Virgina Street Discount Liquors

National Labor Relations Board - Board Decisions

Feb 28, 1979

240 N.L.R.B. 988 (N.L.R.B. 1979)

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ronald Rissone, Waldo Perini, William Warren,
d/b/a Virginia Street Discount Liquors and Retail
Clerks International Union, Local No. 1434, AFL-
CIO. Case 32-CA-798
February 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRl;ESDALE
On October 10, 1978, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent re-
submitted its brief to the Administrative Law Judge
and subsequently filed cross-exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
IThe General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy notl to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Drs Wall Products, Inc.. 91
NLRB 544 (1950), enfd. 188 F2d 362 (3d (Cir. 1951). We have carefull;
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The unfair
labor practice charge in this case was filed on March 17,
1978, by Retail Clerks International Union, Local No.
1434, AFL-CIO, herein called the Union.
The Regional Director of Region 32 of the National La-
bor Relations Board, herein called the Board, who was act-
ing on behalf of the General Counsel of the Board, on
240 NLRB No. 148
April 28, 1978, issued a complaint and notice of hearing
against Ronald Rissone, an individual, Waldo Perini, an
individual, and William Warren, an individual, d/b/a Vir-
ginia Street Discount Liquors, herein called Respondent.
The General Counsel's complaint alleges that Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, herein called the Act. Specifically, the Gen-
eral Counsel alleges that Respondent discharged seven em-
ployees on or about March 15, 1978, because they engaged
in union activities or other protected concerted activities,
and thereby violated Section 8(a)(1) and (3) of the Act. As
to one of those seven persons, the General Counsel alterna-
tively alleges that Respondent discharged its supervisor,
Louis Holt, "as an integral part of a pattern of conduct
aimed at penalizing employees for their union activities,"
and thereby violated Section 8(a)(1) of the Act. The Gener-
al Counsel further alleges that Respondent has refused to
bargain since March 13, 1978, with the Union, which had
been designated by a majority of the employees in an ap-
propriate unit as their collective-bargaining representative,
and that Respondent thereby violated Section 8(a)(1) and
(5) of the Act. Respondent filed an answer to the complaint
and denied the commission of the alleged unfair labor
practices.
The hearing was held before me on July 6 and 7, 1978, in
Reno, Nevada. The time for filing briefs was extended to
August 18, 1978. Both the counsel for the General Counsel
and the attorney for Respondent filed briefs which have
been considered. In addition, on August 22, 1978, a reply
brief was received from the attorney for Respondent who
made a response to a contention set forth in the General
Counsel's brief regarding the payment of backpay.
There are a number of clerical errors in the transcript of
the proceedings. Those errors are either easily recognizable
or inconsequential, so a detailed correction of the record is
not necessary. However, Mary Fyten's name is spelled two
different ways in the record. I have used the spelling of her
name as shown on the following documents: General
Counsel Exhibits (c), 2(h), 4, and 12; Respondent Exhibits
7. 15, 16, and 19. Similarly, Jackie Macdonald's name is
spelled two different ways in the record. I have used the
spelling of her name as shown on the following documents:
General Counsel Exhibits 2(k) and 9; Respondent Exhibit
19.
FINDINGS OF FAcT
I JURISDICTION
Respondent has been, at all times material herein, a part-
nership with an office and principal place of business locat-
ed in Reno, Nevada, where it has been engaged in the retail
sale of liquor, gifts, souvenirs, and sundries. Respondent
commenced business on or about October 8, 1977.
During the period from October 1977 through June
1978, Respondent, in the course and conduct of its busi-
ness, received gross revenue in excess of $500,000. During
the same period, Respondent purchased and received
goods valued in excess of $5,000 from suppliers located
outside the State of Nevada.
VIRGINIA STREET DISCOUNT LIQUORS 989
Upon the foregoing facts, and upon the entire record in
this proceeding, I find that Respondent 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
It was stipulated by the parties that the Union is a labor
organization within the meaning of the Act. Upon that
stipulation and the record in this proceeding, I find that the
Union has been at all times material herein a labor organi-
zation within the meaning of Section 2(5) of the Act.
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. The Witnesses
In alphabetical order, the following nine persons ap-
peared as witnesses in this proceeding:
Arthur C. Costa has been the manager of Respondent's
store since March 16, 1978.
Mary Fyten was first hired by Respondent as a clerk on
February 6, 1978. She was terminated on March 15, 1978,
along with the other employees. She was rehired by Re-
spondent around March 30, 1978, and she was still em-
ployed by Respondent at the time of the trial.
Louis Holt was hired in early October 1977 by Respon-
dent as an assistant manager of the store. From February 1
through March 15, 1978, he was the manager of
Respondent's store. He was terminated on the latter date,
and he was not offered reinstatement by Respondent.
Clare Kohlenberger was hired on October 20. 1977. as a
sales clerk for Respondent. She was terminated on March
15, 1978, along with the other employees. She was rehired
by Respondent on March 30, 1978. Sometime thereafter,
she was again terminated by Respondent.
Art Melders has been a business agent of the Union for
the past 2 years.
Bobby Messerall was hired as a clerk by Respondent in
mid-October 1977. Messerall received an employment ap-
plication from Dallas Seevers, who was the manager of the
store at that time. Of the two references given by Messerall
on his application form, one of them was Art Melders
whose address was given as the "Clerks Union." (See Resp.
Exh. 3.) Messerall worked mostly on the day shift from 8
a.m. to 5 p.m. He was terminated along with the other
employees on March 15, 1978. Messerall returned to work
for Respondent on April 5 or 6, 1978. Some time thereaf-
ter, Messerall was again terminated by Respondent.
Ronald Rissone is one of the three partners in
Respondent's business. Rissone's other business is the op-
eration of a dry cleaning and shirt laundry establishment
known as the Seven Diamonds Cleaners in Reno. Rissone
has been in that business for 16 years. His partner in the
Seven Diamonds Cleaners is Waldo Perini, who is also his
uncle by marriage. Perini is also one of the three partners
in Respondent's business.
Dallas Seevers, Jr., was hired by Respondent on Septem-
ber 15, 1977, to be the manager of Respondent's store. He
was hired prior to the opening of the store. Seevers quit his
job effective on January 31, 1978.
William F. Warren is a registered pharmacist who owns
and operates a drug store known as Warren's Drugs, which
is located in the Moana Shopping Center in Reno. Warren
is one of the three partners in Respondent's business.
The findings of fact in this section are based upon the
testimony of each one of the witnesses named above and
upon the documentary evidence indicated.
B. Respondent's Operation Under Its First Manager
Dallas Seevers described a meeting which he had with
the partners on the mezzanine floor at the store prior to his
going to work for Respondent on September 15, 1977. In
addition to discussing Seevers' background, his capabili-
ties, and the duties of a manager, the business prospects of
the store were also discussed. Seevers testified during direct
examination by the counsel for the General Counsel,
"Generally, it was determined that it wouldn't be on a pay-
ing basis because it was a new business and it would take
considerable time for it to build up. I would say, 4 to 5
months to build the business before it was on a paying
basis. Also, the possibility that it might be a little bit longer
than that, as long as April, before we were on a paying
basis."
William Warren recalled that when Dallas Seevers was
hired by Respondent on September 15, 1977, the duties of
a manager and the abilities of Seevers were discussed. War-
ren specifically stated that the projected sales of Respon-
dent were not discussed with Seevers at that time. Warren
specifically denied that the partners told Seevers that it
would be 4 or 5 months before it became a paying business,
or that it might be as long as April before the store was on
a paying basis.
According to Warren, Seevers was shown a projection of
the store's business sometime after he was hired. Warren
identified Respondent Exhibit 18, which is entitled "Pro-
Forma P/L," as being a document which was presented to
a bank by the partners in order to secure a bank loan to
start the business. Warren said that the statement was pre-
pared by the three partners and Manuel Wedge, executive
director of The Washoe Association of Retarded Children.
Warren explained that the figures in the projection were
arrived at following discussions with liquor salesmen, li-
quor distributors, and Wedge, who at that time had operat-
ed a thrift shop at that location.
At the end of a year's time, the projection indicated on
the exhibit was for a minimum profit of $61,300. Warren
acknowledged that the projected figures had not turned out
to be accurate.
Seevers' working hours as the manager of the store were
from 7 a.m. to 7 p.m. He had the authority to hire and fire
employees, and he assigned duties to employees. He at-
tended management meetings with the owners of the store
"almost every month."
Seevers also had the responsibility for ordering merchan-
dise for the store, but he said by the first part of January
1978 all purchases were to be approved by the partners.
Seevers described the partners as being in the store for
varying minutes at different times. Prior to his quitting
work, the partners began rearranging and remodeling the
store. Seevers said that the partners physically participated
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in moving merchandise from one place to another in the
store and also did stocking. He also observed the partners
helping with the cleaning of the store.
While he was the manager of the store, Seevers said that
he received a salary in the amount of $833 or $835 every 15
days.
During cross-examination by the attorney for Respon-
dent, Seevers acknowledged that the partners had ex-
pressed their dissatisfaction with him. He said that they felt
that he had spent too much money, and that he also spent
too much time in his office, whereas the partners wanted
the manager to be on the floor. Seevers estimated that he
spent 50 to 60 percent of his working time in the office.
During direct examination by the counsel for the Gener-
al Counsel, Seevers gave the following reason for his quit-
ting work as the manager of Respondent's store. "Yes, I
was extremely tired, I was run-down, and I felt in my own
mind that I was a glorified clerk, that I was losing more
and more responsibility, and I would have even less and
less as time went on. I felt-and I believe I explained this
to the managers-that I didn't believe they needed a man
of my capability in that position." Seevers resigned effec-
tive January 31, 1978.
A financial statement covering Respondent's operations
from January I through April 30, 1978, was introduced
into evidence as Respondent Exhibit 20. Around February
1978, Rissone had instructed Respondent's accountant to
prepare a profit and loss statement. However, the docu-
ment shows that it was not transmitted by Pringle & Pol-
lard, certified public accountants, until June 20, 1978.
Thus, the document was not received by Respondent until
more than 3 months after the termination of the employees
on March 15, 1978. However, the financial statement does
reveal some lessening of Respondent's losses as of April 30,
1978, as compared to December 31, 1977. The financial
statement shows that Respondent's loss for the 4-month
period ending April 30, 1978, was $7,994.22.
When Respondent began its business, Rissone stated
that Respondent anticipated that the business would run at
a loss "not for more than a month or two." However, when
the profit and loss statement for the period from the open-
ing of the store on October 8 through December 31, 1977,
showed a loss of $26,940.66, Rissone said that he was con-
cerned at that time. (See G.C. Exh. 3.) As a result, some-
time in January or February 1978, Rissone became more
personally involved in the running of the business.
Rissone formed an opinion of Respondent's financial
picture on a monthly basis from his making payments on
his accounts payable and writing checks. Rissone ex-
plained, "I do from my general knowledge, just experience,
that I know when I pay the accounts payable on the 15th,
if I cannot pay them all, then I am definitely not running in
the black." Rissone further explained, later on, "I just do it
in my mind. I just know from paying in both businesses, by
the time I pay the bills and I look at the bank balance, and
I still have bills to pay, I can just turn over in my mind. If
you haven't paid all your bills for the month, you cannot
be in the black. You have got a problem."
Because the business was running at a loss in January,
Rissone transferred money from the bank loan fund to the
checking account. He said that some transfers were for
$30,000 and some for $10,000. He said that he transferred
the funds as needed and that the last such transfer from the
loan fund was for $5,000. However, he could not recall
whether that final transfer was in early February, late Feb-
ruary, or March 1978. Rissone testified, "Let me go back. I
maybe should have said that at the time there was no more
loan funds involved, then I can tell. When it is strictly
receipts coming in and payables."
Rissone said that he believed it was at the end of Janu-
ary after paying the month's bills that Respondent volun-
tarily put its business on a c.o.d. basis with the liquor com-
panies.
The findings of fact set forth above in this section are
based upon the credited testimony of Rissone, Seevers, and
Warren, except to the extent that the testimony of Seevers
is in conflict with the testimony of Warren. In choosing
between the two versions of the employment interview on
September 15, 1977. I find Warren's testimony on this
point and other matters to be reliable and credible. I be-
lieve that he testified truthfully and accurately. Moreover,
some support for Warren's version is found in the docu-
mentary evidence referred to above. The projection was for
a minimum profit for the store of $61,300 by the end of the
first year of operation. Additional support for Warren's
testimony is the reaction of the partners in January 1978 to
the discovery that the store had operated at a loss of almost
$27,000 as of December 31, 1977. If the partners had fully
expected to operate at a loss for 4 to 5 months, or even as
long as April 1978, then the steps the partners took begin-
ning in January 1978 are neither logical nor probable.
