Farm Fresh

National Labor Relations Board - Board Decisions

Dec 19, 1991

305 N.L.R.B. 887 (N.L.R.B. 1991)

887
305 NLRB No. 132
FARM FRESH
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We find no merit in the Respondent’s exception that the unlawful
interrogation of two employees by Assistant Store Manager Williams
in the snackbar of its Denbigh store was effectively repudiated under
the standards articulated in Passavant Memorial Hospital, 237
NLRB 138 (1978). In this regard, the Respondent notes that imme-
diately following the interrogation, and in the presence of union or-
ganizer Terry Dixon and the employees with whom Dixon was
meeting, Store Manager Mingee told Williams that Dixon had the
right to talk to the employees. We find this attempted cure by
Mingee ineffective under Passavant because it did not refer to or ac-
knowledge the unlawful interrogation by Williams and did not occur
in an atmosphere free of other unfair labor practices. Indeed, shortly
after the alleged repudiation by Mingee of Williams’ unlawful inter-
rogation, Mingee unlawfully ordered Dixon out of the snackbar.
2 With respect to the allegation concerning a threat to close, we
note that Respondent did not provide an objective factual basis for
its assertions that the selection of the Union would necessarily mean
higher wages, that higher wages would lead to the closure of depart-
ments and that the closure of departments would lead to the closure
of stores. See Crown Cork & Seal, 255 NLRB 14 (1981).
1 301 NLRB 907.
2 All dates are in 1986, unless otherwise indicated.
Farm Fresh, Inc. and United Food and Commercial
Workers Union, Local 400, AFL–CIO. Cases 5–
CA–17940, 5–CA–18407, 5–CA–18721, 5–CA–
18912, 5–CA–18951, 5–CA–19147, 5–CA–19303,
and 5–CA–19469
December 19, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 17, 1991, Administrative Law Judge David
L. Evans issued the attached supplemental decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Farm Fresh, Inc., Norfolk
and Richmond, Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. On February
27, 1991, by Decision and Order of that date,1 the Board re-
manded this proceeding to me for the purposes of making
and entering findings of fact, conclusions of law, and rec-
ommended Order on certain matters that had been the subject
of a settlement agreement that had been set aside by order
of the Regional Director.
1. The complaint alleges that Respondent, on March 15,
1986,2 at the Arrowhead Shopping Center store in Virginia
Beach, by Store Manager David Harmon, threatened employ-
ees with store closure if the Union were successful in orga-
nizing Respondent’s employees and threatened employees
with discharge if they engaged in union activities in violation
of Section 8(a)(1) of the Act. In support of these allegations,
the General Counsel called current employee Sharon
Prentice. Prentice testified that Harmon called a meeting of
‘‘twenty or more’’ employees and told them:
The Union would hurt you more than help you. If the
Union ever got in, the store would close. And if you
ever have a problem, the Union would take a week to
six, nine months before you’d ever get an answer.
You’ll never move up in the world unless someone dies
or quits. The Union would hurt Farm Fresh more than
help. . . . If they catch anyone at a Union meeting, or
talking to Union guys, they would be automatically ter-
minated.
Harmon denied any such threats. In giving this testimony,
Prentice evinced a distance and vacuousness that caused me
to suspect her credibility as she testified. Additionally, none
of the other ‘‘twenty or more’’ employees were called to
substantiate these threats, the blatancy of which eclipses any
other threats in this extensive case. Although I would not
make a credibility resolution against a witness solely because
she stood alone against others, I cannot credit a witness such
as Prentice without other substantiation.
Accordingly, I shall recommend dismissal of all the allega-
tions based on the above testimony by Prentice.
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Faller was no longer employed by Respondent and had no appar-
ent reason to lie on its behalf.
4 As described in the original ALJD, the‘‘blitzes’’ consisted of
union representatives entering the stores in groups, leaving union lit-
erature on shelves, public and nonpublic areas, and, ultimately, the
floors, and soliciting working employees, as well as nonworking em-
ployees, in an effort to get them to join the Union.
