Eastgate I.G.A. Foodliner

National Labor Relations Board - Board Decisions

Jun 30, 1978

236 N.L.R.B. 1305 (N.L.R.B. 1978)

EASTGATE I.G.A. FOODLINER
Eastgate I.G.A. Foodliner and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, Local Union 576. Case 17-CA-7784
June 30, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On March 28, 1978, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, East-
gate I.G.A. Foodliner, Columbia, Missouri, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
Substitute the following for paragraph 1(c):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their right under Section 7 of the Act."
Respondent has excepted to certain credibility findings made bs the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefull)
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge inadvertently failed to conform his rec-
ommended Order with his notice. We shall correct his recommended Order
accordingly.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL. Administrative Law Judge: This case
was heard before me on December 21 and 22, 19 77,' and
on January 26, 1978, at Columbia, Missouri.
Upon a charge filed by Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local
Union 576 (hereinafter called the Union), on July 19, and
amended on August 19 and 23, and further amended at the
hearing, a complaint and notice of hearing was issued on
September 23 against Eastgate I.G.A. Foodliner (hereinaf-
ter the Respondent). by the Regional Director for Region
17 of the National Labor Relations Board (hereinafter
called the Board)
In substance, the complaint alleges that Respondent in-
terfered with, restrained, and coerced employees in viola-
tion of Section 8(a)(l) of the National Labor Relations
Act, as amended (hereinafter called the Act) by having
engaged in a variety of threats of economic reprisal; prom-
ises of benefits: unlawful interrogation; creation of an im-
pression of surveillance: and statements of futility. Addi-
tionally, the complaint alleges that Respondent
discriminated against employees by having discharged Ed
Stoner and Raymond Old on July 4 and August 19, re-
spectively, in violation of Section 8(a)(3) of the Act; and
unlawfully refused to bargain with the Union, in violation
of Section 8(a)(5) of the Act by unilaterallyb making
changes in job duties of certain unit employees on or about
June 9.
Respondent's timely answer to the complaint, as
amended at the hearing, while admitting certain allega-
tions, denies the commission of any unfair labor practice.
All issues were fully litigated at the hearing: all parties
were represented by counsel and were afforded full oppor-
tunity to examine and cross-examine witnesses, to intro-
duce evidence pertinent to the issues, and to engage in oral
argument. Posthearing briefs were received from all parties
and have been carefully considered.
Upon the entire record, and from my observation of the
witnesses, and their demeanor in the witness chair: and
upon substantial. reliable evidence, "considered along with
the consistency and inherent probability of testimony." 2 1
make the following:
FlNDINCGS AND CONCLUSIONS
I JtRISDIC'TION
Respondent. a Missouri corporation with its principal
place of business in Columbia, Missouri. is and, at all times
material herein, has been engaged in the business of oper-
ating a retail grocery store. In the regular course and con-
duct of its business, Respondent, annually has a gross vol-
ume of business in excess of $500,000 and in that same
period of time purchased goods and materials in excess of
$10,000 directly from points located outside the State of
Missouri.
All parties agree. and I find, that Respondent is engaged
in commerce within the meaning of Section 2(2). (6). and
(7) of the Act.
| All dates are in 1977 unless otherwise stated
2 lni ereal (amelra, ('orp . i, R B . 34( It S. 474, 496 (19 1).
236 NLRB No. 172
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 THE LABOR ORGANIZATION INVOLVED
Respondent admits, the record reflects, and I find that
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local Union 576, is and, at all
times material herein, has been a labor organization within
the meaning of Section 2(5) of the Act.
III THE ALI.EGED UINFAIR L ABOR PRACTICES
A. Background
The complaint allegations herein emanate from the
Union's successful efforts to organize the Respondent's
meat department employees. Apparently, some organiza-
tional activity began in September 1976 when John Grant,
Respondent's meat department manager, was prominent in
union activity. At all relevant times, the total employee
complement consisted of approximately 40 individuals.
Dale Cornelison is president and owner of Respondent;
Jerry Palmer is store manager: and Dan Casper, the assis-
tant store manager. Their supervisory status is undisputed
and I find each of them to be a supervisor within the mean-
ing of the Act. At the time of the incidents involved in this
case, the meat department contained three full-time meat-
cutters, one full-time wrapper. and one or two other regular
part-time employees. The three full-time meatcutters were
Grant, Stoner, and Old. Grant left Respondent's employ in
December 1976. Old, one of the alleged discriminatees
herein, is asserted by Respondent then to have been desig-
nated acting meat department manager and a supervisor
within the meaning of the Act. The third full-time meatcut-
ter was Stoner, the other alleged discriminatee herein.
The Union filed a petition for a representation election
among the meat department employees in Case 17 RC-
8117. Cornelison campaigned on Respondent's behalf by
speaking with each of the currently employed full-time
meatcutters, Stoner and Old. and with the full-time wrap-
per. Nadine Smith. respectively, about unionization at a
restaurant to which he had invited each of them separately
for lunch.4
On July 4, Cornelison discharged Stoner and discharged
Old on August 19.
In accordance with the request of counsel for the General Counsel, 1
have taken official notice of the Regional Director's Decision and Direction
of Election, dated May 13. 1977, in that case. A Board-conducted election
was held on June 7 and, on June 14. the Union was certified as the collec-
tive-bargaining representative for the following appropriate unit of employ-
ees:
All full-time and regular part-time employees employed in the meat
department at Respondent's Columbia, Missouri. facility, excluding of-
fice clerical employees, professional employees, guards and supervisors
within the meaning of the Act, and further excluding all other employ-
ees.
4 Although Old was relatively sure of the date on which he lunched with
Cornelison. Smith was considerably less certain Based on Smith's consis-
tency in narrating what occurred during her lunch with Cornelison and her
sure recollection that the esent occurred shortly before the election. I find
that the events described by her actually took place in the period no longer
than 2 weeks before the election.
B. Interference, Restraint, and Coercion
1. May 25-lunch with Old
The General Counsel asserts that Respondent unlawful-
ly commented upon the futility of unionization when
Cornelison, on this date, allegedly told Old that he (Corne-
lison) would not sign a contract with the Union. Addition-
ally, during this lunch discussion, Cornelison is alleged to
have promised Old a wage increase. Respondent denies the
validity of these assertions.
As indicated, Cornelison took Old to lunch on May 25.
Respondent admits that Cornelison's purpose was to urge
Old to vote against the Union. According to Old, whom I
credit for reasons to be described below, Cornelison told
him that "if the election went through, he (Cornelison)
would have to go bargaining, but he didn't have to agree,
and he was not going to agree." Old further testified that he
was, at that time, being paid $6 per hour by Respondent.
During this conversation, Old testified that Cornelison said
"Seven dollars fifty cents was good money for anybody to
be making," and told him his job was secure.
