Rosauer's Super Markets, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 824 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosauer's Super Markets, Inc. and United Food and
Commercial Workers Local 242, affiliated with
United Food and Commercial Workers Union,
AFL-CIO. Cases 19-CA-11513 and 19-RC-
9311
September 30, 1981
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 16, 1980, Administrative Law
Judge Frederick C. Herzog issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief and the
General Counsel filed a brief supporting the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Rosauer's
Super Markets, Inc., Missoula, Montana, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Produrct
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
Member Jenkins concludes that where the asserted reasons for tihe dis-
charge of an employee are discredited and found to he false or pretextual,
as is the case here. there remains only the unlawful motive as the cause
of the discharge, and no separate evaluation of dual or mixed lawful and
unlawful motives is appropriate. Consequently, he does not adopt the Ad-
ministrative Law Judge's reference to Wright Line, a Division of Wrighl
Line. Inc., 251 NLRB 1083 (1980), because that decision is directed at
separating and evaluating dual or mixed motives, lawful and unlawful.
which are genuine or real, which a pretextual or false motive by defini-
tion cannot be,
In accordance with his dissent in Olympic Medical Corporation. 250
NLRB 146 (1980), Member Jenkins wsould award interest on the backpay
due based on the formula set forth therein.
DIRECTION
It is hereby directed that the Regional Director
for Region 19 shall, within 10 days from the date
of this Decision, open and count the challenged
ballot of Connie Frost, and thereafter prepare and
cause to be served on the parties a revised tally of
ballots, upon which basis he shall issue the appro-
priate certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge, layoff, or other-
wise discriminate against any employee for en-
gaging in union activities or giving aid or sup-
port to any labor organization.
WE WILL NOT promulgate, maintain, or en-
force a rule prohibiting employees from solicit-
ing on behalf of any labor organization at any
time while on our premises.
WE WILL NOT interrogate employees about
their own or others' union activities, sympa-
thies, or leanings.
WE WILL NOT create the impression that
your activities on behalf of United Food and
Commercial Workers Local 242, or any other
labor organization, have been or are under sur-
veillance.
WE WIL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights as set forth
above, which are among those protected by
the National Labor Relations Act.
WE WILL offer Connie Frost immediate and
full reinstatement to her former position of em-
ployment or, if that position no longer exists,
258 NLRB No. 111
824
ROSAUER'S SUPER MARKETS. INC
to a substantially equivalent position. without
prejudice to her seniority or other rights and
privileges previously enjoyed.
WE WtI.L make Connie Frost whole for any
loss of pay she may have suffered as a result of
our discrimination against her, with interest.
ROSAUER'S SUPER MARKETS, INC.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge:
On June 18, 1979,' United Food and Commercial Work-
ers, Local 242, affiliated with United Food and Commer-
cial Workers Union, AFL-CIO (hereinafter called the
Union), filed the charge in Case 19-CA-11513 against
Rosauer's Super Markets, Inc., alleging violations of Sec-
tion 8(a)(1) and (3) of the Act including, among other
things, the discharge of its employee, Connie Frost. The
Union had previously, on May 2, filed a petition in Case
19-RC-9311 for an election in a unit of deli salesclerks
at the Missoula, Montana, store of Rosauer's Super Mar-
kets, Inc. (hereinafter called the Respondent). Pursuant
to a Stipulation for Certification Upon Consent Election,
the Regional Director for Region 19 of the National
Labor Relations Board conducted an election on June
20. Of approximately five eligible voters, two cast votes
in Case 19-RC-9311 in favor of the Union (the Petition-
er therein) and two cast votes against the Union. One
ballot was challenged, that being the ballot of Connie
Frost, the alleged discriminatee in Case 19-CA-11513.
On August 6, the Regional Director issued a complaint
against the Respondent alleging violations of Section
8(a)(1) and (3) of the Act, including the illegal discharge
of Connie Frost. On that same day the Regional Direc-
tor issued his order consolidating cases and notice of
consolidated hearing in Cases 19-CA-11513 and 19-RC-
9311. The Respondent's answer made certain factual ad-
missions but, generally speaking, denied the commission
of all wrongdoing.
The case was heard before me at Missoula, Montana,
on February 21 and 22, 1980. All parties appeared at the
hearing and were given full opportunity to participate, to
adduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs were
filed on behalf of the General Counsel and the Respond-
ent, and have been carefully considered.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find
that the Respondent is a State of Washington corpora-
tion2 having an office and place of business located in
Unless otherwise indicated. all dates herein shall refer to the year
1979.
