Super H-Discount

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 728 (N.L.R.B. 1986)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foodland, Inc., d/b/a Super-H Discount and United
Food & Commercial Workers , Retail Clerks
Union Local 73R, affiliated with the United
Food & Commercial Workers International
Union, AFL-CIO-CLC. Case 16-CA-9745
30 September 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 3 February 1982 Administrative Law Judge
William N. Cates issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed 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 brief' and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
the Act by interrogating employee Sonya Schofield
Gray and by promulgating an overly broad no-so-
licitation rule barring employees from talking
"union" on the clock. We do not agree.
The facts can be summarized quite briefly. Ac-
cording to the credited testimony of Gray, on the
first day of a union organizational drive,3 while
working in the customer courtesy booth in proxim-
ity to Assistant Store Manager Dean Morris, she
received a call over the store intercom from a
fellow employee. Following this conversation,
Morris asked Gray: "Don't Morris have what?"4
Gray would tell him nothing. Morris then called
the other employee, saying: "Don't have what;
Sonya won't tell me." After hanging up the phone,
Morris turned to Gray and asked: "Were you talk-
ing about the Union?" Gray answered: "She asked
me about a card." Morris replied: "Do not talk
union on the clock." That ended the matter.
There is no evidence that Morris' prohibition
was ever communicated to other employees, and
no evidence of union animus is found in this case.
1 The Respondent has requested oral argument . The request is denied
as the record , the Respondent's exceptions , and the brief adequately
present the issues and the positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
a This campaign resulted in a Board-conducted election , which the
Union won
4 This question obviously was in reference to what Morris overheard
Gray state during her conversation over the intercom
It is undisputed that following this incident Gray,
and presumably other employees, continued to
"talk union" on the clock.5
This single, isolated, and innocuous exchange be-
tween Morris and Gray to which there were no
witnesses does not rise to the level of a violation,
particularly in the absence of union animus. Morris'
comments cannot be viewed in a vacuum. They
must be considered in the context of the entire inci-
dent that triggered them as well as subsequent
events.
Gray's reference to what Morris did not "have"
during her conversation with another employee
over the store intercom naturally aroused Morris'
curiosity. When Gray refused to explain the refer-
ence, Morris called the other employee. After ap-
parently concluding that the two employees' con-
versation was union-related, Morris cautioned Gray
not to "talk union on the clock." Thereafter, the
matter was dropped completely by Morris. There
is no evidence that he repeated it to Gray, or to
any other employee, at any time, or that Gray ever
mentioned the subject to her fellow employees. In
any event, Gray admittedly ignored Morris' admo-
nition to her and indeed continued to "talk union
on the clock" without further constraint. Thus, this
allegedly unlawful "prohibition" was so transitory
as to have no impact on anyone. Under the totality
of these circumstances, it will not serve the pur-
pose of the Act to find a violation.
Accordingly, we shall dismiss the complaint in
its entirety.
ORDER
The complaint is dismissed.
MEMBER JOHANSEN , dissenting.
Contrary to my colleagues, I would find that the
Respondent violated Section 8(a)(1) of the Act by
interrogating employee Gray and by promulgating
an overly broad no-solicitation rule barring em-
ployees from talking "union on the clock." The
Respondent's assistant store manager, Dean Morris,
asked employee Gray if she and another employee
had been talking about the Union. When Gray re-
sponded that she had been asked about a card,
Morris told her not to "talk union on the clock."
The majority characterized this conversation as iso-
lated and innocuous. I do not agree. A supervisor's
questioning of an employee about her and others'
union activities is not isolated and certainly not in-
5 As Gray testified-
Q (By Mr Strecker) Between March 24th (the date of the inci-
dent) and June 4th (the date of the election ), did you continue to
follow Mr Morris' instructions?
A (By Mrs Gray) I had talked Union on the clock since then
281 NLRB No. 109
SUPER-H DISCOUNT 729
nocuous . Gray testified that when first questioned
by Morris, she told him nothing because she did
not want him to know what she had been talking
about . Morris persisted and called the other em-
ployee to fmd out. When Morris confronted Gray
by asking her if she was talking about the Union,
Gray finally admitted that she had been asked
about a card. Regardless of whether there were
any witnesses or whether Gray ever mentioned the
incident to other employees , Morris' interrogation
was clearly coercive and should be found to be un-
lawful.
Further, I disagree with my colleagues that
Morris' admonition not to talk union on the clock
was so transitory as to have no impact on other
employees . The warning not to talk union on the
clock not only discriminatorily singles out union
talk but also implies that employees may not solicit
on their own time . It is therefore clear that under
Our Way, Inc., 268 NLRB 394 (1983), Morris' pro-
hibition was overly broad . The Respondent's warn-
ing is no less a violation because Gray ignored it or
because there was no additional evidence of union
animus.
Accordingly , I would adopt the judge 's findings.
Milton D. Jones and J. O. Donson, Esqs., for the General
Counsel.
David E. Strecker and James L. Kincaid, Esgs. (Conner,
Winters, Ballaine, Barry, and McGowen), of Tulsa,
Oklahoma , for the Respondent.
R. Lawrence Roberson, Business Representative , of Tulsa,
Oklahoma, for the Charging Party.
Karen Beausoleil by refusing to allow them to frequent
the breakroom during their off-duty hours . Respondent
filed a timely answer to the complaint and notice of
hearing in which it denied having violated the Act.
