Hogue & Knott, Inc., 565 (1975)

HOGUE & KNOTT, INC. 565

Hogue & Knott, Inc. and Retail Clerks Local 1529,

AFL-CIO, affiliated with Retail Clerks International Association. Cases 26-CA-5103 and 26-CA-5175

April 29, 1975 DECISION AND ORDER

BY MEMBERS FANNING, JENKINS, AND PENELLO On December 20, 1974, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, General Counsel and Respondent filed exceptions and supporting briefs.

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 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 Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Hogue & Knott, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

'The 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 Walt 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.

DECISION

STATEMENT OF THE CASE

HENRY L. JALETTE, Administrative Law Judge : These consolidated cases involve allegations that the above-named Respondent violated Section 8(a)(1) and (3) of the Act by certain acts of interference, restraint, and coercion by issuing written warnings to one employee, and by discharging six employees.

The proceeding was initiated by the charge filed by the abovenamed Union in Case 26-CA-5103 on May 13, 1974,1 which charge was amended on June 17. Pursuant thereto, complaint issued on June 19. Thereafter , the same Union filed the charge in Case 26-CA-5175 on June 27, which charge was first amended on June 28, and amended a second time Unless otherwise indicated, all dates hereinafter are 1974.

on July 15. On July 26, the cases were consolidated and a consolidated complaint was issued. On September 10, 11, and 12, hearing was held in Memphis, Tennessee.

Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I hereby make the following:

FINDINGS OF FACT

I THE ALLEGED UNFAIR LABOR PRACTICES

1. The Facts Respondent operates five grocery supermarkets in Memphis, Tennessee,' Hugh Hogue, Sr., is president of the Company and his son Hugh Hogue, Jr., is general manager of the five stores which are numbered 1, 3, 4, 6, and 10. With one exception, the alleged unfair labor practices involve store No.

10, a new store located in a shopping mall. The store began operations on April 10, with a staff of employees who were nearly all new employees of Respondent. Only the employees of the grocery department are involved in this proceeding! These employees fall into three classifications:

sackers, stockers, and checkers or cashiers.

Jerry Wilson was a sacker who had been hired to work at Store No. 10 on Thursday, May 2. His first day of work was Friday, May 3.

He testified that on Monday, May 6, after he had finished work, he was accosted on the parking lot by a man who turned out to be Union Representative Bill Underwood. Underwood asked him if the store was organized and when Wilson told him no, he gave Wilson some union cards to distribute. Wilson did so on the sidewalk outside the mall building, but admittedly no supervisors could see him handing out cards at the location. He entered the store and passed out cards to employee Don Edwards and a cashier, but there is no direct evidence he was seen. According to Wilson, after he left the store, but while still inside the mall building, he gave a card to employee Gailor King and he observed that Hugh Hogue, Jr., who was about 25 feet away, was looking towards them.

Wilson testified that on Wednesday, May 8, about 2 p.m.,

Assistant Store Manager Kenneth Crawford asked him if he had signed a union card. Wilson had not and told Crawford he had not, but that he was thinking of it.

On Friday, May 10, Underwood entered store No. 10 and, according to King, spoke to King, saying that not enough cards had been signed. This was shortly before King's lunchbreak and King punched out at 1 p.m. and met Underwood outside the store. King testified that he walked with Underwood down the corridor which leads to the mall exit and that they were followed by Hogue, Jr., for a distance of about 30

2 Both General Counsel and Respondent have filed motions to correct official transcript. No objections having been made, the motions are hereby granted and they are made part of the record as A.LJ Exhs. 1 and 2, respectively.

3 Jurisdiction is not in issue. The complaint alleges, the answer admits, and I find that Respondent meets the Board's standard for assertion ofiunsdichon over retail stores 4 The supermarkets generally consist of three departments . meat, produce, and grocery.

217 NLRB No. 92 feet to the mall exit door On the sidewalk of the mall, Underwood gave King some union cards. King returned to the store and about 30 minutes later, Hogue, Sr., approached him, pulled him aside so nearby employees could not hear and in a whisper asked King who he was working for, Hogue & Knott or the Union. King replied he was working for Hogue & Knott.

Tyrone Daniels, another sacker, also spoke to Underwood in the store on Friday about 3 p.m., when Underwood walked through the register line Daniels testified he asked Underwood if he had more union cards and Underwood replied he did, but he couldn't give him any because the man was looking. The man was Assistant Store Manager Kenneth Crawford with whom Underwood had been talking earlier.

Patricia Ford, a cashier, also spoke to Underwood on Friday. According to Ford, as Underwood passed through the register line he asked her if she had turned her card in and she said she had. She testified Crawford was nearby at the time where he could hear everything At some time that day,

Ford had been talking about the Union with another cashier,

Sheila Sermons, and Crawford had been nearby.

Later that same day, Jerry Wilson, Terry Daniels, Gailor King, Donald Edwards, and Patricia Ford were laid off for lack of work.' Carol Sue Sasseen did not work on May 10, and on Saturday, May 11, she called in sick. Crawford told her it was okay and when she asked him when she was scheduled to work again he told her to check later, that the schedule was not made up. Instead, Sasseen went to the store on Monday, discovered her name was not on the work schedule, and left the store without checking about it. On Thursday, she picked up her paycheck, again spoke to no one about her job, and has not worked since.

Henrene Butler is employed at store No. 10 as a cashier.

She testified that on June 15, Crawford called her to the rear of the store and he referred to the Union and remarked 'that they had got to me, you know, had already started talking to me and he told me that the Union, it wasn't what it was put up to be.' On June 18 and 26, Butler received two written warnings, the first for her behavior towards Assistant Manager Crawford, the second for excessive absenteeism on Saturdays.

Wilbur Davis, a former employee of Respondent at store No. 1, testified that on June 19 he was called into the office of Store Manager Ronald Childers. Hugh Hogue, Sr., was there and he proceeded to tell Davis the Union could do nothing for him but take his money, that 'they' wasn't doing anything for him and 'they' couldn't give 'us' no raises until they got some money in the treasury. Assistant Store Manager Burcham entered the office and he said if 'they' do give you a raise, your dues will go up, and by the time 'they' get through taking so much dues, you won't have a raise.

Childers told him he was up for a raise, but he hadn't gotten around to it. Hogue, Sr., said 'they would give us a raise every week if they wanted to.' Davis testified that on June 23, on his way out of the store, he asked another employee for a dollar and as he passed by Childers, Childers asked him if he wanted any money and 5 Ford testified she was laid off on a date after May 10, but her timecard indicates May 10 as her last day of work gave him $5 saying 'if the Union don't make it, you can pay me back whenever you want to.' B. Analysis and Conclusions 1. The independent 8(a)(1) conduct a. The conduct of Childers Paragraph 9 of the complaint contains, seven allegations of 8(a)(1) conduct by Childers, but the only conduct attributed to him was that described by Wilbur Davis of his being called to Childers' office on June 15 and of receiving a $5 loan from Childers on June 23. Childers denied talking to Davis about the Union and denied lending him any money. I credit Childers and shall recommend dismissal of the allegations of paragraph 9.

During the investigation of the unfair labor practice charge filed against Respondent, Davis gave a sworn statement to a Board agent in which he stated that Childers had loaned him $18, not $5. At the hearing, he claimed the Board agent had erred in taking his statement, yet on the face of the statement there appeared a correction showing a change of the amount of the alleged loan from $20 to $18. I cannot believe that a Board agent would make two errors on a single point. I note also that the loan was allegedly made by Childers because...