Schnuck Markets

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 256 (N.L.R.B. 1991)

256
303 NLRB No. 34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In sec. III, A, of his decision, the judge inadvertently used the word ‘‘not’’
in the sentence which reads: ‘‘To accept Respondent’s argument that Jennings
is not a statutory supervisor under these circumstances would be inconsistent
with Respondent’s own long standing interpretation and application of its bar-
gaining agreement with the Union.’’ The Respondent argued that Jennings was
a supervisor.
2 In adopting the judge’s recommended remedy, we find that backpay should
be computed in the manner prescribed in Ogle Protection Service, 149 NLRB
545 (1964), rather than in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), as stated by the judge.
The Respondent excepted, inter alia, to that portion of the remedy requiring
it to offer Sunday manager on duty work to Jennings on the basis of his se-
niority. The Respondent argues that the collective-bargaining agreement is si-
lent as to the manner this work should be assigned and that it has the right,
under the bargaining agreement’s management-rights clause, to select whom-
ever it desires to serve as the Sunday manager on duty. We note, however,
that sec. 14.6 of the collective-bargaining agreement between Schnuck Mar-
kets, Inc. and the United Food & Commercial Workers Union Local 6655 pro-
vides in pertinent part as follows:
Work on Sundays and Holidays shall be on a voluntary and rotating basis
among qualified employees in the seniority classifications needed. A Sun-
day and holiday volunteer list will be posted by seniority classification
in each store in order to determine those employees who desire Sunday
and holiday work. This Sunday and holiday list shall be posted each four
(4) week period throughout the year. Employees may add their names to
the list at any time. If an employee elects to delete their name from the
volunteer list, they will be passed over that particular Sunday or holiday
until such time as they volunteer again. When said employee again places
their name on the volunteer list, they will be placed on the bottom of
the volunteer list and begin to work their way up through the rotation
process.
The collective-bargaining agreement thus establishes a system based on se-
niority for assigning employees to unit jobs on Sunday. The Respondent also
observes that the judge referred to a ‘‘correlation’’ between the duties of night
manager and those of Sunday manager on duty. The Respondent argues there-
from that, just as the night manager is a supervisor, the Sunday manager on
duty position should also be considered supervisory. We have affirmed, how-
ever, the judge’s conclusion that the night manager is not a statutory super-
visor. We note also the judge’s finding that the Sunday manager on duty bags
groceries—a function that, as found by the judge, supervisors are not permitted
to perform under the contract. 1 All following dates will be in 1989 unless otherwise indicated.
Schnuck Markets, Inc. and Thomas H. Jennings.
Case 14–CA–20596
May 31, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, RAUDABAUGH
On December 7, 1990, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Remedy2 and
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Schnuck Markets, Inc., St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Frenchette C. Potter, Esq., for the General Counsel.
Dennis G. Collins, Esq., of St. Louis, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in St. Louis, Missouri, on May 2 and 3,
1990. Subsequent to several extensions in the filing date,
briefs were filed by General Counsel and the Respondent.
The proceeding is based on a charge filed February 12,
1990,1 as amended, by Thomas H. Jennings, an individual.
The Regional Director’s complaint dated March 28, 1990, as
amended, alleges that Respondent Schnuck Markets, Inc., of
Bridgeton, Missouri, violated Section 8(a)(1) of the National
Labor Relations Act by interfering with an employee’s griev-
ance filing activities; threatening an employee with demotion
and loss of overtime work if the employee continued to as-
sert contractual seniority rights; telling an employee he was
being demoted because the employee filed grievances; telling
employees to remove dissident union literature from the store
bulletin board while permitting the posting of nonunion-relat-
ed literature; telling an employee he had been demoted be-
cause the employee filed a grievance; threatening an em-
ployee with unspecified reprisal if the employee continued to
discuss union activities with other employees; implying to an
employee he could no longer have every Saturday off be-
cause the employee filed grievances and engaged in union
activity; and maintaining and enforcing the contractual notice
posting provision selectively and disparately by prohibiting
the posting of dissident internal union literature while permit-
ting the posting of authorized union literature and nonunion-
related literature and violated Section 8(a)(3) of the Act by
demoting Thomas Jennings from his position of night man-
ager, by failing and refusing to reinstate Jennings to his
former position, and by failing and refusing to assign Jen-
nings overtime work as manager on duty on Sundays.