C. Holt Becomes the Manager of the Store
When Dallas Seevers was the manager of Respondent's
store, there were two assistant managers. Holt was the as-
sistant manager for liquor and Connie Gross was the assis-
tant manager for gifts-souvenirs.
About January 20, 1978, the three partners in
Respondent's business met with Holt in the office on the
mezzanine of the store. At that time Rissone asked Holt if
he would be interested in the managerial job since Seevers
was leaving. Rissone said that Holt replied that he would
be interested, but Holt had some reservations about doing
the administrative work. Rissone told Holt that they would
work with him and teach him those things.
According to Rissone, Holt felt confident that he could
handle the sales floor as far as the pricing of merchandise,
delegating responsibility to employees, and other manage-
rial duties. Rissone said that they offered Holt $450 semi-
monthly with another $25 in perhaps 3 months and still
another $25 after another 3-month interval. Thereafter,
Rissone said that they would give Holt one percent of the
net profits if they felt that Holt was capable of the manage-
rial job at that point. Rissone said that if they did not feel
Holt was capable, then they would find another manager.
With regard to Holt's duties, Rissone said that Holt was
given a copy, of the document which was introduced at the
trial as Respondent Exhibit 9. Rissone stated that he told
Holt, "this is what we felt he would have as the manager's
duties." Holt read the document in their presence. Rissone
said that he did not tell Holt at that time, or at any other
VIRGINIA STREET DISCOUNT LIQUORS 991
time, that any ' of those duties had been revoked.
Rissone said that Holt's being the manager of the store
was on a trial basis. Rissone explained, "I think we more or
less decided that he was on a trial basis, that he would have
to kind-of prove to us that he was capable, and give him a
chance. Like I say, we were willing to work along with him
because we felt that there is no better person to offer a
managerial job to than your assistant manager. He should
have first chance at it and that is what we did: we gave him
first chance."
During cross-examination by the attorney for Respon-
dent, Holt identified the document which the partners gave
him during that meeting and which he read in their pres-
ence. The document was introduced into evidence as Re-
spondent Exhibit 9. The document is 2-1/4 pages long and
is typewritten. The first page pertains to "Company Poli-
cies," and the next page and one quarter page pertains to
"Manager's Duties." The latter portion of that exhibit per-
taining to "Manager's Duties" is as follows:
MANAGER'S DUTIES
(I) Open & close store
(2) Check cash registers, store change, etc
(3) Do bank deposits
(4) Responsible to maintain stock at established lev-
el
PURCHASE ORDERS REQUIRED ON ALL
PURCHASES AND CREDITS
(4) Check merchandise coming in against invoices &
extend all invoices.
(5) Supervise & maintain a strong healthy customer-
employee relationship
(6) 60 percent or more of time spent on the floor
supervising.
(7) Responsible for dress code
(8) Reader board should be changed consistently &
frequently
(9) Take a monthly inventory of liquor--quarter.
whole store
(10) Overall store appearance-example, shelves
faced & clean
(II) Pricing of merchandise:
(a) Specials--items on ad.
(b) In store specials--items clearing out, or want
to turn over, etc.
(c) Regular shelve price at set markup.
(11 ) Hiring & Firing.
(12) Scheduling of employees hours, and assign
store duties to employees.
(13) Store Theft--internal & external
(14) Keep up:
(a) Lost sales book.
(b) Reorder book.
(15) Responsible for training of employees.
(16) All invoices are to be attached to their state-
ments in order for us to see and check purchase.
A copy of the PURCHASE ORDER should be at-
tached to its respective invoice.
(17) Store meetings-give sales for week and a
break down of sales. Discuss any problems which have
come up or any other information we should know.
Bring up any suggestions which you may have.
(18) Meet with employees to brief them on new poli-
cies, customer complaints, what we expect, etc.
(19) If want owners to see salesman make arrange-
ments for the next meeting.
Holt put the document in his desk which was located
upstairs on the mezzanine at the store. His desk was one of
three desks on the mezzanine. The partners had one desk
and Alice Wedge, the bookkeeper, had another desk there.
When Holt was an assistant manager, he did not have a
desk.
While Holt was working as an assistant manager, he
earned $3.50 an hour. His work shift was from noon to
closing time, which was 10 p.m. on some nights and 11
p.m. on other nights. Holt acknowledged that he told the
three partners at the meeting that he was not going to work
11 hours a day and 6 days a week, as Seevers had done,
because Holt was not going to receive the money which
Seevers had received. Holt said Rissone told him that if he
became the manager and if business required it, Holt
would put in more hours as needed. Holt wanted to work
the same work schedule he had been working because the)
were the same hours off that his lady friend had. In addi-
tion, he also wanted the same days off that his lady friend
had. Rissone told him that they thought they could work it
out. Holt said that when he became the manager, he
worked the hours which he had wanted to do, i.e., noon to
closing time.
With regard to salar) increases, Holt said that Rissone
told him at the meeting that in 3 or 4 months, if Holt did a
good job. Rissone would give Holt an additional $25 twice
a month. Holt also acknowledged that Rissone told him
that in 3 or 4 months following that, Rissone would raise
Holt once again by the same amount if Holt did "okay."
He said Rissone further told him that if business went ver,
well, Rissone would give Holt one percent of the net profits
after September.
Holt stated that Rissone told him that he wanted "a little
military discipline" in the store, and that he wanted Holt
down on the floor more than Seevers had been. He said
that Rissone told him that Rissone and Perini were going
to spend a little more time in the store.
The findings of fact in this section are based upon the
credited testimony given by Rissone, Warren, and Holt, as
well as documentary evidence.
D. Holt's Duties as the Muanager
1. Hiring and discharging employees
According to Holt, applicants for employment with Re-
spondent were coming into the store all of the time. Some-
times Holt gave applications to those persons, and some-
times Rissone or Wedge did so. Holt said that if Rissone or
Perini were not in the store, he told the applicants that the)
would have to talk with Rissone or Perini.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holt recalled that between 18 and 24 applicants for em-
ployment came in the store during the week after Seevers
left. Holt estimated that he was present in the store when
about 12 of those applicants were interviewed, but Holt did
not participate in the interviews. Instead, Holt said that he
worked on the daily work sheet or some of the books in the
office.
Holt stated that the partners did not tell him that he had
the authority to hire, fire, or discipline employees. Holt
said that he never hired any new employees or discharged
employees. Both Jackie Macdonald and Mary Fyten were
hired after he became the manager, and that they were
hired by Rissone and Perini.
Fyten said that she was interviewed by Rissone and Peri-
ni regarding her employment with Respondent. She said
that Holt was not present at the interview. However, Holt
testified that he was in the store.
Rissone said that Fyten and Macdonald were hired by
him and Perini. Rissone stated that both applicants came
in the store before noon, and that he and Perini were there
so they interviewed Fyten and Macdonald and hired them.
At first, Rissone said that Holt was not at the store, but
during cross-examination by the counsel for the General
Counsel, Rissone said that he was not sure whether he had
introduced Fyten to Holt in the store at the time she was
hired. Rissone said that if Holt was in the store, Holt was
not on his shift.
During examination by the counsel for the General
Counsel, Rissone acknowledged that he did not give Holt
the authority to hire employees. With regard to firing em-
ployees, Rissone said that he did not recall if he told Holt
that he had the authority to fire employees. Rissone ex-
plained that he assumed that since Holt took over the
manager's job, he would do the same as the previous man-
ager.
The foregoing findings of fact are based upon the testi-
mony of Holt, Fyten, and Rissone. I find that Holt was in
the store when Fyten was interviewed and hired because
Holt was more positive on that point and Rissone less cer-
tain on that point. I further find that Rissone did not tell
Holt that he had the authority to discharge employees be-
cause Holt was positive regarding that and Rissone could
not recall. Accordingly, I have accepted Holt's version on
these matters.
2. Disciplining employees
According to Holt, he never disciplined any employee.
However, he recommended that Bobby Messerall be disci-
plined. Holt explained that he felt that Messerall's attitude
and his work were not neat or "up to par," so he mentioned
that to Rissone. Rissone responded that he felt that Messe-
rall was doing a good job and was good to the customers,
so "let it go at that." Holt said that to his knowledge
Messerall was never warned by Rissone.
Rissone said during examination by the counsel for the
General Counsel that he did not tell Holt that Holt had the
authority to discipline employees.
The foregoing findings of fact are based upon the credit-
ed testimony of Holt and Rissone.
3. Granting raises
Holt said that the partners did not tell him that he had
the authority to grant raises to employees, but on one occa-
sion he said that he did recommend that Clare Kohlenber-
ger be given a 25-cent-an-hour raise because Holt thought
that she was doing a good job and she had taken on the
additional responsibility of closing the store at night. Holt
said that he made this recommendation to Rissone and
Perini, and that Rissone refused to accept his recommen-
dation. Holt said that to his knowledge Kohlenberger was
not given a raise.
Rissone said that Holt could have granted raises to the
employees, but not without first getting the approval of one
of the partners.
The foregoing findings of fact are based upon the testi-
mony of Holt and Rissone. I find from both of their testi-
monies that Holt could not grant raises without approval
of one of the partners.
4. Granting time off from work
During cross-examination by the attorney for Respon-
dent, Holt acknowledged that Rissone had told him that he
could grant time off to the employees when business was
slow. While he was the manager, he did grant time off to
employees approximately ten times. Holt said that he did
so on his own without checking with anyone else.
Messerall stated that while Holt was manager, Holt al-
lowed Messerall to leave work early on a couple of occa-
sions.
The foregoing findings are based upon the credited testi-
mony of Holt and Messerall.
5. Selecting an assistant manager
According to Holt, Gross was an assistant manager both
before and after Holt became the manager. He said that
upon his becoming manager, he asked Rissone and Perini,
"Shall we make Connie Gross the assistant manager?"
Holt said that they replied, "For the time being, yes."
Holt said that Gross had the same authority as he had
and that her duties were, "To run the store when I wasn't
around." Holt said that Gross worked on the day shift until
about 6 p.m. He said no one was in charge at the store at
night on his 2 days off.
The foregoing findings of fact are based upon Holt's tes-
timony.
6. Work schedules and assignments
When Holt was informed that he was to be the manager
of the store, Perini told Holt to go home and work out a
schedule to see if he could do so, and then give the sched-
ule to Perini in the morning. Holt said that he did prepare
such a schedule, but that both Rissone and Perini worked
on the schedule for 3 days and made some changes before
the schedule was posted. He recalled at the trial that the
two partners had changed his own days off from work
from 1-1/2 days, which Holt had scheduled, to 2 days off.
Holt said that his name appeared on the work schedule
VIRGINIA STREET DISCOUNT LIQUORS 993
along with those of the other employees.
With regard to shift schedules. Rissone said that they
were prepared by Holt, and that Rissone and Perini also
made out a few schedules. Rissone stated, "I think prob-
ably the schedule we finally arrived at was probably a com-
bination of both of our efforts. I may have made some
changes because I thought that maybe a lunch period
wasn't covered. I would make, maybe, a schedule that
wasn't satisfactory to a person wanting a certain day off, so
we would keep juggling days around." However, Rissone
said that Holt did participate in making the schedules, and
that the schedule was posted on the board after it was
made out.
During cross-examination by the attorney for Respon-
dent, Holt acknowledged that when he was manager, he
prepared a document which he entitled "Company Policies
and Procedures." He posted that document in the store for
the employees to see. A copy of the seven-page handwrit-
ten document was introduced into evidence as Respondent
Exhibit 10(a) through (g).
Respondent Exhibit 10(b) is entitled, "The Customer." It
lists four policies to follow with regard to customers. Re-
spondent Exhibit IO(c) is entitled, "Daily Procedures." It
provides for eight things to be done on a daily basis at the
opening of the store. There are four additional tasks to be
performed on Mondays, Wednesdays, and Fridays, and
still four other additional tasks for Sundays. Respondent
Exhibit 10(g) is substantially similar to Respondent Exhibit
10(c) except for a few words. The latter is addressed, "To
All Employees," and it has the notation after the lists of
tasks to be performed, "Remember the Customer Comes
First. "
Respondent Exhibits 10(d) and 10(f) appear to go to-
gether. Those documents list 10 separate tasks to be per-
formed with regard to the cash registers at the closing of
the store. Respondent Exhibit 10(e) is entitled, "Closing
Procedure," and it lists 15 tasks which are to be performed
prior to closing and at the time of the closing of the store.
