Churchill'S Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1987

285 N.L.R.B. 138 (N.L.R.B. 1987)

138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Churchill's Supermarkets , Inc. and United Food &
Commercial Workers International Union,
AFL-CIO-CLC, Locals 954 and 626. Cases 18-
CA-13944-1, 8-CA-13944-2, and 8-CA-
14243-1
31 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 18 August 1981 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering brief to the General Counsel's
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, I and
conclusions, to modify his remedy,2 and to adopt
the recommended Order as modified and set out in
full below.
The Alleged 8(a)(1) Violations
The judge found that the Respondent had violat-
ed Section 8(a)(1) of the Act by coercively interro-
gating several employees. The Respondent except-'
ed to these findings, arguing that an examination of
the surrounding circumstances in each case indi-
cates that the conversations at issue were not coer-
cive and did not violate the Act. We agree with
i The Respondent has excepted to some of the judge's credibility find-
ings. 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 Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We agree with the judge's conclusion that the Respondent violated
Sec. 8(a)(3) by denying employee Zielinski a leave of absence for antiun-
ion reasons. In so doing, however, we disagree with the judge's reasoning
that the denial of a leave of absence was tantamount to a denial of reem-
ployment. Instead, we find that the Respondent's conduct was violative
of Sec. 8(a)(3) because it placed Zielinski in a different employment status
for unlawful reasons.
In agreeing with the judge's conclusion that the Respondent violated
Sec. 8(a)(3) by giving an unfavorable evaluation rating to employee Fee-
back in retaliation for her union activities, we note that the Respondent's
subsequent improvement of Feeback's rating was insufficient to constitute
an effective repudiation of its earlier unlawful conduct or to relieve the
Respondent of liability for it See Passavant Memorial Area Hospital, 237
NLRB 138 (1970)
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 will be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C. § 6621. Interest on amounts
accrued prior to 1 January 1987 shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
the Respondent only with respect to the alleged in-
terrogations of employee Curtis by Supervisor Katt
and employee Winans by Supervisor Petree.
Christine Curtis works as a waitress in the cof-
feeshop at the Monroe Street store. At the time of
the union organizing campaign in 198Q,3 she was
supervised by Juanita Brown Katt. Curtis wore a
union button at all times and made no secret of her
support. Both Curtis and Katt testified that during
the course of Curtis' employment they had several
conversations in which they discussed the Union,
as well as Curtis' personal problems. On occasion,
Katt asked Curtis why she was in favor of a union
and why she thought a union was necessary. At
one point, Katt observed to Curtis that perhaps one
of the reasons the Union appealed to Curtis was
the fact that it gave her a new group of friends.
The judge found that Katt's inquiries to Curtis
concerning the Union were coercive. We disagree.
The personal nature of the relationship between
Curtis and Katt and the friendly tone of their con-
versations support the Respondent's assertion that
Katt's questions were not coercive, particularly in
view of Curtis' position as an open and ardent
union supporter. Therefore, we cannot agree with
the judge that Katt's questions to Curtis about the
Union violated the Act. See Rossmore House, 269
NLRB 1176 (1984).
Employee William Winans worked at the
Monroe store as a carryout and front-end employ-
ee. He was a known union supporter, who wore a
union button at the store and had engaged in hand-
billing on behalf of the Union. In March, Supervi-
sor Joyce Petree asked several of the front-end em-
ployees if they had any questions about the Union.
When she asked Winans, he replied in the affirma-
tive, and they engaged in a 30-minute discussion
about the Union. Winans testified that he began the
conversation by telling Petree that he was in favor
of the Union and that she would not change his
mind by talking to him about it. During the course
of the conversation, Winans asked several questions
Petree could not answer. She later brought Execu-
tive Senior Vice President and Director of Oper-
ations Richard Geerkin and Store Manager
Thomas Dombowski to the front end of the store
and asked Winans in their presence whether he had
any questions to address to them. He asked one
question, and the conversation ended. The judge
found that Petree's actions violated the Act by
pointing him out to the Respondent's top manage-
ment as a union activist and by interrogating him.
We disagree. Winans was an open union supporter
whose sentiments were not hidden from Respond-
3 All dates refer to 1980 unless otherwise indicated.
285 NLRB No. 21
CHURCHILL'S SUPERMARKETS
ent's management. There is no evidence that Petree
specifically identified Winans as an organizer or an
activist. Rather, she was attempting to provide a
source of answers to Winans' questions. In these
circumstances, we cannot agree with the judge that
the conversation between Winans and Petree was
coercive. Rossmore House, supra.
With respect to the interrogations of employees
Winans and Joseph Wielgopolski by Flower Shop
Manager Richard Glauser and of employee Clyde
Nebb by Supervisor Jack Pieh, we agree with the
judge that these conversations were coercive. In so
finding, we rely on the fact that, although each of
the employees questioned was an open union sup-
porter, the conversations between Glauser and
Wielgopolski and Glauser and Winans involved
threats of layoffs, discharges, and the prediction of
a strike because the Respondent would not give the
Union a contract. Further, we note that the con-
versations between Nebb and Pieh involved repeat-
ed questioning about the Union, a promise of bene-
fit, and promulgation of an unlawful no-solicitation
rule. In each situation these circumstances created
a coercive atmosphere aimed at interfering with
the employees' exercise of their Section 7 rights.
Rossmore House, supra. Accordingly, we find, in
agreement with the judge, that the Respondent vio-
lated Section 8(a)(1) by interrogating employees
Wielgopolski, Winans, and Nebb.4
The judge also found that the Respondent com-
mitted several 8(a)(1) violations during the course
of employee Nebb's evaluation by Supervisor Pieh
in March 1980. During the course of the evalua-
tion, Pieh asked Nebb if he had any complaints.
Nebb replied that he had the same ones he had
every year, specifically, lack of a retirement plan,
wages that were below union scale, and inadequate
benefits, particularly health care. Pieh then asked
why Nebb was involved with the Union, and
stated that although there was nothing that could
be done about the wage differential during the
Union's organizing campaign, when the "union
business" was over, the Company could do some-
thing. Pieh concluded by stating that it would be a
shock to General Churchill, the Respondent's
president and chief executive officer, to see a list of
union leaders with Nebb's name at the top.
The judge found that in this conversation the
Respondent violated Section 8(a)(1) by interrogat-
ing Nebb, creating the impression of surveillance,
unlawfully soliciting a grievance and unlawfully
4 We note that in finding the interrogation of Nebb to be unlawful the
judge relied on PPG Industries, 251 NLRB 1146 (1980), which was over-
ruled by Rossmore House. However, because of the coercive circum-
stances surrounding Pieh's questioning of Nebb , we reach the same result
as the judge
139
promising a benefit. As noted above, the interroga-
tion of an open union supporter is normally not
considered coercive unless it is accompanied by un-
lawful threats or promise of benefits. Rossmore
House, supra. Here, we find that Nebb was unlaw-
fully questioned about his union sentiments since he
was at the same time unlawfully promised a benefit
when Pieh promised to "do something about" the
wage differential when the "union business" was
over.
We disagree with the judge's conclusions, how-
ever, that the Respondent unlawfully solicited a
grievance and created the impression of surveil-
lance. The question to Nebb concerning his com-
plaints was one which would be expected in the
normal course of an evaluation. It is evident from
Nebb's answer that he and Pieh had had similar
conversations in past years, prior to the Union's or-
ganizing campaign. In these circumstances, we
cannot find that Pieh's question to Nebb constitut-
ed an unlawful solicitation. We also find that since
Nebb was an open and vocal union supporter Pieh
did not create an impression of surveillance by stat-
ing that Churchill would be shocked to see Nebb's
name on a list of union leaders. Since Nebb's senti-
ments and activities were well known facts, no sur-
veillance was involved. -
The judge further found that the Respondent
violated Section 8(a)(1) by enforcing a discrimina-
tory no-solicitation rule. We agree with the judge
that a no-solicitation rule was discriminatorily en-
forced with respect to Nebb's use of the company
telephone on his breaks, and with respect to Super-
visor Katt's warning to employee Curtis to refrain
from union activity-on company time for her own
good, for the reasons set forth in the judge's deci-
sion. In adopting the judge's finding that the Re-
spondent violated Section 8(a)(1) when Supervisor
Katt issued the warning to Curtis "for your own
good" to refrain from union activity on company
time, we note that the warning was in response to
employee Curtis' simple "Hello" to union officials
who were lawfully seated as patrons in the Re-
spondent's restaurant. At least absent evidence that
the Respondent had previously warned waitresses
against greeting customers, this warning represent-
ed antiunion discrimination that would tend to re-
strain the exercise of Section 7 rights.5
s While Chairman Dotson agrees with the judge that a no-solicitation
rule was discriminatorily enforced with respect to Nebb's use of the com-
pany telephone on his breaks, he disagrees with the judge's conclusion
that Supervisor Katt's warning to employee Curtis was discriminatory.
An employer may lawfully prohibit solicitation during worktime, and
there is no indication here that such a prohibition was discriminatorily
applied Further, in view of the personal nature of the relationship exist-
mg between Katt and Curtis, the Chairman does not view Katt's com-
ment to Curtis to refrain from union activity on company time "for her
own good" as threatening or coercive
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We disagree with the judge's conclusion that the
Employer's grant of a new health care program to
employees was unlawful. As the judge found, be-
ginning in the late summer or fall of 1979, the Re-
spondent began to consider the possibility of dis-
continuing the use of an outside carrier and, in-
stead, to provide health insurance coverage for its
employees through a self-insurance fund. It asked
the broker who had provided the Respondent with
casualty insurance coverage to investigate this pos-
sibility and to provide the Respondent with quota-
tions detailing the cost of the plan and whether it
would be possible to increase benefits through self-
insurance without an increase in cost to the Re-
spondent. The broker delayed several months, and
it was not until late February or early March that
it gave the Respondent a quotation for self-insur-
ance. The broker suggested at the time that the Re-
spondent wait a few more' weeks before deciding
on a plan because he felt that he could obtain
better catastrophe coverage from another insurance
company. Early in April, the broker presented the
Respondent with another quotation, and within a
matter of days the Respondent executed the neces-
sary documents to adopt the plan.
Ronald Murray, an insurance agent for Picton-
Cavanaugh, testified that the length of time be-
tween the initial indication of interest by the Re-
spondent in August 1979 and the actual implemen-
tation of the program in May 1980 was due to a
delay on the part of the insurance company, and
not on the part of the Respondent. A decision was
made by the Respondent to purchase the plan
shortly after it was presented in April 1980. The ef-
fective date of coverage was 1 May 1980, which
coincided with the anniversary of the Respondent's
previous health care policy. Murray indicated in
his testimony that it is normal practice to change to
a new policy on the renewal date of the old one.
.Unlike the judge, we do not find that this expla-
nation "strains credulity." The Respondent has es-
tablished that the timing of the new insurance pro-
gram resulted from a combination of factors, the
insurance company's delay chief among them.
Indeed, the judge's statement of the facts indicates
that he credited the testimony establishing the Re-
spondent's version of events at least up until the
new program was announced. But the judge simply
concluded-notwithstanding the logical explanation
for the delay-that the "improvements could have
been made months or years before the Union's or-
ganizing campaign." Where a plausible explanation
for the sequence of events is given, the fact that it
was theoretically possible for the benefits to be
given earlier does not establish discrimination in
the timing. Nor do we think that the Respondent
was compelled to wait until after the union election
to announce and implement the program. It an-
nounced the new coverage shortly after the agent
had presented the package, and it timed the imple-
mentation so that the new coverage would take
effect when the', old health insurance policy ex-
pired. In short, the Respondent demonstrated that
the improvement in benefits represented the logical
working out of a plan initiated before the advent of
a union campaign, i.e., its proof indicates that the
timing of the implementation of new benefits
would have been the same whether or not there
was a campaign afoot. In these circumstances, the
fact that the Respondent committed other unfair
labor practices does not render this grant of bene-
fits unlawful. Accordingly, we do not adopt the
judge's finding of a violation on this allegation.
The judge also found that the Respondent had
violated Section 8(a)(1) through Supervisor Pieh's
statements to employee Shelia Lemble that if the
Union came in, the employees would be subject to
more onerous working conditions. We agree with
this finding, but note that the judge neglected to
mention that during the same conversation Pieh
told Lemble that if the Union did not come in, she
would have a "good, healthy raise" within a year.
We fmd that this statement constitutes an unlawful
promise of benefit and is also violative of Section
8(a)(1).
The Alleged 8(a)(3) Violations
The judge found that the Respondent had violat-
ed Section 8(a)(3) by reducing the number of over-
time hours worked by employee Nebb by approxi-
mately 1.4 hours per week. The Respondent asserts
that the fluctuation in hours was due to the fact
that an employee from the meat department at the
Monroe store where Nebb worked was transferred
to a new store, which created additional overtime.
'When individuals were later temporarily assigned
to the Monroe store to assist, the result was that
the opportunity for overtime was reduced. We fmd
merit in the Respondent's position.
