Extract
Schulte's IGA Foodliner, 855 (1979)
SCHULTE'S IGA FOODLINER Capitol Foods, Inc. d/b/a Schulte's IGA Foodliner andAmalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576. Case 17-CA-7850
April 13, 1979 DECISION AND ORDERBY CHAIRMAN FANNING AND MEMBERS JENKINSAND PENELLOOn October 26, 1978, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. Respondent filed a brief in support of the Administrative Law Judge's Decision.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, as modified herein, and to adopt his recommended Order, as modified herein.We disagree with the Administrative Law Judge's findings regarding the conduct of Night Manager Dan Smith. Employee Kelly Arnold testified that 2 weeks before the June 1, 1977, election he had a conversation with Smith. Smith stated: 'Kelly, I have been thinking about this union deal. I do not know if it will be such a good idea or not.' He elaborated:'Well, if this union goes into effect, six people will lose their jobs [in part because] they will close down the bakery.' Similarly, employee Sherre Harding testified that Smith told her that Respondent's owner and president, Robert Schulte, had said that if the Union won the election 'the bakery would be closed because it could not afford the wages' and that 'parttime people's hours would be cut.' Finally, employee Archie Smith testified that Dan Smith had told him that if the Union won 'everybody in the bakery would lose their job because they would not be making enough money and the part-time help would lose their job too.' Dan Smith admitted talking to employees Arnold, Harding, and Archie Smith about the possibility of the bakery closing and of a cutback IThe Charging Party 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 usthat the resolutions are incorrect. Standard Dry Wall Products, Inc., 91NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.among part-time employees. However, he testified that he had offered only his personal opinion regarding the 'pros and cons of the union coming in' and claimed he had not spoken on behalf of Respondent.The Administrative Law Judge found that Respondent was not responsible for Smith's statements to employees. In so doing, the Administrative Law Judge concluded that Smith was not a supervisor2 and that he was not speaking as an agent of Respondent since he had testified that his comments to employees about possible closure of the bakery and cutbacks among part-time employees were conveyed as statements of personal opinion rather than as reflections of Respondent's official policy.3Although the record shows that Smith exercises some degree of authority over Archie Smith, the only other employee assigned to his shift, we agree with the Administrative Law Judge that the record does not establish that Smith is a statutory supervisor. We disagree, however, with the Administrative Law Judge's finding that Respondent is not responsible for Dan Smith's conduct.The record shows that on April 5, 1977, the parties stipulated to an appropriate unit which excluded Dan Smith as the 'night manager.' Although Respondent did not stipulate to a reason for Smith's exclusion, all parties clearly understood that Smith was excluded as a 'member of management.' Thus, Union Business Representative Thomas Hurley testified, without contradiction, that during discussions leading to the execution of the stipulation, 'Mr. Schulte said that in [his unionized stores in] Jeff City they have always in the past had night managers excluded as members of management and they needed somebody around the store to run things. Somebody had to run the store at night was what was said and this was the reason.' IIn the Hearing Officer's report in Case 17-RC-8254, which was adopted ...See the full content of this document
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