Upon a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the distribution and sales as a
retail grocery store with numerous locations in the St. Louis
area, including stores in Ballwin, Missouri, and Butler Hill
Road in St. Louis County, Missouri.
257SCHNUCK MARKETS
2 Art. 7, sec. 1(e) provides, ‘‘daily overtime shall be offered by seniority
and job classification within the store among the employees present and quali-
fied to do the work when the need for overtime arises. Scheduled overtime
shall be offered by seniority to employees qualified to do the work within the
store for the designated time.’’
It annually derives gross revenues in excess of $500,000,
and it annually purchases and receives goods and materials
valued in excess of $50,000 directly from points outside Mis-
souri. It admits that at all times material it has been an em-
ployer engaged in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also ad-
mits that the United Food & Commercial Workers Union
Local No. 655, chartered by the United Food & Commercial
Workers International Union AFL–CIO–CLC, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As noted, Respondent has various retail grocery stores in
the St. Louis metropolitan area, including one of its largest
stores at Ballwin, and a store on Butler Hill Road in St.
Louis County.
Thomas Jennings has been employed by Respondent for
22 years. In December 1987, Jennings was transferred to the
Ballwin store where he worked as a produce clerk until
March 1988 when he became night manager. On January 8,
1990, he was demoted to produce clerk but retained the same
rate of pay and hours. As night manager Jennings worked 48
hours a week from 10 p.m. until 6 a.m. Monday through Fri-
day nights, plus Sundays as produce clerk at premium pay
(1-1/2 times regular pay), until July 1989, when he was told
by Store Manager Steve Farigh that he would be limited to
40 hours a week. Jennings then worked Monday through
Thursday nights and Sunday in produce (with premium pay).
During the past 2 years, Jennings also worked as Sunday
manager on duty on two or three occasions.
At all times Jennings was a member of the United Food
and Commercial Workers Union, which represents all of Re-
spondent’s employees except the meatcutters, deli, and sea-
food department employees. The current collective-bargain-
ing agreement between the Union and Respondent is effec-
tive from June 19, 1988, to June 15, 1991. The agreement,
article 1.1, specifically excludes store managers and under
article 1.3 provides:
Under no condition shall supervisors or store managers
perform bargaining unit work, except in case of emer-
gency, such as Acts of God or other conditions beyond
the control of the Employer, and to the extent that they
may perform customer services. Customer services shall
not be constructed to including stocking, price marking,
truck unloading or building displays, or any other bar-
gaining unit work on a regular basis.
Division Manager Thomas Evett testified that no store
managers are in the Union, that all, except possibly one or
two comanager positions are held by employees who are
union members and that all department managers are union
members. The contract refers to the employers appointment
of employees to various department head positions such as
grocery manager, produce manager, head cashier, and frozen
food manager but does not appear to specifically refer to any
position of night manager. As pertinent, article 8.13 states
that department heads may exercise seniority to displace full-
time employees but may not displace another department
head and article 11.7 provides that a management leave of
absence, with no interruption of seniority, may be granted to
an employee accepting a management position.
Otherwise, it appears that Jennings and others with ‘‘man-
ager’’ titles (except the store managers) are routinely treated
under the contract regarding enforcement of its provisions
(for example, through application of seniority rights and the
grievance procedure), the same as employees in such classi-
fication as clerks.
On December 6, 1989, former employee Nathan Jones told
the new Ballwin store manager, Nick Collida, that he planed
to file a grievance over having to work nights, that he had
spoken to Jennings (who had been a shop steward at two
other stores), about filing the grievance, and that Jennings
told Jones he probably had a good chance at getting better
hours. Collida told Jones that Jennings did not have the right
to tell Jones he could file a grievance, and that Jones should
come to him before going to the Union about problems.
Several days later on December 11 Jennings went to see
Collida about the new schedule which showed that he was
not on the Sunday schedule (that allowed him to make an
extra $40 a week because of premium pay).
Collida told Jennings it was his responsibility to keep
costs down, that Jennings was making too much money to
work Sundays, and that Jennings would have to work Mon-
day through Friday nights. Jennings told Collida that the con-
tract allowed him to claim Sunday hours,2 and that he had
always worked Sundays. Collida responded by asked Jen-
nings if he really wanted to be night manager. Jennings re-
plied that he did want to be night manager and would not
voluntarily give it up, and if Collida wanted it, he’d have to
take it from him. Collida said he would not allow Jennings
to work Monday through Friday nights in addition to Sun-
days and he retained the schedule change that he had made.