As noted above, Nebb was an open union sup-
porter. Nebb testified without contradiction that all
the employees in the meat department were also in
favor of the Union. The reduction in hours coin-
cided with the transfer of Meat Department Super-
visor Pieh to a new store. A supervisor from an-
other store, Vern Viers, replaced him, and from
time to time would bring his former employees to
the Monroe store to work. The judge concluded
that the record is devoid of any explanation for this
practice other than discrimination against the union
supporters in the meat department at the Monroe
store. We disagree. Nebb's testimony indicates that
CHURCHILL'S SUPERMARKETS 141
in January one of the regular meatcutters was
transferred to a different store, which resulted in 2
to 6 hours of overtime for the remaining employ-
ees. In June when Viers became manager, employ-
ees from other, stores would come into the Monroe
store and work for a few hours a week. Although
there is no clear explanation as to why outside help
was sought rather than continuing to give overtime
to Monroe store employees, there also has been no
evidence presented, other than reference to the Re-
spondent's unlawful conduct generally, that would
indicate that the change was discriminatorily moti-
vated. Contrary to the judge, we cannot conclude
that discrimination is the only explanation. It is not
unusual for new managers to change personnel
practices to meet their own preferences. Further,
Nebb's overtime hours were only cut by 1.4 hours
a week, and there were some pay periods after
Viers arrived in which he worked as much as 50
hours. These facts tend to offset an inference of
discrimination. Without more, we decline to find
that the reduction of Nebb's overtime hours violat-
ed the Act„
The judge also found that the Respondent com-
mitted an 8(a)(3) violation by refusing to allow
nonemployee union representatives to attend its
annual company picnic. The Respondent excepts,
maintaining that it was justified in refusing to grant
tickets to union representatives, given the nature of
the picnic and the fact that the decision was not
based on its employees' union sentiments. We find
merit in the - Respondent's exception. The annual
picnic was essentially a family-style affair. The Re-
spondent provided all refreshments, and charged
only a nominal $1 "fee to cover the cost of the fried
chicken. The purchase of a ticket in advance was
required for the 1980 picnic, as was the submission
of an employee guest list. Employees Penny Shultz
and Shelia Lemble turned in the names of certain
union representatives as their guests, but were
eventually told that the union representatives were
not welcome. One supervisor told Lemble that the
reason union representatives were not welcome
was because of their involvement with another
Churchill's store which was being organized. The
employees were never denied an opportunity to
buy tickets for themselves. The judge determined
that while the right to invite guests to attend an
annual social function was a nominal fringe benefit
it was still a term and condition of employment,
and that benefit had been unlawfully withdrawn.
We disagree that the evidence established that the
Respondent's conduct was discriminatory.
In the past, the company picnic had been held
for the benefit of employees„ their families, and
close friends. Penelope Shultz testified that em-
ployees brought their families to the picnic and
that they were entitled to bring a date. She also
testified that she had never attended any of the
company picnics in the past. She had no intention
of going to the picnic for which'she requested tick-
ets for the union guests, but requested them "just
to see if I could get them."
The Respondent did not prohibit its employees
from attending the picnic, nor did it deny them the
right to bring guests in general. Rather, the Re-
spondent objected to the inclusion of certain guests
who in all likelihood would have used this friendly
social gathering for a purpose for which it was not
intended, namely, to conduct business in the form
of promoting their own interests. Based- on the
record evidence, it would be erroneous to conclude
that the Employer acted discriminately in refusing
to permit guests to attend who did not fit into the
category of "family or friends" and who were
coming for a purpose other than the one intended.
The Respondent is under no obligation to include
nonemployee union representatives at its annual
picnic, so long as it does not discriminate against
employees on the basis of their union sentiments in
the process. Here, no such discrimination took
place, and we find that the judge erred in conclud-
ing that the Respondent violated Section 8(a)(3)
and (1)).
During the union organizing campaign, employ-
ee Marilyn Feeback was employed in the Respond-
ent's flower shop at the Monroe store. The judge
found that the Respondent violated Section 8(a)(3)
and (1) by reducing Feeback's hours by 1 full day.
The Respondent excepts, and contends that its ac-
tions are not violative since all the flower center
employees' hours were reduced because of eco-
nomic considerations. We find merit in the Re-
spondent's exception.
Feeback worked for the Respondent from No-
vember 1978 to October 1980. It appears from the
record that prior to February 1980 she worked
Mondays, Thursdays, and Fridays from 10 a.m.
until 5 p.m. and every other Sunday from 12 p.m.
until 4 p.m. In February 1980, the Employer added
an extra workday on Wednesday to her schedule
because "a couple of girls" quit. After Feeback re-
turned from her father's funeral on 15 September,
the Employer reduced her hours by 1 hour on
Monday, Thursday, and Friday, and no longer
scheduled her to work on Wednesdays.
The record is unclear as to how the reduction in
Feeback's hours compared with the reductions in
the hours of other flower department employees.
However, the judge credited Glauser's assertion
that all flower center employees received reduced
hours. While the full-time employees' hours were
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not reduced as much as the part-time employees,
their hours were also cut. Given the evidence
before us, we are unable to determine 'whether the
reduction in Feeback's hours was discriminatory,
and therefore conclude that the General Counsel
failed to establish that the reduction of Feeback's
hours violated Section 8(a)(3).
The Alleged 8(a)(5) Violation
We agree with the judge that a bargaining order
is warranted in the Respondent's warehouse unit,
where all five employees had signed authorization
cards as of 10 March 1980.6 The Respondent's un-
lawful conduct was extensive and pervasive at both
the Monroe store and the warehouse, but the ef-
fects of the unfair labor practices in the warehouse
unit are particularly noteworthy, given the ex-
tremely small size of the unit. In determining
whether a bargaining order is appropriate, the
Board examines the seriousness of the violations
committed and the present effects of the coercive
practices. In the warehouse unit, the Respondent
immediately embarked on a campaign involving
"hallmark" violations of the Act designed to dis-
courage union support among its employees.
Upon learning of the involvement of warehouse
employees Richard Doll and Keith Mallory in the
handbilling of Churchill's Central Avenue store on
19 February, the Respondent called an employee
meeting. At the meeting on 20 February, Ware-
house Supervisor Ron Shook and Warehouse Man-
ager Judy Faust asked Mallory and Doll what their
problem was. They replied that they wanted repre-
sentation. Shook stated that they should have
sought to have their problems resolved without
intervention from a third party. In the discussion
that followed, Faust and Shook told the employees
that they were very disappointed in their actions.
Shook also told the employees that if the Union
came in he would close the warehouse, and that
the employees would be out of jobs and ineligible
for unemployment compensation. During the meet-
ing, employee Charles Tucker complained that his
status should be converted from part time to full
time, so that he could receive health insurance and
other benefits. Faust replied that the Company al-
6 Although we agree with the judge's grant of a bargaining order, we
expressly disavow his statement that since the Union had demonstrated
its majority status in open court the Respondent's insistence on an elec-
tion was an "unnecessary imposition " It is well settled that, where an
employer has not committed any unfair labor practices, an employer does
not violate Sec. 8(a)(5) of the Act by refusing to voluntarily recognize a
union on the basis of a card majority, absent an expressed agreement to
do so. Linden Lumber Division v. NLRB, 419 U S. 301 (1974) In the
present case, the Employer contends not only that a bargaining order is
inappropriate, but that it has not violated the Act by its actions Were
this found to be true, an election would be appropriate at the Employer's
request, despite the Union's card majority
ready had too many full-time people and that it
would be too expensive to give him hospitalization
coverage.
A second meeting was held a few days later with
Richard Geerkin in attendance.? Tucker reiterated
his complaint concerning his part-time status, and
Geerkin said he would check into it. Another em-
ployee complained about the lack of a regularly
scheduled lunch hour. Shortly thereafter, a new
work schedule was posted with a regularly sched-
uled lunch hour, and Tucker was classified as a
full-time employee. On 10 March the Union re-
quested recognition based on its card majority. The
Respondent declined to extend recognition, and in-
sisted on an election. On 26 March Richard Doll
was discriminatorily discharged.
It is significant to our decision to note the seri-
ousness of these violations. In the course of 5
weeks, the warehouse employees were threatened
with plant closure, had their grievances solicited
and remedied by top management, and saw one of
their coworkers discharged for his union activity.
These actions involve the type of pervasive coer-
cion that has lingering effects not readily dispelled.
Because of the swiftness and severity of the Re-
spondent's reaction against the Union's organizing
drive, it is highly unlikely that a fair election could
be conducted with the use of only traditional reme-
dies. We note that the Sixth Circuit has recognized
that a cease-and-desist order is not always sufficient
to remedy an employer's unfair labor practices. Ex-
change Bank v. NLRB, 732 F.2d 60 (6th Cir. 1984).
Therein, the court quoted NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), as follows:
If an employer has succeeded in undermining a
union's strength and destroying the laboratory
conditions necessary for a fair election, he may
see no need to violate a cease-and-desist order
by further unlawful activity. The damage will
have been done, and perhaps the only fair way
to effectuate employee rights is to re-establish
the conditions as they existed before the em-
ployer's unlawful campaign.
We believe that, under the circumstances of the in-
stant case, simply requiring the Respondent to re-
frain from unlawful conduct will not eradicate the
lingering effects of the hallmark violations, and will
not deter their recurrence.
We are ^ mindful that 7 years have passed since
the occurrence of the unlawful conduct in the
warehouse unit. The serious nature of the Respond-
ent's conduct in threatening plant closure, soliciting,
7 Geerkin is the Respondent's executive senior vice president and di-
rector of operations
CHURCHILL'S SUPERMARKETS 143
grievances, and discharging a union supporter,
however, convinces us that the lasting effects of
such conduct cannot be remedied either by the pas-
sage of time or the Board's traditional remedies.
The passage of time, though regrettable, is not a
sufficient basis for denying the bargaining order."
Accordingly, we adopt the judge's recommended
Order, as modified below, and require the Re-
spondent to bargain with the Union as the duly
designated representative of the employees in the
warehouse unit, effective 10 March 1980, the date
the Union had acquired authorization cards from a
majority of employees in the unit.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Churchill's Supermarkets, Inc., Toledo,
Ohio, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees concern-
ing their union activities and the union activities of
other employees.
(b) Threatening to close the warehouse, dis-
charge employees, reduce portions of the Respond-
ent's operations, impose more onerous working
conditions, or discontinue employee benefits if the
employees select the Union as their bargaining
agent.
(c) Telling employees that the Respondent
would refuse to enter into a contract with the
Union if it was selected as their bargaining agent.
(d) Soliciting grievances from employees for the
purpose of remedying them.
(e) Creating in the minds of employees the im-
pression that their union activities are the subject
of company surveillance.
(f) Promising employees benefits if they reject
the Union as their bargaining agent.
(g) Imposing and enforcing an overly broad no-
solicitation rule.
(h) Discouraging membership in and activities on
behalf of United Food & Commercial Workers
International Union, AFL-CIO-CLC, Locals 954
and 626, or any other labor organization, by dis-
charging employees, giving them unfavorable per-
sonnel evaluations , refusing to grant leaves of ab-
sence, or otherwise discriminating against them in
their hire or tenure.
(i) Refusing to recognize and bargain collectively
with United Food & Commercial Workers Interna-
tional Union, AFL-CIO-CLC, Locals 954 and 626,
as the exclusive collective-bargaining representative
of all the regular full-time and part-time employees
employed at the Respondent's Toledo, Ohio ware-
house, exclusive of office clerical employees, pro-
fessional employees, guards, and supervisors as de-
fined in the Act.
(j) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain collec-
tively with United Food & Commercial Workers
International Union, AFL-CIO-CLC, Locals 954
and 626, as the exclusive collective-bargaining rep-
resentative of all the regular full-time and part-time
employees employed at the Respondent's Toledo,
Ohio warehouse, exclusive of office clerical em-
ployees, guards, and supervisors as defined in the
Act.
(b) Offer Richard Doll and William Winans im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Remove from its files any reference to the
unlawful discharges of Richard Doll and William
Winans and notify them in writing that this has
been done and that the discharges will not be used
against them in any way.
(d) Make Marci Zielinski whole for any loss of
pay or benefits, which she has suffered by reason
of the discrimination found herein.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at the Respondent's warehouse and
stores in and about Toledo, Ohio, copies of the at-
tached notice marked "Appendix."9 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 8, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
8 Quality Aluminum Products, 278 NLRB 338 (1986), enfd 813 F 2d the United States Court of Appeals Enforcing an Order of the National
795 (6th Cir 1987) Labor Relations Board "
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that, insofar as the
amended complaint alleges matters that have not
been found to be violations of the Act, the allega-
tions are dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate employees
concerning their union activities or the union ac-
tivities of other employees.
WE WILL NOT threaten to close the warehouse,
discharge employees, reduce portions of our oper-
ations, impose more onerous working conditions,
or discontinue employee benefits if employees
select the Union as their bargaining agent.
WE WILL NOT tell employees that we will refuse
to enter into a contract with the Union if it is se-
lected as the bargaining agent of our employees.
WE WILL NOT solicit grievances from employees
for the purpose of remedying them.
WE WILL NOT create in the minds of our em-
ployees the impression that their union activities
are the subject of company surveillance.
WE WILL NOT promise you benefits if you reject
the Union as your bargaining agent.
WE WILL NOT impose or enforce an overly
broad no-solicitation rule.
WE WILL NOT discharge employees, or otherwise
discriminate against them for the purpose of dis-
couraging their membership in or activities on
behalf of United Food & Commercial Workers
International Union, AFL-CIO-CLC, Locals 954
and 626, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain col-
lectively in good faith with United Food & Com-
mercial Workers International Union, AFL-CIO-
CLC, Locals 954 and 626, as the exclusive collec-
tive-bargaining representative of our regular full-
time and part-time warehouse employees, exclusive
of office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
WE WILL offer Richard Doll and William
Winans immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them who
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify Richard Doll and William
Winans that we have removed from our files any
reference to their discharges and that the dis-
charges will not be used against them in any way.
WE WILL make Marci Zielinski whole for any
loss of pay or benefits that she has suffered by
reason of the discrimination found herein.
CHURCHILL'S SUPERMARKETS, INC.
Mark F. Neubecker, Esq., for the General Counsel.
Justice,G. Johnson, Jr., John G. Mattimoe, and Terrance
L. Ryan, Esqs., of Toledo, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Toledo,
Ohio, on a consolidated unfair labor practice complaint,'
issued by the Regional Director for Region 8, which al-
leges that Respondent Churchill's Supermarkets, Inc.,'
1 The principal docket entries in this case are as follows:
Charge filed by Locals 945 and 626, United Food & Commercial
Workers International Union, AFL-CIO-CLC (the Union) against Re-
spondent in Case 8-CA-13944-1 on June 23, 1980, charge filed by the
Union against Respondent in Case 8-CA-13944-2 on June 27, 1980;
charge filed by the Union against Respondent in Case 8-CA-14243 on
September 24, 1980; original consolidated complaint issued on August 29,
1980, Respondent's answer filed on September 11, 1980, amended consoli-
dated complaint issued on November 28, 1980, Respondent's answer filed
on December 11, 1980; hearing held in Toledo, Ohio, on April 27-30,
1981, briefs filed with me by the General Counsel and the Respondent on
or before July 30, 1981.
