Farm Fresh Supermarkets

National Labor Relations Board - Board Decisions

May 24, 1973

203 N.L.R.B. 891 (N.L.R.B. 1973)

COMMONWEALTH FOODS, INC. 891
Commonwealth Foods , Inc. (West End), d/b/a Farm
Fresh Supermarkets and Retail Clerks International
Association , Local 157, AFL-CIO. Case 5-
CA-5501
May 24, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 3, 1972, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a brief in support of its exceptions.
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 the
brief and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge and
to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Commonwealth Foods,
Inc. (West End), d/b/a Farm Fresh Supermarkets,
Richmond, Virginia, its officers, agents , successors,
and assigns, shall take the action set forth in the said
recommended Order.
June 8 and 9, 1972, on complaint of the General Counsel of
the National Labor Relations Board and Answer of Com-
monwealth Foods, Inc. (West End), d/b/a Farm Fresh Su-
permarkets I (herein the Company or Respondent)? In
essence, the complaint charges that the Company violated
Section 8(a)(3) of the Act by discharging four named em-
ployees in order to discourage membership in the Union,
and violated Section 8(a)(1) of the Act by coercively interro-
gating and threatening employees with reprisals if they
chose union representation.
At the hearing, all parties were given full opportunity to
adduce evidence, examine and cross-examine witnesses,
and otherwise fully participate in the proceedings. At the
close of the hearing oral argument was waived . However,
within the time allowed, posthearing briefs were filed by
counsel for the General Counsel and by counsel for the
Respondent, which have been duly considered.
Upon the entire record, including my observation of the
demeanor of the witnesses,3 I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material, a cor-
poration duly organized under and existing by virtue of the
laws of the Commonwealth of Virginia, having its principal
office and place of business in Norfolk, Virginia. It is en-
gaged in the retail sale and distribution of groceries and
related products; its Retail Store No. 474, located in Rich-
mond, Virginia, is the only facility involved in the instant
proceeding.
Respondent, in the course and conduct of its business
operations received, during the past calendar year, which is
a representative period , gross revenues valued in excess of
$500,000. During the same period, it purchased and re-
ceived products valued in excess of $50,000 from points
located outside the Commonwealth of Virginia.
I find, as the Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings.
2 In the absence of exceptions thereto , we adopt, pro forma, the Adminis-
trative Law Judge 's recommended dismissal of the allegations in the com-
plaint relating to employee E. Blakely.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This proceed-
ing under Section 10(b) of the National Labor Relations
Act, as amended (herein the Act), with all parties repre-
sented , was heard before me in Richmond , Virginia, on
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As previously noted, Respondent owns and operates a
chain of supermarkets which are engaged in the business of
The corrected name of the Respondent appears as amended at the hear-
The complaint was issued April 19, 1972, based on a charge filed by
Retail Clerks International Association , Local 157, AFL-CIO (herein the
Union) on March 6, 1972.
1 Cf. Bishop and Malco, Inc., d/b/a Walker 's, 159 NLRB 1159, 1161.
203 NLRB No. 142
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selling at retail grocery items such as canned goods, pro-
duce, bakery products, and the like . At all times material,
it operated three such stores in the City of Richmond, Vir-
ginia, one of which is located at the corner of Horsepen and
Broad Streets , known as Store No. 474. As far as the record
shows, none of the employees at these stores have ever been
represented for purposes of collective bargaining by a labor
organization . However, during the summer of 1971, the
Company received notification that the Union intended to
commence an organizational drive among its employees .4
As a result, several management officials of the Respondent
attended a meeting in which there was a discussion as to
how to deal with the matter . Although the record is not
altogether clear, it appears that at least one of the conse-
quences of the meeting was to conduct a survey among the
employees to ascertain their sentiments , for or against the
Union. Such survey was conducted by Respondent's attor-
neys who conducted interviews among the employees dur-
ing the month of July or August, from which a list of
employees was compiled which apparently "graded" the
employees as to their respective interests in the Union.5
However , it appears that the Union did not commence an
immediate organizational drive; rather, the first evidence of
such activities among the employees of Store No. 474 took
place in November, 19716
B. The Union Campaign
Grace Tripp, who was employed by the Respondent as a
cashier, was the chief instigator of the union campaign
among the employees . It was she, who , in early November,
contacted the union representative who, in turn, gave her
union literature , buttons, and authorization cards. Tripp
testified that she held several union meetings at her home
during the months of November and December, as well as
in January and February, and that she signed up approxi-
mately 30 employees , most of whom worked at Store No.
474.7 She further testified that such solicitation took place
during the employees' lunch periods, breaks, or after work.
