King Soopers

National Labor Relations Board - Board Decisions

Aug 27, 1981

257 N.L.R.B. 1033 (N.L.R.B. 1981)

KING SOOPERS
King Soopers, A Division of Dillon Companies, Inc.
and Dean M. Fizer. Case 27-CA-6599
August 27, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 26, 1981, Administrative Law Judge
Richard J. Linton issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition to Respondent's
exceptions and in support of the Administrative
Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
'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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge found, inter alia, that Respondent's
conduct following Dean Fizer's application for reemployment on August
14, 1979, violated Sec 8(a)(3) and (1) of the Act. The Administrative
Law Judge found that Respondent's conduct constituted a refusal to
rehire Fizer. Although we affirm the Administrative Law Judge's finding
of a violation, we find that Respondent unlawfully refused to consider
Fizer's application for employment. See Pierce Governor Company. Divi-
sion of Avis Industrial Corporation, 243 NLRB 1009 (1979), especially fn. 3
of the Administrative Law Judge's Decision. Accordingly, we shall
modify the Order recommended by the Administrative Law Judge to
provide the proper remedy as established in Board precedent. See Apex
Ventilating Co.. Inc., 186 NLRB 534 (1970). In finding that Respondent
unlawfully refused to consider Fizer's application, we rely particularly on
Respondent Warehouse Manager Richard Bock's statement to Fizer on
September 13, 1979, that it was going to be "damn hard, in fact almost
impossible," for Fizer to get rehired "with [Fizer's] position as vice presi-
dent of the local union and the conditions and the way things are within
the union right now." Rather than establishing an illegal refusal to hire,
however, we think the above comment establishes an illegal refusal to
consider for hire especially in light of the further fact that Respondent
was not then hiring employees from the outside. In finding that Respond-
ent violated the Act, however, we do not rely on the Administrative
Law Judge's finding that Respondent "shamed" Fizer in his role as busi-
ness agent in front of his stewards, when, during a meeting, Respondent
requested Fizer to withdraw the Union's unfair labor practice charge
against Respondent. In addition, we do not rely on the Administrative
Law Judge's speculation about the significance of Garage Supervisor
Steve Large's statement that "we'd got rid of the troublemaker."
In the section of his Decision entitled "The Remedy," the Administra-
tive Law Judge inadvertently misstated a date relevant to Respondent's
duty to offer Fizer employment. The Administrative Law Judge stated
that date as August 14. 1980. We hereby correct the reference to the date
to August 14. 1979.
257 NLRB No. 138
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
King Soopers, A Division of Dillon Companies,
Inc., Denver, Colorado, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) Discouraging membership in, or activities as
an officer or staff representative of, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 435, or
any other labor organization, by unlawfully refus-
ing to consider job applicants for employment or
discriminating against employees in any other
manner with respect to their hire or tenure of em-
ployment in violation of Section 8(a)(3) of the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Dean M. Fizer immediate employ-
ment, without prejudice to his seniority or other
rights and privileges, in the same or a substantially
equivalent position to which he would have been
employed if employed absent the discrimination
against him, and, if no such position has become
available since August 14, 1979, place Dean M.
Fizer on a preferential hiring list and offer him the
first such position that becomes available, and make
him whole for any loss of pay he may have suf-
fered by reason of Respondent's unlawful refusal to
consider him for employment in accordance with
the recommendations set forth in the section of the
Administrative Law Judge's Decision entitled 'The
Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
3 Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980). He also regards Wright Line. A Division of Wright
Line, Inc., 251 NLRB 1083 (1980), cited by the Administrative Law
Judge, as inapplicable here because as the Administrative Law Judge
pointed out (fn. 39) Respondent asserted no legitimate reason for the re-
fusal to consider Fizer for employment; failure to offer to rebut a prima
facie case loses the case: and this longstanding principle is not affected by
Wright Linre.
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT tell job applicants that it will
be very difficult if not impossible for them to
be rehired by us because of their past functions
as officers or staff representatives of Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
No. 435, or any other labor organization.
WE WILL NOT discourage membership in, or
activities as an officer or staff representative
of, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local No. 435, or any other labor
organization, by unlawfully refusing to consid-
er job applicants for employment or otherwise
discriminating against employees with respect
to their hire or tenure of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the National Labor Rela-
tions Act.