Holt asserted that the employees carried out their job
assignments on their own initiative about 90 percent of the
time, but once in a while on occasion he would tell them
what to do. He gave as examples of his assignment of work
to employees as dusting shelves, cleaning windows, clean-
ing the beer box, sweeping the floor, and stocking mer-
chandise. Holt said that during his 6 hours that he spent on
the floor that he did the same kind of things which he
described as assigning to employees. He said that whenever
he needed to do so he told certain employees to do certain
jobs.
According to Rissone, when Holt was on duty as the
manager, Holt was supposed to assign work to employees.
The foregoing findings of fact are based upon the testi-
mony of Holt and Rissone, as well as documentary evi-
dence.
7. Timecards of employees
While Holt was manager, he took the employees' time-
cards from the bulletin board. Holt explained that he
checked to see that the hours reported on the timecards
were the actual hours worked by the employees. Holt did
not sign or initial the timecards. He said that the employees
were paid their wages based upon the timecards.
With regard to timecards, Rissone said that Holt put the
timecards on the board and also checked the timecards for
correctness. After Holt totaled the hours, he gave them to
Wedge for payroll purposes. Rissone said that all employ-
ees were hourly rated, but that Holt did not fill out a time-
card for himself since Holt was on a salary.
The foregoing findings of fact are based upon the credit-
ed testimony of Holt and Rissone.
8. Personnel files
Holt stated that he, Wedge, and "anyone who was in the
office" had access to the unlocked filing cabinet where the
employees' personnel files were maintained. Holt said that
those files contained the employees' application and W-2
form.
According to Rissone, the partners, Holt, and Wedge
had access to the personnel files of employees.
The foregoing findings of fact are based upon the credit-
ed testimony of Holt and Rissone.
9. Management meetings
Prior to the time that Holt became manager of the store.
the three partners met with Manager Seevers every Mon-
day night. After Holt became manager, he did not attend
any such meetings.
The foregoing findings of fact are based upon the credit-
ed testimony of Holt.
10. Bank deposits
Both Holt and Gross made bank deposits for Respon-
dent. Holt stated that the deposits varied from $600 to
$3,000. Holt stated that on one occasion Kohlenberger
made a night deposit. Kohlenberger said that she took the
money bag, which had been zipped closed and locked, and
dropped it in the slot at the bank. She said that she did not
make out bank deposit slips.
Rissone said that Wedge and Holt handled the bank de-
posits, and that it was Holt's responsibility to take the de-
posit to the bank.
The foregoing findings of fact are based upon the testi-
mony of Holt, Kohlenberger, and Rissone. In accord with
Holt's testimony, I find that Gross and Kohlenberger had
also made bank deposits.
II. Keys to the store
Holt stated that he had keys to the front door, back
door, master register, and to the inner compartments of
both safes. He said that Connie Gross, Mary Fyten, and
Clare Kohlenberger had keys to the store. He explained
that both Gross and Fyten opened the store, and that Koh-
lenberger closed the store on Holt's days off. In addition,
he said that Gross, as assistant manager, had keys to the
master register. and that both Gross and Wedge had a key
to the inner compartment of the large safe. Wedge also had
a key to the inner compartment of the other safe.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holt, Gross, and Wedge knew the combinations to both
the large and small safes at the store.
Kohlenberger said that she had keys to the front door of
the store so that she could close the store on the two nights
during the week when Holt had his days off. She said that
during the first week of her employment she worked from
11 a.m. to 8 p.m. After the first or second week of her
employment she worked from I to 10 p.m.
Rissone said that Holt had a master set of keys to the
store. That set included keys to the front door of the store,
the cash register key, and the beer cooler key. In addition,
he said that Holt had keys to Respondent's safes.
Rissone stated that Respondent had two safes at the
store. The large safe had two doors which could be opened
by a combination lock and the two other doors which were
opened by a key lock, and then still an inner safe which
had another combination lock. Rissone said that Holt
knew the combinations and had keys to that safe. Money
was kept in the first compartments, but nothing was kept in
the inner compartment of the large safe at that time. The
small safe at the store was described as being a vertical safe
with a top door which was opened by a combination lock,
and a bottom section which was opened by a key lock.
Rissone said that change was kept in the upper compart-
ment, and that money was dropped directly to the bottom
compartment through a slot. In addition to Holt, Wedge
also had a key to the bottom compartment of the small
safe.
Rissone said that Gross had a key to the main cash regis-
ter to "Z" out that register.
The foregoing findings of fact are based upon the credit-
ed testimony of Holt, Kohlenberger, and Rissone.
12. Purchases
Rissone acknowledged that Holt did not have any pur-
chasing power for Respondent, except that Holt ordered
milk. Rissone said that he took over the purchasing of li-
quor in February.
13. Time spent by partners at the store
While Holt was manager, Holt said that Rissone and
Perini were in the store nearly 4 hours a day, and on some
days they spent more time in the store. According to Holt,
they were in the store from 8 a.m. to noon, when Holt
arrived. Holt said that when the partners were in the store,
they occasionally waited on customers and once or twice
they stocked shelves, but usually they worked in the office.
After Seevers was no longer manager, Messerall said
that the partners were at the store almost every day that
Messerall worked. He said that the partners came in about
9 or 10 a.m. and stayed until the afternoon.
According to Rissone, he spent some time at the store
during the morning hours prior to lunch and sometimes a
half hour or hour after lunch. He estimated that he spent
3-1/2 to 4 hours a day at the store at the most. Rissone
estimated that Perini spent from 5 to 5-1/2 hours during
the mornings at the store. Rissone said that if the partners
were late in leaving the store, they would be leaving as Holt
was coming in the store. Rissone said that sometimes they
were there for a few minutes while Holt was on duty as
manager.
Warren explained that he usually spent very little time at
Respondent's store because he would have to bring in a
registered pharmacist to be present at Warren's Drug Store
in order to be away from his own store. Warren's Drugs
closes at 7 p.m., and while Holt was manager, Warren
spent more time during the evening at Respondent's store.
He estimated that he was there almost every day on the
average of 1/2 hour to i hour.
The foregoing findings of fact are based upon the credit-
ed testimony given by Holt, Messerall, Rissone, and War-
ren.
14. Respondent's letter regarding Holt's duties
A letter dated April 3, 1978, from attorney Robert V.
Magor to Supervisor Bruce Friend of Region 32 of the
Board was introduced into evidence as General Counsel
Exhibit 4. After examining that letter, Rissone testified that
the letter sets forth the responsibility which Holt had as
manager before he was terminated. In pertinent part, the
letter from Respondent's attorney to Region 32 states:
Lou Holt was floor manager at the time of his ter-
mination. When he filed for unemployment, he gave
his position as assistant manager. He was salaried, re-
ceiving $225.00 a week, whereas the other employees
were hourly rated. His shift was from 1:00 p.m. to
10:00 p.m. at a time generally when the owners were
not present at the store. At that time, he had complete
charge of the store. He scheduled the employees and
assigned them their work. He possessed keys to the
store. He did the bank deposits for the store. He
checked the registers out. He also had the combina-
tion to the safe. He had access to the personnel files
and records of the employees. He also prepared and
posted Company policies and procedures, copies of
which are enclosed.
I have asked both you and Ed Kaplan to investigate
whether the Union's alleged showing of interest was
tainted in any manner by the activities of Holt, who is
obviously a supervisor as defined by the Act. I am
again making this request.
The foregoing findings of fact are based upon the testi-
mony of Rissone and documentary evidence.
E. Emplqoyees of the Store
Respondent had the same complement of employees
from the time the store opened through March 15, 1978,
except for Fyten and Macdonald who were hired at the
beginning of February 1978. Between the time of the hiring
of Fyten and Macdonald and the time of the termination
of the employees on March 15, 1978, no other employees
were hired by Respondent. Rissone stated that Respondent
was not advertising for employees during that period of
time.
Between March 10 and 15, 1978, Rissone said that Re-
spondent employed the following persons: Lou Holt, Mary
Fyten, Connie Gross, Clare Kohlenberger, Bobby Messe-
VIRGINIA STREET DISCOUNT LIQUORS 995
rail, Jackie Macdonald and Alice Wedge.
The payroll records of persons who had been employed
by Respondent up to the time of the trial in this proceeding
were introduced into evidence as General Counsel Exhibit
2(a) through (m).
The foregoing findings of fact in this section are based
upon the credited testimony of Rissone and documentary
evidence.
F. ULnio Oranizationual Activities
Business agent Meldcrs said that union organizational
activity among the employees of Respondent was initiated
through Bobby Messerall during the early part of February
1978. Messerall was the one to whom Melders gave union
authorization cards. Melders said that there were approxi-
mately five union organizational meetings which were held
and attended by employees of Respondent. He said that
Louis Holt did not attend any of those meetings.
Messerall identified his own card. which was introduced
into evidence as General Counsel Exhibit 7. Messerall said
that he signed the card on the date indicated thereon.
which is February 17. 1978. Messerall signed the union
card at the snack bar in the Palace Club, and he observed
Melders writing on the back of the card at the time. Messe-
rall was not on duty at the time that he signed his card. On
the back of Messerall's union card is written "Snack Bar,
Palace Club, 4:45 p.m., 2,,"17/78, Art Melders. (Bobby
Messerall)."
Business agent Melders identified the notations on the
back of General Counsel Exhibits 7 through 12 as being in
his handwriting. He explained that the notations concerned
the date, time, and from whom the union authorization
card was received. Melders said that he made those nota-
tions at the date and time shown. During cross-examina-
tion by the attorney for Respondent, Melders explained the
absence of a regional office date stamp on the cards bs
stating that the Union had not submitted the original cards
to the Regional Office, but instead the Union had submit-
ted xerox copies of General Counsel Exhibits 7 through 12
in support of the Union's petition in Case 32-RC-294.
Messerall said that he talked with Holt about the Union,
and that he told Holt that it would be a "good thing" for
Holt to sign a card. He said that Holt replied that he was in
the middle between the employees and management and
that he would "hold off." Messerall said that Holt did not
sign a card when he talked with Holt. Messerall said that
he attended union organizational meetings of the employ-
ees in late February and early March 1978. but that Holt
did not attend any of the union organizational meetings
prior to March 15, 1978.
Messerall also identified General Counsel Exhibit 9 as
being the union authorization card signed by Jackie Mac-
donald. whom he knew personally. Messerall stated Mac-
donald signed the card in his presence on or about the date
indicated thereon, which is March 10, 1978. Messerall
identified one of the two handwritten notes on the back of
her card as being a note which he had written. It states
"Signed in Store at 2:45 p.m.. 3/10/'78. B. Messerall." Un-
derneath that note is a second one which states, "Rec'd.
from Bobby Messerall 3/11/78 5:10 p.m.. Palace Club
Coffee Shop."
The parties stipulated that Jackie Macdonald stated the
following in her affidavit given before field examiner Ka-
plan of Region 32 of the Board on April 6. 1978:
I have been shown a copy of Retail Clerks Union
Local 1434 authorization card bearing my signature.
and swear that is my signature, which I signed freely
after first reading the card on 3 10- 78. gave the card
back to coworker Bobby Messerall at work.
I have been a member of Retail Clerks Union at
various times past and already knew that by signing
this card, employees at Virginia Street Discount Li-
quors, hereinafter called VSD. could be represented
by the Union.
Prior to signing my union card on 3-10-78, I dis-
cussed the pro's and con's of having the Union repre-
sent VSD's other employees. I recall only one brief
conversation with Lou Holt of VSD about the Union.
This was in approximately early March of 1978, about
a week or so before I signed the union card. We were
alone on the sales floor. I asked him how he thought
the employees would go on the Union, and he said he
didn't know, but that it would be nice for health &
welfare, and retirement plan.
I said I didn't think the Union's retirement plan was
worth a damn, and the same for their health & wel-
fare, and that I didn't think they even had a retirement
plan in the area.
That is all I recall, except that I don't think either of
us indicated that we thought we might or were think-
ing of signing an)' union card. There was no mention
of this at all and Holt asked me no more about Union
activities nor did he and I discuss union activities at
any other time while I was employed at VSD.
On the first day of the trial, Holt was asked during cross-
examination by the attorney for Respondent, "Did you dis-
cuss the Union with an)' other employees, besides Alice
Wedge?" Holt replied, "No."
However, on the second day of the trial. when he was
called as a witness by Respondent, Holt acknowledged that
he could have had a conversation with Jackie Macdonald
before she signed the union card. He said that he could not
recall where it took place.
Holt stated that he asked Macuonald why she was bi-
ased against the Union. She told Holt that she had had
trouble with the Union before, and that she just did not
trust the Union. Holt acknowledged that he might have
mentioned to Macdonald that there were good benefits in
the Union. He also said that he could have mentioned to
her that she might get a good health and welfare plan in the
Union.
