Hit 'N Run Food Stores, 660 (1977)

Docket Number: 14-CA-09417

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Hit 'N Run Food Stores, 660 (1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Razco, Inc., d/b/a Hit 'N Run Food Stores andRetail Clerks Local Union No. 35, chartered by Retail Clerks International Association, AFL-CIO and Retail Clerks Local Union No. 435, chartered by Retail Clerks International Association, AFLCIO. Cases 14-CA-9417 and 14-CA-9494

August 26, 1977 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

PENELLO AND WALTHER

On March 30, 1977, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings,2 and conclusions of the Administrative Law Judge, to modify his remedy,3 and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Razco, Inc., d/b/a Hit 'N Run Food Stores, Alton and Wood River, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

As regards the constructive discharge of employee Grimes, Respondent excepts to the reliance of her testimony with respect to a comment allegedly made by an employee of the state unemployment office. We agree that the testimony was hearsay and that the case cited by the Administrative Law Judge to support his admission of that testimony, Duquesne Electric and Mfg. Co., 212 NLRB 142, fn. 1 (1974), is inapposite. Duquesne speaks to judicial notice of an issued decision of a state bureau. However, we find no prejudice since the Administrative Law Judge clearly did not rely on it in his conclusions.

2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not 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 Dry Wall Products,

Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings.

Respondent's exception to the finding that the discharge of employee Varady for theft was a pretext is based in part on an incident, not considered by the Administrat.: e Law Judge, wherein Varady was accused of having a pastry and magazine without a sales slip, contrary to Respondent's established rule. We note that theft is not established by these facts, and that another employee testified that Varady paid for the items in question, but failed to retain the sales receipt.

231 NLRB No. 82

In support of its overall contention that Bramhall was not constructively discharged and is not, in any event, entitled to reinstatement and backpay,

Respondent in its brief argues that she admitted keeping overages, if any existed, following the balancing of cash register funds at the end of a day.

Bramhall credibly testified that she thought she was permitted to keep the overages-but never kept over 80 cents-since she was personally docked whenever her register was short, and she ceased this practice as soon as she was informed it was against company policy. However, Respondent did not discipline Bramhall for the incident at the time and therefore may not now rely on it as grounds for denying reinstatement.

3 In accordance with our decision in Florida Steel Corporation, 231

NLRB 651 (1977), we shall apply the current 7-percent rate for periods pror to August 25, 1977, in which the 'adjusted prime interest rate' as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent.

DECISION

STATEMENT OF THE CASE

MARVIN ROTH, Administrative Law Judge: These consolidated cases were heard at St. Louis, Missouri, on October 12 - 15 and October 27 and 28, 1976. The charge in Case 14-CA-9417 was filed by Retail Clerks Local Union No.

35 on June 14, 1976,1 and amended on June 15 and 16. The charge in Case 14-CA-9494 was filed by Retail Clerks Local Union No. 435 on July 20. (The Charging Parties are herein referred to respectively as Local 35 and Local 435, and collectively as the Union). The consolidated complaint, which issued on September 8 and was amended on September 17 and October 5, alleges that Razco, Inc., d/b/a Hit 'N Run Food Stores (herein the Company or Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The gravamen of the complaint is that during a union organizational campaign, the Company violated Section 8(...

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