2 Respondent admits, and I find, that it is an Ohio corporation, which
maintains its principal office in Sylvania, Ohio, and operates a chain of
Continued
CHURCHILL'S SUPERMARKETS
violated Section 8(a)(1), (3), and (5) of the Act. More
particularly, the amended `consolidated complaint alleges
that the Respondent both promised and granted benefits
to employees in order to persuade them not to support
the Union, coercively interrogated employees concerning
their union sympathies, threatened employees with loss
of benefits, loss of overtime, and more onerous working
conditions in reprisal for supporting the Union, created
the impression among employees that their union activi-
ties were subject to company surveillance, solicited and
remedied grievances it order to persuade employees not
to join the Union and imposed on employees an unlawful
no-solicitation rule. The' amended complaint also alleges
that the Respondent disoriminatorily discharged Rebecca
Donnelly, Richard Doll, and William Winans, reduced
the normal overtime of other employees, and refused to
grant a leave of absence to another employee in reprisal
for their union activities: The complaint also alleges an
unlawful refusal to bargain in one of the bargaining units
that the Union tried to organize3 and seeks a Gissel
remedy with respect to that unit.4 The Respondent
denies the comission of independent violation of the Act
and contends that the discharged individuals who were
named in the amended complaint were terminated for
cause. It also asserts that a representation election is the
proper means of determining who is the proper bargain-
ing agent at its warehouse . On these contentions, the
issues herein were joined.5
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent operates four supermarkets and a produce
warehouse in and about Toledo, Ohio. The stores bear
the name of the company president and chief executive
officer, General Walter A. Churchill, Sr. Respondent's
executive senior vice president and director of operations
is Richard Geerken. Respondent employs about 600 full-
time and part-time employees, including about 50 super-
visory or managerial employees. Its employees have
never been represented by any labor organization.
In the fall of 1979, when the Respondent opened its
Alexis Road store, the Union engaged in sporadic infor-
mational picketing. However, the actual organizing of
supermarkets in and about Toledo, Ohio . In the course and conduct of
this business, the Respondent annually derives gross revenues in excess of
$500,000 and receives at its Toledo, Ohio locations directly from points
and places located outside the State of Ohio goods and merchandise
valued in excess of $50,000 Accordingly, the Respondent is an employer
engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act The Union is a labor organization within the meaning of Sec 2(5) of
the Act.
a In the spring of 1980, the Respondent filed representation petitions
seeking seperate elections at the Respondent 's downtown Toledo ware-
house and in three of its four retail stores , known as the Monroe Street,
Central Avenue, and Alexis Road stores (Cases 8-RC-12108, 8-RC-
12109, 8-RC-12110, and 8-RC-12118) No petition was ever filed for its
Byrne Road Store . A decision and direction of separate elections in each
of these units was issued by the Regional Director for Region 8, on April
11, 1980, but the elections have been blocked because of the pendency of
the charges in this consolidated case
4 NLRB v. Gissel Packing Co, 395 U S 575 (1969).
5 Errors in the transcript have been noted and corrected Respondent
filed an unopposed posttrial motion to admit its employee handbook into
evidence as R. Exh 21. The motion is granted and the exhibit is received
145
this store and other parts of the Respondent's business
did not begin until about January 1980. The five employ-
ees who constituted the warehouse unit signed designa-
tion cards on or before February 4, 1980. Several union
meetings were held about this time for the purpose of
signing up Respondent' s management , either directly
from unionized employees or "via the grapevine" that
this effort was in progress.
A. Events at the Respondent's Warehouse
One of the first overt acts of employee union activity
was the handbilling of the Central Avenue store on Feb-
ruary 19 by warehouse employees Richard Doll and
Keith Mallory. Word of this activity was telephoned to
Ron Shook, the produce buyer and supervisor in charge
of the warehouse, by the manager of the Central Avenue
store. Shook was upset and brought the matter immedi-
ately to the attention, of Judy Faust, the warehouse man-
ager and his assistant . They held a meeting of employees
the following day at the warehouse to discuss this turn
of events. Shook told employees on this occasion that he
had been under the impression that the warehouse em-
ployees were a big happy family and asked Mallory and
Doll what was their problem. Both replied that they
wanted some representation. Shook said they should
have settled their problems without third-party interven-
tion. An open discussion ensued. One employee stated
that they all wanted additional benefits and job security.
Employee Charles Tucker complained that he had
worked sufficient hours to qualify as a full-time employ-
ee and was entitled to health insurance and other benefits
which went with full-time employment.6 However, he
was not receiving them. Faust replied that the Company
had too many full-time people so he could not get hospi-
talization. Both Shook and Faust told employees that
they were very disappointed in their actions. Shook also
said on this occasion that, if the Union came in, he
would close the warehouse, 7 employees would be out of
jobs, and they would be ineligible for unemployment
compensation.
A few days later, Geerken visited the warehouse and
another discussion session with employees was held in
the presence of Geerken,, Shook, and Faust. One com-
plaint that arose at this time was that the warehouse em-
ployees had no fixed hours for breaks or lunch. Most of
them arrived for work between 3:30 and 5 a.m. and often
worked straight through without any break until the
work was completed and they were ready to go home.
A few days later, Geerken instructed Faust to post stated
break and lunch periods for all warehouse employees.
6 According to the Respondent's employee handbook, an employee
who averages 32 hours or more per week for 13 consecutive weeks is
considered to be a full-time employee and, as such, is entitled to health
insurance coverage and presumably other benefits
7 The warehouse is located in a deteriorated section of downtown
Toledo Shook testified that he told employees that a real estate agent
had been sent around to appraise the building for the purpose of putting
it on the market because the Respondent did not really need the produce
warehouse in order to service its stores. As of the date of the hearing,
some 14 months after these remarks were made, the warehouse continues
to operate because the Respondent could not rind a buyer for the build-
ing
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After this was done, all employees took breaks or lunch
at the times set forth after their respective names. On this
occasion Tucker reiterated his complaint about being eli-
gible for health insurance benefits as a full-time employee
and stated that he had previously voiced this complaint
to no avail . Geerken said he would check into the prob-
lem. During the course of the discussion , Geerken was
heard to say that the Respondent could not afford a re-
tirement program, with or without a union. Shortly
thereafter, Tucker was classified as a full -time employee
and was accorded health insurance benefits.
Tucker, who had signed a union card in late January
and who had also engaged in handbilling of the Central
Avenue and Monroe Street stores on behalf of the
Union, testified that his hours were cut in mid-April. He
worked a fluctuating schedule of hours each week. His
timecards for an 8-month period from late 1979 to mid-
1980 reflect the following hours worked:
Period Ending Hours Worked (fractions
omitted)
12/28/79 30
1/4/80 32
1/11/80 40
1/18/80 41
1/25/80 37
2/3/80 44
2/10/80 45
2/17/80 45
2/24/80 39
3/2/80 40
3/9/80 43
3/16/80 36
3/23/80 37
3/30/80 37
4/6/80 41
4/13/80 38
4/20/80 35
4/27/80 40
5/4/80 32
5/11/80 36
5/18/80 37
5/25/80 37
6/1/80 vacation
6/8/80 40
Sometime in March, Tucker asked Faust why his hours
were being reduced . She gave him no answer . Later, he
asked to have his timecards and was told that they were
not available.
On March 10 , Eugene H. Kolkman , the Union's chief
executive officer, wrote a letter to Shook advising Shook
that the Union represented a majority of the warehouse
employees . He made a demand for recognition and of-
fered to'display the authorization cards in his possession
to a neutral party for verification . On March 12, Re-
spondent 's counsel replied to Kolkman 's letter and insist-
ed on a Board election to determine the Union's majority
status. On the same day, Churchill sent a letter to all em-
ployees, both at the warehouse and at the retail stores,
informing them that the Union had filed representation
petitions for the warehouse and the Monroe Street and
Alexis Road stores . The letter went on to say that the
Respondent did not believe it to be in the best interest of
the employees to select the Union as their bargaining
agent and expressed the opinion that whatever problems
might arise could be worked out "among ourselves on a
fair and honest basis" without interference from an out-
side, Union.
Richard Doll began working at the warehouse in June
1978. He performed a variety of jobs. He inspected in-
coming deliveries of produce , drove a forklift and hand-
jack, inventoried produce, and made pickups and deliv-
eries from the warehouse to the Respondent's stores. As
long as Doll worked for the Respondent it was well
known that he had a habit of drinking considerable quan-
tities of beer. Occasionally, he would come to work
smelling of beer and this condition did not escape the
notice of his supervisors . On one occasion , Shook asked
employee Mallory if Doll carried a bottle on his person.
Mallory replied that he did not do so. Occasionally farm-
ers visiting the warehouse to sell produce reported that
Doll was smelling of alcohol.
Over the course of 2 years , Doll had a number of
small accidents with equipment. On one occasion, he
backed a truck into a dumpster . On another, occasion,
when operating a forklift , he dumped over a load of to-
matoes. On a third occasion, he ran an electric pallet
jack on his foot . In the fall of 1979, while backing a
truck at the Byrne Road store, he rammed the loading
dock. The store manager reported this incident to Shook
with the further information that he had smelled alcohol
on Doll 's breath.
From time to time, warehouse employees and supervi-
sors ate lunch together at a nearby bar called the Road-
house. I credit testimony that Doll and others would
have beer with their lunch on these occasions , and I also
credit record testimony that, on some of these occasions,
Doll and others returned to the warehouse after lunch to
continue to work. In the winter of 1979-1980, Shook
spoke to Doll about his drinking and told him he would
have to learn to control it. This occurred after Doll's
wife called Shook's home to inquire about Doll's where-
abouts when he failed to come home after work.8
In late March 1980 , after the Respondent had institut-
ed the policy of granting fixed lunch periods to ware-
house employees , Geerken visited the warehouse and
began to discuss Doll's habits with Shook and Faust.
Geerken told them that , before any disciplinary action
could be taken against Doll, clear proof had to be ob-
tained that he was drinking . Faust volunteered to visit
the nearby Roadhouse bar, where Doll had gone on his
lunch hour,9 to find out if he was drinking . She did so
and saw Doll having a beer . When she reported the in-
formation to Shook, the latter called the bar, spoke to a
waitress , and' learned that Doll had two or three beers
but had not ordered anything to eat. When Doll returned
8 The record contains undisputed evidence that, during a trip to
Toledo from Detroit where Doll had gone to pick up a load of pineap-
ples, he had a breakdown and had to call Shook and Faust to pick him
up During the return trip in Faust's vehicle, she offered Doll a beer and
he drank one
9 Because Doll reported to work at 3 30 a m., he normally took his
lunch hour beginning at 9 30 a.m
CHURCHILL'S SUPERMARKETS
to the warehouse, he was assigned to some inventory
work
Shook wrote up a disciplinary slip on Doll, dated
March 26 It stated that he had given Doll a 3-day sus-
pension for drinking while on dinner hour and returning
back to work He told Doll that he was suspended and
phoned Geerken to say that the disciplinary slip was in
the mail to Respondent's corporate headquarters A day
or so later, Geerken phoned Shook and instructed him to
discharge Doll for violating a provision of the Respond-
ent's personnel handbook that makes working after using
drugs or alcoholic beverages a serious offense.
B Events at the Monroe Street Store
The Monroe Street store is the largest of the Respond-
ent's retail outlets. It contains a variety of departments,
including a flower shop, a hardware store, and a coffee-
shop, as well as grocery and meat departments Some of
its sections are open on a 24-hour basis. The Respondent
also maintains its corporate office at this location
There is record testimony from various employees that
after the Union began its drive in January 1980 various
supervisors responded to counteract the effect of the or-
ganizing campaign. Short-term employee Joseph Wielgo-
polski testified without contradiction that sometime in
March Richard Glauser, the flower shop manager, i o
took him aside for a private conversation in the bath-
room at the store Glauser reportedly asked Wielgopolski
what he thought of the Union, to which the latter re-
plied that he did not think much of it. Then Glauser
went on to ask other questions about the Union and
threatened that there would be layoffs in the event of
unionization. He told Wielgopolski that there would be a
strike because the Respondent would, not give the Union
a contract He predicted violence and said that a lot of
people would be fired.
Wielgopolski was a carryout employee, which meant
that he had a variety of menial jobs including the loading
of customer cars He testified that he had signed a card
and had attempted to sign up other employees in the
store in the presence of, or in the immediate vicinity of,
several supervisors. He complained that for a 2-week
period of time he was assigned exclusively to loading
groceries in customer cars in the pickup area and was
thereby isolated from other employees He later returned
to other duties and is no longer employed by the Re-
spondent
Gus Wingler is a produce clerk. He attended a union
meeting on January 28, 1980, at the Sheraton-Westgate
Motel. On the following day, he was engaged in a con-
versation at the store with a fellow employee who in-
quired into the particulars of the meeting. At this point
the bakery supervisor and Wingler's own supervisor,
Brent Langenfelder, joined the conversation Langen-
felder asked Wingler if he attended, how large the meet-
ing was, and what he thought of it. Wingler replied that
about 50 employees attended and he thought the meeting
went all right He added that if Rick (Carr), General
10 Glauser testified that he had no recollection of the conversation re-
counted by Wlelgopolskl and had no recollection even of Wielgopolski as
an employee
147
(Churchill), or Tom Dembowski (the Monroe Street
store manager) did not get off his back, he would go all
out for the Union Langenfelder replied that he was
sorry to hear this because there were two sides to every
story. Wingler said that as of that time he had heard
only one side.