2 As the Respondent's answer adds, its headquarters and general offices
are in Spokane. Washington
Missoula. Montana, from which. during the 12 months
preceding the issuance of the complaint, it sold goods
and services valued in excess of $500,000. and purchased
goods and materials either directly or indirectly from
sources outside the State of Montana having a value in
excess of $50,000. Accordingly. I find that the Respond-
ent is, and at all times material herein has been, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It. ITHE I ABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Union is now and has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111. THE RESPONDENT'S AGENTS AND SUPERVISORS
The complaint alleges, the answer admits, and I find
that Harold Martz. a store manager, Felix W. "Phil"
Dunlap, a restaurant and delicatessen manager, and Tom
Sullivan, assistant store manager, have been agents of the
Respondent acting on its behalf and supervisors within
the meaning of Section 2(11) of the Act.3
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Admitted Unfair Labor Practices
At the hearing herein, the General Counsel amended
the complaint in certain respects, and the Respondent
amended its answer in certain respects. As the parties
agreed, the net effect of these amendments was to isolate
and limit the hearing before me to a single basic issue,
that is, the legality of the discharge of employee Connie
Frost.
Specifically, the Respondent's answer was amended to
admit the truth of the following allegations:
5. At the end of February, 1979, [the] Respondent,
by and through its agent Harold Martz, verbally an-
nounced to employee Chuck Harbridge, an employ-
ee of the meat department and union steward for
the meat department employees represented by the
union, that he could not at any time discuss or solic-
it on behalf of the union on the premises of [the]
[R]espondent's facility at Missoula, Montana, and
since that date has continued to promulgate, main-
tain and enforce the rule.
6(a) At the end of February, 1979, through its agent
Sullivan, [R]espondent interrogated employee
Chuck Harbridge, an employee of the meat depart-
ment of [the] [R]espondent's facility at Missoula,
Montana and union steward for the meat depart-
ment employees employed at [the] [R]espondent's
facility, as to what reason he supported unionization
of the employees employed in the deli department
of [the] [R]espondent's facility.
a The Respondent's notation of the starting date of Felix W.' "Phil"
Dunlap as April I was accepted by the General Counsel.
X825
I)ECISIONS OF NATIONAL LAB()R RElATIONS O()ARI)
6(b) In late April, 1979, through its agent Phil
Dunlap, [the] [R]espondent created an impression
among its employees that their union activities were
under surveillance by [the] [R]espondent by telling
employee Steven Cure, an employee of the meat de-
partment of [the] [R]espondent's facility at Mis-
soula, Montana, and a member of the union that he
knew who was behind the union movement.
In addition to admitting the truth of these factual alle-
gations, the Respondent amended its answer to admit
that by the acts described in paragraphs 5 and 6, and by
each of said acts as stated in paragraphs 5 and 6 (set
forth above as pars. 5, 6(a), and 6(b) of the amended
complaint), the Respondent did engage in and is engag-
ing in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(1) and 2(6) and (7) of the
Act. I agree and so find.
B. The Discharge of Connie Frost
1. Background
The Respondent opened its Missoula store, of the type
commonly known as a supermarket, in December 1978,
with Martz as the store's manager and Sullivan as the as-
sistant manager. Ultimately, there were around 90 em-
ployees in the store's seven departments, some 35 of
whom were assigned to the store's restaurant and delica-
tessen department. Of the 35 employees in the depart-
ment, 6 worked as salesclerks in the delicatessen, under
the supervision of Dunlap.4 Connie Frost was one such
employee.
When the store opened, no unions secured representa-
tional rights, despite their overtures to Martz. But as
spring approached, the Union began an organizational
effort among the delicatessen's salesclerks. As noted ear-
lier herein, a petition for a representation election was
filed on May 2 and, pursuant to the parties' stipulation,
an election was scheduled to be conducted on June 20
among the store's delicatessen salesclerks. Frost, whose
right to cast a ballot in the election is in controversy
here, was recognized by Martz and Dunlap s as a prime
and outspoken supporter of the Union.
But, before the election, on June 9, Frost was fired by
Dunlap, with Martz' authorization. The General Counsel
contends that she was fired in retaliation for her sympa-
thies and activities in support of the Union. The Re-
spondent contends that Frost was fired for insubordina-
tion,6 adding that her penchant for "bitching" and her
creation of "disharmony" among fellow employees7 were
also factors leading to her discharge.
Dunlap's credibility here, as throughout his testimony, was harmed
by his attempts to evade and equivocate.
I Dunlap had an assistant during May. The assistant's name was Harold
Enger.
6 Defined. after much backing and filling, by Dunlap as, "O.K. pre-
cisely it is telling me to kiss her ass, that she wouldn't take a day off
without pay."
Frost's coworkers in the deli ere Roxanne Phillips (Morigeau),
Patty Vennes, Caroline Johnson. Mary Marose. and, during the latter
part of her tenure. Sharon Ward.
The deli salesclerks generally worked according to a
schedule posted by their supervisor. Sometimes the
schedule was posted as early as Wednesday, though the
more common practice was for it to be posted on Thurs-
day or Friday. The schedule covered a period corre-
sponding with the orkweek decided on by the Re-
spondent for payroll purposes; i.e., Sunday through Sat-
urday. Generally speaking. there were three "shifts."