On December 18, Jennings filed a grievance over the 8
hours premium pay that was denied him on Sunday, Decem-
ber 17.
On January 8, Union Business Representative Mary Guise,
Labor Relations Specialist Maureen Tedoni, District Manager
Tom Evett, Store Manager Collida, and Jennings met to dis-
cuss the grievance. Tedoni said Respondent was wrong and
would give Jennings 4 hours’ pay for December 17. Jennings
disagreed with how Tedoni computed the hours he missed
and said that to settle the grievance he was entitled to 8
hours’ more. Tedoni repeated her explanation, said it was a
fair settlement, and added that ‘‘a decision has been made
to replace you as night manager.’’ Jennings asked ‘‘why?’’,
and Tedoni cited the management-rights clause in the con-
tract. A discussion followed and Evett said they could not
keep Jennings on as night manager because he would con-
tinue to file grievances over not being allowed to work Sun-
days. Jennings said it was discriminatory because of his
grievance. Evett replied that he was not doing it because of
the grievance but to avoid grievance situations and added
that he hated grievance meetings, that they were a total waste
of time, and that they would find themselves back in the
same type of meeting.
On January 15, Jennings was demoted from his position
as night manager to a position as a full-time produce clerk.
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On January 18, the Union filed a grievance on behalf of Jen-
nings over his demotion.
In early January 1990, Jennings and employee Kurt
Kausler from the Butler Hill store prepared and distributed
letter-size literature addressed to all shop stewards in the St.
Louis area regarding an internal union vote on a fee increase
scheduled for a January 23 union meeting. The literature
prominently identified Local 655 as the subject but was criti-
cal of the Union’s incumbent leadership and it contained the
names and phone numbers of both Kausler and Jennings. No
election for union office was involved; however, it did state
that the next election would be in November and said the
time to get involved is now. Jennings posted this literature
at the checker, produce, and grocery timeclocks. Kausler
posted one specific notice at the bakery/produce and grocery
timeclocks, and in the upstairs lunchroom at his store and
also laid the material on the countdown room counter and
distributed it among employees during breaks and lunches
before and after his shift.
On January 19, Butler Hill Store Manager Tony Gordon
told Kausler to remove the literature Kausler had posted and
on January 21, Ballwin Manager Collida told Jennings to re-
move the literature he had posted.
At all times material, Respondent has maintained the fol-
lowing provision in its contract with the Union at article 7,
section 10:
Official notices authorized by the Local Union may be
posted on the store bulletin board. They shall not be
objectionable in nature.
Otherwise, the Respondent generally allows the posting of
such things as marriage and birth announcements, pool par-
ties, bowling parties, retirement parties, showers, thank you
notes, and various fund-raising announcements by the time
clocks and on the bulletin boards at its stores. It asserts,
however, that no ‘‘campaign’’ material either political or
union, is allowed.
On January 21, when District Manager Evett was visiting
the store, Jennings asked to speak with him and said that he
felt he should still be night manager. Evett told Jennings that
if he had not filed a grievance, he would still be night man-
ager and added that the Company was growing, that opportu-
nities were still there, and that he would be night manager
again.
On January 21, Jennings told Ballwin store comanager
Steve Wunsch he knew that the literature he had posted had
been taken to the comanager’s meeting that week. Wunsch
said the acting comanager had taken it to the meeting and
that Respondent seemed pretty interested in what Jennings
was doing and that there was quite a bit of discussion with
respect to the literature. Wunsch also told Jennings it would
not be taken lightly if Jennings was caught campaigning or
talking to employees in the store, whether on the clock or
not.
On February 9, Ballwin Produce Manager Skip Cross told
Jennings, who now was working as produce clerk, that he
had spoken with a union representative the previous day
about the grievances Jennings had filed regarding overtime,
removal from the night manager position, and other internal
union matters. Cross referred to Jennings’ running for union
office in November and said some people in the store sup-
ported Jennings and some did not. He then told Jennings
someone outside of the produce department had mentioned
that Jennings received every Saturday off (Jennings had se-
lected Saturdays as his day off when he was returned to
produce clerk on January 15). Cross said this bothered him
once he thought about it and he told Jennings he would start
rotating Saturdays among the produce clerks.
On Sunday, February 11, an employee less senior then
Jennings was assigned overtime hours as manager on duty.
