Southland Corporation, The, 303 (1983)

SOUTHLAND CORPORATION

The Southland Corporation and Charlotte Moneagle.

Case 9-CA-18293

23 August 1983 DECISION AND ORDER

BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER

On 17 March 1983 Administrative Law Judge Michael O. Miller 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,' 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 the Respondent, the Southland Corporation, Dayton, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge.

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

In adopting the Administrative Law Judge's conclusions. we find it unnecessary to rely on the Administrative Law Judge's findings that Moneagle's endorsing and posting of the anonymous letter constituted protected concerted activity since we agree with the Administrative Law Judge's findings that Moneagle was discharged for her other protected concerted activity.

APPENDIX

NOTICE To EMPLOYEES POSTED BY ORDER OF THE

NATIONAl LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice.

The Act gives employees the following rights:

To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities.

WE WILL NOT coercively interrogate our employees concerning their protected concerted activities.

WE WILL NOT threaten employees with discharge because they engage in protected concerted activities.

WE WILL NOT discharge employees because they engage in protected concerted activities.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act.

WE WILL offer Charlotte Moneagle immediate and full reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent job without prejudice to her seniority or other rights and privileges and WE WILL make her whole for any loss of earnings she may have suffered as a result of our discrimination against her, with interest.

WE WILL expunge all references to her discharge on 20 April 1982 from our personnel and other files and WE WILL notify her in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against her.

THE SOUTHLAND CORPORATION

DECISION

STATEMENT OF THE CASE

MICHAEl. O. MILLER, Administrative Law Judge: This case was heard in Dayton, Ohio, on January 3, 1983, based on an unfair labor practice charge filed by Charlotte Moneagle, an individual, on May 5, 1982, and a complaint issued by the Regional Director for Region 9 of the National Labor Relations Board, herein called the Board, on June 22, 1982. The complaint alleges that The Southland Corporation, herein called Respondent, violated Section 8(a)(1) of the National Labor Relations Act, herein called the Act, by suspending and discharging Moneagle because of her protected concerted activities 267 NLRB No. 69

303

DECISIONS OF NATIONAL LABOR RELATIONS BOARD and by interrogating employees concerning such protected concerted activities. Respondent's timely filed answer denies the complaint's substantive allegations.

All parties were afforded full opportunity to appear. to examine and to cross-examine witnesses, and to argue orally. The General Counsel and Respondent have filed briefs which have been carefully considered.

Upon the entire record, including my observation of the witnesses and their demeanor, I make the following:

FINDINGS OF FACT

1. RESPONDENT'S BUSINESS-PREI IMINARY CONCLUSION OF LAW

   Respondent is a Texas corporation with an office and places of business in Dayton, Ohio, where it is engaged in the operation of retail grocery stores. Jurisdiction is not in dispute. The complaint alleges, Respondent admits, and I find and conclude that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent's store 17209, a corporate-owned '7-11' store, located at 3501

   East Third Street, Dayton, Ohio, is the only facility involved in this proceeding.

   The employees involved herein are not represented by any labor organization.

   2. THE UNFAIR LABOR PRACTICE ALLEGATIONS A. The Facts Charlotte Moneagle had been employed by Respondent for about 3-1/2 years prior to her discharge on April 20, 1982. She had worked at the Third Street Store since January 1981 and had been promoted to assistant manager in September of that year. She generally worked on the day shift under the supervision of Rhonda Hensley, an admitted statutory supervisor; her duties were those of a store clerk: stocking shelves and operating the cash register. She also prepared daily reports and was familiar with the banking procedures.' In March 1981, Moneagle complained to a district manager, Jim Matthias, that she had worked regular but unpaid overtime for almost 2 years; she claimed that her store manager had discouraged her from claiming overtime compensation. Respondent made arrangements to pay her for the claimed time.

   In early March 19822 Hensley told Moneagle that some of the other supervisors she had met at a seminar were dissatisfied. In response, Moneagle told Hensley 'that really the only thing that the company needed was a union, because otherwise they could do exactly what they wanted to . . . the employees needed a union to back them up otherwise they wouldn't be able to get anything . . . raises or whatever.' In mid-March, Moneagle complained to District Manager Daniel Kerinuk that the frequent replacement of store managers had resulted in her missing some of the semi-annual performance reviews and accompanying wage increases to which she believed she was entitled.

   There is no contention or evidence that Moneagle possessed statutory supervisory authority.

   a All dates hereinafter are 1982 unless otherwise specified.

   According to her uncontradicted testimony, Moneagle told Kerinuk that she did not think it fair that she and the others in the store had not received these raises.3

   Kerinuk pointed out that she had received a performance review and wage increase approximately 6 months earlier, indicated that he could not help her, and referred her to his supervisor if she wished to pursue the matter further. He also asked her whether she was interested in going into management with the Company; she stated that she would be interested but only at some later date.

   In late March, Moneagle's performance was reviewed and she received another wage increase.

   Included among Moneagle's duties was the receipt and opening of the daily mail. In the mail, delivered between 9:30 and 10 a.m. on Saturday, April 3, was what has come to be known as a 'mystery writer letter.' That letter, copies and at least one other version of which were sent to various of Respondent's stores, was addressed to Respondent's employees. As Moneagle recalled the letter, the writer urged the employees to band together to do something about working conditions, stated that the conditions were not what they should be, and suggested that the employees 'shouldn't take this crap.' The writer, she said, also referred to Respondent's zone manager, Ron Becker, in derogatory terms. Moneagle wrote 'right on' at the bottom of this letter and laid it upon the counter. 4

   Subsequently, at the suggestion of a police officer-customer, she scratched out the words she had written on the letter, took it off of the counter, and posted it on the back of a cigarette display, where employee messages are sometimes posted. Her notation remained legible despite the scratchout.

   About II a.m., Salvador Ruiz, a supervisor whose responsibilities included the Third Street store, came in to pick up the store's paperwork. He saw the letter and, pursuant to instructions from Kerinuk, removed it. 5

   3 She further testified that she had discussed this matter with another clerk, Lucille Harris.

   4 At least two similar but different letters were circulated. Respondent introduced one which it contended was identical to the letter received and written upon by Moneagle. In that letter, the 'mystery writer' complained of pressure from Becker, the swapping of positions and other turmoil, obliquely referred to Becker as an 'anal-porte,' and suggested that Respondent's employees 'are much too good to be treated as such.' Moneagle denied that that letter was identical to the one...