The "morning" shift usually began about 7:30 and ran
until approximately 3 p.m. Other employees came in for
what was called the "afternoon" shift, which generally
ran from as early as 10 a.m. or as late as noon until
sometime between 6:30 or 8:30 p.m. And, finally, there
was the "evening" shift which ran from approximately 2
or 3 p.m. until the store's closing time, around 9:30 or
10:30 p.m. While the store initially had so many employ-
ees in its delicatessen that it was unable to give its em-
ployees sufficient work to keep them happy, it reduced
its sales force to six around the time the events with
which this case is most directly involved began to
unfold. After the sales force was reduced to six, the su-
pervisors, including Dunlap, experimented with various
concepts of scheduling, such as a permanent schedule or
a rotating schedule. However, I am unable to conclude
from the evidence that any "system" ever evolved or
was fully implemented aside from management's attempts
to follow the wishes of the six sales clerks as nearly as
possible while keeping an adequate work force in the
store.
Moreover, I am unable to conclude that the evidence
herein demonstrates that there was any set pattern which
the Respondent required before allowing its employees
to agree to switch shifts with one another. Much was
heard about the necessity to avoid scheduling overtime
but little concrete evidence was placed into the record.
Indeed, even the Respondent's witnesses in this regard
appeared to me to either expressly or tacitly admit that it
was somewhat the norm for employees to agree on
switches in their schedules, both before and after the
proposed work schedule was posted by the supervisor,
and then to receive approval therefor on a sort of pro
forma basis.9 The parties seemed agreed that Frost and
Vennes did a great deal of switching, as well as that
Phillips also switched a good deal, though to a lesser
degree. While other employees testified that Frost, in
effect, made something of a nuisance of herself by re-
peatedly approaching them and asking them to accom-
modate her desires to switch, it is also clear, from the
record as a whole, that no difficulty was encountered by
any employee who simply declined her requests to trade
shifts.
I remain mindful. however, of such legitimate desires of the Respond-
ent's management as avoiding the scheduling of untrained personnel to
work in jobs or times for which they might be unsuited, or to avoid
"scheduling overtime."
I also bear in mind that the record contains much about the notice
posted by Dunlap (Resp. Exh. ) in structing employees to work the
hours scheduled. and to seek approval before actually switching shifts.
ttols-ever, my sense of the record as a whole is that Dunlap attempted to
"tighten up," not that he was delineating a new policy or explaining a
"firing offlene "
826
ROSAUIKR'S SUPER MARKILTS. INC
And, finally, it is clear that, whatever Frost's problems
may have been in interpersonal relationships with each
and every fellow employee, she was regarded by the Re-
spondent as a generally satisfactory employee until the
very end of her tenure.
2. The events of June 6-9
The facts at the core of this case began to occur on
Wednesday, June 6. On that day Frost asked Phillips to
switch shifts with her for the following Sunday, June 10.
Of course, neither knew with certainty what hours they
would be scheduled to work on that day, since Dunlap
generally did not post the following week's schedule
until Thursday or Friday. But both deemed it reasonable
to conclude that they would work the same shifts they
would been regularly working on Sundays.
And it would seem logical for them to have done so,
based on my review of the schedules in evidence" which
indicates a clear pattern in each Sunday's work schedule
so far as Frost or Phillips was concerned. In this light,
Frost explained to Phillips that she wanted to get off
work earlier on Sunday, June 10, so that she could
attend graduation ceremonies at the local campus of the
University of Montana, and a party in connection there-
with. Phillips readily agreed to accommodate her. Fur-
ther, since Frost was not scheduled to work on either
Thursday, June 7, or Friday, June 8, Phillips also agreed
to be the one to seek permission from Dunlap to effectu-
ate their still tentative agreement to switch.
Phillips'2 followed through with her agreement and on
Thursday asked Dunlap for permission to switch shifts
with Frost on Sunday, June 10. She told Dunlap why
Frost desired the switch with Frost. Dunlap, however,
turned down the request, saying that Frost had switched
too often in the near past.' 3
On Friday, June 8, Frost came into the deli, though
not to work. Instead, she spoke with Phillips and learned
that Dunlap had denied the request to switch on the
grounds that she, Frost, had requested switches too
often.
"' Frost acknowledged that she switched with V'ennes just he day
before, Tuesday, June 5. She did so in order to keep a dental appoint-
ment she made in apparent reliance on a "model schedule" shown her by
Dunlap a few days earlier. I do not credit Dunlap's testimony that this
switch was made without management's approval. My failure to credit
Dunlap's testimony in this respect is based on the same considerations set
forth at a later point herein, and which cause me to reject his testimony
in its entirety.
" Included herein is Resp. Exh. 4. I reverse my ruling at the hearing
excluding it from evidence. A review of the schedules from late April
through June 10 shows that Frost was scheduled to work the "after-
noon" shift on the Sundays shown (April 29. May 13. 20. anid 27. and
June 3). A similar review shows Phillips scheduled to always work the
"morning" shift on the Sundays shown (which added June 10 to those
enumerated above in connection with Frost). Under this regimen, Frost
began work anywhere from 10 a.m. to noon and ended her workday
from 6:30 to 8:30 p.m. Phillips. on the other hand, always began at 7:30
a.m. and worked until 3 p.m.
