The Circle K Corp.

National Labor Relations Board - Board Decisions

Nov 12, 1968

173 N.L.R.B. 713 (N.L.R.B. 1968)

THE CIRCLE
The Circle K Corporation and Retail Clerks Union,
Local 1428 , Affiliated with Retail Clerks Inter-
national Union , AFL-CIO . Case 31-CA-872
November 12, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On June 12, 1968, Trial Examiner Irving Rogosin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain alleged unfair labor practices and recom-
mended that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief, and the Respondent filed cross-exceptions
and a brief in support thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated 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 the support-
ing briefs, and the entire record in the case and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, insofar as they are
consistent with this Decision and Order.
Contrary to the Trial Examiner, we do not agree
with his findings that Donald W. Taylor and Mary Lee
Taylor were not discriminatorily discharged on Octo-
ber 17, 1967, and that Cletus Lee Williams was not
discriminatorily transferred from the Respondent's
Ontario store to Respondent's Upland store on
October 18, 1967, in violation of Section 8(a)(1) and
(3) of the Act.
As detailed in the Trial Examiner's Decision,
Donald W. Taylor was hired in February 1967,
initially as a grocery clerk trainee when Respondent's
Ontario store was operated by Robert Fleming, an
independent operator, under a franchise agreement.
About a month later Taylor became a regular employ-
ee and was left in charge of the store on occasions
when Fleming was out of town. Around July 1 the
Respondent took over the direct operation of the
store from Fleming. Shortly before that date, Fleming
recommend to Respondent's Zone Supervisor Smith
that Taylor was qualified to succeed him as manager
of the store. Fleming informed Taylor of his recom-
mendation and, before the changeover, Taylor discus-
sed the matter with Smith, expressing interest in
taking over the store as an independent operator and
conducting the business as a family operation. Smith
K CORP. 713
informed Taylor that he would work as assistant
manager under Terence Keegan, the new manager, for
about a week, and then would assume the duties of
manager. Upon Taylor's suggestion Smith approved
the hiring of Taylor's wife, Mary Lee Taylor, and his
stepson, Cletus Lee Williams, who had begun working
for Fleming at the end of June as a part-time "bottle
boy".
When July 8 passed and Taylor was not made
manager, he made appointments to discuss the matter
with Smith. Taylor met with Smith the end of August
and early in September. During the meetings Taylor
spoke of the strained relations between the employ-
ees, including himself, and Keegan. Smith informed
Taylor that he could not be made manager of the
Ontario store until Keegan was willing to transfer to
another store. Later in September, Smith offered
Taylor the job of manager of Respondent's Colton
store, 26 miles from the Ontario store, with the
understanding that after 2 weeks at Colton he would
be transferred back to the Ontario store as manager.
Taylor testified that he turned the job offer down
because Smith's previous procrastination made him
apprehensive that the 2 weeks at Colton would be
extended indefinitely and that this would lead to
transportation problems for him and his wife who
would be still working at the Ontario store. We note
that at no time during the conversations between
Taylor and Smith was any criticism or dissatisfaction
expressed regarding Taylor's work, nor was Taylor at
any time discouraged from his ambitions to become
manager of the Ontario store.
Around October 6, 1967, Taylor met with Maurice
Z. Cofer, field representative of the Retail Clerks
Union, Local 1428, affiliated with Retail Clerks
International Union, AFL-CIO, hereinafter referred
to as the Union, for the purpose of discussing the
prospects of organizing the Ontario store Cofer gave
Taylor five union authorization cards. Between Octo-
ber 8 and 10 Taylor obtained four signed authoriza-
tion cards from the approximately seven employees in
the Ontario store, including himself, his wife, and his
stepson. On October 10, the Union sent a registered
letter to the Respondent's district officer at Riverside,
directed to the attention of Mr. John Campbell,
district manager, stating that a majority of the
Respondent's employees indicated a desire to be
represented by the Union, and requested an early
meeting to discuss the subject. The letter was received
and accepted by an office clerk on October 11. On
October 12 the letter was returned to the post office
with the handwritten statement, "Not accepted by
addressee", and the word "Refused" written diagonal-
ly across the envelope, and thereafter returned by the
post office to the Union. According to the undisputed
testimony of Jacob F. Struble, Respondent's vice
president and area manager, the Respondent pursuant
to advice of its legal counsel maintains a strict policy
173 NLRB No 107
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of refusing registered mail. No explanation was
offered as to why the office clerk had not complied
with the stated policy. There was no showing that the
letter was opened before being returned to the post
office for redelivery to the sender, or that Respon-
dent had knowledge of its contents. The envelope
which was in the possession of the Respondent for
approximately a full day prominently displayed the
name and address, together with a facsimile of the
Union's seal in the upper left-hand corner and in the
lower left-hand corner the printed legend, "BUY
UNION-FROM UNION CLERKS".
Around the same time that the Respondent had
received the registered letter from the Union, Posey, a
regular part-time clerk,' testified that he overheard a
fragment of a conversation between Wooding, the
zone supervisor who had replaced Smith, and store
manager Keegan. Posey heard the word "union"
mentioned and towards the end of the conversation
heard Wooding say, "things were going to start
happening". Posey further testified that Wooding had
his briefcase and some papers with him, which
Wooding placed upon the counter next to the cash
register On the papers lying on top, Posey noticed a
list of names on which he could recognize only the
names of Mr. and Mrs. Taylor.
Later after Wooding had left, Posey asked Keegan
why Wooding had visited the store, since it was not
usual for the zone supervisor to call at the store.
Posey testified that Keegan said that he could not tell
him then, but Taylor would probably find out later.
Several days later Posey and Keegan engaged in a
conversation during which Posey asked Keegan, in
light of "all this stuff about the union . . coming up,
his `viewpoint' about it". Keegan, Posey testified,
expressed no prejudice one way or the other, but
"gave both sides of the story." Soon thereafter
Keegan returned from a trip to the Respondent's
division office in Riverside, and upon encountering
Posey told him that John Campbell, division manager
of the area which included the Ontario store, had
talked to him about the Union.
Later in the afternoon on Tuesday, October 17,
area supervisor Tom Smith telephoned Taylor and
told him that he and his wife "would no longer be
needed, due to personnel changes at the store in
Ontario". Smith offered no further explanation, and
Taylor asked for none. Smith told him that if Taylor
needed a letter of recommendation, to "be sure and
write to him", not to the company, and he would
furnish him with a reference. Taylor and his wife were
thereupon terminated. The day after, Williams called
in to find out what time he was to report to work and
was told by Keegan he was to work thereafter at the
Respondent's Upland store, a mile and a half from the
Ontario store. When Williams asked Keegan the reason
for the transfer, he was told only that he was needed
there.
A few days after Taylor was terminated, about
October 20, Taylor had a conversation with Keegan in
a restaurant near the Ontario market. During the
conversation Keegan told Taylor that about a week
prior to his discharge, Keegan had recommended to
zone supervisor Smith that Taylor be made his
replacement as manager of the Ontario store. Keegan
was told that "this was out of the question," because
"[Taylor] was on [his] way out." He further stated
"that he didn't know the reason why [Taylor] was on
[his] way out then, but he knew now. It was because
of the union."