On February 15, February 19, and February 26, respectively,
Jennings filed grievances over the loss of overtime hours as
Sunday manager on duty. On February 22, District Manager
Evett, Labor Relations Specialist Tedoni, Ballwin Store Man-
ager Collida, Business Representatives Guise and Nick
Torpea, and Jennings met to discuss the grievance filed by
Jennings on February 15. Tedoni told Jennings his grievance
was denied because he was not qualified to work as manager
on duty because he was no longer a part of management.
The employee (Vicki Vogt) who worked as manager on duty
on February 11 was not a member of management at that
time but was then made an assistant department head.
Former employee Rick Russell also worked as Sunday man-
ager on duty while he was employed as a grocery clerk. The
shifts available for Sunday manager on duty are 6:30 a.m. to
3:30 p.m. and 3:30 to 10 p.m. Jennings said that while he
was night manager, he only infrequently worked as Sunday
manager on duty because he usually worked 48 hours per
week and did not need any additional hours but that he
wished to work as Sunday manager on duty because it be-
came the only overtime available to him after his removal as
night manager.
III. DISCUSSION
A. Supervisory Status
Inasmuch as the Respondent raised Jennings’ purported su-
pervisory status as a defense, the burden of proof rests upon
Respondent to establish that status. See Thayer Dairy Co.,
233 NLRB 1383 (1977).
Section 2(11) of the Act defines a supervisor as:
Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsible to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The existence of any one element can be sufficient to convey
supervisory status, however, sporadic or occasional exercise
of supervisory authority is insufficient to make an employee
a supervisor. Also, investiture with a title and theoretical
power which may imply supervisory authority likewise is in-
sufficient to transform a rank-and-file employee into a super-
visor. See the Thayer case, supra, and Teamsters Local 574,
259 NLRB 344 (1981), and cases cited therein. Moreover, it
is important that authority is actually exercised with the use
of independent judgment and that the supervisor be some-
thing more than a conduit for managerial directives, see
Hydro Conduit Corp., 254 NLRB 433 (1981).
259SCHNUCK MARKETS
Here, the record shows that Jennings, as night manager,
was a senior hourly employee who directed other less experi-
enced employees in the performance of their regular assigned
task during the store manager’s absence. He is shown to
have exercised independent judgment only on sporadic or on
an occasional basis, such as when he told an employee who
was caught shoplifting not to report to work the next day un-
less he was called by the manager (the store manager subse-
quently discharged the employee based on Jennings’ report),
and when he told an employee of the independent cleaning
contractor to leave when he was caught using drugs in the
restroom. He did not participate in managerial meetings and
his functions were essential to coordinate the night time op-
erations of the store in accordance with management’s wish-
es and, at the same time, to perform certain routine tasks
which included filling the cigarette rack and beer cooler and
‘‘conditioning’’ the liquor, tasks that took 3 hours each night
and tasks which Respondent itself established were per-
formed by Jennings during 30 to 40 percent of his shift.
The record shows that the Respondent gave the title of
‘‘manager’’ to a number of employees, including various de-
partment managers, however, no such positions, except the
top local position of store manager (and possibly one or two
comanager positions), are held by persons who are not em-
ployee members of the bargaining unit. As noted above, the
bargaining agreement specifically provides that ‘‘under no
condition shall supervisors . . . perform bargaining unit
work . . . including stocking . . . on a regular basis.’’ Here,
Jennings regularly performed stocking duties 30 or more per-
cent of each shift and the Respondent otherwise treated Jen-
nings as a bargaining unit employee with respect to other
provisions of the contract, including wages, seniority rights,
and the grievance procedure. To accept Respondent’s argu-
ment that Jennings is not a statutory supervisor under these
circumstances would be inconsistent with Respondent’s own
longstanding interpretation and application of its bargaining
agreement with the Union. Here, there are no compelling in-
dications that the position of night manager is invested with
any authority beyond that of a routine nature. All significant
authority, including the right to hire, fire, and manage is re-
tained in the store manager. Respondent treats other employ-
ees vested with a title as a specific type of manager as bar-
gaining unit employees under its contract with the Union and
it is thereby precluded from attempting to avoid its obliga-
tions under the Act by suddenly and unilaterally changing its
position, a position that clearly shows that employees such
as Jennings were not considered to be supervisors.