Cornelison testified he showed Old a pamphlet entitled
"Do's and Dont's," and explained to Old that he could
neither promise benefits nor make any threats. Cornelison
admitted telling Old that negotiations were possible and
that he could not say he would not agree to a contract or
say that he would agree to one; and that he could not
promise anything.5
As previously indicated, I credit Old in his narration of
these events. Indeed, however material inconsistencies ap-
pear in the record between him, Stoner, and Smith (on the
one hand) and Cornelison (on the other), I find the testi-
mony of those three witnesses presented by the General
Counsel more reliable than that provided by Cornelison
when testifying upon the same subject matter. In making
this finding, I have considered all such testimonial discrep-
ancies together with all arguments of counsel relative to
those differences. I acknowledge that the truth may rest in
the testimony of one side in a given respect and of the
other side in another, but the overall impression of credi-
bility with respect to each witness does not allow for such
distinction where, as herein, virtually every relevant fact
has been placed in issue by contradictory testimony. In
general, I find that each of the three named General Coun-
sel witnesses, when testifying on the same subject, pre-
sented consistent versions of what had occurred. Addition-
ally, those General Counsel witnesses were direct,
forthright, and specific when describing events, while
Cornelison presented his crucial testimony in considerably
more generalized self-serving denials which, in my view,
were attended by evasive characteristics. For example,
while it is true (as Respondent contends) that Cornelison
did make certain admissions damaging to Respondent, he
nonetheless failed to explicitly deny much of the precise
testimony of the General Counsel's witnesses which com-
IAs to this lunch discussion, and all others during which Cornelison
spoke with the employees about the Union, I have and will set forth herein
only that testimony which I deem relevant to a determination of the issues.
Thus. for the sake of brevity, matters which are not material have been
omitted from this Decision.
1306
EASTGATE I.G.A. FOODLINER
prise the substance of a violation. For example, Cornelison
admitted that he engaged Old, Stoner, and Smith in union
conversations. Cornelison further admitted asking Stoner.
on July 6 (a matter to be further discussed herein below)
what complaints the employees had. However, when re-
quested to refute Old's testimony that Cornelison said he
would not sign a contract, Cornelison's responses were eva-
sive, as indicated by the colloquy below:
Q. (By Mr. Dees): Did you make the statement to him
(Old) that you would not enter into a contract with the
meat cutters union?
A. I made a point of saying that I could not say
that sort of thing because that is illegal.
Q. Did you say anything to the effect whether you had
an obligation to agree about anything with the Union?
A. I told him that I was not obligated to agree or
disagree with any proposal, that I had not heard any.
In the context of the questions asked, I consider
Cornelison's responses elusive. Furthermore, Respondent's
counsel did not ask Cornelison to respond at all to Old's
testimony that Cornelison remarked "seven dollars fifty
cents was good money...." Thus, this latter testimony of
Old stands unrebutted.
Cornelison's recalcitrance is demonstrated by his testi-
mony relative to the supervisory status of Old. As an ele-
ment of the General Counsel's proof that Old was not a
supervisor, Cornelison was asked (before me) whether he
had not earlier testified in the related representation pro-
ceeding that he had expressly informed Old that he could
not promote him to the position of meat department man-
ager. In response, Cornelison indicated that he could not
recall whether he had presented such testimony. It was nec-
essary for him to be confronted with the official transcript
of the representation proceeding before he acknowledged
that he, indeed, did provide such earlier testimony. I con-
clude that Cornelison's purported inability to recall his
prior testimony to be feigned and his response to the Gen-
eral Counsel, evasive. As will be noted, infra, one of Re-
spondent's defenses to the allegation that Old had been
discriminatorily terminated relies on Respondent's position
that Old was a supervisor. In this context, it is implausible
that Cornelison would not have been prepared to testify on
this issue. Considering the meticulous manner in which Re-
spondent's cause was represented in the instant hearing, I
find it incredulous that Cornelison's previous testimony
would not have been reviewed with him prior to the instant
hearing. Accordingly, Cornelison's responses to the Gener-
al Counsel on this matter constitute a form of shadow-
boxing and seriously diminish the reliability of his testi-
mony.
Finally, in assessing the relative credibility of the wit-
nesses I have taken note of a number of important areas
where no effort whatsoever was made by Respondent to
contradict the testimony presented by the named General
Counsel witnesses. These areas are set forth in the appro-
priate places within this Decision. One example, only, of a
failure to contradict is seen in Stoner's testimony of his
July 6 conversation with Cornelison. Therein, Stoner testi-
fied that Cornelison commented to the effect that, if it had
not been for the Union, Stoner would be making $300 per
week. Although Cornelison testified extensively about that
particular conversation, he was not ever asked to specifi-
cally deny that he referred to a $300 sum.
Upon all of the foregoing, and upon my observation of
the demeanor of each witness (N.L.R.B. v. Dinion Coil
Companv,, Inc., 201 F.2d 484, 486 (C.A. 2, 1952) ), I am
persuaded that Old, Stoner, and Smith should be credited
over Cornelison.
Returning to the alleged violations of May 25, based on
the above credibility resolutions, I find that Cornelison
told Old that he would not sign a contract. Such a revela-
tion interferes with employees' rights guaranteed in Section
7 of the Act (Edwin P. Omernick d/h/a American Building
Components Company, 203 NLRB 811, 814-815 (1973)).
Accordingly, I find merit to that portion of paragraph 5(c)
of the complaint relating to May 25.
Cornelison testified that he "said more or less the same
thing" as he did to Old on May 25. When asked to relate
whether or not he told Smith that he would not sign a
contract, Cornelison responded evasively "I told her that
you cannot say that. I made a point of that with my pam-
phlet." While Respondent contends this response consti-
tutes a denial, I disagree. I find Cornelison was not to di-
rectly responsive to the question. The avoidance which I
find in his answer is demonstrated by the fact that, even
conceding he pointed to the admonitions contained in his
pamphlet, that action does not necessarily establish that he
did not also make the alleged violative comment. During
his direct examination as a witness for Respondent, Corne-
lison was not asked to contradict Smith's testimony that he
asked her why Stoner was "so strong" for the Union, or to
refute her evidence that he said the employees might not
return to work after a strike with their former wages: nor
was he asked to deny that he commented Grant had start-
ed the Union and now was no longer employed. Accord-
ingly, I find, based on Smith's uncontroverted testimony,
Cornelison did in fact make the latter remarks to her dur-
ing their lunch conversation. Because of my earlier-de-
scribed credibility resolutions, and because Smith's testi-
mony is consistent with that of Old on this subject, I also
find that Cornelison told Smith that he would not sign a
contract with the Union.
Upon the foregoing, I find that Respondent violated
Section 8(a)(1) of the Act, as alleged in paragraph 5(c) of
the complaint by Cornelison telling Smith, on June 3, he
would not sign a contract.
The unlawful creation of an impression of surveillance
alleged in paragraph 5(d) of the complaint also is sustained
by substantial record evidence. Clearly, Cornelison's in-
quiry as to Stoner's union sympathies has an interfering
effect on the employees' Section 7 rights. Additionally, the
form of that interrogation is viable foundation for the find-
ing, which I make herein, that Cornelison created an im-
pression of surveillance of employee union activity. The
fact that Cornelison specifically identified Stoner in his
question to Smith creates a presumption that Cornelison is
possessed of some information of Stoner's union interests,
sympathies, or affiliations. Moreover, this interrogation
cannot be viewed in isolation. It was attended bv
Cornelison's reference to the fact that Grant had been a
union proponent. In the total context of the Smith-Corneli-
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son conversation, then, I conclude that Cornelison indi-
cated he had an awareness of union activity of both Grant
and Stoner. The impact of such revelations constitutes an
impression of surveillance (Razco, Inc., d/b/a Hit'N Run
Food Stores, 231 NLRB 660, 665). Hence, I find that Re-
spondent unlawfully interrogated Smith as alleged in para-
graph 5(b) and created an impression of surveillance as
alleged in paragraph 5(d) of the complaint.