2. The complaint alleges that Harmon, on March 21, at the
Arrowhead store, threatened employees, interrogated employ-
ees, and confiscated union literature from employees. The
General Counsel also called Prentice in support of these alle-
gations. Prentice testified that while she was in the snackbar,
she was approached by Harmon and Assistant Manager Hope
Faller. At the time, Prentice was reading a union pamphlet.
According to Prentice, Harmon asked Prentice for the pam-
phlet and asked her what she thought about the Union.
Prentice told Harmon that she favored the Union, and gave
him the pamphlet. Prentice, after substantial leading, also tes-
tified that, in the same incident, Harmon said, ‘‘What was
said at the meeting’’ previously described.
Harmon and Faller, both of whom had a more favorable
demeanor than Prentice,3 credibly denied this testimony, and
I shall recommend dismissal of the allegations based on it.
3. The complaint alleges that Respondent, at its Broad
Street store in Richmond, on March 15, by Assistant Store
Manager Jon Credit, ordered a union organizer to leave the
store on threat of arrest, confiscated or attempted to con-
fiscate union literature from employees and union organizers,
and threatened employees with discharge for engaging in
union activities in violation of Section 8(a)(1).
In support of this allegation, the General Counsel relies on
the testimony of organizer Paul Evans Sr. Evans testified that
while one of the unprotected ‘‘blitzes’’4 of the store was
going on, he was in the snackbar talking to employees who
were on their breaks. At one point, all the employees left,
except one. Evans gave that employee a union authorization
card when she asked for one. Then an unidentified man who
had been sitting in the snackbar approached, reached around
Evans and grabbed the card, and tore it up. The man also
‘‘told her if she wanted to keep her job she shouldn’t fill that
card out.’’ The man also demanded that Evans turn over to
him any other cards that the employees had signed. Evans
refused to give the cards to him.
Credit testified that the store manager was not present
when the blitz of March 15 happened, and that he was in
charge of the store. Credit credibly denied that he even went
into the snackbar during the blitz. However, Credit also testi-
fied that he assigned Glen Jenson, frozen food and dairy
manager, to follow some of the union organizers around the
store while he watched others. Jenson was not called to tes-
tify.
Although the complaint does not name Jenson, it is not de-
nied that someone acting with apparent authority to order
people about confronted Evans in the snackbar. Since Credit,
acting on behalf of Respondent, testified that he ordered
Jenson to follow the union representatives around, it is log-
ical to conclude, as I do, that it was Jenson who confronted
Evans and the employee in the snackbar. Jenson, while act-
ing on Credit’s orders, was doing so on behalf of Respond-
ent. In so doing, Jenson acted as an agent of Respondent
within Section 2(13) of the Act.
Since Jenson was not called by Respondent, and no reason
for not doing so was advanced, Evans’ testimony about what
happened in the snackbar is not denied. Accordingly, I find
and conclude that the allegations based on Evans’ testimony
have been proved.
4. The complaint alleges that Respondent, on March 17,
at its Williamsburg Road store in Richmond, by Night Man-
ager Steve Schultz, unlawfully ejected a union representative
from the store. The General Counsel called Evans in support
of this allegation, also. Evans testified that someone, acting
as the manager, threatened to call the police, and did call the
police, in order to get him ejected. When first approached by
said person, Evans was conducting himself as a customer in
the snackbar.
Shultz admitted asking Evans to leave, and he admitted
calling the police. However, Shultz credibly testified that he
did so only after he and some employees found union lit-
erature strewn about the premises (including at least one non-
public area) and after he had gotten reports that a union rep-
resentative was in the store, and had been in the parking lot,
talking to employees who were on duty. Shultz, who no
longer works for Respondent and had no apparent reason to
lie for Respondent, was credible in this testimony.
Evans denied having engaged in such ‘‘blitz’’ tactics;
however, it is clear that someone had, immediately before
Shultz approached Evans. Shultz was not required to catch
Evans, or others, in the act. Respondent had a right to get
the likely perpetrators of the ‘‘blitz’’ out of its store, and this
is all that Shultz did.
I shall recommend dismissal of this allegation of the com-
plaint.