The above evidence was based upon the uncontra-
dicted testimony of the General Counsel's witnesses.
None of the supervisors alleged to have been involved
in discriminating against the Taylors and Williams,
namely Keegan, Smith, Wooding, and Campbell, was
called to testify. The Trial Examiner concluded that
on the basis of the evidence adduced the General
Counsel had not established a prima facie case and
that there was not substantial evidence from which to
draw the adverse inferences that Respondent was
aware of Taylor's union activity when it terminated
the services of Taylor and his wife, and transferred his
stepson Williams to another store, that Respondent
was opposed to the organization of its employees; and
that the personnel actions in question were for the
purpose of discouraging membership in the Union.
Accordingly, the Trial Examiner found that the
General Counsel had failed to sustain his burden of
proof, and Respondent was under no duty to go
forward with countervailing evidence.
We do not agree. Unlike the Trial Examiner, we
find that the evidence when considered in its totality,
presents a strong prima facie case to support the
allegations in the complaint of discriminatory dis-
charges of the Taylors and transfer of Williams.
It has been well-established that direct evidence is
not necessary to support a finding of knowledge of
union activity, but that such knowledge may be
inferred by the Board from the record as a whole.'
The undisputed facts clearly establish that the Re-
spondent had knowledge of the employees' organiza-
tional activities. Thus, the Respondent had in its
possession the Union's registered letter received Octo-
ber 11 on which the name and address of the Union
were prominently displayed for approximately a day.
Around the same time the zone supervisor made one
of his infrequent calls at the Ontano store and there
was testimony that the Union was discussed. Several
I Posey was one of the three employees in the unit who did not sign 2 See, e g , Texas Industries, Inc, 156 NLRB 423, 424.
a union authorization card. A fifth employee signed an authorization
card on October 13
THE CIRCLE K CORP.
days later a store clerk who was not an active union
adherent discussed the Union with manager Keegan,
and around the same time Keegan on his return from
a visit to Respondent's division office told the same
clerk that the division manager of the area which
included the Ontario store had talked to him about
the Union. In concluding that the Respondent had
knowledge of the Union's organizational activity, we
also rely upon the smallness of the Respondent's
store 3
Viewed against this background the circumstances
surrounding the Respondent's personnel actions take
on added significance. We note that neither the
Taylors nor Williams had even been disciplined or
criticized concerning their work. Indeed, Donald
Taylor had been considered managerial material from
the time the Respondent took over the Ontario store,
had been promised the managership of the Ontario
store, and in late September had been offered the job
of manager of one of the Respondent's other stores.
As recently as a week prior to his discharge, manager
Keegan had recommended Taylor for his job. The
discharge of the Taylors took place only a week after
Taylor had obtained authorization cards from the
majority of the employees in the Ontario store
including Mary Lee Taylor and Cletus Williams.
We find significant not only the timing of the
discharges and the transfer4 in relation to union
organizational activity, but also the preemptory man-
ner in which they were handled.' The Taylors were
discharged late in the afternoon at the beginning of
the week by a telephone call from the zone supervisor
without any explanation or specific reason. The
circumstances of Williams' transfer were similar.
There appears to have been no clearance or consulta-
tions with their immediate supervisor, Keegan, the
store manager.6 From all the circumstances we find
the reasonable conclusion to be drawn is that the
personnel changes which the Respondent set in
motion on October 17 and 18 were not for business
or economic reasons, but for the purpose of ridding
itself of the most active union adherents. In fact, our
conclusion is buttressed by Taylor's undisputed testi-
mony, referred to above, in which Keegan, the store
manager, admittedly an agent of the Respondent,
stated to Taylor after the discharge that although
Keegan did not know at the time why Taylor was let
go, Keegan knew "now" that it was because of the
Union.7
3 See Dubin Haskell Lining Corp., 154 NLRB 641, 650
4 Texas Industries, Inc, supra, 425
5 Better Val-U Stores of Mansfield, Inc., 161 NLRB 762, 780, and
cases cited , enfd in relevant part 401 F 2d 491 (C.A 2)
6 See Better Val-U Stores of Mansfield, Inc, supra, 781, and cases
cited
7 Contrary to the Trial Examiner we cannot agree in the circum-
71 5
As the facts in our opinion establish a prima facie
case of unlawful discrimination against the Taylors
and Williams, we find it was incumbent upon the
Respondent to have gone forward with evidence
adequately explaining its personnel actions and refut-
ing the adverse inferences which follow therefrom.'
The Respondent offered no evidence which would
dissipate the unfavorable inferences to be drawn from
the General Counsel's evidence. Accordingly, we find,
contrary to the Trial Examiner, that the Respondent's
discharge of the Taylors on October 17, and the
transfer of Williams on October 18, were for discrimi-
natory reasons as alleged in the complaint, and that
Respondent thereby violated Section 8(a)(3) and (1)
of the Act.
THE REMEDY
Having found that Respondent discriminatorily
discharged Donald W. Taylor and Mary Lee Taylor on
October 17, and discriminatonly transferred Cletus
Lee Williams on October 18 out of its Ontario store in
violation of Section 8(a)(1) and (3) of the Act, we
shall order the Respondent to cease and desist from
such unfair labor practices and require that it take
certain affirmative action which we find necessary to
remedy and remove the effects of this unfair labor
practice and to effectuate the policies of the Act. We
shall, therefore, order that the Taylors and Williams
be offered immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay
suffered by reason of the discrimination against them,
from the date of the discrimination to the date of the
offers of reinstatement. Loss of pay shall be comput-
ed as prescribed in F W Woolworth Company, 90
NLRB 289, and interest on such backpay shall be
computed at 6 percent per annum in accordance with
Isis Heating & Plumbing Co., 138 NLRB 716. We shall
also order the Respondent to make available to the
Board upon request payroll and other records in order
to facilitate the checking of the amount of backpay
due.
AMENDED CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
the entire record in this case, we do not adopt the
stances disclosed by the record that assuming that Keegan made this
statement, it can be dismissed as merely an expression of Keegan's
opinion rather than an admission by Respondent which required
explanation or denial by the Respondent
8 See Star Expansion Industries, Corp ., 164 NLRB No . 95, Virginia
Metalcrafters, Inc, 158 NLRB 958, 963.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner's Conclusions of Law 5, and adopt
new Conclusions of Law, 5, 6, and 7 as follows-
5 Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
(5) of the Act.
6. The Respondent by discharging Donald W.
Taylor and Mary Lee Taylor, and transferring Cletus
Lee Williams out of its Ontario store because of their
interest and activity in behalf of the Union, commit-
ted unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices found to
have been committed by the Respondent are unfair
labor practices affectmg commerce within the mean,
mg of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Responent,
The Circle K Corporation, Ontario, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from'
(a) Discouraging membership in the Retail Clerks
Union, Local 1428, affiliated with Retail Clerks
International Union, AFL-CIO, or in any other labor
organization of its employees, by discriminating
against employees because of their union sentiments
and activities by discharging or transferring them or
refusing to reinstate-them.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the 'following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Donald W. Taylor, Mary Lee Taylor, and
Cletus Lee Williams immediate employment at the
same or substantially equivalent position at which
they would have been employed had they not been
discriminated against, without prejudice to any se-
niority or other rights and privileges they might have
acquired, and make them whole in the manner set
forth in the section of this Decision entitled "The
Remedy," and notify them, if they are presently
serving in the Armed Forces of the United States, of
their right to full reinstatement, upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(b) Preserve and, upon request, make available to
the Board or its agents for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze and compute the
amount of backpay due under the terms of this
Order.
