel on direct examination] ... was there an occasion, do you
recall, in which you heard Mr. Pusser speaking to another person in the store
in reference to a union?
A. ... I was working behind the prescription counter; who I did not know.
I assume it was one of his friends. She approached him and they acted like old
friends, so I did not pay much attention.
Q. How far away were they from you?
A. Oh, I should say fifteen or twenty feet, behind the prescription counter.
* * * * * * *
A.... And she was talking to him and she said, "Well, I did not think you
would stick a knife in my back like you did."
* * * * * * *
So then [sic] continued talking and he-I heard something mentioned about
a union . After I signed my union card, then, naturally, my ears perked up and
I pointed them that way. He was talking to her and he said, "Well," he said,
"I know the four girls that signed the cards in the Ashland store," so right away,
I assumed this was the gal from Ashland.
He said, "Well, I know who they are and I knew [sic] who signed them. If
they was burning in hell, I would not pick them out."
Q. Was that the end of the conversation?
A. No, sir.
He says, "I know who is trying to organize it in this store," so right away his
eyes met mine and he turned and walked away so I could not hear another word
that was said.
Q. Well, do you recall any other remarks that he made in that conversation?
A. No, sir, I do not.
[Whereupon General Counsel showed her the first statement she had given
the Board and called her attention to something at the bottom of page two to
read "... and tell me whether that refreshes your recollection at all."]
* * * * * * *
Q. Do you recall anything further, now, of that conversation?
A. Well, yes, he looked right straight at me and he said, "I know who is start-
ing the union in this store, and I just won't have it," and that is when he turned
and walked away.
There had been an election at the Ashland store a month earlier (September) at
which time the Union won by a vote of 4 to 3. Pusser's testimony relating to this con-
versation is that an employee, Whitmore, of the Ashland store where he had worked
prior to moving to the Athens store had come in and was visiting with him. He told
her that he did not want any employees of the Ashland store (Asland is a town
situated close to Mansfield) coming to the Mansfield store and bothering him. And
that he would not have that.14 He denied that any reference was made in the conver-
sation to a union and testified that Horvath could not possibly have overheard them
as their conversation was some 25 to 30 feet away from the counter where Horvath
worked. He also noted that Horvath was closer to a radio located in the store which
radio ran continually.
14 HIS testimony is:
I told her [Dirs. Whitmore] that I didn't want any of the employees from
the Ashland store to come over to my store, because . . . I wanted to run this store,
and I didn ' t want any body coming over here bothering me while I tried to straighten
this store out.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted earlier, I credit Pusser over Horvath on their demeanor. Further, because
it was relied upon so heavily by General Counsel, some comments about Horvath's
above testimony appears in order. As to consistency, I will deal with three phases,
"the gal from Ashland" and Pusser "acted like old friends" and so she "did not pay
much attention." But it is noted she paid enough attention, according to her, to
overhear one of these "old friends" accuse the other of sticking a knife in her back-
hardly friendly. When she said, "I assumed this was the gal from Ashland" she must
have had reference to something about someone from Ashland but no one explained
it. It is possible that it ties in with what something Connell may have told her, but
it is unnecessary to conjecture about this. As to strangeness, the alleged Pusser-
Whitmore conversation was dramatic and striking as she told it but interestingly she
was unable to tell the whole story completely at any one time. For example, her
affidavit of November 25, in evidence, stops with Pusser saying, "if they was burning
in hell, I would not pick them out." She likewise stopped there when on the witness
stand, and the General Counsel had to ask her, "Was that the end of the conversa-
tion," to get her to continue only to the point where Pusser said, "I know who is try-
ing to organize it in this store." Again she was prompted by the General Counsel to
continue, but could say no more until after he had shown her another of her state-
ments. She then finished this dramatic story by testifying that Pusser "looked right
straight at me and said , 'I know who is starting the union in this store , and I just
won't have it,' and that is when he [Pusser) turned and walked away." This is such
important and striking evidence that I cannot believe it would have been forgotten
if, in fact, it occurred. I do not credit Horvath's story.
Additionally, it is strange that with Pusser denying the tale yet identifying the
person or a person to whom he may have talked, the General Counsel never pro-
duced this person nor referred to why she was not produced as a witness. I can only
infer that if produced the witness would not corroborate Horvath.15
Reference was made above to something Horvath may have heard from Connell.
Connell testified to a conversation she had with Pusser after October 24 as follows:
Mr. Pusser stated to me that there was-the Ashland Store had gone union,
he knew the four girls who had gone union, and he didn't have any use for them;
that he didn't think they knew what they were doing, all the union did was take
their money and did nothing for them, but that is why he said he was there, if
we had any grievances , to come to him and he would straighten them out, not
to have a union.
She said Pusser told her the above one afternoon and when asked how the con-
versation got to that point, said, "Well, Pusser just came up with it."
As to the grievance point, she was asked on cross-examination if she had a griev-
ance but she testified she could not remember "back that far." And she did not
remember if this conversation took place before or after Horvath's discharge. But
after reading the affidavit she earlier had given the Board agent investigating the
case, she fixed the date as before Horvath was fired.
She impressed me as an extremely biased person. Whether or not there were
grounds for her attitude is beside the point , as her attitude as a witness goes to the
weight to be accorded her testimony. One more illustration of her testimony has
to do with cross-examination by Respondent's counsel. He sought to check her testi-
mony given on direct examination , on what Leonard said in a meeting he called in
the store around its first anniversary. The testimony follows:
Q. By the way, at this meeting, Mr. Leonard called in the store, in the back,
in August or September, did he make any reference at that time to the fact that
this was the store 's first anniversary?