A finding that a titled ‘‘manager’’ is not a statutory super-
visor, despite some indication of authority such as an ab-
sence of any other supervisory manager, during work hours,
is not inconsistent with prior Board decision, compare
Smitty’s Foods, 201 NLRB 283, 286 (1973). Accordingly, I
find that Respondent has not shown that Jennings was a su-
pervisor within the meaning of Section 2(11) of the Act at
the time of the alleged discrimination against him.
B. Posting of Literature
Article 7.10 of the contract between Respondent and the
Union provides:
Official notices authorized by the Local Union may be
posted on the store bulletin board. They shall not be
objectionable in nature.
Employees Kausler, Menhard, and Hemenway credibly
testified that Respondent allows postings of marriages and
birth announcements, pool parties, bowling parties, retirement
parties, showers, thank you notes, and various fundraising
announcements by the timeclocks and on the bulletin boards.
Otherwise, the Respondent asserts that in November 1987, it
established a policy prohibiting the posting of ‘‘campaign’’
materials, whether it be for a union or a political position.
In accordance with that policy, store managers were in-
structed that campaign materials for neither side were to be
posted on the bulletin boards, if they inquired during the
1987 union elections and, on occasion the Company has re-
moved some campaign materials.
The letter-size fliers posted by Jennings and Kausler urged
employees to vote on an internal union matter and were al-
legedly viewed to be campaign materials and therefore taken
down in accordance with the company’s policy. Respondent
concedes that given the fact that it has 48 stores with em-
ployees who are represented by the Union, it is not incon-
ceivable that isolated incidents of posting of campaign mate-
rials in violation of the policy may have occurred. It argues,
however, that it has a right to regulate the posting of material
where the bulletin boards threaten to become a battle ground
for competing groups, citing Nugent Service, 207 NLRB 158
(1973).
Employees Jennings, Kausler, Menhard, and Hemenway,
each of whom were union shop stewards, actively partici-
pated in campaigning at Respondent’s stores during Novem-
ber 1987. They openly posted union campaign literature at
various stores without opposition or any admonition and they
were unaware of a November 4, 1989 memo from manage-
ment to store managers on this subject.
As noted, Butler Hill Store Manager Gordon told Kausler
to remove the dissident union literature on January 19 and
on January 21, Ballwin Store Manager Collida told Jennings
to remove similar literature that he had posted.
Here, I am not persuaded that the literature in question
rises to the level of ‘‘campaign’’ material or that anything
had occurred to indicate that the request that employees
come to vote at the next meeting, not an election, would
make it a ‘‘battle ground’’ situation. Respondent so called
policy was not communicated beyond the level of store man-
ager or comanager and it was not enforced in the past on any
apparent significant or uniform basis. Moreover, in Jennings’
case it was not enforced until a comanager brought the lit-
erature, with Jennings name on it, to the attention of Division
Manager Evett at a time when Evett had just recently partici-
pated in removing Jennings from his night manager position
for what is otherwise found herein to be in violation of the
Act.
Under these circumstances, I find that the situation is the
same as that considered in Dresser Industries, 278 NLRB
819, 823 (1986), and East Texas Motor Freight, 262 NLRB
868 (1982), where the Board held that the denial of a dis-
sident union employee’s right to post intraunion political lit-
erature on company bulletin boards is violative where em-
ployees are allowed to use the bulletin boards for other offi-
cial union business. Accordingly, I find that both by main-
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
taining and selectively and disparately enforcing the posting
provision of the contract and by specifically directing em-
ployees Kausler and Jennings to remove such literature, Re-
spondent has violated Section 8(a)(1) of the Act, as alleged.
C. Other Alleged 8(a)(1) Violations
I credit the testimony of former employee Jones that when
he told Store Manager Collida on December 6 that he had
spoken with Jennings about filing a grievance (and Jennings
has said he probable could get better hours), Collida said that
Jennings did not have the right to tell Jones he could file a
grievance, and that Jones should come to him before going
to the Union about problems. An employee has the right to
file a grievance without discussing the disputed matter with
Respondent first. See Mars Sales & Equipment Co., 242
NLRB 1097, 1102 (1979), and accordingly, I find that Re-
spondent is shown to have interfered with an employee’s
grievance filing activity by telling an employee to come to
Respondent prior to filing a grievance in violation of the
Section 8(a)(1) of the Act, as alleged.