With respect to the alleged unlawful promise of benefits
on May 25, contained in paragraph 5(f) of the complaint,
although not explicitly formulated in this manner, I consid-
er the General Counsel's theory to flow by implication
from Cornelison's comments, when considered in the con-
text of Old's then current rate of pay. Because Cornelison
was not asked to directly contradict Old's testimony that a
reference was made to a $7.50 per hour rate, I find that
Cornelison did, in fact, make such a reference as described
by Old. At that time, it is undenied that Old was earning $6
per hour. A reasonable interpretation of Cornelison's $7.50
remark, in the circumstances of having been uttered when
the representation election was imminent, is that at an ap-
propriate time Old would receive the increased wage. This
interpretation is, in my judgment, made more realistic in
the framework (not questioned by the General Counsel,
Old, Stoner, or Smith) that Cornelison had with him the
so-called do's and dont's from which he commented that
he could not make promises. While ostensibly Cornelison
was adhering to such a prohibition, he impliedly repudiat-
ed it. Had he intended to pursue those instructions, he
would not have had any need to mention a $7.50 rate.
Upon the foregoing, I conclude that the allegations of
paragraph 5(f) of the complaint have been sustained by
substantial evidence that Cornelison impliedly promised
Old a wage increase on May 25.
2. June 3-conversation with Nadine Smith
Smith credibly testified that when Cornelison had lunch
with her he said, "I won't sign a contract" and if a strike
ensued the meat department employees might be making
less money on their return to work. Additionally, Smith
testified that Cornelison asked her why Stoner is "so strong
for the Union." According to Smith, she answered that it
probably was for the money and benefits, to which Corne-
lison responded "John Grant started this union thing and
now he's gone."
As formerly observed, Smith was extremely vague in her
recollection of dates. However, this does not impair her
credibility for, on cross-examination by Respondent's
counsel, she was unshaken in her recollection of the sub-
stance of the conversation. The rather lengthy and sole
attack Respondent makes upon Smith's credibility is based
upon her fragile recollection of dates. She was not subject-
ed to cross-examination on the words she testified Corneli-
son uttered to her, and steadfastly maintained her original
narration throughout the cross-examination and interroga-
tion from the bench. Accordingly, I credit Smith as to all
her testimony relevant to the complaint allegations.
Finally, the allegation that Cornelison threatened Smith
with loss of wages because the employees were engaging in
union activity relies on the combination of Cornelison's
remark that after a strike the employees might be making
less money and his remark that Grant no longer was in
Respondent's employ. While the latter remark may well be
susceptible to an interpretation that Cornelison threatened
Smith with discharge, there is no complaint allegation to
that effect. Therefore, I consider the reference to Grant as
explanatory evidence buttressing the General Counsel's
contention regarding the threat of wage loss for it is clear
that if an employee were to lose his or her job entirely that
condition would result in lost wages. The Respondent ar-
gues that there is absolutely no evidentiary basis on which
to base a finding of violation in this regard. Respondent
urges, also, that even if Cornelison made the comments
attributed to him, they were privileged as an expression of
the truth and mirror the state of the law. I disagree.
While, in N.L.R.B. v. Gissel Packing Co., Inc., et al., 395
U.S. 575 (1969), the Supreme Court recognized an
employer's freedom to communicate his general views
about unionism, his specific views about a particular
union, and even make predictions as to the precise effect
he believes unionization will have on his company, that
privilege is not without limit. Thus, if there is any implica-
tion that an employer may or may not take action solely on
his initiative for reasons unrelated to economic necessities
and known only to him, the employer's remarks lose their
tenor of legitimacy. In short, an employer is free only to
tell employees what he reasonably believes will be likely
economic consequences of unionization that are out of his
control. While it is possible, under current Board and court
doctrine, for an employee to be replaced during the course
of an economic strike, the law does not mandate such re-
placement. A consequence of replacement could well be
loss of wages either as a result of an employee's failure to
obtain a substitute position or by having acquired a substi-
tute position at less wages than earned prior thereto.
Viewed within the context of the conversation with Smith,
I consider Cornelison's allusion to the wages a subtle sug-
gestion that, should a strike occur, he would take replace-
ment action. It is manifest that such action is entirely with-
in Cornelison's control. Thus, I conclude that in making
these comments to Smith, Cornelison exceeded the permis-
sible bounds of conduct described in Gissel. Accordingly, I
find there is merit to the allegations contained in para-
graph 5(e) of the complaint.
3. July 6-conversation with Ed Stoner
As noted, Stoner had been discharged on July 4. He
visited Respondent's store, 2 days later, to receive his ter-
minal pay. Cornelison, in the presence of Store Manager
Palmer, talked with Stoner who credibly testified that
Cornelison said "If it were not for the Union, you would be
making $300 per week." Cornelison was not specifically
asked to deny that he made a reference to the sum of $300,
and Palmer (who testified on behalf of Respondent on
other subjects) was not asked any questions concerning the
July 6 discussions.
This comment of Cornelison is asserted, by the General
Counsel, to support the allegations contained in paragraph
5(a) of the complaint which sets forth a violation of Section
8(a)( ) by an alleged threat to withhold benefits because of
1308
EASTGATE I.G.A. FOODLINER
the union activity. Although I conclude that allegation is
inartfully drafted, it is appropriate to determine the issue
because it had been fully litigated (New England Web, Inc.,
et al., 135 NLRB 1029 (1962), reversed on other grounds
309 F.2d 696 (C.A. 1, 1962) ).
The record reflects that Stoner was earning $252 per
week at the time he was terminated. Thus, the reference to
$300 per week suggests an increase in wages. To attribute
the failure of a grant of a wage increase to the advent of a
labor organization or to the activities of employees in its
behalf is violative of Section 8(a)(1). I find the clear import
of Cornelison's statement in this regard to contain such an
attribute. Accordingly, I find that Respondent violated
Section 8(a)(1) when Cornelison told Stoner that he would
be making $300 a week if it had not been for the Union
(Daybreak Lodge Nursing and Convalescent Home, Inc., 230
NLRB 800 (1977) ).6
With respect to the allegation that Cornelison interrogat-
ed Stoner about union activities on July 6, Cornelison,
while not expressly denying that he asked Stoner how the
union campaign began, did admit that he asked Stoner to
describe the employees' complaints to him because he had
heard none. Respondent urges Cornelison's request was
not improper because it was made in response to Stoner's
accusation that his discharge was caused by his union ac-
tivity. During this conversation, it is undenied that Corneli-
son told Stoner that he was aware Stoner would cause trou-
ble for him with the Union, but that he had hoped that his
fears would not bear fruit. An evaluation of the context in
which the alleged unlawful remarks were made, considered
in the light of my general credibility findings, convinces me
that Cornelison said what was ascribed to him by Stoner. I
find it probable that the request by Cornelison for Stoner
to advise him of the employees' complaints was attended
by a request to tell Cornelison how the union activity be-
gan. This is particularly true when one considers the credit-
ed testimony of Stoner that he advised Cornelison that
Grant had initiated the organizational campaign. If Corne-
lison had not made the alleged unlawful inquiry, there
would have been no reason for Stoner to advise Cornelison
of Grant's activities. Upon all the foregoing I find that
Respondent violated Section 8(a)(1) on July 6 by interro-
gating Stoner as to union activity, as alleged in paragraph
5(b) of the complaint.
