Key Food

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 111 (N.L.R.B. 2001)

KEY FOOD 111
J.R.L. Food Corp. d/b/a Key Food and Local 1500,
United Food and Commercial Workers Union,
AFL–CIO. Cases 2–CA–31661, 2–CA–31698, 2–
CA–31709, 2–CA–31810, 2–CA–31862, and 2–
CA–31876
September 28, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On April 12, 1999, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The Re-
spondent, the General Counsel, and the Charging Party
each filed exceptions and supporting briefs. The General
Counsel also filed an answering brief to the Respon-
dent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der2 and to adopt the recommended Order as modified
and set forth in full below.3

1 The Charging Party and the Respondent have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
After the issuance of the judge’s decision, the General Counsel peti-
tioned the United States District Court for the Southern District of New
York for preliminary injunctive relief under Sec. 10(j) of the Act. The
district court affirmed all of the judge’s findings except that it refused
to order the reinstatement of Alba Cortes. Instead, the district court
found the judge’s “general assessment of Ruben Luna’s credibility to
be an insufficient basis to conclude that Alba Cortes would not have
been discharged but for her union activities.” Silverman v. J.R.L. Food
Corp., 162 LRRM 2169 (S.D.N.Y. 1999) (full text of oral opinion). The
United States Court of Appeals for the Second Circuit subsequently
reversed the district court’s decision regarding employee Cortes and
remanded for entry of the requested temporary injunction reinstating
her to the Respondent’s employment. 196 F.3d 334 (1999). The court
found that the district court had failed to accord the judge’s decision
appropriate deference and that its finding of no reasonable cause to
reinstate Cortes was not supported by the record. The court noted that
“[t]here was ample evidence, consisting of Cortes testimony and that of
the corroborating employees, to establish reasonable cause to believe
that the alleged unfair labor practices had occurred.” 196 F.3d at 337.
As to the Respondent’s defense that Luna had observed Cortes giving
away merchandise, the court found that the judge’s discrediting of
Luna’s testimony and his crediting of Cortes’ testimony was supported
with detailed references to other record testimony and documentary
evidence as well as logical inferences to be drawn from the record. The
court also found that the judge implicitly rejected another witness’
testimony that he had witnessed Cortes giving away merchandise.
Consequently, the court found no basis in the evidence for the district
court’s conclusion that the Board would necessarily reject the adminis-
trative law judge’s credibility assessments or overturn the findings that
depend on those assessments.
1. The Respondent operates a retail grocery store at
3515 Jerome Avenue in the Bronx. The Respondent’s
sole shareholders are two brothers, Ruben and Jaime
Luna. The Luna brothers also own three other supermar-
kets under different corporate entities. The Respondent
acquired the Jerome Avenue store on January 12, 1998.4
The Union had represented the employees of the prede-
cessor owner of the supermarket.5 For several weeks
after the purchase, the Union attempted to obtain recog-
nition, but was unsuccessful. In mid-February, the Un-
ion began an organizing campaign directed at the Re-
spondent’s employees.
The Respondent had employed Cupertino Luna (Cu-
pertino) at the Jerome Avenue store as a “stockboy”
since March. Cupertino signed an authorization card on
July 27. On August 15, Assistant Floor Manager Jose
Rivera unlawfully interrogated Cupertino and threatened
him with discharge after he observed Cupertino exchang-
ing pleasantries with union officials leafleting outside the
store. On August 17, 2 days later, Cupertino was trans-
ferred to another of the Respondent’s stores.
The judge found that the General Counsel met its ini-
tial burden under Wright Line6 of demonstrating that Cu-
pertino’s union activity was a motivating factor in the
2 There were no exceptions to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) by interrogating employees on August 4 and
5, 1998; by interrogating employee Cupertino Luna and other employ-
ees and threatening them with discharge on August 15; by directing
employees not to join the Union and to report other employees’ union
activities and threatening to reduce their hours in order to induce them
to quit the Union during mid- to late August; by interrogating employ-
ees regarding their cooperation with the Board’s investigation of an
unfair labor practice charge in mid-September; and by interrogating
employee Cortes and threatening to reduce her hours, and directing her
to report other employees’ union activities at various other times up to
October 22. Nor were there any exceptions to the judges’ findings that
the Respondent violated Sec. 8(a)(3) by discharging employee Ruddy
Rodriguez on August 5 and employee Juan Rodriguez on August 29.
The General Counsel and the Charging Party have excepted to the
judge’s failure to find that the Respondent violated Sec. 8(a)(1) by
threatening employee Cupertino Luna in June or July. We find it un-
necessary to pass on these exceptions as any additional findings of
unlawful threats would be cumulative to the findings the judge made,
which we adopt, and would not affect the remedy.
3 We will modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
4 All dates hereafter are in 1998.
5 Although the Respondent retained at least some of the predeces-
sor’s employees, there is no allegation that the Respondent was a suc-
cessor with an obligation to recognize and bargain with the Union.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
336 NLRB No. 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112
Respondent’s decision to transfer him from the Jerome
Avenue store to the Respondent’s newly opened C-Town
supermarket. The judge noted that the transfer occurred
almost immediately after the unlawful interrogation and
threat made by Rivera. Although the judge acknowl-
edged that the Respondent did not fire Cupertino as
Rivera had threatened, the judge noted that he was
abruptly removed from the store without explanation.
The judge further found, however, that the Respondent
met its burden of establishing that it would have trans-
ferred Cupertino even in the absence of his union activ-
ity, since he concluded that the transfer followed the Re-
spondent’s customary practice of staffing its newly ac-
quired stores with transferred employees. Specifically,
the judge noted that the Respondent had transferred an
entire meat department from another store to assist in the
January opening of the Jerome Avenue store and that a
summary provided by the Respondent and put in evi-
dence at the hearing herein also indicated that other em-
ployees had been transferred to the new store.
The General Counsel and the Charging Party except,
contending that the judge erred in finding that the
Respondent had rebutted the General Counsel’s initial
case and that the Respondent has failed to demonstrate
by a preponderance of the evidence that it transferred
Cupertino for legitimate business reasons. We find merit
in these exceptions.
The Board has long held that “[a]n employer cannot
simply present a legitimate reason for its actions but
must persuade by a preponderance of the evidence that
the same action would have taken place even in the ab-
sence of the protected conduct.” T&J Trucking Co., 316
NLRB 771 (1995); Mainline Contracting Corp., 334
NLRB 922, 932 (2001). In the instant case, the Respon-
dent did not maintain any written records or policy re-
garding transfers and provided only limited evidence as
to its past practice of transferring employees to and from
stores owned by the Luna brothers. Ruben Luna testified
that he and his brother would consult with each other to
determine which employees at their jointly owned stores
were available for transfer. However, Ruben Luna failed
to testify as to why Cupertino was selected for transfer
over numerous other employees.7 Cupertino was the
only “stockboy” transferred to the new store and there is
no evidence that he possessed any special skills that
would warrant his selection over numerous other stock-
boys. Although the Respondent submitted a summary of
prior transfers, the summary was compiled from Luna’s
memory and was unsupported by official records. Fur-
ther, the summary establishes only 11 transfers among its

7 Jaime Luna did not testify at the hearing.
four stores in 1998 and does not indicate either the tim-
ing or reason for the transfers. As the judge concluded,
although the summary establishes that three other em-
ployees were transferred to the new store, it does not
indicate when these transfers occurred. We find that the
summary fails to establish that the Respondent had an
established policy of transferring employees to staff new
stores.
The judge also relied on employee Olga Caraballo’s
testimony that four meat department employees were
transferred from the Respondent’s Madison Avenue to
the Jerome Avenue store. Contrary to the judge, we do
not find that her testimony establishes that the Respon-
dent maintained a consistent practice of staffing a new
store with transfers. In contrast to Cupertino, a stockboy,
the meat department employees were relatively skilled
workers with specific duties that would be especially
useful at the new store. Caraballo testified that she
trained a new meat department employee while she was
at the Jerome Avenue store.
Cupertino was never given a reason for the transfer,
but was abruptly told by Luna that he was going to the
new store on his next workday. This combined with the
fact that Cupertino’s unexplained transfer occurred just 2
days after the unlawful interrogation and threat estab-
lishes strong evidence that Cupertino’s transfer was
unlawfully motivated. Given that we cannot agree with
the judge that the Respondent established that the trans-
fer was in accordance with the Respondent’s customary
practices, we must find that the Respondent has failed to
meet its burden of rebutting the General Counsel’s initial
case and we conclude that the transfer violated Section
8(a)(3) and (1).
The General Counsel and the Charging Party also ex-
cept to the judge’s recommendation to dismiss the com-
plaint allegation that the Respondent unlawfully reduced
Cupertino’s pay. Cupertino testified that he requested
shorter hours from Luna only at his initial prehire inter-
view in the Jerome Avenue store and that Luna then re-
duced his schedule from 12 to 11 hours. Cupertino made
no request for a further reduction. After Cupertino’s
transfer, Luna further reduced his shift another 3–4
hours. Given the close association of the reduction in
hours with the discriminatory transfer, we find that the
reduction in pay also violated Section 8(a)(3) and (1).
2. Jorge Santana had been an employee of the Respon-
dent for 5 years and was in charge of the produce de-
partment at the Jerome and Madison Avenue stores when
he was terminated on December 1. Santana was a key
union organizer and was instrumental in obtaining em-
ployee signatures on union cards. The Respondent was
aware of Santana’s support for the Union. At about noon
KEY FOOD 113
on December 1, Santana was told that someone was
looking for him at the front of the store and saw a deliv-
eryman from one of the Respondent’s suppliers. Since
he was not expecting a delivery until the end of the week,
Santana initially decided to send the deliveryman away.
However, Santana decided that he could use some of the
merchandise after all and stepped outside to talk to the
deliveryman. General Manager Manuel Matista, an ad-
mitted supervisor, followed Santana outside and began a
loud and abusive tirade, accusing Santana of loafing.
Santana responded by saying his work was always com-
plete and that Matista should respect him as an older man
and not speak to him in that manner. During this heated
dialogue, Santana “poked” or touched Matista with his
finger.8 Following Santana inside the store, Matista told
Santana that he was fired, and yelled to the store secre-
tary to prepare Santana’s check. Santana told Matista
that Luna had hired him and that Matista was not his
boss. He then left for lunch and returned to work in the
produce department at 1 p.m.
Around 3 or 4 p.m., Luna approached Santana and
asked him what had happened. Santana told him that he
and Matista had a little argument and that Matista cursed
him out. According to Santana, Luna told him not to
worry. A few minutes later, Santana saw Luna and Ma-
tista talking at the front of the store.
Approximately 4 hours after the incident, Matista
phoned the police to report an “assault in progress.” At
approximately 5 p.m. two police officers responded. The
policemen asked Santana if he had hit Matista and
Santana told them he had not. The policemen also asked
Matista if Santana had hit him and, according to Santana,
Matista responded, “No, I’d be lying if I said that he hit
me. He just touched me. I don’t want him in the store,
that’s all. I don’t want him in the store anymore.” The
policemen called Luna from the front of the store and
asked about sending Santana to a different store. Luna
told them he would not commit to sending Santana to
another store. The police then asked Luna if Santana
was fired. Luna told Santana that he was sorry, but if
Matista said Santana was fired, then Santana was fired.
Santana replied that if Luna said he was fired, he would
go, but that he would not accept that from Matista be-
cause Matista was not his boss. Santana was then given
his final check and left the store.

8 The judge credited Santana’s testimony that “I just touched him
with my finger. I didn’t push him, I just touched him—and I pointed
my finger on his shoulder and I told him to respect me, that I was older
than him, that he owed me respect and then I walked inside the store.”
The judge also noted that Santana’s testimony was corroborated by
employee Virgilio Pena and security guard Raphael Corniel.
The judge found that the General Counsel met his ini-
tial burden under Wright Line, supra, to demonstrate that
Santana’s protected union activity was a motivating fac-
tor in the Respondent’s decision to discharge Santana. It
was undisputed that Santana engaged in union activity
and that the Respondent knew of his involvement. Anti-
union animus was clear from the many unfair labor prac-
tices the judge found. The judge concluded, however,
that the Respondent would have terminated Santana even
absent his union activity because the verbal dispute in-
volved a challenge to Matista’s authority, resulting in
Santana poking Matista, and that this conduct exceeded
the bounds of permissible employee conduct. The Gen-
eral Counsel and the Charging Party except, and, for the
reasons set forth below, we find that the Respondent
seized on Santana’s conduct as a pretext to disguise an
unlawful discharge.
The Board and the courts have long recognized that an
employer cannot provoke an employee to the point where
he commits an indiscretion and then rely on that conduct
to terminate his employment. NLRB v. M & B Headwear
Co., 349 F.2d 170, 174 (4th Cir. 1965). Here, we agree
with the judge that the Respondent, through Matista’s
profane and abusive tirade, provoked Santana’s protest
and his touching Matista on the shoulder with his finger
for emphasis. While an employee is not justified in re-
sorting to violent self-help to settle differences with a
supervisor, we do not find that Santana’s conduct
amounted to that or was so unreasonable in relation to
the Respondent’s provocation as to justify his discharge.
See Opelika Welding, 305 NLRB 561, 567 (1991) (em-
ployee’s pushing away finger waved in face by manager
during loud confrontation does not constitute insubordi-
nation justifying discharge); E. I. du Pont & Co., 263
NLRB 159 (1982) (open-palmed push of supervisor in-
sufficient to justify discharge).
Prior to the events of this case, the Respondent had
fired only one employee and that was for absenteeism.
Luna testified that he had no set system of discipline and
that he kept no records of discipline prior to September
17. Luna also testified that he would not fire any em-
ployee unless a physical threat was involved. As stated
by the judge, this testimony is consistent with the Re-
spondent’s discharge of employees Juan Alvarez and
Victor Mesa, who were discharged following a dispute in
which they each threatened to kill the other.9 The judge,
9 In recommending dismissal of the complaint allegation that the Re-
spondent violated Sec. 8(a)(3) and (1) by discharging Alvarez, the
judge found that the General Counsel failed to establish that the Re-
spondent had knowledge of Alvarez’ union activities. The judge also
found that the timing of his discharge, immediately after his dispute
with Mesa in which he told Mesa, “[T]hat’s why they kill people here
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114
however, rejected the Respondent’s putative reason for
firing Santana, that Santana punched Matista, and found
that Santana only touched him with his finger. The diffi-
culty here is that the Respondent’s stated reason for the
discharge, that Santana “punched” Matista, is not true,
and since it is not true, it cannot be used to meet the Re-
spondent’s burden. Indeed, the fact that the Respondent
put forth a false reason for Santana’s discharge supports
a finding that the discharge was for unlawful reasons. It
is well settled that, where an employer’s stated motive is
found to be false, an inference may be drawn that the true
motive is an unlawful one that the employer seeks to
conceal. Doctors’ Hospital of Staten Island, 325 NLRB
730 (1998), citing Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966). Accordingly, we find
that the Respondent did not establish that it would have
terminated Santana even absent his protected union ac-
tivity, and that the Respondent terminated Santana in
violation of Section 8(a)(3) and (1).
ORDER
The National Labor Relations Board orders that the
Respondent, J.R.L. Food Corp. d/b/a Key Food, Bronx,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or activities or about their cooperation with the
Board’s investigation.
(b) Threatening employees with discharge or a reduc-
tion in their work hours because of their union activities
or support.
(c) Directing employees not to join or support the Un-
ion.
(d) Directing employees to report on the union activi-
ties of their fellow employees.
(e) Discharging or otherwise discriminating against
any employee for supporting Local 1500, United Food
and Commercial Workers Union, AFL–CIO or any other
union.
(f) Reducing employees’ hours because they supported
Local 1500, United Food and Commercial Workers Un-
ion, AFL–CIO or any other union.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