All parties appeared at the hearing and were afforded
full opportunity to present oral and written evidence and
to examine and cross-examine witnesses . On the entire
record, together with careful observation of the demean-
or of the witnesses , and after due consideration of briefs
filed by Respondent and the General Counsel I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation licensed to do business in
the State of Oklahoma , with a facility in Owasso, Okla-
homa, where it is engaged in the retail sale of grocery
and related items . During the 12-month period preceding
issuance of a complaint , Respondent , in the course and
conduct of its business operations , has received gross
revenues in excess of $500,000. During the same period
of time it purchased and received goods valued in excess
of $50,000 directly from suppliers located outside the
State of Oklahoma . The complaint alleges, Respondent
admits, and I fmd, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
DECISION
STATEMENT OF THE CASE
WILLIAM N . CATES, Administrative Law Judge. This
matter was heard before me in Tulsa , Oklahoma, on No-
vember 3 , 1981 . The charge in this case was filed by
United Food & Commercial Workers, Retail Clerks
Union Local 73R, affiliated with the United Food &
Commercial Workers International Union , AFL-CIO &
CLC (Union or Charging Party ), on March 26 , 1981.1 A
complaint and notice of hearing was issued on May 8 by
the Regional Director for Region 16 of the National
Labor Relations Board (the Board), alleging that Food-
land, Inc., d/b/a Super-H Discount (Respondent or Em-
ployer), had violated Section 8(a)(1) of the National
Labor Relations Act (the Act), by various acts of inter-
ference, restraint, and coercion of its employees by its su-
pervisors and agents . 2 Further the complaint alleged that
Respondent violated Section 8(a)(3) and (1) of the Act
by disparately enforcing, since about March 24, a rule
against employees James Gray , Sonya Schofield, and
' All dates hereinafter are 1981 unless otherwise indicated.
2 The General Counsel's unopposed motion at the trial to amend the
complaint to delete the 8(a)(1) allegations contained in par. 7(d) was
granted.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Backgound
It is undisputed that the Union commenced an organi-
zational campaign at Respondent 's Owasso store on
March 23, and Respondent was notified in writing of the
organizational efforts of the Union on March 24. The
union campaign lasted until the Board -conducted elec-
tion in Case 16-RC-8313 was held on June 4. The Union
won the election.
The General Counsel in its complaint attributes unlaw-
ful conduct to Store Manager James Hoffman and Assist-
ant Store Managers Loren Sieminskie and Dean Morris.
The complaint alleges, Respondent admits, and I find the
three named individuals were, at all times material,
agents and supervisors of Respondent within the mean-
ing of the Act. The complaint further alleges that Store
Manager Steve Swenson was a supervisor and agent of
Respondent within the meaning of Section 2(11) and (13)
of the Act. Respondent, in its answer , denied that Swen-
son was a supervisor within the meaning of the Act in
relation to any employees of Respondent at its facility in
Owasso, Oklahoma.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Supervisory Status of Store Manager Steve
Swenson
The parties stipulated that Swenson was the store man-
ager of a store of Respondent at a different location than
the Owasso, Oklahoma store and that he had supervisory
functions at the other store such as to establish that he
was a supervisor and agent of Respondent within the
meaning of Section 2(11) and (13) of the Act. The parties
further stipulated that all the grocery stores of Respond-
ent were operated by the same corporation.
Respondent contends that Swenson has no supervisory
function to the employees at the Owasso store and that
as such Respondent could not be bound by any state-
ments or actions that Swenson may have taken in con-
nection with its Owasso store. The General Counsel con-
tends that Respondent may not escape responsibility for
the acts of its agent and supervisor simply because the
agent and supervisor was not the manager of the particu-
lar store where the violations were alleged to have taken
place. The General Counsel further contends that to
allow Respondent to escape responsibility simply because
Swenson was not the manager at the store in question
was nothing more than an artificial barrier created by
Respondent between Swenson and Respondent's respon-
sibility for his actions.
It is undisputed on this record that Swenson served
from May 1978 until August 1980 as the assistant manag-
er at Respondent's Owasso store and that he served as
store manager of Respondent's Skiatook, Oklahoma gro-
cery store from August 1980 until September 20. There
was a brief time in 1978 when Swenson worked as a
stocker at the Owasso store prior to being promoted to
assistant manager. It is further undisputed that Swenson,
on a weekly basis, visited Respondent's Owasso store to
deliver invoices that would be further delivered to Re-
spondent's corporate offices in Tulsa, Oklahoma. During
the time that Swenson occupied the position of assistant
manager at Respondent's Owasso store, Sonya Schofield
Gray, James Gray, and Karen Beausoleil were employ-
ees at the Owasso store of Respondent.
I conclude and find that, at all times material herein,
Swenson was a supervisor of Respondent within the
meaning of Section 2(11) of the Act inasmuch as the
Owasso store (the one involved in the instant Case), as
well as all other of Respondent's stores, were operated
by the same corporation. Respondent is responsibile for
any actions of Store Manager Swenson at Respondent's
Owasso store notwithstanding the fact he was store man-
ager at Respondent's Skiatook, Oklahoma store. Re-
spondent would be responsible for Swenson's actions be-
cause employees could reasonably believe that he spoke
on behalf of management, particularly so in the instant
case because he had served as assistant manager at the
store involved herein. Many of the employees who were
employed at Respondent's Owasso store when Swenson
was assistant manager there were still employed at the
time it is alleged that Swenson engaged in certain unlaw-
ful conduct at Respondent's Owasso Store. The test in
determining whether a respondent is responsible for co-
ercive statements by a supervisor is not whether the
statements were in fact within the scope of the supervi-
sors employment, but whether employees had just cause
to believe that the supervisor was acting for and on
behalf of management in the situation in dispute. The
Board in applying such a test, except for special circum-
stances, has held that a respondent is responsible for the
conduct of a supervisor in such a case. See Wolverine
World Wide, 243 NLRB 425 at 432 (1979). I, therefore,
conclude and find that Respondent would be accountable
for any unlawful conduct attributed to Store Manager
Swenson that might be established in the instant case.