(c) Post at their places of business in Ontario,
California, copies of the appropriate attached notice
marked "Appendix."9 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by respective Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other matenal.
(d) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
91n the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "a
Decision and Order " the words "a Decree of the United States Court of
Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order 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 NOT discourage membership in the Re-
tail Clerks Union, Local 1428, affiliated with Retail
Clerks International Union, AFL-CIO, or in any
other labor organization by discriminating against
our employees because of their union sentiments
and activities by discharging or transferring them or
refusing to reinstate them.
WE WILL offer Donald W. Taylor, Mary Lee Tay-
lor, and Cletus Lee Williams immediate employ-
ment at the same or substantially equivalent
positions at which they would have been employed
had they not been discriminated against, without
prejudice to any seniority or other rights and
privileges they may have acquired.
WE WILL make Donald W Taylor, Mary Lee Tay-
lor, and Cletus Lee Williams, whole for any loss of
earnings they may have suffered as a result of the
discrimination against them.
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.
WE WILL notify the above-named employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training and
THE CIRCLE K CORP. 717
Service Act, as amended , after discharge from the issues , to argue orally , and file briefs and proposed findings of
Armed Forces
THE CIRCLE
K CORPORATION
(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 Regional
Office, 215 West 7th St., Los Angeles, California,
90014. Telephone 213-688-5800.
TRIAL EXAMINER'S DECISION
IRVING ROGOSIN, Trial Examiner- The complaint, issued
December 8, 1967, alleges that The Circle K Corporation,
Respondent herein, has engaged in unfair labor practices
within the meaning of Section 8(a) (1), (3), and (5) of the Act,
(a) during October 1967, and thereafter, by the acts and
conduct of its officers, agents, and representatives, interfering
with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act. (b) by
discharging Donald Taylor and Mary Lee Taylor, on about
October 17, 1967, and thereafter, refusing to reinstate them to
their former positions, and transfering Clete Williams, on about
October 18, 1967, from its retail store in Ontario, California,
to its store in Upland, California, and thereafter refusing to
reinstate him to his former or substantially equivalent position
at Ontario, because said employees had engaged in union or
other concerted activities; and (c) by refusing, since about
October 11, 1967, to recognize and bargain collectively with
the Union as the exclusive representative of the employees in
an appropriate unit.'
Respondent's answer admits generally the procedural and
jurisdictional allegations of the complaint,2 but denies the
remaining allegations, including those charging the commission
of unfair labor practices. Hearing was held on March 5 and 6,
1968, at Los Angeles, California. The General Counsel and the
Charging Party were represented by counsel; Respondent by an
industrial relations consultant. All parties were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence relevant and material to the
I The original charge was filed on October 25, 1967, the amended
charge, on November 28, 1967. Service by registered mail of both
charges was refused, though a copy of the amended charge , accompa-
nied by a transmittal letter was served on Respondent's industrial
relations consultant on November 29. Designations are as follows The
General Counsel , unless otherwise stated, his representative at the
hearing , The Circle K Corporation , Respondent , the Company, or the
Employer, Retail Clerks International Union, AFL-CIO, the Charging
Party, or the Union , the National Labor Relations Act, as amended (61
fact and conclusions of law. Respondent's motion, made at the
close of the General Counsel's case, to dismiss the complaint
for failure of proof, was denied. When renewed at the close of
the evidence, ruling was reserved The motion is disposed of by
the findings of fact and conclusions of law made herein. The
General Counsel and Respondent's representative argued orally
on the record. Motion by the General Counsel at the close of
the hearing to conform the pleadings to the proof was granted
without objection. Pursuant to an extension of time duly
granted, briefs were filed on April 22 and 24, 1968, by
Respondent and the General Counsel, respectively
Upon the entire record in the case, his observation of the
attitude and demeanor of the witnesses, and the briefs of the
parties, which have been duly considered, the Trial Examiner
hereby makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and it
is hereby found that, at all times material herein, Respondent
has been a cor3oration duly organized under the laws of the
State of Texas, engaged in the operation of about 200 retail
food markets in the States of Arizona and California, including
stores located at Ontario, Colton, and Upland, California. In
the course of its business operations, Respondent sells at retail
annually merchandise valued in excess of $500,000. During a
corresponding period, Respondent purchases annually goods
and materials valued in excess of $50,000 within the States of
Arizona and California, for resale at its retail stores in those
States, from wholesalers or enterprises receiving said goods and
materials from sources outside the States of Arizona and
California.
It is, therefore, found that Respondent is now, and at all
times material herein has been, an employer within the
meaning of Section 2(2) engaged in commerce, and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act, and the jurisdictional standards of the
Board.
II THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local 1428, affiliated with Retail
Clerks International Union, AFL-CIO, the Union herein, is,
and at all times material has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A The Issues
1. Whether Donald Taylor was, on or about October 17,
1967, a supervisor within the meaning of the Act
Stat. 136., 73 Stat. 519, 29 U.S C. Sec. 151, et seq ), the Act, the
National Labor Relations Board, the Board Unless otherwise stated, all
dates are in 1967.
2 In its answer , Respondent corrects the allegation of the complaint
regarding the state of incorporation of Respondent, asserting that it is
organized under the laws of the State of Texas, rather than the laws of
the State of Arizona, as alleged in the complaint. _
3 See fn. 2
718 \ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Whether Respondent violated Section 8(a) (3) and (1) of
the Act, by discharging Donald Taylor and Mary Lee Taylor,
on or about October 17, 1967, and thereafter refusing to
reinstate them to their former or substantially equivalent
positions.
3. Whether Respondent violated Section 8(a)(3) and (1) of
the Act by transferring Clete Williams, on about October 18,
1967, from its store in Ontario, California, to its store in
Upland, California, and thereafter refusing to reinstate him to
his former or substantially equivalent position at its Ontario
store
4. Whether Respondent violated Section 8(a) (5) and (1) of
the Act, by failing to reply to the Union's request for
recognition and bargaining, thereby refusing to bargain collec-
tively with the Union as the exclusive representative of the
employees in an appropriate unit.
5. Whether Respondent violated Section 8(a) (1) of the Act
in October 1967, by (a) warning its employees, through its
supervisor, of economic reprisals if they engaged in union
activities or selected the Union as their exclusive bargaining
representative, and (b) creating the impression of engaging in
surveillance of the employees' umon activity.
6. Whether a remedial order is warranted requiring Respon-
dent to bargain with the Union as the exclusive representative
of its employees in an appropriate unit, irrespective of whether
the evidence warrants a finding of refusal to bargain, within
the meaning of Section 8(a) (5) of the Act.