As discussed more fully hereinafter, Monroe Street
employee Rebecca (Becky) Donnelly was terminated on
February 18. Shortly thereafter, Wingler and fellow em-
ployee Kay Miller were discussing the discharge at the
store in the presence of Langenfelder. Miller stated that
the union representatives took Donnelly to Food Town
(a unionized store) and got her a job there. I credit
Wingler's statement that Langenfelder then said, "Good.
In a couple of weeks, I hope they can find a lot of jobs "
Wingler became upset and, shortly thereafter, spoke with
Dembowski, who is Langenfelder's superior. He told
Dembowski in an excited manner that he needed more
money and had attended a union meeting, adding "You
guys don't even have to wait two weeks You can fire
me now." Dembowski tried to calm Wingler, invited him
to have a cup of coffee with him, and spoke to him in
order to allay his fears During the course of this coffee-
break, Dembowski assured him that the Company had no
intention of discharging him.
Meat department employee Clyde Nebb has been em-
ployed at the Monroe Street store about 8 years. On Jan-
uary 29, 1980, he signed a union card and thereafter
made no secret of his union sympathies in the course of
various discussions with his supervisor, Meat Manager
Jack Pieh. On one occasion in late January, Pieh asked
Nebb how many people had showed up at a union meet-
ing Nebb's reply was, "A lot more than expected "
Respondent maintains outgoing phone lines at various
locations in its stores and has been quite liberal in permit-
ting employees to use the phones for personal matters.
The overriding consideration has always been that an
employee should not tie up the phone lines for conversa-
tions of a personal nature On one occasion, Nebb
phoned the Byrne Road store and spoke with a meatcut-
ter at that location to tell him about a forthcoming union
meeting and to ask him if any meatcutters at that loca-
tion were interested in joining. Pieh got word of this
phone call from Gary Jones, the meat manager at the
Byrne Road store, and spoke to Nebb about it Pieh told
Nebb that such use of the phone was considered to be
soliciting on company time and using company property
in violation of company policy and instructed him not to
use the phone for union business, even on his own time,
since it was company property. Pieh also said he was
going to go "by the book" with regard to improper so-
licitations, meaning a verbal warning for the first offense,
a written warning for the second offense, time off for the
third offense, and discharge thereafter. Nebb assured
Pieh that he would not do so in the future, and asked
Pieh when it was permissible to solicit for the Union.
Pieh said he would find out and tell him.
Several days later, Pieh told Nebb, after repeated re-
quests for clarification, that he could solicit for the
Union if he had punched out on a break or at lunchtime,
so long as the employees being solicited were also
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
punched out. He also said he would have to confine his
soliciting to nonproductive work areas. Nebb testified
that this was the first time he had ever heard of this
policy i i
On another occasion, Langenfelder was discussing the
organizing drive with Pieh in the presence of Nebb and
asked Pieh how many employees had attended a recent
union meeting Pieh pointed to Nebb and told Langen-
felder to ask Nebb because Nebb was one of the lead-
ers. 12 A few days later, Pieh asked Nebb directly how
many of his people were getting involved in the union
effort and how many had attended a union meeting
Nebb made no reply. In the course of another of their
conversations cncerning the union drive, Nebb asked
Pieh who was the source of his information concerning
the union effort. Pieh's reply was that the Company had
a pipeline the same as the Union did
On one occasion, Langenfelder asked Nebb if any of
"his people" (in the produce department) were showing
up at union meetings Nebb refused to reply. I credit
Nebb's testimony that in mid-February as Nebb was get-
ting ready to go on vacation, Pieh asked him in the pres-
ence of other employees whether the Union was picking
up the tab for his vacation trip. Nebb asked Pieh what
prompted that thought, and Pieh replied that he had
heard that unions sometimes offer vacations, cars, and
money to people to help them organize. He voiced the
opinion that because the Union had been trying for so
long to get in at Churchill's, it would be worth their
while if they could find someone to "bust Churchill's
open."
Late in February 1980, a day or so after a union meet-
ing, Pieh told Nebb that he knew who had attended the
meeting and from which stores they had come. Pieh also
said to employee Dewayne Bell that he heard that Bell
had attended. Bell became upset at this remark and insist-
ed that Pieh produce the person who had made the state-
ment so he could confront him. Bell insisted to Pieh that
he had not attended the meetings Pieh finally relented,
admitting that he had not actually received any such in-
formation but had just made up the statement in order to
get Bell to admit if he had been doing anything.
In March 1980, Pieh gave Nebb his annual employee
evaluation. During the course of this discussion, which
was held in the conference room at the Monroe Street
store, Pieh asked Nebb if he had any gripes Nebb re-
plied that he had the same ones he had mentioned in pre-
vious years-lack of a retirement plan, wages that were
below union scale, and inadequate benefits, particularly
health insurance He complained to Pieh that employees
were required to pay for dependent health insurance
" In the Respondent's employee handbook, there is a provision which
states "Solicitations on behalf of any club, society, labor union, religious
organization, political party, or similar association is not permitted during
hours that employees are working This prohibition covers solicitations in
any form either for membership, subscription, or payment of money Out-
siders and other employees are prohibited from soliciting employees
during hours that employees are working and while they are on Compa-
ny premises "
'2 In his testimony, Pieh said that Nebb had never admitted having
been a member of the organizing committee However, Pieh assumed that
Nebb was one of the main organizers because of the feedback he had
been receiving
coverage out of their own pockets. Nebb also com-
plained that as assistant manager he was making only 10
cents per hour more than journeyman meatcutters,
whereas in union stores assistant managers made 30 cents
or 40 cents more per hour than journeymen. Pieh asked
Nebb why he was getting involved with the Union and
why he would become one of the leaders in its organiz-
ing effort. Nebb replied that he saw no other way of get-
ting a proper pay scale or of obtaining a retirement
system. Pieh said that because an organizing drive was in
progress there was nothing he could do about a wage
differential for assistant managers, but it was definitely
something that should be looked into and, after the
"union business" was over the Company could do some-
thing. I credit testimony to the effect that Pieh also said
that it was going to be a shocker when "the old man"
(General Churchill) saw the list of union leaders with
Nebb's name at the top. Nebb asked what list he was re-
ferring to and Pieh replied it was not hard to sit down
and put one together because people were actively pass-
ing out buttons and literature.
Nebb testified that in previous years he had received
an average of about 2 hours a week of overtime. Over-
time was not customarily spread throughout the calendar
year but occurred in large amounts at specific intervals,
namely, during holidays and when the meat manager
was on vacation and Nebb temporarily substituted for
him. In June 1980, Pieh was shifted to the Alexis Road
store and the meat manager at that store, Vern Viers,
came to Monroe Street. Timecards placed in evidence
show the following numbers of hours worked each week
in 1980 and into 1981 by Nebb-
Week Ending Hours Worked
1/12/80 41
1/19/80 41
1/26/80 41
2/2/80 40
2/9/80 40
2/16/80 43
2/23/80 43
3/1/80 39
3/8/80 50
3/15/80 41
3/22/80 41
3/29/80 40
4/5/80 40
4/12/80
4/19/80 40
4/26/80 40
5/3/80 41
5/10/80 42
5/17/80 41
5/24/80 45
5/30/80 32
6/7/80 holiday
6/14/80 40
6/21/80 vacation
6/28/80 37
7/5/80 32
7/12/80 40
7/19/80 50
CHURCHILL S SUPERMARKETS 149
8/2/80 40
8/9/80 40
8/16/80 40
8/23/80 40
8/30/80 42
9/6/80 40
9/13/80 40
9/20/80 40
9/27/80 42
10/4/80 41
10/11/80 40
10/18/80 40
10/25/80 38
11/1/80 39
11/8/80 39
11/15/80 40
11/22/80 40
11/29/80 37
12/6/80 4,0
12/13/80 40
12/20/80 40
12/27/80 35
1/3/81 32
1/10/80 41
1/16/81 40
1/23/81 leave
1/31/81 40
2/7/81 - 40
2/14/81 leave
2/21/81 ?
2/28/81 ?
The above-recited figures indicate that, during the first
20 weeks of 1980 for which legible timecards for a full
week can be found in the record, Nebb averaged 40.9
hours per week. During the next 34 weeks for which
legible timecards for a full week can be found in the
record, he averaged 39.5 hours, a difference of 1.4 hours
per week. During the latter part of 1980, Gary Jones, the
manager of the Byrne Road store, came to work I day a
week in the Monroe Street meat department. Occasional-
ly another employee from the same store filled in at
Monroe Street. The net result of their presence at
Monroe Street meant fewer hours for the Monroe Street
meat department employees.
Penelope Shultz, a deli clerk at the Monroe Street
store, was an active union supporter. One of her efforts
was the composition and mailing of a two-page letter to
all employees urging them to support the Union. About
400 copies of this letter were mailed with the assistance
of the Union. After the letter became circulated, Jack
Pieh asked her where she got the figures in the letter,
which stated that the Company had made $6.4 million in
profit.12 She replied that she had obtained the informa-
12 In the text of the letter, Miss Shultz stated -
I wrote this letter alone. It contains my own ideas and opinions
and conclusions This letter will be signed with my name. I stand
behind what II have written and I do not mind being questioned or
confronted about it.
tion from her stockbroker. I credit Shultz' testimony to
the effect that, on one occasion, she witnessed a conver-
sation between Deli Manager Shirley Yeupell and de-
ceased employee Yvonne Day in which Yeupell handed
Day a "Vote No" button that was lying on a table in the
deli section and asked Day if she cared to wear one. The
latter replied that she would do so.
It was customary for the Respondent to hold an
annual picnic on the late summer or early fall for the
benefit of employees, their families, and friends. The
normal charge was $1, payable at the door, to cover the
cost of fried chicken and other food that was provided.
In 1980, the picnic was held, but advance purchase of
tickets was required. In addition to making a request for
tickets, an employee had to list the names of the guests
he or she wished to invite. Both Shultz and employee
Sheila Lemble turned in the names of various union rep-
resentatives as their guests at the picnic. When the tick-
ets were not forthcoming in the usual course of distribu-
tion, Lemble went to see Dombowski to ask what had
become of her tickets. Dombowski told Lemble that the
names of her prospective guests had been brought to his
attention and that it included union representatives. He
also told her that they were not welcome "because of
their involvement with Central Avenue." She then asked
about former employee Joe Wielgopolski. He replied that
he was also unwelcome but offered to let her buy a
ticket for herself. She told him to forget it.
Christine Curtis is a waitress at the coffee shop in the
Monroe Street store. As part of their organizing tech-
nique, union representatives frequently came to the cof-
feeshop, ordered coffee, sat in a booth, and talked with
store employees when they came to the coffeeshop to
take breaks. On one occasion, Union Representatives
Robert Carrasquello and Richard Eddington came to the
coffeeshop and sat down at a table. Curtis passed by
their table and said hello as she passed. Her supervisor,
Juanita (Brown) Katt, saw her speaking to the union rep-
resentatives and immediately told her to refrain from
union activity on company time "for her own good." On
several occasions, Katt spoke to Curtis about the Union,
and on some of those occasions asked her why she
wanted a union, why things could not be worked out
without a union, and why a union was necessary. To this
last' question, Curtis replied that she thought a union was
necessary because whenever a problem arose, it was
shifted from one person to another and nothing was ever
solved.
I credit the testimony of employee Shiela Lemble that,
sometime in February, she had a private conversation
with Pieh near the smokehouse at the Monroe Street
store. During the course of this conversation, Pieh told
Lemble that should a union come in at Churchill's they
would discontinue giving employees free coffee. He also
said that food service employees would have to wear
hairnets, the Company would lower the store tempera-
ture by 10 degrees, and employees would have more dif-
ficulty getting days off. He told her that employees
would not be allowed to switch days off with other em-
ployees and would be reprimanded if they came to work
late. He observed that things were very lax at the store,
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but with a union, it would be "bang, bang, bangs" He
also said that, with a Union, the store would have set
hours for employees and could not schedule part-time
students Pieh went on to say that the Company could
not pay union scale and, if it could not pay union scale,
it could not open any new stores and would become
stagnant and die. He then said that if a union did not
come in she would have a good healthy raise within a
year.
Lemble was a personal friend of Pieh's daughter and
frequently visited the Pieh home. On one occasion in
April Pieh spoke to Lemble at the store and said, "You
weren't at the card game Tuesday night. I know where
you were and you know where you were" In fact,
Lemble had been attending a union meeting.
Lemble frequently wore a union button to work.
Rather than use a conventional button, many union sym-
pathizers wore a "smiley" button, which bore no inscrip-
tion but merely contained a sketch of a face with a smile.
It is undisputed that Respondent's management was
aware of the significance of the "smiley" button. She and
other meat department employees were accustomed to
using the timeclock at the front of the Monroe Street
store to punch in and out, rather than using the clock
that was located in the meat department. Sometime in
April 1980, she and other employees went to the front of
the store and punched out for a coffeebreak. On the way
to the clock, she greeted other employees at the cash
registers using an informal code greeting that some of
the women union sympathizers had devised among them-
selves. i 3 On her return from break, she was told by Pieh
that Front-End Supervisor Joyce Petree wanted her to
keep her timecard in the rack near the meat department
because she did not want Lemble to have any connection
or conversation with the employees in the front of the
store. Lemble and all the other meat department employ-
ees were required to use the clock in the department ex-
clusively until Nebb made a protest to Pieh and the
former practice was resumed.
Robert C. Kennedy Jr. is presently the grocery man-
ager at Monroe Street He was formerly a stock supervi-
sor. During the spring of 1980, he frequently spoke to
employees about the organizing drive. I credit the testi-
mony of employee Marci Zielinski that, during one of
these conversations, Kennedy told them that the Compa-
ny did not have to agree to anything a union proposed
and could string out negotiations over a long period of
time. I do not credit her disputed testimony that Kenne-
dy also said that if a union came in it would insist on the
hiring of full-time employees so part-time employees like
Zielinski would be laid off.