C. The Alleged Violations Attributed to Assistant Store
Manager Dean Morris
The General Counsel at complaint paragraphs 7(a) and
(b) alleges that Respondent, through Morris, about
March 24, interrogated an employee about his union ac-
tivities, membership, and desires, and promulgated and
maintained an overly broad no-solicitation rule by telling
an employee not to talk about the Union "on the clock."
The General Counsel relies on the testimony of former
employee Sonya Schofield Gray to establish the viola-
tions alleged in paragraphs 7(a) and (b). As both allega-
tions were alleged to have taken place in the same con-
versation, I am considering the testimony of Gray with-
out further dividing or separating it with respect to
either the alleged interrogation or the alleged promulga-
tion of an overly broad no-solicitation rule.
As of March 24 Gray had been employed by Respond-
ent for approximately 1-1/2 years. On March 24 Gray
was working in the courtesy booth at the front of Re-
spondent's store when she received a call on the store's
intercom system from a fellow employee identified as
Margaret. Following her conversation on the intercom,
with an employee named Margaret Gray testified that
she was asked by Assistant Store Manager Morris the
question, "Don't Morris have what?" Gray told Morris
nothing. She testified she told Morris nothing because
she did not want him to know what she was talking
about. According to Gray, Morris then placed a call on
the intercom and she saw Margaret pick up an intercom
phone. Gray heard Morris say, "Don't have what; Sonya
won't tell me." Gray testified that when Morris hung up
the intercom phone he asked her, "Were you talking
about the Union?" Gray responded to Morris by stating,
"She asked me about a card." Morris stated to Gray at
this point, "Do not talk union on the clock." That ended
the conversation according to Gray. Gray testified that
she had signed a letter (G.C. Exh. 2), which it is undis-
puted was delivered to Respondent on March 24, 1980,
which letter stated that she was one of Respondent's em-
ployees on the Union's organizing committee.3
Respondent did not call Morris as a witness. The Gen-
eral Counsel requested that an inference be drawn
against Respondent for its failure to produce Morris to
contradict the testimony of Gray. No reason was given
at the trial by Respondent for its failure to call admitted
supervisor and agent Morris as a witness. An adverse in-
ference may be drawn against a party who fails to call
an otherwise available witness to it, or neglects to ex-
9 Sonya Schofield was married to James Gray after March 24 In the
record she is referred to both as Sonya Schofield and Sonya Gray
SUPER-H DISCOUNT 731
plain the failure to call such a witness . The permissibility
of drawing such an adverse inference has been estab-
lished law since the early days of the Board. Freuhauf
Trailer Co., 1 NLRB 68 (1935), revd . 85 F.2d 391 (6th
Cit. 1936); 301 U .S. 49 (1937), revg . circuit and enfg. the
Board ; Martin Luther King Sr. Nursing Center, 231
NLRB 15 (1977), and Avon Convalescent Center, 219
NLRB 1210 (1975). Therefore, in view of Respondent's
failure to present Morris as a witness and in light of the
fact that the record on this particular point is barren of
any justifiable reason to reject the inference , I conclude
that it is warranted , and I find that had Morris been pro-
duced as a witness he would not have contradicted
Sonya Gray 's testimony . I, therefore, credit this portion
of the unrefuted testimony of Sonya Gray with respect
to the conversation attributed to Morris on March 24.
Respondent contends that even assuming Morris asked
Gray if she was talking about the Union , such a question
standing alone would not be unlawful . Respondent fur-
ther contends that the conversation , if found to have
taken place , did not occur in Morris' office but rather
took place at the employees ' work station , thus reducing
any coercive impact the question might have created.
Further, Respondent contends that even if the inquiry
were made, it did not seek information regarding the
union activities , membership , or.desires of Gray. Re-
spondent argues that the purpose of the inquiry, if made,
was to ascertain if Sonya Gray had violated a rule of Re-
spondent concerning not talking about personal matters
in the presence of customers . Respondent contends that
even if the comments are found to constitute unlawful in-
terrogation it would be isolated and de minimis.
With respect to the no-talking rule, Respondent con-
tends it could not constitute promulgation of a no -solici-
tation rule inasmuch as the evidence would establish that
the rule, even if promulgated as Gray testified , was ap-
plied to only one employee on one occasion , and the em-
ployee herself, by her own admission , did not obey the
rule. Additionally , Respondent contends the incident
again is isolated , even if it occurred, and as such could
not support a fording of a violation of Section 8(a)(1) of
the Act.
The General Counsel contends , based on Sonya Gray's
testimony , that Morris unlawfully interrogated Gray in
violation of Section 8 (a)(1) of the Act , and that Respond-
ent likewise violated Section 8(a)(1) of the Act by pro-
mulgating an overly broad no-solicitation rule by telling
its employee Gray not to talk about the Union on the
clock. The General Counsel contends that the interroga-
tion was coercive and that the no-solicitation rule on its
face interfered with employees statutory rights. The
General Counsel contends that the promulgation and en-
forcement of a no -talking rule even if not published in an
employee handbook, constitutes a violation of Section
8(a)(1) of the Act.