12 Phillips' testimony is worthy of credence. She appeared to e a care-
ful, sincere witness, making a genuine effort to avoid shading her testimo-
ny in favor of or against any party.
m' When Phillips spoke with Dunlap to request the switch. the spork
schedule for the following week, beginning Sunday, June 10, had not yet
been posted by Dunlap
Thus, for the first time, Frost spoke to Dunlap about
the switch. To do so, she walked over to the restaurant
a few feet away. and found Dunlap sitting in a booth
with Phyllis Wassinger. " unlap agreed to talk with
Frost about the proposed schedule switch. But despite
Frost's recital of her reasons for desiring to switch, and
her noting the fact that she had secured agreement from
a fellow employee, Dunlap refused her request and told
her he was not going to allow any more changes in
scheduling. Frost argued with him, including in her ar-
gument that he had no good reason to deny the request.
However, Frost was unsuccessful in changing his mind.
so she left. going over to the bakery department to speak
to all employee there.
After a while. Frost walked back to Dunlap's office
where she asked him if he had said his final words on the
matter. She testified credibly that he became very angry
then, telling her to simply take the day off if she really
wanted it. She responded that she could not afford to
take the day off (rather than simply switch schedules),
since that would involve the loss of a day's pay. They
were then interrupted, so she again left, but going home
this time.
The parties dispute whether the work schedule was
posted for the following week before or after the second
conversation Frost had with Dunlap on Friday, June 8.
But, whenever it was posted in relationship to the timing
of the second conversation Dunlap had with Frost that
day. it is clear that sometime after Frost had left the
store that day, Phillips observed the schedule, finally
posted. Frost had not seen it before leaving. Phillips
noted that she retained her usual schedule but that Frost
had been switched to work the night shift, rather than
the afternoon shift.
Later, Phillips had another conversation with Dunlap.
who was again seated in the restaurant, though this time
with Caroline Johnson. Dunlap inquired whether or not
" The record contains some esidence that another person. the store's
meat department manager. Hoh Hill, was present at the outset of this con-
versaltion, hut that he left immediately. I do not deem the record ade-
quate to warrant my drawing an adverse inference from the Respondent's
failure to call him to estify. Additionally, it is unclear just howv much
Wassinlger overheard. Dunlap himself contradicted her testimony that she
\.a:1s even present. Though called as a witness by the Respondent. Was-
singer's testimony lacked either clarity or conviction, much less certainty.
making it difficult to credit her in any area of conflict.
" Wassinger did not support the Respondent's claim that Frost used
profanity Iowa;rds Dunlap in this conversation for. as Wassinger testified.
all that Wassinger recalled. even though prompted, was "It might have
been 'damn' [that Frost uttered] or something like that." Dunlap's own
testinmony wals so evasive and internally inconsistent that it cannot be said
to credibly support the Respondent's claim in this respect. And certainly
the testimony of Enger that Frost uttered the svord "Shit!" at some time
in the past cannot support the Respondent's claim in this connection
Frost herself denied that she ever spoke profanely toward a supervisor.
including Dunlap. or in front of customers; she admitted. however. that
she (ccasionally uttered thie word "Shit!" "absentmindedly," while she
was "doing trays." and that she may have been overheard in this by
fellos employees. Frost's account seems corroborated by Phillips. who
testified that Frost nelcsr %.wore i frlont of a customer. but may have said
"Shil!"'' or "God damn" under her breath, just as "whatever anybodS
says . . t ,,as nothing anyhody .ould he offended by. I swould think
And, ;is Respondent's witnes. Ward. testified. Frost may have said
"Dalmn," hut then. "All of us sore, actul:all
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARDI
Frost had seemed "upset" to Phillips. Phillips responded
affirmatively. 6
And still later, Phillips spoke to Dunlap again. They
were alone in the restaurant. Dunlap, seeming agitated,
confided in her that Frost was "going down the road."
Though he had cautioned her to say nothing about what
he told her, Phillips did so, telling Patty Vennes at a
union meeting they attended that night. She did not,
however, think it appropriate to then tell Frost what she
had heard, since she hoped that Dunlap would "calm
down" and not go through with his stated intention to
fire Frost.
Phillips' hope proved to be in vain, however. For
Dunlap determined to fire Frost, in my opinion, on June
8, a Friday. Not only did he discuss it with Phillips, he
also talked it over with Martz. I reach this conclusion
based on the admissions contained within Dunlap's testi-
mony, as corroborated by Martz, who testified to Dun-
lap's recommendation to him at lunch on Friday that
Frost be fired. Martz testified that he instructed Dunlap
to try again to resolve the situation. But even Martz'
instructions to seek a resolution short of firing were un-
heeded, for Dunlap admitted "I think basically I had
made up my mind that I was going to terminate her at
that point," referring to the time when he arrived at the
store on Saturday, June 9. Moreover, even before Frost
arrived to work the night shift Dunlap had arranged for
another employee to work Frost's shift. He also talked
with the store's assistant manager," Tom Sullivan, and
told him about "this insubordination bit," and said to him
"I am just not going to cope with it and I want to let her
go down the road." He and Sullivan then made out the
papers necessary to effect the termination of an employ-
ee.