5. The complaint alleges that Respondent, on March 19,
at its Victory Boulevard store in Portsmouth, by Assistant
Store Manager Gary Newell, unlawfully ordered union rep-
resentatives to leave its premises. The General Counsel relies
on certain testimony by Union Representative Charles
Garbers as proof of this allegation.
Garbers testified that he and another union representative
were ordered to leave the store and the parking lot in front
of the store after they handed union literature to employees
who were working in both places. Newell admits that he did
exactly that. On brief, the General Counsel does not contend
that this action by Newell constituted a violation of the Act.
Garbers additionally testified that he and the other union rep-
resentative then moved to a portion of the (large) parking lot
that lay in front of other stores in the shopping center. The
General Counsel states on brief, page 63, that Garbers was
in that adjacent portion of the lot when Newell ordered him
to leave that area also, or Newell would call the police.
Garbers testified to no such thing. To the extent Garbers’ tes-
timony can be read to infer that he was threatened with arrest
by Newell when he was in a portion of the lot other than
that immediately in front of Respondent’s store, I find it in-
adequate to prove the point.
Accordingly, I shall recommend dismissal of this allega-
tion of the complaint.
6. The complaint alleges that Respondent, in violation of
Section 8(a)(1), on March 20, at its Poquoson store, by Su-
pervisor Benjamin Bernales, threatened union representatives
with arrest if they did not leave Respondent’s parking lot.
Union Representative Terry Dixon testified that Bernales so
threatened him at a time when he and Union Representative
889FARM FRESH
Tommy Robinson were in the parking lot attempting to talk
to off-duty employees.
Bernales did not testify. Respondent called Supervisor
Brian Shipley who testified that he was present when there
was some sort of exchange between Bernales and Dixon, but
he did not hear what was said.
There is no reason to discredit Dixon, and I find his testi-
mony to be the fact. Accordingly, I find and conclude that
this allegation of the complaint has been proved.
7. The complaint alleges that on March 21, Harmon un-
lawfully threatened union representatives with arrest unless
they vacated Respondent’s premises at the Arrowhead Shop-
ping Center store. For this allegation the General Counsel re-
lies on testimony by Garbers who, on cross-examination, es-
sentially admitted that he and other union representatives had
blitzed the store that day. Garbers testified that when the
store manager told him to leave, he did so. He went to an
ice cream store in the same shopping center. As he was com-
ing out of that store, he saw a crowd gathered around a po-
liceman who had arrived at the parking lot in front of the
store. According to Garbers,
The officer stated that the management of the com-
pany in that particular store did not want us on the
premises or the parking lot or we would be subject to
arrest.
Garbers left. He has not returned. He was asked on direct ex-
amination why he had not returned, and he replied, ‘‘The of-
ficer said we were subject to arrest if we were seen in or
around there.’’
This testimony is not denied.
The complaint further alleges that union representatives
were unlawfully denied access to Respondent’s West Mer-
cury store in Hampton on April 3. Union Organizer Gary
Gatewood testified that when he and Union Representative
Bob Wigglesworth had blitzed the store on that date, they
was asked to leave, and they did. They stayed outside for a
while, then decided to go back in for a cup of coffee. The
store manager called the police. A police officer arrived, and
talked to the union representatives separately, outside the
store. The officer told the union representatives that Re-
spondent’s management did not want them in the store, or
the shopping center, again, and if they came back and Re-
spondent’s management called him, he would arrest the
union representatives.
The General Counsel does not contend that barring the
union representatives from the store for the day was a viola-
tion in view of the union representatives’ ‘‘transgressions.’’
(Br. 68.) However, the General Counsel contends that the of-
ficers’ permanent injunction against their coming back to the
store, and the shopping centers, constituted a violation of
Section 8(a)(1) of the Act on the part of Respondent.
The officers’ instruction to the union representatives was
outside the hearing of any supervisor so, if it had been be-
yond anything any supervisor had asked the officers to state,
none of Respondent’s agents had any chance to repudiate it.
Moreover, there is no evidence that any agent of Respondent
sponsored, or ever came to know of, the broad instructions
that were issued by the officers. In these circumstances, I
find and conclude that there is no basis for assessing liability
on Respondent because of the actions of the officers.