B. Discrimination in Regard to Hire and Tenure
of Employment
1 Termination of the Taylors
Prior to July 1, 1967, Respondent's market at Ontario was
operated by Robert Fleming, an independent operator, under a
franchise agreement.4 Donald W. Taylor was hired by Fleming
early in February, initially as a grocery clerk trainee. About a
month later he became, as he assumed, assistant manager.5
The store was operated on a 24-hour basis, Fleming usually
working alone from 7 30 a.m. to 7 p.m For the first month,
Taylor worked from 5 p.m. until midnight, with an assistant
manager, identified only as "Terry," who also served as
grocery clerk. Terry was terminated early in March, and Taylor
became assistant manager, working the same shift. No other
clerks were employed on that shift, but Fleming occasionally
came to the store at night to perform chores he had left
undone during the day. A clerk, identified only as "Ralph"
worked from midnight to 7.30 a.m
Respondent contends that Taylor was a supervisor, within
the meaning of the Act, both before and after July 1, 1967,
when Respondent assumed the active operation of the store. It
is, therefore, necessary to consider the nature and extent of his
duties and responsibilities. It is conceded that these remained
unchanged after Respondent took over the operation. It is
undisputed that Taylor had no authority to hire or discharge
and that he never exercised such authority. Nor is there any
evidence that he had authority to make such recommenda-
tions, that he ever did so, or that his recommendations were
acted on, with one possible exception. This involved his
"recommendation" for the hiring of his wife, Mary Lee Taylor,
as a clerk, in July The evidence regarding this hiring
establishes that Taylor requested Tom Smith, Respondent's
zone manager, to give Taylor's wife a job. This scarcely
qualifies as the type of recommendation contemplated in the
definition of supervisor under the Act. Apart from the fact
that this was an isolated instance, it is evident that the hiring
was not made on the basis of any recommendation regarding
the qualifications of Mrs. Taylor, who had had no prior
experience, but as a personal accommodation to Taylor.
Moreover, it must be viewed in the context of the events which
occurred at about the time Respondent took over the
operation of the store from Flerrung.
Shortly before July 1, Fleming recommended to Zone
Manager Smith that Taylor was qualified to succeed him as
manager of that store. Fleming informed Taylor of this and,
before the changeover took place, Taylor discussed the matter
with Smith in a restaurant next to the store. Taylor told Smith
that he was interested in taking over the store as an
independent operator, and conducting it with his family,
obviously intending his wife, and stepson, Clete Williams (who
was working in the store at the time), "plus part-time help and
full-time for night shift." Smith told Taylor that he would
work as assistant manager under Terence Keegan, the new
manager, for about a week, and then would assume the duties
of manager. Smith indicated approval of the hiring of Taylor's
wife and stepson, who had been working for Fleming a week
or two before July 1, as a part-time "bottle boy " Taylor
brought home an application for employment, which his wife
completed She then submitted to a lie detector test by
Respondent, after which Smith notified Keegan that he
authorized the hiring of Mrs. Taylor. She was lured as a
grocery clerk on about July 20. This single, isolated "recom-
mendation" by Taylor is insufficient to establish that, as an
essential part of his duties and responsibilities, Taylor possessed
authority to make effective recommendations regarding the
hiring of employees in the store. It remains to be considered
whether his other job functions were sufficient to render him a
supervisor within the meaning of the Act
While employed by Fleming, Taylor was an hourly rated
employee receiving $1.65 an hour, the same rate received by
all other employees. Though never officially informed that he
was an assistant manager, Taylor assumed this from the fact
that he substituted for Fleming during his occasional absences
and on Saturdays, Flerrung's day off. Taylor understood that,
under company policy, store managers and assistant managers
were entitled to an 8 percent bonus based on the gross volume
(or profit-it is not clear which) of business, in addition to
their regular wages. Taylor received no additional compen-
sation, excepting for one or two $5 payments, which were not
otherwise explained.
When Respondent took over the store on July 1, it reduced
the hourly wage rates of all employees, including Taylor, but
excluding Manager Keegan, to $1.55, the same rate paid to
"bottle boys." At no time did Respondent pay Taylor a bonus.
4 The record does not disclose the terms of this agreement and a
finding as to the nature of this undertaking is unnecessary to a
determination of the issues.
5 Although Fleming, who did not testify , never specifically informed
Taylor of his change in status , Taylor assumed that he was acting as
assistant manager because Fleming left him in charge on occasions when
he was out of town There was, however, no other change in Taylor's
duties or compensation.
THE CIRCLE K CORP. 719
It is clear that authority for the management and supervision
of the store, both before and after the changeover, rested with
the manager Smith informed Taylor that as assistant manager
his duties and responsibilities were to comply with Keegan's
orders. Although, according to Taylor, he was responsible for
the "training" of new employees, he testified merely that he
broke them in on their work tasks and observed their work.
Between July 1, and the date of his discharge, apart from his
wife, he "trained" one or possibly two clerks. Most of the
clerks, Taylor testified, already knew how to operate a cash
register before they were hired. In addition to performing the
the tasks of grocery clerk, Taylor did the bookkeeping,
balanced the cash, and made up the night bank deposit. He
also trained his wife, and after about 2 weeks, she in turn
trained Ed Garcia, a full-time clerk, in performing these tasks.
Taylor made no determination or recommendation as to
whether the employees required any further training in the
performance of these tasks. The bookkeeping was usually
checked by Manager Keegan the following morning and reports
were picked up by the zone supervisor.
Until his wife started working with hum, there were no
other employees on the 3 p.m. to 11 p.m. shift, on which
Taylor worked. A bottle boy did, however, come in 2 hours
every evening. Two bottle boys were employed at the Ontario
store-Williams, Taylor's stepson and Timothy Posey, who was
hired early in September When stock was delivered, on
Thursday or Friday, both boys usually worked together
unloading the order On other days, they generally worked 2
hours each on alternate days. Although designated as bottle
boys, it is evident that they also worked as clerks and, on
occasion, at the cash register or checkout stand
Work schedules were established in advance by Manager
Keegan, although Taylor exercised limited authority in extend-
ing or reducing the number of hours worked by the bottle
boys, depending upon the amount of work required. Taylor
signed for deliveries of merchandise, occasionally ordered
merchandise from vendors, paid cash for produce delivered to
the store, approved checks in payment of merchandise, and
authorized cashing of checks in accordance with rules pre-
scribed by Respondent. It is undisputed, however, that clerks
on other shifts performed the same tasks.
While working on the day shift, Taylor substituted for
Keegan on Saturday, his day off. Shortly before his termina-
tion, Taylor was assigned to the graveyard shift, working from
midnight until 8 a.m. During this period, Ed Garcia, the clerk
on the afternoon shift, from 3 p.m. to 11 p.m. performed
substantially the same tasks as Taylor. For some time after
July 1, Garcia's and Taylor's shift overlapped about 2 hours,
especially on weekends During this period, Garcia, like Taylor,
paid cash for produce delivered to the store. In addition to the
manager, Taylor and his wife, when she worked evenings, made
out the bank deposit. Mrs. Taylor also performed the
bookkeeping on her shift. Early in October, Keegan requested
Mrs. Taylor to train Garcia, who worked the same shift, to do
the paper work and make out the bank deposit.