WE WILL offer Dean M. Fizer immediate
employment, without prejudice to his seniority
and other rights or privileges, in the same or a
substantially equivalent position to which he
would have been employed if employed absent
the discrimination against him, and, if no such
position has become available since August 14,
1979, place Dean M. Fizer on a preferential
hiring list and offer him the first such position
that becomes available.
WE WILL pay Dean M. Fizer any backpay,
with interest, which he lost because we re-
fused to consider him for employment on and
after August 14, 1979.
KING SOOPERS, A DIVISION OF
DILLON COMPANIES, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge: This
case was heard before me in Denver, Colorado, on De-
cember 4, 1980, pursuant to a complaint issued on April
30, 1980, by the General Counsel of the National Labor
Relations Board through the Acting Regional Director
for Region 27 of the Board. The complaint is based upon
a charge filed on February 28, 1980, by Dean M. Fizer,
an individual, against King Soopers, A Division of
Dillon Companies, Inc. (herein Respondent).
In the complaint, the General Counsel alleges that Re-
spondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, on or about September 13,
1979,' by Grocery Warehouse Manager Robert Bock's
telling Fizer that he would not be rehired because of his
former position with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No. 435 (herein Local 435 or the Union), and
Section 8(a)(3) and (1) of the Act by failing and refusing
to rehire Fizer since on or about August 14, 1979.
In its answer, Respondent admits the jurisdictional and
preliminary allegations, but denies that it has violated the
Act in any manner.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the oral argument made by counsel for the Gen-
eral Counsel and counsel for Respondent at the close of
the hearing in lieu of briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Kansas corporation, operates a chain of
retail stores in the State of Colorado where it is engaged
in the distribution and sale of groceries and related items.
During the past 12 months, Respondent had gross retail
sales from such business exceeding $500,000 and pur-
chased and received goods and materials valued in excess
of $50,000 directly from points outside the State of Colo-
rado. Respondent admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
' All dates are in 1979 unless otherwise stated.
1034
KING SOOPERS
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background2
Dean M. Fizer formerly worked for Respondent from
October 1975 until December 26, 1978, as a "washer-
greaser-tire man" in Respondent's garage.' He also drove
a truck for Respondent during that period. Fizer volun-
tarily quit his employment with Respondent to become a
business agent and vice president of the Union. 4 On leav-
ing Respondent's employ, Fizer received a form stating
that he was eligible for rehire (G.C. Exh. 2).
With respect to the eligible-for-rehire designation,5 Re-
spondent's vice president of personnel, Edward Belke,
testified that the designation simply means that the
former employee is eligible to be considered for rehire.
The "No" box, he said, is checked where an employee
has been discharged or has been deemed guilty of theft,
an "altercation with [a] supervisor," or similar "gross
misconduct." In short, it apparently means nothing more
than that a job applicant is eligible only to be inter-
viewed. 6 I have much difficulty with this interpretation, 7
since it seems to promote an inconsistency. 8 However,
there is no contrary evidence.
In conjunction with the foregoing matter, considera-
tion must be given to two disciplinary actions Fizer sus-
tained during his 1975-78 employment with Respondent.
The first was a written warning (G.C. Exh. 5(a)) issued
on October 25, 1976, for (1) causing $2,000 in damage to
a truck engine by leaving the oil pan plug loose, and (2)
improperly rotating tires on a unit and taking twice as
long to do it.9 Fizer refused to sign the warning and filed
a grievance (G.C. Exh. 5(b)) over it claiming it to be
"unfair and unjust." While the testimony on this point is
sketchy, it appears that the warning survived the griev-
ance.
2 Witness sequestration under Rule 615 of the Federal Rules of Evi-
dence was not invoked by either party.
3 During his first year, Fizer was laid off twice (presumably for lack of
work), once for about 6 weeks and the second time for about 8 or 9
weeks.
' Fizer testified that he served as vice president of Local 435 from Jan-
uary through December 1979. As an elected officer, the position of Fizer
was paid a nominal sum only. James Ivy, the Union's secretary-treasurer,
appointed Fizer to a full-time paid position as a business agent in January.
He served as a business agent until the Union terminated him on June 22.
' It functions as a question on G.C. Exh. 2. Thus, whether an employee
was "Eligible for Rehire had to be checked in the appropriate box. "Yes"
or "No." On Fizer's form, the "Yes" box is checked.