and that’s what’s going to happen to you if you keep bothering me,”
was consistent with the Respondent’s stated reason for the discharge,
namely the threat to Mesa.
(a) Within 14 days from the date of this Order, offer
Ruddy Rodriguez, Juan Rodriguez, Alba Cortes, Cuper-
tino Luna, and Jorge Santana full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(b) Make Ruddy Rodriguez, Juan Rodriguez, Alba
Cortes, Cupertino Luna, and Jorge Santana whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Bronx, New York, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
KEY FOOD 115
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT coercively question you about your
union support or activities or the union support or activi-
ties of other employees or about your cooperation with
the Board’s investigation.
WE WILL NOT direct employees not to join or sup-
port the Union.
WE WILL NOT direct you to report on the union ac-
tivities of other employees.
WE WILL NOT threaten to discharge you or to reduce
your work hours because you join or support Local 1500,
United Food and Commercial Workers Union, AFL–CIO
or any other union.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 1500, United
Food and Commercial Workers Union, AFL–CIO or any
other union.
WE WILL NOT reduce your hours for supporting Lo-
cal 1500, United Food and Commercial Workers Union,
AFL–CIO or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Ruddy Rodriguez, Juan Rodriguez,
Alba Cortes, Cupertino Luna, and Jorge Santana full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Ruddy Rodriguez, Juan Rodriguez,
Alba Cortes, Cupertino Luna, and Jorge Santana whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board's
Order, remove from our files any reference to the unlaw-
ful discharges of Ruddy Rodriguez, Juan Rodriguez,
Alba Cortes, Cupertino Luna, and Jorge Santana, and
WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that the discharges
will not be used against them in any way.

J.R.L. FOOD CORP. D/B/A KEY FOOD

Jessica Drangel, Esq. and Mindy E. Landow, Esq., for the Gen-
eral Counsel.
S. Michael Weisberg, Esq., for the Respondent.
Patricia McConnell, Esq. (Vladeck, Waldman, Elias & Engel-
hard, P.C.), for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in New York, New York, on January 11,
12, and 14 and February 8–9, 1999. The charges were filed by
Local 1500, United Food and Commercial Workers Union,
AFL–CIO (the Union, or UFCW), on various dates between
August 7 and December 4, 1998.1 Based on these charges, an
Order further consolidating cases, consolidated complaint and
notice of hearing issued on December 28. The consolidated
complaint was further consolidated and amended at the hearing
on January 14, 1999. The consolidated complaint, as amended,
alleges that the Respondent, J.R.L. Food Corp. d/b/a Key Food,
violated Section 8(a)(1) and (3) of the Act during the course of
the Union’s campaign to organize the Respondent’s employees
who worked at its store located at 3515 Jerome Avenue in the
Bronx. The Respondent filed an answer to the complaint on
January 6, 1999, which it amended at the hearing, denying the
unfair labor practice allegations.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a retail grocery
store at 3515 Jerome Avenue, Bronx, New York, where it an-
nually derives gross revenues in excess of $500,000 and pur-
chases and receives goods, supplies, and materials valued in
excess of $5000 directly from firms located outside the State of
New York. The Respondent did not specifically admit or deny
these facts alleged in the consolidated complaint. Pursuant to
the Board’s Rules and Regulations, Section 102.20, the Re-
spondent’s failure to answer these allegations is deemed an

1 All dates are in 1998 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the transcript
is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
admission. Accordingly, I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
I find further, based on the testimony of the Union’s director
of organizing, Eduardo Cordero, that the Union is an organiza-
tion in which employees participate and which exists for the
purpose, at least in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or conditions of work. Accordingly I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Ruben Luna and his brother, Jaime, are the sole shareholders
of the Respondent. In addition to the Jerome Avenue store, the
Luna brothers own three other supermarkets in New York City
under different corporate entities, i.e., another Key Food at
1718 Madison Avenue that they have owned for 14 years; a
store at 3632 Broadway (at 150th Street); and a C-Town at
3550 Broadway (at 145th Street), that the Luna brothers opened
in August. Although the Luna brothers make all decisions af-
fecting the four stores together, it appears that they have di-
vided responsibility for the day-to-day operations of the stores
equally, each responsible for two stores. Ruben Luna is primar-
ily responsible for the Key Food on Jerome Avenue involved in
this proceeding.3 The Respondent acquired that facility on
January 12 from an unidentified prior owner. Cordero, the Un-
ion’s organizing director, testified that the Union represented
the employees at this store under the prior ownership. Although
the record reveals that the Respondent retained at least some of
the employees who worked under the previous owners, there is
no allegation that the Respondent was a successor with an obli-
gation to recognize and bargain with the Union.
The Respondent employs approximately 35–40 employees at
the Jerome Avenue store. Luna is present in the store virtually
every day for at least part of the day. He has an office in the
front of the store by the cash registers. Manuel Matista is the
Respondent’s general manager and an admitted supervisor.
Matista opens and closes the store, handles the money, and
supervises the front end of the store, including the cashiers. He
has the authority to make decisions in Luna’s absence. Rene
Questo was identified at the hearing as the floor manager. He is
responsible essentially for the back end of the store, ordering
the merchandise and overseeing employees who stock the
shelves. Questo became the floor manager in August after the
previous floor manager, Victor Manuel Mesa, was terminated.
Before that, Questo was an assistant floor manager. Jose Rivera
has been employed by the Respondent since the store opened,
also as an assistant floor manager. The assistant floor managers
act for the floor manager in his absence. In addition, they over-
see the employees who handle the merchandise, unloading
deliveries and stocking shelves. They decide where employees
are to work and make sure the work gets done. They communi-
cate instructions from Luna or Matista to the employees.

3 Although Jaime Luna is alleged in the complaint as a supervi-
sor/agent of the Respondent, there is no evidence in the record that he
was involved in any of the alleged unfair labor practices. Accordingly,
all references in this decision to Luna refer to Ruben Luna.
The General Counsel alleged in the consolidated complaint
that, at all material times, Questo was a statutory supervisor
and/or agent and that Rivera was an agent of the Respondent.
The Respondent, in the two answers it filed before the hearing,
did not admit or deny these allegations, effectively admitting
them. See Section 102.20 of the Board’s Rules and Regula-
tions. At the hearing, the Respondent denied that either Questo
or Rivera had any authority to speak or act on behalf of the
Respondent. I permitted the Respondent to amend its answer at
this late stage of the proceedings because the Respondent’s
counsel was ignorant of Board law and procedure and appar-
ently did not understand the significance of the allegation and
his failure to specifically answer it. The Board has held that a
nonsupervisory employee will be found to be an agent of the
employer and the employer will be liable for his actions where
the evidence establishes that the individual had apparent
authority to act for the Respondent. Apparent authority exists
where the employer has placed the individual in a position
where employees “would reasonably believe that the alleged
agent was reflecting company policy and speaking and acting
for management.” Zimmerman Plumbing & Heating Co., 325
NLRB 106 (1997); Southern Bag Corp., 315 NLRB 725
(1994); and Great American Products, 312 NLRB 962 (1993),
and cases cited therein. Under Section 2(13) of the Act, the
question whether specific acts performed by an agent were
actually authorized or subsequently ratified is not controlling.
Having considered the evidence in the record, I find that Questo
and Rivera were at least agents of the Respondent during the
summer when the incidents involved here took place. Although
they did not have authority to hire, fire, or discipline employ-
ees, they occupied positions where the employees who unload
deliveries and stock the merchandise would reasonably believe
that they acted and spoke for management. The employees
received their assignments from the assistant floor managers
who checked their work to make sure they did what they were
told. Employees also received instructions and orders from
Luna through the assistant floor managers. The circumstances
surrounding the particular incidents involving Questo and
Rivera contained additional indicia of agency status that will be
discussed in more detail below.
As noted above, the Union represented the employees at this
store before the Respondent acquired it. After the Respondent
began operations there, the Union attempted to obtain recogni-
tion as the collective-bargaining representative of its employ-
ees. Cordero testified that he went to the store in late January,
introduced himself to Ruben Luna, advised him that the Union
represented the employees of the previous owner and asked
Luna to sign a recognition agreement. Luna responded by say-
ing that he had just taken over the store and needed time to get
settled. Cordero agreed to come back in a week. According to
Cordero, when he returned the following week and again re-
quested that Luna sign a recognition agreement, Luna told
Cordero that he really did not want to deal with the Union in
any way, shape, or form. Luna told Cordero that a representa-
tive of another local of the UFCW that represented meatcutters
had also asked for recognition and that Luna told them the same
thing. Cordero recalled that Luna indicated a willingness to talk
to Cordero, even though he didn’t want to sign a recognition
KEY FOOD 117
agreement, because Cordero had shown him respect. Luna
asked for more time to think about it. Cordero returned about a
week later with a proposed recognition agreement and a break-
down of the Union’s fringe benefit fund contributions. Luna
again asked for more time, saying that he wanted to review this
information with his attorney.
According to Cordero, he returned on or about February 13,
at which time Luna told him that he did not want to deal with
the Union for all his employees, but he was willing to sign an
agreement covering five employees. The five identified were
Luna himself and a few relatives. Cordero told Luna that the
Union could not do this, but he was willing to consider giving
Luna a break by gradually signing up the employees over a
period of time. Luna told Cordero that he could not afford to
have all his employees in the Union and insisted that he would
only agree to cover five employees. Cordero told Luna that, if
he would not voluntarily sign a recognition agreement, that the
Union would undertake other means of obtaining recognition.
Although the Union made one last attempt in mid-April to con-
vince Luna to sign a recognition agreement, Cordero testified
that it was after this meeting in mid-February that the Union
began trying to organize the Respondent’s employees. Luna did
not contradict Cordero’s testimony regarding these meetings in
any respect. He also acknowledged that he refused to recognize
the Union on a voluntary basis.
The Union’s organizing campaign apparently started slowly
and took some time to get going. Cordero testified that Fer-
nando Perez, the primary organizer assigned to the store, began
meeting with employees in about mid-April, but that no union
authorization cards were distributed until July. He explained
that the reason for this was that the Union did not want to so-
licit signatures on cards until it was satisfied that there was
sufficient interest among the employees in being represented by
the Union. Cordero’s testimony was corroborated by Perez who
testified that he began meeting with employees at the end of
April and that he did not start distributing cards until after he
had educated the employees about the Union and their rights.
Perez testified that he met with employees outside the store,
either in one of two nearby parks or at a restaurant in the
neighborhood. All of the union authorization cards that are in
evidence were signed on and after July 25.
The testimony of General Counsel’s witnesses indicates that
Luna began communicating with his employees regarding the
Union even before Cordero first sought recognition. Jorge Or-
doñez, a reluctant witness who had been employed at this store
for 2-1/2 years at the time he testified, recalled that Luna told
him during his interview in January that he did not work with
the Union and that, if the Union came to the store, Ordoñez
should say he was not interested.4 Similarly, Alba Cortes, who