During the latter part of 1971, Curtis Campbell was a
management trainee at the store (he was promoted to assis-
tant manager after the first of the year 1972). He testified
that in the latter part of November or the first part of
December he had a conversation with Eugene Walters,
Respondent's executive vice president and general manag-
er, in the office of the store . In that conversation , Walters
first asked Campbell if the latter knew anything about the
Union's coming into the store . Campbell said no . Whereup-
on, Walters requested that Campbell play the part of a
"double agent." That is to say, Walter requested that Camp-
bell go among the employees pretending that he was in
4 Apparently , the Union also intended a simultaneous campaign among
employees of other retail grocery stores.
The testimony of Respondent 's executive vice president that he did not
know the reason for such a list-that "counsel wanted to do it . I don't know
why"-is difficult to believe.
All references hereafter to the months of November and December refer
to the calendar year 1971; all references to the months of January , February
and March refer to the calendar year 1972, unless otherwise specified.
7 It appears that approximately 50 to 60 employees were employed at that
store.
favor of the Union and find out as much as he could about
it. Campbell testified that he agreed , and, in fact , complied
with Walters' request to the extent of going to Grace Tripp's
house and signing a union card .8 Campbell testified that he
did not recall reporting to Walters but that he did, on sever-
al occasions , tell Store Manager Baber the employees whom
Campbell considered were prounion . This specifically in-
cluded Grace Tripp who Campbell advised was instrumen-
tal in the union campaign since he had been to her house,
as above stated.'
Barry Fine , a stock clerk for the Company, testified that
shortly after Thanksgiving and during December, he had
several conversations with Store Manager Baber in which
the latter interrogated him as to his knowledge of any union
campaign , and whether he or any employee had signed a
union card or received literature from the Union . Saber also
advised that if the Union did come into the store, Fine
would lose his seniority rights, would not get the raise that
the Union had promised, and that his hours could be cut so
as to eliminate all overtime . Fine denied any knowledge of
the Union since , as he testified, he was not aware of the
campaign in December . However, he joined the Union
shortly after the first of the year , and thereafter wore a
union button in the store . Curtis Campbell, who was then
the assistant manager , told him that he had better take if off
because "if Baber sees it , he is going to be mad with you."
When Baber came in and observed Fine wearing the button,
he stated that Fine had the right to wear the button but it
meant the end of their friendship and that he did not want
Fine to talk to any of the other employees while he was "on
the clock because it might influence them and they don't
know any better ." Later, Baber told Fine that he should
take the button off his shirt and not display it where it could
be seen by other employees or by Vice President Walters.
Thereafter, Fine removed the button from his shirt.1°
I find the foregoing interrogations , threats of reprisal, and
direction to remove the union button to constitute interfer-
ence , restraint, and coercion of employee rights guaranteed
by Section 7, in violation of Section 8(a)(1) of the Act.
Susan Smith , a cashier for the Company, testified that she
was absent from work during much of December but that
she recalled one incident which occurred during that month.
This was an occasion when she overheard Store Manager
Baber talking on the telephone to someone ; but that he
stopped talking and asked head cashier Alley if the latter
had heard anything about a union coming in and she told
a The card was dated November 26, 1971.
9 The foregoing findings are based upon the testimony of Campbell who
impressed me generally as a'honest and forthright witness although on occa-
sion he became confused as to dates. Both Walters and Baber denied knowl-
edge of the union campaign until on or about January 10 or 11. I discredit
their testimony to that extent, relying instead not only upon the credited
testimony of Campbell, but also upon the testimony of employee Fine , infra,
as well as upon circumstantial evidence.
10 The foregoing findings are based upon the credited testimony of employ-
ee Fine. Baber denied have any conversations with employees concerning the
Union prior to January 1, and, further , denied knowledge of the Union's
campaign prior to that time. Considering demeanor, as well as those reasons
discussed, snfar, in the analysis section of this Decision, I discredit his testi-
mony to that extent.
Although the union button issue was not pleaded , it was "fairly tried" at
the hearing without objection , and therefore may properly form the basis for
a finding . See J C. Penney Co v. N.LR.B., 384 F.2d 479 (C.A. 10, 1967).
COMMONWEALTH FOODS , INC. 893
him no. In January, when Smith returned to work from her
illness, she overheard a conversation between Baber and
Shirley Smith , the frozen food manager , wherein Baber ad-
vised Smith that if a union did come into the store , Respon-
dent would have to cut down on the number of employees.
I find the foregoing threat of economic reprisal to constitute
interference , restraint, and coercion within the meaning of
Section 8(a)(1) of the Act.
David Land, a cashier for the Company. testified that in
April 1972, while in the store , Store Manager Baber advised
that Land should think about the Union "real closely-that
if the union came in that [Land] might have to work on
Friday nights and [his] hours might be cut." l l Land was not
then presently working on Friday nights. I find this threat
of economic reprisal to constitute interference , restraint,
and coercion within the meaning of Section 8(a)(1) of the
Act.12
C. The Alleged Discriminatory Discharges
1. The discharges of Tripp, Bowles, and Walden
The Employer contends that the above-named employees
were discharged because they received a "not recom-
mended" classification from the polygraph company who
gave them , among other employees , a lie detector test in
December. Counsel for the General Counsel argues that the
Respondent used the polygraph test as a ruse or pretext, and
that the "real reason" for their respective discharges was
because they engaged in activities on behalf of the Union.