' Respondent offered no documents supporting Belke's testimony, such
as a personnel policy guide or rejected applications in which the appli-
cants had received eligible-for-rehire designations. Belke tended to be
evasive at times, and I do not accept his testimony in full.
' Belke's interpretation seems to be that an employee's application for
rehire can (logically) be rejected on the basis of some incident (less than
"gross" in magnitude) in his prior employment with Respondent, even
though Respondent, at the time of the employee's departure, had not
considered such incident worthy of a "not eligible."
' That is, a prior incident is. in effect, forgotten, yet at a later time (on
application for rehire) it is reviewed again and may serve as the basis for
the rehire applicant's rejection. Fizer, as will be noted below, was not
even given an interview pursuant to his rehire application even though
the woman who took his application (Respondent's agent for such pur-
pose) told him that his chances were good and that the garage would be
hiring drivers.
9 James C. Moynahan. then garage supervisor, stated on the warning,
"I have serious reservation about this employee's ability to fill the job."
As his second discipline, Fizer received a 5-day sus-
pension on October 6, 1977, allegedly (per the document,
G.C. Exh. 6) for (1) reporting to work under the influ-
ence of alcohol and (2) using abusive language toward
Garage Supervisor Steve Large. '" The suspension notice,
which Fizer signed, concludes with the statement, "He is
therefore given a 5-day suspension in lieu of termination
with the understanding that further incidents of such be-
havior will be met with his discharge." I
As a business agent for the Union, part of Fizer's
duties was to service the Union's collective-bargaining
agreement with Respondent. Robert Bock, formerly gro-
cery warehouse manager for Respondent,' 2 testified that
he enjoyed a good working relationship with Fizer when
the latter handled grievances and otherwise served as the
Union's business agent. 1Fizer testified that he, as busi-
ness agent, filed an unfair labor practice charge on behalf
of the Union against Respondent. The charge apparently
related to seniority. He further testified, without contra-
diction, that Vice President Belke and Dennis Pressnall,
Respondent's director of distribution and transporta-
tion, " informed him in a meeting with Fizer and the
stewards in or about April that if he wanted to get along
with Respondent he would drop the charge. Fizer re-
ported the matter to Ivy, his superior, who directed him
to withdraw the charge. Fizer complied, but he testified
that withdrawal of the charge "did not help the working
conditions within the company." These "working condi-
tions" are not further described in the record.
As earlier noted, Fizer was terminated by the Union
on June 22. He testified that on July 19 he was all set to
be hired by Western Grocers (apparently a firm unrelat-
ed to Respondent), and had even passed his medical ex-
amination and the Department of Transportation's tests
(written and driver's) when Western's grocery ware-
house superintendent, Roy Mayberry, told him that
Western would not be able to hire him. Mayberry said
that the reason was that Neal Duppen, Western's assist-
ant vice president of industrial relations, had informed
Mayberry regarding "what had been said and done by
the business agents from Local 435 since [Fizer] had left,
along with what he [apparently Duppen] had been told by
King Soopers. (Emphasis supplied.) Fizer asked what Re-
spondent had told Duppen, but Mayberry said that it
was confidential.
Fizer then telephoned Respondent and ended up
speaking with Tom Nelson of the personnel department.
Fizer described the Western situation and asked "what
the hell was going on with King Soopers and my em-
'o Fizer testified that he agreed to the 5-day suspension only because he
apparently had used some abusive language toward Moynahan, and that
he did not agree with the alcohol allegation. Nevertheless, it does not
appear that Fizer contested the suspension.
" One might wonder how Fizer, in light of Belke's testimony and Re-
spondent's remarks on the two disciplinary notices, obtained the eligible-
for-rehire designation when he left Respondent in December 1978.
'2 Bock left Respondent's employ on December 10, and at the time of
the hearing herein he was employed by a firm in Salt Lake City, Utah.
"3 Fizer testified that, during his 1975-78 employment with Respond-
ent, he served as a union steward for 1-1/2 years and processed some
grievances. Bock testified that he had no business dealings with Fizer
when the latter was Respondent's employee.
" Bock testified, in effect, that he reported to Pressnall.