Five days after the Jones’ incident, Collida had a con-
versation with Jennings in which he questioned the cost of
Jennings’ working on Sundays. I credit Jennings’ testimony
that when he defended his schedule under the contract,
Collida asked Jennings if he really wanted to be night man-
ager and told him that he would not be allowed to work
Monday through Friday nights in addition to Sundays.
(Collida gave testimony that was inconsistent with Respond-
ent’s documentary records of Jennings’ work schedule and,
accordingly, I find Collida’s denial that he made the night
manager remark is untrustworthy). Jennings’ schedule then
was changed and when this is viewed in context with Jen-
nings’ subsequent removal from the night manager position,
Collida’s statement clearly can be seen as a threat of demo-
tion and loss of overtime work if Jennings continued to as-
sert his contractual seniority rights. See Industrial Supply
Co., 289 NLRB 639 (1988). Accordingly, I find that the
store manager’s statement is a violation of Section 8(a)(1) of
the Act, as alleged.
As noted in the factual conclusions set forth above, Jen-
nings filed a grievance of the loss of pay which resulted in
the scheduled change which deprived him of working on
Sunday, December 17. I agree with the contention of the
General Counsel that the testimony of Union Business Agent
Guise of what occurred at the grievance meeting on January
8 is entitled to credences, especially since it tends to support
Jennings, an apparent Union dissident, rather than the Em-
ployer, with which the Union has had a long cooperative re-
lationship. At the meeting, Respondent’s Labor Relations
Specialist Tedoni acknowledged an error on their part but
then disagreed with Jennings’ contention of how much pay
he was entitled to. She then said that the settlement was fair
and added that a decision had been made to replace him as
night manager. District Manager Evett than said they could
not keep him on as night manager because Jennings would
continue to file grievances over not being allowed to work
Sundays and that he hated grievance meetings as they were
a total waste of time.
Here, I find the substance of the conversation imputes the
message that Jennings would be removed from his position
because management felt he would file additional grievances
to protect his rights that were at odds with management’s
scheduling plans.
Two weeks later, on January 21, Jennings had occasion to
mention the night manager subject when Evett paid a visit
to the store. Evett did not testify about that conversation ex-
cept to answer ‘‘No, I did not say that’’ to the direct ques-
tion by Respondent’s counsel which asked if at any time
after January 8, he had told Jennings ‘‘that you’d still be
night manager if you had not filed the grievance,’’ I do not
consider Evett’s bare denial to be persuasive and otherwise
the alleged statement on January 21, is consistent with the
statement heard by witness Guise on January 8. Accordingly,
I credit Jennings’ testimony that Evett told him that he would
still be night manager if he had not filed a grievance. On the
same day, Store Comanager Wunsch also told Jennings it
would not be taken lightly if Jennings was caught campaign-
ing or talking to employees in the store whether on the clock
or not. This occurred shortly after Wunsch admittedly had
participated in a management meeting wherein he had initi-
ated giving Evett a copy of union meeting literature Jennings
had posted and I do not credit Wunsch’s denial that he gave
Jennings (otherwise described as a friend), the warning re-
called by Jennings.
On February 9, Produce Manager Cross said he had talked
with a union representative about Jennings’ filing of griev-
ances and other union matters and was bothered by Jennings
getting every Saturday off and would start rotating Jennings
into the Saturday work. Cross exercised apparent authority as
Respondent’s agent to make schedule assignments and his
statements imply that the reasons for changing Jennings’
schedule were because of his union activity and/or his filing
of grievances. As noted above, the threat, or exercise, of a
retaliatory demotion for an employee’s grieving under the
provisions of a collective-bargaining agreement is improper
as is threatening an employee with unspecified reprisal if the
employee continues to discuss union activities with other em-
ployees. See Larid Printing, 264 NLRB 369, 374 (1982).
Accordingly, I find that in each instance discussed above, in-
cluding the partial denial of Saturday as Jennings’ day off,
Respondent has violated Section 8(a)(1) of the Act, as al-
leged.
D. Jennings’ Demotion and Work Assignments
In a discipline case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected, concerted activity was a moti-
vating factor in the employer’s decision to demote or other-
wise discipline the employee. Here, the record shows that
Jennings’ demotion from his night manager position followed
his filing of a grievance regarding his work schedule and it
was preceded by several actions by the Respondent involving
Jennings that violated Section 8(a)(1) of the Act, as dis-
cussed above.
This demotion was followed by a denial of Jennings’ par-
ticipation in assignments as Sunday manager in charge.