Accordingly, I shall recommend that these allegations of
the complaint be dismissed.
8. The complaint alleges that on April 6, at the West Mer-
cury Boulevard store in Hampton, Respondent, by Store
Manager Edward Sheedy, caused union representatives to be
removed from the premises on threat of arrest by police, at
a time when the union representatives were engaged in law-
ful activity, in violation of Section 8(a)(1).
The West Mercury Boulevard store is a very large one,
and it is situated in a shopping center that is entirely owned
by Respondent.
Union Representatives Terry Dixon and Tommy Robinson
went to the store on April 6. They spoke to employees in
the parking lot, as discussed infra; there is no probative evi-
dence that any of those employees were on duty at the time
Dixon and Robinson spoke to them.
Dixon and Robinson left the portion of the parking lot that
was immediately in front of the store and went to a drive-
in restaurant that was in the same parking lot, but about 100
yards away. They purchased some food and were eating it
in the parking area immediately in front of the restaurant
when they were approached by Respondent’s store manager,
Sheedy.
There is a great deal of conflict about what happened then;
however, Sheedy admits that he went back to the store where
he met a police officer. Sheedy admits that he asked the offi-
cer to get the union representatives to leave the premises.
The officer approached Dixon and Robinson and ordered
them to leave, which they did.
Sheedy testified that it had been reported to him that
Dixon and Robinson had been soliciting working employees
when they were in that portion of the parking lot that lay be-
fore Respondent’s store. This hearsay is not sufficient to
prove the fact, and I must conclude that, at all times, the
union representatives had been acting lawfully when they
were in the area closer to Respondent’s store. Certainly they
were acting lawfully when Sheedy got the police officer to
order them away from the restaurant area that was quite dis-
tant from any working employee of Respondent.
Accordingly, I find and conclude that the allegation has
been proved.
9. The complaint alleges that on August 30, agents of Re-
spondent unlawfully threatened a union representative with
arrest and removal from its Denbigh store in Newport News
and, also on that date, Respondent’s agent Eric Williams in-
terrogated an employee at the store, all in violation of Sec-
tion 8(a)(1).
Union Representative Dixon testified that, on August 30,
as he was eating at the snackbar at the store, ‘‘I noticed
some employees sitting at a table so I walked over to them,
identified myself and asked them to take some Union lit-
erature, which they did.’’ Dixon sat down at their table and
began talking to the two employees. Then Assistant Store
Manager Williams came over, without being asked, and sat
down. Williams ‘‘asked the employees what they were
doing,’’ but they did not respond, according to Dixon. Dixon
told Williams that he was acting unlawfully, and Williams
said that he was just trying to be friendly. At that point,
Store Manager Gerald Mingee arrived and told Williams that
Dixon had a right to be talking to the employees in the
snackbar, and Mingee told Williams to go to the front of the
store, which Williams did. Dixon bought some food and
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
began to eat it. Just as Dixon finished eating his food,
Mingee told Dixon to leave. Dixon saw another employee
come to the ‘‘hot line’’ for food service, and started to get
up to approach that employee. Mingee blocked Dixon’s
egress from the booth, and told Dixon that he was going to
call the police if Dixon did not leave. Dixon left.
Mingee and Williams were called by Respondent. Mingee
testified that he addressed Dixon in the snackbar on August
30; Mingee did not remember if Williams or anyone else was
with him. Mingee testified that Dixon had been in the snack-
bar for about 1 hour and 10 minutes, but he did not testify
about how he knew that. Mingee testified that he approached
Dixon and told him: ‘‘I think it’s time that you leave.’’ On
cross-examination Mingee twice denied telling Dixon that he
would call the police. He did not, on direct examination or
cross-examination, claim that Dixon said anything about the
police.
Williams testified that Dixon had been in the snackbar for
about 45 minutes when he and Mingee approached Dixon.
Williams testified that he had gone along with Mingee as a
witness. According to Williams, Mingee told Dixon that
Mingee considered Dixon to be loitering. Williams testified
that Dixon ‘‘said that he wasn’t leaving the store and that
we would have to call the police to kick him out.’’