It appears that for approximately 2 1/2 years prior to the
events in this case , the Respondent employed, on a consult-
ing basis, the firm of Lincoln M. Zonn, Inc. (New York,
New York) to provide security services for the company,
including the giving of polygraph examinations to its em-
ployees.
11 Credited testimony of Land , which was not denied by Baber.
12 The complaint , as amended at the hearing, contains an additional allega-
tion of independent violation of Section 8(a)(1) of the Act . to wit,
"Respondent's assistant store manager , Curt Campbell , threatened an em-
ployee with discharge if the employee filed a charge with the NLRB." Evi-
dence in support of this allegation is contained in the testimony of Barry Fine
who stated , in essence, that Campbell had talked to Fine 's parents in an
attempt to dissuade Fine from engaging in union activities, and that Fine
confronted Campbell that if the latter had anything to say on this subject it
should be discussed with him (Fine ). He advised Campbell that if the latter
did that again , he (Fine) was "going to the Labor Board and have it stopped."
Campbell then asked Fine if the latter was threatening him, because if he was
Campbell intended to fire Fine . Fine simply advised Campbell not to let it
happen again and walked away.
I don 't consider the foregoing to be substantial evidence of a violation for
two reasons. First, there is no substantial evidence that Campbell had the
right to fire and Fine admitted that he was not aware that Campbell had such
a right . Accordingly , there is insufficient proof that Fine was restrained or
coerced by the remark . Secondly , the alleged threat was made in the context
of an argument between the two men which related not so much with respect
to the right of Fine to engage in union activities but rather to the conduct
of Campbell in approaching Fine 's parents regarding Fine 's conduct. Under
all circumstances, I find that the General Counsel did not sustain his burden
of roof with respect to this allegation of the complaint.
On Respondent 's standard application for employment form (Resp.
Exh. 20), there is a provision which reads as follows:
I also understand that as a condition of employment I agree to being
polygraphed on matter (sic) of store employment when ask (sic) to do
so.
On the morning of December 16, Joseph Hughes, Jr., an
agent of the Zonn Company, appeared at Store No. 474 for
the purpose of conducting polygraph tests among the man-
agement officials of the store (the store manager and his
assistant) and the "money handling" personnel , i.e., the
cashiers. Hughes, in his testimony, described the visit as a
"routine one," and so advised Store Manager Baber. The
latter assigned a room (the Carousel Room) for the conduct-
ing of the tests, and designated his assistant, Campbell, as
the first to take the test. (Baber was the last.)
During worktime on December 16 and 17, the following
employees of Respondent at its No. 474 store submitted
themselves to Hughes for the taking of the polygraph test:
Floy Alley, Sandra Harris, David Land, Wayne Burton,
Susan Smith, Yvonne Walden, Grace Tripp, and Marsha
Bowles . The testimony is consistent that, prior to Hughes'
"hooking up" the employees to the polygraph machine, he
conducted an oral interview in which, according to Hughes'
testimony, he satisfied himself "that this person has the
intelligence level, the education level, to comprehend the
question that I am asking, and can readily understand the
release sheet." He then presented a form of release to the
interviewee for signature.14
Hughes then proceeded to ask a series of questions of the
employees which were related directly to the subject matter
of the test such as any conduct involving court action, tak-
ing money or merchandise from previous employers with-
out permission or payment, as well as taking of money or
merchandise from the Respondent without permission or
payment. Hughes explained that he asked these questions of
the subject prior to taking the actual test so as to enable him
(or her) to be "completely truthful during the actual test-
ing." Thus, according to his testimony, he would ask the
subject how much money or merchandise he (or she) had
taken without permission or payment (or repayment in the
case of money) during the preceding year. From the answer
given, Hughes stated that the question was "prepared for
the polygraph test this way." From this information,
Hughes had the subject write out in her (or his) own hand-
writing a statement incorporating the foregoing informa-
tion. The form of such statements (some of which were
introduced into the record herein) was substantially similar
and varied only with respect to the amounts of alleged theft
of cash or merchandise, or discounts given to customers.
Thus, after reciting the name and address of the subject and
how long she had been employed as a cashier with Respon-
dent, the statement recited that she "had never taken any-
thing big from the store," but had taken minor items
totaling certain amounts over a certain period of time. The
statement ended with the universal sentence:
I write this only because it is true and I want to be a
There are also notices to that effect posted on the bulletin boards in
Respondent's stores (Resp . Exh. 21).
1 This form contains language which purports to release the Zonn Compa-
ny and the examiner administering the test from all claims arising out of the
examination and authorizes the information to be released to "those parties
having an interest in same ." The language contains the following sentence:
I further understand that I am not taking this test as a condition of
employment or of continued employment , and that I am advised that
I could not be forced to take this test by anyone.
