McCartney, Inc., 318 (1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

McCartney, Incorporated and United Food and Commercial Workers Union, Local 76, affiliated with United Food and Commercial Workers International Union, AFL-CIO-CLC. Case 16CA- 10914

19 July 1984 DECISION AND ORDER

By CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS

On 30 November 1983 Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, McCartney,

Incorporated, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

i The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).

We have carefully examined the record and find no basis for reversing the findings.

DECISION

STATEMENT OF THE CASE

LAWRENCE W. CULLEN, Administrative Law Judge.

This case was heard before me on October 17, 1983, at Tulsa, Oklahoma. The hearing was held pursuant to a complaint issued by the Acting Regional Director for Region 16 of the National Labor Relations Board (the Board). The complaint is based on a charge filed by the United Food and Commercial Workers Union, Local 76, affiliated with the United Food and Commercial Workers International Union, AFL-CIO-CLC (the Union or the Charging Party) on February 14, 1983. The complaint (as amended the hearing) alleges that McCartney,

Incorporated,' a corporation (Respondent), has violated Section 8(a)(1) of the National Labor Relations Act (the Act) by on or about February 122 at Store No. 2 unlawThe official caption of Respondent was amended at the hearing.

2 All dates are in 1983 unless otherwise stated.

fully interrogating its employees regarding the employees' need for union representation and by threatening retaliation by leasing out its Tulsa stores' meat markets because its employees filed grievances, and on or about February 12 at Store No. I threatening its employees with retaliation by leasing the Tulsa stores' meat markets because its employees had filed grievances. The complaint is joined by Respondent's answer filed April 4, wherein it denied the commission of any violations of the Act and asserted affirmative defenses thereto.

Upon the entire record in this proceeding, including my observations of the witnesses who testified herein, and after due consideration of the positions of the parties as expressed at the hearing and the brief filed by Respondent, I make the following FINDINGS OF FACT AND ANALYSIS

1. JURISDICTION A. The Business of Respondent The complaint alleges, Respondent admits, and I find that Respondent was and has been at all times material herein, an Oklahoma corporation engaged in the sale and distribution of retail groceries with an office and place of business in Tulsa, Oklahoma; that during the past 12 months, a representative period, Respondent, in the course and conduct of its business operations in Tulsa,

   Oklahoma, purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Oklahoma, and had a gross income in excess of $500,000; and that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

   2. The Labor Organization The complaint alleges, Respondent admits in its answer, and I find that the Union is now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

2. THE ALLEGED UNFAIR LABOR PRACTICES This case involves meetings held by John McCartney,3 the owner of Respondent, and two of its grocery stores in Tulsa, Oklahoma (Store No. I and Store No. 2) on February 12 with certain of Respondent's meat market employees at each of the two stores. The General Counsel presented the testimony of employees Sherman (Darrell) Largent Jr., Joyce Zellner, and Helen Delk.

   Largent testified as follows: He has been employed by Respondent since January 1976 and was employed as a journeyman meatcutter at Store No. 2 in Tulsa, Oklahoma, on February 12. He and other meat department employees4 (six employees) attended a meeting at which 3 The complaint alleges, the answer admits, and I find that McCartney is the owner of Respondent and was an agent and/or supervisor of Respondent, acting in its behalf within the meaning of Sec. 2(11) and (13) of the Act at all times material herein.

   4 These employees were covered by a collective-bargaining agreement between Respondent and the Union (G.C. Exh. 2-the November 16, 1980-November 19, 1983 labor agreement).

   271 NLRB No. 49

   318

   MCCARTNEY, INC.

   McCartney spoke. Also present for Respondent were Bill Stafford, general manager, and Bill Butler, meat supervisor.5

   At the meeting McCartney announced that he had planned to lease out the meat department as 'he was tired of being harassed by people parking in front of his home, threatening phone calls to his family; [he] was tired of having vehicles shot at and equipment; and there was a few employees that he wanted to-that he did not plan to keep if the markets were leased out.' McCartney discussed a new store that was to be opened and which he maintained would hurt this store and it was necessary to 'bring up the gross profits, percentages and things of that nature.' McCartney also talked of hiring employees 'to work the counters and do the clean ups at a lower wage because he didn't want to pay us [the employees] a higher wage to do clean up or work counters .... ' McCartney also discussed the requirement that he pay insurance benefits for part-time employees.

   Largent took notes which he destroyed after the meeting. McCartney observed Largent taking notes and asked Largent why he needed a union. Largent responded that he felt the employees need a union for job security. Largent testified further that McCartney stated 'he was tired of grievances being filed against the Company' with the Union and that the meat departments at the two stores in Tulsa would be leased out as a result of trouble with the Union through grievances at these stores whereas the meat department in Respondents two stores in Oklahoma City would not be leased out. McCartney stated that he would take care of some employees who were not currently fully vested in their pension rights by paying them to ensure that they would be vested.

   On cross-examination Largent agreed that in July 1982 the issue of subcontracting the work performed in the meat departments had been discussed in a meeting between management and the employees as had the number of grievances being filed by the employees. Largent also testified that at the February 12 meeting the subject of grievances was initially raised by McCartney.

   Joyce Zellner testified as follows: Zellner works at Store No. 2 and was present at the February 12 meeting held at that store. McCartney spoke at the meeting and 'said that he was getting tired of being harassed by the union; harassed and too many grievances filed. He said that he would like to-he thought about leasing out the markets and he was going on a new program in about three months with us or without us and that it was-he would like to have cheaper help to do clean ups and that our health and welfare was $400 a month and sometimes we would have part-time help come in and he would still have to pay that.' He also stated that two employees who were not vested in their pension rights would be vested as he would do that. Largent was taking notes and McCartney asked what do you think of it Darrell since you are taking notes and Largent replied that he did not think the employees should be punished for something that one person had done (referring to a particular ex-employee about whom McCartney had com5 The complaint alleges, Respondent's answer admits, and I find that Stafford and Butler were agents and/or supervisors of Respondent within the meaning of Sec. 2(11) and (13) of the Act.

   plained) and should stay with the Union. McCartney also stated he was not having any union problems with the two stores in Oklahoma City and that they would remain as union markets. On cross-examination Zellner stated that McCartney had stated he was tired of the grievances being taken to the Union by 'the people' (employees) and of 'his family being harassed.' McCartney also stated that he had attempted to discuss problems with the Union and had sent letters but received no response.

   She was unable to recall whether McCartney had discussed what particular problems he had attempted to discuss with the Union.

   Helen Delk testified as follows: She is employed by Respondent as a meat wrapper at Store No. I in Tulsa,

   Oklahoma. On February 12 she attended a meeting attended by seven of the eight meat department employees at that store and by...