Under these circumstances I find that the General Counsel
has met his initial burden by presenting a prima facie show-
ing, sufficient to support an inference that Jennings protected
grievance filing activities were a motivating factor in Re-
spondent’s decision to demote or discipline. Accordingly, the
testimony will be discussed and the record evaluated in keep-
261SCHNUCK MARKETS
3 It was not established if dollar amounts were discussed and it appears there
could have been some misunderstanding regarding the ‘‘hours’’ referred to by
the regular hour rate or if the ‘‘premium’’ pay was being considered.
ing with the criteria set forth in Wright Line, 251 NLRB
1083 (1983), see NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), to consider Respondent’s de-
fense and, in the light thereof, whether the General Counsel
has carried his overall burden.
Respondent’s principal defense (other than Jennings’ al-
leged supervisory status), is based on its contention that it
made the decision prior to the time Jennings filed his griev-
ance and that it had the managerial right to removel him as
night manager because he refused to work the Monday
through Friday schedule without claiming overtime. It also
asserts that by returning Jennings to the produce clerk posi-
tion Respondent thereby gave Jennings Sunday hours and
allow him to maximize his earnings. This explanation, how-
ever, appears to be inconsistent with Respondent’s later ac-
tions in removing Jennings from his seniority entitlement to
assignment as Sunday manager in charge and it is inconsist-
ent with Respondent’s illegal threats, discussed above, and
with the Respondent’s failure to attempt to negotiate a reso-
lution to the problem with the Union as representative of
Jennings.
In the face of an obvious conflict between the new sched-
uling plan advanced by the new store manager and Jennings
attempt to exercise the seniority (and grievance) provisions
of the bargaining agreement, the employer first admitted to
Jennings’ seniority rights and agreed to a payment of 4 hours
and then abruptly told Jennings’ he was being removed as
night manager, after he pursued a contention that proper set-
tlement of the grievance entitled him to 8 hours’ additional
pay.3
While it is probable that Respondent could have discussed
the prospect of removing Jennings from his night manager’s
position prior to the grievance meeting in January, as a pos-
sible solution to the matter, I do not credit Evett’s testimony
that the decision had previously been made nor do I credit
his denials regarding statements that indicated Jennings’ re-
moval was related to his grievance. To the contrary, witness
Guise corroborated Jennings’ testimony in this regard and the
sequence of events clearly supports an inference that Labor
Relations Specialist Tedoni exercise an option to remove
Jennings after he failed to accept her settlement offer and
that this decision was then endorsed by Evett who specifi-
cally related this solution to the problem to Jennings’ filing
of grievances on the matter.
There is no indication that management made any sort of
communication to anyone about its alleged decision to re-
move Jennings until after the grievance settlement offer was
questioned by Jennings and, under these circumstances, I
find that Respondent has not shown that Jennings would
have been removed from his position on January 8, were it
not for his protected activity in pursuing a grievance and his
seniority rights under the applicable collective-bargaining
agreement.
The record also shows that on Sunday, February 11, and
thereafter, a less senior employee was assigned overtime
hours as manager on duty and Jennings filed grievances over
the loss of overtime hours. On February 22, Labor Relations
Specialist Tedoni told Jennings his grievance on February 15
was denied because he was not qualified to work as manager
on duty because he was no longer a part of management.
Employee Vicki Vogt, who worked as manager on duty on
February 11, did not hold a manager’s position at that time
(but has since been made a manager). Otherwise, the record
shows that former employee Russell also worked as Sunday
manager on duty while he was a grocery clerk and the testi-
mony shows that the duties performed were similar to those
of a night manager, including bagging groceries, duties not
allowed to be performed by supervisors under the contract
and they did not have the authority to hire, fire or promote
employees. Under these circumstances, I agree with the Gen-
eral Counsel’s contention that Respondent’s refusal to assign
such work to Jennings is an outgrowth of Respondent’s re-
moval of Jennings from the night manager position. It other-
wise appears that Respondent in fact has assigned persons
who did not hold ‘‘manager’’ titles to perform this Sunday
assignment and Respondent’s reasons for claiming that Jen-
nings is not qualified for Sunday manager on duty because
he was not a manager is pretextual in nature. The continued
denial of the opportunity to receive this Sunday assignment
would not have occurred were it not for Respondent’s im-
proper removal of Jennings from a position as a manager and
therefore I find in both instances that the General Counsel
has met his overall burden of proof and I find that Respond-
ent’s removal of Jennings from his night manager position
and the refusal of an opportunity to serve as Sunday manager
on duty are shown to be unjustified and illegally motivated
and a violation of Section 8(a)(3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
2. Thomas H. Jennings was at all times material herein an
employee within the meaning of Section 2(3) of the Act and
was not a supervisor within the meaning of Section 2(11) of
the Act.