Compare the foregoing statement with that on the application for employ-
ment form, supra.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truthful person.
The employee witnesses who took the test administered
by Hughes, and who testified for the General Counsel, vig-
orously denied that they had taken anywhere near the
amounts of merchandise or cash set forth in their respective
statements . Rather, according to their testimony , Hughes
"suggested" in varying terminology that industry practices
showed that a supermarket cashier in their position would
customarily take an "average" amount of money and mer-
chandise over a given period of time; therefore, if they
would admit to taking at least that amount , they could
truthfully testify that they had not taken an amount in
excess of the suggested amount . When, on cross-examina-
tion , Hughes was interrogated as to this point , the colloquy
went as follows:
Q. (By Mr. Etelson) What I am or was asking you,
Mr. Hughes, was whether you made any suggestions to
these employees as to what an average or typical cash-
ier would take over a certain period of time.
A. I explained, how can I make a suggestion-
TRIAL EXAMINER Don't ask a question in response. Do
you understand the question?
THE WITNESS Yes, sir.
TRIAL EXAMINER All right. Did you do that?
THE WITNESS . Did I make a suggestion as to how much
this person should put down?
TRIAL EXAMINER No. The question was whether or
not you made a suggestion of what an average person
under similar circumstances might be expected to take.
THE WITNESS Based on the way the question was
asked, I will have to say no, I did not make any sugges-
tions.15
Following the signing of the written statement by the
employee , l all employees (with the exception of Bowles)
were "hooked up" to the machine and given the lie dectector
test." Hughes testified that following the administering of
the test, he immediately dictated a report on the subject
before calling in the next employee . Such reports, which
contained Hughes' recommendation as to whether the em-
ployee should be retained in employment , were immediately
forwarded to the Zonn Company's headquarters in New
York. All employees interviewed received a "not recom-
mended" classification except Baber who received a "for
your disposition" classification.
Vice President Walters received the report of the Zonn
15 The testimony of Hughes was generally reluctant and evasive. I have no
hesitancy in discrediting such testimony to the extent that it varies from that
of the employee witnesses whose testimony, in the main , was forthright and
direct.
i6 This statement is sometimes referred to in the transcript, by the
Res1pondent's attorney , as "a confession "
1 Bowles was not subjected to the test because , according to Hughes'
testimony , she was only 16 years of age at the time, and it was contrary to
the policy of the Zonn Company to administer the test to a person of this
age without parental consent However , Bowles testified that Hughes advised
her "he wasn 't going to hook me up because he thought I was a truthful
person and he didn't see any need of hooking me up. But that he would be
back in 2 weeks and if I said anything to anyone about him not hooking me
up, it would get me in a lot of trouble and would get him in trouble also "
As far as the record shows, Hughes did not return to the Company after he
left on December 17.
I deem it unnecessary to resolve this particular credibility conflict for the
purpose of deciding the ultimate issue of discrimination
Company (not recommending nine employees for retention
by Respondent) on or about December 28. Walters testified
that the results were "alarming-that [he had] never experi-
enced anything like this in [his] life, ..." since the greatest
number of "not recommended" classifications he could re-
call were 3 out of 12 to 16 tests. Walters called Zonn at the
latter's home in Miami and assertedly told him that the
report was difficult to believe, that to fire all of the nine
people would mean that Respondent could not operate its
store, and requested Zonn to "reevaluate" the report "and
make sure that you haven't made any mistakes." Zonn re-
turned the call on New Year's Day, told Walters that they
had reevaluated the report and that, although it was
"against his better judgment," he would recommend "going
along" with five of the nine employees bqt that four would
have to be discharged.18
Walters testified that 2 or 3 days later (the delay being
assertedly caused because of the New Year's weekend), he
advised Store Manager Baber to separate the four employ-
ees, telling him that it was because of the polygraph test.
Walters further testified that he instructed Baber not to
discharge the four at the same time, but rather to stretch it
out over several weeks in order to lessen the impact on the
store. However, Walters did advise Baber that he wanted
Grace Tripp and Marsha Bowles to be discharged "at the
same time, the same week, and then after that Yvonne Wal-
den and Susan Smith." Accordingly, on January 10, Tripp
and Bowles were discharged; Walden was terminated on
January 18. However, prior to the date when Smith was
scheduled for discharge, Respondent was formally notified
by a letter from the Union that Smith, among other employ-
ees, was "actively engaged in helping the union in [its] or-
ganizing campaign on your three stores in the greater
Richmond area ." Accordingly, Respondent, upon advice of
counsel , abrogated its decision to discharge her.