4 The General Counsel was able to elicit this testimony from Or-
doñez by using his affidavit to refresh his recollection. Ordoñez only
appeared at the hearing after the General Counsel obtained an order
from the district court enforcing the subpoena served on him. I noted
that Ordoñez appeared reluctant to provide any testimony that was
adverse to the Respondent, his current employer. Under these circum-
stances, I consider such testimony to be inherently credible. See Flex-
steel Industries, 316 NLRB 745 (1995); Georgia Rug Mill, 131 NLRB
1304, 1305 fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir. 1962).
worked for the prior owner and was hired by the Respondent as
a cashier, testified that Luna told her when she was hired that
he did not want anyone from the Union and that, if anyone was
to ask her, to tell them she was related to him. Luna did not
specifically deny making these statements. In February, about
the time that Cordero was seeking recognition, Luna told Jorge
Santana, the Respondent’s produce manager until he was ter-
minated on December 1, that the union guy was around and
that, if they approached Santana, to say no. Juan (Johnny) Alva-
rez, another alleged discriminate, testified that he learned from
Santana, in February, that the Union was trying to get into the
store. Apparently, Santana relayed the information he got from
Luna to Alvarez. Alvarez further testified that Luna approached
him in March and gave him the same instruction he had given
to Santana, that if the Union asked Alvarez to be in the Union,
he should say no. Although Luna denied generally that he
spoke to any employees about the Union, he did not specifically
deny this testimony. I find the testimony of these witnesses to
be credible and consistent with each other. Although the Gen-
eral Counsel does not specifically allege that any of these con-
versations were unlawful, I find that this series of conversations
establishes the Respondent’s opposition to the Union, setting
the stage for its later actions.
It appears from the testimony of Santana, Alvarez, and Cor-
tes, that the employees first became aware of the Union’s at-
tempts to obtain recognition in about February. As noted above,
Luna himself told the employees that the union was around and
the employees discussed it amongst themselves. The testimony
of the witnesses indicates that serious discussions about joining
the Union did not occur until June or July. At that time, Juan
Rodriguez, who was employed as a utility person, performing
duties in various departments, including some security func-
tions, invited Ruddy Rodriguez to meet the union organizer.5
Juan and Ruddy met Union Organizer Perez at the Caridad
restaurant on July 25 and signed cards that day. They then ap-
proached Alvarez, who signed a card on July 27, and Jorge
Santana, who signed on July 30. Around the same time, Cuper-
tino Luna encountered Perez on the street near the store and
was given a card, which he signed on July 27. Perez testified
that he designated Juan and Ruddy Rodriguez, Alvarez,
Santana, and Virgilio Peña, who worked in the meat depart-
ment, as his organizing committee. Juan Rodriguez, Ruddy
Rodriguez, and Santana testified that they were given cards by
Perez that they distributed to other employees. Their testimony
in this regard was corroborated by other employees, including
Alex Duran and Olga Caraballo, who are still employed by the
Respondent, and both of whom I found to be very credible
witnesses.
According to the General Counsel’s witnesses, soon after the
employees began signing cards, Luna began interrogating them
in an effort to find out who had joined the Union. Ordoñez
testified that Luna asked him, on August 4, at about 11 in the
morning while he was working alone in the produce section, if
anyone had spoken to him about the Union. Ordoñez said,
“[N]o.” The next day, at around 10 a.m., Luna approached Or-
doñez again, in the same place, and asked Ordoñez if anyone
5 Juan and Ruddy Rodriguez are not related.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
had spoken to him about the Union. Ordoñez again responded
in the negative. Luna then asked Ordoñez if he knew who was
in the Union. Ordoñez replied that he did not, but that maybe
Ruddy [Rodriguez] would have the names of the people in the
Union. During cross-examination by the Respondent’s counsel,
Ordoñez testified that Luna told Ordoñez that he did not care if
Ordoñez joined the Union, that he liked the way Ordoñez
worked. The record reflects that Ordoñez was promoted to
produce manager after Santana was terminated and that he re-
ceived an increase in pay. Luna’s denial that he interrogated
any employees on August 4 and 5 was elicited in response to
leading questions from counsel. Luna also testified that Or-
doñez approached him to complain that Santana was pressuring
him about the Union. Luna claims that he told Ordoñez that he
liked Ordoñez’ work, that it was Ordoñez’ decision whether to
sign with the Union or not, and that Luna would not fire him
for that. I have already found above that Ordoñez was a credi-
ble witness to the extent he gave testimony adverse to the Re-
spondent. His testimony meant to negate the seriousness of the
interrogation was far less credible, considering Ordoñez’ obvi-
ous desire not to bite the hand that fed him with a promotion
and wage increase. In general, I did not find Luna to be a very
credible witness. In making this credibility resolution, I note
that Luna attempted to mislead the court by claiming that one
of the witnesses who was under subpoena by the General
Counsel had quit, when in actuality the witness, Alex Duran,
was employed and working on the day in question. Accord-
ingly, I find, based on Ordoñez’ testimony on direct examina-
tion, that Luna did interrogate him on August 4 and 5 regarding
his and other employees’ union activities. Ordoñez was not an
open union supporter at the time of Luna’s questioning. Under
all the circumstances, including the fact that the owner of the
Respondent was questioning an employee in his work area in
an attempt to identify union supporters, I find that this interro-
gation was unlawful under the test adopted by the Board in
Rossmore House6 and Sunnyvale Medical Clinic.7 Accord:
Hudson Neckwear, 302 NLRB 93, 95 (1991).
Alex Duran testified that he was working in the dairy de-
partment on the morning of August 5 and had a conversation
with Ruddy Rodriguez who had come to the store on his own
time. Duran had asked Ruddy what time he was coming to
work and Ruddy told him at 2:30 p.m. After this conversation,
at about 11:30 that morning, Luna approached Duran and asked
him if Ruddy talked to him about the Union. Duran said,
“[Y]es, but that he (Duran) didn’t know what the union was
about.” Luna left and returned about 5 minutes later and said to
Duran, “[T]his conversation was only between us.” Duran also
appeared at the hearing only as a result of subpoena enforce-
ment proceedings. As noted above, he still works for the Re-
spondent, despite Luna’s representation in open court that
Duran had quit. Luna denied this allegation in response to a
leading question from his counsel. I find that Duran’s testimony
regarding this conversation is far more credible than Luna’s
denial. Because of the identity of the questioner, the location of

6 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
7 277 NLRB 1217, 1218 (1985).
the interrogation, the nature of the information sought and
Duran’s status as an employee who had not revealed his union
sympathies, I find that this interrogation was also unlawful.
Juan Rodriguez testified that, on the morning of August 5,
Luna questioned him about the Union as well. According to
Rodriguez, he was in the back room where the merchandise is
stored when Luna came out of the bathroom and asked if
Ruddy had spoken to him about the Union. Rodriguez said,
“No” and Luna said, “[O]kay, nothing happened.” Luna also
denied this allegation by responding to leading questions from
counsel. Because Luna’s interrogation of Juan Rodriguez in the
morning is similar to the other incidents of interrogation found
above, I credit Juan Rodriguez that Luna interrogated him in
the morning by asking if Ruddy had spoken to him about the
Union. For the reasons discussed above, this interrogation was
likewise unlawful.
The complaint alleges that the Respondent unlawfully termi-
nated two employees, Ruddy Rodriguez and Juan Alvarez, on
August 5, the same day that Luna unlawfully interrogated Or-
doñez, Duran, and Juan Rodriguez. Ruddy Rodriguez had been
employed by the Respondent since May stocking shelves.
Ruddy Rodriguez testified that, when he was hired, Luna told
Rodriguez that he needed someone to work part time. Rodri-
guez told Luna he would be able to work full time in the sum-
mer, but would have to go back to part time when school
started in the fall. According to Rodriguez, Luna said,
“[O]kay.” Rodriguez further testified that he was accepted to
community college to begin in the fall and that he had asked
Luna for a day off in July to go to the college to register and
that Luna gave him the day off. Ruddy Rodriguez usually
worked in aisle 3. He identified Juan Alvarez as his supervisor
at the beginning of his employment. According to Ruddy, Alva-
rez was replaced as his supervisor by Victor Mesa sometime in
June or July.8 As noted above, Ruddy became involved in the
Union’s organizing campaign in July, at the invitation of Juan
Rodriguez, and he signed a card on July 25. I credit Ruddy’s
testimony that he also distributed cards and talked to his fellow
employees about the Union because his testimony in this regard
was corroborated by other witnesses, including Alex Duran.
According to Ruddy Rodriguez, he went to the Respondent’s
store on the morning of August 5 to talk to Mesa about a work
assignment that he did not complete the day before. Mesa told
him that the store was very busy and that he might need Ruddy
to work that day. Mesa said he was going to talk to Luna and
would let him know. Shortly thereafter, Mesa returned and told
Ruddy to come in at 2 p.m. While he was in the store that
morning, Ruddy apparently talked to Alex Duran. As noted
above, Luna interrogated Duran about his conversation with
Ruddy. Also, as noted above, Ordoñez told Luna that same
morning that Luna should ask Ruddy if he wanted to know who
was in the Union. Ruddy Rodriguez testified further that he
8 Alvarez testified that he was demoted and Mesa became the super-
visor in March. Because Ruddy Rodriguez, who did not start working
for the Respondent until May, testified that Alvarez was his supervisor
in the beginning, I find that his recollection is more accurate than that
of Alvarez. In addition, payroll records of the Respondent indicate that
Mesa began working for the Respondent during the payroll period
ending July 17.
KEY FOOD 119
returned to the store at 1:45 p.m. and, on his way to punch in,
was stopped by Luna. Luna made a comment about his nephew,
Kelvin Luna, who was stocking shelves in Ruddy’s aisle.
Ruddy had been working with Kelvin for a few days before this
conversation.9 Luna then told Ruddy that the store was not real
busy and that he did not need Ruddy to work. According to
Ruddy, Luna told him that he would probably need Ruddy in a
new store that he was about to open and Ruddy responded,
“[A]ll right, just let me know when you open your new store.”
Luna told Ruddy that he would need him to work from 9 a.m.
to 9 p.m. Ruddy told Luna that he could not work those hours
because he would be starting college. Luna told Ruddy that was
all he had available. Luna then asked the secretary for “Ruddy’s
things,” counted out some money, gave it to Ruddy and said,
“[T]hat’s your pay until Saturday. Call me Sunday and we’ll
discuss it.” Ruddy left the store, but returned that evening to
pay off a debt he owed to one of the cashiers, Abdul. According
to Ruddy, Luna came out of the office and walked around near
the cashiers but did not speak to him. Ruddy Rodriguez admit-
ted that Luna did not tell him he was “fired” on August 5. He
further admitted that he did not call Luna that Sunday or any-
time thereafter to discuss his employment.
Alex Duran testified that he saw Ruddy in the store around 2
p.m., saying goodbye to employees in the deli. According to
Duran, he told Ruddy about Luna’s earlier interrogation of him
about Ruddy’s union activities. Ruddy told Duran that Luna
had fired him. In contrast, Ruddy recalled that Duran called
him at home that night to tell him about Luna’s interrogation.
He did not testify that he talked to Duran in the store that after-
noon. Juan Rodriguez testified that Ruddy came to the park
while he and other employees were having lunch that afternoon
and told them that Luna had fired him because of the Union.
Juan Rodriguez testified further that, when he returned from
having lunch in the park, Luna met him at the door and asked
him who he was talking to in the park. Juan Rodriguez replied,
“[W]ith Ruddy.” Luna then asked what they were talking about
and Juan Rodriguez told Luna they were talking about how
Luna had fired Ruddy because of the Union. According to Juan
Rodriguez, Luna then asked who else was in the park and Juan
told Luna that Virgilio Peña, Olga Caraballo, Alex Duran,
Johnny Alvarez, and Jose were there. Soon after this conversa-
tion, Luna approached Juan Rodriguez in the produce area and
told him that he should not speak to Ruddy and that he should
not get into the Union. When Juan Rodriguez did not respond,
Luna told him to go to work. Ruddy Rodriguez testified that
Juan Rodriguez also called him that night to tell him that Luna
had interrogated Juan Rodriguez about his lunchtime conversa-
tion with Ruddy. Juan Rodriguez did not corroborate Ruddy in
this regard. The General Counsel also offered the testimony of
Ruddy Rodriguez’ cousin, Gustavo Jimenez, that he overheard
Luna telling Abdul, while Abdul was working at his cash regis-
ter at about 2 p.m., that he had fired Ruddy because he was in
the Union. Jimenez further testified that he heard Luna tell
Abdul that if Ruddy tried to talk to him about the Union, that
Abdul should say he was not interested. Abdul did not testify.

9 The Respondent’s payroll records show that Kelvin Luna began his
employment with the Respondent during the week ending August 7.
Ruddy Rodriguez testified that his cousin told him about the
conversation he overheard between Luna and Abdul when he
returned home that evening. Ruddy Rodriguez testified further
that Jorge Santana also called him that evening to tell Ruddy
that Luna had interrogated Santana about Ruddy’s union activi-
ties. Santana did not testify to any such interrogation. Ruddy
Rodriguez testified that he did not call Luna on Sunday, as
instructed, because of the information he received from his
cousin, Jiminez, and these other employees which led him to
believe he had been fired.
When Ruben Luna was first asked by the Respondent’s
counsel if he fired Ruddy Rodriguez, Luna replied, “[W]e fired
him, he couldn’t follow the schedule, because he has Kung Fu
with—he told me that he would not leave the Kung Fu classes
for work. So he could not follow up the schedule and I said
maybe I’m going to transfer you to the other store. Call me
on—I think I told him Sunday, or Monday. He never called
me.” When counsel asked again if Luna fired Ruddy Rodri-
guez, he replied, “[N]o, not at all,” and said that he was willing
to let Rodriguez work in the other store if he had called. Luna
denied any knowledge of Ruddy Rodriguez’ union activities
until he saw him leafleting outside the store after August 5.
Luna admitted replacing Ruddy Rodriguez with his nephew,
Kelvin Luna, who was also a student When pressed on cross-
examination to provide details regarding Ruddy’s refusal to
work because of Kung Fu classes, Luna could not recall when
the conversation occurred, or what hours were in dispute.
Ruddy Rodriguez acknowledged that he was taking Kung Fu
classes, but denied that they interfered with his work schedule
at the Respondent’s store.
The General Counsel alleges that the Respondent terminated
Ruddy Rodriguez on August 5, in violation of Section 8(a)(3)
of the Act, because of his union activities. In order to establish
a violation of Section 8(a)(3) of the Act, the General Counsel
must prove, by a preponderance of the evidence, that union
activity was a motivating factor in the Respondent taking ad-
verse action against an employee. To establish this prima facie
case, the General Counsel must prove that the Respondent had
knowledge of the employee’s union activities or sympathies,
had antiunion animus and took action against him because of
this. Only if the General Counsel meets his prima facie burden
does the burden shift to the Respondent to show that it would
have taken the same action even in the absence of union activ-
ity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 988 (1982), approved by
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Because there seldom is direct evidence of unlawful
motivation, the General Counsel may rely on circumstantial
evidence from which an inference of discriminatory motive
may be drawn. See Abbey’s Transportation Services, 284
NLRB 698, 701 (1987), enfd. 837 F.2d 575 (2d Cir. 1988).
The evidence offered at trial establishes that Ruddy Rodri-
guez was active in support of the Union. Based on the credited
testimony regarding Luna’s conversations with Duran, Ordoñez
and Juan Rodriguez on August 5, I find, contrary to Luna’s
denials, that the Respondent was aware of Ruddy’s union ac-
tivities on August 5. The unlawful interrogation and the other
violations of Section 8(a)(1) to be found, infra, establish the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
Respondent’s animus. Ruddy Rodriguez’ last day of work in
the Respondent’s Jerome Avenue store coincided with Luna’s
awareness of his union activities. The real issue with respect to
Ruddy Rodriguez is whether he was terminated on August 5.
Rodriguez himself acknowledged that Luna did not tell him he
was terminated. He testified instead that he thought he was
terminated based on what others told him. As noted above,
there were discrepancies in the testimony of the General Coun-
sel’s witnesses regarding what they told Ruddy Rodriguez and
when. Nevertheless, I find that there is sufficient credible evi-
dence in the record to establish that Ruddy Rodriguez was
aware, by the evening of August 5, that Luna had been interro-
gating other employees about his union activities. I also find
that Ruddy himself told other employees that he had been fired,
even though Luna never used those words, because that is what
Ruddy believed happened when Luna told him he did not need
him in the store anymore and gave him his pay.10 I do not at-
tach any weight to the testimony of Jimenez regarding what he
allegedly overheard Luna tell Abdul. The General Counsel
never called Abdul to testify to corroborate Jimenez. Moreover,
from Jimenez description of the alleged conversation and his
location, it appears unlikely he could have overheard such a
conversation.
The Board and the courts have held that the test of whether
an employee was discharged depends upon the reasonable in-
ferences that employees could draw from the language used by
their employer. NLRB v. Downslope Industries, 676 F.2d 1114
(6th Cir. 1982); Quality Pallet Systems, 287 NLRB 1192
(1988). On August 5, Luna told Rodriguez that he did not need
him in the store on Jerome Avenue and that he might need him
in another store that was not yet open. He also told Rodriguez
that the only hours he had available at the new store were hours
he knew Rodriguez could not work because of school. Luna
then gave Rodriguez his final pay. Although Luna told Rodri-
guez to call on Sunday to discuss working in the other store, it
was reasonable for Rodriguez to infer that he would no longer
be working for the Respondent on Jerome Avenue and that it
was unlikely that there would be work for him at the new store
unless he could work full time. Moreover, Luna essentially
admitted to Cordero, in a conversation they had while the Un-
ion was leafleting the store, that Luna did not want Ruddy in
the other store because he feared that Ruddy would start the
union business there. Under these circumstances, it would have
been futile for Rodriguez to call Luna that Sunday. I conclude
that Luna in fact terminated Ruddy Rodriguez on August 5. In
reaching this conclusion, I note that Luna himself volunteered
at the hearing that “we fired [Ruddy].” I discredit Luna’s claim
that the reason he fired Rodriguez was because Rodriguez re-
fused to give up Kung Fu classes to work his scheduled hours.
It was Rodriguez’ college classes which prevented him from
working the only hours that Luna offered him at the unopened
store. I further find that Luna offered Rodriguez these hours
knowing that he could not work such a schedule and that he
took these actions because of Ruddy’s efforts to sign up his
fellow employees for the Union. Accordingly, I find that the