Taylor did not have a key to the safe, but a key, kept in a
drawer behind the counter, was available to and used by the
clerks In other respects, Taylor's duties did not differ
materially from those of the other clerks. These consisted
generally of stocking shelves and rotating stock, mopping and
waxing the floor (performed by Taylor while on the graveyard'
shift). Whatever observations he made regarding whether work
tasks had been properly performed on the swing shift, were for
the purpose of deciding what remained for him to do on the
graveyard shift. Although he questioned employees as to why
particular tasks had not been done on the swing shift, he was
obliged to content himself with the answer that they had been
too busy, apparently having no authority to impose or
recommend discipline. Although he sometimes "double-
checked" the cash when the books did not balance, and
verified the bank deposits while on the graveyard shift, he
denied any responsibility for doing so, asserting that this was
the responsibility of the swing shift. After his transfer to the
graveyard shift, he ceased to substitute for Keegan on his days
off on Saturday Except for Taylor's limited authority in
extending or reducing the hours worked by the bottle boys as
work required, there is no evidence that Taylor was author-
ized, as a regular part of his duties, to assign work to
employees, regulate their working hours, lay off, or discipline
them by dismissing them before the completion of their day's
work, or that he ever exercised such authority. Contrary to
Respondent's contention, the record does not establish that
Taylor possessed authority responsibly to direct other em-
ployees, effectively recommend the hiring of employees , assign
work to and discipline them for derelictions, or that Taylor
exercised such authority, except to the very narrow and
limited extent already indicated The facts regarding Taylor's
duties and responsibilities are not sufficiently distinguishable
from those delineated in Purity Food Stores, Inc, 6 to warrant
a different conclusion than was reached there.
It is, therefore, found that Taylor was not, at any of the
times material herein, a supervisor within the meaning of
Section 2(11) of the Act
On about October 6, 1967, Taylor discussed with Maurice
Z. Cofer, field representative of the Union at Pomona,
California the prospect of organizing the employees at Respon-
dent's Ontario store. The union representative gave him some
authorization cards, and instructed him in the manner of
securing execution of the cards. Taylor signed a card himself
and secured the signatures of four other employees, including
his wife and stepson.7 He forwarded the signed cards to the
Union.
Late in the afternoon on Tuesday, October 17, Zone
Supervisor Smith telephoned the Taylor home. Mrs. Taylor
answered the phone in her bedroom, and summoned Taylor
who was outside. He took the call in the kitchen, while Mrs.
Taylor remained on the extension in her bedroom. Smith told
Taylor that, due to a personnel change at the Ontario store, he
and his wife would no longer be needed Smith offered no
further explanation, and Taylor asked for none. Smith told
him, however, that if he needed a letter of recommendation, to
" be sure and write to hum," not to the Company, and he
would furnish him with a reference. Taylor and his wife were
thereupon terminated.
Several days later, about October 20, Taylor had a
conversation with Store Manager Keegan in a restaurant near
the market. During the conversation, Keegan told Taylor that,
on October 10 or 11, prior to Taylor's discharge, he had
6 Purity Food Stores, Inc, 150 NLRB 1523, enforcement denied on
other grounds 354 F.2d 926 (C.A. 1), original decision affirmed on
remand, 160 NLRB 651, set aside on other grounds 376 F.2d 497 (C.
A. 1). See also Quick Shop Markets, Inc., 168 NLRB No 30.
7 Since it has been found that Taylor was not a supervisor,
Respondent's contention that the cards which Taylor solicited may not
be relied on because obtained by a supervisor, is not applicable.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended Taylor to Zone Supervisor Smith as his,
Keegan's replacement as store manager . He was told by the
"office staff," an apparent reference to Smith, that "that was
out of the question, because [Taylor] was on [his] way out."
Taylor testified that, following his initial conversation with
Smith, in which it was indicated that Taylor would take over
as manager about July 8, the date passed with no further
mention by management until early in August. When Taylor
brought the matter up then, Smith postponed the date to
August 15. That date, too, passed without any further action,
and when Taylor again broached the subject with Smith, the
latter set still another date. During this conversation, Taylor
spoke of a strained relationship between employees, including
himself, and Keegan, and complained that Keegan had assigned
work to him and the other employees, which required them to
work beyond their normal 8 hours, while Keegan merely
worked a regular 8-hour day. Taylor commented that he did
not regard that as fair, adding that he worked hard, and that if
he could work that hard, there was no reason Keegan could
not do so 8
Late in September, Smith offered Taylor the job of
manager of Respondent's Colton store. Taylor denied that
Smith told him that one of the reasons for this proposal was
that he, Taylor, and Keegan did not seem to be getting along.
According to Taylor, Smith had offered him the job of
manager of that store for about 2 weeks, after which he would
return to the Ontario store and take over as manager . Taylor
testified that, because of Smith's procrastination in the past in
appointing him manager of the Ontario store, he had no
confidence that Smith would keep his promise to transfer him
to the Ontario store after 2 weeks at Colton. Moreover,
according to Taylor, he was apprehensive that the 2-week
assignment would last indefinitely, and this would create a
hardship upon him and his family because of transportation
difficulties, since the Colton store was located some 26 miles
from his home, and, with only one car in the family, his wife,
who would still be working at the Ontario store, would have
no transportation to work. Taylor testified that he related this
to Smith on that occasion
Keegan, according to Taylor, had been unaware that Smith
had offered to appoint Taylor manager of the Ontario store,
after 2 weeks in the Colton store, until Taylor mentioned it to
him later. Earlier, Smith had told Taylor that he could be
manager of the Ontario store if Keegan were willing to transfer
to another store. Taylor testified that, when Keegan took over
the Ontario store, the latter was unaware that it had been
"prorrused" to Taylor, and that Keegan understood that was to
be his store. When Taylor asked Smith, early in September,
why he had not kept his promise to make him manager of the
Ontario store, Smith replied that it was because there was no
store to which they could transfer Keegan.
According to Taylor's undisputed testimony, the Ontario
store was Respondent's "No. 1 [store] in Southern Califor-
nia," with the greatest volume of business. Because of
Respondent's policy of a percentage bonus to managers and
assistant managers , the Ontario store was regarded as the most
desirable store in that area.
It should be noted that the record is barren of any direct
evidence of Respondent's knowledge of Taylor's union activity
or his efforts to organize the clerks in the Ontario store. Nor is
there any evidence of union animus or expressed opposition or
hostility toward union affiliation by Respondent's employees.
The nearest thing to any knowledge of union activity, or a
basis upon which such knowledge may be inferred, is an
incident which occurred about a week before the Taylors were
discharged.
According to the undisputed testimony of Timothy Lyn
Posey, a regular part-time bottle boy and clerk, he overheard a
fragment of a conversation between "Red" Wooding, the zone
supervisor who replaced Smith, and Store Manager Keegan.
While Posey was behind the cash register, Wooding and Keegan
were engaged in conversation in front of the candy display,
about 7 feet from where Posey was working. In Posey's words,
"I was sort of halfway listening and halfway not, and I heard
the word `union' mentioned. There was a lot of talk around
the store about the union so I paid a little closer attention to
what Mr. Wooding said about the union. And then towards the
end of the conversation Mr. Wooding also said that things were
going to start happening, and that's all I heard."