I conclude and find Respondent did violate Section
8(a)(1) of the Act by Morris' interrogation of Sonya
Gray . I reject Respondent 's defense in which it attempt-
ed to show, from the testimony , that Gray did not feel
intimidated by the comments directed to her, even if
made by Morris. The test, however , is whether an em-
ployer's conduct may reasonably be said to have a tend-
ency to interfere with the free exercise of employees'
rights. Respondent 's conduct in the instant case clearly
falls within this test . See El Rancho Market, 235 NLRB
468 (1978); and Seneca Foods Corp, 244 NLRB 558, 562
(1979). I also find that Respondent violated Section
8(a)(1) of the Act when Morris ordered employee Gray
not to talk Union on the clock. The Board held in J. P.
Stevens & Co., 240 NLRB 579 (1979). "We ford that such
promulgation and enforcement of a no-talking rule, even
if not published in an employee handbook , constitutes a
clear violation of Section 8(a)(1) of the Act [fn. cases
omitted] ." I, therefore, conclude and find that Respond-
ent, in violation of Section 8(a)(1) of the Act, promulgat-
ed an overly broad no-solicitation rule when it ordered
its employee not to talk union on the clock.
D. The Alleged Violations Attributed to Store
Manager Steve Swenson
The General Counsel at complaint paragraph 7(c) al-
leges that Respondent through Store Manager Swenson4
About March 27 orally created the impression of surveil-
lance of its employees ' union activities in two separate
instances to two separate employees . The General Coun-
sel relies on the testimony of Karen Beausoleil and James
Michael Gray to establish the alleged violations.
Beausoleil testified that she worked for Respondent for
approximately 1-1/2 years as a checker until she volun-
tarily quit her employment on October 17. Beausoleil
stated she had a conversation with Store Manager Swen-
son sometime in late March at a time after the letter had
been given to Store Manager Hoffman that she and
others were on the Union 's organizing committee. Beau-
soleil testified she was marking price changes in the can
food section of the store when Store Manager Swenson
approached her and they started talking . Beausoleil
stated that Swenson always talked with her when he was
in the store . According to Beausoleil , they started talking
about the Union6 and she asked Swenson how he felt
about what they were doing. According to Beausoleil,
Swenson did not really approve of what they were
doing . Beausoleil testified Swenson thought the employ-
ees should be able to go to their manager and talk to him
about raises or other problems or things that were
wrong . Beausoleil informed Swenson that it was not that
way, and it was at that point, according to Beausoleil,
that Swenson stated , "He said he understood there was a
lot of traffic in and out of my trailer these days , which I
knew what he meant, but I just told him that since I
lived close to the store , you know , what do you expect
and we just small talked." Beausoleil testified that was all
she could remember regarding the conversation with
Swenson.
James Michael Gray , a stocker for Respondent, testi-
fied that during March he had a conversation with Store
Manager Swenson as follows:
4 Swenson was the store manager of Respondent 's Skiatook, Oklahoma
store.
5 The record does not clearly indicate who raised the subject matter of
the Union.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well, he come in to deliver his invoices of a
morning , and he was in there late that day, and it
was about my lunch time , and as me and him was
walking out, he come up the aisle where Karen was
at. And I went on and clocked out.
And when I came back, he was over on aisle 5
talking to Sonya . And I got in on the tail end of
their conversation , and they was talking about the
Union.
And Steve looked up and said-and Karen start-
ed walking down the aisle , and he said , "just like I
told Karen, there is a lot of traffic moving in and
out of her trailer, I would beware if I was you
guys "
Gray stated nothing else was said and he left to have
lunch with Karen Beausoleil.
Beausoleil acknowledged on cross-examination that it
was not uncommon for Skiatook Store Manager Swen-
son to be in the Owasso store and that she talked to him
on any occasion that he came into the Owasso store.
Beausoleil testified she and Swenson talked about prob-
lems, his wife, and psychology . Beausoleil testified that
she and Swenson had common interests . Beausoleil fur-
ther acknowledged that the events in the instant case had
happened a long time ago and she did not have a real
good memory. Beausoleil also acknowledged that she
might have mentioned to other individuals that there
were a lot of people coming to her house trailer . Beauso-
leil stated she may have mentioned it to Owasso Store
Manager Hoffman.
Respondent presented Steven D . Swenson as a witness
and he testified he was currently employed as a store
manager by an unrelated food store chain in Tulsa, Okla-
homa. Swenson testified he concluded his employment
with Respondent on September 20. At the time Swenson
worked for Respondent he had been a stocker and assist-
ant store manager at the Owasso store • and that from
August 1980 until his departure from Respondent's em-
ployment he had been manager at the Skiatook , Oklaho-
ma store . Swenson testified he had no official position
over the employees at the Owasso store after he became
manager of the Skiatook store . Swenson acknowledged
having what he described as a friendly conversation with
Beausoleil . According to Swenson , the conversation was
as follows:
Karen and I were talking , she said there was a
boy that came by that was a friend of hers from the
store . I don 't know his name.
And she told her, Karen , that he had been over
to the house trailer to see Sonya . And Karen said,
"Sometimes there is so many people over at the
house trailer", she said, "and people going in and
out, that I feel like I would just like to get up and
leave."
