N.L.R.B. v. Wilhow Corp.

• Decision Date: 07 December 1981
• Docket Number: No. 80-1078,80-1078
• Citation: 666 F.2d 1294
• Parties: 109 L.R.R.M. (BNA) 2116, 92 Lab.Cas. P 13,153 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WILHOW CORPORATION, d/b/a Town and Country Supermarkets, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1294

666 F.2d 1294

109 L.R.R.M. (BNA) 2116, 92 Lab.Cas. P 13,153

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WILHOW CORPORATION, d/b/a Town and Country Supermarkets, Respondent.

No. 80-1078.

United States Court of Appeals,

Tenth Circuit.

Argued Sept. 29, 1981.

Decided Dec. 7, 1981.

J. Keith Gorham, N. L. R. B., Washington, D. C., (Robert Sewell, William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, Washington, D. C., with him on the briefs), for petitioner.

Donald W. Jones, Jones, Keeter, Karchmer, Nelms & Sullivan, Springfield, Mo., for respondent.

Before HOLLOWAY and DOYLE, Circuit Judges, and KUNZIG, Court of Claims Judge.

WILLIAM E. DOYLE, Circuit Judge.

The question in this NLRB enforcement proceeding is whether there is substantial evidence on the record as a whole of a violation by the respondent Wilhow Corporation of § 158(a)(1)-interference with organizing rights-, § 158(a)(3)-discharge of employees-and § 158(a)(5) of the Act-refusal to bargain.

Prior Proceedings

The problem in this proceeding is that Wilhow Corporation, which operates a chain of grocery stores owned by Shirley Williams and John Howard and known as Town & Country Supermarkets, allegedly engaged in unfair labor practices at one of their stores, in Columbus, Kansas, with respect to which complaints were filed before the Board.

The Board issued a complaint against the respondent on June 30, 1977. In it a claim was made that Wilhow had violated 29 U.S.C. §§ 158(a)(1), (3) and (5) in committing unfair labor practices during an organizing campaign by the Retail Store Employees Union, Local 322 of Southwest Missouri, an affiliate of the United Food and Commercial Workers International Union, AFL-CIO. Following a hearing before an Administrative Law Judge, Wilhow was found to have violated § 158(a)(1), (3) and (5). The judge ordered that the respondent cease and desist from further violations, reinstate employees wrongfully fired and make them whole for lost pay and bargain with Local Union 322.

The Labor Board adopted the findings, conclusions and recommended order of the Administrative Law Judge.

All of the proceedings mentioned above started to take form in April 1977 when Stanley Robinson, assistant manager at the Columbus, Kansas store, contacted a union representative of Local 322 and requested a meeting between store employees and the union to discuss union representation. Such a meeting was held on May 5th between eight employees of Town & Country Supermarkets and the Union representative. These eight employees signed authorization cards requesting that the Retail Clerks International Association, AFL-CIO, represent them "for the purposes of collective bargaining, respecting rates of pay, wages, hours of employment or other conditions of employment in accordance with applicable law." Four additional store employees signed authorization cards on the sixth and seventh of May. On May 6 the Union sent a demand to Wilhow demanding recognition and bargaining. A claim was made that the Union represented a majority of employees in the grocery department of the Columbus store. Copies of the authorization cards were included with the letter. The Company received the Union's letter on May 7th and replied by a letter dated May 9th in which it refused to recognize the Union without a secret ballot. Wilhow did not believe that a majority of their grocery employees freely signed the authorization cards. On May 9 the Union filed an election petition with the Regional Director of the NLRB. On May 11 the Union filed an unfair labor practice charge with the Regional Director.

Evidence here is quite extensive. The hearing commenced September 29, 1977 and continued to December 1, 1977 before the Administrative Law Judge.