Frost arrived, as scheduled, in midafternoon. And
Dunlap claims that he decided to allow her to work out
the shift. But upon her arrival Frost saw the schedule for
the first time and, seeing that she had been scheduled to
work the night shift the next day, rather than the after-
noon shift she had been trying to switch away from, she
went and confronted Dunlap, who was again seated at a
booth in the restaurant. She protested the switch to the
night shift as a result of her attempt to switch to the
morning shift. She asked if he would try to let her at
least have her original shift back, so she could attend a
portion of the party on Sunday. Dunlap responded that
he would take a look at the schedule. Dunlap claimed,
without credence, that during this confrontation near the
checkout stands, Frost exclaimed to him that he could
"kiss her ass," and that it was this statement, tantamount
to "insubordination" in his mind, which provoked him
into going to Sullivan and arranging the final details of
Frost's termination.
6 She also advised Dunlap that she had been willing to switch with
Frost so long as Frost had the afternoon shift, but that she did not wish
to switch and take the night shift.
' Whether this occurred before or after Frost's arrival for work is un-
clear from Dunlap's contradictory and shifting testimony. Sullivan was
not called to testify.
" In this instance, as in all other instances where conflict appeared be-
tween the testimony of Frost and Dunlap and/or Enger, I have deter-
mined to credit Frost. While she doubtlessly had a keen interest in the
outcome of this case, and proved unable to resist the urge for hyperbole
That evening she noticed that he had gone home with-
out fulfilling his promise to look at the schedule. So she
phoned his home and asked if he had forgotten to re-
spond to her. He said he would be in the store later.
And he did come to the store later that evening. He
had a letter with him from another employee who had
quit, apparently in protest of Dunlap's "leaked" plan to
fire Frost. He announced he was letting her go, that she
could work the rest of the shift, that there was no one
willing to switch shifts with her, and there was nothing
he could do to reschedule her. She asked if she was cor-
rect in understanding that she was being fired for re-
questing a switch. He responded affirmatively, but added
that other reasons also entered into his decision, such as
causing dissension by griping to other employees, and by
being discourteous to customers. She admitted that she
then called him a liar and claimed that he was making
her a scapegoat because of the Union, all of which he
denied. Finally, unable to persuade him to change his
mind, she left the store.
3. The question of animus
As previously found herein,'9 the Respondent commit-
ted certain unfair labor practices in late February and
early April. And, while it is possible to draw therefrom
some inference of hostility toward the idea of collective
bargaining by the Respondent, I need not do so here.
Contrary to the Respondent's argument, I find the evi-
dence of animus by the Respondent's active agent,
Dunlap, to be damning, as well as far more relevant to
the issues arising from Frost's discharge. For it is clear
that it was Dunlap who decided to fire Frost, and it was
Dunlap who arranged events so that Frost's molehill was
provoked into appearing to be a mountain.
Specifically, in late April employee Stephen Cure was
told by Dunlap that the identity of the person(s) behind
the unionization effort was known, and that he (Dunlap)
would not "put up with" a union in his kitchen.20 And,
in late May Frost was told by Dunlap that if the delica-
tessen "went union," they would be forced to curtail the
practice of interchanging kitchen and delicatessen work-
ers, 2t which had served as a means of relieving overloads
in work. And, finally, in early June, employee Patty
Vennes was told by Dunlap that, if the Union was elect-
ed to represent them, the employees would no longer
enjoy the benefit of switching work back and forth with
the kitchen's personnel. Dunlap went on to tell Vennes
that he did not think the Union would do employees any
good. 22
These remarks by Dunlap are not found here to be un-
lawful, in light of the parties' stipulations limiting the
issues before me. But such sentiments as were expressed
by Dunlap evidence his own dislike for and animus
toward the advent of the Union. And, further, the Re-
in a few instances during her testimony, I was persuaded that she was
seeking to tell the truth, and that her recollection. while imperfect. was
far superior to either Dunlap's or Enger's.
'" See sec. IV,A, supra.
1' Based on the credited testimony of Cure.
" Based on the credited testimony of Frost.
' Bsed on the credited testimion, of Venes
828
ROSAUER'S SUPER MARKETS, INC.
spondent must bear the burden of Dunlap's animus and
discriminatory motivation where, as here, it was such
considerations which caused Dunlap to set out to be rid
of Frost. For where a supervisor's actions are based on
motives which are illegal, and the employee suffers as a
result, it is the employer which bears responsibility there-
fore. Bechtel Corporation, 195 NLRB 1013, 1020 (1972).
The Respondent's management was undoubtedly
aware that it could prevent a majority of ballots from
being cast in favor of the Union in the election then
nearing if it succeeded in eliminating the vote of one
union supporter. For Martz testified that, in the unit of
six employees, Marose and Johnson were known to be
opposed to the Union, so much so that he likened their
opposition to the Union to Frost's advocacy of the
Union. Further, employee Ward did not begin her em-
ployment with the Respondent until after the payroll eli-
gibility date had already run. Thus, it was simple to
deduce that, absent Frost's ballot, the Union had no
mathematical possibility of receiving a majority of the
ballots in the unit. Under these circumstances, Frost
could only be viewed as an inviting target. Such a view,
in my opinion, was easily translated into animus toward
the Union by Supervisor Dunlap.