Swenson testified he responded , "Yes, I've heard there
has been quite a few people, -I don't recall exactly, I
either said, `going in and out of your house ,' or 'over at
your house ,' something to that effect."' Swenson stated
he had heard about individuals going and coming at
Beausoleil 's trailer from James and Sonya Gray.
Swenson acknowledged having a conversation with
James Gray about Beausoleil 's trailer, however, Swenson
stated the conversation with Gray took place prior to his
above-described conversation with Beausoleil . Swenson
testified that James Gray and he had been talking about
the fact that Beausoleil had to leave town for a while
and in her absence James Gray had been taking care of
Beausoleil 's trailer and her children. Swenson testified
that James Gray commented to him that Sonya Schofield
Gray had a falling out with her parents and she had been
living at the house trailer with Beausoleil. Swenson
stated that James Gray told him there were a lot of dif-
ferent people in the store and others who were constant-
ly coming over to the trailer to visit them . According to
Swenson , Gray told him it was something that happened
all the time . Swenson testified that James Gray volun-
teered the information to him about the coming and
going at the house trailer and that his only response was
to say okay and continue listening to Gray. Swenson tes-
tified he never at any time threatened or made any
threatening type remarks to James Gray in reference to
his staying away from Beausoleil's trailer.
I credit the testimony of Swenson and discredit Beau-
soleil and Gray's testimony to the contrary. Swenson im-
pressed me as a truthful witness . Furthermore, I am per-
suaded that it is improbable that Swenson, in the middle
of a conversation and out of context with the conversa-
tion would have stated , as testified to by Beausoleil, that
Swenson understood there was a lot of traffic in and out
of Beausoleil 's trailer and then just reverted back in the
conversation to "small talk." I find it is far more proba-
ble, as testified to by Swenson , that Beausoleil discussed
with him the number of persons going and coming from
her trailer inasmuch as they apparently talked about ev-
erything in their various meetings. Further reasons for
my crediting Swenson over Beausoleil is the fact that
Beausoleil readily acknowledged she did not have a
good memory of the events that had happened, as she
stated , a long time ago. I credit Swenson and discredit
James Gray's version of the conversation between them
inasmuch as Gray admitted he got in on the "tail end" of
the conversation in issue and he added little to shed light
on the context in which the comment had arisen. Fur-
ther, I am persuaded that the conversation between
Swenson and Gray took place earlier in the time as testi-
fied to by Swenson than the time Gray claims it did. I
simply, after observing the witnesses testify , find Swen-
son's testimony to be believable and discredit contrary
testimony.
I find nothing in the credited testimony as outlined
above that would constitute an impression of surveil-
lance . To determine whether a respondent has created an
impression of surveillance of its employees' union activi-
ties, the test applied by the Board is whether the employ-
ees could reasonably assume from the actions or com-
ments of a respondent that their union activities had been
placed under surveillance . Schrementi Bros ., 179 NLRB
853 (1969), and South Shore Hospital, 229 NLRB 363
(1977). In the instant case I find that there was nothing
in the exchange between Swenson and Beausoleil or
Gray, which could reasonably be interpreted by either
SUPER-H DISCOUNT 733
employee or anyone else as establishing an effort on Re-
spondent 's part to learn about their union activities.
Thus, there is no basis for finding a violation of the Act.
I shall therefore recommend that that portion of the
complaint be dismissed in its entirety. 6
E. The Alleged Disparate Enforcement of a Rule
Relating to the Breakroom
The General Counsel at complaint paragraph 8 alleges
that about March 24 and thereafter Respondent dispar-
ately enforced a rule against its employees James Gray,
Sonya Schofield Gray, and Karen Beausoleil by refusing
to allow them to frequent the breakroom during their
off-duty hours.
The General Counsel relies on the testimony of James
and Sonya Gray and Karen Beausoleil to establish the al-
leged violations of paragraph 8.
James Gray testified that on Sunday night , either 22 or
23 March at 6 p.m., he had a conversation with Assistant
Store Manager Loren Sieminskie . James Gray testified
that he and his wife Sonya Gray were going to the back-
room at the store where the breakroom was located to
talk with meat market employee Kenny Gann . Gray tes-
tified:
We had no sooner gotten in the break room than
Loren [Sieminskie] came in and told me and Sonya
[Gray] that we was going to have to leave.
I asked him why.
He said there was a new rule in effect, that
nobody on, off the clock or ex-employees were al-
lowed in the back room, after that day.
I asked him if that meant for Managers , too, and
he said, he quessed so.
So, he escorted us out the front door.
James Gray testified he had never seen any such writ-
ten rule . Prior to March James Gray stated he had ob-
served management run ex-employees out of the back-
room from time to time but had to his knowledge never
observed management run off-the-clock employees from
the back room.
James Gray testified that the following day (March 24)
at 12 noon he observed an off-the-clock employee by the
name of Vi in the breakroom having lunch with the
meatcutters . Gray testified he asked Assistant Store Man-
ager Dean Morris how come nothing was said to her
about the rule . According to Gray, Morris told him it
was none of his business , that if he wanted to know to
ask Store Manager Hoffman . Gray testified there was no
time limitation placed on the rule when Sieminskie in-
formed him of it.