A. No.
Q. He didn't?
A. No.
16 Horvath's personality and bias while on the stand is at least partially disclosed by
her reply to a question by Respondent 's counsel as to when the alleged conversation took
place . Her devastating reply was , "I cannot tell you, sir, because I did not look at the
calendar to see what date it was."
SUPEREX DRUGS, INC. 98 1
Q. It was, about a year after the store opened, was it?
A. Yes, I imagine. I don't know when the store opened. I didn't start in
there then.
Q. Didn't he review the year's operation of the store?
A. Pardon?
Q. Didn't he go over the operation of the first year at the store?
A. What you mean operations?
Q. You either had been doing well or had not been doing well?
A. I never had a kind word out of that store since I worked there.
Q. Pardon?
A. Nobody told me I was doing well or not doing well there since I worked
there, in one year.
Based upon her demeanor while as a witness plus the above evidence of bias, I do
not credit Connell.16
The General Counsel presented Betty Chapman who testified that the day follow-
ing the union meeting on November 15 Pusser stopped her and asked how the meet-
ing was, how many attended, asked if she had voted yet, and hoped that the employ-
ees would not be sorry. She further testified that Pusser had told her that the
employees at Ashland had voted the Union in and were sorry. One of the girls
allegedly was not going to get a raise because of this. She, Chapman, believed that
the girl was not getting the raise because of the Union.
Pusser's testimony with respect to this conversation is that Chapman came up and
asked for his opinion as to the Union at which time he told her, "It is up to the
people" that he did not care. Then she told him there was a union meeting. I credit
Pusser and find that Chapman started the conversation. After Pusser had told her
it was "up to the people," any general discussion such as followed, if Chapman were
to be credited, would not amount to interference, restraint, or coercion within the
meaning of the Act.
Lenora Perry testified that she had attended the union meeting on Friday, Novem-
ber 15, and that on Saturday evening after work, as they were closing up the store,
Daugherty asked her if she had enjoyed herself last night. I find nothing coercive
in this nor can I view this as a piece in a mosaic created by Respondent to interfere
with its employees in violation of the Act.
There were some conversations with respect to raises. Perry and McDowell had
both asked Pusser if they were going to get their raises. Pusser, being new, did not
know that they were due for their periodic raises and told them that inasmuch as
there was a union involved in negotiations that raises would be frozen. However,
he checked this with District Manager Leonard, found there were no negotiations
going on, and came back and told the employees they would get their rasies. I find
no violation of the law under these circumstances.17
I find that General Counsel has not sustained his burden of proof as to the 8 (a) (1)
allegations and will recommend that these allegations in the complaint be dismissed.
Upon the above findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSION OF LAW
1. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Having concluded that the Respondent has not engaged in unfair labor practices,
I recommend that the complaint be dismissed in its entirety.
1e Connell , on direct examination , testified that Steele first contacted her in August or
September and asked ". . . If we had ever thought of having a union at Superex." She
replied, "I said we didn't need one, we were all happy with our work " This contrasts
with the bitterness evidenced above.
17 Pusser credibly testified that after Respondent had received the Union 's telegram
of November 11 requesting bargaining , he was instructed by the assistant personnel man-
ager that all management employees were not to discuss union business with any of the
employees , nor to make promises to them Under all the circumstances it appears that
Pusser and his assistant, Daugherty , fairly carried out this duty.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
CORRECTIONS TO HEARING TRANSCRIPT
Correction No.' Transcript
page
Lines Corrected from-
1----------------- 10 23 Harold----------------------
2----------------- 11 10 and Lenore
3----------------- 13 14 part
4----------------- 23 15 Leona
5----------------- 72 18 because the
6----------------- 74 5 I know
7---------------- 93 8 evidence
8----------------- 94 24-25 but the
9----------------- 113 10 talked
10---------------- 116 13 main
11---------------- 110 22 a grin
12--------------- 150 12 could be filed
13---------------- 152 4 at six
14---------•------ 163 19 she
15---------------- 184 17 have
16---------------- 185 1 Company, and Mr.
17---------------- 215 14 knew him
18---------------- 220 2 Mr.
19---------------- 220 19-20 election has been recom-
mended and designated
20---------------- 226 11 has
21---------------- 235 3 commerce
22---------------- 261 25 second
23 ---------------- 288 18 sister
24---------------- 290 7 usin
25---------------- 290 8 road, and we
27---------------- 295 18 issues
28---------------- 299 17 charging
29---------------- 303 9 Lynch
30---------------- 303 22 was testified to earlier
31---------------- 308 16 nowhere
32---------------- 308 17 in
33---------------- 310 3 as to a discharge
34---------------- 315 24 Holmstead
35---------------- 321 11 was authorized
36---------------- 329 9 thirty
37---------------- 329 10 forth
1 Corresponds to those on Respondent's motion to correct the record.
Corrected to-
Carol
and also another employee
Lenore
point
Lenora
because at the
you know
question
but goes to the
walked
Mansfield
to say hello
could be followed
on the sixth
he
had
Company, Mr.
knew then
Mrs.
Union has been elected and
certified
had
counter
twelfth
secretary
us. In
road, we
issuance
charged
Leonard
testified earlier
no more
than
will be to discourage a
Olmsted
was not authorized
three
four
C.T.L. Testing Laboratories , Inc. and Sand , Gravel, Crushed
Stone, Ashes and Material Yard Workers , Local No. 1175, of
International Hod Carriers , Building and Common Laborers
Union of America , AFL-CIO. Case No. f-RC-13387. Janu-
ary 13, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Julius Altman of the National Labor Relations Board. The
150 NLRB No. 90.