10 I note that August 5 was a Wednesday, which is not payday for the
Respondent’s employees.
Respondent violated Section 8(a)(1) and (3) of the Act by ter-
minating Ruddy Rodriguez on August 5.
There is no dispute that the Respondent terminated Juan, or
Johnny, Alvarez on August 5. The General Counsel alleges that
Alvarez’ termination violated Section 8(a)(3) of the Act. The
Respondent contends that Alvarez was terminated because he
threatened a manager. Alvarez had been employed by the Re-
spondent since the store opened. As noted above, he was ini-
tially a supervisor, in charge of the employees who stocked the
shelves, but was replaced by Mesa in about July. Luna testified
that he removed Alvarez from his supervisory job because he
had too many problems with other employees. Whatever the
reason, it appears that there was some hostility between Alva-
rez and Mesa after this change in status. Alvarez testified that
he first heard about the Union in February when Santana told
him that the Union was trying to get into the store. Alvarez
testified further that Luna told him in March to say no if the
Union asked him to join. Alvarez apparently did not get in-
volved with the Union until July when Ruddy Rodriguez asked
him, in one of the aisles of the store, if he would sign a union
authorization card. Alvarez did not sign the card until 2 days
later, in the park. His card is dated July 30. There is no evi-
dence that Alvarez engaged in any other activities on behalf of
the Union before he was terminated. Alvarez testified that, on
August 5, Luna called him to the office at about 9 p.m. and
asked him if he had signed the union card. When Alvarez said
yes, Luna said that Alvarez knew that Luna did not want the
Union inside his store. According to Alvarez, Luna told him he
couldn’t work anymore. Alvarez recalled Luna telling him that
he was sorry, that Alvarez was a very good worker, but there
was nothing else he could do. Luna then paid him in cash and
told Alvarez “to go collect.” According to Alvarez, he re-
sponded to this news by saying, “[T]hat’s fine.” Although Al-
varez testified on direct examination that he was given no rea-
son for his termination, other than his having signed a union
card, on cross-examination Alvarez acknowledged that he was
terminated the same day that he had a “disagreement” with
Mesa.11 Alvarez also acknowledged that his last disagreement
with Mesa occurred while they were unloading a truck when he
took issue with the way Mesa was speaking to him. Alvarez
denied that he ever threatened Mesa and further denied that he
ever carried any weapons to work.
Alvarez’ responses on cross-examination tended to corrobo-
rate the testimony of the Respondent’s witnesses regarding the
reason for Alvarez’ termination. The Respondent’s general
manager, Manuel Matista, testified that Alvarez and other em-
ployees were helping him and Mesa to unload a truck with
merchandise. According to Matista, Alvarez and the others
were taking the lighter merchandise and leaving the heavy
items, like sugar, on the truck. At one point, Mesa suggested to
Alvarez that he take a stack of sugar and Alvarez refused, mut-
tering something. Mesa again asked Alvarez, on another trip
out to the truck, if he would take the sugar. This time, accord-
11 Although Alvarez backtracked on redirect examination, testifying
that he did not remember whether he was terminated on the same day
as his last disagreement with Mesa, I find that his initial answer was
more candid and closer to the truth.
KEY FOOD 121
ing to Matista, Alvarez said, “[T]hat’s why they kill people
here and that’s what’s going to happen to you if you keep both-
ering me.” Matista attempted to calm things down, but Mesa
and Alvarez kept at one another until Matista sent Alvarez into
the store to work elsewhere. According to Matista, he reported
this incident to Luna. Jose Rivera, who was employed by the
Respondent as an assistant floor manager at the time, corrobo-
rated Matista regarding this incident. Mesa is no longer em-
ployed by the Respondent and did not testify. Luna testified
that he terminated Alvarez for threatening Mesa while they
were unloading a truck. According to Luna, Alvarez had previ-
ously been warned about threatening people. Luna testified
that, on the day Alvarez was fired, it was Mesa who com-
plained to Luna. Luna testified that when Mesa told him that he
was going to come to work prepared for Alvarez, he decided to
terminate both Mesa and Alvarez to avoid violence in the store.
I do not credit Alvarez’ testimony that he saw Mesa working in
the store after he was terminated. The Respondent’s payroll
records in evidence do not show that Mesa was paid after the
week ending August 7. No other employee who was working
after August 5 testified to seeing Mesa working in the store.
The complaint alleges that the Respondent unlawfully inter-
rogated Alvarez on August 5 when Luna allegedly asked Alva-
rez, just before he was fired, if he signed a union card. Luna did
not specifically contradict Alvarez’ testimony regarding the
conversation in the office at the time he was fired. Luna did
generally deny having any conversations with any employees
about the Union and he specifically denied the 8(a)(1) violation
alleged in the complaint that was based on Alvarez’ testimony.
Although I have found above that Luna was generally not a
very credible witness and attach very little weight to his general
denials, I was equally unimpressed with Alvarez’ demeanor. He
did not impress me as being entirely truthful regarding the facts
surrounding his termination. After feigning ignorance of any
reason for his termination on direct examination, he acknowl-
edged having several “disagreements” with Mesa, including
one on the day he was fired, then attempted to retract this ad-
mission on realizing its significance. My doubts about his
credibility regarding his termination also cause me to doubt his
credibility regarding the alleged interrogation. Because I do not
believe that Luna asked Alvarez whether he signed a card for
the Union, I shall recommend dismissal of this allegation of the
complaint.
Applying the Board’s Wright Line test to the evidence con-
cerning Alvarez’ termination, I find that the General Counsel
has not made out a prima facie case. Alvarez’ union activity
was limited to signing a card on July 30. There is no evidence,
other than his own discredited testimony, that the Respondent
was aware of his having signed a card. Thus, the General Coun-
sel has failed to prove knowledge, an essential element of a
prima facie case. Moreover, I note that the timing of the termi-
nation is more consistent with the Respondent’s defense that
Alvarez was fired because of the incident between him and
Mesa than with any union activity that Alvarez may have en-
gaged in. I also note that, when Cordero discussed Alvarez’
termination with Luna during the Union’s leafleting, Luna gave
the same reason he gave at the hearing, i.e., the alleged threat to
Mesa. In reaching the conclusion that General Counsel failed to
present a prima facie case of discrimination, I have considered
the circumstantial evidence relied upon by the General Counsel
to prove knowledge and motivation and the general lack of
credibility of Luna. Nevertheless, I am not persuaded that the
house of cards built by the General Counsel to prove a dis-
criminatory motive can withstand the overwhelming evidence
that a disagreement occurred between Alvarez and Mesa the
day he was fired which threatened to result in violence and that
the Respondent chose to rid itself of both employees before it
did. Accordingly, I shall recommend dismissal of this allega-
tion of the complaint.
Ruddy Rodriguez and Alvarez each testified that they con-
tacted the Union on August 5, after they were terminated, and
told organizer Perez what happened. Based on this information,
the Union prepared a leaflet that informed the public about the
Union’s campaign to organize the Respondent’s store and the
termination of these two employees. The leaflet also asked the
public to boycott the Respondent’s store until it recognized the
Union and reinstated the two employees. Beginning about Au-
gust 12, Union Representatives Cordero and Perez leafleted
outside the Respondent’s store with Alvarez and Ruddy Rodri-
guez. The Union conducted this activity for about 2 weeks. On
several occasions, the Union was leafleting at the same time
that some of the Respondent’s employees were unloading
trucks. The union organizers engaged in conversation with the
employees and with Jose Rivera. The General Counsel alleges
that the Respondent violated Section 8(a)(1) of the Act through
Rivera’s statements during some of these conversations.
Cordero testified that, on or about August 14, he had a con-
versation about the Union with Rivera while the Union was
leafleting. During this conversation, Assistant Manager Rene
Questo was nearby and several employees were going in and
out of the store, transporting merchandise from the truck. Ac-
cording to Cordero, Rivera said he had a bad experience with a
different union and that he did not think that a union would be
good for the workers at the Respondent’s store. When Cordero
told him that his union was different and that Rivera would
have a better experience with them, Rivera replied that he did
not like unions and that he was at the Respondent’s store to
make sure the Union did not get in. After some further conver-
sation, Cordero recognized Rivera as someone he knew from
another organizing campaign. Rivera told Cordero that he had
been brought into that store, Met Foods, to stop the Union as
well and that he had the same role here. Cordero further testi-
fied that Rivera told him that he had known Luna for 18 years,
that he was Luna’s representative, and that he would do any-
thing in his power to make sure the Union did not get into the
store. According to Cordero, Rivera also said during this con-
versation that as far as he was concerned the Union was not
going to get in and that any employee who wants the Union
would be on the outside looking in. Cordero testified that he
warned Rivera about making such statements in front of
Cordero because he was leaving the Respondent open to an
unfair labor practice charge. Rivera replied that was not his
problem. It is unclear from Cordero’s testimony whether any
employees actually heard Rivera’s antiunion statements.
Cordero testified that he also had a conversation with Luna
later the same day. Cordero suggested to Luna that they sit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
down and try to resolve things before they got out of hand,
referring to the two discharges and the statements that Rivera
had made earlier in the day. When Cordero suggested that
Rivera might be hurting the Respondent’s interest by the things
he was saying, Luna said that Rivera was his representative and
that he valued his opinion. According to Cordero, he and Luna
also discussed the discharges. Luna told Cordero that he could
not put them back to work because they had disrespected him
and threatened some of his employees. When Cordero asked for
an explanation, Luna told him that Alvarez threatened to beat
up one of his managers. Cordero told Luna that was not what he
heard, that he heard that Luna found out that Alvarez had
signed a card and let him go. Luna denied this was the reason
for Alvarez’ termination, again telling Cordero that the reason
he was fired was the threat. Luna then admitted to Cordero that
he had spoken to Alvarez and that Alvarez knew where Luna
stood regarding the Union, that he did not want the Union in the
store. According to Cordero, he then asked Luna what was
Ruddy Rodriguez’ problem and Luna replied that Ruddy disre-
spected him by getting involved with the Union because Ruddy
also knew that Luna did not want the Union. Cordero then
asked Luna if Ruddy Rodriguez could work at the new store,
because Ruddy told Cordero that Luna had offered him a trans-
fer there. Luna replied that he was not about to transfer Ruddy
to his other store because Ruddy was a bad influence on his
employees and would probably start the union business at the
other store. Cordero testified that most of his conversation with
Rivera and Luna was in English, but that some Spanish was
used. Luna did not contradict any of Cordero’s testimony.
Cordero testified that the next day, August 15, while he
Perez, Alvarez and Ruddy Rodriguez were again handing out
leaflets, another truck was being unloaded. Rivera was again
present, sorting the merchandise as it came off the truck and
directing the employees who were transporting it into the store.
Assistant Manager Rene Questo was also present. According to
Cordero, he and Perez continued discussing the Union with
Rivera in the same manner as the day before. At one point,
employee Cupertino Luna,12 who was unloading the truck,
almost hit a customer with the merchandise he was transport-
ing. Cordero warned Cupertino Luna in time to avoid a colli-
sion and Cupertino thanked him. When Cupertino came back
out of the store for another load of merchandise, he again
thanked Cordero. At that point, Rivera told Cupertino, in Span-
ish, to be careful because he is being too friendly with the Un-
ion and that, if he keeps it up, he will be in the same position as
the other guys, referring to Alvarez and Ruddy Rodriguez.
Cordero asked Rivera if he was threatening Cupertino because
he said thank you to the Union. Rivera replied, “I’m telling him
not to be friendly with you guys because, if he is, he’s showing
me that he supports the union, too. And if he supports the un-
ion, he’s going to be out there also, or he’s going to be gone.”
Cordero again questioned whether Rivera was threatening to
cause Cupertino to be fired because he showed support for the
Union and Rivera said, “[D]amn real, anyone who supports the
union is going to be out on the street.” Cordero testified that
Perez and Rivera then got into a heated exchange and that