4. Conclusions
The Respondent has either produced evidence, argued,
or hinted at a veritable "laundry list" of offenses by
Frost, inter alia, (a) failure to respect and follow Dun-
lap's "Notice" regarding curtailing the practice of
switching, (b) griping about the job, (c) causing dissen-
sion among fellow employees, (d) promoting disharmony
among her fellow employees, (e) using profanity on the
job, including the use of such language toward manage-
ment personnel or in front of customers, (f) use of the
phone for personal business while at work, (g) visiting
employees in other parts of the store instead of remain-
ing at her station, (h) causing management to "schedule
overtime," (i) switching shifts too frequently, (j) refusing
to take "no" for an answer regarding the June 10 switch
she desired, (k) general discourtesy to customers, and, (I)
finally, her "insubordination" of June 9 in allegedly tell-
ing Dunlap to "kiss her ass," 23 which he described as the
"primary" reason for her discharge."24
ZJ I recognize that I have "grouped" certain of the offenses alleged to
have constituted straws on the Respondent's hack, but, in doing so. I be-
lieve that essential accuracy has been preserved. sufficient for the pur-
poses of this decision.
24 At some point, it would seem that an employer's attempts to prove
such a veritable "laundry list" of "just causes" for discharge, the majority
of which appear to have been mentioned merely in passing or as after-
thoughts, would be tantamount to "shifting defenses," and to warrant
similar inferences to he drawn therefrom about the validity and lawful-
ness of the employer's motivations. Compare Taft Broadcasting Company.
238 NLRB 588 (1978). This appears to me to be such a case, for despite
repeated opportunities to do so. Dunlap failed to even mention most of
these reasons when repeatedly asked to recite all of the reasons for
Frost's discharge. Instead, he recited a much abbreviated version of this
list, and stated his inability to recall any others. Thus, for example, I am
unpersuaded that any failure by Frost to live up to the terms of some sort
of "contract" to work nights as she had allegedly "agreed" to do on her
employment application. played any part in the decision to fire her. Nor
am I convinced that her alleged failure to abide by any "policy" set forth
in a personnel manual, merely shown to her once, could, or did, play any
part in her discharge.
First of all, there is absolutely no credible evidence in
the record that Frost, anymore than any other employee
who ever switched shifts, was ever responsible for a pay-
roll "foul up." Indeed, there is no indication that Frost's
"switching" caused or would have caused additional ex-
penditures by the Respondent.
Nor is there any reason to believe that she was ever
discourteous to a customer or that she caused service to
customers to lag. Sharon Ward's testimony might be
thought to indicate a contrary result, but the Respondent
cannot have Sharon Ward's status both ways. On the one
hand, Ward was presented as a "rookie" deli salesclerk,
too inexperienced to be trusted with the job of "closing,"
and therefore unable to be utilized by Dunlap to enable
Frost to switch her June 10 shift with Phillips. However,
in presenting Ward's testimony about Frost's work defi-
ciencies, the Respondent seems to invest her with exper-
tise about the workings of the deli. I am unpersuaded, es-
pecially in view of my unfavorable impression as to her
credibility, caused by the leading and suggestive nature
of the questions put to her, and Ward's pronounced bias
against Frost.
Similarly, the testimony of Johnson, Ward, and Was-
singer fails to persuade me that Frost used profanity to a
degree not freely and widely tolerated by management.
Or that Frost's griping, or causing dissension or dishar-
mony is anything other than a makeweight for Dunlap's
action, in the nature of an afterthought.
Thus, I am left to consider whether or not I believe
that Frost was fired for failing to heed Dunlap's instruc-
tions to avoid switching schedules, for making too many
switches, or for being insubordinate in connection with
her discussions with Dunlap.
This latter reason is patently false, even ludicrous. For
while Frost obviously might be expected to exhibit cour-
tesy, and to refrain from cursing her supervisor, much
less inviting him to kiss her ass when discussing a work
related matter, it is equally obvious that, even if it could
be presumed that she transgressed in these respects
(which I do not), it played no part in the decision to fire
her. It was merely an afterthought, added to the litany of
reasons already mentioned, and differing only in that it
was labeled as "primary" by the man who made2 5 and
effected the decision. For how could her invitation to
kiss her ass have been the "primary" reason for arriving
at a decision which was reached (at least from the Re-
spondent's viewpoint) anywhere from several hours to
roughly half a day prior to the incident's occurrence?
And, as shown previously herein, I need not rely on
even the admissions of Dunlap on this point, for it ap-
pears that Dunlap virtually "broadcast" his intent to fire
Frost even before he began to discuss the matter with
upper management at the store. Of course, neither Martz
nor Sullivan was shown to have been aware of Dunlap's
deviousness in this regard, but their lack of knowledge
cannot be used to excuse the Respondent's culpability. 26
2' The record is clear that Martz'. or even Sullivan'. know ledge of
Frost's offenses was derived solely from the recitals provided by Dunlap.