Mingee and Williams testified that Dixon ignored Mingee;
they (or Mingee by himself, according to Mingee) turned and
left the snackbar to Dixon.
Mingee and Williams did not get their stories straight;
Mingee took the tactic of resting with a flat denial; Williams
took the tactic of claiming that Dixon was the one who
brought up the police. I credit Dixon. If Dixon had men-
tioned the police first, or if Dixon had mentioned the police
at all, Mingee would have assuredly have testified to the fact,
especially after being challenged by the General Counsel on
cross-examination about his alleged reference to the police.
Moreover, I agree with the General Counsel’s argument on
brief that it is incredible that, after challenging Dixon, with
or without the reference to police, Mingee and Williams
backed down and walked away.
Although Dixon admitted (unprotected) ‘‘table hopping,’’
Mingee and Williams did not claim that this was why they
approached Dixon. Mingee ordered Dixon out because he felt
that Dixon had stayed too long. Mingee admitted that Dixon
had bought food; at best, Dixon was given the ‘‘bum’s rush’’
immediately after he took his last swallow. That is, Dixon
was still conducting himself generally as a customer when he
was ordered to leave; Respondent had no right to so order
Dixon, and by Mingee’s doing so, Respondent violated Sec-
tion 8(a)(1) of the Act.
I further credit Dixon’s testimony that, when he sat down
at the table with Dixon and two employees, Williams asked
the employees what they were doing. Williams had known
Dixon for several years; the only point in asking the employ-
ees what they were doing with Dixon was to convey to the
employees that Respondent disapproved of what they were
doing, talking to the union representative. Therefore, whether
couched in terms of a threat or an interrogation, Williams’
remark was necessarily coercive and violative of Section
8(a)(1) of the Act.
Accordingly, I find and conclude that these allegations of
the complaint have been proved.
10. The complaint alleges that Respondent, on March 25,
by Manager Terrence Farrar, at its Jefferson Davis Highway
store in Richmond, conducted photographic surveillance of
union representatives as they were attempting to talk to em-
ployees in Respondent’s parking lot in violation of Section
8(a)(1).
Union Representative Ermaun Joe testified that in March
he went to the store to walk around to see who the employ-
ees were. As he left the store, Farrar followed him. Accord-
ing to Joe, ‘‘And so I went out on the parking lot. And then
he had this Polaroid camera in his hand and he commenced
to flash pictures at me.’’ Joe testified that Farrar took pic-
tures of Joe and other union representatives who were in the
parking lot, including one who was talking to an employee
who had gotten off work. Joe testified that Farrar took six
or eight pictures, including some that he took by snapping
the camera ‘‘in my face.’’
Joe acknowledged that his pretrial affidavit states that at
one point, ‘‘He [Farrar] then asked me if he could take our
pictures with the Polaroid camera he had with him. I told
him that he could, and he did so.’’
Farrar testified that he approached the group of union rep-
resentatives in the parking lot, and:
[T]he large guy [apparently Joe] says, ‘‘how would you
like to have a group picture?’’; and I said, ‘‘Okay.’’ So
I took a couple of shots; and I guess that irritated them
and they started verbally abusing me, telling me they
were going to kick my fanny and talking about my
mother, and this, that and the other. And I asked [a
nearby clerk who had followed Farrar as Farrar had fol-
lowed Joe] to go in and get Kyle Bevins, my meat
manager.
Farrar testified that Bevins came out to the parking lot, and
as Farrar turned to speak to Bevins, one of the union rep-
resentatives grabbed at his hand which held the two Polaroid
pictures that he had taken. This caused the camera to strike
Farrar in the groin area, causing momentary pain. After that,
according to Farrar ‘‘I took several more pictures.’’ As he
did so, the union representatives cursed and threatened him.
Then, Farrar took several pictures of the union representa-
tives because ‘‘I was irritated.’’
At trial Farrar attempted to convey the impression that he
had the camera at the ready only because he had been taking
pictures of a display, for a company contest, when he first
saw Joe in the store. He is belied by his pretrial affidavit
which states that he had the camera at hand because another
store owner had called and said that union representatives
might be on the way to the store. His affidavit also states
that he was going to take a picture of the display, but it is
obvious that he could have put the camera down at some
point. I find that Farrar intended to do exactly what he did—
follow Joe into the parking lot and take pictures of Joe and
any other union representatives that may have been there.