12 Cupertino Luna is not related to Ruben Luna.
Cordero tried to calm the situation down. Cordero said he and
Rivera continued discussing employees’ rights under the law,
with Rivera telling him that he did not care about the law, that
his job was to protect Ruben Luna’s interest and that, as far as
Rivera was concerned, there was not going to be a union there
and anyone who supports the Union was going to be termi-
nated. According to Cordero, Cupertino Luna continued carry-
ing merchandise from the truck into the store after this incident.
Cordero testified that he observed Cupertino speaking to Rivera
and heard Rivera tell Cupertino, “[N]ot to be too friendly with
these guys because you may be joining your buddies on the
picket line.” Cupertino responded that whether he was working
for the Respondent or someone else, he would still be working
and that Rivera could not tell him not to talk to these people.
Cordero testified further that Ruben Luna came out of the store
at one point and told Cordero to stop interrupting his guys
while they were working. Cordero then told Luna about
Rivera’s threat to Cupertino Luna and warned Ruben Luna that
Rivera was leaving the Respondent open for an unfair labor
practice charge. According to Cordero, Ruben Luna responded
by saying that he valued Rivera’s opinion and that, if Rivera
said an employee should be out, then he would be out. Cordero
testified that Rivera came over while he was talking to Ruben
Luna and said that the Union was causing all the problems, that
they were stopping the employees from working. Rivera said
that the Union should not even be out there leafleting. Ruben
Luna then told everyone to get back to work and asked Cordero
not to stop his guys from working.
Perez and Cupertino Luna also testified about the incident on
August 15, but in far less detail than Cordero. Their recollec-
tion of the exchange between Rivera and Cupertino Luna also
differed somewhat from that of Cordero. According to Perez,
Cupertino Luna said hello to him while Cupertino was unload-
ing a truck and the Union was leafleting. Perez recalled that
Rivera asked Cupertino why he was saying hello to Perez. Cu-
pertino responded that the Union was not his enemy and asked
Rivera what was the problem with saying hello to them. Perez
testified that he also asked Rivera why he was questioning Cu-
pertino’s friendliness to the Union and that Rivera said that
every person that Perez talked to would be fired. Perez also
testified that he heard Rivera tell Cupertino Luna that he was
going to tell Ruben Luna that Cupertino was with the Union
and that he would be fired. Cupertino Luna testified that, one
day while unloading a truck, he saw the people from the Union
handing out leaflets and he said hello to Perez.13 Rivera then
asked Cupertino Luna if he was with them. Cupertino replied
that it was nothing that should interest Rivera. According to
Cupertino, Rivera then said that he was going to fire him, or at
least tell Ruben Luna to fire him. Cupertino told Rivera that he
was not interested in whether Rivera fired him or not. Cuper-
tino testified that it was 2 or 3 days later that he was told he was
being transferred to another store. Cupertino Luna’s transfer,
13 Cupertino Luna had previously met Perez when Perez approached
him on the street and gave him a union authorization card to sign. This
occurred on or about July 27.
KEY FOOD 123
which is alleged as a violation of Section 8(a)(3), will be dis-
cussed below.14
Rivera acknowledged talking to Cordero and Perez when they
came to the Respondent’s store in the summer. He disputed their
version of the conversation by denying that he ever spoke to them
about employees who joined or supported the Union. He recalled
that Cordero and Perez asked him what he thought about the
Union and that he told them that he was against the Union, that
he does not like the union and “things like that.” Rivera did not
specifically deny speaking to Cupertino Luna about any per-
ceived friendliness to the Union. Ruben Luna did not testify re-
garding any of the conversations on August 14 and 15 described
by Cordero. However, he generally denied that he ever author-
ized Rivera to interrogate employees about the Union. I found
Cordero to be an impressive witness and credit his version of the
conversations he had on August 14 and 15. While there were
some variations in the testimony of Perez and Cupertino Luna
regarding these conversations, I ascribe this to the passage of
time. I note further that Cupertino’s recollection about dates and
specifics was somewhat vague. Nevertheless, both he and Perez
had a clear recollection, consistent with Cordero, that Rivera
interrogated Cupertino when he showed friendliness to the Un-
ion’s organizers and threatened him with termination if he sup-
ported the Union. Because I have found above that Rivera was an
agent of the Respondent at the time of the interrogation and
threats, Respondent is liable for his statements. I note that
Rivera’s interrogation and threats occurred at a time that he was
directing Cupertino Luna in the work of unloading a truck so that
he was in a position of authority over Cupertino when he made
the allegedly unlawful statements. Moreover, Ruben Luna’s un-
denied statements to Cordero, that he respected Rivera’s opinion
and would follow his recommendations, establishes that he had
adopted Rivera’s conduct, even if not initially authorized. Ac-
cordingly, I find that the Respondent violated Section 8(a)(1) of
the Act on August 15 by interrogating employees and threatening
them with discharge.
As noted above, the General Counsel alleges that the Respon-
dent discriminatorily transferred Cupertino Luna to another store
on August 17. The complaint also alleges that the Respondent
reduced his wages as a result of the transfer. Cupertino Luna had
been employed by the Respondent, stocking shelves at the
Jerome Avenue store, since March 1998. He testified that he was
paid $300/week for working approximately 66 hours. It is undis-
puted that he was transferred on August 17 to a new C-Town
supermarket that the Respondent was opening. Cupertino Luna
testified that Ruben Luna warned him about the Union being
“outside” and told him that if Cupertino said yes to the Union,

14 Cupertino Luna also testified to two incidents of interrogation by
Jose Rivera that occurred inside the store, while he was working. Ac-
cording to Cupertino Luna, Rivera asked him, both times, whether he
was in the Union and if he knew who was in the Union. Cupertino
replied to both questions in the negative. Cupertino Luna did not recall
when these incidents occurred, but did recall that both occurred be-
tween the date he signed a union card and August 15, the date of the
incident described above. The General Counsel did not allege in the
consolidated complaint that either of these interrogations were unlaw-
ful.
Ruben Luna would “throw him out.”15 Cupertino Luna could
not recall when this conversation occurred, claiming to have a
poor memory for dates, but he recalled meeting union organizer
Perez on the street about an hour after receiving this warning
from Ruben Luna. As noted above, Cupertino Luna signed a
card for the Union on July 27. He testified that he signed the
card about 8 days after Perez gave it to him. Cupertino Luna
also testified to two instances of interrogation by Rivera, de-
scribed at footnote 14 above, and the threat described above
that Rivera made to him on August 15 after he acknowledged
the union organizers who were leafleting outside the store.
Cupertino Luna testified that about 2 or 3 days after Rivera’s
threat, Ruben Luna told him that it was his last day at the
Jerome Avenue store and that he was to report to work at the C-
Town at 145th Street and Broadway the next day. Luna did not
give him a reason for the transfer. According to Cupertino
Luna, when he started working at C-Town, the store was not
yet open but he and other employees were stocking shelves and
getting ready for the opening. He testified that, for the first 2
weeks, he did the same work that he had done at the previous
store and received the same pay. After several weeks, he was
given a job in the meat department and his hourly rate was
changed to $5.15. Cupertino testified that he is now paid
$250/week at C-Town. He acknowledged that he also works
fewer hours than he did at Jerome Avenue, from approxiam-
tely10 a.m. to 5 or 6 p.m. instead of 8 a.m. to 7 p.m.
Ruben Luna denied that he transferred Cupertino Luna to C-
Town because of the Union. According to Ruben Luna, he did
not even know that Cupertino Luna was involved with the Un-
ion. Ruben Luna testified that it is a common practice for the
Respondent to transfer employees among its four stores to meet
changing staffing needs. In particular, when the Respondent
opened the new C-Town, it took employees from all of its
stores to fulfill its needs. Ruben Luna also testified that Cuper-
tino Luna asked Ruben Luna to work fewer hours because he
was getting home too late and did not have time to spend with
his family. Ruben Luna granted this request and changed Cu-
pertino’s hours to 8 a.m. to 5 p.m. Ruben Luna could not recall
when Cupertino made this request. According to Ruben Luna,
the reason that Cupertino is making less money is that he is
working fewer hours. Cupertino testified that the only time he
asked to work fewer hours was when he interviewed for the job
at Jerome Avenue. According to Cupertino Luna, Ruben Luna
offered him an 8 a.m. to 8 p.m. schedule and Cupertino told
him that would cause him to get home too late. Ruben then
agreed that Cupertino could work 8 a.m. to 7 p.m. and that
these were his hours until he was transferred to C-Town.
Payroll records in evidence for the Respondent’s Jerome
Avenue store show that Cupertino Luna was paid $300/week
through the week ending August 14. There are no records in
15 Ruben Luna did not specifically contradict Cupertino Luna’s tes-
timony about this conversation although he generally denied threaten-
ing any employees with discharge if they supported the Union. It does
not appear that the complaint alleges this conversation as an independ-
ent violation of Sec. 8(a)(1) since the dates of alleged threats in the
complaint do not coincide with Cupertino’s testimony regarding the
timing of this threat.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124
evidence showing what he was paid at C-Town. The General
Counsel put into evidence a letter from the Respondent’s coun-
sel, received in response to the subpoena, listing 11 employees
who were transferred from store to store in the last year. This
list was apparently compiled from Ruben Luna’s memory be-
cause the Respondent claimed it kept no records of these trans-
fers. This list indicates that three other employees transferred
from Jerome Avenue to the C-Town (identified as 3550 Food
Corp.). The Respondent did not indicate when these other trans-
fers occurred.
Applying the Board’s Wright Line test to the facts here, I
find that the General Counsel has produced sufficient evidence
to raise an inference that Cupertino Luna was transferred from
Jerome Avenue to the unopened C-Town because he showed
support for the Union. I note that his transfer occurred almost
immediately after the unlawful interrogation and threat made
by Rivera and adopted by Ruben Luna. The credited evidence
regarding the incident on August 15 establishes knowledge and
animus. While it is true that the Respondent did not fire Cuper-
tino Luna, as Rivera had threatened, he was abruptly removed
from the store without any explanation. The burden was thus on
the Respondent to prove that Cupertino Luna would have been
transferred to C-Town even absent union activity. The Respon-
dent offered evidence to show that it is common to staff a new
store with transfers. Olga Caraballo, a current employee who
testified for the General Counsel, corroborated this by testifying
that the Respondent transferred the entire meat department
from the Madison Avenue store to Jerome Avenue when that
store opened in January, before any union activity. The sum-
mary that the Respondent provided in response to the General
Counsel’s subpoena shows that other employees were also
transferred to the new C-Town, although it does not indicate
when these occurred.16 I note that Cupertino Luna testified that
he had the same job at the new store and received the same pay
for the first few weeks and that he was stocking shelves to get
the store ready to open. While I do not doubt that the Respon-
dent reaped a benefit to its antiunion campaign by transferring
Cupertino Luna, I conclude that the Respondent has demon-
strated a legitimate business reason for the transfer and that the
transfer was in accordance with its customary practices. Ac-
cordingly, I find that the Respondent would have transferred
Cupertino Luna to assist with the opening of the new C-Town
and to staff it once opened even in the absence of union activ-
ity. Because there is no dispute that the reduction in Cupertino
Luna’s pay coincided with a change in his schedule which re-
sulted in his working fewer hours a week, I find that the Gen-
eral Counsel has not met her burden of establishing any dis-
criminatory motive for this action. Accordingly, I shall recom-
mend dismissal of the allegations regarding Cupertino Luna’s
transfer and reduction in pay.
The consolidated complaint alleges that the Respondent ter-
minated Juan Rodriguez on August 20. According to Juan Rod-

16 The General Counsel offered no evidence to contradict this sum-
mary. Accordingly, I have accepted it as an accurate summary of what
the Respondent’s records would show if it had produced payroll or
other records related to these transfers.
riguez, he started working for the Respondent in May.17 It ap-
pears from the record that he had no set duties but was assigned
to work in the grocery department, the meat department or
anywhere else that Ruben Luna or one of the managers needed
him. There is no dispute that he also functioned occasionally as
a security guard. Juan Rodriguez testified further that he met
union organizer Perez in the park a couple months after he
started working for the Respondent and that he signed a card
for the Union at the Caridad Restaurant on July 25. As noted
above, it was Juan Rodriguez who invited Ruddy Rodriguez to
meet Perez and both signed cards at the same time and place.
Juan Rodriguez testified that he distributed cards to other em-
ployees and regularly met with Perez and other employees in
the park near the Respondent’s store. Perez testified that Juan
Rodriguez was a member of the organizing committee. As
noted above, Juan Rodriguez testified to three conversations
with Ruben Luna on August 5, the day that Ruddy Rodriguez
was terminated. I have found above that Ruben Luna unlaw-
fully interrogated Juan Rodriguez that day regarding his con-
versations with Ruddy Rodriguez. I find further that Ruben
Luna told Juan Rodriguez on August 5, after he had fired
Ruddy Rodriguez, that Juan should not talk to Ruddy and
should not get into the Union.
Juan Rodriguez testified that, on his last day of work for the
Respondent, Ruben Luna told him and Assistant Floor Manager
Rene Questo, in the morning, that Juan now had two jobs, gro-
cery and security. Juan then went into the backroom to get his
work jacket and spoke briefly to Jorge Santana, the produce
manager. Ruben Luna saw him and asked, “[W]ho are you
working with, Santana or me?” Juan told Ruben he was getting
his jacket and Ruben told him to stop running around and get to
work or to take the day off. Juan Rodriguez testified that he
observed Ruben watching him all morning until Ruben left the
store, at about noon. After Ruben left the store, a truck arrived
with merchandise for Santana. Rodriguez testified that Santana
asked him to help unload the truck. Juan Rodriguez apparently
unloaded that truck without incident. Later, when another truck
arrived for Santana, General Manager Manuel Matista told
Rodriguez to help unload that truck. According to Rodriguez,
as he was taking a handtruck with merchandise to the back
room, Rene Questo asked him what he was doing. Rodriguez
told Questo that he was helping Santana. Questo replied,
“[Y]ou don’t work for Santana, you work in grocery.” When
Rodriguez said he was not working for Santana, he was work-
ing for the store, Questo told him, “[I]f you’re not going to
work in grocery, go get your check right now and get out.”
Rodriguez finished bringing the merchandise he had to the back
and went back out to the truck to get more. When Questo saw
him at the truck, he again said to Rodriguez, “[I]f you don’t like
to work in grocery, go get your check right now.” Rodriguez
went back into the store and saw Matista standing there with an
envelope for him. The envelope contained cash representing
Rodriguez’ pay for the week. Rodriguez testified that Matista
did not say anything to him. According to Rodriguez, he took
the money and left. Rodriguez testified that he attempted to call
17 The Respondent’s payroll records in evidence show that the week
ending June 19 is the first week Rodriguez received a payroll check.
KEY FOOD 125
Ruben Luna after he got home but was told by Matista, who
answered the phone that Luna was not there. When Rodriguez
tried to contact Luna again the following week, Matista again
answered the phone and told him that Luna was not there. Rod-
riguez never discussed his termination with Luna. According to
Rodriguez, he had received no warnings or criticism regarding
his work before that last day of employment. On cross-exam-
ination, Rodriguez admitted that no one told him that he was
fired or to go home.
Matista admitted asking Juan Rodriguez to help Santana
unload a truck. According to Matista, everything was going fine
until Rodriguez suddenly came into the store and went to the
office. Matista testified that the secretary, Mildred, called him
and said that Rodriguez wanted his check. Matista told Mildred
to give him his check, that if he wanted to leave, he was not
going to force anybody to work there. He also told Mildred to
tell Rodriguez to call Luna. Matista denied that he fired Rodri-
guez, testifying that the only conversation he had with Rodri-
guez that day was when he told him to help Santana with the
truck. Ruben Luna was not at the store when Rodriguez left. He
testified that he learned from Matista and Mildred that Rodri-
guez asked for his check and left the store. He claimed to have
no knowledge of Rodriguez’ union activity. Neither Rene
Questo nor the secretary, Mildred, testified for the Respondent.
Matista acknowledged that Questo still works for the Respon-
dent as the Floor Manager. In August, Questo was the assistant
floor manager, a similar position to Jose Rivera. Although he
had no authority to hire or fire, he clearly had the apparent au-
thority to direct the work of employees such as Rodriguez. The
Respondent did not explain Questo’s absence at the hearing
even though he is the only witness who could have contradicted
Rodriguez testimony regarding the circumstances preceding his
departure from the store on the day in question.18
The credited evidence in the record establishes that Juan
Rodriguez was one of the more active union supporters. He
enlisted Ruddy and others into the campaign and solicited other
employees to sign authorization cards. The Respondent’s anti-
union animus is amply demonstrated by the other unfair labor
practices already found above. Although Luna interrogated
Juan about Ruddy’s activities, there is no direct evidence that
the Respondent knew that Juan was also active in the Union’s
campaign. The General Counsel argues that the circumstances
surrounding Rodriguez’ termination, including its timing, es-
tablish knowledge as well as unlawful motivation. The Board
has held, with court approval, that the same circumstantial evi-
dence used to raise an inference of unlawful motivation can be
relied on to prove knowledge in the absence of direct evidence
of knowledge. Abbey’s Transportation Services, supra. See also
Montgomery Ward & Co., 316 NLRB 1248 (1995). The Re-
spondent argues, as it did with Ruddy Rodriguez, that it did not
fire Juan Rodriguez. The Respondent asks me to believe Ma-
tista’s testimony that Juan simply stopped working and asked
for his check without explanation and never returned again. I