It is established in the record that in years prior to
1980 the Respondent followed a policy of granting leave
of absence to summer employees, many of whom were
college students, that assured them of employment
during the Christmas vacation period when they re-
turned home to the Toledo area. It is also well estab-
13 Union sympathizers would occasionally greet friends having the
same persuasion by attaching the ending "Lou" to the other employee's
name, e g , Mary would become Mary Lou, Cindy would become Cindy
Lou, etc
lished that, at least as it applied to Zielinski, this policy
was not followed during 1980. She worked throughout
the summer and, near the end of that period, made re-
peated requests of Kennedy and others for a leave of ab-
sence that would assure her of a position at Chri stmas-
time . She was told to submit her request on a company
form but the form was never provided.
Just before she was about to leave to go to college,
Zielinski was told by Kennedy that the Company was
not granting any more leaves of absence to part-time em-
ployees, but she could come back to the store at Christ-
mastime, apply for a job, and take her chances with any
other applicants who might want jobs at that time. I
credit her testimony that Kennedy said that this change
of policy came about because of the union activity that
was taking place in the store. He suggested that she
could take her case to Geerken if she chose. Geerken
was in the area so she made a request for a leave of ab-
sence to him Geerken told her that leaves of absences
were not being granted any longer to summer employees
because the job market was such that the Company had
all the applicants it needed. He assured her that the deci-
sion had nothing to do with union activity.
Zielinski later came to the store with her mother, who
roundly berated Kennedy for refusing to give her daugh-
ter a leave of absence. While Zielinski visited the store in
the fall of 1980 from time to time as a visitor, she did not
renew her request for Christmas employment and did not
receive any. Any summer employee who requested
Christmas employment was told the same story that was
given to Zielinski. However, six summer employees were
rehired at Christmas.
Gordon Zielinski, the brother of Marci Zielinski,
worked as a salesclerk at the home center in the Monroe
Street store. He signed a union card in January, attended
union meetings, and wore a union button at the store.
According to Zielinski, late in March his supervisor,
Carr, called him into the office and requested that he
sign a disciplinary slip for tardiness. While the two of
them were together in the office, Carr asked Zielinski
why he wanted a union Zielinski replied that it was be-
cause he wanted better wages and benefits for part-time
employees and also because he wanted some representa-
tion. Carr told him that the Company would not agree to
increased wages that were comparable to a unionized
store, such as the Ontario store, and that General
Churchill would start from scratch if he had to engage in
collective bargaining. Zielinski replied that he did not
think the general could have his own way completely
and insisted that he would have to sit down and negoti-
ate with the Union. I discredit Zielinski's testimony be-
cause I found him to be an unreliable witness.
When Flower Shop Supervisor Rich Glauser gave
former employee Marilyn Feeback an evaluation in July
1980, he gave her 2 on a scale of 10-for loyalty and for
absenteeism When she asked him why he gave her zero
for loyalty, Glauser replied that she never did any work
outside of business hours that she was not paid for and
he knew for a fact that she had attended union meetings
CHURCHILL'S SUPERMARKETS
and functions.14 Feeback asked how he had become
aware of this fact and he simply replied that he had
heard it through the grapevine. Later, after she had com-
plained about this rating to Dembowski, the latter called
Glauser into his office and gave him some instructions
about the proper method of completing employee rating
sheets. Thereafter, Glauser changed the rating from a
zero to a four.
Following her evaluation, Feeback received a raise in
her hourly rate. However, her hours were cut. In Sep-
tember, after returning from bereavement leave, she no-
ticed from the posted schedule for the flower shop that
her weekly working time had been reduced by a full
day. When she asked Glauser why this change had been
made, Glauser told her that the shop was losing money
and cut backs had to be made. Feeback testified that she
thought she was the only person in the flower shop to
suffer reduced hours and further testified that she was
the second most senior employee in that department.
However, Glauser testified that reductions in hours were
made across the board with respect to all flower shop
employees. (Glauser had previously told Winans that if
the Union came in he could probably afford to keep only
one or two of his employees because of union rates.)
Dembowski explained in his testimony that the flower
shop had been running for several months with excessive
labor costs and he told Glauser that the costs had to be
reduced. He further explained that the impact of the cut-
back was imposed more heavily on part-time employees,
such as Feeback, because a reduction in hours of a full-
time employee might change his status to part-time and
thus cause her to lose fringe benefits as well as hourly
compensation. Part-time employees, as noted above, re-
ceive few fringe benefits.
Since her employment in September 1978, Rebecca
Donnelly had been employed on the midnight shift as a
clerk and cashier in the hardware department at the
Monroe Street store. She was classified as a part-time
employee, meaning that she worked less than 32 hours
per week. She was employed between the hours of 11:30
p.m. and 7:30 a.m. Until some time in January or Febru-
ary 1980, she was engaged to Robert Spitler, the assistant
night stock manager at that store.
Donnelly had been unhappy for a period of time be-
cause she had failed to receive a wage increase that as-
sertedly had been promised to her. In fact, she had made
a discrimination complaint to an unnamed organization
because of the failure of the Respondent to grant her a
wage increase. An investigator came to the store to in-
quire into her complaint but apparently nothing came of
the investigation. In January, her ex-fiancee asked Don-
nelly if she wished to join the Union. She said that she
needed more time to think about the matter. I credit her
statement that despite the fact that Spitler was a member
of the Respondent's management he said he would retain
a card for her to sign if she desired to do so.
14 Glauser said he did not know anything about Feeback's union ac-
tivities or sympathies He later testified that he saw her picture in a union
newspaper I find his testimony in this regard unreliable and conclude
that he knew that Feeback was a union supporter.
151
Donnelly attended the union meeting that took place
about January 29. She signed a card at that time. She at-
tended other union meetings as well. On the day follow-
ing the union meeting, she had a discussion with Carr
concerning a pay raise. Carr responded to her inquiry
about a raise by asking her about phone calls that she
made to various outside organizations concerning the
raise. I credit her testimony that, during this conversa-
tion, she told Carr that she had signed a union card.
During the midnight shift of January 16-17, Donnelly
and a fellow employee, Nancy Hendricks, were taking a
break. Apparently they had overstayed the time allotted
for the break because Spitler, who was in charge of the
store that night, came out of his office'to tell them to go
back to work. Donnelly retorted by asking Spitler
whether he had been checking timecards. They got into
an argument, in the course of which Donnelly suggested
that Spitler go back in the office and read a magazine or
watch television, adding "You are not my supervisor."
Hendricks immediately returned to work and, after the
exchange of words with Spitler, so did Donnelly.15
A few minutes later, Spitler wrote up a disciplinary
report on Donnelly for insubordination. In setting forth
the facts, he stated on the report, "She was on her break
period. Then when she came back then sat down for 15
minutes more and then I went up to her and asked her to
go back to work and then she said that, I don't have to,
and said that Larry and I was not her boss [sic]. She said
that Bob Carr told her that. I wonder if Bob told her it
was all right to walk around and talk half the night!"
[sic].16 He forwarded the writeup to Carr, who in turn
gave it Geerken. Although no recommendation had been
made by Carr or Spitler to fire Donnelly, Geerken de-
cided on this course of action and instructed Carr to
notify her of this decision on Monday night when she re-
ported for work. At the same time, Geerken decide to
discontinue the night operation of the hardware depart-
ment immediately because it had proved to be unprofit-
able. A decision to discontinue the operation had been
previously made and was scheduled to take effect the
week following Donnelly's discharge, but the dispute
that arose between Spitler and his former fiancee prompt-
ed Geerken to accelerate the termination of this shift.
At the beginning of the midnight shift on February 18,
Carr presented the writeup slip to Donnelly and dis-
cussed it with her. Donnelly wrote on the back of the
slip, "All I have to say is it was not Co. concerned. It
[was] a personal matter between Charlie and myself."
Carr also told her that the midnight shift in the hardware
department was being discontinued and informed her
that she would be able to collect unemployment compen-
sation. Donnelly asserts, and Carr denies, that he offered
to give her a letter of recommendation to assist here in
15 In an unusual conflict of testimony, Donnelly testified that she told
Spitler to "go to hell " Spitler said he had no recollection of this remark
She also said that Spitler called her a "bitch" and a "whore " Spitler's
denial of the latter accusation is corroborated by Hendricks
16 In Donnelly's view, she was never under the supervisory control of
Spitler She felt that she was never under the supervisory control of the
night manager, Larry Stribe. However, Stribe was not at work on the
night in question and Spitler was the highest ranking management repre-
sentative at the store
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
getting a job. She was given the equivalent of a week's
wages, which Dombowski said was accrued vacation
pay . 17
Spitler played no part in the decision to discharge
Donnelly nor was he asked for a recommendation in this
regard . He testified that, when he wrote up the discipli-
nary slip in question , he envisioned that what would
occur would be that someone would "talk to her and
straighten her around ." He further testified that he did
not know whether in fact she had been laid off or had
been discharged for insubordination . Donnelly felt that
she had been laid off and called Dombowski and Geerkin
on two occasions during the ensuing weeks to see if they
had additional hours for her. However , Carr and Geer-
ken testified that she was in fact discharged for insubor-
dination.
The day following Donnelly 's termination she engaged
in handbilling the store on behalf of the Union . Shortly
thereafter , she was referred for employment to a union-
ized grocery store . When she called Geerken in March
to ask for employment at Churchill 's, he asked her why
she wanted to come back to work at the Respondent's
store when she was making more money at Food Town.
Her reply was that she just liked working at Churchill's.
She was never reemployed by the Respondent.
William D . Winans worked for the Respondent for
about 3 months in early 1980 as a carry -out and front-
end employee at the Monroe Street store . He signed a
union card, attended union meetings, and, before his ter-
mination, handbilled the store on two occasions on
behalf of the Union . 18 He also wore a union button at
the store and engaged in a lengthy discussion with his
supervisor, Joyce Petree, in which he vigorously sup-
ported the Union 's position in the organizing campaign.
During a discussion , which lasted about half an hour,
Winans told Petree that he was in favor of the Union
and nothing she could say would change his mind.19
Petree had no answers to certain questions he posed con-
cerning wage rates and promotions so she told him he
could talk with Geerken and Dombowski about these
matters if he wanted . Petree did say to Winans that her
husband had worked for a unionized trucking company
and the union at that firm had done nothing for him. As
the discussion wore on, Petree then escorted Winans to
the front of the store and asked him , in the presence of
Geerken and Dombowski, if he had any questions.
Winans responded by asking Geerken and Dombowski
one question , the substance of which does not appear in
the record.
17 The Respondent's employee handbook states that "employees who
are terminated for dishonesty , insubordination , or other serious infraction
of rules and regulations will forfeit any earned vacation pay."
18 I credit Winans' testimony that as he was handbilling the Monroe
Street store Carr came to the front of the store and took pictures of the
event with a Polaroid Instamatic camera Carr admittted taking pictures,
denied he took pictures of employees engaged in handbilling, and ex-
plained that he was only photographing stranger pickets because he
feared they might do damage to his personal vehicle that was parked in
the store parking lot
19 Petree did not testify at the hearing and her absence was unex-
plained Under well-established rules of evidence, I conclude that had she
testified her testimony would have supported the allegations in the
amended complaint
Sometime before his discharge , Winans had another
conversation regarding the union campaign with
Glauser. I credit Winans' testimony to the effect that
Glauser asked him on this ' occasion if he supported the
Union and also asked him whether any interesting points
had been raised at the union meeting the preceding
evening. Winans informed Glauser that he was in favor
of the Union, but apparently said nothing about the
meeting. Glauser told Winans that if the Union came in,
he would reduce his section from four to two girls.
Within 2 weeks preceding his discharge , Winans re-
ceived three disciplinary writeups , which ostensibly
brought about his termination. On March 5, he was writ-
ten up by Petree for overstaying a 15-minute break.
Winans admitted that he had spent an excessive amount
of time on this occasion discussing the union campaign
with Glauser . On March 13 , Winans was written up for
parking his car in a section of the store parking lot re-
served for customers . On March 19, Winans received his
third and final disciplinary writeup . The narrative on the
writeup stated in pertinent part , "Marcie [Zielinski] and
Bill were bagging at the end of register 10, talking and
not paying attention to the cashier next door , who had to
bag her own groceries." He was told by Cheryl Hartline
that he was being written up for talking at a register
while working with another employee. Following this in-
fraction, he was fired the next day by higher manage-
ment.
An eyewitness account giving the Respondent's ver-
sion of the incident leading to Winans' termination is not
available since Cheryl Hartline, the supervisor who
wrote up Winans, did not testify . Her absence from the
hearing was not explained . According to Winans, he and
Zielinski had both been bagging a large order of grocer-
ies at a checkout register and were talking about a show
or concert that was coming to Toledo. The best that
Winans can say about the incident was that a customer at
the next register must have had to bag her own grocer-
ies. He did not notice anyone at the next register nor was
his attention invited to the situation by the cashier who
was checking out the customer 's groceries . Having been
written up, he was called to the office the following day
and told by Petree and Dombowski that he was being
discharged because he had three writeups during his pro-
bationary period. Dombowski informed him that Petree
had recommended this action but Winans objected,
saying that the action was being taken because of his
union activities . He was told he could appeal this deci-
sion to Geerken if he wished. Winans went upstairs to
the corporate offices to see Geerken and again accused
the Respondent of firing him for union activities. Geer-
ken denied the accusation , so Winans left the store.
C. The Alexis Road Store
Carole Ebersole is a part-time cashier at the Respond-
ent's Alexis Road store. In April 1980 , Douglas Bortz,
the manager of the Byrne Road store, was temporarily
transferred to Alexis Road. During his stay at Alexis
Road, Bortz talked with many employees concerning the
organizing campaign. I credit Ebersole's testimony that
Bortz had a private conversation with her in a small
CHURCHILL'S SUPERMARKETS
room on the store premises During this conversation, he
told her that if the Union came in, the Company might
as well "throw the box away " His reference was to a
small box that the Respondent maintained for the pur-
pose of collecting written applications from employees
for time off and for schedule changes On the topic of
wages, Ebersole complained to Bortz that she did not
think it was fair that some cashiers were paid more than
others and expressed the thought that all cashiers should
be paid the same amount Bortz' reply was that he was
aware that Churchill had done wrong in the past, but
they would have to make things right if the Union lost.