Their approval of the decision to discharge was certainly not based upon
an independent evaluation of her alleged offenses
2' See Bechtel Corporation. upra.
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Instead, it is my opinion that Dunlap's utter lack of
credibility when testifying,2 7 added to the unconvincing
and hollow litany of additional reasons for Frost's dis-
charge, evidences a desire to conceal the true motives
for Frost's discharge. First ANational Bank of Pueblo, 240
NLRB 184 (1979); Shattuck Denn Mining Corporation
(Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th
Cir. 1966). 1 am persuaded that Dunlap seized upon a
pretext, partially of his own invention, to use as an
excuse to fire Frost, a vocal union supporter and a key
voter in the upcoming election. Thus, given the compel-
ling good cause for the shift switch which he granted to
Vennes,28 and granting the employer's right to schedule
the work to go on as needed, there remains no valid
reason to simply provoke an incident with an employee
and then use the incident as a basis for discharge. For,
despite the existence of "good cause" for a discharge, an
employer may not utilize evidence which it has itself
built up as an excuse to effect the discharge of a union
enthusiast. United Aircraft Corporation v. N.L.R.B., 440
F.2d 85, 92 (2d Cir. 1971). Nor may an employer engage
in "watchfully waiting for . . . union enthusiasts to give
the . . . slightest reason or pretext to get rid of them be-
cause of their union activities." N.L.R.B. v. Lipman
Brothers. Inc.. et al., 355 F.2d 15, 20 (Ist Cir. 1966). And
there can be little doubt that Dunlap did, indeed, pro-
voke the incidents of Friday, June 8, and Saturday, June
9, with Frost. Why else his switching her to a shift dif-
ferent than she had been working regularly, 29 coupled
with his aside to Phillips asking whether Frost was
"upset" by the switch he had made? And why his prom-
ise to Frost to "take a look at the schedule," when he
was harboring no such intention and had, instead, al-
ready determined to send her "down the road"? It seems
plausible to me to conclude that Dunlap's sudden change
in "policy" regarding switching schedules, coupled with
his actions tending to allow Frost continued hope for her
request to be granted (such as his promise to look at the
schedule), were intended to provoke an incident or spat
with Frost. And, when such an incident occurred, it was
seized upon, even though it occurred long after the deci-
sion to fire Frost had been finalized.
Nor am I convinced that Frost's exasperated requests30
for a reason for Dunlap's denial of the switch on June 8
7 I am aware that supervisors sometimes testify nervously, apparently
feeling that it is they, or their integrity, which is on trial. But, that was
not the case here. Dunlap hedged, evaded, and dissembled throughout his
testimony. He repeatedly changed his testimony, apparently unwittingly,
even on such basic matters as the primary reason for deciding to fire
Frost, or what he said to her when he did so. His shifting testimony was
so noticeable that I was caused to urge him to consider his answers care-
fully. But he would not. Instead, he was repeatedly careless with details
and much given to generalities. When cautioned, or given an opportunity
to explain apparent inconsistency, he merely added another layer of in-
consistency. In short, I found his testimony not worthy of belief in any
instance other than an admission, or where independently corroborated.
2' Vennes' husband was to be awarded a degree in the baccalaureate
exercises of June 10.
29 Which, had it occurred in isolation, would be readily understanda-
ble, due to the necessary absence of Vennes.
" Which were based on my sense of the workplace gained from the
record as a whole, nothing out of the ordinary between Dunlap and
Frost. While Frost probably exceeded the bounds of propriety I doubt
that she exceeded the bounds of common practice. And certainly not so
much as to 5warrant firing, without warning, rather than a simple rebuke.
constituted valid cause for discharge. Instead, the sudden
intolerance for disagreement appears to support my view
that he wished to provoke an incident which he could
report to his supporters and use as a basis to be rid of
Frost. Such intolerance, differing from the norm, and
coinciding with union activities, gives rise to an infer-
ence that the Employer's stated reason for discharge is
false. All Brite Window Cleaning and Maintenance Service.
Inc., 235 NLRB 596, 602 (1977); The Youngstown Osleo-
pathic Hospital Association, 224 NLRB 574 (1976); Holi-
day Inn of America of San Bernardino (see Apico Inns of
California. Inc.), 212 NLRB 280 (1974), enfd. as modified
512 F.2d 1171 (9th Cir. 1975); Shasta Fiberglas, Inc., 202
NLRB 341 (1973).
Thus, for all the reasons set forth above, I find and
conclude that Frost's discharge was not motivated by
just cause, but was instead motivated by discriminatory
considerations having to do with her union sympathies
and activities as well as a desire to prevent her from
casting the decisive ballot in the approaching election.
For these reasons, it violated Section 8(a)(1) and (3) of
the Act, and requires a remedy providing that she be re-
instated to her former position and that she be made
whole for any losses of pay she suffered as a result of the
discrimination practiced upon her.3 t Additionally, it shall
be recommended that her ballot, which was challenged
in the June 20 election, be opened and counted.