18 Although the consolidated complaint alleges that Juan Rodriguez
was terminated on August 20, the payroll records in evidence show that
the last week for which he was paid by the Respondent was the week
ending August 7, the same as Ruddy Rodriguez and Juan Alvarez.
might have an easier time accepting this testimony had the
Respondent bothered to call Questo as a witness to enlighten
me regarding what happened on Juan’s last day of work. Be-
cause Questo is still employed by the Respondent in a manage-
rial position and would presumably be favorably disposed to
the Respondent, I shall draw an adverse inference from the
Respondent’s unexplained failure to call him as a witness. In-
ternational Automated Machines, 285 NLRB 1122, 1123
(1987). Accord: Queen of Valley Hospital, 316 NLRB 721
(1995).
I thus credit Juan Rodriguez that Questo told him to “go get
your check and get out.” Juan Rodriguez did not ask for his
check because he had decided to quit. Rather, he was directed
to get his check by his supervisor.19 Thus, even assuming Ma-
tista’s testimony that he did not hand Rodriguez his check is
credible, Rodriguez’ undenied testimony that Questo told him
to get his check establishes that he was terminated and did not
quit. I also credit Juan Rodriguez’ testimony that Questo ques-
tioned him about what he was doing when he was unloading a
truck and accused him of working for Santana.20 It is undis-
puted that, at the time, Juan Rodriguez was assisting Santana in
unloading a truck, a task assigned to him by Matista. Questo’s
questioning of Juan Rodriguez before he told him to get out
was remarkably similar to Luna’s questioning of Juan Rodri-
guez earlier that day, when he saw him in the backroom and
asked, “[W]ho are you working with, Santana or me?” I infer
from this that the Respondent believed that Juan Rodriguez was
a union supporter because of his association with Santana. I
further find that, because of the conflicting instructions he was
getting from Questo and Matista that day, that the Respondent
set him up in order to rid itself of a key union supporter. Ac-
cordingly, I find that the General Counsel has established a
prima facie case that the Respondent terminated Juan Rodri-
guez because of his union activities. Respondent fell far short
of meeting its Wright Line burden by failing to call the very
supervisor who allegedly terminated Juan Rodriguez. The Re-
spondent thus violated Section 8(a)(1) and (3) of the Act by
terminating Juan Rodriguez.
Alex Duran testified that, in late August, he asked Ruben
Luna for vacation time and a change in his schedule because he
was going back to school. Luna granted these requests. Accord-
ing to Duran, Luna then asked him if Ruddy Rodriguez made
him sign a union card. Duran said no. Duran and Luna then
talked about how working kept Duran off the streets and out of
trouble. Luna told Duran not to hang out with kids like Ruddy
Rodriguez that talk about the union because they were a bad
influence. Luna did not specifically deny this conversation, nor
otherwise contradict Duran. This conversation is further evi-
dence of the Respondent’s animus toward Ruddy Rodriguez
and the discriminatory nature of his termination.
Luna also talked to Ordoñez about the Union in mid- to late-
August. Although Ordoñez initially claimed that he did not
19 According to the Respondent’s witnesses, Questo had replaced
Mesa as floor manager. Thus, he was a statutory supervisor at the time
he told Rodriguez to get out.
20 The Respondent admitted at the hearing that Ruben Luna was
aware of Santana’s union activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126
recall any such discussion, he acknowledged meeting with
Luna at that time. He claimed that they only talked about the
produce department. In a pretrial affidavit that Ordoñez signed
under oath on September 29, however, he recorded a recollec-
tion of Luna calling him to the office around the middle of
August and telling him not to let them convince him into join-
ing the Union, to tell them that he wasn’t interested. Luna also
referred to the Union as rats in this conversation. Ordoñez re-
corded in his affidavit that, on another occasion around the
middle or the end of August, he was again called to Luna’s
office. On this occasion, according to the affidavit, Luna told
Ordoñez that he should not unite with the union employees and
that, if the Respondent was forced to accept the Union, Luna
would reduce the hours for the workers to a few hours so that
they would quit. Luna told Ordoñez that this could also happen
to him. In his affidavit, Ordoñez stated that he did not respond
to these statements. Although Ordoñez claimed that he did not
now recall Luna making these statements, he acknowledged
telling the Board agent who drafted the affidavit these things
and acknowledged swearing to the truth of the affidavit. I re-
ceived this evidence as past recollection recorded over the ob-
jections of the Respondent.21 In light of Ordoñez’ subsequent
promotion and pay increase and his resistance to the subpoena
which may have colored his testimony at the hearing, I find that
the affidavit is a truthful and accurate record of Ordoñez’ recol-
lection on September 29, and shall credit his testimony as re-
flected in the affidavit. Although Luna denied, in response to
leading questions, that he directed employees not to join the
Union and that he threatened employees that he would reduce
their hours to cause them to quit, he did not directly contradict
Ordoñez’ version of these meetings reflected in the affidavit.
Accordingly, I find that the Respondent violated Section 8(a)(1)
of the Act, as alleged in the consolidated complaint, by direct-
ing employees not to join the Union, and by threatening to re-
duce their hours in order to induce them to quit if they sup-
ported the Union.
Ordoñez did recall another occasion when he was summoned
to Luna’s office over the intercom and shown a form on which
his name was misspelled. Ordoñez identified the Union’s unfair
labor practice charge in Case 2–CA–31709 as the form that
Luna showed him. That charge, filed on September 11, alleges
that the Respondent committed several unfair labor practices
against “Jorge Edona” during the month of August. The affida-
vit of service indicates that the charge was mailed to the Re-
spondent on September 16. According to Ordoñez, who does
not read English, Luna read to him from the form and asked
Ordoñez if he had made that statement. Ordoñez told him no,
that it was a statement he made to Santana in the store. Luna
also asked Ordoñez if the statements on the form were true and
Ordoñez said, “[Y]es, but it was just something he told Santana
in the store.” After the General Counsel refreshed Ordoñez’
recollection with his affidavit, he recalled that Luna also asked
him whether he had come in to the Labor Board to make a
statement and Ordoñez again replied, “[N]o, it was a conversa-
tion that he had with Santana.” Luna then told Ordoñez not to

21 Three Sisters Sportswear Co., 312 NLRB 853 (1993); New Life
Bakery, 301 NLRB 421 (1991), enfd. 980 F.2d 738 (9th Cir. 1992).
speak with Santana anymore because he was a bad influence
for Ordoñez.22 As with most of the 8(a)(1) allegations, Luna
merely denied the allegation as set forth in the complaint with-
out directly contradicting Ordoñez’ testimony regarding this
meeting. Based on the credited testimony of Ordoñez, I find
that the Respondent violated Section 8(a)(1) of the Act, as al-
leged in the consolidated complaint, by interrogating employ-
ees regarding their cooperation with the Board. Based on the
date of service of the charge, I further find that this violation
occurred in or about mid-September.
Alba Cortes, also referred to in the record as “Baby,” is one
of the employees of the former owners of the store who was
hired by the Respondent. She had worked at this store as a
cashier since November 1997. Cortes testified that she trained
new cashiers and also worked occasionally in the deli, took
phone orders and did shopping for blind customers. According
to Cortes, Luna called her at home after he took over the store
in January, told her he had heard that she was a good worker
and asked her if she wanted to work for him. She agreed. Luna
then told her that he did not want anybody from the Union there
and that, if anybody was to ask her, that she should tell them
she was related to him. Cortes testified that she first heard
about the Union in February or March when other employees,
including Santana and Ruddy Rodriguez, told her that the Un-
ion was interested in representing the employees.23 According
to Cortes, she did not get involved at that time for fear of losing
her job. If Cortes’ testimony is credited, her fear was under-
standable considering the many conversations she had with
Luna in which he interrogated her and told her not to get in-
volved with the Union. According to Cortes, Luna spoke to her
“constantly” about the Union almost from her first day on the
job. These conversations occurred at her register while she was
working and followed the same general pattern. Luna would
ask Cortes if anybody had spoken to her about the Union and if
she heard anything about the Union. He would also remind her
to tell anyone who asked her that she was not interested be-
cause she was a relative of the owner. According to Cortes,
these conversations continued right up until she was terminated
on October 22. Although Cortes could not recall the dates of
any of these conversations because they were so numerous and
occurred so frequently, she did recall that, in the summer, Luna
asked her what she knew or heard about anybody getting in-
volved with the Union. After her recollection was refreshed
22 The General Counsel also proved this allegation in part through
Ordoñez’ affidavit, which was received as past recollection recorded.
For the reasons discussed above, I credit Ordoñez’ recollection as re-
corded in the affidavit over his lack of recall at the hearing. I note that,
with respect to this conversation, Ordoñez was able to recall enough of
its substance to lend credibility to the earlier recorded recollection.
23 The Respondent’s payroll records show that Ruddy Rodriguez did
not begin working for the Respondent until April. Ruddy Rodriguez
testified that he did not get involved with the Union until June or July.
Thus, Cortes could not have heard about the Union from Rodriguez in
February or March. Because Santana testified that he first became
aware of the Union’s efforts to represent the Respondent’s employees
in February, it is more likely that Santana was the source of Cortes’
information at that time. This is also consistent with Alvarez’ testimony
that he also learned about the Union from Santana in February.
KEY FOOD 127
with her pretrial affidavit, she recalled that Luna specifically
asked her to tell him if anyone spoke to her about the Union.
Cortes also recalled a specific conversation by her register
sometime in the summer in which Luna referred to another
cashier, Nellie, as a “bitch,” telling Cortes that Nellie had be-
trayed him by getting involved with the Union. Cortes testified
that Luna said, “[W]hat makes her think that by getting in-
volved with the Union that he was required to give her 40 hours
a week.” Luna told Cortes that he cut Nellie’s hours down to 25
a week. Cortes recalled a similar conversation, also in the
summer, in which Luna referred to Santana and Ruddy Rodri-
guez and said that “there was no law that required him to give
us 40 hours if we got involved with the Union.” Luna denied
that he ever spoke to Cortes about the Union. According to
Luna, it was Cortes who brought up the subject of the Union,
telling him not to worry because she would never “play dirty
with the Union.” Luna also specifically denied the complaint
allegations that were based upon Cortes’ testimony by respond-
ing to leading questions from counsel.
Although I found Cortes’ testimony regarding the frequency
and duration of these conversations somewhat exaggerated,
several of the statements she attributed to Luna were consistent
with statements he made to other witnesses, such as Duran and
Ordoñez, whom I found to be very credible. As previously
noted, Luna did not impress me as a very credible witness and I
find his categorical denials unpersuasive. Moreover, it appears
from Luna’s testimony that he liked Cortes, considered her a
friend and was surprised to learn after her termination that she
signed a union card. Under these circumstances, it is not sur-
prising that Cortes would have been a frequent target of Luna’s
interrogation and antiunion statements. I also note that Respon-
dent’s counsel, in a letter submitted to the Board during the
investigation, expressed the opinion that it was not unlawful for
an employer to question employees about their support for a
union. It is clear from the testimony of Cortes and the other
witnesses whom I have already credited, that Luna shared this
opinion. Accordingly, I find that Luna did interrogate Cortes,
on more than one occasion, in an attempt to determine whether
she had been approached by other employees about the Union
and who was involved in the Union. Because Cortes had not
openly demonstrated her support for the Union prior to this
questioning and because the questioning sought to elicit infor-
mation about the union activities of others, this interrogation
was unlawful under the test adopted by the Board in Rossmore
House, supra, and Sunnyvale Medical Clinic, supra. I further
find that, as he did with Ordoñez, Luna threatened Cortes that
he would reduce employees’ hours if they supported the Union.
Such a threat was implicit in his statements to Cortes that he
was not required to give employees 40 hours and that he had
reduced the hours of another cashier because she betrayed him
by getting involved with the Union. Luna’s repeated reminders
to Cortes to tell anyone who asked that she was not interested
in the Union and that she was related to him were coercive
because they occurred in the context of unlawful interrogation
and threats. Such directions, from the boss of the store, would
have the reasonable tendency to restrain and coerce any em-
ployee in the exercise of his or her right to choose whether to
join the Union. Finally, I find that Luna did ask Cortes to report
to him if any employees approached her about the Union, even
though Cortes’ recollection of this instruction had to be re-
freshed with her affidavit. Considering the passage of time and
the number of conversations she had with Luna on the subject,
it is not surprising that she would not remember everything that
Luna said. I note that such an instruction is consistent with the
overall view of Luna that emerges from the record, i.e., that he
was opposed to the Union, did not want any of his employees to
join with the Union and was vigilant in seeking information to
determine who was involved with the Union.
Cortes testified that she was given several union authoriza-
tion cards by Santana, beginning in February, that she did not
sign. According to the Union’s own witnesses, the card-signing
campaign did not begin until June or July. In addition, Santana
testified that he did not begin distributing any cards until June.
Cortes testified further that she finally signed a card, which she
also received from Santana, in August or September. According
to Cortes, Santana gave her this card in the store, she signed it
later that day or the next, and gave it back to him outside the
store the next day. The card in evidence that bears her signa-
ture, however, is dated October 8.24 According to the testimony
of Cordero and Perez, the initials on the back of the card indi-
cate that she gave the card to Santana on October 21 and that
Santana gave it to Perez on October 30 in the park near the
store. Santana testified that he gave her the card in the street at
the beginning of October and that Virgilio Peña was with him
at the time. He recalled that he retrieved it with her signature
about a week later, at her apartment, and that he put it in a bu-
reau drawer at home, without initialing it, until he had an op-
portunity to give it to Perez. Santana testified that, after another
week went by, he took Cortes’ card out of the drawer, initialed
it and called Perez to tell him he had the card. He testified that
October 21 is the date he did this. Santana testified further that
he put the card back in the drawer until he met with Perez in the
park and gave him the card on October 30. Perez testified that
Santana called him and told him he had Cortes’ card but that he
did not meet with Santana until October 30 to retrieve the card.
Perez’ logs show that he met with employees of the Respondent
on October 8, 22, and 26. Perez testified that Santana was not at
those meetings.
Based on the above evidence and testimony from Ordoñez
that Santana told him that Cortes signed her card after she was
fired, the Respondent argued at the hearing that I should find
that the card was not signed on October 8, as it appears on its
face, but was signed after Cortes’ October 22 termination. I
found the testimony of the General Counsel’s witnesses regard-
ing Cortes’ card suspect. As noted above, Cortes and Santana
did not corroborate one another regarding when the card was
signed, where it was signed, or when and where it was given to
Santana. Santana’s testimony regarding what he did with the
card after he got it from Cortes makes no sense. Why would he
put it in his drawer without initialing it, only to take it out of the
drawer a week later to initial it and then put it back in the