On cross-examination, Gray indicated he could not be
precise about the date when the incident in the break-
room between he and Sieminskie took place , however,
a Even if the version of the two conversations were as testified to by
Beausoleil and Gray , I would not recommend a violation inasmuch as the
conversations were ambiguous and nothing in either exchange as testified
to by either employee could reasonably be interpreted as establishing an
attempt on the part of Respondent to learn about its employees' union
activities or that would indicate their union activities had been placed
under surveillance.
he indicated it was on a Monday . James Gray indicated
those present at the time other than himself were Sonya
Gray, Kenny Gann, and Brenda Adams, a former em-
ployee of Respondent . According to Gray, all were
asked to leave except Gann who was working but on
break at the time. Gray testified that to get into the
breakroom it was necessary to enter the backroom. Gray
testified that Sieminskie told him the purpose of the rule
was because Respondent had been having part-time em-
ployees coming back into the backroom area talking to
and not allowing the working employees to do their
jobs . Gray testified that Sonya Gray did not ask Siemins-
kie any questions because she was too busy talking to
Brenda Adams . James Gray acknowledged on cross-ex-
amiation that Loren Sieminskie had been promoted to
assistant store manager at a time when Gray thought he
should have been asked about the job. Gray stated he
was "hurt and disappointed" that Respondent did not ask
him about the job. Gray stated that Respondent had been
running ex-employees out of the backroom for as long as
he could remember.
Gray testified that 2 days after Sieminskie ran him out
of the backroom he observed an individual named Fer-
guson in the backroom talking to Sieminskie and that
promoted him to ask Store Manager Hoffman about the
rule. According to Gray, Hoffman told him there was no
such rule .? With respect to the rule Gray testified on
cross-examination in response to questions from Re-
spondent's counsel as follows:
Q. (Attorney Strecker): Now, as I recall you
stated on direct examination, Mr. Sieminskie stated
that there would be no off duty employees in the
break room after that day; is that what you said?
A. (James Gray): He stated that there would be
no ex-employees , or employees off the clock, al-
lowed in the back room after that-after-he said,
new rule.
Q: You said , "After that day", didn't you?
A. From here on in.
Q. So he didn't say after that day, except `here
on in?'
A. Yes
Q. Which one did he say, do you recall?
A. Here on in.
Q. So when you said "After that day" or what-
ever, that was just a mistake?
A. That's just a figure of speech.
Sonya Schofield Gray testified that she was present at
a conversation on March 24 , 1981 , involving Assistant
Store Manager Sieminskie . Gray testified she had gotten
off work at approximately 6 p.m. and she and her hus-
band (James Gray) went to the backroom at the store to
talk to employee Kenny Gann . Those present in the
backroom at the time , according to Gray, were Gann,
Gann 's friend, former employee Brenda Adams, James
Gray, and herself. Gray testified she and her husband
7 On redirect examination of Gray by the General Counsel, Gray
stated, with respect to his conversation with Hoffman, "I asked him
about the rule, and he said there was no rule in effect after 5 o'clock."
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been in the back room area for a minute , if that
long, when Sieminskie came back to where they were
and told ex-employee Brenda Adams that she was not
supposed to be in the backroom because she was no
longer employed there.
According to Gray, Sieminskie asked her and James
Gray if they were on the clock and they responded that
they were not. Gray testified, "He told us that it was a
rule that we were not to be in the back room when we
were off the clock, and that we were not supposed to be
in the store unless we were working or shopping." Gray
testified that her husband James asked Sieminskie some-
thing to the effect if the rule applied to management per-
sonnel as well, and Sieminskie responded that he guessed
it did. No timeframes were placed on the rule , according
to Gray. Gray testified that in the year and a half she
was employed at Respondent she had on occasion gone
into the breakroom , which was located in the backroom
for the purpose of talking with her friends on her lunch
period and she was never previously asked to leave the
breakroom . Gray stated she observed a specific incident
after March 24, 1981 , where a woman from the meat de-
partment named Vi, who was not working on the day in
question, had come to the store and was in the break
area of the backroom having lunch with some of her
meat department friends. Gray asked Store Manager
Hoffman why Vi was not asked to leave the backroom
area and that he made no response to her inquiry. Gray
testified that to her personal knowledge employee Vi did
not sign the letter indicating she was one of the union
organizing committee persons.
Karen Beausoleil testified that she had a conversation
with Assistant Store Manager Dean Morris on March 25
when she had gone to the store to buy groceries. Beau-
soleil stated she was in a checkout lane at the store when
Morris made "a little wise crack" about Beausoleil not
having any shoes on. Beausoleil testified she told Morris
that she never wore shoes unless she was working. Beau-
soleil testified she asked Morris if it was true that "we
could not come into the store any more, unless we were
working or buying groceries." Morris answered that it
was true and Beausoleil asked him, "when did this start,
yesterday?" Morris replied, according to Beausoleil,
"No, it's been a rule all along, it just hasn 't been into
effect" or "they haven't been enforcing it." Beausoleil
testified that prior to this time she had been coming into
the store on her off-duty hours to have lunch or take
breaks with fellow employees in the breakroom . Beauso-
leil testified that following her conversation with Morris
she observed an employee named Vi in the backroom
with hair rollers in her hair and no one told her to leave.
Respondent's store manager, Jim Hoffman, testified he
had been in the grocery business for approximately 18
years and commenced work for Respondent at its
Owasso store in January 1978, prior to the stores open-
ing in March of that same year.