Bortz also told her that he did not care how she person-
ally felt about unionization
D. The No-Solicitation Rule
Both the General Counsel and the Respondent agree
that the Respondent has maintained a no-solicitation rule
in effect at the Respondent's stores. They sharply dis-
agree about the parameters of this rule. The exact nature
and description of the rule are difficult to determine
from the evidence in the record. The employee hand-
book contains the statement on solicitations quoted supra
in footnote 11.20 While these restrictions are set forth in
a company publication, it does not appear that either the
Respondent's management or employees were apprised
of this regulation When asked about the source of the
Company's no-solicitation rule and an explanation of its
contents, various witnesses gave various replies. Several
witnesses pointed to the sign "No solicitation" that ap-
peared on the front of the Monroe Street store and testi-
fied that this was the rule with which they were familiar
Some expressed the opinion that this posted rule was di-
rected to employees and strangers alike. Pieh stated that
the rule that was posted on the front door of the Monroe
Street store meant that communications by an employee
were prohibited except on his own time, meaning break-
time, lunchtime, and after work After checking with his
superiors, Pieh told Nebb that it was permissible for
Nebb to solicit if he was off the clock and the employee
being solicited was off the clock, but his efforts would
have to be confined to nonwork areas Pieh explained
that the prohibition against soliciting for the Union on
the company telephone was a longstanding policy and
stemmed from the fact that an employee is hired to do a
job and not to solicit for some other business Katt ex-
pressed some familiarity with the rule as set forth in the
employee handbook and said that an employee's break-
time was his own time but that employees were not free
to solicit on paid breaks, i.e., time off for which they did
not have to punch out as distinguished from breaks when
they punched out. Donbowski testified that the no-solici-
tation rule that prevailed at the Respondent's store was
an orally promulgated rule. He stated that the rule, as
posted on the front of the Monroe Street store, applied
both to employees and to customers, but then qualified
his statements by saying that the no-solicitation policy
prohibited solicitation on company time, not on working
time. He said that employees could organize only on
20 Elsewhere in the employee handbook "unauthorized solicitations"
are set forth as a minor infraction of company rules
153
their breaks or at lunch but could do so before and after
work According to Dombowski, solicitations of any
kind were not permitted outside the store in the parking
lot but exceptions were made for these veterans' annual
poppy sales and a campaign for funds in the Toledo area
known as the old newsboys' campaign.
II THE ENLARGEMENT OF THE RESPONDENT'S
HEALTH INSURANCE PLAN
For a number of years, the Respondent maintained a
health insurance plan with a private carrier, which cov-
ered the medical and hospital expenses of its full-time
employees, i e., those who worked in excess of 32 hours
per week. However, the plan did not provide for de-
pendent coverages unless the employee paid an extra
premium out of his own pocket. This omission was a
cause of employee criticism 21
Beginning in the late summer or fall of 1979, the Re-
spondent began to consider the possibililty of discontinu-
ing the use of an outside carrier and of providing health
insurance coverage to its employees through self-insur-
ance fund It asked the broker who had provided the
Company with casualty insurance coverage to investi-
gate this possibility and to provide the Respondent with
quotations about the cost of such a plan and whether any
increase in benefits that could be realized from self-insur-
ance without an increase in cost to the Company. The
broker delayed several months in providing the request-
ed information but, in late February 6r early March,
gave the Respondent a quote that included the estimated
cost of self-insurance for normal loss and the cost of a
catastrophe override premium with a carrier who would
pay unusually large claims that might occasionally arise.
The broker also suggested at that time that the Respond-
ent wait a few more weeks before concluding a deal be-
cause he felt that he could obtain better catastrophe cov-
erage from another insurance company. The Respondent
agreed
Early in April, the broker presented the Respondent
with another quotation and, within a matter of days, the
Respondent executed the documents necessary to put the
insurance plan into effect One of the elements contained
in the new plan was dependent coverage. On April 14, 1
month after representation petitions were filed and 2
weeks before the existing health insurance coverage with
an outside carrier was due to expire, General Churchill
sent a letter to all employees announcing a new health
insurance plan, effective May 1 The announcement
stated that the new plan included no change for depend-
ent coverage, fully paid hospital coverage, free prescrip-
tions, improved diagnostic, X-ray, and laboratory serv-
ices, no deductible for surgery or anesthesia, $100 per
week disability income, improved dental coverage, and
$5000 in life insurance Churchill commented in his letter
that the new plan was "one of the finest health care
plans in the Toledo area and it is far better than any of
2' For example, Nebb included among his longstanding grievances a
complaint to Pieh about lack of dependent coverage in the Respondent's
medical and hospital plan Shultz mentioned lack of dependent coverage
in the letter, which she mailed to all the Respondent's employees on
behalf of the Union sometime in April 1980
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those offered by our competitors All full-time employees
are eligible for this plan "
Analysis and Conclusions
A. Independent 8(a)(1) Violations
The record in this case contains an undifferentiated
combination of the trivial and the serious . The independ-
ent violations of Section 8(a)(1) to be found in the record
are the following:
(a) It is well established that the solicitation of employ-
ee grievances during an organizing campaign with a
view toward ultimately redressing those grievances is an
unfair labor practice . Hi-Lo Foods, 247 NLRB 1079
(1980); Montgomery Ward & Co., 253 NLRB 196 ( 1980),
and Berger Transfer Co., 253 NLRB 5 (1980). In Febru-
ary 1980, immediately after learning of the organizing
campaign , Shook held a meeting of warehouse employ-
ees, at which he stated that he thought that the ware-
house group was one big happy family. He asked specific
employees what their problems were, adding that they
should have settled their problems internally without
third-party intervention , and then threw the floor open
to a general discussion of employee complaints . Some of
these complaints , such as lack of a specified lunch hour
and Tucker 's complaint that he was entitled to health in-
surance benefits , were quickly remedied . Another discus-
sion, held a few days later between the same group of
employees and Geerken when employee complaints were
rehashed , was simply a resumption of the earlier meet-
ing. Both events constitute solicitations of grievances in
violation of Section 8(a)(1) of the Act.
At a later time, during an employee evaluation session,
Pieh and Nebb discussed the Union . They also discussed,
in response to Pieh 's invitation , the grievances that
prompted Nebb to take an active role in the organizing
campaign Pieh 's statement to Nebb that his complaint
concerning a small wage differential for assistant manag-
ers should be looked into after this "union thing" is over,
is clear evidence of the purpose of soliciting the griev-
ance. This solicitation of Nebb 's grievances by Pieh con-
stituted a violation of Section 8(a)(1) of the Act, and
Pieh 's statement to Nebb accompanying the solicitation
amounts to an unlawful promise of the benefits, which
also violates Section 8 (a)(1) of the Act.
(b) Shook 's admitted threat to warehouse employees at
the February 1980 meeting that if the Union came in the
warehouse would be closed and employees would be out
of jobs and ineligible for unemployment compensation is
a serious violation of Section 8(a)(1) of the Act.
(c) Glauser's statement to Wielgopolski that in the
event of unionization there would be layoffs at the store
constitutes a threat that violates Section 8(a)(1) of the
Act.
(d) Glauser 's statement to Wielgopolski on the same
occasion that there would be a strike because the Re-
spondent would not give the Union a contract consti-
tutes another violation of Section 8(a)(1) of the Act
(e) Glauser 's questioning of Wielgopolski , in the con-
text of the above -recited remarks, about how he felt
about the Union constitutes coercive interrogation and a
violation of Section 8(a)(1) of the Act
(f) Credited testimony indicates that, in February 1980,
Langenfelder asked Wingler if he attended a union meet-
ing, how large the meeting was, and what he thought of
the meeting . Such questioning is coercive and violates
Section 8(a)(1) of the Act
(g) Credited testimony also indicates that , shortly after
the discharge of Rebecca Donnelly, Wingler , and Kay
Miller stated in Langenfelder 's presence that she had ob-
tained a job at Food Town , a unionized store. Langen-
felder then told them that, in a couple of weeks, he
hoped the Union could find a lot of other jobs This
statement was an implied threat to discharge union sym-
pathizers and violated Section 8(a)(1 of the Act. The fact
that Dombowski tried to calm Wingler's fears of dis-
charge after hearing Wingler's complaint about Langen-
felder's statements does not prevent the earlier remarks
from being an unfair labor practice . His efforts simply
confirm the coercive character of Langenfelder 's state-
ments
(h) Pieh repeatedly questioned Nebb about union mat-
ters He asked Nebb on one occasion how many people
had showed up at a union meeting, pointed Nebb out to
another supervisor as being a union leader who was a
source of information concerning union efforts, asked
Nebb how many of his people were getting involved
with the Union , and asked Nebb if the Union was com-
pensating him for his union activities Despite the fact
that such questions were posed to a known sympathizer,
such questions and statements constitute violations of
Section 8(a)(1) of the Act. PPG Industries , 251 NLRB
1146 (1980)
(1) Pieh 's statement to Nebb that the Company had
sources of information within the union organizing effort
constitutes an attempt to convey the impression that
union activities of employees were the subject of compa-
ny surveillance and is a violation of Section 8(a)(1) of the
Act
(k) Pieh 's statements to Dewayne Bell that he heard he
had attended a union meeting and his admission that he
made the statement in order to get Bell to admit his
union activities constitutes unlawful interrogation which
violates Section 8 (a)(1) of the Act.
(1) Pieh ' s statement to Nebb that General Churchill
would be shocked to see his name at the top of the list of
union organizers constitutes an attempt to create the im-
pression that the union activities of employees were sub-
ject to company surveillance in violation of section
8(a)(1) of the Act.
(m) After Penelope Shultz disseminated a campaign
letter to 400 store employees , Pieh asked her where she
got the information contained in the letter to the effect
that the Company had made $6.4 million in profits. I do
not regard this question as coercive interrogation, inas-
much as Shultz stated in the letter that she invited inquir-
ies concerning its contents and would personally stand
behind whatever she had written
(n) Katt asked Christine Curtis several questions con-
cerning her union efforts, including why she wanted a
union and why she thought a union was necessary.
These questions constitute a violation of Section 8(a)(1)
of the Act.
CHURCHILL'S SUPERMARKETS 155
(o) Pieh's statements to Sheila Lemble near the smoke-
house at the Monroe Street store in February 1980, con-
cerning changes that would occur in working conditions
if the Union were successful, constitute unlawful threats
which violate Section 8(a)(1) of the Act.
(p) Pieh's statement on the day following a union
meeting to Lemble that he knew where she had been
when she failed to show up for a card game at his house
the previous evening constitutes an attempt to convey
the impression that the union activities of employees
were subject to company surveillance and violates Sec-
tion 8 (a)(1) of the Act.
(q) When Kennedy told Marci Zielinski that there had
been a change in company policy concerning the grant-
ing of leaves of absence to summer employees to work at
Christmastime and that the discontinuance of this policy
was due to the union organizing campaign, this statement
violated Section 8(a)(1) of the Act.
(r) Having discredited the testimony of Gordon Zie-
linski , I recommend that so much of the amended com-
plaint that relates to allegations concerning him and
Richard Carr be dismissed
(s) When Petree took William Winans to see Geerken
and Dombowski and asked him in their presence, if he
had any questions concerning the organizational cam-
paign, she caused him some embarrassment because she
was, in effect, interrogating him and pointing out to Re-
spondent's top management the identity of a union activ-
ist. Such an action is an interference with union activities
and a violation of Section 8(a)(1) of the Act.
(t) Glauser's questioning of Winans about how he felt
about the Union and whether any interesting points had
been raised at a union meeting Winans attended consti-
tute unlawful interrogation within the meaning of Sec-
tion 8(a)(1) of the Act. Glauser's further statement to
Winans that he would reduce the size of his section if the
Union came in is a threat to discharge employees in re-
prisal for union activities and violates Section 8(a)(1) of
the Act.
(u) Bortz' statement to Ebersole that he would discon-
tinue the practice of permitting employees to ask for
days off and to rearrange their schedule in the event of
unionization is a threat that violates Section 8(a)(1) of the
Act.
(v) Bortz' further statement to her that the company
would make improvements in benefits if the union lost is
a promise of unstated benefits that violates Section
8(a)(1) of the Act.
(w) Carr admitted photographing pickets as they were
patroling at the Monroe Street store, but denies photo-
graphing any employees in the process of doing so. I dis-
credit the denial and conclude that, by photographing
employees in the exercise of rights guaranteed to them
by Section 7 of the Act, the Respondent violated Section
8(a)(1) of the Act.
(x) An employer may lawfully forbid employees from
engaging in solicitations for any nonwork related object
so long as the prohibition is limited to working time, is
nondiscriminatory in its application, and there is no inde-
pendent evidence that the rule is being imposed for
union-related considerations. However, if a no-solicita-
tion rule is overly broad, it is an unlawful interference
with employee rights guaranteed by Section 7 of the
Act.22 Furthermore, if the parameters of a no-solicitation
rule are vague or ambiguous, the risk of noncompliance
with the limitations established by the Supreme Court
falls on the employer G. C. Murphy, Inc., 171 NLRB
370 (1968); Knapp Foods, 247 NLRB 1079 (1980), NLRB
v. Charles Co., 341 F 2d 870 (2d Cir 1965)
The scope of the rule set forth in the Respondent's
employee handbook complies with the requirements of
the Supreme Court decisions. However, it appears that
both management and employee witnesses were unfamil-
iar with the rule as recited therein and several pointed to
the flat "no solicitation" notice posted on the front door
of the store as being the rule by which they were bound
This rule is drastically overly broad and, if applicable to
employees, constitutes an interference with their Section
7 rights. Some witnesses indicated that the posted rule
applied both to strangers and to employees Other wit-
nesses indicated that the no-solicitation rule was an oral
rule that permitted soliciting on nonwork time and for-
bade soliciting during working time. Such a rule is a
valid rule Another witness said that employees could so-
licit during those breaks they took when they were not
required to punch out
In light of these varying versions of the scope of the
Respondent's no-solicitation rule-some describing a
legal and some describing an illegal one-it can only be
concluded that the Respondent's employees were being
subjected to restrictions that suffer from the vice of
vagueness Accordingly, when the Respondent attempted
to restrict the union activities of its employees on compa-
ny premises by means of an ambiguous no-solicitation
rule, it violated Section 8(a)(1) of the Act.