On or about January 18, Floy Alley, the head cashier, had
a conversation with Store Manager Baber in which they
were discussing the "pros and cons" of a union, and he
advised that two more people in the store had to be termi-
nated.19 When Alley asked him who they were, he re-
sponded that one was Yvonne Walden, but he did not want
to mention the name of the other person. Alley said that
there were only two people left who had taken the polygraph
test-Sandra Harris and Susan Smith; that it mast be Smith
because she did not believe that Baber "particularly cared
about firing [Harris]." Whereupon, Baber said, "You know,
Floy, I certainly will be glad when this is all over with so I
can quit firing people because [of] this union mess." 20
Analysis and Concluding Findings as to the
Discharges of Tripp , Bowles , and Walden
The positions of the parties on this aspect of the case may
be summarized as follows: It is the theory of counsel for the
is The five employees recommended to be retained by Respondent were
Alley, Harris, Land, Campbell, and Burton, the four to be discharged were
Smith , Walden , Tripp, and Bowles (Resp. Exh 10)
19 At the time of the conversation , Tripp and Bowles had been discharged,
but it was poor to Walden's termination
20 Credited testimony of Alley which is corroborated , in essence, by the
testimony of Susan Smith.
COMMONWEALTH FOODS, INC. 895
General Counsel that the Respondent, having learned of the
commencement of the Union's campaign and Grace Tripp's
preeminence in it, decided to rid itself of her and a few other
proponents of the Union; that it determined to accomplish
its purpose via the polygraph test so as to immunize itself
from any responsibility for the terminations. Respondent
asserts that it had no knowledge of the Union's campaign
until after the polygraph tests were given and three of the
four employees recommended were discharged; that it had
good and sufficient business justification for having the
cashiers of the store submit to polygraph examinations since
there had been shortages appearing in the cash registers in
September and October; and, finally, the Zonn Company,
being a large and reputable firm in its field, would not be
a party to such a devious plot as outlined above. For reasons
set forth below, I am convinced that substantial evidence on
the record preponderates in favor of the position of the
General Counsel.
There is ample evidence, both direct and circumstantial,
to warrant the finding that the Company soon became
aware of the union campaign commencing in late Novem-
ber, and Grace Tripp's active participation in it. Thus the
sensitivity of the Respondent to the possibility of its em-
ployees becoming unionized is displayed by the calling of
a meeting of its officials in July for the purpose of discussing
how to deal with the situation and concluding that the em-
ployees should be interviewed by its counsel to determine
their proclivities in this respect. Certainly it may reasonably
be concluded that a company with its figurative ear so close
to the ground would hardly escape detecting for a very long
time the activities of its employees concerned with organiz-
ing a union in the store.21 In addition to the foregoing, I find
direct evidence of company knowledge of the employees'
union activities prior to the conduct of the polygraph exam-
inations, based upon the credited testimony of Curtis
Campbell, described above.
The evidence in support of Respondent's business justifi-
cation for having the lie detector test conducted at this
particular time, I find to be insubstantial, and, to a certain
extent, conflicting. Thus, according to Vice President
Walter's testimony, some cash register shortages had shown
up in this store in September or October. But it does not
appear that this caused any great distress among
Respondent's officials since Walters testified further that
Respondent's Comptroller Alman had merely mentioned to
Zonn that "we had some problems in our Store No. 474."
It would certainly seem that if there were any major prob-
lems in this regard, they would have been dealt with prior
to December 16. Moreover, if the real purpose of the con-
duct of the lie detector test was concerned with the cash
register shortages in September or October, one might rea-
sonably conclude that Store Manager Baber would have
been so advised. However, Baber's testimony on this point
is quite vague and indefinite. Thus he testified that he knew
a representative of the Zonn Company was coming to the
store but he "didn't know when or how or what." He further
2i The Board recently affirmed a Trial Examiner's finding that a supermar-
ket fell within the "small plant doctrine" which has been used to base a
finding of company knowledge. See Buddies Supermarkets, Inc., 197 NLRB
407.
testified as follows:
Q. How did you know that?
A. Because back when I was assistant manager, we
talked about lie detector tests, and I talked with Mr.
Alman, and he told me, yes, he would have someone
come in the future. He told me that about three or four
times.
Furthermore, Investigator Hughes' testimony that his vis-
it to the Respondent was merely " routine" seems some-
what inconsistent with the notion that the purpose of the
test were to ascertain the cause of the cash register short-
ages . Of course, after he arrived on the scene, he conducted
the test only upon management personnel and the cashiers.
However, if it was in fact only a "routine visit," it would
seem that the test would have been administered to a sam-
pling of all personnel in the store as had been done on the
previous occasion approximately a year and a half ago.
Under all circumstances, I am unpersuaded that the visit
of Hughes to the Respondent's store on December 16 was
either "routine" or necessarily related to the cash register
shortages which took place the previous October. For the
foregoing reasons , coupled with the manner in which
Hughes conducted the examinations, above described, I am
convinced that the administering of the polygraph tests was
directly related to the commencement of the Union 's orga-
nizational campaign.