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment record." Nelson replied that he did not know
what Western was saying, and that, when Western called
wanting Fizer's employment record, "[W]e told them
that you worked for us." (Nelson obviously meant that
Fizer had previously worked for Respondent.)
Respondent timely objected to, and thereafter moved
to strike, the hearsay testimony regarding Mayberry's
quoting Duppen's quoting King Soopers. As counsel for
the General Counsel asserted that such information was
elicited only as background leading up to a subsequent
event (presumably an admissible piece of evidence), I
overruled the objection and denied the motion. Counsel
for the General Counsel never clarified the relevance of
this background. As I attach no weight to this hearsay
testimony, or to any of Mayberry's remarks, there is no
need for me to reverse my ruling and strike the hearsay
reference to Respondent.
B. Fizer's Reapplication at King Soopers
It is undisputed that on August 14 Fizer, after standing
in line for 45 minutes or so in a drizzling rain with about
100 other job applicants, signed a short form application
(G.C. Exh. 7). He testified that he applied for any job,
and the form reflects "warehouse-stocker-driver." Ac-
cording to Fizer, he showed the woman taking the appli-
cations his eligible-for-rehire notice (G.C. Exh. 2), and
she said that he should have no problem coming back in
view of the eligibility notice and his previous experience
with Respondent, and recommended that he notify
Transportation Supervisor William L. Oppy that he had
filed his application since Respondent would be hiring
some drivers. l Fizer testified that he did not know the
woman's name or whether she worked in the personnel
department.
C. Post Application Events
1. The conversation with Transportation Supervisor
Oppy
On August 14 or the next day, Fizer telephoned Oppy
and reported that he had filed his application. According
to Fizer, Oppy replied, "OK, but so what?" In his own
testimony, Oppy admitted the "OK" but denied the "so
what" portion. While I credit Fizer's version, I do not
see that it adds anything for Fizer. 6 Indeed, it seems to
detract from the General Counsel's case. That is, the "so
what" could have meant one of three or more ideas.
First, "[W]e do not have any openings." Second, "I
would not hire you if we did." Third, "I don't have any-
thing to do with the hiring" (but at the hearing he testi-
' The application was completed in pencil, and the portion relating to
past employment at Respondent is circled in red ink. At the top, in red
ink, appear the words "14 yrs. Exp." Underneath those words, in a set of
four boxes marked "For Office Use Only," appear the symbols "5,"
"TD," "SW," and "2." These symbols are not explained in the record,
and I am left to speculate as to whether the symbols are favorable. unfa-
vorable, or whatever regarding Fizer's application.
" Fizer and Oppy both testified that each waited for the other to speak
(after the opening and disputed words), and then they both hung up at or
about the same time.
fled that he did). I make no finding as to what Oppy spe-
cifically meant by the "so what.""
2. The conversations with Grocery Warehouse
Manager Bock
Fizer, whom I credit for reasons noted below, testified
that on September 13 he telephoned Bock and inquired if
he was doing any hiring in the warehouse. S Bock re-
plied that he was not at that time because Respondent
was transferring people around from department to de-
partment under a career opportunity program. 9 Bock
then added that it was going to be "damn hard, in fact
almost impossible," for Fizer to get rehired "with your
position as vice president of the local union and the con-
ditions and the way things are within the union right
now." Fizer thanked him for the information and ended
the call. On cross-examination, Fizer repeated essentially
the same version, but he included the point that Bock
said that he knew Fizer's application was on file (Bock's
having so heard) and that if he could be of any help he
would do so. Fizer also, in the version on cross-examina-
tion, changed Bock's "no hiring" statement to "not
aware of" any hiring. He further testified:
Q. During this conversation, Mr. Fizer, did Mr.
Bock tell you that he wouldn't hire you, did he?
A. No, he did not.
According to Fizer, he next spoke to Bock on January
11, 1980.2 o Having learned in a regular meeting of the
Union that Bock had left Respondent, and after obtaining
Bock's home telephone number from Jim Golden, frozen
food supervisor at Respondent, Fizer telephoned Bock
on such date. In the conversation with Bock, Fizer asked
him if he would give a written statement concerning
their September conversation "of my being refused em-
ployment with the company." Bock said that he would
have to check on the matter and call Fizer back.2
'1 Resp. Exh. 2 is Fizer's March 4, 1980, pretrial affidavit. It was of-
fered and received solely to reflect that at p. 2, par. 2, Fizer reported that
"[h]e [Oppy] just said okay." Conceding that the pretrial version did not
contain the "so what," Fizer insisted that he reported the phrase when
relating the story to the Board agent but that it was not included in the
affidavit.