A camera is a well-recognized tool of surveillance. Any
employee who saw Farrar follow Joe out of the store and
into the parking lot would know that there was no legitimate
reason for Farrar’s action. Just having the camera there, and
certainly the taking of several pictures, would necessarily
have had a coercive impact on any employee who may have
witnessed the scene. Assuming, as Farrar testified, the group
891FARM FRESH
5 I do not believe Farrar’s quoted testimony that the union rep-
resentatives became abusive because he had taken a second shot; I
believe that they, including Joe, became abrasive only after Farrar
had taken many shots.
6 Blanchard Construction Co., 234 NLRB 1035 (1978); Barnes
Hospital, 217 NLRB 725 (1975).
of union representatives initially responded to him by asking
him to take a group picture, the response was clearly an ex-
ercise in sarcasm, and it could not have licensed Farrar to
bring the camera to that point in the first place.5
Accordingly I find and conclude that this allegation of the
complaint has been proved.6
11. The complaint alleges that in March, at the Williams-
burg Road store in Richmond, by Kathy Austin, Respondent
threatened employees with discharge in violation of Section
8(a)(1).
For this allegation the General Counsel relies on the testi-
mony of Austin, the supervisor involved, not any employee.
Austin testified that she told another employee not to talk
about the Union in the store because, based on her experi-
ence at another employer’s place of business, the employee
could be fired.
Austin made it clear that she told the employee that she
was only telling the employee what Austin’s prior employer
had done and that she was only speculating that Respondent
might do the same. Austin also made it clear that the em-
ployee was a friend, and she spoke only as a friend. The
issue, however, is the impact on the employee. Even though
couched in terms of what had happened elsewhere, and even
though offered as the advice of a friend, a supervisors’ tell-
ing an employee not to engage in union activities because
discharge could result necessarily would interfere with that
employees’ Section 7 rights. Accordingly, I find and con-
clude that the allegation has been proved.
12. The complaint alleges that on March 21, at the Wil-
liamsburg Road store in Richmond, Respondent, by Assistant
Store Manager Johnny Johnson, interrogated an employee in
violation of Section 8(a)(1) of the Act.
Former employee Wendy Porch testified that, as she was
working at a cash register, she was stopped and called aside
by Johnson who escorted her to a display area. At that point,
Johnson asked Porch if she had been telling employees that
he was ‘‘two-faced.’’ Porch replied that she had. Johnson
then asked her if she was interested in the Union. Porch,
falsely, replied that she was not. Johnson was called by Re-
spondent and denied ever speaking to Porch about the Union,
but I found Porch completely credible.
Porch had not displayed her feelings openly, she did not
initiate the exchange with Johnson, and Johnson preceded his
question about Porch’s union sympathies with a question that
was guaranteed to make Porch, at least, uncomfortable.
Under the circumstances, the coercive element is clear, and
I find and conclude that the allegation has been proved.
13. The complaint alleges that on March 18 Respondent,
by its president and chief executive officer, Gene Walters, at
the North Military Highway store in Norfolk, ‘‘threatened its
employees with department or store closure if the Union
were successful in organizing,’’ in violation of Section
8(a)(1).
Former bakery department supervisor Sylvia Redman testi-
fied that she was present when Walters came to the store and
addressed all supervisors and employees. Redman testified
that in his speech, Walters used a union publication that list-
ed 10 reasons why an employee should sign a union author-
ization card. Walters gave a reply to each of the listed rea-
sons. At ‘‘Job Security,’’ according to Redman, Walters said:
As far as job security, he did mention that if the
Union was voted in that they would have to pay more
wages; more wages had to [be] paid or some of the de-
partments would have to close down; if the departments
closed down, then the stores would have to close down.
[Semicolons added.]
On cross-examination Redman was asked and testified:
Q. You remember him saying that Big Star and
Kroger’s had closed, didn’t [sic] you?
A. Yes.
Q. And . . . did he say that part of the reason was
because their costs were too high?