Although I certainly do not consider myself an expert
polygraphist, it does seem that the manner in which Hughes
conducted the interview, coupled with the manner in which
the results were finally analyzed and recommendations
made , point unerringly to the conclusion that the tests were
utilized as a means by which Respondent could accomplish
the result of ridding itself of certain employees rather than
simply seeking to acquire truthful information concerning
the employees' morals and work performances. Thus, ac-
cording to the undenied testimony, Hughes spent most of
the interview time securing information of past delinquin-
cies which was incorporated in a signed "confession" rather
than with the actual administering of the polygraph test.
This may be proper procedure, but the record reflects that
the admissions secured in this fashion were relied upon
more heavily in the final analysis than the actual polygraph
test themselves . This takes on heightened significance when
considered in the light of the employees' credited testimony
that Hughes adroitly suggested an "average" amount which
a normal cashier would take over a given period of time.
This conclusion, i.e., that the polygraph tests were utilized
more as a means to a desired end rather than to secure
objective information-seems confirmed by the procedure
which Hughes used with respect to Bowles. Thus, although
he must have known early in the interview that she was only
16 years old and that, therefore, under asserted company
policy, she was not qualified to take the polygraph test,
Hughes nevertheless proceeded to induce her to divulge
information which could later be used to accomplish her
termination since , obviously, a polygraph test could not be
utilized to accomplish that result.
The above conclusion is further confirmed, in my view,
by the conduct of Zonn in "reevaluating" his company's
recommendations to the Respondent. With respect to his
reasons for refusing to change his recommendation as re-
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spects Smith , Walden , Tripp, and Bowles while allowing the
Company to retain the other five employees, Zonn testified
as follows:
I looked for basically a common denominator where
we could salvage people or have to recommend against
them. And probably the key criteria in these four indi-
viduals in question that stood out from the other five
was that these four had admitted taking cash from
Farm Fresh and/or customers and not making any
attempt to repay any portion of it, particularly since all
four were in an extremely sensitive area being cashiers,
handling the register , handling the money, handling the
front end. In this note , I did give some specific reasons
on each of the four.
Q. (By Mr. Dail) Would you state them?
A. Yes, sir. In one case , rather heavy theft, prior
admission-
Q. Would you give the name of the party you are
referring to?
A. Smith: on former job, heavy-it's a relative
term-"heavy theft." FF here would refer to Farm
Fresh, and "Cash as recently as the previous week."
Walden: I indicated here, "young, nineteen, and only
five months but had admitted theft as recent as the
previous day and had admitted cash thefts.
Tripp: rather heavy theft from Farm Fresh in the past
year and admitted cash from both Farm Fresh and
cash from a customer.
And Bowles who was recently new on the job, and had
only held, if I remember my records, one otherjob, had
admitted some theft on a prior job and only two
months prior, and also recent theft from Farm Fresh,
including cash.
Q. How would it distinguish from the other five em-
ployees?
A. Primarily in that the other five employees either
had one, no prior theft from employees or extremely
minor; reasonably petty theft from Farm Fresh would
include a large portion of personal consumption: eat-
ing; and either no cash at all, or what cash-and these
would have been small amounts that had been taken-
had either all been repaid or partially repaid before
these tests were run.
It was a calculated , professional education guess-
whatever you want to call it-education opinion that if
we were forced to reevaluate , these five were the least
likely to be problems.
However , the evidence-at least that which was submit-
ted into this record- 22 does not appear to substantiate
Zonn's conclusions. Thus, David Land, a witness for the
General Counsel, testified undeniably that, following
Hughes' suggestion , he admitted that he had taken $250 and
that is what he wrote on his "confession." Yet, on Zonn's
report following reevaluation, it is stated that Land had no
u Only the reports of the tests of the three discrimmatees (Tripp, Walden,
and Bowles) were introduced into the record herein.
theft of cash (Resp. Exh. 10). This is to be compared with
the report concerning Bowles who admitted "taking about
$10 in cash" over a period of 3 months, and with Tripp who
admitted taking $75 over a 3-year period, and with Walden
who admitted taking $5 over a 5-month period. These facts
clearly indicate that there was no warrant for distinguishing
among the personnel on that basis.
An additional factor which lessens the credibility of the
polygraph as an objective test is the great discrepancy or
deviation of the results here from the norm. That is to say,
on the basis of Respondent's own history of polygraph tests
given to Respondent's employees, only a minority percent-
age received a "not recommended" rating. Thus Vice Presi-
dent Walters testified that the greatest number (of
nonrecommendations) he could recall would be "less than
3 out of a `normal 12 to 16 tests."' Lincoln Zonn testified
that out of a total of 599 employees of Respondent tested,
516 received recommendations for retention. Clearly, then,
the results of these particular tests were quite an extreme
deviation from the norm.