18 The specific date is supplied by a brief note Fizer made regarding
the conversation on a calendar pad bearing such date. The note (Resp.
Exh. I) states: "Called K.S. No jobs avail. Bock said 'Dean it's going to
be difficult to put you to work since you are an officer & the way things
are going with the Union."'
'9 Testifying for Respondent, Vice President Belke explained that Re-
spondent had given then-current employees the opportunity to express a
desire to transfer to another department and that, wherever possible,
preference was given to such requests before vacancies were filled by
outside hires.
20 G.C. Exh. 3 is Fizer's notes of January II. These notes reflect, be-
sides a call to Bock at 8 a.m., a call at 8:20 a.m. to Respondent when he
asked "Dotty" to check on whether his application was still being consid-
ered. She said that they had 10,000 applications on file and not enough
time to check on where his stood. Fizer also testified to the same event
except in his testimony he could not recall "Dotty's" name. Fizer testi-
fied that Respondent employs several thousand employees and has con-
tracts with several different unions.
21 Fizer's January 11, 1980, note (G.C. Exh. 3) on this, offered and re-
ceived (over objection) only as corroboration and not as affirmative evi-
dence, reads:
Continued
1036
KING SOOPERS
On January 14, 1980,22 Bock called Fizer and reported
that Pressnall said that he, Bock, could not give a state-
ment since he no longer represented Respondent. Bock
added that he had two more checks coming from Re-
spondent and he did not want to jeopardize them. Fizer
told Bock that he was preparing to file charges against
Respondent and asked if Bock would be a witness for
him. Bock said that he would be moving from Colorado
soon, but he wished Fizer the best of luck with his
charges. 23
Bock's version is quite different. He testified that he
and Fizer had six telephone conversations. While he
changed the dates several times during his testimony, it
appears that he finally settled on: One in late June or
early July 1979; one in August; one on September 13;
one in late September or early October; and two in Janu-
ary 1980.
I shall not burden the record with tracking Bock's
many changes and switches during his testimony after
cross-examination began. Not only did he correct dates
(a not uncommon matter for anyone), but he also
changed events and contradicted himself. For example,
he testified that he spoke to Fizer once in Respondent's
lunchroom in a brief "hello"-type conversation in August
or September, but that Fizer did not ask for a job. On
being shown a letter (G.C. Exh. 9) he wrote on April 15,
1980, to Mary Lynn Feldman, Respondent's personnel
director, he changed his testimony and admitted that on
such occasion Fizer did request to be rehired. He testi-
fied that probably Supervisor Jim Golden was present at
the cafeteria conversation. 24
Turning now to Bock's version (which I do not accept
where not in conformity with Fizer's testimonial ver-
sion), we learn that Fizer's initial call (June-July) to
Bock was simply to report on his termination by the
Union. In one of the next conversations Fizer reported
Called Bob Bock and asked him to give me statement that they
couldn't hire me because of the way union was being run and my
being vice president. Said he was still on company payroll & would
have to check with Dennis Pressnall to see if he could do this, but
he would get back in touch with me over the weekend. Also said
this was the reason why I hadn't been hired. Agreed to this same
thing as he had told me this in September 79.
22 The specific date is supplied by G.C. Exh. 4, a contemporaneous
note made by Fizer concerning his telephone conversation with Bock of
such date. This exhibit was offered and received (over objection as a self-
serving hearsay document) on the same basis as G.C. Exh. 3.
12 G.C. Exh. 4 also refers to a reference by Bock to grievances being
filed by warehouse personnel at King Soopers. Bock apparently consid-
ered the grievances frivolous.
24 Bock's April 15, 1980, letter to Feldman, written after Fizer had
filed the charge herein on February 28, 1980 (and presumably in relation
to Respondent's own investigation of the charge), reads:
I would like to put in writing the comments I had with Dean
Fizer when he asked me for a job.