A. Me said that they closed because the Union came
in and they had to pay too much in wages.
Respondent called two witnesses to rebut this testimony,
neither of whom was Walters. Sean McKimens was the store
manager at the time. After leading, he testified that Walters
did not threaten in any way to close the store if the Union
was successful in the organizational attempt. McKimens did
acknowledge that Walters told the gathered employees that
the store had been losing money and that it was being kept
open only for sentimental reasons. Bonnie Nielson testified
that she could not remember if Walters said anything about
the store closing.
The reason for Respondent’s presenting Nielson is not
clear because she appeared to be at trial for no reason other
than to state that she remembered essentially nothing about
Walters’ speech. The clearly biased testimony of Manager
McKimens essentially admitted a threat as McKimens ac-
knowledged that, in Walters’ antiunion speech, Walters stat-
ed that the store was being kept open only for sentimental
reasons.
Contrary to the assertion of Respondent on brief, the ques-
tioning of Redman on brief was not, in the least, leading. Re-
spondent not having advanced any other reason for discred-
iting Redman, and my having found Redman to have been
completely credible in her demeanor, I find that the testi-
mony of Redman to have been the fact.
Accordingly, I find and concluded that the allegation has
been proved.
14. The complaint alleges, and Respondent admits, that
from about March 1 until April 25, Respondent maintained
in its employee handbook a rule that states:
No one other than Farm Fresh advertising employees or
their designated representatives may solicit or distribute
literature in shopping or service areas. Any soliciting on
company property should be reported to the manager in
charge immediately.
Respondent does not dispute the General Counsel’s conten-
tion that, on its face, this rule violates Section 8(a)(1) of the
Act. The complaint further alleges that the rule was enforced
until April 25, in violation of Section 8(a)(1); Respondent
denies that allegation.
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Br. 85.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
The complaint alleges that the quoted rule was enforced on
April 8 at the Merrimack Trail store in Williamsburg.
Former employee Robert Linderman testified that, on April
8, he was scheduled to begin working (as a bagger) at noon.
He arrived at the store about 11:45 a.m. Linderman went to
the snackbar and bought a cup of coffee. Me distributed lit-
erature to several employees who were there on breaks.
Nonfoods Manager Alex Rotter came into the snackbar and
asked what he was doing. Linderman told Rotter that he was
distributing literature for the Union and explaining the orga-
nizational attempt to employees. Linderman offered some
union literature to Rotter who took it and left. Linderman
heard a page for Store Manager Howard to go to the snack-
bar, and shortly afterward, Howard and Assistant Store Man-
ager Stemann came to the snackbar and sat in the booth im-
mediately behind Linderman’s booth. Howard left the area at
some point, and Linderman and Stemann had an exchange.
According to Linderman:
I turned around and said ‘‘hello’’ to Bob Stemann,
asked him how he was doing, and then I told him that
I was passing out Union literature, and I was supporting
the campaign of Local 400.
Mr. Stemann then told me, he said, ‘‘I wish you
hadn’t said that.’’ There are signs up on the door that
say ‘‘No Solicitation.’’ And I said ‘‘Bob, if you’re tell-
ing me to stop, I’ll stop.’’ And he says, ‘‘I’m asking
you to stop.’’ I said, okay, that’s fine. I gathered my
Union materials, went out, took them and put them in
my car; locked them away. I called Don Dickerson, of
Local 400, and asked him to file charges on my behalf.
In his testimony, Stemann did not deny Linderman’s ac-
count of this exchange. He added, however, that Rotter had
reported to him that Linderman had given him literature
while he was working in an aisle. At one point Stemann tes-
tified that he went to the snackbar because of Rotter’s report;
at another point, Stemann testified that he went to the snack-
bar because the employees there were being noisy and
waiving the union literature around.
For good measure, Stemann testified that he purchased a
cup of coffee, and that Linderman had purchased nothing.