Respondent contends that neither of the violations
found herein relative to the July 6 Cornelison-Stoner dis-
cussions may be found to exist because, when the com-
ments were uttered Stoner was no longer an employee of
Respondent. I find no merit to this contention. The Board
has held that recent dischargees are employees within the
meaning of the Act and improper statements to such indi-
viduals may constitute unlawful interrogation (Barliner
Marine Corporation, 215 NLRB 12, 18, especially fn. I
(1974) ). Additionally, as I will find hereinbelow that Ston-
er was discriminatorily discharged, it is clear that his status
as a discriminatee entitles him to retention of his employee
status. Thus, for either of these reasons the remarks made
6 Although the Daybreak Lodge case involved the withholding of a regu-
larly scheduled wage increase, the principle that the union involved was
blamed for the failure to grant it is applicable herein.
to Stoner after he was terminated are appropriately consid-
ered to have been made to an "employee" within the mean-
ing of the Act.
C. Discrimination
1. Discharge of Stoner-July 4
Stoner had been employed as a meatcutter by Respon-
dent from 1974 until his discharge in July. His union activi-
ty consisted of signing an authorization card and acting as
the union observer at the June 7 representation election.
On the day of his discharge, Cornelison brought bones
and fat from sirloin steaks to Stoner and Old who were
about to leave the store to go home. Cornelison advised
them that the bones and fat had been returned by a cus-
tomer. Stoner credibly testified that Cornelison told them
that normally he would support the meatcutters but that he
believed they were "doing this" because of the Union.
Stoner protested that he had not cut the steaks; Cornelison
argued it must have been Stoner; whereupon Stoner left
Respondent's premises and went home.
About 15 minutes later, Stoner spoke from his home on
the telephone with Cornelison who had called Stoner while
enroute. Cornelison said that he had checked the dates on
the steaks in the display case and was satisfied that Stoner
had cut them. Cornelison told Stoner not to return to work
until Cornelison called him in. Stoner persisted in his deni-
al that he had not cut the steaks and called Cornelison a
liar.
On July 5, Cornelison telephoned Stoner at home and
told him to speak with Cornelison when Stoner would re-
turn to the store to pick up his paycheck.
On Jul), 6, Stoner returned to the store for his check.
Some of the conversation which occurred between Corneli-
son and Stoner that day has already been described, supra,
in section III, B, (3). In addition to those remarks already
described, Cornelison told Stoner that he believed he had
grounds which justified his dismissal from employment.
Stoner complained that Cornelison was unfair and reiter-
ated that he had not cut the steaks, commenting that he
was aware who actually cut them. Cornelison asked Stoner
to reveal the identity of that employee, but Stoner refused.
(At the hearing, Stoner identified Old as the employee who
cut the steak.) As previously indicated, during this conver-
sation Stoner charged his discharge was due to his union
activity. Cornelison denied this.
Cornelison testified the reason for Stoner's discharge
was due to "prior complaints from John Grant, Larry
Palmer, and the incident about the steaks, and lying to
me." Cornelison went on to state that "the major factor" in
Stoner's discharge was the atmosphere of numerous cus-
tomer complaints and low gross profit of the meat depart-
ment. The record reveals that the incident involving John
Grant occurred during the summer of 1976, almost a full
year prior to Stoner's discharge. According to Cornelison,
he considered discharging Stoner at that earlier time be-
cause he discovered Stoner had an uncooperative attitude
in working with a fellow employee. Cornelison testified
that he relented when Grant (who had first advised Corne-
lison of Stoner's poor attitude) intervened by telling Corne-
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lison that he (Grant) would like to give Stoner another
opportunity to prove himself.
As to the complaints of "Larry Palmer" it appears that
Cornelison actually was referring to Jerry Palmer. the store
manager.7 Thus, Store Manager Palmer corroborated
Cornelison's recount of numerous customer complaints in
early spring 1977. These complaints were over an apparent
dimunition in quality, inadequate selection of quantity,
and poor pricing of the meat department display cases,
maintain their marketability by monitoring the quality of
those products, and to attach appropriate price labels upon
them. Palmer was uncontradicted in his testimony that he
called the various derelictions to the attention of Stoner
(and Old) as they occurred. Palmer also discussed this situ-
ation from time to time with Cornelison. There is no evi-
dence, however, that Stoner (or Old) was warned that con-
tinued misfeasance would result in termination. Actually,
there is no evidence that either of those meatcutters was
subjected to discipline of any sort during the period when
the complaints were supposed to have been made.
With respect to what is asserted to be the immediate
cause of Stoner's discharge, namely, the condition of the
meat which formed the basis of the July 4 confrontation. I
find it unnecessary to discuss each and every aspect of the
voluminous testimony adduced by Respondent. Instead, I
conclude it is sufficient to find, as I do, that the products in
question were indeed improperly prepared for sale. I do
not consider that the General Counsel seriously challenges
this contention of Respondent. The products were dis-
played before me during the course of the hearing and
photographs of them appear in evidence (Resp. Exhs. (a)-
(c) ). Although the products were presented at the hearing
and in the photograph in a frozen state, it requires little
imagination to discern their poor quality had they been
delivered in a thawed-out condition.
Additionally, the record is replete with evidence pre-
sented both by witnesses for the General Counsel and the
Respondent by which there can be no doubt that customer
complaints of one sort or another were a recurring event
for at least 4 months prior to the discharges. Respondent
presented several customers (and former customers who
ceased dealing with Respondent because of the undergrade
meat department products) to describe their unhappy ex-
periences. Also, some written complaints from customers
were received in evidence. I find no reason to discredit any
of the customer witnesses, but deem their testimony valu-
able only to complete the scenario of events. I find neither
the oral testimony of the misfortunes suffered by these cus-
tomers nor the complaints represented by the documentary
evidence possesses probative value to assist Respondent's
cause. This finding is based, first. on the fact that no disci-
plinary action was taken against either of the alleged dis-
criminatees as a direct result of any of the complaints pre-
ceding July; and, second, most of the customer witnesses
testified credibly (without denial from Cornelison) that
their written complaints were actually solicited by Corneli-
-Larry Palmer did testify at the hearing but presented no evidence rela-
tive to difficulties with Stoner. As will be seen, it was Jerry Palmer who
presented such testimony. Larry Palmer, however. was the employee with
whom Stoner is alleged to have been uncooperative in 1976.
son. Indeed, the written complaints of customers Car-
baugh, Dyer, and Little bear dates subsequent to Stoner's
discharge. In this posture, I conclude that those complaints
were not an integral element of the decision to discharge
Stoner and were a contrivance to disguise the real reason
(which I shall find below) for his termination.