Posey testified that Wooding had his briefcase and some
papers with him, which he placed on the counter next to the
cash register. On the paper lying on top, Posey noticed a list of
names on which he could recognize only the names of Mr. and
Mrs. Taylor
Later, after Wooding had left, and while Posey and Keegan
were engaged in casual conversation, Posey asked Keegan
"what it was all about," remarking that it was rather unusual
for Wooding to call at the store. Keegan said that he could not
tell him then, but that Taylor would probably find out later.
One afternoon, several days later, Posey and Keegan, who,
according to the former, were "pretty good friends," were
engaged in conversation. Posey asked Keegan, in light of "all
this stuff about the union ... coming up, his `viewpoint' about
it." Keegan, Posey admitted, "wasn't prejudiced one way or
the other. He gave me both ... he more or less explained what
the union was about, and what it had to do with Circle K, and
he sort of gave me-well, he gave me both sides of the story,
and he wasn't either way, you know, for what was happening."
On that occasion, or perhaps the day before, when Keegan
returned from Riverside,9 he told Posey that John Campbell,
then division manager of the area which included the Ontario
store, had talked to him about the Union. According to Posey,
he was uncertain whether Taylor's name was mentioned in his
conversation with Keegan.
During late afternoon or evening, within a few days after
the Taylor's discharge, Posey had another conversation with
Keegan in the back room ofthe store. Posey asked Keegan the
reason the Taylors were discharged. Keegan told him he "really
didn't know the reason, and what he was told he wasn't free to
talk about." Pressed to give his opinion as to the reason for the
discharge, Keegan told Posey that he did not know and did not
want to talk about it. Posey persisted, and asked Keegan
whether if he, Posey, ventured a guess as to the reason for the
discharge , Keegan would admit whether he had guessed
8 Dunng cross-examination of Taylor, Respondent 's representative
intimated that Taylor had faded to carry out instructions left for him
by Keegan , implying that this played a part in his termination. Apart
from the fact that Taylor denied that Keegan ever mentioned it to him,
and that Keegan did not testify, there was no contention that
Respondent relied upon this as a ground for Taylor's termination.
9 Respondent's division office. The corporate office is located in
Phoenix, Arizona
THE CIRCLE K CORP.
correctly Posey then " guess [ed] " that it was because of the
Union, but Keegan made no reply. Still not content, Posey
asked Keegan if he would tell him if he had guessed "wrong,"
but Keegan refused to respond
On this evidence, the Trial Examiner is asked to conclude
that Respondent was aware of Taylor's union activity when it
terminated his services and that of his wife; that Respondent
was opposed to the organization of its employees; and that it
terminated the Taylors' employment for that reason to
discourage membership in the Union.
None of Respondent's supervisors alleged to have been
involved in discriminating against the Taylors, namely, Keegan,
Smith, Wooding and Campbell, was called to testify. Hence,
the testimony of the General Counsel's witnesses on this issue
stands uncontradicted. The question, therefore, must be
whether the General Counsel has established a puma facie case,
for, unless he has, Respondent would be under no duty to go
forward to rebut that case, and no adverse inference could be
drawn from Respondent's failure to offer countervailing
evidence
To begin with, there is no evidence of union animus or
opposition by Respondent to the affiliation of its employees
with the Union. As to Respondent's knowledge of Taylor's
union activity, such a finding must be based almost entirely on
the relatively small number of employees, a total of seven,
including full and part-time employees on both shifts. There is
no probative evidence to establish that Keegan, who was
apparently at the store only during the day shift, was aware of
or suspected Taylor of any union activity. Posey's testimony
regarding his conversation with Keegan, upon the latter's
return from Riverside, in which he mentioned that Campbell
had talked to him about the Union, establishes at most that he
may have learned about the Union on his trip to Riverside. The
fact is that, on Posey's own admission, when asked for his
viewpoint, Keegan maintained a wholly neutral attitude. Nor
does Posey's testimony regarding the fragments of the conver-
sation between Woodmg and Keegan which he overheard, in
which the word "union" was mentioned, and a reference made
to the effect that "[t] hings are going to start happening,"
constitute probative evidence of discriminatory motive The
fact that Posey observed the names of the Taylors, among
others, on Wooding's lists, adds little more than further
suspicion. Nor has Taylor's uncontradicted testimony, that
Keegan told him a few days after his discharge that in response
to his recommendation of Taylor as manager, he was told that
it was out of the question because he was on his way out, been
overlooked This statement is equally consistent with Respon-
dent's contention, which is uncontroverted, that Taylor and
his wife were no longer needed due to personnel changes at the
Ontario store. It does not appear whether Keegan inquired of
his superiors why Taylor was on his way out, but Keegan did
not elucidate this in his conversation with Taylor. It is evident
10 Williams , Taylor's stepson , testified on cross-examination that he
believed he had heard Keegan complain at a meeting with the employees
that there was too much help at the Ontario store , though Williams was
unable to fix the time Keegan made the statement. Since Keegan
became manager of the store on July 1 , and, as will presently appear,
Williams was transferred to the Upland store the day after the Taylors
were terminated , the remark would have had to be made during this
interval . Considering that the Ontario store was Respondent's No. 1
store m Southern California , operating on a 24 -hour schedule with a
total complement of 7, excluding the manager , including full and
721
that the decision to terminate Taylor was made at division
headquarters at Riverside, presumably without prior consulta-
tion with Keegan. Nor is the General Counsel's case aided by
Taylor's similarly undisputed testimony (elicited, incidentally,
under interrogation by the Trial Examiner to enable the
witnesses to complete an unfinished answer on cross-
examination), that although he had not known the reason at
the time he was told that Taylor was on his way out, he knew
then (at the time of his conversation with Taylor) that it was
"because of the union." Assuming Keegan made this statement
to Taylor, it was no more than an expression of Keegan's
opinion, not a vicarious admission by Respondent
As has been noted, the only reason which Smith offered
Taylor for the termination of his employment, as well as his
wife's, was that they "would no longer be needed, due to
personnel change" at the Ontario store. Smith did not
elaborate on this, and Taylor apparently did not press him for
further explanation.) 0 Although Smith's failure to clarify
what he meant by "personnel change" casts suspicion on the
actual grounds for the termination, it is insufficient, for
reasons already stated, to justify a discriminatory motive for
the discharges, even when coupled with Taylor's undisputed
testimony that Keegan had told him that when he recom-
mended hum as manager , he was told that it was out of the
question because Taylor was on his way out. The concurrent
termination of Taylor's wife heightens the suspicion of
Respondent's motivation, but this circumstance is insufficient
to justify a finding of discrimination. Mrs. Taylor's activity
consisted merely of the signing of an authorization card, and
there is no direct evidence that Respondent was even aware
that she had done so. Of course, if the evidence supported a
finding of discrimination against her husband, it could more
readily be inferred that Respondent would identify her with
her husband's advocacy of the Union. Since her case is
necessarily dependent on a finding of discrimination in
Taylor's case, the failure of proof in his case deprives her of
any support for hers. Although the reason advanced by Smith
to Taylor for the terminations may have been unduly vague
and indefinite, we cannot disregard the fundamental principle
that the burden of proof is on the General Counsel to establish
by a fair preponderance of the reliable, credible and probative
evidence that the discharge was discriminatorily motivated, not
on Respondent to prove that it was motivated by lawful
-considerations not proscribed by the Act.