Testimony on Wilhow's Alleged Interference with the Employees' Right to Organize

The finding by the judge was that Roger Box, manager of the Columbus store, had questioned Mitchell Reese, an employee who had signed an authorization card. The questioning occurred during the week of May 9th having to do with his union activity but without using the term union in the conversation. More questioning about the attempted unionizing occurred through Paula Box, Roger's wife and the bookkeeper at the store. In February of 1977 Mrs. Box told Reese that John Howard, one of the owners, would close the store if the Union was successful and advised him to be wary of speaking about unionizing while at work. Later, on May 7th, Mrs. Box arranged a meeting with the mother of employee Alan McClure, who had signed an authorization card. She asked Mrs. McClure if she knew of the Union's recent activity. Paula Box advised Mrs. McClure that if the Union was successful some employees would lose their jobs because Wilhow would be forced to pay higher wages. This conversation was relayed by Mrs. McClure to her son. The following day Mrs. Box made similar statements to employee Debra Jackson, who had signed an authorization card. She told her that since she was the last one hired she would be the first to go. On May 10th Paula Box made a veiled threat to Alan McClure, who was a part-time employee. She said that, if unionized, the company would dispense with most part-time help in favor of permanent employees.

The owners of the store participated in soliciting complaints from employees subsequent to the Union's demand for recognition. The Administrative Law Judge found that on May 14th Shirley Williams, one of the owners, asked McClure if he knew there had been talk of unionizing. He told McClure that he would be around the store if employees wanted to discuss anything with him, including any problems they might have. On May 26th John Howard asked Stanley Robinson "how we got into this mess ... and what can we do to get out of it." A further conversation occurred on May 31st between Howard, Williams and Robinson. Robinson volunteered information about the employees' unhappiness with Paula Box's power over them. Following this conversation, Mrs. Box's desk was enclosed from the main part of the store and a diagram of responsibilities was drawn up.

On May 7th Williams promised an enticement to some of his employees. He told them that there had been trouble in the store, an obvious reference to the Union's bargaining demand, and that he owned an auto race track that they could get into free by arranging a Sunday off through Roger Box.

The Evidence Having to do With the Discharge or Firing of Employees.

On May 7th Roger Box told Karlinger, the produce manager, that John Howard had fired him. Karlinger attended the Union meeting on May 5th, signed an authorization card, and on May 6th at the store asked a fellow employee if she knew about or was interested in the Union's efforts. At that time no warning was given to Karlinger that he was going to be terminated. The only reason given to him for his firing was that the gross profits of his department was five percent below the Company's average. At the hearing, however, John Howard testified that there were legitimate reasons for firing Karlinger unconnected with his Union activities: ordering problems, uncleanliness of his department, and displays in poor condition. The ALJ discounted Howard's testimony as vague and unresponsive. He found that it stretched credulity to believe that Karlinger's termination merely coincided with the receipt of the Union's bargaining demand (and was not connected with it).

Employee Jim Mogle was released from duty on May 7th. He had participated, as had Karlinger, in the Union activities. Roger Box kept notes for the prior six months on Mogle's shortcomings. He, however, received no advance warning that he would be fired. The Company claimed that he was fired for his poor job performance. Howard testified to this and claimed that Mogle had a poor attitude, that he had failed to follow directions and failed at his housekeeping tasks. The ALJ found Howard's testimony unbelievable and vague and lacking in substance. It was disregarded.

The Testimony Having to do With Refusal to Bargain

The Administrative Law Judge determined that the grocery employees who demanded collective bargaining through the Union's letter of May 6th comprised an appropriate bargaining unit. The Administrative Law Judge included seventeen employees in the unit. As of May 7th, when Wilhow received the Union's letter, twelve employees had signed authorization cards. Accordingly, a card-bargaining majority existed. However the Company questioned the manner in which the Union representative waived Union initiation fees for those signing cards. The judge found that there was no evidence that the Union told employees that only those who signed up before the election would receive the waiver. See, NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973) where the Court held that a bargaining order should not be enforced if the Union entices employees to sign authorization cards by telling them that only those who sign up before an election will have their initiation fee waived.

Wilhow complained that a letter dated September 2, 1977 sent to the Union, the Board and the Company by six of the twelve employees who had signed cards was probative. This letter stated that those employees no longer wanted an election, did not believe Wilhow had violated the National Labor Relations Act and did not wish to testify. The Administrative Law Judge disregarded this letter for it was written after the unfair labor practice had occurred. In determining that a bargaining order was appropriate, the Administrative Law Judge gave weight to the unlawful firings. These violations, together with the § 158(a)(1) violations, were considered to undermine the majority of the bargaining unit and impede the Board's election process. The judge ruled that the §...