Finally, as to the evidence relating to Cornelison's asser-
tion that one of the reasons for termination was that Stoner
had lied to him, the record reveals the following.' When
Cornelison confronted Stoner with his request for an ad-
mission that it was he who cut the product which formed
the basis of the July 4 customer return, Stoner denied that
he cut it. Cornelison testified that he considered this to be
a lie after he determined by examining the date labels that
it was indeed Stoner who cut the product. I do not regard
this event as a valid basis for Respondent's defense. The
record is too obscure to determine whether or not Stoner
failed to tell the truth to Cornelison. There is evidence that
the dates stamped on the labels are not accurate indicators
of which meatcutters cut the product in question. There-
fore, I make no resolution of the matter but, for purposes
of analysis, I shall review Respondent's defense in its best
light and assume that Stoner did lie to Cornelison.
The testimony of Jimmy Hoesch, who applied for a
meatcutter's job with Respondent in May and was inter-
viewed by Cornelison at that time, is relevant to a resolu-
tion of the legality of Stoner's discharge. Hoesch testified,
without contradiction, that during the course of his inter-
view Cornelison told him that he had a "couple of meat
cutters who were not doing their work and they were giving
him some problems and they may be losing their jobs."
Hoesch explained that Cornelison did not specifically iden-
tify the nature of the problems. Hoesch, however, went on
to testify that Cornelison engaged him in a conversation
about the union campaign and told Hoesch that he did not
entertain the concept of a union in his store advising him
how to conduct his business. Cornelison also told Hoesch
that he felt that he could do as much for the employees as
could the Union. While concededly, Cornelison's reference
to "problems" is ambiguous, when considered in the con-
text of the various statements which I have already found
to constitute 8(a)(1) violations, this remark to Hoesch be-
comes significant.
It is well established that an employer may discharge an
employee for good reason, bad reason, or no reason at all
(Edward C. Budd Manufacturing Company v. N.L.R.B., 138
F.2d 86, 90 (C.A. 3, 1943), cert. denied 321 U.S. 773 (1944);
Associated Press v. N.L.R.B., 301 U.S. 103 (1937); Borin
Packing Co., Inc., 208 NLRB 280 (1974)).
It is the General Counsel's burden to establish a particu-
lar motivation on the part of an employer-a discrimina-
tory motivation-to establish a violation of the Act. Com-
pany knowledge is a prerequisite in the establishment of
that motivation, and the General Counsel must prove the
existence of such knowledge by substantial evidence. Sus-
picion surrounding the discharge will not replace the need
for such proof (Lyn-Flex Industries, Inc., 157 NLRB 598
599 (1966) ).
8 It is interesting to observe that Stoner admitted it was he who accused
Cornelison of lying.
1310
EASTGATE I.G.A. FOODLINER
Based on the foregoing narration of facts, combined
with the assumption stated above that Stoner lied to
Cornelison, I conclude that there existed valid cause to
discharge Stoner. As indicated, the product which had
been returned around July 4 was not suitable for sale. Ad-
ditionally, uttering a falsehood to Cornelison could simi-
larly constitute sufficient ground for discharge. These find-
ings, however do not resolve the issue because support for
a finding of unlawful motivation "is augmented [when] the
explanation of the [discharge] offered by the Respondent
[does] not stand up under scrutiny." (N.L.R.B. v. Bird Ma-
chine Company, 161 F.2d 589, 592 (C.A. 1, 1947).) If a trier
of fact finds that the stated motive for a discharge is false
he can infer that there is another motive-a motive that the
employer desires to conceal-where the surrounding facts
tend to reinforce that inference. (Atlantic Metal Product,
Inc., 161 NLRB 919, 922 (1966).)
Anaysis of all the relevant evidence before me persuades
me that the assigned reason for Stoner's discharge is rid-
dled with inconsistencies and exaggerations concerning the
effect of the customer complaints, the principal ground for
termination. In so finding, I have not ignored the uncon-
troverted evidence indicating that at least two other em-
ployees had been terminated for customer complaints.
Those situations, however involved incidents where the dis-
charged employee had been personally impolite to custom-
ers. Moreover, the discipline imposed on those former em-
ployees appears to have been taken contemporaneously
with the offenses. This is not the case herein. All the evi-
dence before me reveals that Respondent suffered the very
same poor work of Stoner for several months prior to his
termination without taking any action whatsoever against
him. Thus, the totality of evidence persuades me that the
various components of Respondent's asserted defense do
not withstand scrutiny. I view the instant situation to be
one where Stoner's work apparently became so intolerable
as to warrant his discharge only after Respondent was as-
sured (by virtue of Stoner having acted as union observer)
of his union affiliation and sympathies. (See N.L.R.B. v.
Elias Brothers Big Boy, Inc., et al., 325 F.2d 360. 366 (C.A.
6, 1963).) By acting as observer, Respondent gained notori-
ous knowledge of Stoner's union activities.
Respondent displayed its union hostility through
Cornelison's: (I) remarks to Hoesch that the meatcutters
were involved in union activity and that because Corneli-
son was having "problems" two meatcutters might lose
their jobs, (2) statement that he would not sign a contract
and implied promise of benefits made to Old on May 25,
and (3) interrogation, creation of impression of surveil-
lance, statement that he would not sign a contract, and
threat of wage loss made to Smith. Even if my reliance on
the evidence presented by Hoesch is imprudent, the vari-
ous statements to Old and Smith which predate Stoner's
discharge and which I have found to be violations of Sec-
tion 8(a)(1) provide sufficient basis for the establishment of
a discriminatory motive. In sum, I find that the General
Counsel has established by a preponderance of the credible
evidence a discriminatory discharge of Stoner in violation
of Section 8(a)3) and (1) of the Act.
2. Discharge of Raymond Old
As previously noted. Respondent contends that Old was
a supervisor within the meaning of the Act at the time of
his discharge. The General Counsel contends otherwise.
As indicated, supra, in section II1, B, (1). Cornelison ac-
knowledged that he had told Old that he could not make
him meat department manager after Grant left that posi-
tion. Nonetheless, I find that Cornelison did advise Old
that he would act as manager, bearing all powers and du-
ties of a meat department manager. Old himself testified
that he referred to himself as manager and recognized that
he had responsibility over the meat department operations.
These elements, however, are not dispositive of the supervi-
sory issue, for it is the actual authority, possessed and exer-
cised, which forms the criteria of such a resolution.
There is no evidence that Cornelison at any time specifi-
cally described Old's duties to him. Old credibly testified
that he had not hired or terminated anyone but that his
recommendations in those areas were not acted upon. He
stated that he did not layoff employees and that he be-
lieved he had no authority to grant time off to them. Al-
though there is evidence that Old prepared work and vaca-
tion schedules, it appears either that he did not do so in-
dependently or that his actions in that regard were rou-
tine. At all times material herein, Old's rate of pay was less
than Stoner. While the record indicates that Old commit-
ted the Respondent's credit by ordering meat, it is equally
clear that Stoner and another employee not regularly em-
ployed within the meat department also ordered meat.
Apparently, Old's supervisory status was litigated in
Case 17-RC-8117, of which I have taken official notice. In
that case, the Regional Director concluded that, based on
the record before him, Old was not a supervisor. I find
nothing in the record before me to disturb that finding.