Furthermore, Respondent's conduct following the "reev-
aluation" reflects something less than an overriding concern
about retaining in its employ employees with such a "prov-
en" propensity for theft. Thus, at the very outset, Walters
waited several days before he notified Baber to discharge
the employees. Then, rather than discharging all of the four
at one time, he directed that the terminations be stretched
over a period of several weeks. While he testified that this
was done in order not to disrupt the organization, it would
seem that he could have secured temporary replacements
from other stores in the area if he was earnestly concerned
with their conduct as cashiers. At the very least, it would
seem that he would have, during the interim they were at the
store, removed the employees from the cash registers into
performing some other jobs which would have removed
them from the money handling function. But he testified
that this was not done.
Moreover, if the money shortage and/or polygraph test
was the real reason for the decision to discharge Susan
Smith, why was such decision so quickly abrogated by noti-
fication from the Union that she was engaging in activities
on its behalf? It strains credulity to believe that Respondent
simply did not wish to become involved in an unfair labor
practice proceeding if in fact the real reason for its decision
was, as stated, related to the polygraph test. Again, if Re-
spondent had, in truth, great apprehension concerning
Smith's propensity for theft, it would have at least removed
her from her cashier's duties, but, as stated, this was not
done.
Finally, on this issue, I have given some weight to the
credited testimony of Alley that Baber admitted that he
would be glad when the " union mess was over so that he
could `quit firing people.' "
Based upon all of the foregoing, I am convinced and
therefore find that Respondent utilized the polygraph tests
as a means of ridding itself of three employees whom it
believed to have been active adherents for the Union,23 and
23 The record shows that Yvonne Walden attended a union meeting at
Grace Tripp 's house during the latter part of November , and there signed a
union card Marsha Bowles also attended union meetings at Grace Tripp's
house and signed a union card for Tripp on November 11, after work hours
COMMONWEALTH FOODS, INC.
in order to discourage membership in the Union in violation
of Section 8(a)(3) and (1) of the Act, and I will recommend
an appropriate remedy.24
2. The discharge of Ellen Blakely
This employee commenced working for the Company in
August 1971, in the bakery department . Hazel Plageman is
the manager of that department but is not alleged to be a
supervisor within the meaning of the Act . Blakely testified
that she joined the Union "sometime before Christmas" and
thereafter, on a Thursday , wore a union button to work. She
further testified that Hazel appeared "shocked" but did not
say anything to her ; however , Baber told her to "check
around at the other stores in the bakery and see what they
were paying because a lot of us that had signed up for the
Union he thought were making a mistake ." She said that she
would.
The following Saturday , Blakely called in to notify the
Company that she would not be in to work because of
personal illness . Several minutes later , Curtis Campbell
called her back and said that if she did not come in , Respon-
dent would not need her anymore . Blakely responded that
she was sick and not able to come in.
The following Monday , Store Manager Baber called
Blakely and advised that Campbell did not have authority
to fire her and that he (Baber ) would give her a part-time
job as a cashier-"that they were trying to do with one less
in the bakery ." Baber further told her that Plageman ran the
bakery and the delicatessen and "she did what she wanted
back there ." Blakely responded that she would think about
Baber's offer.
Blakely called Plageman the following Wednesday and
the latter advised that she did not have anything to do with
the matter of Blakely's termination and for Blakely to call
Baber about it, which Blakely did. Baber advised that
Blakely was not "considered fired ; [she] was just considered
laid off." Blakely did not thereafter return to the
Respondent's store seeking employment.
Analysis and Concluding Findings as to Ellen Blakely
Although the timing of the incident , as well as the con-
flicting testimony of Respondent's witnesses , makes the
case of Blakely 's separation from the Company suspicious,
I am unable to find that there is substantial evidence to
sustain the General Counsel 's burden of proof on this issue.
Thus, whether or not Plageman had authority to hire or fire
employees in her department , she made it abundantly clear
that she desired her assistants to be dependable since , other-
wise, the burden of maintaining her small department fell
directly upon herself. The record is undenied that Blakely
was not dependable with respect to reporting to work albeit
the reasons were mostly beyond her control . Thus she testi-
fied:
Q. Now, have you been absent on occasion before
this last incident?
A. Yes, I was off a week when I had the flu, and I
24 Cf . National Food Service, Inc., 196 NLRB 295
897
was off when my baby was sick . And I cut my foot one
time and I couldn't walk on it . I went 'in the same day
I cut it, but I had to sit down most of the day ; I couldn't
work . So I was off two or three days with that. Then
my brother died , and I was off for his funeral , and then
I had an uncle die, and I went to his funeral.
The testimony of Floy Alley confirms that Blakely missed
a substantial amount of time from work and "that usually
happened at a time when we were really desparate for help."