Disposition of Challenged Ballot
Having found that Connie Frost was unlawfully dis-
charged because of her support and activity on behalf of
the Union, it is recommended that the challenge to her
ballot be overruled and that her ballot be opened and
counted, that a revised tally be furnished the parties, and
that an appropriate certification be issued.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(6) and (7) of the Act.
While Respondent sought to portray these incidents as having major sig-
nificance, I am unable to believe this premise. In my view, the testimony
of Johnson and Wassinger simply was not convincing, and, as noted earli-
er. Hill was not offered as a witness. Dunlap was incredible; he repeated-
ly confused one conversation with the other and could not even recall
consistently who was present or when the conversations occurred. And,
in this connection I note that Frost's activities were not shown to have
interfered with her own or other employees' work, or to be so motivated
by bad faith, an intent to harass or otherwise be so egregious as to
remove her from the protection of the Act. Cf. Markle Manufacturing
Company of San .Antonio, 239 NLRB 1353 (1979). Instead, I agree with
Frost's own account, which characterized her own activities as "overly
persistent" and nothing more.
:" On August 27, 1980, in Wright Line. a Division of Wright Line. Inc..
251 NLRB 1083, the Board announced a new "causation test" in 8(a)(3)
cases. By the terms of the new rule the General Counsel is required to
make a primna faci- showing sufficient to support the inference that pro-
tected conduct was a motivating factor in the employer's decision. As
shown above, I conclude that the General Counsel has done so in this
case. And, once this is established, the burden shifts to the employer to
demotnstrate that the same action would have taken place even in the ab-
sence of the protected conduct. Here, again, this decision is in harmony
with the Board's new rule, fr I have found the Respondent's defenses to
he false. UItconvincing, lame. incosisntent, and shiftintg.
830
ROSAUER'S SUPER MARKETS. INC.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Felix W. "Phil" Dunlap, Harold Martz, and Tom
Sullivan were at all times material herein supervisors and
agents of the Respondent within the meaning of Section
2(11) and (13) of the Act.
4. By discharging Connie Frost on June 9, 1979, be-
cause of her support and activity on behalf of the Union,
the Respondent has violated Section 8(a)(3) and (1) of
the Act.
5. By promulgating, maintaining, and enforcing since
late February 1979 a rule prohibiting employees from
discussing, or soliciting on behalf of, the Union at any
time while on the premises of the Respondent's facility at
Missoula, Montana, the Respondent violated Section
8(a)(1) of the Act.
6. By interrogating employees about their reasons for
supporting the Union, and by creating the impression of
surveillance among the employees of their activities on
behalf of the Union by telling them that the Respondent
knew who was behind the union movement among its
employees, the Respondent violated Section 8(a)(l) of
the Act.
7. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged
Connie Frost, I find it necessary that the Respondent be
ordered to reinstate her to her former or substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, dismissing, if necessary,
anyone who may have been hired to perform the work
which she was performing at the time of her severance
on June 9, 1979. Additionally, the Respondent will be or-
dered to make Connie Frost whole for any loss of earn-
ings she may have suffered by reason of her unlawful
termination. Backpay is to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).32
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER3 3
The Respondent, Rosauer's Super Markets, Inc., Mis-
soula, Montana, its officers, agents, successors, and as-
signs, shall:
2 See,. generally. Iis Plumbing d Healing Co.. 138 NLRB 716 (1962).
See also Olympic Medical Corporation. 250 NLRB 146 (19R0).
' In the event no exceptions are filed as provided h Sec 102.46 of
the Rules and Regulations of the National Lahor Relations Board. the
findings, conclusions. and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. he adopted by the Board and
I. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment because of their activities on behalf of a labor orga-
nization or for engaging in any activity protected by
Section 7 of the Act.
(b) Promulgating, maintaining, or enforcing a rule pro-
hibiting employees from soliciting on behalf of a labor
organization at any time while on the premises of the
Respondent's facility at Missoula. Montana.
(c) Interrogating employees about their reasons for
supporting a labor organization, or creating the impres-
sion of surveillance of their union activities among em-
ployees.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Connie Frost immediate and full reinstate-
ment to her former, or substantially equivalent position
of employment if her former position of employment no
longer exists, without prejudice to her seniority or other
rights and privileges, and make her whole for lost earn-
ings in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Missoula, Montana, facility copies of the
attached notice marked "Appendix." 34 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 19-RC-9311 be
severed from Case 19-CA-11513 and be remanded to the
Regional Director for Region 19 for the purpose of
opening the challenged ballot of Connie Frost, which
challenge has been overruled and, thereafter, to issue a
revised tally of ballots to the parties, and the appropriate
certification.
become its findings. conclusions. and Order, and all objection thereto
shall be deemed waived for all purposes.
:" In the e'ent that this Order is enforced by a Judgment of a United
Sl;ates Court of Appeals. the ords in the notice reading "Posted hy
Order lif the Nalin;al Labor Relations Board" hll read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order f the Natilonal I ahor Relations Board"
831