3. By threatening employee Thomas H. Jennings with de-
motion and loss of overtime and by demoting him and refus-
ing to assign him overtime work as Sunday manager on duty,
respectively, Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act.
4. By maintaining and selectively and disparately enforc-
ing the posting provision and by specifically directing em-
ployees to remove union meeting literature, Respondent has
violated Section 8(a)(1) of the Act.
5. By interfering with an employees grievance filing ac-
tivities; telling an employee he would be or had been de-
moted because the employee filed a grievance asserting con-
tractual seniority rights; threatening an employee with un-
specified reprisal if the employee continued to discuss union
activities with other employees; and implying to an employee
he could no longer have every Saturday off because the em-
ployee filed grievances and engaged in union activity, Re-
spondent has interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act and thereby has engaged in unfair labor prac-
tices in violation of Section 8(a)(1) of the Act.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest accrued before 1 January 1987 (the effective date of the
amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to offer to restore
Jennings to his position as night manager and otherwise to
allow him to fully exercise his seniority rights as an em-
ployee under the applicable collective-bargaining agreement
and to make him whole for any loss of earnings he may have
suffered because of the discrimination practiced against him
by payment to him a sum of money equal to that which he
normally would have earned had he not been demoted or
been denied the opportunity to take advantage of his senior-
ity rights or to otherwise be assigned as Sunday manager on
duty in accordance with the method set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).4
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Schnuck Markets, Inc., St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act
by threatening any employee with demotion and/or loss of
overtime; maintaining and selectively and disparately enforc-
ing the posting provisions; directing employees to remove
Union meeting literature; interfering with any employees’
grievance filing activities; telling any employee he would be
or had been demoted because the employee filed a grievance
asserting contractual seniority rights; threatening any em-
ployee with unspecified reprisal if the employee continued to
discuss union activities with other employees; and implying
to any employee he can no longer have every Saturday off
because the employee filed grievances and engaged in union
activity.
(b) Demoting and/or refusing to assign any employee to
entitled overtime work as Sunday manager on duty or other-
wise discriminating against them because of his Union or
other protected concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Make Thomas H. Jennings whole for the losses he in-
curred as a result of the discrimination against him in the
manner specified in the remedy section above.
(b) Offer Thomas H. Jennings the opportunity to return to
his former position as night manager and otherwise allow
him to take advantage of his seniority rights under the collec-
tive-bargaining agreement, including appropriate assignments
as Sunday manager on duty.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze the amount
of backpay due under the terms of this Order.
(d) Post at its St. Louis, Missouri division area facilities
copies of the attached notice marked ‘‘Appendix.’’6 Copies
of the notice, on forms provided by the Regional Director for
Region 14 after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by Respondent im-
mediately upon receipt thereof and be maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that said notice is not altered, defaced or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interfere with, restrain or coerce our em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act by threatening our employee with demotion and/or
loss of overtime; maintaining and selectively and disparately
enforcing the posting provision of the contract; directing our
employees to remove Union meeting literature; interfering
with our employees’ grievance filing activities; telling any
employee that he would be or had been demoted because the
employee filed a grievance asserting contractual seniority
rights; threaten any employee with unspecified reprisal if the
263SCHNUCK MARKETS
employee continued to discuss union activities with other
employees; and WE WILL NOT imply to any employee he can
no longer have every Saturday off because the employee
filed grievances and engaged in union activity.
WE WILL NOT demote and/or refuse to assign any em-
ployee to entitled overtime work as Sunday manager on duty
or otherwise discriminate against him because of his Union
or other protected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL make Thomas H. Jennings whole for the losses
he incurred as a result of the discrimination against him with
interest.
WE WILL offer Thomas H. Jennings the opportunity to re-
turn to his former position as night manager and otherwise
allow him to take advantage of his seniority rights under the
collective-bargaining agreement, including appropriate as-
signments as Sunday manager on duty.
SCHNUCK MARKETS, INC.