Hoffman testified that Respondent had encountered a
problem concerning pilferage by employees at its
Owasso store. Hoffman stated the store had approximate-
ly 30,000 square feet of space, a portion of which at the
rear of the store was partitioned off and utilized for stor-
age. In the middle of the storage area, which was gener-
ally referred to as the back area or backroom, was a
breakroom . According to Hoffman , there were metal
swinging doors that permitted entrance into the back-
room area from the customer area of the store. Custom-
ers were not permitted in the backroom . Hoffman de-
scribed the backroom problem as one involving pilfer-
age, vandalism , and product damage caused by nonem-
ployees as well as off-duty employees being in the non-
customer area . Hoffman testified that there would be on
a daily basis approximately $75,000 worth of merchan-
dise stored in the backroom . Hoffman stated the vandal-
ism and damage consisted of eggs, apparently thrown
and splattered on the backroom walls, holes made in car-
tons of milk, stacks of sugar and flour slit with razor
blades or pocket knives, and jars of olives , pickles,
candy , and the like opened and either eaten or vandal-
ized.
Hoffman testified there were three supervisors present
in the store between opening in the morning and 5
o'clock in the afternoon during the period of January to
June 1980. After 5 p .m. there was only one supervisor in
the store that , according to Hoffman, made it difficult to
patrol the backroom area of the store and at the same
time attend to matters at the front of the store : such as
servicing customers , cashing checks, answering the
phone, and carrying out customers' groceries . As a result
of the problems in the backroom , Hoffman testified he
promulgated a rule to alleviate the situation . Hoffman
testified he established the rule at approximately the
same time the store was opened.
Hoffman stated he discussed the rule in question at a
store meeting of employees in either October or Novem-
ber 1979 . The rule , according to Hoffman , was primarily
in effect after 5 p.m. when there was only one supervisor
present in the store. Hoffman testified the rule did not
apply to employees who were on their lunch or break
period and the rule pertained to off-duty employees only
after 5 p .m. Hoffman testified he told the employees he
preferred they not come in the store when they were off
duty and he wanted them to stay out of the backroom
when they were off duty . Hoffman testified that he had
enforced the rule at least several times a week prior to
March 1981.
Hoffman testified that in February 1981 it came to his
attention that Assistant Store Manager Sieminskie did
not fully understand that the rule prohibited off-duty em-
ployees from being in the break area. Hoffman stated he
explained the rule to Sieminskie at that time , telling him
that it did in fact cover off-duty employees.
Store Manager Swenson stated there was a policy in
existence when he was assistant store manager at the
Owasso store from May 1978 until August 1980 that off-
the-clock employees were not to be in the backroom of
the store after they had clocked out for the day. Swen-
son stated the rule applied at either 4 or 5 p .m. after the
employees had gotten off from work . Swenson testified
that the existence of the policy was to prevent vandalism
and pilferage in the backroom . Swenson testified Hoff-
man had spoken to him about the policy and that he,
Swenson, had an opportunity to enforce the policy while
he was assistant manager at the Owasso store.
SUPER-H DISCOUNT 735
Loren Sieminskie was called as a witness by Respond-
ent and testified he had been assistant manager of the
Owasso store for approximately a year. Sieminskie testi-
fied he was aware of employees stealing property or
damaging property in the backroom at the store, such as
opening and drinking soft drink beverages, beer, boxes of
candy, bakery items , and the like . Sieminskie related a
specific incident where two off-duty employees were in
the backroom throwing produce against the wall. Sie-
minskie stated the rule had been promulgated to elimi-
nate problems in the backroom after 5 p .m. and the rule
applied to off-duty employees . Sieminskie stated the rule
had been in effect for at least the 2-1/2 years that he had
worked at Respondent . The reason for the 5 p.m. rule is
to provide the assistant store manager on duty more con-
trol over the amount of activity that could take place in
the backroom. Sieminskie testified he had enforced the
rule at the Owasso store prior to March.8
Sieminskie recalled the occasion when he asked James
and Sonya Gray, along with a nonemployee , to leave the
backroom . Sieminskie stated the store was quite busy
when he observed James and Sonya Gray and the other
individual around 5 or 6 p.m. in the backroom. Siemins-
kie testified he checked to see if they were on the clock
and, when he determined they were not, he explained to
them they would have to leave the backroom area of the
store . Sieminskie testified he had no idea what they were
talking about at the time he asked them to leave. Sie-
minskie testified the Grays became angry when asked to
leave the backroom. Sieminskie testified he was sure that
James Gray was aware of the backroom rule because he
had been present with him when the assistant manager
prior to Sieminskie had ejected several individuals from
the backroom pursuant to Respondent 's policy . Siemins-
kie testified there was one occasion in March in which
James Gray was in the backroom after 5 p. m. at a time
when he was off the clock, but that Sieminskie was
present with him the entire time and Gray was helping
him to move a compressor . According to Sieminskie,
after the compressor was moved they left the backroom
together.
In resolving credibility with respect to this aspect of
the case it is important to note that certain matters are,
on this record , undisputed . It is undisputed that the
Owasso store was experiencing vandalism and pilferage
in its backroom . The pilferage included damage and/or
destruction to produce, dry goods, and canned bever-
ages . It is further undisputed that the merchandise stored
in the backroom had, on a daily basis, a value of approxi-
mately $75 ,000. It is, therefore, very probable and logical
that Respondent's management personnel took action to
prevent or eliminate such pilferage and vandalism. It is
further very probable that Respondent needed and insti-
tuted as testified to by Hoffman, Swenson, and Siemins-
kie a rule that applied after 5 p.m., which was a time
when there were approximately 66 percent less manage-
ment personnel present . I, therefore, am persuaded that
9 Sieminskie stated there was a time when he misunderstood the rule to
the extent that he thought off-duty employees would be permitted in the
breakroom as opposed to the backroom but that his understanding was
corrected by Store Manager Hoffman.