24 The General Counsel had the original card signed by Cortes at the
hearing. General Counsel had only copies of the cards signed by the
other alleged discriminatees because the originals had apparently been
lost during renovations at the union office.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 128
drawer for another 10 days until he gave it to Perez! Santana’s
asserted treatment of Cortes’ card is in marked contrast to the
Union’s stated procedures for documenting receipt of cards and
the treatment it accorded the cards signed by every other em-
ployee in this case. I also note that Cortes could not even recall
accurately when she signed the card. Accordingly, I find that
Cortes did not sign a union authorization card until after she
was terminated by the Respondent.25
Cortes testified further that, in August, while the Union was
leafleting outside the store, she greeted Alvarez and Ruddy
Rodriguez. Cortes saw that Luna was watching her as she spoke
to them. According to Cortes, the Respondent’s general man-
ager, Matista, later told her not to speak to them, they were no
good for the store. I credit Cortes regarding this incident be-
cause neither Luna nor Matista disputed her testimony. Cortes
testified that she received no warnings or indication that her job
was in jeopardy until October 22. After she returned home from
work that day, Luna called her and told her to take the next day
off. When she asked why, Luna told her there was a new pol-
icy, that he did not want anyone from the neighborhood work-
ing in the store. He told her that she was not the only one af-
fected. When Cortes asked Luna how could this be legal, he
told her that he would transfer her to another store. She asked
him when she would start at the other store and Luna said he
had to go to the other store and check for openings. Luna also
told Cortes that, if she wanted, he would give her a letter so she
could collect unemployment benefits. Cortes testified that she
went to the store on Saturday and saw that other employees
from the neighborhood were still working. She asked Luna if he
had checked for openings at the other store and Luna told her
that he had not had a chance to. Cortes called Luna the follow-
ing week and he told her he still had not had a chance to check
the other store. When Cortes asked Luna if she could work at
Jerome Avenue until there was an opening at the other store,
Luna said, “[N]o, no, you can’t work here.” Finally, when it
appeared that Luna was not going to transfer her to another
store, Cortes asked Luna for a letter to collect unemployment,
which he gave her. On cross examination, Cortes adamantly
denied that she had given merchandise away to her friends and
denied that Luna ever accused her of this or cited this as the
reason for not wanting anyone from the neighborhood working
in the store. The General Counsel put into evidence a letter
from the Respondent’s counsel, submitted to the Region in
response to the charge, stating that Cortes was terminated for
two reasons: because business was slow and the Respondent let
two cashiers go, and because Cortes was “doing improper
things while being a cashier.”26

25 My decision not to credit Cortes’ testimony regarding the signing
of her card does not detract from her credibility regarding the unlawful
threats and interrogation she was subjected to by Luna. The conduct of
Luna which she described is consistent with Luna’s activity toward
other employees, such as Duran and Ordoñez, who were particularly
credible. It is also axiomatic that a trier of fact may believe some, but
not all, of a witness’ testimony. Farmer Bros. Co., 303 NLRB 638, 649
(1991).
26 The Board has historically considered such correspondence as
relevant to the issue of motivation and has relied on these prehearing
Matista testified that he caught Cortes passing merchandise
to people she knew on one occasion. He testified further that he
brought it to her attention and told her that he would let it go
this time but, if it happened again, she would be terminated.
Matista admittedly did not tell Luna about this. Luna testified
on direct that he fired Cortes for passing merchandise after he
caught her doing it. Luna testified, contrary to Matista, that he
learned from Matista, after she was fired, that she had been
doing it for 4–5 months without his knowledge. On cross-
examination, Luna claimed that he saw her passing merchan-
dise three times before he spoke to her and told her he had to let
her go. He claimed that he just walked away the first two times,
even though he knew it was costing him money for her to give
away merchandise. Luna’s answers on cross-examination re-
garding what merchandise he saw her passing appeared to be
made up as he went along. Although Luna initially testified that
he also learned from the other cashiers that Cortes was passing
merchandise, he admitted that he did not learn this until after he
had terminated her. Luna’s testimony also shifted regarding
when he terminated Cortes. At first, he said he took her aside at
work, told her that she could finish the day but was terminated.
Later he claimed that he called her at home the night after he
caught her doing it and terminated her. Finally, Luna testified
that this was the only reason he terminated Cortes, despite his
attorney’s representation during the investigation that there
were two reasons.27
Because I found above that Cortes did not sign a union au-
thorization card before her termination, there is no evidence
that she engaged in protected activity other than listening to
what Santana and Ruddy Rodriguez had to say about the Union
and greeting Ruddy Rodriguez and Alvarez when they were
leafleting outside the store in August. As noted above, Luna
saw her doing the latter and Matista warned her not to speak to
the terminated employees. Cortes’ lack of union activity before
her termination is understandable in light of the constant badg-
ering she received at the hands of Luna regarding the Union.
This finding would ordinarily dispose of the allegation regard-
ing Cortes’ termination. However, I am convinced that the Re-
spondent’s asserted reason for terminating Cortes is such a total
fabrication that I am left to wonder why did Respondent termi-
nate an employee who, by Luna’s own admission, was consid-
ered a valuable employee? Luna’s testimony about Cortes’
alleged passing of merchandise was totally unbelievable and
contradicted by Matista, who swore that he never told Luna
about the one incident he claimed to have witnessed. I note
further that the Respondent was not content to advance one
false reason, but added another reason during the investigation
that Luna testified on the witness stand had nothing to do with
Cortes’ termination! Although I did not believe everything that
Cortes said, “I did find her denial that she passed merchandise
convincing.” In considering the evidence regarding Cortes’
termination, I am mindful of the language in the Court’s deci-

position statements as admissions of the Respondent in certain cases.
Steve Aloi Ford, 179 NLRB 229 fn. 2 (1969).
27 I accept Luna’s testimony that the reference in the attorney’s letter
to “improper things” was intended to refer to the alleged passing of
merchandise.
KEY FOOD 129
sion in Shattuck Denn Mining Corp. v. NLRB, “when the stated
motive for [an employer’s action] is false, [the Board] can cer-
tainly infer that there is another motive. More than that, it can
infer that the motive is one that the employer desires to con-
ceal—an unlawful motive—at least, where, as in this case, the
surrounding facts tend to reinforce that inference.” 362 F.2d
466, 470 (9th Cir. 1966). See also Montgomery Ward & Co.,
supra, and cases cited therein.
The Respondent’s antiunion animus and its desire to rid itself
of union supporters is amply demonstrated by the numerous
violations of Section 8(a)(1) of the Act. I note further that, be-
fore Cortes’ termination, Luna apparently believed she was
anti-union and spoke freely to her about his opposition to the
Union and what he would do to union supporters. He even
sought to learn from her who was involved in the Union. His
abrupt termination of her and fabrication of a false reason for
the termination convinces me that Luna believed that she had
become a union supporter. When an employer terminates an
employee in the belief that the employee is engaged in union
activities, the termination is unlawful, even if the employer’s
belief is mistaken. NLRB v. Link-Belt Co., 311 U.S. 584, 589–
590 (1941); Dayton Hudson Department Store Co., 324 NLRB
33 (997); Salisbury Hotel, 283 NLRB 685 (1987). Accordingly,
I find that the Respondent terminated Cortes in violation of
Section 8(a)(1) and (3) of the Act.
Olga Caraballo has been employed by the Respondent as a
meat wrapper for about 9 years. Until January, she worked in
the Respondent’s Madison Avenue store. When the Respondent
opened the store on Jerome Avenue, it transferred the entire
meat department, including Caraballo, from the Madison Ave-
nue store. Caraballo testified that she first learned about the
Union in July or August while having lunch in the park with
Marvin Figueroa, the meat department manager who she identi-
fied as her supervisor, Virgilio Peña, who also works in the
meat department, and Juan, the porter who cleans inside the
store and whose last name she did not know. According to
Caraballo, Perez introduced himself and told her about the
benefits of the Union. Sometime after this meeting, Peña gave
her a card to sign. Caraballo testified that she signed the card at
home and gave it to Santana in the store the next day. Her card
is dated August 3. Caraballo testified that she attended several
meetings with the union organizer, in the park and at the restau-
rant, from August through October and that she also discussed
the Union with Santana and her fellow meat department em-
ployees, Figueroa and Peña, while working in the store. She
admitted that Luna never spoke to her about the Union. How-
ever, she testified that his attitude toward her changed and he
became cold after the employees got involved with the Union.
Caraballo worked at Jerome Avenue until October 31 when
Luna called her at home and told her that she was being sent
back to Madison Avenue to help improve meat sales that had
declined since the transfer. Caraballo was skeptical and told
Luna she thought this was just a story, that there was nothing
she could do to increase meat sales. She told him she would go
to Madison Avenue because she was willing to work anywhere.
Caraballo further testified that when she arrived at the Madison
Avenue store the following Monday, the secretary, the butcher
and the meat manager were all surprised to see her. The woman
who had been the meat wrapper at Madison Avenue was trans-
ferred to Jerome Avenue at the same time as Caraballo’s trans-
fer. According to Caraballo, there has been no change in her
duties since the transfer. She also testified that she has not ob-
served any change in the volume of meat sales since her trans-
fer. It is undisputed that Caraballo is the only one of the meat
department employees who were sent to Jerome Avenue in
January to be transferred back to Madison Avenue. However,
Precio Orgin, the butcher at Jerome Avenue who had also come
from the Madison Avenue store, was transferred to the Respon-
dent’s store at Broadway and 150th Street in about August.
Luna testified that he initially transferred Caraballo from
Madison Avenue to Jerome Avenue “temporarily” to help him
out when the store opened and that he transferred her back to
Madison Avenue because meat sales at that store had declined.
According to Luna, Caraballo knew the customers in that store
because she had worked there for so many years and he hoped
she could improve sales. As a meat wrapper, Caraballo has
contact with the customers because she is the one who puts the
meat in the case and answers questions from customers. He
admitted that he never told Caraballo that her transfer to Jerome
Avenue was only temporary and that he didn’t transfer any
other employees back to Madison Avenue. Luna further testi-
fied, as noted above with respect to Cupertino Luna, that it is a
common practice to transfer employees among the Respon-
dent’s stores. Luna denied that Caraballo’s transfer had any-
thing to do with the Union and he denied any knowledge of her
union activities or support. The Respondent’s counsel also
submitted a letter to the Region during the investigation of the
charge in which it stated that Caraballo was temporarily trans-
ferred to Jerome Avenue to “use her unique talents to train
other meat wrappers.” This letter makes no reference to a de-
cline in meat sales at Madison Avenue as a reason for Cara-
ballo’s return to that store. Moreover, Caraballo testified with-
out dispute that she only trained one new meat wrapper during
the time she was at Jerome Avenue, a woman named Gisette
who was related to Luna. Caraballo testified that she trained
Gisette during her last 2 months at the Jerome Avenue store.
Although Caraballo signed a card for the Union and attended
union meetings outside the store, she was not unique among
meat department employees in engaging in such activities.
There is no direct evidence that the Respondent was aware of
her union activity and the circumstances surrounding the trans-
fer back to Madison Avenue are not particularly evocative of
any anti-union motivation. The timing of Caraballo’s transfer
bears no nexus to any particular union activity on her part or
generally.28 In contrast to the termination of Cortes, the Re-
spondent has not advanced a reason for Caraballo’s transfer that
is patently false. I note that Caraballo had worked at the Madi-
son Avenue store for 8 years before she was transferred to
Jerome Avenue and that her job as a meat wrapper brought her

28 I do not find it significant that charges were pending at the time of
the transfer or that the General Counsel had recently issued a complaint
against the Respondent. The General Counsel has not advanced a per-
suasive rationale for linking these events to the transfer of a minor
player in the Union’s campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130
into regular contact with customers.29 It would be logical for
Luna to believe that Caraballo had a relationship with the cus-
tomers at Madison Avenue that might be helpful to the busi-
ness. I note further that Caraballo suffered no adverse conse-
quences from the transfer back to the store where she had spent
most of her tenure with the Respondent and that other employ-
ees were transferred by the Respondent among its various
stores, including one other employee in the meat department,
Precio Orgin. Accordingly I conclude that the General Counsel
has failed to establish a prima facie case that Caraballo’s trans-
fer was discriminatorily motivated and I shall recommend that
this allegation be dismissed.
Jorge Santana also worked for the Respondent at the Madi-
son Avenue store, for about 5 years before Luna transferred
him to the new store on Jerome Avenue in January. Santana
was in charge of the produce department at both stores. He had
one employee, Ordoñez, working under him at Jerome Avenue.
As noted above, Luna told Santana in February that the Union
was around and that, if they approached Santana, he should tell
them that he was not interested. Santana testified that he got
involved with the Union’s campaign in June and that he par-
ticipated with Ruddy Rodriguez, Juan Alvarez, and Juan Rodri-
guez in meetings with employees and union organizer Perez.
He signed a union authorization card on July 30 and, as con-
firmed by other witnesses, solicited other employees to sign
cards. The Respondent stipulated at the hearing that it was
aware of Santana’s activity in support of the Union. According
to Luna, it was Santana who approached Luna and tried to dis-
cuss the Union. Luna claimed that he told Santana that he did
not want to talk about it, that it was up to Santana whether to
join the Union and that Luna did not care as long as Santana did
his job. Luna’s self-serving characterization of his conversa-
tions with Santana is not credible. Santana testified that Rivera,
the Respondent’s assistant floor manager, asked him on two
occasions, in July and October, if he had signed a card for the
Union. Santana also testified that Rivera told him that Luna did
not want anyone to sign union cards and that, if they did, they
would be fired. Rivera denied speaking to Santana about the
Union. I credit Santana’s testimony over Rivera’s denial.
Santana also testified that Luna questioned him in August about
a broken sign, indicating that he suspected the Union was re-
sponsible. In October, Luna accused Santana of having union
meetings with the meat department employees during work. He
told Santana that, if he was having such meetings, he would be
fired. Santana told Luna that he knew his rights and that, if
Luna fired him for this reason, he knew where to go. According
to Santana, Luna responded, “[G]o wherever the f—k you
want. It’s my store and I’ll run it the way I like. If you don’t
like it here, you know where the door is.”
Santana was fired on December 1. The General Counsel ar-
gues that Santana was fired because of his union activities. The