Due consideration has been given the coincidence of the
timing of the discharges, within a week after Taylor recruited
the employees to join the Union, and the comparatively small
complement of employees at the Ontario store. These factors,
however, are insufficient to satisfy the requirement of substan-
tial evidences I
It is, therefore, found that the General Counsel has failed to
sustain his burden of proof that Respondent discharged
part -time help, it might be questioned whether the store was actually
overstaffed In any case , in stating to Taylor that his termination was
due to a personnel change, Smith did not specifically assert that there
was too much help at the Ontario store or that Keegan had so reported
to him.
I1 "Substantial evidence is more than a scintilla , and must do more
than create a suspicion of the existence of the fact to be established `It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion "' N L R B v. Columbian Enamel.
ing & Stamping Co , 306 U S 292, 300
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald Taylor and Mary Lee Taylor on October 17, 1967, and
thereafter failed and refused to reinstate them to their former
or substantially equivalent positions, because of their union
activities, thereby discriminating in regard to their hire or
tenure or terms or conditions of employment to discourage
membership in the Union, in violation of Section 8(a) (3) of
the Act
2. The transfer of Clete Williams
C. The Refusal to Bargain
1. The appropriate unit
The complaint alleges, Respondent's answer admits, and it
is hereby found that, at all times material, the following has
constituted an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All employees employed by Respondent at its retail
store in Ontario, California, excluding guards, watchmen,
and supervisors as defined in the Act, as amended.
Cletus Lee Williams, a minor, stepson of Donald Taylor, was
hired initially by Fleming early in July, as a "bottle boy" in
the Ontario store, at an hourly rate of $1.55. When he first
started, he worked an hour or two a day. Later, his hours were
increased to 20 or 40 a week (he was uncertain which),
occasionally 8 hours a day during the summer months when he
was not attending school. He was taught to operate a cash
register and occasionally did so. As has been seen, he signed a
union authorization card on October 9, at the instance of his
stepfather. The day after his parents were terminated, he was
transferred to the Upland store.
At the time of his transfer, he was working about 16 hours
a week After his transfer, his hours were reduced to about 8 a
week; a week or two later, to 4, and finally, to 2. About
Thanksgiving, after an illness, during which Respondent called
him twice over a 2-week period, to ascertain his availability for
work, his employment was terminated. Williams testified that
they ceased to call hum and, when his job was offered to
someone else, he concluded that he had been terminated. He
admitted, however, that although he claimed to be ill when he
was last called, he had actually accepted another job in a
drugstore. There is no allegation or contention that the
reduction in his hours of work or subsequent termination
amounted to discrimination.
Williams testified that he believed he had heard Store
Manager Keegan complain at meetings with the employees,
while he was working at the Ontario store, that there was too
much help, though he was unable to place the time he heard
the statement He was not otherwise given any reason for his
transfer to the Upland store, testifying that when he called in
one day to find out what time he was to report for work,
Keegan merely told him to start reporting to the Upland store.
When he asked Keegan the reason for the transfer, he was told
only that he was needed there. With Williams' transfer, there
were four persons employed at the Upland store,-a manager,
assistant manager, a clerk, and Williams. There were no other
bottle boys at that store, and none were hired while he worked
there. During the latter part of his employment, he worked
Wednesday and 1 day on weekends
Apart from the fact that the Upland store was located
about a mile and a half from the Ontario store, there was no
showing that there was any difference in the terms and
conditions of his employment resulting from the transfer.
Since no discriminatory motive has been shown for Williams'
transfer, since it is evident that he did not engage in any union
activities, except for signing an authorization card; and since
any basis for a finding of discriminatory motive necessarily
depends on such a finding in Taylor's case, it cannot be
concluded that Respondent was motivated in Williams' case by
a purpose to discourage membership in the Union. It is,
therefore, found that these allegations of the complaint have
not been sustained.
2. The Union' s majority status
The complaint further alleges, but Respondent's answer
denies, that since about October 8, 1967, and at all times
thereafter, the Union has represented, and still represents, a
majority of the employees in the appropriate unit described
above, and by virtue of Section 9(a) of the Act, has been, and
is now, the exclusive representative of all the employees in said
unit for the purposes of collective bargaining, in respect to
rates of pay, wages, hours of employment, and other terms and
conditions of employment.
It is undisputed that there were seven employees, full and
regular part-time employees, excluding the store manager, at
the Ontario store, on October 8. Respondent has made no
contention that the part-time employees were not properly
included in the unit, and on the basis of the entire record, it is
found that, by virtue of the number of hours part-time
employees regularly worked, they are entitled to be included
within the unit It has already been found that to the extent
that he may have acted as assistant manager, Taylor was not a
supervisor within the meaning of the Act
Three employees12 signed authorization cards on October
9, Ed Garcia, a regular, full-time employee signed a card after
midnight, October 8. (The card is dated October 8.) Chester A
Philbrook, a regular, part-time employee signed his card on
October 13. All were solicited by Taylor and signed in his
presence. There is no issue as to the genuineness of the
signatures or the effectiveness of the authorization cards
designating the Umon as bargaining agent. Thus, the Umon had
been designated by four, out of a total of seven employees in
the unit, as of October 9.
It is, therefore, found, on the basis of the foregoing, and
upon the entire record, that the Umon, on October 9, 1967,
and at all times material since, including October 10, 1967, has
been the exclusive representative of Respondent's employees
in an appropriate unit for the purposes of collective bargaining
as aforesaid 13
3. The refusal to bargain
On October 10, the Union sent a letter from its Pomona,
California, office, by registered mail, return receipt requested,
addressed to Respondent at its Riverside, California, office, to
the attention of Mr John Campbell, district manager. The
12 Donald and Mar, Lee Taylor, and Williams.
13 Posey later signed an authorization card on November 29, 1967
The termination of the Taylors on October 17, and the transfer of
Williams the following day, did not, of course, affect the union's
majority on October 10
THE CIRCLE K CORP
envelope in which the letter was enclosed bore the name and
address, together with a facsimile of the Union's seal in the
upper left-hand corner 14
The letter was returned undelivered with the handwritten
statement, "Not accepted by addressee," and the word
"Refused" written diagonally across the envelope A rubber
stamp with an arrow marked "Returned to Writer," listed the
reason for nondelivery as "Refused."
It appears from the registered return receipt, however, that
this letter was actually delivered and recerpted for, on October
11, by one Barbara Steffen, not specifically identified, but
presumably a clerk, on behalf of the addressee, "Circle K "
The following day, the Post Office Department (Canyon Crest
Station, Riverside, California), mailed a notice to the Union on
a routing slip, with the following remarks
Re Registered Article #16792 [the registered number
assigned to this letter] to The Circle K Corp, 1345
University Ave.
Article is being returned to you. Return receipt dis-
patched to you on October 11 should be destroyed as the
article was accepted in error by a clerk and was subse-
quently returned to the Post Office by the addressee
The letter itself, dated October 10, 1967, addressed as on
the envelope, with the salutation to Campbell, read as follows
In order to bring the benefits obtainable through our
Union contract to the employees of your store at 1553 East
Fourth Street, Ontario, California; we hereby request of
you, the opportunity for a conference, at which time the
signing of our Retail Food Agreement may be formally
discussed.