Respondent had an established rule, valid on its face,
which was designed to help eliminate vandalism and pil-
ferage. I am further persuaded and credit the testimony
of Respondent's witnesses that the rule had been in effect
for an extended period of time prior to March 1981. I
credit the testimony of Sieminskie with respect to the
action he took on March 24 when he asked Sonya and
James Gray along with Brenda Adams to leave the break
area of the backroom . I have concluded that James
Gray's testimony is unworthy of belief with respect to
his and others' removal from that area. I found the be-
lievability of James Gray's testimony to be greatly dimin-
ished when on cross-examination he acknowledged that
part of his testimony with respect to what he was told
when he and the others were removed from the back
was "just a figure of speech." Such an admission by
James Gray leaves open the possibility that other of his
comments were just figures of speech as opposed to
what was actually said . Additionally , James Gray was
not a totally unbiased witness in that he was "hurt" and
"disappointed" that he did not receive the assistant store
manager's job instead of Sieminskie . Gray's own testimo-
ny tends to support the conclusion that there had been a
rule in effect for an extended period of time inasmuch as
his testimony indicated that during the 2-1/2 years he
had been at Respondent he had observed Respondent re-
moving nonemployees from the backroom area of the
store. I find totally unbelievable James Gray's testimony
that 2 or 3 days after he was removed from the back-
room at the store he asked Store Manager Hoffman
about the rule and , according to Gray, was told there
was no such rule . When viewed in light of the undis-
puted facts of vandalism and pilferage in the backroom
along with James Gray's admission that ex- or nonem-
ployees were run out of the backroom, I conclude it is
simply unbelievable that Hoffman would have stated to
Gray that there was no such rule covering the backroom
and break area . A further detraction from James Gray's
credibility was his testimony that he was told by Sie-
minskie when he was removed from the backroom that
Sieminskie was enforcing a new rule whereas Gray's
wife Sonya made no mention of Sieminskie stating it was
a new rule . Further, James Gray testified Sieminskie ran
them off immediately from the backroom whereas his
wife Sonya testified that Sieminskie first inquired of them
if they were on the clock before asking them to leave.
I, likewise , discredit the testimony of Sonya Gray that
the day following her having been removed from the
backroom she asked Store Manager Hoffman why, and
he did not respond to her, that a particular employee
was not asked to leave the backroom where she was
having lunch with meat department employees.
With respect to the testimony of Beausoleil, I have
very grave reservations that the statement she attributes
to Morris was made as testified to by her. I am persuad-
ed that the truth of what was said , if anything, is not in
this record with respect to the conversation Beausoleil
attributes to Morris . I have declined to draw an adverse
inference in this incident against Respondent although
Morris was not called to testify with respect to the con-
versation Beausoleil attributes to him . I have declined
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this instance to draw the inference as requested by the
General Counsel , although I have done so elsewhere in
this decision. I have declined to draw the inference in
this particular instance because of the other credited
record testimony , which in my opinion, established that
the rule was not a new one nor was it one that had not
been enforced but rather was a rule that had been en-
forced for an extended period of time prior to the advent
of the Union . Further , part of what Beausoleil would at-
tribute to Morris, that is that it had been a rule all along,
it just "hasn 't been into effect," constitutes a contradic-
tion in terms inasmuch as effect means to cause to come
into being . I therefore , conclude that the statement that
Beausoleil attributes to Morris with respect to the back-
room rule is unbelievable.
I conclude and find that Respondent did not disparate-
ly enforce a rule against employees James Gray, Sonya
Schofield Gray, and Karen Beausoleil by refusing to
allow them to frequent the breakroom during their off-
duty hours about March 24, inasmuch as the rule had
been in existence and enforced for an extended period
prior to that time and further there is no evidence that
the rule was disparately enforced on or after that time.
The testimony that there was an employee in the break-
room of the backroom area on March 25 during lunch-
time and not asked to leave, even though the employee
was off duty , was not inconsistent with the rule because
the rule did not apply until after 5 p .m. I, therefore, con-
clude and find that Respondent has not violated Section
8(a)(3) and (1) as alleged in the complaint with respect to
the rule and shall recommend that portion of the com-
plaint be dismissed in its entirety.
CONCLUSIONS OF LAW
Respondent is an employer engaged in commerce
within the meaning of the Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. James Hoffman, Loren Sieminskie , Dean Morris,
and Steve Swenson are supervisors and agents of Re-
spondent within the meaning of Section 2(11) and (13) of
the Act.
4. Respondent interfered with, restrained , and coerced
its employees in the exercise of their Section 7 rights by
interrogating its employees about March 24 regarding
their union activities , membership , and desires; and by
promulgating and maintaining since about March 24 an
overly broad no-solicitation rule by telling employees not
to talk about the Union on the clock, thereby violating
Section 8(a)(1) of the Act.
5. Respondent about March 27 did not create an im-
pression of surveillance of the union activities of its em-
ployees as alleged in the complaint.
6. Respondent did not violate the Act, as alleged in
the complaint, by refusing to allow James Gray, Sonya
Schofield Gray, and Karen Beausoleil to frequent the
breakroom during their off-duty hours.
7. Except as described above, Respondent has not
committed any unfair labor practices as alleged in the
complaint.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease
and desist therefrom and take certain affirmative actions
designed to effectuate the purposes of the Act.
[Recommended Order omitted from publication.]