Under all circumstances , I am convinced, and therefore
find, that absenteeism rather than union activities was the
motivating reason behind Blakely's separation from the em-
ployment of Respondent , and therefore will recommend
that this allegation of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above , to the extent found unlawful , occurring in connec-
tion with the operations of the Respondent described in
section I, above , have a close , intimate , and substantial
relation to trade , traffic, and commerce among the several
states and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices , I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily dis-
charged Grace Tripp, Marsha Bowles, and Yvonne Walden,
it will be recommended that the Respondent be ordered to
offer them immediate reinstatement to their former posi-
tions or, if such positions no longer exist , to substantially
equivalent positions , without prejudice to their seniority or
other rights and privileges and make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by the payment to each of them
of a sum of money equal to the amount she normally would
have earned from the date of termination to the date of
reinstatement less their net earnings during said period.
Backpay shall be computed on a quarterly basis in the man-
ner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and shall include interest at 6 percent per
annum, as provided in Isis Plumbing & Heating Co. 138
NLRB 716.
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act. Accord-
ingly, a broad cease-and-desist order is necessary and ap-
propriate to effectuate the policies of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating against Grace Tripp, Marsha
Bowles, and Yvonne Walden to discourage membership in
the Union , Respondent has engaged in conduct in violation
of Section 8(aX3) and (1) of the Act.
4. By the foregoing conduct, by coercively interrogating
employees concerning their union activities , by threatening
employees with reprisals for engaging in conduct in support
of the Union , by directing employees to remove union but-
tons from their clothing while at work, and by advising
employees that other employees had been discharged for
engaging in union activities, Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(axl) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, I
hereby issue the following recommended:
ORDER25
Commonwealth Foods , Inc. (West End), d/b/a Farm
Fresh Supermarkets , its officers , agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment or any
term or condition of employment to discourage member-
ship in or activities on behalf of Retail Clerks International
Association , Local 157, AFL-CIO , or any other labor or-
ganization.
(b) Coercively interrogating employees concerning their
union activities, threatening its employees with reprisals for
engaging in activities on behalf of the Union, directing em-
ployees to remove union buttons from their clothing, and
advising employees that other employees had been dis-
charged for engaging in union activities , or in any other
manner interfering with , restraining, or coercing its employ-
ees in the exercise of their right to self-organization, to form,
join , or assist any labor organization, to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any and
all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Grace Tripp, Marsha Bowles, and Yvonne Wal-
den immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to a substantially equivalent
position, without prejudice to their seniority or other rights
and privileges , and make them whole for any loss of pay
they may have suffered as the result of the discrimination
against them in the manner provided in the section of this
Decision entitled "The Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after dis-
charge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary and
relevant to analyze and determine the amounts of backpay
due under the terms of this Order.
(d) Post at its Store No. 474, Richmond, Virginia, copies
of the notice marked "Appendix." 26 Copies of said notice,
on forms provided by the Regional Director for Region 5,
after being duly signed by Respondent, shall be posted by
it for a period of 60 consecutive days thereafter, in conspicu-
ous places , including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Decision, what
steps have been taken to comply herewith .17
IT IS FURTHER RECOMMENDED that the allegations of the com-
plaint be dismissed in all respects other than those found to
have been sustained in the above findings and conclusions.
25 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and order, and all objections thereto shall be deemed
waived for all purposes.
26 In the event that the Board 's 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."
27 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 5, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post this notice and we intend to
carry out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection and
To refrain from any and all these things.
Since it was decided that we violated the Act by
terminating the employment of Grace Tripp, Marsha
COMMONWEALTH FOODS, INC. 899
Bowles , and Yvonne Walden because they engaged in
union activities , WE WILL offer them full reinstatement
to their former jobs, and WE WILL pay them for any loss
they suffered because we fired them.
WE WILL respect your rights to self-organization, to
form, join, or assist Retail Clerks International Associ-
ation, Local 157, AFL-CIO, or any other labor organi-
zation, to bargain collectively in respect to terms or
conditions of employment , or to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from
any or all such activities, and WE WILL NOT interfere
with , restrain , or coerce our employees in the exercise
of these rights.
WE WILL NOT do anything that interferes with these
rights . More specifically,
WE WILL NOT coercively interrogate you concerning
union activities , or threaten you with reprisals for en-
gaging in union activities , or direct you to remove
union buttons from your clothing, or tell you that em-
ployees have been discharged for engaging in union
activities.
WE WILL NOT discourage union activity or member-
ship in Retail Clerks International Association, Local
157, AFL-CIO, or any other labor organization by
discriminating against you if you choose to engage in
union ,activities or join that Union or any other union.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in any of the activities listed
above that are protected by Section 7 of the National
Labor Relations Act.
You and all our employees are free to become members
of any labor organization, or to refrain from doing so.
Dated By
COMMONWEALTH FOODS, INC.
(WEST END), d/b/a FARM
FRESH SUPERMARKETS
(Employer)
(Representative) (Title)
WE WILL notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or'compliance with its provisions may be direct-
ed to the Board's Office, Federal Building, Room 1091,
Charles Center, Baltimore, Maryland 21201, Telephone
301-962-2822.