Holt said that he was the manager of the store at the
time that he spoke with Macdonald, but he did not know
whether the conversation was before Macdonald signed a
union card since he did not know when she signed the
card. Holt said that he knew that Macdonald, "had already
been a Union member once, as I had been myself."
Holt denied that he solicited any employee signatures on
any union authorization cards. He also denied that he inti-
midated or coerced any employee into signing a card. Holt
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that prior to March 15, 1978, he did not attend any
union meetings. Holt further denied that he gave a union
card to Macdonald.
Messerall identified General Counsel Exhibit 8 as being
a union authorization card signed in his presence by Con-
nie Gross, whom he knew personally. Messerall stated that
Gross signed the union card on or about the date indicated
thereon, which is February 22, 1978. Messerall said that
Gross signed her card in the Coffee Shop at the Palace
Club in the presence of Melders and Messerall. On the
back of the card is written "2/22/78, Palace Coffee Shop,
5:30 p.m., Art Melders, wit: Bobby Messerall."
Kohlenberger identified her signature on the union au-
thorization card which was introduced into evidence as
General Counsel Exhibit I . She said that she signed the
card on or about the date indicated thereon, which is Feb-
ruary 17, 1978. She said that she signed the card at her
house and that business agent Art Melders and Bobby
Messerall were present. She said that Melders was the one
who gave the card to her.
Prior to signing the card, Kohlenberger said that she had
no conversation with Holt about the Union.
On the back of the card is written, "Clare's home 1007
N. Sierra #1, 5:05 p.m. 2/17/78 Wit: Bobby Messerall
(Clare Kohlenberger) Art Melders."
Kohlenberger said that she attended two or three union
organizational meetings in February 1978, and that Holt
was not present at those meetings.
Fyten identified her signature on a union authorization
card which was introduced into evidence as General Coun-
sel Exhibit 12. She said that she signed the card on or
about the date indicated thereon, which is March 9, 1978.
She said that she had obtained the card from Bobby
Messerall about a week before she signed it. She said that
she was in the store at the time. According to Fyten,
Messerall told her that he would like to have her sign the
card, and he told her that it was for the benefit of employ-
ees of Respondent.
Fyten testified that she signed the union card at her
home on March 9, 1978, and that nobody was present
when she signed the card at her home.
During direct examination by the counsel for the Gener-
al Counsel, Fyten was asked whether she had had any con-
versations with Holt about the Union before Fyten signed
the card. She testified, "None whatsoever." However, she
said that she did have a conversation with Holt after she
had signed the card, and that she was the one who initiated
that conversation. She also denied that Holt had threat-
ened her in any way into signing the card.
During cross-examination by the attorney for Respon-
dent, Fyten was confronted with the writing on the back of
the card. She said that the writing on the back of the card
was not on it when she signed it, and she did not know who
wrote it on there. However, she said that the writing was
false because she had given her card to Holt.
The notations on the back of General Counsel Exhibit
12 are, "Mary gave me this card in store 3-9-78 at 4:30
p.m. B. Messerall. Rec'd from Bobby, Casson Apts. #74.
3/9/78, 5:50 p.m. Art Melders."
During cross-examination by the attorney for Respon-
dent, Fyten adhered to her earlier testimony that she had
not talked to Holt before she signed the card. The follow-
ing took place:
Q. You talked to Lou Holt before you signed the
card, didn't you?
A. No sir.
Q. You gave a statement to Ed Kaplan of the Na-
tional Labor Relations Board on March 22, 1978; isn't
that a fact?
A. That is correct.
Q. Have you read this statement before you took
the witness stand?
A. Yes sir.
Q. Well, didn't you have a conversation about 3:00
p.m. on March 9, 1978, upstairs, with the bookkeeper
Alice Wedge being present?
A. Yes.
Q. And Lou Holt was present.
A. Yes.
Q. And didn't you in your statement say you had
gotten a card a few days earlier from a coworker Barb-
ara-Bobby Messerall?
A. Yes.
Q. And didn't you, at that time, ask Holt and
Wedge what they thought about going Union?
A. Before I went to the store-
Q. The question is-
A. Did I talk to Holt? Yes.
Q. Did Wedge say she wasn't sure as she was the
bosses' confidential secretary?
A. That is correct.
Q. And did Holt say. "I think it is a good idea,
Mary"?
A. Yes sir.
Q. And is it after that that you signed the card?
A. No sir.
Q. Isn't that the way your statement reads?
A. No. it doesn't.
Q. Doesn't it read as follows:
"Since I already decided to sign, I did sign the card
at home and gave it back to Holt."
A. May I say that I had my signed card in my purse
at the day I went to the store. It was already signed, in
my purse, before I talked to Alice and Lou, because
directly after I-our conversation, I handed it to Lou
Holt in the front of the store.
Q. That is not the way your affidavit reads.
Did you tell Mr. Kaplan to correct it in any respect?
It reads as follows:
"Since I already decided to sign, I did sign the card
at home and gave it back to Holt."
A. That is what I did. I signed this at home and had
it in my purse.
Q. But you first asked Lou Holt what he thought
about going Union: isn't that a fact?
A. Not until after I had already signed my card.
According to Fyten, she did not show her union card to
Holt at the time of their conversation. Instead, she said
that about a half hour later, she gave the card to Holt, who
was downstairs on the floor. She did not recall saying,
"Jackie will sign, too," She said that Messerall was working
VIRGINIA STREET DISCOUNT LIQUORS 997
on the floor about 10 feet away. She said that there was no
reason for her giving the card to Holt.
According to Messerall, Mary Fyten handed her union
card, which she had already signed, to Holt and Holt gave
the card to Messerall. Messerall stated that as Fyten hand-
ed the card to Holt, she said, "Give this to Bob," and that
she also stated, "Jackie will sign one too." Messerall said
that they were standing about 2 feet apart at the time, and
that when Holt received Fyten's card, he passed it right on
to Messerall.
Holt said that he had never discussed the Union with
Fyten before she handed a union card to him in the store.
Holt said that he had not given the card to Fyten. Holt did
not recall whether Fyten said, "Jackie will sign too." Holt
said that he was the manager of the store at the time that
Fyten gave the card to him. He described Messerall as
being at the checkstand, and Holt said that he was at the
front door about 20 feet away from Messerall.
At first, Fyten testified during direct examination by the
counsel for the General Counsel that Holt was present at a
union meeting which was held about a week before Fyten
was terminated. She later explained that she realized her
error during a 5-minute recess at the trial, and she then
testified that Holt was not present at the union meeting.
She said that the meeting took place at the Palace Casino.
and that four employees attended the meeting. She identi-
fied those present as being Clare, Bob, Connie, and herself.
Fyten said that she did tell Holt that she was going to the
union meeting, and that Holt knew that all of the employ-
ees whom Fyten mentioned at the trial were going to that
meeting. During cross-examination by the attorney for Re-
spondent, the following took place:
Q. How did Lou Holt know that they were going to
the union meeting?
A. Because I told him.
Q. Did you tell him who else was going?
A. No, I didn't.
Q. Did you tell him who else attended?
A. No, I didn't.
Q. What did he say when you told him that you
were going to the union meeting?
A. He didn't say anything.
Q. How did you happen to tell him, Lou Holt, that
you were going to the union meeting?
A. I don't know why I told him.
Q. He was the manager of the store, wasn't he?
A. Yes sir.
Q. Did he tell you not to go to the meeting?
A. No sir.
Q. He didn't prevent you or try to stop you from
going to any union meetings?
A. No sir.
Q. Did you go to any other meetings that you told
Mr. Holt about?
A. No sir.
Q. You say you were never threatened by Mr. Holt?
A. Never.
Q. Let me ask you this question: did Mr. Holt en-
courage you to go to union meetings?
A. No.
On February 2, 1978, business agent Art Melders came
into Respondent's store and told Holt that Melders was
interested in organizing the employees. Holt said that he
was on duty at the time as manager of the store, and that
employees were in the store at the time, but they were not
involved in the conversation.
Holt stated that Melders told him that he was trying to
get people to sign cards. Holt told Melders that he could
not get involved. However, Holt asked Melders to let Holt
know how things went, and Melders told Holt that he
would do so. Holt said that Melders did keep him advised.
About March 2, 1978, Bobby Messerall asked Holt at
work if Holt agreed that they could all use a union at the
store. Holt was the store manager at the time. Holt said
that he replied to Messerall to the effect that Holt agreed
with him, but Holt wanted to wait until the Circus Circus
opened across the street at which time Holt believed that
the business would likely double or triple. Holt said that he
did not tell the partners about his conversation with Messe-
rall.
On March 8, 1978. Holt had another conversation with
Art Melders. That conversation took place at noontime
while Holt was on his way to the bank to make a deposit
for the store. Melders was in his car at the time.
Holt stated that Melders informed him that Messerall
had been offered Holt's job. Holt said that he got pretty
angry at hearing that second-hand, but he thanked Melders
for letting him know. Holt said that he also asked Melders
how the union organizing effort was going at the store, and
that Melders replied that he had "a couple of card-hold-
ers."
On March 9, 1978, Holt signed a union authorization
card which was introduced into evidence as General Coun-
sel Exhibit 10. The handwritten note on the back of that
exhibit states: "3/9/78 11:20 a.m. Lou's home 1652 Ord-
way Art Melders (Lou Holt)."
During cross-examination by the attorney for Respon-
dent, Holt was confronted with his affidavit which he gave
on March 22. 1978, before field examiner Kaplan. Holt
had stated, "Melders told me that by signing the card I
would have job security and that employees being repre-
sented by the Union would then be able to vote for this
right, to representation." Holt said that the statement
should say "to or for representation" because that is what
he recalled was said.
During his cross-examination by the attorney for Re-
spondent, Holt was asked: "Did he tell you the card was
being used for the purpose of having a National Labor
Relations Board election?" Holt replied. "Yes."
Prior to the time that Holt signed a union card, Holt said
that he had discussed the Union with Wedge in conversa-
tions in the office while he was on duty as the manager and
while she was the bookkeeper. He testified that they dis-
cussed the "pros and cons of having the Union in the
store."
After Holt had signed the union card, Holt told Messe-
rall and Wedge that Holt had signed a card for the Union.
He said that he was at work when he told them.
Holt said that he did not tell the partners that he had
signed a union card. He also stated that he did not tell the
partners that Fyten had handed him a card, or that he and
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wedge had discussed the pros and cons of a union.
Melders identified General Counsel Exhibit 5 as being
the letter from him to Ronald Rissone. Melders said that
he mailed the letter by certified mail on or about March 10.
1978. He identified General Counsel Exhibit 13 as being
the return receipt card which he received from the Postal
Service. General Counsel Exhibit 13 has an entry under
"date of delivery" as being "3- 13-78." In pertinent part
General Counsel Exhibit 5 states as follows:
This is to advise that the majority of your employees
in an appropriate bargaining unit at your store located
at 432 North Virginia Street, Reno, Nevada have des-
ignated the Retail Clerks Union Local #1434 AFL
CIO as the exclusive bargaining representative of such
employees, for the purpose of collective bargaining in
respect to rates of pay, wages, hours and other terms
and conditions of employment, to become effective
immediately.
The bargaining unit consists of all regular full-time
and part-time employees that are employed at your
premises located at 432 North Virginia Street, Reno.
Nevada.
We stand ready to prove our majority status by sub-
mitting signed authorization cards to a mutually se-
lected impartial person. May we suggest a meeting be
held for such a card check on Monday March 20, 1978
at a mutually agreeable time and location.
We would appreciate a prompt reply.
Holt identified his signature on the Postal Service return
receipt card, which was introduced into evidence as Gener-
al Counsel Exhibit 13. He said that he signed that card on
the date indicated thereon. He recalled that he received the
envelope about I p.m that day. He did not know the con-
tents of the envelope, but he said that the printing on the
envelope indicated that it was from the Retail Clerks
Union.
Holt put the envelope on Rissone's desk. Holt did not
open it. He worked until 10 p.m. that night, and he noticed
that the envelope was still unopened on Rissone's desk.
along with the rest of the mail.
Rissone said that he saw the letter from the Union some-
time between I and 3:00 during the afternoon of Tuesday,
March 14, 1978.
Melders stated that no response was received from Re-
spondent with regard to Melders' letter.
About March 10, 1978, when Melders mailed General
Counsel Exhibit 5 to Respondent, Melders also mailed a
representation petition to Region 32 of the Board in Oak-
land, California. The Union's petition was docketed on
March 13, 1978, as Case 32 RC-294. A copy of that peti-
tion was introduced into evidence as Respondent Exhibit
I.