You may wish us to establish to your satisfaction that a
majority of the present employees of your store wish to be
represented by the Union, and thus obtain the benefits
coming thereby, and to that end, we hereby request of you
that you permit the Conciliation Department of the State
of California to conduct an authorization card check.
Please write or call us within the next week, that we may
schedule a mutually agreeable time and place to confer on
this subject
Very truly yours,
John M. Sperry,
Secretary-Treasurer
JMS/gw
cc Mr Lewis DeWolfe
Conciliation Service
State of California
Respondent denies that it actually received this communica-
tion or that it had any knowledge of its contents According to
the undisputed and credited testimony of Jacob F. Struble,
vice president and area manager of Respondent, for at least 4
years during the 4216 years of his tenure, under advice of its
14In the lower left-hand corner , below the name of Respondent's
district manager, appeared the printed legend "BUY UNION-FROM
UNION CLERKS."
15 Elmira Machine & Specialty Works, Inc., 138 NLRB 1393, Quick
Shop Markets , Inc., 168 NLRB No. 30. Cf., also , City Electric Company,
164 NLRB No 116. In view of the conclusion that the refusal to accept
the demand was insufficient evidence on which to predicate a finding of
refusal to bargain , the issue of whether the contents of the letter
comprised a proper demand , or whether Respondent entertained a
723
legal counsel, the Company has maintained a strict policy of
refusing registered mail, whether at "the store level, division
offices or corporate offices" because of possible legal conse-
quences in failing to respond in the event a registered letter
were lost. Under this policy, registered mail, as well as service
of legal process, may be accepted only by Respondent's
statutory agent, the CIT Corporation. Although Struble was
uncertain whether this policy was promulgated in a printed
statement, he testified that it probably took the form of a
letter memorandum, and that it was frequently discussed at
division meetings which he conducted in regard to legal
matters relating to insurance claims and the like. The policy,
Struble testified, was relayed by the division manager through
the "chain of command" to all levels, though he could not
testify that every employee at the Riverside received such
instructions. No explanation was offered as to why Barbara
Steffen had not complied with this directive but there was no
showing that the letter was actually opened before being
returned to the Post Office for redelivery to the sender.
Be that as it may, there was no showing that Respondent
was aware of or had reason to suspect the contents of the
letter. Although the envelope bore the return address of the
Union, and was addressed to the attention of Mr John
Campbell, district manager (sic), there is no probative evidence
that Respondent was then aware of any union activity at the
Ontario store. At the time the company policy regarding
acceptance of registered mail was promulgated, there had been
no effort to organize employees anywhere in Respondent's
operations. According to Struble's uncontradicted testimony,
as a member of the Board of Management, he was unaware of
any union activity prior to the instant proceeding, except from
knowledge derived from the filing of the representation
petition, presently discussed Furthermore, there has been no
showing of hostility or opposition to the organizational
activities of its employees.
Under these circumstances, particularly in light of Respon-
dent's stated policy, the General Counsel's contention that the
Union's letter of October 10, constituted a valid demand for
recognition, and that the refusal to accept the letter is
tantamount to a refusal to bargain, cannot be sustained. In a
comparable case, the court has said, " ... the Company never
accepted the letter and, so far as the record shows, never knew
that it included any request for recognition .. the refusal to
accept the letter is not equivalent to knowledge of the
contents of the letter Nor would the mere refusal of the letter
be regarded as such contumacy as to qualify as bad faith in
refusing recognition. To justify such a finding would require a
conclusion that the Company knew or should have known,
under the circumstances the contents of the letter. Cf.
N.L.R.B v. Great Atlantic & Pacific Tea Company, 346 F.2d.
936, 939, 940, 5th Cir. 1965." Filler Products, Inc v
N.L R.B., 376 F.2d 369, 380-381 (C.A. 4, 1967).
The cases cited by the General Counsel in support of his
contention are clearly distinguishable.' 5 In both cases the
good -faith doubt as to the union 's majority , is not reached . It may be
noted , in passing , however , that although the letter did not make a
demand for recognition in explicit terms, the general tenor of the letter
makes it abundantly clear that this was the reasonable intendment. It is
well-established that a request to bargain need not be precisely worded
as long as it is clearly implied that that was the purpose of the request
See, a .g, J. H Rutter-Rex Manufacturing Company, Inc., 164 NLRB
No 10.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer had been aware of the union's organizational
campaign, had engaged in antecedent unfair labor practices
shortly before the demand was made, and had demonstrated a
determination not to deal with the union. Significantly, the
Union here made no further effort by any of the various means
available to communicate its demand for recognition to
Respondent, despite the fact that it was aware that its
registered letter had been refused. Instead, it filed a petition
for representation on October 18, 1967, a copy of which was
received by Respondent the following day, on which action
was deferred because of the filing of the unfair labor practice
charge. It is settled that the filing of a representation petition,
without more, is insufficient to constitute a demand as a
predicate for a finding of refusal to bargain 16
Inasmuch as it has been found that the Union's letter of
October 10 was not actually received by Respondent, and
since its refusal to accept the letter, under the circumstances
shown, was not because of its knowledge or suspicion
regarding the contents of the letter, or because of a determina-
tion to avoid bargaining with the Union, it follows that the
Union has failed to satisfy an indispensable condition prece-
dent to a finding of refusal to bargain.
It is, therefore, found that Respondent has not, since
October 10, 1967, refused to bargain with the Union as the
exclusive bargaining agent of the employees in an appropriate
unit in violation of Section 8(a)(5) of the Act
D. Interference, Restraint, and Coercion
Except for the derivative violation of Section 8(a)(1),
stemming from the alleged refusal to bargain, the evidence
previously detailed, no evidence was offered by the General
Counsel in support of the allegations of the complaint that
Respondent (1) warned its employees of economic reprisals if
they engaged in union activities or selected the Union as their
bargaining agent, and (2) stated to one of its employees that
16 Western Aluminum of Oregon Incorporated, 144 NLRB 1191,
Laabs Inc , 128 NLRB 374, L B Foster Company, 168 NLRB No. 15
See also John Wafford, d/b/a Wafford Cabinet Co, 95 NLRB 1407 The
Respondent had engaged in surveillance of the union activities
of its employees. It will, therefore, be recommended that these
allegations of the complaint be dismissed.
Upon the basis of the foregoing, and upon the entire record,
the Trial Examiner makes the following.
CONCLUSIONS OF LAW
1 The Circle K Corporation, Respondent herein, is, and at
all times material herein, has been, an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Retail Clerks Union, Local 1428, affiliated with Retail
Clerks International Union, AFL-CIO, the Union herein, is
and at all times material herein, has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent at its retail
store in Ontario, California, excluding guards, watchmen, and
supervisors as defined in the Act, constitute an appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
4 At all times material, since October 10, 1967, the Union
has been the exclusive representative of Respondent's em-
ployees in the appropriate unit defined above, and by virtue of
Section 9(a) of the Act, has been the exclusive representative
of all employees in said unit for the purposes of collective
bargaining, in respect of rates of pay, wages, hours of
employment, and other terms and conditions of employment.
5. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, it is hereby
recommended that the complaint be dismissed in its entirety.
General Counsel concedes this and places no reliance on the filing of the
petition in Case 31 -RC-681 as a demand for recognition