Wegman's Food Markets

National Labor Relations Board - Board Decisions

Nov 29, 2007

351 N.L.R.B. 1073 (N.L.R.B. 2007)

WEGMANS FOOD MARKETS
351 NLRB No. 61
1073
Wegmans Food Markets, Inc. and Edwin R. Melhorn.
Case 5–CA–33228
November 29, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On August 3, 2007, Administrative Law Judge Richard
A. Scully issued the attached decision. The Charging
Party filed exceptions and a supporting brief, and the
Respondent filed an answering 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 decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
James C. Panousos, Esq. and Anne K. Yereniuk, Esq., for the
General Counsel.
R. Michael Smith, Esq., of Baltimore, Maryland, for the Re-
spondent.

1 We correct the following factual errors in the judge’s decision to
which the Charging Party has excepted. These errors do not affect the
judge's ultimate conclusions, which we adopt: (1) Edwin Melhorn met
with Wendy Webster and employee representative Mirsade Nasradinaj
on December 21, 2005, not Webster and employee representative Karin
Flanagan; (2) the date of the meeting that precipitated Melhorn’s termi-
nation was August 24, as specifically found by the judge, not August 22
as alternately stated at certain points in the decision; and (3) Melhorn
testified that he served in the Navy from 1943 to 1944, but was not an
officer.
The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Charging Party’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Charging Party’s contentions are with-
out merit.
2 In adopting the judge’s decision, we rely on his credibility findings.
We do not reach his alternate finding that, even if Melhorn’s testimony
were credited, there is insufficient evidence that he engaged in pro-
tected concerted activity.
Nor do we rely on the judge’s speculation that a request for “third
party review” could not, as a matter of law, indicate a desire for union
representation. Rather, we find, in the circumstances of this case, in-
cluding the Respondent’s own review procedures, that the Respon-
dent’s officials would not have interpreted Melhorn’s request for third
party review as a reference to possible unionization.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. Upon a
charge and amended charge filed by Edwin R. Melhorn on
September 13 and December 12, 2006, respectively, the Re-
gional Director for Region 5, the National Labor Relations
Board (the Board), issued a complaint on December 22, 2006,
alleging that Wegmans Food Markets, Inc. (Respondent), had
committed certain violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). The Respondent filed
a timely answer denying that it had committed any violation of
the Act.
A hearing was held in Baltimore, Maryland, on March 15,
16, 19, and April 3, 2007, at which the parties were given a full
opportunity to examine and cross-examine witnesses and to
present other evidence and argument. Briefs submitted on be-
half of the parties have been given due consideration.1 Upon
the entire record and from my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a New York corpo-
ration with its principal office and place of business in Rochester,
New York, engaged in the operation of retail grocery stores at
various locations, including one in Hunt Valley, Maryland, the
only facility involved in this proceeding. During the 12-month
period preceding December 22, 2006, Respondent in the conduct
of its business operations derived gross revenues in excess of
$500,000 and purchased and received at its Hunt Valley facility,
products, goods, and materials valued in excess of $5000 directly
from points outside the State of Maryland. Respondent admits,
and I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The parties have
stipulated, and I find, that United Food and Commercial Workers
Union, Local 27 (the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Charging Party Edwin R. Mel-
horn was unlawfully terminated by Respondent because he
engaged in concerted activity protected by the Act and because
it mistakenly believed that he was involved in activity in sup-
port of a union. It also alleges that Melhorn was unlawfully
interrogated by supervisors concerning his union and protected
concerted activities.
Melhorn was employed by Respondent at its Hunt Valley
store from August 2005 until August 28, 2006. Melhorn, who
is in his early 80s, is a college graduate and had served as a
naval officer during World War II. Prior to his employment
with the Respondent, he had a 30-year career as a manager with