During cross-examination by the attorney for Respon-
dent, Melders testified that he did not recall ever being
informed at any time by Board Agent Ed Kaplan that Re-
spondent was prepared to proceed to an election on the
Union's petition. Instead, Melders said that the Union de-
termined that it could not have a fair election. Melders
identified Respondent Exhibit 2 as being a copy of a letter
which he had received. The letter is addressed to the law
firm representing Respondent and is from the Regional Di-
rector of Region 32 of the Board. It is dated April 25, 1978,
and is in reference to the petition in Case 32-RC-294. In
pertinent part. the letter states, "This is to advise you that
the petition in the above matter has, with my approval,
been withdrawn without prejudice."
The foregoing findings of fact in this section are based
on the testimony of Fyten, Holt, Kohlenberger. Melders,
Messerall, and Rissone, as well as documentary evidence
and a stipulation by the parties regarding Macdonald's af-
fidavit.
As can be readily seen from the foregoing, the circum-
stances surrounding the signing of Fyten's card are not free
from doubt. However, she persisted at the trial in her ver-
sion that she had signed her card before talking with Holt
about the Union. At first blush, her affidavit seems to indi-
cate to the contrary, but her explanation at the trial was
that she had already signed the card and had it in her
purse. Arguments can be made as to the interpretation to
be placed on her affidavit, and arguments can be made
about the logic of her actions that afternoon of March 9,
1978. However, I will accept her testimony given at the
trial which she persistently and steadfastly adhered to.
With regard to the conversation between Holt and Mac-
donald. I have credited Holt on other matters and I will
accept his version here also. Macdonald did not testify in
person, but the parties stipulated to what she had said in an
earlier affidavit.
G. Cash Register Overages and Shortage
By examining the daily cash sheets, Rissone became
aware of certain overages and a shortage in Respondent's
cash registers. He identified them as follows: For Wednes-
day. March 1. 1978, an overage of $655.09; for Monday,
March 6. 1978. an overage of $138.16; for Tuesday, March
7, 1978, a shortage of $252.74, and for Wednesday, March
8. 1978. an overage of $201.45.
Rissone said that he had a conversation with Holt after
the last overage was discovered. He said Holt came up-
stairs and told him, "What the hell is going on here? I have
all of my employees upset about this cash overage and
shortage." Rissone said that Holt implied that there was a
possibility that the cash registers could be miscalculating
the sales tax or malfunctioning. Rissone stated that he told
Holt that he was not knowledgeable enough to check them
out, but that he would call the company that sold the ma-
chines to Respondent and have that company check out
the machines to see if they were adding and subtracting
and calculating the sales tax properly. Rissone further testi-
fied:
Well, he was upset and I was upset, of course, with
these shortages and overages, and he told me that this
is part of doing business.
I said, "Do you mean to tell me that a $250 overage
or shortage is part of doing business? I can understand
an error of a reasonable amount, but I don't feel that
$250 is reasonable."
So he was upset over the-the employees were up-
set, which I can understand and he was upset because
VIRGINIA STREET DISCOUNT LIQUORS 999
they were upset, and I was upset because of the short-
age.
Rissone said that he called the cash register company
and that the earliest a representative could come to the
store was on Monday, March 13, 1978. He said that a rep-
resentative from the cash register company arrived at the
store about 10:30 or 11 a.m. Rissone said that the represen-
tative checked each cash register and talked with the em-
ployees. Rissone said that the representative told him that
there was nothing wrong with the cash registers.
A typed memorandum dated March 8, 1978, and ad-
dressed to Respondent's employees with regard to "Store
Policy" was introduced into evidence as Respondent Ex-
hibit 7. The memorandum was prepared by Rissone on
March 8, 1978. After employees signed the memorandum.
it was posted on the bulletin board. In pertinent part, the
memorandum states:
EMPLOYEE OPENING THE SORE IN THE MORNING AND)
(LOSING AT Nl(iHT WILL FOI.L.OW lHIS PRO( EDL REI
rHE MONEY IN EACH REGISIER IS O BE ('CO.NTID: EA('II
REGISTER MIUST TOTAL $200.00.
IF THERE ARE ANY L TIRF SHORIAGES IN FiHE RE(GISIERS
EMPLOYEE WILL BE RESPONSIBI F AND WILl HAV'I 10o PY IIIE
SHORTAGE. WHEN YOU LEAVE REGISTER OCK I1'
ANY ITEMS HAT HAVE TO BE PR('HASED FOR IE SIO()RE
MUST HAVE PRIOR APPROVAL. IHL Pt RCIASE MUST BE A('(O'M-
PANIED BY A PAID) R'ECIPT. AND ON TILE BACK Ot Eie R(t IPrT
YOU MUST INI)ICATE WHAT HAS BEEN PR(iILASI)
AFTER REAI)ING MEMO SIGN YOIUR NAME AND RE It RN 10
OFFICE.
A memorandum dated March 9, 1978, to Respondent's
employees with regard to "Operation of Cash Registers"
was introduced into evidence as Respondent Exhibit 8. It
was prepared by Rissone on March 9, 1978. After the em-
ployees signed the memorandum, it was also posted on the
bulletin board. In pertinent part, the memorandum states:
A REPRESENTATIVE FROM BES (ASH REGISI ER ('OMPANY WI I1
BE HERE MONDAY. MARC'H 13, BETWFEN 9 AND 10 AM
AIl. EMPLOYEE'S ARE TO BE IN THE STORE AT THAT TIME IF
YOU ARE NOT SCHEDULED TO WORK AT THAT TIME, YOI ll.l.
BE PAID FOR THAI' lOUR
WE WIl.. BE INSTRtICTED ON TE OPERATION OF TE RE(;IS-
TERS AFTER READING MEMO. PI FASE SIGN YOUR NAME
Holt acknowledged during cross-examination by the at-
torney for Respondent that Rissone had told him com-
mencing about the first of March 1978 that the overages
and shortage in the cash register had to be straightened
out. Holt said that he passed this on to the employees and
told them to be very careful. He said that the shortage or
overages were checked by himself, Wedge, or one of the
owners if they were there.
Holt recalled passing around the documents which were
introduced as Respondent Exhibits 7 and 8. He said that
he obtained a couple of the signatures from Respondent's
employees, and he identified the signatures on those docu-
ments as being the signatures of Respondent's employees
as of the dates the notices bear.
While Holt and Wedge were discussing the shortages
and overages in the cash registers. Wedge suggested that
Holt telephone the cash register company. Holt called the
cash register company and asked for a representative to
come to the store.
Later that same day. Holt asked Rissone what was going
on and why the cash register man was turned awav at the
door when they were having this problem with the cash
registers. Rissone told Holt not to worry about it and that
he had already taken care of it. Rissone told Holt that he
and Perini had already sent the tapes to the cash register
company and that they had taken care of it. Rissone also
informed Holt that on Monday morning there would be a
cash register man there to give them "a school on the ma-
chines."
Holt said that a cash register representative did give a
lesson regarding the general working of the machines to
him and the employees. He estimated that the lesson lasted
for about 15 to 20 minutes. Then the representative called
Holt over to one side and asked the other employees to
leave so that he could talk with Holt in private and give
Holt "a private additional schooling as to how to clear the
registers and set them."
Holt asked the representative why there were the overag-
es and shortages in the cash registers, and "He said there
was no possible way that the machine could be making
that kind of an error." The representative could not give
out any explanation.
According to Holt. the partners did not tell him that the
employees were going to be fired if the cash register prob-
lem was not straightened out.
The findings of fact in this section are based upon the
credited testimony of Rissone and Holt, as well as docu-
mentarN evidence.
H. Events Preceding the Hiring of Costa as Manager
On February I, 1978. Costa left his employment at the
Gold Dust West Casino in Reno, Nevada. Thereafter, on
February 28. 1978. Costawas interviewed at Respondent's
store by Rissone and Perini. At that time, Costa filled out
an application for employment with Respondent. That
document was introduced into evidence as Respondent Ex-
hibit 17 and is dated February 28, 1978. Costa was ap-
plying for the position of store manager. and he was seek-
ing a salary of $1,200 a month. Rissone and Perini told
Costa that theN did not feel that they could pay him the
type of wages which he was seeking. Therefore, he was not
hired by Respondent at that time. Costa estimated that the
interview lasted for 10 minutes. Subsequently, C'osta went
to Hawaii for awhile and was next contacted by Respon-
dent on Saturday, March 11, 1978.
During the time that Holt was manager, Messerall said
that Rissone asked Messerall if he would like to be manag-
er and asked him if he would like to take on more responsi-
bilities in running the place. Messerall stated that he told
Rissone that he had had responsibilities all of his life, that
he was retired, and that he did not need it.
On March 9, 1978. Holt had a brief conversation with
Rissone. Holt told Rissone that he felt that Rissone did not
think that he was doing a good job. Rissone replied that
Holt was not working the right hours. Holt told him to
change the hours, and Rissone said he would do so.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kohlenberger recalled during cross-examination by the
attorney for Respondent that Holt had told her about 2
weeks prior to March 15, 1978, that Rissone and the other
partners had told him that he was not doing a very good
job as manager. She also recalled that Holt told her that
Messerall cared more about the store, would do a better
job, and was doing a better job.
About 10 o'clock on Saturday, March 11, 1978, Rissone
telephoned Costa and informed him that the partners
would like to meet with Costa on the following day and
discuss with Costa his possible employment.
On Sunday, March 12, 1978, Costa met with Rissone,
Perini, and Warren. The meeting took place about 9 or
9:30 a.m. at the Seven Diamonds Cleaners in Reno. During
direct examination by the attorney for Respondent, Costa
testified:
Q. I want you to tell us what was said and who said
it.
A. All right, at that point they stated they were hav-
ing problems at the store and they felt that they were
going to change management. We discussed salary,
came to an agreement between ourselves, and that was
it. I told them that I could not possibly go to work for
at least a week, due to the fact that I was in the pro-
cess of moving my mother.
Q. You discussed problems they were having at the
store. Did they tell you what problems they were hav-
ing?
A. Yes, shortages in large amounts.
Q. Shortages where?
A. In the cash registers.
Q. What else did they say?
A. Well, that was about the extent of it, actually.
Q. Did they discuss the manager they had at the
store at that time?
A. Yes, they said that he would take off three days
in a row without checking the store, or walking in the
store to see how it was functioning or being handled,
just apparently very unconcerned with it.
Q. Was anything further said?
A. No sir.
Q. And they discussed your salary?
A. Correct.
Q. Did you reach some agreement as to salary?
A. Yes, we did.
Q. And were you offered the job at that time?
A. Yes, I was.
Q. Were you told when to report?
A. No sir. I told them that I would contact them,
upon finishing the movement of my mother and so
forth, that I would contact them and let them know
when I was finished.
Q. Where were you moving your mother?
A. From Oregon to here.
During cross-examination by the counsel for the General
Counsel, Costa said that the agreement reached on his sal-
ary was at the figure of $900 a month. He further acknowl-
edged that no date was set at that time for him to begin
working for Respondent, and that he told the partners that
it would probably be a few days before he could go to work
for them.
Warren and Rissone also testified with regard to the
meeting with Costa on Sunday, March 12, 1978, and their
accounts are not in conflict with Costa's more detailed ac-
count.
During cross-examination by the counsel for the General
Counsel Warren said that it was on March 12, 1978, that
the partners decided to hire a new manager and a new
crew. Warren testified, "the decision was being built up to
all the time, that we had to do something. On March 12, we
felt we found a manager capable of hopefully coming in, in
fairness to him, with new people, and turn the tide of the
business."
The foregoing findings of fact in this section are based
upon the credited testimony of Costa, Holt, Kohlenberger,
Messerall, Rissone, and Warren.
I. The Terminations on March 15, 1978
Six witnesses testified with regard to what was said when
Respondent terminated its employees shortly after 8 p.m.
on Wednesday, March 15, 1978. In view of the importance
and significance of this event to the issues in this case, I
will set forth the versions of each one of the witnesses.
Rissone's version of the meeting with the employees
about 8:15 p.m. on March 15, 1978, was that he informed
the employees that after reviewing Respondent's profit and
loss statement, he was not happy with their losses and that
they could not continue to function with as great a loss as
this. Kissone stated that he also said that they were not
happy with the shortages and overages which had occurred
in the cash registers starting March I, and that it had cre-
ated ill feelings between the employees and the employees,
and between the employees and the Employer. He stated
that he also told them that they had actually hired another
manager as of March 12, and that Rissone felt that it was
fair to the new manager that all of them be terminated that
night.