Nowhere in the rule in any of its announced versions
was a clerk forbidden to greet or have casual conversa-
tions with customers Indeed, it would hardly be in keep-
ing with the functions of a clerk or waitress to avoid
greeting or speaking to a customer Accordingly, when
Katt issued a warning to Christine Curtis after she gave
a casual greeting to two union organizers who were cus-
tomers at the Monroe Street coffeeshop, Katt was not
enforcing the provisions of any no-solicitation rule. The
real thrust of her warning was to prevail on Curtis to
avoid union representatives Such a warning constitutes a
violation of Section 8(a)(1) of the Act. Montgomery Ward
Co., 256 NLRB 800 (1981).
Similarly, an employer had every right to restrict the
use of company telephones to business-related conversa-
tions and to forbid employees from using company
phones for personal reasons. However, this employer did
not do so and a practice grew up over a long period of
time of permitting employees to use company phones for
personal matters so long as their calls did not tie up the
switchboard The only exception to this admittedly loose
practice came about when Nebb called his counterparts
in the meat department at another store, informed them
of an upcoming union meeting, and asked if anyone was
22 Republic Aviation Co v NLRB, 324 U S 793 (1945), NLRB v Bab-
cock & Wilcox Co, 351 U S 105 (1956), NLRB v Steelworkers, 357 U S
357 (1958), Stoddard-Quirk Mfg Co, 138 NLRB 615 (1962), see also
TR W, Inc, 257 NLRB 442 (1981)
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
interested in taking part in the organizing effort. For this
call he was reprimanded and told that such calls should
not be made on company phones. When an employer sin-
gles out union activity as its only restriction on the pri-
vate use of company phones, it is not acting to preserve
the use of the phones for company business. It is interfer-
ing with union activity, and such interference constitutes
a violation of Section 8(a)(1) of the Act.
(y) When an employer confers on his employees an in-
crease in wages or benefits during the course of a union
organizing campaign, its action is presumptively a viola-
tion of the Act. NLRB v. Exchange Parts, 375 U.S. 405
(1964). It is incumbent on any employer seeking to avoid
the consequences of this presumption to justify its action
on some nondiscriminatory business-related basis In the
present case, the Respondent announced to all its em-
ployees a new and enlarged program of medical and in-
surance benefits on April 14, 1980, just a month after it
received a demand for recognition from the Union cov-
ering its warehouse unit and two petitions for representa-
tion elections relating to its Monroe Street and Alexis
Road stores Respondent's defense is that it was contem-
plating the institutions of these improvements in its insur-
ance program all along and that the timing of the an-
nouncement and the implementation of the program co-
incidental with the Union's organizing effort was purely
happenstance. The argument strains credulity.
Respondent's longstanding desire to improve the criti-
cized deficiencies in its medical insurance program was a
low priority item on the corporate agenda until the
advent of the union drive. In its discussions with its in-
surance broker concerning self-insurance and enlarged
benefits, months went by, nothing happened, and no one
said anything. Shortly after the organizing campaign
swung into a serious preelection phase, a greatly expand-
ed program of health insurance, as well as other insur-
ance, was in place in a matter of days
It was by no means indispensable for the Respondent
to await the expiration of its former insurance policy to
adopt a program of partial self-insurance in order for it
to provide the insurance benefits announced to employ-
ees on April 14. The improvements could have been
made months or years before the Union started its orga-
nizing campaign. In announcing the revised plan, Gener-
al Churchill pointed out to his employees that "it is far
better than any of those offered by our competitors."
This was simply a veiled reference to health insurance
plans then in effect in the unionized stores in the Toledo
area. Far from being coincidental with the union drive,
the new health plan was prompted by a desire to head
off the union drive, a desire that also manifested itself in
nearly two dozen separate and different violations of the
Act, which the Respondent committed within the same
time frame it was revising its health insurance program.
Accordingly, I conclude that by instituting and announc-
ing a revised and improved plan of health and other in-
surance for its employees the Respondent herein violated
Section 8(a)(1) of the Act.
B. The 8(a)(3) Violations
As noted above, the acts and conduct of the Respond-
ent in discharging, transferring, or otherwise adversely
affecting the hire and tenure of its employees during the
course of the organizing drive23 must be measured
against a background of repeated and well-established
unfair labor practices aimed at preventing the unioniza-
tion of its warehouse and stores. As a result, events that
might otherwise take on a neutral coloration become
tinged with illegality as the Respondent's determination
to resist unionization spilled over from threats and prom-
ises into adverse actions taken against employees.
1. The discharge of Richard Doll
Richard Doll was a reliable and likeable employee, ac-
cording to Faust He had worked at the warehouse for
nearly 2 years at the time of his discharge in late March
1980. He had a problem and his problem was well
known to supervisors and employees alike, but it was a
problem that they were willing and able to live with. At
no time did his immediate supervisors at the warehouse
have any disposition to discharge Doll but, as in the
cases of the other discriminatees named in the amended
complaint, deficiencies that the employee's immediate su-
pervisors were willing either to overlook or to recom-
mend for routine internal correction became, in the mind
of Company Vice President Richard Geerken, grounds
for discharge. Doll's termination was a case in point
Doll had been coming to work from time to time with
beer on his breath for as long as he had been working
for the Respondent. His drinking habits had come to the
notice of Shook and Faust, as well as supervisors outside
the warehouse, because of a string of minor accidents
that presumably arose as a result of Doll's operating
company equipment under the influence of alcohol.
None of these events provoked more than a mild rebuke.
Indeed, none of these events prevented Respondent's
management from having an occasional beer with Doll
at lunchtime at the Roadhouse, then returning to work
afterwards. However, once Doll had evidenced his union
sympathies by handbilling a store, the Respondent's atti-
tude, at least as it was reflected in the actions of Geer-
ken, dramatically changed. On Doll's final day of work,
Geerken visited the warehouse and orchestrated a series
of events designed to provide the Company with conclu-
sive proof that Doll had been drinking in violation of a
provision of the employee handbook, a provision that
had been overlooked in his case for nearly 2 years. Faust
found Doll on his lunchbreak at his usual haunt doing his
usual thing and reported her expected findings to Shook,
who confirmed them by phoning the bartender. After
Doll returned, he was written up for a 3-day suspension.
When the disciplinary form reached Geerken's desk, the
recommended suspension was converted into a discharge
and Doll was so informed.
Doll was a known activist who was discharged for a
habit that had been indulged by the Respondent until his
union sympathies became known and reported. The dis-
charge came just after the Respondent received a
demand for recognition as the bargaining agent for the
23 In fact, the threat of unionization is still extant because the represen.
tation petitions filed early in 1980 have not resulted in elections because
of blocking charges that are yet unresolved
CHURCHILL'S SUPERMARKETS 157
warehouse unit and at a time the Respondent was engag-
ing in a campaign of unfair labor practices designed to
prevent unionization at any cost. In light of these factors,
as well as the difference of opinion within the ranks of
the Respondent's management as to the gravity of the
event that triggered the discharge, I conclude that Re-
spondent's stated reason for firing Doll was wholly pre-
textual and that its real reason was its desire to eliminate
a known union enthusiast from its payroll. Accordingly,
the discharge of Richard Doll violated Section 8(a)(1)
and (3) of the Act
of the record in this case, there is no way to determine
how long a normal tour of duty was at this particular
post or what personnel demands and options existed at
the time that might have dictated this assignment. More-
over, Wielgopolski was ultimately given another less iso-
lated assignment or series of assignments, an unlikely
turn of events had the Respondent maintained any fixed
intention of placing Wielgopolski in a position where he
could not talk union to other employees at the jobsite.
Accordingly, I would dismiss the portion of the amended
complaint that alleges that Joseph Wielgopolski was
given a job assignment on a discriminatory basis.
2. The reduction in hours of Charles Tucker
Tucker was also a known union supporter who had
evidenced his union sympathies by handbilling two of
the Respondent's stores. His complaint before the Board
was not that he was discharged, but that his working
hours were cut because of his union activities The
weekly summary of Tucker's hours during the late
winter and spring of 1980 show a fluctuation in his
workweek, but hardly a steady decline or a precipituous
drop. Indeed, in the mid-summer of 1980, he was work-
ing more hours than he had worked in several individual
weeks in March and April. Faust's refusal to provide
Tucker with his timecards at a time Tucker was voicing
a complaint to her about a reduction in working hours is
a suspicious circumstance, but it is not enough to show
either discriminatory motivation or, more importantly,
that any discrimination in fact took place In light of the
paucity of evidence on this latter point, I must conclude
that the General Counsel has failed to prove by a pre-
ponderance of the evidence that Tucker suffered an ille-
gally motivated loss of hours, so the provision of the
amended complaint on this point must be dismissed.
3. The reassignment of Joseph Wielgopolski
Wielgopolski worked for the Respondent about 5
months as a front-end employee, meaning that he was
normally rotated into and out of a number of menial jobs
in the grocery store as the demand for his services arose.
He testified that he signed up employees in the store and
that not long after Geerken saw him signing up an em-
ployee, he was placed in isolation by being assigned con-
sistently to load groceries into customer cars in front of
the store. The impression that Wielgopolski left with the
Respondent's supervisory force was of such magnitude
that they cannot even remember him as an employee,
though no formal contention was advanced that he did
not in fact work at the store.
Isolating an employee from other employees for dis-
criminatory reasons is a violation of the Act but, like any
other discriminatory act, it must be established in the
record by something more than surmise or suspicion. In
this case, we have little more to go on than Wielgopols-
ki's surmise. Loading groceries into customer autobmo-
biles was one of the jobs normally assigned to a front-
end employee so there is nothing unusual or noteworthy
in the fact that such an assignment was made to Wielgo-
polski Wielgopolski is apparently unhappy about the fact
that he filled this job for 2 consecutive weeks before
being shifted to some other task However, on the state
4 The reduction in overtime hours of Clyde Nebb
Nebb's complaint that his overtime hours were re-
duced because of his union activities presents a very
close question of fact. Nebb was an activist and was sus-
pected by his immediate supervisor of being a leader in
the union movement A great deal of independent 8(a)(1)
conduct committed by the Respondent was directed par-
ticularly at Nebb As indicated from the summary of
hours worked by Nebb throughout 1980, Nebb did suffer
in the aggregate a differential in hours worked between
the first part of 1980 and the last part of 1980 of approxi-
mately 1.4 hours per week. The reduction coincided
with the replacement at the Monroe Street meat depart-
ment of his longtime friend and associate, Jack Pieh, by
Vern Viers, a manager who was transferred to Monroe
Street from another store. From time to time, Viers
brought in employees from his former location to work
at Monroe Street, thereby diminishing the overtime op-
portunities of employees at the Monroe Street meat de-
partment, including, but not limited to, Nebb. Nebb
stated without contradiction that all the meat department
employees at the Monroe Street were union supporters.
The fact that other employees were brought in to
work at the Monroe Street meat market from time to
time by the Respondent means that the predictable effect
of such assignments resulted from deliberate action on
the part of the Respondent, not from chance or from un-
planned fluctuations in the workload The record is
barren of any explanation for this revised personnel prac-
tice other than the one suggested by Nebb, namely, that
he and other union supporters at Monroe Street were
being punished for their known union sympathies. This
explanation is made quite plausible by heavy-handed
demonstration of animus exhibited by the Respondent on
other occasions. Accordingly, I conclude that, by reduc-
ing Nebb's hours of work, the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
5. Restrictions on picnic guests
There is no factual dispute that, in previous years, em-
ployees attended the annual company picnic for a nomi-
nal charge and were free to bring family members and
guests without any stated limitations or advance screen-
ing. In 1980, two employees sought to invite union repre-
sentatives to attend as their guests and were rebuffed. A
system had been devised whereby purchasers of tickets
to the outing had to state in writing in advance the
names of guests they wished to invite. When the names
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of union organizers were found on the lists submitted by
Lemble and Shultz, tickets were withheld. These em-
ployees were told that -the reason for the Respondent's
action was that it blamed union organizers for miscon-
duct at the Central Avenue store and did not want them
to attend the picnic. While the right to invite guests to
an annual social event was a nominal fringe benefit, it
was still part of the terms and conditions of employment
at the Respondent's stores. When this benefit was with-
drawn in order to insulate employees from social con-
tacts with union representatives, the Respondent violated
Section 8(a)(1) and (3) of the Act.
6. Refusal of a leave of absence to Marci Zielinski
The record establishes that, prior to 1980, the Re-
spondent followed a practice of granting leaves of ab-
sence to summer employees who left for college in Sep-
tember, thereby assuring them of employment when they
returned home at Christmastime. The advantage to em-
ployees of assured Christmas employment is obvious and
the policy had advantages for the Respondent as well,
inasmuch as it assured the Respondent not only of extra
help during its holiday rush, but the availability of expe-
rienced employees during this season . Zielinski, a known
union sympathizer, wished to take advantage of this
policy in 1980 and made repeated requests to obtain such
a leave. On each occasion, she was instructed to fill out a
form, which was never furnished. I have credited her
testimony that she was finally told by Kennedy that the
Company had discountinued the policy of giving leaves
of absence to summer employees permitting their return
at Christmastime and that, if she wanted Christmas em-
ployment, she would have to apply at or near the date
she wanted to come back to work and, in effect, take her
chances with other applicants who were interested in
coming to work at that time. He stated that the reason
for this change in policy was the union organizing cam-
paign. When Zielinski was denied a leave of absence and,
in effect, denied reemployment, the Respondent violated
Section 8(a)(1) and (3) of the Act. Zielinski became a dis-
criminatee as of that moment. The fact that the discrimi-
nation might not have been limited to her and may have
flowed from the implementation of a discriminatory gen-
eral policy is immaterial to this finding. Nor is it material
to the finding that six other summer employees were re-
hired on application in December, while Zielinski did not
make such an application. If it has any relevance at all,
Zielinski's failure to make what, in essence , is a second
application for Christmas employment bears only on the
amount of backpay to which she might be entitled.