29 The General Counsel’s argument to the contrary is not persuasive.
Customers would have very little contact with the butcher who works
in the back room cutting the meat. It is the meat wrapper who takes the
meat and puts it in the case and who is readily available to answer
questions if a customer does not see what they are looking for in the
case.
Respondent contends that he was fired for punching General
Manager Matista. According to Santana, he was at work on
December 1, at about noon, when Questo told him there was
someone looking for him at the front of the store. Santana went
to the front and saw that it was a delivery man for one of the
Respondent’s suppliers. Santana was not expecting a delivery
until the end of the week. He told the delivery man that he
didn’t order the merchandise and would not take it, but changed
his mind just as the delivery man walked out of the store.
Santana went out of the store to find the delivery man and tell
him that he could use some merchandise after all. According to
Santana, Matista followed him outside and angrily ordered him
back inside the store. Matista shouted various profanities at
Santana and maligned his manhood, essentially accusing him of
hanging around outside the store when he should have been
working inside. It is not clear whether Matista knew why
Santana was outside and Santana did not testify that he gave
Matista any explanation. Santana responded to Matista’s verbal
tirade by telling Matista to take it easy and to show him respect
because he is much older. According to Santana, he also told
Matista that his work was always complete. Matista then said,
“[Y]ou think I’m afraid of you, m.f? F—ing faggot. Get your
ass inside and get to work!” Santana testified that when Matista
called him a m.f. and faggot, he said, “Manny, please respect
me, I’m older than you.” Santana admitted that he touched
Matista on the shoulder with his finger for emphasis. Santana
then walked inside the store. According to Santana, Matista
followed him into the store, still yelling profanities, calling him
names and waving his arms. He told Santana to leave because
he did not want him there. Santana told Matista that Luna was
the one who hired him and that Matista was not his boss. Ma-
tista responded that he did not care about Luna, that he was the
boss and that Santana had to go, that he was fired. Matista
yelled to Mildred in the office to give Santana his money, be-
cause he was fired. Santana went to the back to take off his
work jacket and then left the store with Marvin Figueroa and
Peña to have lunch. Santana testified further that Rivera was
standing next to Matista during the incident outside and that
Manuel, whom he identified as the porter, came out and told
Santana to come inside because it was not worth fighting over.
He also observed Figueroa and Peña standing nearby when he
went back into the store. Peña testified that he was standing just
inside the doors during the incident and that he heard Santana
telling Matista that he should respect him because of his age.
Peña testified that he also saw Santana touch Matista on the
shoulder with his index finger. Peña recalled seeing Matista
follow Santana into the store, cursing him and yelling to Mil-
dred to get Santana’s check. At one point, according to Peña,
Matista saw him and Figueroa watching and said, “[T]his goes
for all you m.f.s that don’t want to work in my store, you can
all leave.” Peña corroborated Santana’s testimony that they
went to lunch at that point. Peña also corroborated Santana that
Rivera was outside with Matista during this incident. Rivera,
who testified for the Respondent, claimed that he was not out-
side during the incident and that, by the time he got outside,
Santana and Matista had already separated.30
30 Figueroa did not testify.
KEY FOOD 131
Matista testified that the incident actually began the day be-
fore when Santana called him a “f—ing asshole” after Matista
had given him an order. On December 1, about noon, Matista
saw Santana wandering around the front of the store, talking to
the cashiers, when there was work to do in the produce depart-
ment. According to Matista, when he saw Santana go outside
the store and stand there, he went out to tell Santana that there
was work to do inside the store and that he should not be stand-
ing around outside waiting for deliveries. Matista testified that,
when he said this to Santana, Santana “got in his face” and said,
“I’m f—ing tired of you being in my ass. You need to grow up.
You’re a f—ing little kid. I’m an older man. You shouldn’t be
telling me what to do.” Matista replied that he was Santana’s
manager and that Santana was supposed to follow his orders.
He told Santana that, if he asked Santana to go inside, it was
because there was work to do, and that Matista does not pay
anyone to stand around outside. According to Matista, Santana
replied that Matista “had to stop kissing Ruben [Luna]’s ass”
and he called Matista an “ass kisser.” Matista admitted that he
became angry during this exchange and raised his voice, re-
sponding in kind to Santana’s verbal attacks. Matista testified
that Raphael, the security guard, came out of the store as
Santana punched Matista in the chest. Santana described it as a
closed fisted punch. According to Matista, the force of the
punch caused him to step back. Matista testified that Raphael
separated him and Santana and told Santana to go inside. Ma-
tista admits following him inside and telling Santana that he
was fired and telling Mildred to make out Santana’s check be-
cause “he doesn’t work here anymore.” Matista also recalled
seeing Peña standing nearby and admitted to yelling inside the
store: “[W]hoever doesn’t want to follow my orders could pick
up their check, too. Whoever feels I’m a little kid, that they
shouldn’t follow my orders, then they could leave, too.” Raph-
ael Corniel, the security guard employed by the Respondent,
testified as a witness for the Respondent. He did not corrobo-
rate Matista’s testimony that Santana punched him with a
closed fist. On the contrary, the gesture demonstrated by
Corniel was closer to that described by Santana and Peña.
Corniel did testify that he had to separate Matista and Santana
and that, after he brought Santana into the store, he had to re-
strain him from going after Matista again.
Santana testified that, when he returned from lunch, at about
1 p.m., he went back to work in the produce department.
Santana testified further that, at about 3–4 p.m., Luna returned
to the store and approached Santana in the produce section.
Luna asked what had happened and Santana told him the he and
Matista had a little argument and that Matista cursed him out.
According to Santana, Luna told him not to worry about it, that
he would talk to Matista. Santana testified that he went to the
front of the store a few minutes later and observed Luna and
Matista talking by the registers. Santana continued working
until about 5 p.m. when Matista approached him with two po-
lice officers. According to Santana, the police asked him what
happened and Santana told them that he and Matista had a little
argument. When the police asked Santana if he hit Matista,
Santana said, “[N]o.” According to Santana, they then asked
Matista if Santana hit him and Matista said, “No, I’d be lying if
I said that he hit me. He just touched me. I don’t want him in
the store, that’s all. I don’t want him in the store anymore.”
Santana testified further that the policeman called Luna from
the front of the store and asked Luna if he had another store to
send Santana to. Luna said he had another store but he would
not commit to sending Santana to another store. The policeman
then asked Luna if Santana was fired and Luna said to Santana
that he was sorry, but if Matista said he was fired, then he is
fired and he had to go. Santana replied that, if Luna said he was
fired, then he will go, but he would not accept that from Matista
because Matista was not his boss. Santana was given his check
by Mildred at that time and he left the store.
Matista testified that he called the police and that, after he
told the police what happened, they went to speak to Santana.
Matista testified that he heard Santana admit to the policeman
that he hit Matista. Matista did not explain why he waited al-
most 5 hours to call the police. The General Counsel called one
of the responding officers as a witness, Officer Erick Acevedo,
who testified that Santana told the officers that he had a “verbal
argument” with Matista, that Matista “got up in his face” and
that he pushed Matista. Luna testified that he was not present
during the incident, but upheld Matista’s decision to fire
Santana because Matista is the manager.
There is no dispute that Santana was a key union organizer
and that the Respondent was aware of his support for the Un-
ion. The Respondent’s antiunion animus is apparent from the
multiple violations found above. However, Santana’s discharge
occurred quite some time after the other unfair labor practices
and did not coincide with any event related to the Union’s ef-
fort to organize the Respondent’s employees. On the contrary,
Santana was discharged the same day he admittedly had a dis-
pute with the store manager during which he admittedly poked
him in the shoulder. I do not believe Matista’s testimony that
Santana “punched him” because the Respondent’s own witness,
Corniel, who would have no reason to lie about this, corrobo-
rated Santana and Peña, not Matista.31 The issue presented is
thus whether the Respondent would have discharged Santana
for such conduct in the absence of union activity. It is undis-
puted that the Respondent had fired only one employee, other
than those involved in this proceeding, before Santana’s dis-
charge. That employee was fired for absenteeism. In addition,
as found above, the Respondent fired Alvarez and Mesa on the
same day after they were involved in a verbal dispute that
threatened to turn violent. In Santana’s case, the verbal dispute
involved a challenge to Matista’s authority which escalated to
the point that Santana felt the need to poke Matista for empha-
sis. Although I found Santana to be a credible witness and sus-
pect that he was provoked by Matista’s profane and abusive
tirade, he nevertheless crossed the boundary of permissible
employee conduct. The Respondent’s decision to terminate
Santana under these circumstances is consistent with the way it
treated Alvarez and Mesa after their dispute. Accordingly, I
find that the Respondent has met its burden of proving that it
would have terminated Santana even in the absence of union

31 Although Officer Acevedo testified that Santana admitted pushing
Matista, Acevedo was not present during the altercation. The evidence
from eyewitnesses who were at the scene establish that Santana merely
poked Matista in the shoulder.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 132
activity and shall recommend dismissal of this allegation of the
complaint.32
As noted above, Duran was one of the witnesses who ap-
peared at the hearing only after the General Counsel obtained a
district court order enforcing the subpoena. Duran testified to
several conversations with Luna regarding his subpoena. Ac-
cording to Duran, when he got the subpoena before Christmas,
he showed it to Luna and asked if he had to go. Luna told him,
“[N]o, that’s only if you want to.” Luna also told Duran that if
the union people or the lawyers kept bothering Duran, that
Luna would tell his attorney so they would leave Duran alone.
Duran also testified that Luna asked him whether the other
reluctant witness, Ordoñez, was still going to union meetings,
and if Ordoñez was going to go to court. Duran testified that,
on January 10, Luna told him he had to go to court and that he
would pay Duran $100 for the day if he went to court. Duran
normally makes $5.15/hour. According to Duran, Luna started
to get the money out of the safe, then stopped and said, “[W]ait,
no, don’t go.” Duran did not appear at the hearing on January
11 or 12 and, as noted above, Luna represented in court on
January 12 that Duran had quit. According to Duran, he was
working that day and Luna told him that night that he had said
in court that Duran quit. He told Duran not to come to work the
rest of the week, that he would pay him for those days, and to
return on the following Sunday. Duran recalled that Luna then
reviewed each of the alleged discriminatees and told Duran the
Respondent’s version of why each was fired or transferred.
Duran had no personal knowledge of any of these things. Ac-
cording to Duran, Luna told Duran to say these things at the
hearing. Luna also told Duran to go to court on January 28,
which was the original date scheduled for the resumption, and
that he would give Duran a gift if he went. Luna did not deny
meeting with Duran and talking to him about the subpoena.
According to Luna, Duran’s mother complained to him that
Duran was under a lot of pressure from the lawyers to go to
court and his family did not want him to get involved because
he was only a kid. Luna claims that it was Duran’s mother who
asked him to fire Duran so that he wouldn’t have to go to court.
Luna testified that he told Duran that he had to go to court.
Luna testified further that, when Duran told Luna that he was
not going to go, Luna told him not to come to work because he
did not want to be accused of hiding Duran. Luna acknowl-
edged offering to give Duran $100 if he would go to court, but
he claims he told Duran that he would have to tell the truth.
The day after Duran finished testifying and was excused as a
witness, the General Counsel moved to further amend the con-
solidated amended complaint to allege that the Respondent
violated Section 8(a)(1) of the Act by directing employees not
to appear before the Board to give testimony in this matter and
by directing employees to testify as instructed by the Respon-
dent. The General Counsel also sought to allege that the Re-
spondent violated Section 8(a)(4) of the Act when it “temporar-

32 The fact that the termination was not effectuated until 5 hours after
the incident is explained by Santana’s refusal to accept Matista’s au-
thority to fire him. By alleging that Matista is a supervisor within the
meaning of the Act, the General Counsel essentially concedes that
Matista had such authority.
ily laid off” Duran from January 14 through 16, 1999. These
allegations were based upon the testimony of Duran. I denied
the General Counsel’s motion to amend on due process grounds
because, by waiting to amend the complaint until after a reluc-
tant witness had been excused, the General Counsel had effec-
tively deprived the Respondent of an opportunity to cross-
examine the witness regarding these allegations. Although I am
troubled by the egregious nature of the alleged unlawful con-
duct and the total disregard for the Board’s proceedings demon-
strated by Luna, I shall adhere to my ruling and make no unfair
labor practice findings based on Duran’s testimony as to his
meetings with Luna after he received his subpoena. I have con-
sidered this testimony, which I found credible, in making my
credibility resolutions. As noted above, Luna himself lied in
open court when he asserted that Duran had quit and was no
longer employed at the store. Such a cavalier attitude toward
the truth was in marked contrast to the testimony of most of the
General Counsel’s witnesses who appeared to testify truthfully
to the best of their ability regarding events that occurred many
months before the hearing. It is expected that the remedy for
those unfair labor practices found above will act as a deterrence
to the Respondent from committing further violations of the
Act and a reminder to the employees that their rights can be
vindicated through Board proceedings.
CONCLUSIONS OF LAW
1. By interrogating employees concerning their union activi-
ties and the union activities of other employees; by interrogat-
ing employees concerning their cooperation with the Board’s
investigation; by threatening employees with a reduction in
their work hours and discharge if they support the Union; by
directing employees not to join or support the Union; and by
directing employees to report on the union activities of other
employees, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. By discharging Ruddy Rodriguez, Juan Rodriguez, and
Alba Cortes because they joined or supported the Union, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
3. The Respondent has not violated the Act in any other
manner alleged in the consolidated amended complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]