Rissone stated that when he mentioned the cash register
overages and shortages, Messerall said that was a defama-
tion of character. Rissone replied that he was not accusing
anybody, but all he knew was that the cash registers were
over and short. At that point, Rissone said, Warren inter-
jected that out of the $27,000, $9,000 of it was his, and that
he did not feel that he could lose that kind of money.
Rissone further stated that Messerall told them that,
"This situation is under control of the National Labor Re-
lations Board." Rissone said that he replied, "All I know is
I have a letter."
Rissone further recalled that Messerall said that he
would like to have the reason for the termination in writ-
ing, and that Rissone replied that he did not have to give a
reason in writing. Rissone said that he passed out the pay-
checks, and that the keys were turned in.
Warren stated that Rissone told the employees about the
loss of approximately $27,000, and that Rissone also said
that they felt there were "ill feelings between the employees
themselves and between the employees and the employer,
due especially, to the recent shortages, namely, the $600
and the $200 and $250 that developed shortly before this
period of time." Warren said that Messerall interjected at
VIRGINIA STREET DISCOUNT LIQUORS 1001
that point that he considered that statement to be "a defa-
mation of character or something of that order."
Warren said that he told the employees that, on an indi-
vidual basis, his individual loss of $9,000 on the financial
statement had no relationship to a defamation of charac-
ter. Then, Warren testified, that Messerall said, "You know
this is in the hand of the National Labor Relations Board."
Warren stated that Rissone's reply was, "I received a let-
ter."
Warren said that the checks were distributed and that
the keys were returned by the employees. Warren said that
Kohlenberger came up and said, "I guess you fellows think
you are doing the right thing."
Warren also said that Fyten came up to him, shook his
hand, and wished him the best of luck. Warren said, "I
responded to her that I hope so, or else I would be out in
the street with her in a short time."
Holt's version is that Rissone told the employees that, as
of January 31, they had lost $27,000, and, as of February
20, they had hired a new manager who would start to work
on March 20. He said Rissone told them that because of
the bad feelings between the employees and the Employer,
"We are going to make a clean sweep and let everybody
go.
During cross-examination by the attorney for Respon-
dent, Holt said that he believed that Rissone told them that
the problem with the cash registers had been creating ill
feeling between the employees and the Employer. He
thought that Rissone also said that a change was necessary.
Holt also recalled Warren saying that one-third of the loss
was $9,000, speaking for himself.
Holt recalled that Messerall asked Rissone why they
were being terminated and that Rissone replied, "I don't
have to give a reason for termination." He said that Messe-
rail replied, "Well, this is in the hands of the NLRB." He
said Rissone then stated, "Well, I got a letter to that effect,
but I still don't have to give a reason for termination."
During his direct examination by the counsel for the
General Counsel, Messerall testified that Rissone told the
employees, "We are working at a loss here in the store and
we have hard feelings amongst the employees, and so we
hired a new manager a couple of weeks ago, and we have
decided to terminate all of you."
During the cross-examination of Messerall by the attor-
ney for Respondent, Messerall testified that Rissone said,
"We are unhappy with the profit and loss picture. We have
lost $26,000 since we opened." Messerall recalled that War-
ren said something with regard to the loss. "This is my
money.
Messerall said he was not sure whether it was at this
meeting or at other meetings that Rissone told them that
they had a lot of problems with the cash register. Messerall
also stated that Rissone may have told them, "This has
created ill feelings between the employees and the employ-
ees, and between the employees and the employer. I think
the change is necessary."
During cross-examination by the attorney for Respon-
dent, Messerall acknowledged that in his statement which
Messeral gave to the Union on March 16, 1978, Messerall
stated, "The Employer stated that due to the fact that the
business was in the red to the tune of $27,000, they found it
necessary to terminate our employment, giving the reason
they wanted a whole new crew."
During his direct examination by the counsel for the
General Counsel, Messerall stated that he told Rissone at
the meeting that he would like to have a reason in writing
for this termination. He said that Rissone replied that he
did not have to give Messerall a reason in writing. Messe-
rall testified that he then stated, "You know, this is in the
hands of the National Labor Relations board." Messerall
testified that Rissone replied, "We have a letter to that
effect." At that point Messerall again asked for a reason in
writing and Rissone again told him that they did not have
to give him one. Messerall testified that Rissone told them
that the checks were made out and that the checks were
passed out to the employees.
During cross-examination by the attorney for Respon-
dent, Messerall acknowledged that he had given an affida-
vit to field examiner Kaplan in which Messerall had stated,
"Rissone said 'We don't have to give you any reason.' and
I said, 'Apparently, you have never heard of the National
Labor Relations Board.'" At the trial, Messerall acknowl-
edged that he had said "words to that effect." and that his
statement in his affidavit was true.
During her direct examination by the counsel for the
General Counsel, Kohlenberger testified with regard to the
March 15, 1978, meeting, among other things, that Rissone
"said he felt there were bad feelings between the employers
and employees .... " Subsequently, during her cross-ex-
amination by the attorney for Respondent concerning the
March 15, 1978, meeting, the following took place.
Q. Did Mr. Rissone, also at that meeting, say that
they' had had some problems with the cash registers?
A. I don't believe so.
Q. Did he state that it created some ill feelings be-
tween employees and employees, and employees and
the employer?
A. Yes, he did say that.
However, during re-direct examination by the counsel
for the General Counsel, the following took place:
Q. (By Ms. Benjamin) Referring to the meeting that
took place on the evening of March 15, you testified
that Mr. Rissone said there were bad feelings between
employees and employees.
A. Yes.
Q. Did Mr. Rissone say as well, what caused the
bad feelings between employees and employees?
A. At that meeting?
Q. Yes.
A. No, I don't think he did.
After she had returned her keys to the front door to the
owners that evening, Kohlenberger remarked on her way
out. "Maybe you think you are doing the right thing." Ac-
cording to Kohlenberger, neither Rissone nor Warren re-
sponded to her remark.
In Fyten's version, Rissone told the employees at the
March 15, 1978, meeting that due to a loss of $27,000 accu-
mulated up until January 31, Rissone thought it was neces-
sary to terminate all of the employees. Rissone told them
that there had been ill feelings between the Employer and
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees. She testified during cross-examination that
Rissone might have said that the ill feelings were due to the
shortages and overages in the cash register, but she said
that she did not remember.
She also recalled that Rissone told the employees that he
had hired a new manager as of February 20, and that he
thought it to be in the best interest of the store to hire a
new crew.
Fyten said that there was some conversation between
Rissone and Messerall, but she did not recall what was
said.
During cross-examination by the attorney for Respon-
dent, Fyten acknowledged that there was no mention in
her statement given on March 16, 1978, to the Union about
Rissone saying that there had been ill feelings between the
Employer and the employees.
As can be seen from the foregoing, the versions are not
significantly different. However. I find that the most accu-
rate and most complete version was given by Rissone, and
I base the findings of fact in this section on his credited
testimony. I further find that the reference to "ill feelings"
had reference to the cash register overages and shortage,
and not to union organizational activities.
J. Events After the Terminations
Between 9 and 10 o'clock during the evening of Wednes-
day, March 15, 1978, Costa received a telephone call from
Rissone. Rissone told him that he would like to meet with
Costa in the store the next morning if that was possible and
if Costa had completed his business. Costa replied affirma-
tively and said that he would be there.
During the morning of Thursday, March 16, 1978, Costa
met with Rissone and Perini at the store. They informed
Costa that they had terminated the employees, that Costa
would have to start work in the store, that he would have to
hire a crew, and take over the management of the store.
Costa stated that there was no mention of the letter from
the Union during their conversation. Instead, Costa stated
that Rissone and Perini told him that the employees had
been terminated "due to shortages in the cash." He re-
called that they told him that one cash register had been
$600 short, and on another day a cash register had been
$400 short.
Costa said that he was told that the three owners of the
store would work with him. Costa said that he went to
work that day as the manager of Respondent's store.
It was about 2 or 3 days after Costa became the manager
that the first new employee was hired. Costa recalled that
he had hired three or four new employees at $3 an hour by
the time that he testified at the trial on July 7, 1978. He
recalled hiring Guy Scott, his brother, who became assis-
tant manager of the store. He also recalled hiring David
Mclntire and Jerry Reikeman.
A classified advertisement which appeared in the "Help
Wanted" column of the Reno Evening Gazette for Friday,
March 17, 1978, was introduced into evidence as General
Counsel Exhibit 6. Rissone said that similar advertisements
had been run in the newspaper at various intervals, and
that the advertisement was still running at the time of the
trial. Rissone recalled that he telephoned his advertising
agency probably on March 16, 1978, regarding placing this
particular ad in the newspaper. In pertinent part the adver-
tisement states:
LIQUOR & GIFTS
SALES CLERKS
Immediate openings for
dependable individuals
Apply in person
VIRGINIA STREET
DISCOUNT LIQUORS
432 No. Virginia St.
Within 3 days after he became manager of the store,
Costa received a copy of the "Company Policies and
Manager's Duties." which was introduced into evidence as
Respondent Exhibit 9 at the trial. Costa said that he read
that document and understood it. He also stated that he
was never told by the partners that he did not have the
duties stated therein.
However, during cross-examination by the counsel for
the General Counsel, Costa acknowledged that the "list
meant nothing to me." Costa testified in explanation,
"Upon me taking the management of the store, no, because
I set my own standards and my own way. If they felt it was
wrong then they would tell me and would change it them-
selves or tell me otherwise."
At the time of the hearing, Respondent had 10 employ-
ees in addition to Manager Costa. According to C'osta, he
was in the store at one time or another 7 days a week. He
estimated that he averaged being at the store between 10
and 12 hours a day. He closed the store at midnight on 2
nights a week, and Assistant Manager Scott generally
closed the store 5 nights a week. At the time of the trial, the
store was open from 8 a.m. to 12 midnight.
Costa said that when he first became manager, the part-
ners were at the store day and night, but after 2 to 3 weeks,
one or two of the partners would come in at 9 or 9:30 in the
mornings and leave about noon or I p.m. He said that
sometimes the partners would come back in the store in the
afternoon or evening, and sometimes they would not.
While Costa has a desk on the mezzanine at the store, he
said that he spent from 6 to 8 hours a day on the average
on the sales floor. In addition to waiting on customers ev-
ery day, Costa said that he checked in orders, moved cases
to the storeroom, stocked cases on the floor, stocked
shelves, swept the floors, scrubbed the floors, and handled
trash.
Costa said that he had hired and terminated employees,
as well as granted time off to employees, without clearance
from the partners. Costa said that he made out the work
schedule for the employees' working hours, work shifts,
and days off. Either Costa or Scott assigns duties to the
employees.
Costa said that he made deposits for Respondent with
the bank teller, and that he put cash in each register and
counted the money at the end of the shift, and put a new
drawer in the register for the next employee beginning a
shift. At closing time, either Costa or Assistant Manager
Scott removed the tapes from the cash registers.
VIRGINIA STREET DISCOUNT LIQUORS 1003
With regard to making purchases for Respondent. Costa
said that he purchased some souvenirs if salesmen came in
the store. Costa said that he had done so on numerous
occasions, but the largest amount that he purchased was
less than $150.
Costa said that he. the three partners. and Alice Wedge
had access to the employees' personnel files.
With regard to the possession of keys. Costa said that he
had keys to all of the locks at the store, and he said that
Assistant Manager Scott did also except for his having onl\
one key to a two-key padlock on the downstairs liquor
storeroom. Costa said that he had keys to the safe and
knew the combination also. He further stated that Fyten
had keys to the front door. the beer cooler, and one key to
the two-key lock to the storeroom. He said that Ften
opened the store when either he or Scott did not.
The findings of fact set forth above in this section are
based upon the credited testimony of Costa and Rissone,
as well as documentary evidence.
K. Employees' Statements to the Union and Statemenrv on
Their Lnemployment Claims
Following the termination of the employees on March
15, 1978, business agent Melders and Michael Vespoli of
the Retail Clerks International Association met with cer-
tain of Respondent's employees at the Gold and Silver
Restaurant on West 4th Street in Reno. In addition to the
two union representatives, present were: Mary Fyten.
Louis Holt, Clare Kohlenberger, and Alice Wedge. Meld-
ers asked the employees to fill out statements that evening
and relate the facts as they had occurred. Melders in-
formed them that it was likely that the Union would file
charges with the Board. and that Board agents would later
interview them again and take other statements.
At 9 a.m. on March 16, 1978, Holt, Messerall. Gross.