Dean asked me at least two or three times if I could put him back
on the payroll. Each time I told him he would have to go through
personnel. He also asked me if there was any reason I couldn't hire
him and, of course, I told him no. At least one of the times he asked
me for a job, Jim Golden was present and aware of the full conver-
sation. As I am well aware of discrimination policies and guidelines
set by the personnel department, I did not, at any time, ever tell
Dean we could not hire him because he was an ex-union business
agent.
If subpoenaed, I would be willing to testify exactly to what I've
written.
that he planned to sue Local 435. In one conversation,
but prior to the August 14 application, Fizer called
Bock, reported the incident involving Western Grocers,
and stated that Local 435 had blacklisted him at West-
ern, and that he would like to return to King Soopers.
Bock told him to file an application.
About September 13, Fizer called and reported that he
had filed his application. Bock told him that Respondent
was not then hiring because it was moving people
around under the career opportunity program, but that
he would "get back" with Fizer as soon as possible.
Bock testified that the subject of the September-Octo-
ber call was simply a report by Fizer about the "pro-
ceedings he was taking against the Union and against
Western Grocers" regarding the blacklisting, and that
the application was not mentioned.
Coming to the January conversations, Bock testified
that in the first one (January 11, 1980) Fizer requested a
letter confirming that he had been a good business agent
in order to use the letter in his suit against the Union.25
Bock said that he would have to check with Pressnall.
In the second January conversation, Bock told Fizer
that Pressnall had vetoed the idea of Respondent's get-
ting involved in Fizer's lawsuit with the Union.
Bock denied that the September conversation came up
in the January conversations, and further denied saying
in the September 13 conversation, or any conversation,
that Fizer would have difficulty being rehired because of
his position with the Union. In fact, Bock denied making
any reference to Fizer's position with the Union.
As earlier noted, I credit Fizer over Bock. Although
Fizer's testimony is not a model of precision and consist-
ency, it is more so than Bock's, and I was more im-
pressed with the demeanor of Fizer than that of Bock.
D. Other Evidence of Animus-Steve Large's
"Troublemaker" Remark
Paul D. Woolsey, a member of Local 435, has been
employed by Respondent as a mechanic for 3-1/2 years.
He works for Garage Supervisor Steve Large. Called by
counsel for the General Counsel, Woolsey testified that
at some point after Fizer left Respondent's employment
in December 1978, and prior to Fizer's June 22, 1979,
termination by the Union as a business agent, Large
stated to Woolsey that "we'd got rid of the troublemak-
er." 26 Since no one had left the garage around that time,
Woolsey asked Large to whom he was referring, and
Large replied, "Dean Fizer." 21
Large's remark may be subject to several interpreta-
tions, but in view of the confrontation which developed
in April after Fizer filed a charge with the Board against
Respondent, the two interpretations which appear to be
the most likely are: (1) Large (or other officials of Re-
25 Fizer reportedly said that Local 435 had accused him of being 6
months behind on his paperwork, and that Fizer wanted Bock's letter to
include the statement that he thought Fizer was current on his union
work.
26 There is no complaint allegation regarding this remark
27 Large did not testify. Woolsey could not recall what led up to this
comment. If Large clarified his remark. Woolsey did not report it in his
testimony. The record does not reflect whether any witnesses were pres-
ent.
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent) had complained to Ivy at Local 435 and there-
after learned that Fizer would be terminated; or (2)
while Respondent had made no complaint or suggestion
to the Union regarding Fizer, Large had learned that the
Union was about to dump Fizer. Although Woolsey's
best recollection was that Large's remark came before
Fizer's termination by the Union, I have no problem
placing the event in the past tense. Woolsey was not firm
in his recollection, and Large's comment really suggests
a completed event which had just happened. In any
event, Large's comment about a "troublemaker" reflects
animus whether it came before or after Fizer's discharge
by the Union from his business agent position.