7. The evaluation of Marilyn Feeback and the
reduction in her hours
In July 1980, Glauser gave known union suporter Mar-
ilyn Feeback a wholly unsatisfactory rating on her per-
sonnel evaluation sheet-a 0 on a scale of 10-for loyal-
ty. He explained to her that the fact that she had attend-
ed union meetings contributed to this evaluation. A pos-
sible effect of such an evaluation could have been to
place her future employment with the store in jeopardy.
Accordingly, it amounts to a discrimination in hire or
tenure aimed at discouraging union activity and violates
Section 8(a)(1) and (3) of the Act. The fact that the ille-
gal entry was later removed does not detract from this
finding, inasmuch as it is well settled that the discountin-
uance of an unfair labor practice is not a defense to the
entry of a Board order.24
A few weeks later, the Respondent reduced Feeback's
hours by 1 full, day each week. The record is indistinct
as to how the reduction in her hours compared with re-
ductions in the hours of other flower center employees,
although there is no contradiction in the record for
Glauser's assertion that all flower center employees re-
ceived reduced hours. One unanswered question is why a
large store with a considerable turnover made no effort
to provide these clerks with additional hours in other de-
partments when cutbacks took place at the flower center.
An inference can be drawn from Dombowski's testimony
that a greater impact from this reduction fell on Feeback
than on other employees, since care was taken not to
reduce the hours of full-time employees in the flower
center to the point where they would no longer be eligi-
ble for medical insurance and other fringe benefits.
Feeback was a known union supporter. In September
1980, when her hours were cut by 1 day per week, she
had already been subject to one discrimination in the
form of a poor evaluation. Glauser once told Winans
that, if the Union came in, he might have to cut back his
staff from four employees to two. While this statement
might arguably be a prediction rather than a threat, it il-
lustrated the tenor of his thinking. No objective standard
was suggested or established by the Respondent as the
basis on which it cut Feeback's hours in the amount they
were cut. Accordingly, in light of this evidence and the
strong animus established elsewhere in the record, I con-
clude that, by cutting Feeback's hours of work in Sep-
tember 1980, the Respondent violated Section 8(a)(1) and
(3) of the Act.
8. The discharge of William Winans
Winans was a union sympathizer whose support was
both voluble and conspicuous. He handbilled the store,
attended meetings, wore a union button to work, and en-
gaged in a lengthy discussion with his supervisor in
which he told her that nothing she could say could
change his mind about supporting the Union. In the mind
of a discriminatory employer, such an employee is a
prime candidate for removal, "especially if he is a short-
term employee.
The basis for the discharge of Winans was three write-
ups in 2 weeks for manifestly petty misdeeds. He was de-
tained by a supervisor, Glauser, during his break because
Glauser wanted to discuss the union campaign and was
thereafter written up for returning late to the job. He
parked his car in the wrong part of the store parking lot,
but instead of asking him to move his car, the Respond-
ent left the car where it was and gave Winans a writeup
instead. The third and final infraction that led to his ter-
mination was that he was talking with another employee
24 NLRB v, Mexta Textile Mills, 339 U S 563 (1950), Bandag, Inc, 225
NLRB 72 (1976), enfd 583 F 2d 765 (5th Cir 1978)
CHURCHILL'S SUPERMARKETS 159
while bagging a large grocery order and evidently did
not see a customer who was being checked out at the
next register No one called his attention to the custom-
er's need for assistance when the event was occurring,
nor is there any rule, practice, or custom that says that
employees at the Respondent's store may not talk with
each other while working. Moreover, there is no evi-
dence that he was not, in fact, working while talking to
Zielinski, and it is difficult to see how he could be bag-
ging groceries at two different locations at the same
time. This was at most a trivial oversight, one which was
too insignificant to bring to his attention while it was oc-
curring so it could be rectified if necesary, but important
enough to be the subject of a terminal disciplinary
action. Because the Respondent was able to collect three
of these writeups during Winans' probationary period, all
of which arose after his union sentiments became known,
the Respondent felt that there was a technical basis for
Winans' discharge and he was fired
Winan's discharge is a classic pretext case. The Board
has said many times that it is motivation, not justifica-
tion, that determines the legality of a discharge, because
there is hardly a case in which some kind of justification,
however strained or tortured, cannot be found to support
an employer's action in terminating an employee In this
case, there is little doubt that, but for Winans' union en-
thusiasm, the pecadillos that found their way into disci-
plinary writeups would have passed without notice or
would have been corrected on the spot. If an employer
who wishes to reserve parking spaces in front of the
store for its customers prefers to discipline an employee
for illegal parking and does not even ask him to move
his car, it is clear that it was much more interested in
punishment than in parking spaces. If an employer insists
on writing up an employee for failing to bag a custom-
er's groceries, but fails to tell him, while the customer is
waiting, that he should stop talking and assist the cus-
tomer, it is equally clear that the employer was more in-
terested in punishment than in servicing its checkout
counter. Such is the case presented in this record relating
to William Winans. Accordingly, when the Respondent
discharged Winans, it did so to discourage his member-
ship in and support of the Union and violated Section
8(a)(1) an (3) of the Act. I so find and conclude.
night shift in her department and I credit her testimony
that he offered to provide her with a reference for other
employment. He left her with the impression that she
was being laid off for an indefinite period of time, not
that she was being discharged for misconduct. It is estab-
lished that she received a week's pay on her termination
and, in light of the stated policy in the employee's hand-
book that employees fired for insubordination forfeit ac-
crued vacation pay, I discredit the explanation that the
money in question represented vacation pay. In general,
employees discharged for cause are not given severance
pay, although such sweeteners are not uncommon in
cases of layoff or in situations when an employer wishes
simply to ease an employee off the payroll because a
sticky situation has arisen. I credit Donnelly's statement
that Carr told her she would be eligible for unemploy-
ment compensation, an entitlement she could not enjoy
immediately if she was being discharged for cause. The
supervisor most concerned with Donnelly's abrupt be-
havior made no recommendation to terminate her nor
was he even consulted about the decision. In fact, all
that he wanted when he wrote up Donnelly was that
some other supervisor speak to her and straighten her
out He was unsure even at the time of the hearing why
it was that she was terminated
There is no doubt that Donnelly was insubordinate
with Charles Spitler on her final night of work, and
there is likewise no doubt that the incident, minor
though it was, arose in substantial part because of a close
personal relationship between the two individuals that
had recently been severed. I believe that the Respondent
eased out Donnelly because it did not want a repeat of a
personal incident that occurred and felt, perhaps with
some justification, that another spat between the lovelorn
might take place if Donnelly were allowed to remain on
the Respondent's payroll. Although this might be no
way to treat a lady, it does not amount to a violation of
law that this agency can remedy Accordingly, I would
dismiss so much of the amended complaint that alleges
that Rebecca Donnelly was discharged in violation of
Section 8(a)(1) and (3) of the Act.25
C. The Respondent's Refusal to Bargain in the
Warehouse Unit
9. The discharge of Rebecca Donnelly
The discharge of Rebecca Donnelly presents the clos-
est of the three discharge cases because, unlike Winans
and Doll, Donnelly was not a leading supporter of the
Union and confined her union activities to signing a card
and attending a meeting or two She was initially reluc-
tant to sign a card and put off doing so The Act does
protect casual union suporters as well as zealous ones
and credible evidence supports a finding that Respondent
was aware of Donnelly's union sympathies because she
told Carr she had signed a card.
While the Respondent now states that Donnelly was
discharged for insubordination growing of an incident
occurring on the midnight shift of February 16-17, 1980,
it is not at all clear that it treated the termination as such
when it occurred Carr discussed with Donnelly in detail
the fact that the Respondent was closing down the mid-
The Union made a demand for recognition with re-
spect to the warehouse unit about March 10, 1980. The
Respondent refused the demand and insisted on an elec-
tion. At the time there were five employees in the unit
and all five had signed designation cards, which they
later authenticated at the hearing in this case. Respond-
ent's counsel admitted that the Respondent had no doubt
about the Union's majority status, as indeed he could
not, because that status had been already demonstrated in
open court Accordingly, any insistence on an election to
reaffirm or redemonstrate that status is at best an unnec-
essary imposition.
25 Donnelly handbilled the store on the day following her termination
and got a well -publicized job at a unionized store However, this is all
po.tditichatge activity and can have no bearing on the moving cause
behind her removal
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in 1969, the Supreme Court declared in Gissel Packing
Co., supra, that the Board may issue a bargaining order
in lieu of directing an election in cases where an employ-
er's unfair labor practices are so serious that a fair and
free election cannot be held. In the period of time that
has elapsed since Gissel, this approach to remedying seri-
ous unfair labor practices has been repeatedly applied
both by the Board and the courts. NLRB v. Medley Dis-
tilling Co., 454 F.2d 374 (6th Cir. 1971); NLRB v. Sulli-
van Electric Co., 479 F.2d 1270 (6th Cir. 1973); NLRB v.
Scott-Gross Co., 477 F.2d 64 (6th Cir. 1973); Litton Busi-
ness Systems v. NLRB, 497 F.2d 262 (6th Cir. 1974).
The employees in the unit in question were threatened
with loss of their jobs, coercively interrogated, solicited
for grievances, and subjected to the sight of one of their
members being discharged for union activities. Such con-
duct alone would warrant the issuance of a Gissel
remedy. The other unfair labor practices found in this
case-some of them applicable throughout the Respond-
ent's system and others a matter of individual misconduct
toward employees at two of the Respondent's four
stores-serve only to confirm this recommendation and
to emphasize a violation of Section 8(a)(1) and (5) of the
Act.2 6
CONCLUSIONS OF LAW
1. Respondent Churchill's Supermarkets, Inc. is now
and at all times material has been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Food and Commercial Workers International
Union, AFL-CIO-CLC, Locals 954 and 626 are labor
organizations within the meaning of Section 2(5) of the
Act.
3. All regular full-time and part-time employees em-
ployed at the Respondent's Toledo, Ohio warehouse, ex-
cluding all office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act are
a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.,
4. Since about March 10, 1980, United Food and Com-
mercial Workers International Union, AFL-CIO-CLC,
Locals 954 and 626, have been the exclusive collective-
bargaining representative of all the employees in the unit
found appropriate in Conclusion of Law 3 for purposes
of collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing to recognize and bargain collectively
with the above-named unions as the exclusive collective-
bargaining representatives of its employees employed in
the bargaining unit found appropriate in Conclusion of
Law 3, above, the Respondent violated Section 8(a)(5) of
the Act.
26 Respondent challenges here, as it did in the representation case, that
a single-store or single -unit bargaining unit is appropriate . It is well-estab-
lished in the retail trade that a single-store unit is presumptively appropri-
ate Haag Drug Co, 169 NLRB 877 (1968) There is nothing in the
record before me that would overcome this presumption, and there was
apparently nothing in the record of the representation cases (which are
not before me) to lead the Regional Director and the Board to a contrary
conclusion. See also Gray Drug Stores, 197 NLRB 924 (1972).
6. By discharging Richard Doll and William Winans;
by reducing the hours of Clyde Nebb; by forbidding em-
ployees from inviting guests to the annual company
picnic; by refusing to grant a leave of absence to Marci
Zielinski; and by giving Marilyn Feeback and unfavor-
able personnel evaluation and by reducing her hours of
work, all because they were members of or active on
behalf of the Union, the Respondent violated Section
8(a)(3) of the Act.
7. By the acts and conduct recited above in Conclu-
sions of Law 5 and 6; by soliciting grievance from em-
ployees for the purpose of providing remedies ; by threat-
ening employees with discharge with the closing of the
warehouse; by threatening layoffs in the event of union-
ization; by stating that the Respondent would never give
the Union a contract and would thus provoke a strike;
by coercively interrogating employees on several differ-
ent occasions concerning their own union sentiments and
activities and the union sentiments and activities of other
employees; by creating in the minds of employees the
impression that their union activities were the subject of
company surveillance; by threatening unfavorable
changes in working conditions in the event of unioniza-
tion; by telling employees that leaves of absence had
been discontinued because of the union organizing drive;
by threatening to reduce the size of a work section in the
event of unionization; by threatening to' discontinue the
practice of granting days off and work schedule readjust-
ments in the event of unionization; by promising unstated
benefits if the union lost the election; by photographing
employees as they were picketing by imposing and en-
forcing an overly broad no-solicitation rule; and by
granting improvements in medical insurance and other
related benefits in order to dissuade employees from sup-
porting the Union, the Respondent violated Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found that the Respondent had engaged in cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take certain
affirmative actions, which are designed to effectuate the
purposes and policies of the Act. Because the independ-
ent violations of Section 8(a)(1) of the Act found are re-
peated and pervasive, I will recommend to the Board a
so-called broad 8(a)(1) remedy designed to supress any
and all violations of that section of the Act. I will rec-
ommend that the Respondent be required to reinstate
Richard Doll and William Winans to their former or sub-
stantially equivalent positions, that it be required to rein-
state the working hours that have been discriminatorily
cut from the workweek of the employees involved in
this case, and that it make whole all the discriminatees
for any loss of earnings that they have sustained by
reason of the discriminations practiced against them, in
accordance with the Woolworth formula'27 with interest
27 F. W. Woolworth Co, 90 NLRB 289 (1950)
CHURCHILL 'S SUPERMARKETS 161
thereon at the adjusted prime rate used by the Internal mend that the Respondent be required to post the usual
Revenue Service for the computation of tax payments. notice, advising its employees of their rights and of the
Olympic Medical Corp, 250 NLRB 146 (1980); Isis results in this case.
Plumbing Co., 138 NLRB 716 (1961). 1 will also recom- [Recommended Order omitted from publication.]