Kohlenberger, and Fyten met with business agent Melders
in his office. At that time Melders advised the discharged
employees to file for unemployment compensation. The
employees asked him what they should put down. and
asked if they should put down that they were fired for
union activities. Melders told the employees to put down
on their claims the reasons that the Employer had given to
them for firing them.
At the hearing, Melders explained that his reason for
giving them that advice was his belief that putting on the
unemployment claims that an employee was fired for
union activity, "usually holds up their unemployment for
an extended period of time."
On March 17, 1978. Holt filed a claim for unemploy-
ment compensation with the Employment Security Depart-
ment of the State of Nevada. A copy of his unemployment
claim was introduced into evidence as Respondent Exhibit
11. Item 7 on that document states. "In the following space
explain in detail why you are no longer working for this
last employer." Holt wrote following the foregoing. "My
Employer called a meeting March 15 8 p.m. and terminat-
ed all employees. When asked for a reason he (Mr. Ris-
sone) stated he didn't need to give that. He was making a
clean sweep."
On March 16, 1978. Bobby Messerall filed a claim with
the Employment Security Department of the State of Ne-
vada. A copy of that claim for unemployment compensa-
tion was introduced into evidence as Respondent Exhibit
6. Following item 7 Messerall wrote on the form. "Fired
because they claimed they were losing money and they
needed all new employees."
A copy of the unemployment claim form signed by Koh-
lenherger and dated March 16. 1978. was introduced into
evidence as Respondent Exhibit 14. With regard to item 7
on that claim form. Kohlenberger wrote. "I was fired for
the reason that there was a great loss of money to the C'om-
pan3 and they felt they needed a new crew."
The foregoing findings of fact in this section are based
upon the credited testimony of Holt, Kohlenberger. Meld-
ers. and Messerall. as well as documentary evidence.
1.. Offers of Reinstatement and Backpat,
Messerall identified a letter dated March 28, 1978, from
Respondent regarding an offer of reinstatement.
Respondent's letter was introduced into evidence as Re-
spondent Exhibit 4. In pertinent part. it provides.
You are hereby offered immediate reinstatement to
your former position at Virginia Street Discount Li-
quors without prejudice to your seniority or other
rights or privileges. Please report on or before April 5.
1978. This offer is not to be construed as an admission
that the Company has engaged in any unfair labor
practices.
Messerall identified a letter to him dated June I. 1978.
from Respondent. which was introduced into evidence as
Respondent Exhibit 5. In pertinent part, it provides:
Enclosed herewith is our check in the gross amount of
$219.00. less the standard deductions, in full settle-
ment of the alleged backpay due you.
This payment is not to be construed as an admission
that the company engaged in any unfair labor prac-
tices.
Messerall said that he did receive a check from Respon-
dent in the gross amount of $219 less deductions with that
letter.
The parties stipulated that a letter identical in content to
Respondent Exhibit 4 was sent on March 28. 1978, to Con-
nie Gross, Alice Wedge. and Jacqueline Macdonald.
The parties further stipulated that a letter identical in
content to Respondent Exhibit 5 was sent to Gross.
Wedge, and Macdonald, except for the fact that the check
enclosed with each letter to those individuals was different.
The parties further stipulated that the letters and checks
were received by those individuals and that the checks
were cashed by them. All three checks for those individuals
were dated Mao 5. 1978, and were drawn on Respondent's
account. The amount of backpay for Gross was computed
to be $174.75, and with deductions the amount was
$144.88. The amount of backpay for Wedge was computed
to be $189, and with deductions the amount was $156.47.
The amount of backpay for Macdonald was computed to
be $336. and with deductions the amount was $249.87.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that Connie Gross returned to
work for the Employer on April 4, 1978, and that Alice
Wedge returned to work for Respondent on April 10, 1978.
The parties further stipulated that Jackie Macdonald did
not return to work for Respondent.
Following her termination by Respondent, Fyten said
that she returned to the store the following week and twice
asked for her job back. According to her, the three partners
told her, "They couldn't do it."
She received a letter from Respondent in which she was
offered immediate reinstatement to her former position.
That letter was introduced into evidence as Respondent
Exhibit 15. It is dated March 28, 1978. It is similar in con-
tent to the other reinstatement letters previously referred to
and introduced into evidence at the trial. Following her
receipt of Respondent Exhibit 15, Fyten said that she did
return to work for Respondent around March 30, 1978.
In addition, Fyten said that she received a letter from
Respondent dated June , 1978, and the check enclosed
therein. The letter was introduced into evidence as Respon-
dent Exhibit 16. It is also similar in content to the other
letters previously described and introduced into evidence
pertaining to the transmittal of backpay checks to the em-
ployees.
Fyten said that she did not file an unemployment claim.
When Fyten returned to work at Respondent's store, she
observed that there were four or five new employees work-
ing there. She said that two of those new employees were
still working for Respondent at the time that she testified at
the trial on July 6, 1978. She identified one of them as
being Mike Scott and the other one only by his first name,
David. In addition, Fyten said that Art Costa was still the
manager of the store at the time of the hearing.
In Fyten's opinion, she did not think that the store was
"any busier" at the time that she returned to work around
March 30, 1978.
Kohlenberger identified Respondent Exhibits 12 and 13
as letters which she had received from Respondent. Re-
spondent Exhibit 12 is dated March 2, 1978, and is identi-
cal in content to Respondent Exhibit 4 noted above. Re-
spondent Exhibit 13 is dated June 1, 1978, and is identical
in content to Respondent Exhibit 5 noted above, except for
the gross backpay figure, which is given as $225.65. She
acknowledged that she had received the check, and that
she had returned to work about March 30, 1978.
Holt stated that following his termination on March 15,
1978, he was never offered reinstatement to work by Re-
spondent.
The attorney for Respondent represented for the record
at the trial that he had worked out the backpay with field
examiner Kaplan before the checks were mailed to the in-
dividuals involved. He stated that no question was raised
by the Regional Office at that time that the employees were
not being made whole for their backpay.
Counsel for the General Counsel staed that she had no
knowledge that any question was raised as to that.
A copy of a letter dated March 29, 1978, from Robert V.
Magor, attorney for Repondent, to field examiner Kaplan
of Region 32 of the Board was introduced into evidence as
Respondent Exhibit 19. In pertinent part, it states:
Enclosed herewith are copies of letters dated March
28, 1978 from Mr. Ronald Rissone offering reinstate-
ment to the following individuals: Clare Ann Kohlen-
berger, Alice M. Wedge, Jacqueline H. Macdonald,
Mary Louise Fyten, Connie Rae Gross and Bobby
Louis Messerall.
Under the circumstances, as I suggested to you yes-
terday, the Union should be requested to withdraw the
charge and the representation petition should be pro-
cessed.
When Messerall returned to work for Respondent on
April 5 or 6, 1978, he said that he saw about six new em-
ployees. He identified one of them as being Arthur Costa,
the new manager. With regard to the others, he identified
three only by their first names as being Mike, Debbie, and
David. Messerall said that there were a couple of other new
employees, but he did not give their names and said that
they took a leave of absence within a week or two of his
return to work. Messerall stated that the others were still at
the store when Messerall was fired the second time.
In Messerall's opinion, business was "no heavier" when
he returned to work for Respondent than it had been prior
to his termination on March 15, 1978.
When Kohlenberger returned to work for Respondent
about March 30, 1978, she said that she observed five or six
new employees at the store. She identified Art Costa, the
manager, Mike, the assistant manager, and two employees,
Desi and David. She did not give the last names of the
latter three persons, and she could not recall the names of
the other employees. She said that one of them quit before
she was terminated, but the rest remained at the store.
The foregoing findings of fact in this section are based
upon the credited testimony of Fyten, Holt, Kohlenberger,
and Messerall, as well as documentary evidence and stipu-
lations by the parties.
M. Conclusions
The counsel for the General Counsel argues, among
other things, that, "Strong evidence of Respondent's un-
lawful motive is the timing of the discharges." She points to
the fact that the letter from the Union, asserting that the
Union represented a majority of Respondent's employees,
came to the attention of Respondent on March 14, 1978,
and the next day, Respondent terminated its employees.
She further argues that what she views to be the "precipi-
tous nature" of the discharges is additional evidence rais-
ing the inference of an unlawful motive.
By terminating the employees without first obtaining re-
placements for them, the counsel for the General Counsel
points out that the partners, who had other businesses, had
to run the store until replacements could be hired and
trained. She urges, "Clearer evidence of the strength of
Respondent's anti-union animus would be difficult to ob-
tain." Moreover, she asserts that Respondent's action in
terminating the employees without first hiring replace-
ments for them was a departure from a past practice in-
volving Kohlenberger, whom Respondent at one time had
planned to terminate, but did not terminate at that earlier
time.
VIRGINIA STREET DISCOUNT LIQUORS 1005
With regard to the reasons given by Respondent for the
termination of the employees, the counsel for the General
Counsel argues, among other things, that the reasons given
were pretextual since the employees could not be held re-
sponsible for the loss of almost $27,000 as of December 31,
1977, which was more than 2-1/2 months prior to the ter-
mination of the employees, and which was due to over-
stocking of the store. She further points out that Respon-
dent later rehired the employees and paid them backpay,
which had the effect of paying wages to two crews of em-
ployees. Concerning the two overages and one shortage,
the counsel for the General Counsel asserts that "the fail-
ure to even warn these unsuspecting employees of the time
indicates that Respondent seized on these three incidents
as another afterthought justification for discharges actually
motivated by their union activity." She further asserts that
Respondent made no attempt to explain the "paradox"
created by its reinstatement of the employees 2 weeks later.
In addition, the counsel for the General Counsel urges
that the pretextual nature of the reasons given by Respon-
dent for the terminations is further shown by the fact that
Costa was not informed at the time that he was hired that
the partners planned to terminate all of the employees. She
also argues, "The single fact that is probably most reveal-
ing of the sham nature of Respondent's asserted defense is
that all employees were required to attend a training ses-
sion conducted by a representative from the cash register
company concerning the operation of the cash registers on
March 13-just two days before they were all fired."
For a more complete presentation of the arguments ad-
vanced by the counsel for the General Counsel with regard
to the terminations, see pages 12 through 22 of her brief.
The attorney for Respondent argues, among other
things, that the decision to terminate Holt and to hire Cos-
ta as his replacement was made on March 12, 1978, prior to
the time that Respondent became aware of any union ac-
tivity at the store. The attorney further points out that even
2 weeks earlier Holt had told Kohlenberger that the part-
ners had informed him that he was not doing a good job as
manager and that Messerall would do a better job. The
attorney further points out that business agent Melders had
earlier advised Holt on March 3, 1978, that Respondent
had offered Holt's job to Messerall.
With regard to the timing of the terminations, the attor-
ney for Respondent argues that after the partners had de-
cided to hire Costa on March 12, 1978, that "they decided
in fairness to a new manager to terminate all employees so
that Costa could commence with a new crew in an effort to
turn the tide of business." The attorney further urges that
the form letter from the Union had nothing to do with the
terminations, and instead that "the Union got caught in the
crossfire of the events."
Concerning the reasons given by Respondent for the ter-
minations, the attorney points to the loss of almost $27,000
as of December 31, 1977, and the cash register overages
and shortage during the period of March 1 through 8, 1978,
which Respondent asserts had created ill feelings among
the employees and ill feelings between the employees and
their employer. The attorney for Respondent states that the
employees were told these reasons by Rissone and of
Respondent's desire to "start fresh with a new crew."
With regard to Respondent's motivation, the attorney
for Respondent urges, "There is not the slightest suggestion
in this record that Respondent had any union animus."
Concerning the offers of reinstatement to the employees,
except Holt, and payment of backpay to them, the attorney
for Respondent asserts that Respondent was preserving the
status quo ante after the Union had filed the unfair labor
practice charge and the representation petition.
For a more complete presentation of the arguments ad-
vanced by the attorney for Respondent with regard to the
terminations, see pages 10 through 14 of his brief.
Concerning the issues raised by Respondent's termina-
tion of its employees, the counsel for the General Counsel
cites, among other cases which have also been read, the
court's holding in Shattuck Denn Mining Corporation firon
King Branch] v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966).
Administrative Law Judge Henry L. Jalette has observed:
"Shattuck Denn Mining Corp., supra, is an oft-cited case in
support of a finding of unlawful motivation where the find-
ing must depend on inferences drawn from circumstantial
evidence. It is noteworthy, however, that the inference of
unlawful motive in that case was drawn from circumstan-
tial evidence entirely different from the evidence in this
case." Weldstar Company, 223 NLRB 1385 at 1386 (1976).
A similar observation, as was made in Weldstar. would be
applicable here.