Accordingly, I conclude that the evidence fails to establish
that Old was a supervisor and find that he was not.9
In general, Respondent claims Old was discharged be-
cause of incompetence. At his termination, Old was told by
Cornelison that the reason for that action was difficulty
with Respondent's profit margin and Old was not perform-
ing his job well as a manager.
Old signed a union authorization card in September
1976 and voted in the June election. The record contains
no evidence of notorious or vigorous union activity by Old.
In addition to the discussions already described herein-
above between Cornelison and Old while at lunch on May
25. the record reveals Cornelison complimented Old on his
job performance and informed him it was secure. Also.
Cornelison encouraged Old to speak to other employees
about the way thev would vote in the forthcoming election.
In making this finding. I do not credit C ornelison's tesllmon 5 that Old
had authority to schedule ~oxerlme "in his judgment" Similarls. I dol not
place significant probative value upon the documentary evidence (Resp
Exh 14) hich indicates the amount of overtime hours worked bs meat
department emploees. I n.'te that there is no mention of assignment of
osertlme in the Decision and Direction of Election in C ase 17 R( 8 117 It
is improbable that such esidence as provided before me regarding such
assignments would not al.,) have been produced for the Regional Director
had such ilnhorits been a realit Hfence. I am unable to rels ·on
C(ornelison's teslimon in this connecttln
13!1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Old, who had been employed by Respondent from Au-
gust 1976 until his discharge in August 1977, received no
type of warning that his job was in jeopardy. nor any other
discipline, throughout his entire employment.
In the formulation of its defense, Respondent introduced
a plethora of evidence to demonstrate the individual com-
ponents of what it ultimately characterizes as Old's in-
competence. These factors include health problems arising
from conditions in the meat department, inadequate stock-
ing of display cases, sloppy conditions resulting in spoilage.
numerous customer complaints, Old's rudeness, and an ad-
verse report of financial condition of the meat department.
Some of the evidence provided to establish these factors
was presented by Cornelison and other of Respondent's
management officials. Other such evidence (such as cus-
tomer complaints and the financial issue) was presented
through witnesses unaffiliated with Respondent. It would
serve no useful purpose to enumerate each and every as-
pect of such testimony. To do so would unduly lengthen
this Decision. I find that each of the factors propounded
by Respondent actually existed at Old's discharge. Despite
this, I conclude that none of them in isolation or in con-
junction with one another was the reason for the discharge.
The issue before me is to determine, from the totality of
evidence, whether the asserted reason for discipline actual-
ly is the one which motivated it. (Signal Delivery Service,
Inc., 226 NLRB 843 (1976).)
Analysis of each of the factors comprising Respondent's
defense reveals the following. The health problem occurred
in March when the store was found to be in violation of a
local ordinance providing for maximum fat content in
hamburger. As a result, Respondent was required to de-
stroy over 200 pounds of meat. As noted previously, no
discipline was imposed on Old for this incident.
The record is replete with evidence indicating the display
cases were not stocked with the expected variety of prod-
ucts at all times. This situation existed at least since April
and to the date of Old's discharge. I find Respondent's
reliance on this problem grossly exaggerated, for the record
reveals that the inadequate supplies coincided with peak
purchasing periods of the day or at the end of the meatcut-
ters work shift. I find that each of these times are periods
when it should be expected that the supplies would be low-
er than normal.
With respect to the sloppy operation of the meat depart-
ment, the evidence reveals that from time to time fresh
meat was permitted to remain unrefrigerated, resulting in
spoilage. Also, some of the products sold apparently were
packaged in a spoiled condition. The variety of situations
involving spoiled meat occurred, on a recurring basis, at
least since early spring and into the summer. Cornelison
admitted that it is normal for meat products to be returned
daily by customers having complaints such as spoilage, but
through this entire period no disciplinary action was taken
against Old.
Regarding the numerous customer complaints, I have
already discussed their character within the description of
events relative to Stoner's discharge. In addition the con-
clusions I formerly reached as to these complaints, I find
that for Respondent to place reliance on them vastly di-
minishes the meaningfulness of its defense. A glaring ex-
ample of Respondent's effort to bolster its defense in this
area is demonstrated by the asserted complaint of custom-
er Williams. After testifying that William's complaint
about a "bad chicken" was "one of the many contributing
factors" leading to Old's discharge, Cornelison admitted
that he had no communication with Williams about the
complaint prior to discharging Old. It is clear, therefore,
that Williams' complaint could not have been a causal fac-
tor in discharge. This blatant effort to embellish Respon-
dent's position creates an aura of irrespectability upon its
defense in general.
Only a single specific example of Old's purported rude
dealing with customers was presented relating to customer
Schreimann. This incident occurred on an unspecified date
during the summer. Additionally, another customer, Ja-
cobs, presented very generalized evidence to the effect that
Old was not helpful to her. Jacobs stated, however, Old
was not rude. Jacobs did not identify the dates on which
Old is alleged to have been less than a help. Old was not
disciplined in any way for these asserted infractions.
Finally, as to the poor financial condition of the meat
department operation, the record reveals that Cornelison,
starting in February, personally made financial profit and
loss computations for the meat department. He testified
that such computations were made on a monthly basis.
During that time, Old also was providing his independent
computations to Cornelison. Cornelison admitted that his
determination of the meat department profit was not con-
sistent with that of Old. (Old's reports depicted the
department's operations to be better than Cornelison's
analyses.) Even Old's reports showed low profits, however.
According to Cornelison, he discussed this low profit mar-
gin periodically with Old, but admitted that he did not
reprimand or warn Old about this situation. In August,
Respondent received a 6-month financial report from an
independent auditor. That report shows a reduction in
gross profit and sales for the meat department from that in
the comparable period of 1976. The evidence reveals that
the 1977 gross profit was approximately 7 percent lower
than customarily required of a profitmaking meat depart-
ment. The receipt of the August financial statement is as-
serted by Respondent to be a precipitating event causing
Old's discharge. I do not subscribe to Respondent's claim.
All the evidence relating to the meat department's financial
condition establishes that Cornelison was fully aware, for
months before the discharge, that the meat department was
faltering. Indeed, Cornelison admitted he harbored suspi-
cions that the inconsistencies between his analyses since
February and those of Old signaled financial and opera-
tional difficulty. While I have no reason to doubt
Cornelison's testimony that, from time to time, he dis-
cussed with Old various methods of improving the opera-
tions, it is also clear those discussions contained no sugges-
tion or hint of disciplinary action. In the total
circumstances herein, it is illogical to conceive that Corne-
lison would have waited until receiving the August finan-
cial report to dismiss Old.
A second incident which Respondent claims to have
triggered Old's discharge on the date it occurred is Old's
involvement in an altercation with employee Carnahan.
Old had requested Carnahan to stock certain products at
1312
I I
EASTGATE I.G.A. FOODLINER
once. Carnahan insisted he would comply with Old's re-
quest after completing work currently in progress. Old in-
sisted on immediate compliance with his request. A loud
argument between Old and Carnahan ensued and was au-
dible in the front of the store. (Old and Carnahan were at
the store's rear.) Cornelison testified that he felt that both
Old and Carnahan were out of line, but there is no evi-
dence that any discipline was imposed upon Carnahan.' °
This incident, occurring on the day of Old's discharge, is
cited by Respondent as a further example of Old's general
competence. Inasmuch as it appears no action was taken
against Carnahan, I consider this event evidence of dispa-
rate treatment toward Old and conclude that it is not at all
probative support for Respondent's defense.