Linderman had been coached; he knew that he was supposed
to act like a customer, and he did so, at least to the extent
of purchasing something. I discredit Stemann on that point,
as I discredit his conflicting accounts of coming to the snack-
bar for purposes of noise control and for some reason related
to the (totally unsubstantiated) report of a working-area solic-
itation of Rotter by Linderman. That is, I find and conclude
that Stemann went to the snackbar to do exactly what he did,
stop Linderman from solicitation of nonworking employees
in the snackbar, an action that violated Section 8(a)(1) of the
Act.
On April 25, Linderman was off duty in the evening when
he went to the parking lot to solicit employees who were
going to, or leaving, work. He was ordered to leave by an
assistant manager. Respondent’s brief states, ‘‘The April 25
parking lot incident concededly was inappropriate; however,
it was immediately and effectively disavowed by Farm Fresh,
and no remedy is necessary.’’7 The disavowal that Respond-
ent refers to occurred on April 28. On that date, Jim Cox,
Respondent’s personnel manager, met with Linderman in
Howard’s office. Cox told Linderman that Linderman had a
right to solicit nonworking employees in the parking lot and
the snackbar, and other nonworking areas, as long as
Linderman was not on working time, as well. On the same
day, Respondent posted nonviolative no-distribution, no-so-
licitation rules, but there was no express repudiation of the
above-quoted rule. In view of that fact, and the fact that Re-
spondent had committed, and continued to commit, other un-
fair labor practices, Cox’s reassurance to one employee,
Linderman, and the posting of a nonviolative rule, did not
constitute an effective repudiation of the maintenance and
enforcement of Respondent’s violative rules. The allegations
have been proved.
15. The complaint alleges that Respondent, on December
4 and 14, at its East Mercury Boulevard store in Hampton,
and its Jefferson Avenue store in Newport News, respec-
tively, by Randy Crocker and Kevin Mattison, respectively,
confiscated union literature from employees.
Union Representative Dixon testified that on December 4
he went to the Hampton store about 9:30 a.m. He purchased
a cup of coffee and, as employees on break sat down at other
tables, he got up, went over to their tables, and gave them
literature. Dixon testified that Crocker went to one of the ta-
bles and asked the employees for the literature, and they
gave it to him.
Dixon testified that he went to the Newport News store’s
snackbar during the evening of December 14 and purchased
coffee. Dixon flagged down an employee who passed by and
gave him a union authorization card. Then Mattison, who
had been eating pizza nearby, ‘‘got up and got the card back
from the employee.’’ Mattison and Crocker denied this al-
leged conduct.
I found Dixon and Crocker and Mattison equally credible
on their testimony. Because the General Counsel has the bur-
den of persuasion, these allegations have not been proved.
REMEDY
Having found that the Respondent has engaged in certain
additional unfair labor practices, I find that it must be or-
dered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Farm Fresh, Inc., Norfolk and Richmond,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening arrest of any union representative who is
lawfully conducting himself on Respondent’s premises; con-
fiscating, or attempt to confiscate, union literature that is in
the possession of union representatives or its employees; en-
gaging in photographic surveillance of employees or union
representatives who are lawfully conducting themselves; in-
terrogating employees about their union activities, member-
893FARM FRESH
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ships, or desires; threatening department closure, or store clo-
sure, if the employees choose the Union as their collective-
bargaining representative; or maintaining or enforcing rules
that prohibit employees from engaging in distributions of lit-
erature or solicitations that are protected by the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Norfolk and Richmond, Virginia area stores
copies of the attached notice marked ‘‘Appendix.’’9 Copies
of the notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) 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 the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten the arrest of any representative of
United Food and Commercial Workers Union, Local 400,
AFL–CIO, who is lawfully conducting himself on our prem-
ises.
WE WILL NOT confiscate, or attempt to confiscate, union
literature that is in the possession of union representatives or
our employees.
WE WILL NOT engage in photographic surveillance of
union representatives, or our employees, who are lawfully
conducting themselves.
WE WILL NOT interrogate our employees about their union
activities, memberships, or desires.
WE WILL NOT threaten department closure, or store clo-
sure, if our employees choose the Union as their collective-
bargaining representative.
WE WILL NOT maintain or enforce rules that prohibit em-
ployees from engaging in distributions of literature or solici-
tations that are protected by the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
FARM FRESH, INC.