In discussing the issue of the employer's motive for ter-
minating an employee in the Shattuck Denn Mining case,
the court enumerated the "surrounding facts" which were
present in that case and which tended to reinforce the in-
ference drawn by the trial examiner that Respondent
therein had an unlawful motive. To place the court's hold-
ing in the context in which it was made, the entire para-
graph follows:
Actual motive, a state of mind, being the question, it
is seldom that direct evidence will be available that is
not also self-serving. In such cases, the self-serving
declaration is not conclusive; the trier of fact may in-
fer motive from the total circumstances proved. Other-
wise no person accused of unlawful motive who took
the stand and testified to a lawful motive could be
brought to book. Nor is the trier of fact-here the trial
examiner-required to be any more naif than is a
judge." If he finds that the stated motive for a dis-
charge is false, he certainly can infer that there is an-
other motive. More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.
Here was a new union, just certified, and quite busy in
advancing grievances; here was an officer of that
union who was also a shop steward and an active
member of the grievance committee; here was such an
employee presenting a grievance, on his own behalf,
against his supervisor. The inference that his discharge
,"Judges are apt to he nalf. simple-minded men. and the, need
something of Mephistopheles." I Holmes. L.aw and Court. in Speeches
102 11913). "Credulir is not esteemed a paramount SIrtue of he
judicial mind" (Huston. J.. in Rkink , Jdiulan. 1895. 4 Idaho 394.
401, 39 P. Ill. 1113)
----
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was motivated by a desire to discourage such union
activity is by no means without basis. It seems to us a
reasonable one to draw. We conclude that the findings
are supported by substantial evidence on the record
considered as a whole.
With the foregoing in mind, it is appropriate to turn to
an examination of the reasons given by Respondent for the
terminations and to an examination of the surrounding
facts. The reasons given to the employees by Respondent
during the brief meeting on the night of March 15, 1978,
may be summarized into three categories: (1) the losses
incurred in the operation of the business, (2) the then-re-
cent overages and shortage in the cash registers, and (3) the
hiring of a new manager for the store.
As to the first reason given by Respondent, it is undis-
puted that Respondent had, in fact, suffered a loss of al-
most $27,000 as of December 31, 1977. It will be remem-
bered that Respondent had commenced business about
October 8, 1977, and, therefore, the loss of almost $27,000
was incurred during approximately the first 3 months that
the store was open. The counsel for the General Counsel
correctly points out that there is a 2- month interval of time
between the date of that loss and the date of the termina-
tions on March 15, 1978.
However, based upon Rissone's testimony, it is not illog-
ical or improbable that Rissone could form an opinion as
to whether Respondent's business was continuing to lose
money after December 31, 1977. Rissone had requested a
profit and loss statement from Respondent's accoulting
firm around February 1978. but the evidence shows that
the accounting firm did not transmit such a statement to
Respondent until June 20, 1978.
Nevertheless, Rissone gave a simple explanation of how
he could tell whether the Company was continuing to lose
money by his knowledge gained monthly from paying
Respondent's bills. In order to pay Respondent's current
bills, Rissone knew how much or how little there was in
Respondent's checking account. He also knew how much
was necessary to be transferred from Respondent's bank
loan fund to the checking account in order to pay those
current bills. Rissone explained that such transfers of
money were made until the loan fund was completely ex-
hausted.
One might argue that such a system used by Rissone is
too simplified and would not possess the accuracy of an
accountant's financial statement. However, it must not be
overlooked that Respondent's operation is a relatively
small business headed by three active partners who also
have experience in operating other businesses. One could
also argue that Rissone's knowledge gained from paying
current bills with current receipts would not allow for a
build-up of inventory, which while paid for out of current
receipts, might not be sold until much later. However, not
to be overlooked is the fact that Respondent had volun-
tarily gone on a c.o.d. basis with regard to its purchases of
liquor at the end of January 1978 after paying that month's
bills. Thus, although Respondent did not receive a finan-
cial statement for the period after December 31, 1977, until
sometime after June 20, 1978, Rissone has given a credible
explanation of how earlier he formed an opinion of
Respondent's current financial situation from his personal
involvement in paying Respondent's monthly bills.
A second reason given by Respondent to the employees
pertained to the overages and shortage of money in the
cash registers. Those occurrences were recent as of March
15, 1978, since they had occurred between March I and 8,
1978. That the overages and shortage were a matter of seri-
ous concern to Respondent is demonstrated by Respon-
dent Exhibits 7 and 8, as well as the conversation between
Rissone and Holt. and between Holt and the employees.
Note that in Respondent Exhibit 7, which is dated March
8. 1978, that the employees are warned, "If there are any
future shortages in the registers, employee will be responsi-
ble and will have to pay the shortage. When you leave
register-lock it!" The employees were requested to sign
that memorandum, as well as Respondent Exhibit 8, which
is dated March 9, 1978. and pertains to the instruction to
be given to employees regarding the operation of the cash
registers.
Holt acknowledged that Rissone had told him com-
mencing about the first of March 1978 that the overages
and shortage in the cash registers had to be straightened
out, and that Holt had passed that on to the employees and
told them to be careful. While it is clear that Respondent
did not threaten the employees with discharge because of
the overages and shortage, it cannot be fairly said that the
employees were unaware of Respondent's concern.
With regard to the training of employees in the opera-
tion of the cash register. Respondent Exhibit 8 is dated
March 9, 1978. In that memo Respondent announced that
instruction would be given to the employees by a represen-
tative from the cash register company on the following
Monday, March 13, 1978. Thus, the training session was
set up for the employees prior to the time that Respondent
hired Costa as the new manager, which was on Sunday,
March 12, 1978. It will be remembered that during the
earlier interview of Costa that Costa had sought a higher
salary figure than Respondent was willing to pay. There-
fore, Respondent did not know until Sunday, March 12,
1978, that Costa would accept the lower salary amount
which Respondent offered. In any event, according to
Holt, the instruction for employees lasted only 15 or 20
minutes on Monday morning, March 13, 1978.
The third reason given by Respondent pertained to
Respondent's hiring of a new manager to replace Holt, and
Respondent's desire to hire a new crew to work with him.
As explained above, it was not until Sunday, March 12,
1978, that Respondent was successful in hiring Costa as the
new manager of the store. As Respondent correctly points
out, that occurred prior to the time that Respondent had
any knowledge of any union organizational activity since
the letter from the Union was not read until March 14,
1978.
It will be remembered that Respondent had earlier spo-
ken with Messerall regarding the manager's position, but
Respondent was not successful in that effort. Holt became
aware of that fact through his conversation with Melders
on March 8, 1978. Finally, it was on March 12, 1978, that
Respondent was able to hire Costa. Therein lies
Respondent's credible explanation for the timing of the ter-
minations-the hiring of Costa on March 12, 1978, the
VIRGINIA STREET DISCOUNT LIQUORS 1007
overages and the shortage occurring between March I and
8, 1978. and the financial situation of Respondent's busi-
ness which Rissone perceived to be continuing in a loss
situation.
While the new manager did hire some new employees,
Respondent offered reinstatement and paid backpay to all
of the persons whom it had terminated with the exception
of Holt. The counsel for the General Counsel aptly de-
scribes that action as being a "paradox," while Respondent
urges that it was simply returning to the status quo ante
after the filing of the unfair labor practice charge and the
representation petition by the Union. Based upon the doc-
umentary evidence concerning the offers of reinstatement
and backpay, which was introduced at the trial, I conclude
that Respondent's actions were aimed at limiting its poten-
tial backpay liability in the event that the Union's unfair
labor practice charge concerning those terminations was
found to have merit. Nevertheless, I conclude that
Respondent's actions were not admissions that it had en-
gaged in any unfair labor practices, nor do such voluntary
actions aimed at minimizing possible monetary liability ne-
gate the reasons given by Respondent for the terminations.
The counsel for the General Counsel accurately points
out that Respondent had not hired new employees prior to
March 15. 1978, to take the place of those employees
whom it discharged on that date. It seems to me that the
earlier situation involving the planned termination of Koh-
lenberger was not comparable to the situation on March
15. 1978, and did not establish a "past practice." The situa-
tion involving Kohlenberger involved only one employee.
whereas the March 15, 1978, situation involved the hiring
of a new crew to work with the newly hired manager of the
store.
The attorney for Respondent persuasively argues:
"There is not the slightest suggestion in this record that
Respondent had any union animus." Respondent's argu-
ment is convincing since the evidence does not show that
Respondent possessed any hostility to employees' rights to
engage in union activities and to bargain collectively, nor
does the evidence show that Respondent engaged in any
conduct which would be independently violative of Section
8(a)(1) of the Act. The reference to the ill feelings at the
March 15, 1978, meeting had reference to the overages and
shortage of money in the cash registers, rather than union
activities.
Nevertheless, I recognize that the presence or absence of
union animus or antiunion conduct is not the sine qua non
in determining an alleged discriminatory discharge issue.
Administrative Law Judge Jerrold H. Shapiro succinctly
expressed this view when he stated: "The ultimate question
is what was the reason for the discharge, and the presence
or absence of other antiunion actions is an aid to answer-
ing the question, not an answer in itself." Stockton Ken-
worth Co., 221 NLRB 800, 807 (1975).
In dismissing a complaint allegation of Section 8(a)(I)
and (3) conduct, Administrative Law Judge Herbert Silber-
man found: "There is no evidence that the Company since
April 1974 has infringed upon the rights guaranteed em-
ployees in Section 7 of the Act or even has expressed any
hostility or opposition to the organization of its employ-
ees." Howmet Turbine Components Corporation, 230 NLRB
912 (1977). See also his analysis and conclusions regarding
the absence of union animus in that case, and the Board
and court decisions cited. The Board adopted his findings
and conclusions therein.
Finally, it is appropriate here to note the Board's conclu-
sions in Henri Marx and Saul Greenburg. dbh, a Ra's Li-
quor Store, 227 NLRB 1800, at 1801 (1977), where the
Board stated:
In sum, a finding of illegal motivation in these dis-
charges requires an affirmative conclusion that one of
the reasons for the discharges was the employees'
union activity. or in Gorney's case his testimony under
the Act. That conclusion cannot be reached here as
the evidence falls far short of establishing a union-
related or statutory-related reason for the discharges.'
Accordingly, we affirm the Administrative Law
Judge's findings on these discharges and dismiss the
complaint herein.
As to Gorne. hi, teinmon,. as ndicated at fn. 2 f the Adminis-
tratlec L .a Judge', )ectsion. occurred I nnth prior to the dis-
chairges floweer. mere tinting and the severit, of the disciplinarn
acllsn d not necesarilk lead to the cnclusion thai his discharge was
discriminator (C'lnphbl/l & 1, Ixan. In . 1IX NI.RB 967,. 9691 ( 19571.
After considering the foregoing, the entire record, and
the legal arguments advanced by the parties. I conclude
that a preponderance of the evidence does not establish
that Respondent terminated its employees on March 15,
1978, in violation of Section 8(a)(1) and (3) of the Act.
Instead, I conclude that the evidence shows that the rea-
sons, which were given by Respondent for the termina-
tions, were the true reasons and not pretextual reasons to
conceal a discriminatory motivation.
Having reached that conclusion. I find that it is unneces-
sary to determine whether or not Holt was a supervisor
within the meaning of the Act at the time of his termina-
tion. The reason is that, under either one of the legal theo-
ries alleged with regard to Holt in the General Counsel's
complaint, a preponderance of the evidence does not prove
that his termination by Respondent violated the Act.
With regard to the allegation that Respondent has re-
fused to bargain with the Union since March 13, 1978, in
violation of Section 8(a)( I) and (5) of the Act. I have con-
cluded above that Respondent has not engaged in the
other unfair labor practices alleged in the General
Counsel's complaint. Thus, there is no basis on which to
predicate a bargaining order, or to find an unlawful refusal
to bargain, under the Supreme Court's decision in N.L.R.B.
v. Gissell Packing Co., Inc., 395 U.S. 575 (1969), or the
Board's decision in Trading Port, Inc.. 219 NLRB 298
(1975). Accordingly, it is unnecessary to reach the issue of
whether or not the Union ever represented an uncoerced
majority of Respondent's employees in an appropriate
unit.
CONI.USISONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the General Counsel's complaint in this
proceeding for the reasons which have been set forth
above.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the recommended:
ORDER'
It is hereby ordered that the complaint in this proceeding
be dismissed in its entirety.
In the event that no exceptions are filed as provided bh Sec. 102.46 of
the Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order herein shall. as provided in Sec. 102.48 of the Board's Rules
and Regulations, be adopted b) the Board and shall become its findings.
conclusions and Order, and all objections thereto shall he deemed waived
for all purposes.