A fair assessment of the elements forming the
Respondent's defense leads me to conclude that it is pre-
textual. Of course, it is the General Counsel's burden to
prove that the discharge was discriminatorily motivated,
and that burden never shifts. Herein, I conclude that bur-
den has been satisfied by a preponderance of the credible
evidence. That Respondent exhibited antiunion motivation
is demonstrated by my findings with respect to the inde-
pendent 8(a)(l) allegations. In that context, I am impressed
by the fact the record reveals a marked change in
Cornelison's attitude and dealings with Old subsequent to
the election, from that existing prior to it. Old's uncontra-
dicted testimony is that Cornelison observed, during the
May 25 lunch discussion, Old was then considered a satis-
factory employee. In fact, Cornelison reposed confidence
in him by asking him to speak with the other employees
relative to their vote. This evidence, in the face of the then
current factors which Respondent claims are factors sub-
stantiating Old's discharge, belies the effectiveness of Re-
spondent's contentions; and casts grave doubt upon the
validity of the defense. Apparently, it was not until after
the Union prevailed in the election that any of those ele-
ments assumed the status of a foundation for the severe
discipline imposed upon Old. In the entire circumstances
herein, I conclude that Respondent grasped upon the re-
ceipt of its financial statement in August and the August 19
argument between Old and Carnahan as a subterfuge to
disguise the real reason for Old's discharge. Although Old
does not appear to have been a prominent supporter of the
Union, Cornelison's remarks to Hoesch that two employ-
ees in the meat department were causing problems is indic-
ative that Old was considered a troublemaker. I consider it
more than mere coincidence that two employees, Stoner
and Old, were indeed terminated after the election. Al-
though it is true that Cornelison did not explicitly refer to
the Union in his remarks to Hoesch, it is reasonable to
infer such an interpretation in this case where, as has been
shown above, each of the operational and financial prob-
lems existed for a long period of time and were obviously
countenanced by Respondent throughout their existence.
Assuming, arguendo, the validity of each and every one
of the proffered aspects of the defense, I nonetheless find
that the record as a whole warrants a finding that Old was
0 Carnahan was utilized during the summer to stock products in the
so-called deli case, in addition to performing stock work in other locations
of the store.
discriminatorily discharged. It is not essential, in order to
find discriminatory motivation for the termination, that it
be attributed solely to antiunion purposes. It is sufficient to
find, as I do, a violation of the Act notwithstanding the
existence of valid causes justifying the discharge, even if
business (financial) reasons, if a substantial or motivating
ground for the discharge was Old's union sympathies.
(KBM Electronics, Inc., t/a Carsounds, 218 NLRB 1352,
1358 (1975); Winkel Motors, Inc., 178 NLRB 627 (1969),
affd. 443 F.2d 38 (C.A. 9, 1971).)
Upon all the foregoing, I find that Old was discriminato-
rily discharged in violation of Section 8(a)(3) and (1) of the
Act, as alleged in paragraph 6 of the complaint.
D. Refusal To Bargain
In paragraph 8 of the complaint, the General Counsel
alleges that Respondent refused to bargain with the Union
when it unilaterally, and without first consulting the
Union, transferred the ordering and the various work re-
lated to delicatessen products (identified as prepackaged
meats) from the meat department to the so-called deli de-
partment.
The evidence reveals that in early spring, Cornelison, as
part of his ongoing analysis of profit and loss statistics,
conceived the idea of charging the sales of prepackaged
items separately from the other meat department products,
commonly referred to as red meat. He discussed this possi-
bility with Old and Stoner in March who, apparently, did
not disagree to this system of monitoring the sales.
Sometime in May, Store Manager Palmer advised Stoner
that he wanted to establish a separate cash register key
with a "deli" designation and that, thereafter, sales of pre-
packaged meat would be rung up on that key.
Later, on or about June 9, Respondent fully implement-
ed the change described above. One feature of this change
was the assignment of grocery clerks (such as Carnahan,
who apparently started this function approximately 2
months earlier) to assume the function of stocking the deli
case with products. Old and Stoner testified without con-
tradiction that approximately 30-40 hours per week were
spent by the regular full-time meat department employees
working on delicatessen products before the change, but
after June 9, none of the regular meat department employ-
ees normally worked on deli products.
It is undenied that the establishment of the separate deli
register key and the assignment of grocery stock clerks to
work on deli products was accomplished without notice to,
or consultation with the Union. It is noted that the date on
which the new system was in operation in earnest is 2 days
after the Union's majority was established by the employ-
ees in the election.
The General Counsel claims the above-described change
in operation is unlawful because it was accomplished uni-
laterally and adversely impacts upon the bargaining unit
employees. Specifically, the General Counsel contends the
unit employees suffered a loss of overtime opportunities.
Respondent contends no violation exists because the as-
signment of grocery clerks to deli products was consistent
with past practice, referring to the fact that Carnahan had
been so assigned for a number of months prior to June 9.
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally, Respondent argues that the record fails to
reveal any harm was incurred by the meat department em-
ployees.
As is correctly argued by counsel for the General Coun-
sel in their posthearing brief, the Board deems it signifi-
cant, in circumstances similar to the case at bar, to consid-
er the actual or expected impact upon work opportunities,
overtime, or other terms and conditions of employment of
the unit employees which may result from an employer's
unilateral action. In accord with the lesson of Cities Service
Oil Company, 158 NLRB 1204 (1966), 1 have analyzed the
documentary data in this record (Resp. Exh. 14) which
summarizes the overtime hours of the meat department
employees during the months of January through July.
That examination shows that the regular full-time meat de-
partment employees enjoyed a substantial increase in over-
time after Carnahan first assumed the additional duties of
stocking deli work. Thus, those statistics show that meat
department employees worked an approximate average of
12.25 hours per month during January-April; while those
employees worked an average of approximately 31 hours
per month overtime during the period May-July. Those
documents in evidence also demonstrate that, considered
on an individual employee basis, there were month-to-
month fluctuations in the number of overtime hours
worked by each: but, overall, none of them suffered severe
losses of overtime throughout the first 6 months of 1977.
Indeed, during what is obviously a vacation period, those
employees' overtime hours substantially increased. Finally,
the documents in evidence do not reveal that any of the
grocery stock clerks was afforded overtime opportunities
charged to the meat department. (While I recognize that
this last factor does not conclusively demonstrate that the
grocery stock clerks worked no overtime during the disput-
ed period because such overtime might well have been
charged to the grocery department, I find the absence of
grocery clerk names from the meat department overtime
statistics to be some support for the proposition that meat
department finances were not being diverted away from
the meat department employees.) Finally, the record con-
tains no evidence that any meat department employee was
laid off, transferred. or otherwise suffered loss of wages as
a result of the changed operation.