Aside from the question of timing, the next question is
whether (1) or (2) above is the more probable. That is,
did Respondent have only a passive animus (the second
interpretation above) or did it take aggressive action (the
first interpretation above)? As Fizer's June 22 termina-
tion came only about 2 months after his confrontation
with two high officials of Respondent (Belke and Press-
nail), practically shaming Fizer in the presence of his
stewards, I am compelled to conclude that Large's
remark meant that Respondent took some affirmative
action to get Fizer removed from his business agent posi-
tion and out of Respondent's corporate hair. 28
E. Hiring After Fizer's Application
The only testimony regarding whether Respondent
hired anyone in the categories Fizer applied for came
during counsel for the General Counsel's cross-examina-
tion of Belke and Bock.29 His attempt to question Trans-
portation Supervisor Oppy on this subject during cross-
examination was denied when I sustained Respondent's
objection that such questions were beyond the scope of
the direct examination. 30
Belke testified that he did not know whether any
truckdrivers were hired after August 14, and that he did
not think he had any records in the courtroom which
would reveal whether any were hired. When asked, "Do
you know of any employees that were hired after August
1979," Belke answered, "I know there were-I don't
28 Recall that Fizer testified that withdrawal of the charge in April did
not improve working conditions at the Company. While Bock had a
good relationship with Fizer, Large quite obviously did not.
'9 Counsel for the General Counsel called no witnesses under Rule
611(c) of the Federal Rules of Evidence and apparently had not issued a
subpoena duces tecum for production of hiring and/or transfer records on
and after August 14, 1979, the date of Fizer's application. Respondent's
counsel, in view of the state of the evidence, asserted in his closing argu-
ment that Respondent chose not to call witnesses on the subject.
3o Oppy's direct examination was limited to the following:
Q. [By Mr. Siebert] Mr. Oppy, by whom are you employed?
A. King Soopers.
Q. Mr. Oppy, did you have a telephone conversation with Mr.
Dean Fizer somewhere around mid-August of 1979?
A. Yes.
Q. Could you relate that phone conversation to us, please?
A. Mr. Fizer called and explained to me that he had put in an ap-
plication. I told him okay, there wasn't anything said for a little bit
and I told him thank you for calling and that was the end of the
conversation.
MR. SlitF.lRT: No further questions.
specifically know the numbers, but I know that we've
hired people since '79." 3L
Bock testified that he could not recall whether any
employees were hired in the warehouse in September or
October.32 When asked about November, he replied that
he was sure that some were hired "at the end of the
year, yes."
F. Analysis and Conclusions
In oral argument, Respondent's counsel stressed,
among other points, the admitted fact that Bock (and Re-
spondent) never told Fizer that he would not be hired.
Counsel argued that there was no evidence of a refusal
to rehire. He confirmed that Respondent chose not to
offer evidence on whether Respondent considered and
rejected Fizer's application because of its view that such
matter was the General Counsel's burden-a burden not
carried.
Addressing first the independent 8(a)(l) allegation of
complaint paragraph 9 (i.e., Bock told Fizer he would
not be rehired), I note that Fizer, on cross-examination,
clearly answered, "No, he did not," to the question of
whether Bock (in the September 13 conversation) said
that he would not rehire Fizer.3 3 Counsel for the General
Counsel did not move to amend complaint paragraph 9,
nor did she make a closing motion to conform the com-
plaint pleadings to the evidence. Nevertheless, Fizer's
credited testimony shows a violation in almost the same
words alleged.34 Certainly, the evidence is of the same
character as the allegation. As the difference is not a ma-
terial variation, I shall order Respondent to cease and
desist from such conduct and to post an appropriate
notice to employees.
Turning now to the alleged failure to rehire, I find
that the General Counsel has established that Respondent
expressed an aggressive animus by Respondent (based
upon the remarks of Large and Bock) toward Fizer. Be-
cause of the aggressive animus I have found, I further
find that Fizer's rehire application was an exercise in fu-
tility. Thus, at least prima facie, it actually was an "im-
possibility"35 for Fizer to be rehired because of his past
union function,3 6 and not because of the earlier disciplin-
ary actions against him.
In terms of Wright Line,3 7 I find that the General
Counsel has established a prima facie case that Respond-
ent refused to rehire Fizer because of his positions in the
"3 As can be seen, it is unclear what time period Belke was referring to,
and no departments or classifications are mentioned.
32 It must be remembered that Bock's testimony was on December 4,
1980, over a year after the months he was asked about.
33 While the distinction can be made that the question focused on Bock
rather than Respondent, even Fizer's version never quoted Bock in the
explicit negative alleged in paragraph 9.
34 Thus, Bock said that it was going to be "damn hard," indeed,
"almost impossible" for Fizer to get rehired because he was an officer of
the Union and because of the way "things are within the Union" and
"the way the Union is being run at the present time."
a3 Bock's phrase of "almost impossible," as quoted by Fizer, is essen-
tially the same in view of all the circumstances
36 Although Bock apparently referred to Fizer's position of vice presi-
dent, the "troublemaker" position Fizer had was that of business agent.
The difference is immaterial here.
:'' Wright Line. a Division of Wright Line, Inc.. 251 NLRB 1083 (1980).
1038
KING SOOPERS
Union, and that Respondent has failed to rebut38 such
case by demonstrating that Fizer would not have been
rehired regardless of his union functions. 39
Accordingly, I find that Respondent refused to rehire
Fizer in violation of Section 8(a)(3) and (1) of the Act,
and I shall order that it offer him a position for which he
applied, discharging, if necessary, any employee hired in
such position after August 14, 1979, and that it make him
whole for any earnings he lost as a result of the discrimi-
nation against him. 40
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by telling an employee that it would be difficult and
almost impossible to be rehired because of his functions
as an officer of the Union.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by refusing to rehire Dean M. Fizer on and after
August 14, 1979.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take the af-
firmative action set forth below to effectuate the policies
of the Act.
It having been found that Respondent unlawfully dis-
criminated against Dean M. Fizer with respect to his re-
employment application, it will be recommended that
Respondent be required to offer him reemployment in
the same position in which he would have been rehired
absent the discrimination against him, if such position
became available after the filing of his application, dis-
charging, if necessary, any employee hired after August
14, 1980, and, if no such position has become available,
in a substantially equivalent position which may have
become available. In the event neither of such positions
'" Under Wright Line, Respondent had the burden of going forward
with the evidence and, with what amounts to an affirmative defense, re-
butting the General Counsel's case.
"9 Such rebuttal effort might have taken the form of testimony by
Belke. Bock, or others that Fizer's application was considered and reject-
ed because of his two prior disciplinary actions. I need not decide wheth-
er such effort, if made, would have been persuasive.
"' Whether an opening did occur following Fizer's application, and the
amount of backpay due. are matters to be resolved at the compliance
stage .4Aexander Dawson. Inc. d/h/a .4Aexander's Restuarant and Lounge,
228 NLRB 165 (1977). enfd 586 F.2d 1300 (9th Cir 1978). As Fizer's
reemployment application, for unlawful reasons, was predestined to fail-
ure, and as Respondent waived its opportunity in this proceeding to offer
evidence that it considered and rejected Fizer's application for lawful
reasons, Respondent is foreclosed from raising at the compliance stage
any contention that it would have rejected Fizer's application on the
merits. Thus, the issues to be resolved at the compliance stage are deter-
mining (1) if there was a job vacancy at the time of or following Fizer's
application and (2) the amount of backpa, due.
have become available, Respondent shall place Dean M.
Fizer's name on a preferential hiring list and offer him
employment in the first such position it would have
reemployed him absent any unlawful considerations.
I also shall recommend that Respondent be required to
make Dean M. Fizer whole for any loss of earnings he
may have suffered by reason of Respondent's failure to
accord him nondiscriminatory consideration for employ-
ment in the manner outlined above. Backpay shall be
computed in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), with interest thereon computed in
the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER" 4
The Respondent, King Soopers, A Division of Dillon
Companies, Inc., Denver, Colorado, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Telling job applicants that it will be very difficult
and almost impossible for them to be rehired as employ-
ees because of their activities as officers or staff repre-
sentatives of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local No. 435, or any other labor organization.
(b) Discouraging membership in, or activities as an of-
ficer or staff representative of, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 435, or any other labor organization,
by unlawfully refusing to rehire job applicants as em-
ployees or discriminating against employees in any other
manner with respect to their hire or tenure of employ-
ment in violation of Section 8(a)(3) of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 435,
or any other labor organization, to bargain collectively
through representatives of their own choosing, to act to-
gether for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer reemployment to Dean M. Fizer and make
him whole for any loss of pay that he may have suffered
by reason of Respondent's unlawful refusal to rehire him
in accordance with the recommendations set forth in the
section of this Decision entitled "The Remedy."
', In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 10248 of the Rules and Regulations, he adopted by the Board and
become its findings conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Denver, Colorado, plant copies of the
attached notice marked "Appendix." 42 Copies of said
42 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
notice, on forms provided by the Regional Director for
Region 27, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
1040