Upon all of the foregoing, I find that the Respondent did,
in fact, make a unilateral change in meat department oper-
ations on June 9. However, I conclude that the change was
mostly one in accounting procedure. In any event, I con-
clude, contrary to the assertions of the General Counsel,
that the record does not factually reflect the adverse eco-
nomic or work consequences upon unit employees. Ac-
cordingly, I find that the General Counsel has not sus-
tained the requisite burden of proof by a preponderance of
evidence to support the allegations of complaint paragraph
8, and I shall recommend its dismissal.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with its operations, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead and have
led to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent did not violate Section
8(a)(5) and (1) of the Act with regard to the alleged unila-
teral change on June 9, 1 shall recommend that particular
allegation be dismissed. Having found that the Respondent
violated Section 8(a)(1) of the Act as alleged in the com-
plaint, and violated Section 8(a)(3) and (1) of the Act by
having discharged Raymond Old and Ed Stoner, I shall
recommend that it cease and desist therefrom and take
certain affirmative actions to remedy the unfair labor prac-
tices and effectuate the policies of the Act.
As I have found that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Old and Stoner, I
shall recommend that Respondent offer each of them im-
mediate and full reinstatement to his former job, or, if such
position no longer exists, to a substantially equivalent posi-
tion, without prejudice to his rights and privileges, and to
make each of them whole for any loss of earnings he may
have suffered as a result of the discrimination, as pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon to be computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977)."
As I have found that Respondent interfered with, re-
strained, and coerced its employees in violation of Section
8(a)(1) of the Act by a variety of conduct, the Order will
provide that Respondent cease and desist from telling em-
ployees that it would not sign a collective-bargaining agree-
ment promising employees benefits in order to discourage
their union activity, interrogating them concerning union
activities, creating impressions of surveillance of their
union activities, threatening them with loss of wages, and
telling them that their wage increases are being withheld
because of their union activity.
Respondent's unlawful activities, including its discrimi-
natory discharge of Old and Stoner, go to the very heart of
the Act and indicate a purpose to defeat self-organization
of its employees. The unfair labor practices committed by
Respondent are potentially related to other unfair labor
practices proscribed by the Act, and the danger of their
commission in the future is to be anticipated from Respon-
dent's conduct in the past. The preventive purposes of the
Act will be thwarted unless the recommended Order herein
is coextensive with the threat. Accordingly, in order to
make effective the interdependent guarantees of Section 7
and thus effectuate the policies of the Act, the Order herein
shall require Respondent to cease and desist from in any
manner infringing upon the rights of employees guaranteed
in the Act. (N.L.R.B. v. Express Publishing Company, 312
U.S. 426 (1941); N.L.R.B. v. Entwistle Manufacturing Com-
pany, 120 F.2d 532 (C.A. 4, 1941); Pan American Extermi-
nating Co., Inc., 206 NLRB 298, fn. 1 (1973)).
Upon the basis of the foregoing findings of fact, conclu-
sions, and the entire record, I make the following:
" See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1314
EASTGATE I.G.A. FOODLINER
CONCLUSIONS OF LAW
1. Eastgate I.G.A. Foodliner is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Local Union 576, is and, at
all times material herein, has been a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Ed Stoner on July 4, 1977, and Ray-
mond Old on August 19, 1977, because they had been en-
gaged in union activities or were interested in or sympa-
thetic to the Union, Respondent discriminated against
employees in violation of Section 8(a)(3) and (1) of the Act.
4. By telling employees that it would not sign a collec-
tive-bargaining agreement; by promising them benefits to
discourage their union activity; by interrogating them; by
creating an impression that union activity was under sur-
veillance; by threatening them with loss of wages; and by
saying that wage increases were being withheld because of
union activity, Respondent interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights
in violation of Section 8(a)(1) of the Act.
5. Respondent did not refuse to bargain collectively in
violation of Section 8(aXS5) and (1) of the Act when it trans-
ferred the deli operation from the meat department on
June 9, 1977.
Upon the above findings of fact, conclusions of law, the
entire record in the case, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 12
Respondent Eastgate I.G.A. Foodliner, Columbia, Mis-
souri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment, or any
term or condition of employment, because they engage in
union or protected concerted activities.
(b) Telling employees that it would not sign a collective-
bargaining agreement; promising employees benefits in or-
der to discourage their union activity; interrogating them
concerning their union activity; creating impressions that
union activity is under surveillance; threatening employees
with loss of wages because they engage in union activity;
and telling them that their wage increases were being with-
held because of union activity.
(c) In any manner interfering with, restraining, or coerc-
ing employees in the exercise of their rights under Section 7
of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Raymond Old and Ed Stoner immediate and
full reinstatement to their former jobs or, if their jobs no
longer exists, to substantially equivalent positions of em-
ployment, without prejudice to their seniority or other
rights and privileges, and make each whole for his lost
earnings with interest thereon to be computed according to
the formula described in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all pay-
roll records. social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze the amounts of backpay due under the
terms of this Order.
(c) Post at its location in Columbia, Missouri, copies of
the attached notice marked "Appendix." "' Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's au-
thorized representatives, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 17. in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS F:RTHFR ORDERED, that the allegation of unlawful
refusal to bargain contained in paragraph 8 of the com-
plaint is dismissed.
: In the event no exceptions are filed as provided b, Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as prosided in Sec.
10248 of the Rules and Regutiltilons. be adopted hb the Board and become
its findings. conclusion . and Order. and all objections thereto shall he
deemed ,aised for all purposes
' In the esent that this Order is enforced bh a Judgment of the United
States Court of Appeals. the sords in the notnce reading "Posted b? Order
of the National L abor Relations BRiard" shall read "Posted Pursuant to a
Judgment of the National I ahor Relatinm, Board"
APPENDIX
NoTICF To EMPOYEES
PosrtD B' ORDFR Of THe
NATIONAIl LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, it has been decided that we violated the
law. We have been ordered to take certain steps to correct
our violations and have been ordered to post this notice.
We intend to abide by the Order and do the following:
The National Labor Relations Act. as amended, gives
all employees the following rights:
To organize themselves into labor organizations
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities except to
the extent that the employees' bargaining represen-
tative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In recognition of these rights, we hereby notify you
that:
WE WILL NOT question you regarding your union
membership, activities, and sympathies.
WE WILL NOT make statements to you creating the
impression that we are engaging in surveillance of
your union activities.
WE WILL NOT tell you that we will not sign a collec-
tive-bargaining agreement with your union, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local Union 576.
WE WILL NOT promise you wage increases or other
benefits in order to discourage your union activities.
WE WILL NOT threaten you with loss of wages or
other benefits in order to discourage your union activ-
ities.
WE WILL NOT blame your union for your failure to
receive wage increases or other benefits.
WE WILL NOT in any other manner interfere with any
of your rights set forth above which are guaranteed by
the National Labor Relations Act.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in activities on behalf of your
union or any other labor organization.
WE WILL offer Raymond Old and Ed Stoner imme-
diate and full reinstatement to their former jobs with
us or, if those positions no longer exist, to substantial-
ly equivalent jobs with us, without prejudice to their
seniority or other rights, privileges and benefits; and
WE WILL pay to each of them all money lost, with inter-
est, as a result of their discharges from employment
with us.
EASTGATE I.G.A. FOODLINER
1316