1 The unopposed posthearing motion by counsel for the General
Counsel, to remove certain exhibits that were not admitted into evi-
dence but were inadvertently included with the official hearing tran-
script, is hereby granted. Those exhibits have been given no considera-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1074
IBM Corporation and had also worked for approximately 13
years in several capacities for the United Methodist Church.
Melhorn was hired as an entry-level employee and began
working cleaning and assembling shelves before the store
opened to the public in October 2005. Once the store opened,
he was assigned to the customer service desk where he worked
until December 2005. In early November 2005, Melhorn met
with Area Manager Douglas Porter, employee representative
Laurie Katerle,2 and his immediate supervisor, JoAnne Handy-
Sims, to discuss alleged deficiencies in his job performance at
the customer service desk. During the meeting, Melhorn criti-
cized Handy-Sims as “unapproachable,” said he was “not one
of her favorites,” that she treated every mistake he made as a
”federal offense,” and he said that he had not been properly
trained to do his job. It was agreed that they would meet again
in 2 weeks to see if there was any improvement.
On November 25, 2005, Melhorn had an argument with an
African-American employee at the customer service desk.
When Front End Manager Andrew Kujawa attempted to inter-
view Melhorn about what had occurred, Melhorn said that he
did not want to discuss it because in Baltimore, in situations
involving blacks and whites, the blacks always come out on
top. He also said that he knew he would be found to be at fault
because the other employee was black and blacks always come
out on top when a white attacks them in the workplace. Ku-
jawa responded that he considered Melhorn’s comments to be
inappropriate and sent him home for the day. Melhorn did not
deny making these comments to Kujawa when he met with
Porter and Katerle to discuss the incident. He did, however,
accuse Kujawa of misrepresenting what had occurred, criticized
his handling of the matter, and asked that Kujawa be repri-
manded. On December 1, 2005, Melhorn was given a written
warning for his comments to Kujawa which were considered to
have violated Respondent’s “nonharassment policy” and to
have shown a lack of respect for fellow employees.
When Melhorn’s performance at the customer service desk
did not improve, he was reassigned to work as a cashier. Porter
testified that this was done because Melhorn’s performance at
the customer service desk was substandard, that he had been
trained to operate a cash register as a part of his customer ser-
vice duties, that he was unhappy working under Handy-Sims,
and that the cashier position involved fewer tasks than the cus-
tomer service desk. Melhorn was not happy about this reas-
signment and complained about it in a letter to Katerle, dated
December 5, 2005. The letter accused Kujawa of defaming and
lying about Melhorn, accused Respondent of retaliating against
him because he had reported being discriminated against by his
supervisor at the customer service desk, and stated if the matter
was not resolved to his satisfaction he was “prepared to take
appropriate steps to correct this injustice.” On December 10,
Melhorn sent a letter to Store Manager Wendy Webster re-
questing a meeting with her and Company CEO Danny Weg-

2 An employee representative is an employee of Respondent’s hu-
man resources department whose duties include acting as an employee
advocate in meetings with management concerning employee perform-
ance issues. They are supervisors and agents of the employer within
the meaning of the Act.
man to discuss the list of complaints he outlined therein. This
was followed by another letter to Webster, dated December 16,
repeating his complaints and stating that if she did not respond
by December 19, he was going to contact Danny Wegman.
On December 21, Melhorn met with Webster and employee
representative Karin Flanagan. Webster told Melhorn he was a
valuable employee and she wanted to see him continue working
at the store. They eventually agreed that Melhorn might be
happier in a job which involved demonstrating products in the
cheese shop section of the store. He was then assigned to re-
shopping (putting items back on the shelves), until March
2006,3 when he began working in the cheese shop.
During the approximately 6 months that he worked in the
cheese shop, Melhorn received a number of counselings, two
warnings, and a suspension for violating work rules. Before
starting in the cheese shop, Melhorn had to complete a com-
puter-based training program on food safety. Among the areas
included in these instructions is Respondent’s “glove rule”
which requires that anytime employees touch something that
could potentially contaminate the food they are demonstrating,
they must wash their hands and put on new plastic gloves. On
several occasions, Melhorn violated the glove rule or other
parts of the food safety policy. The violations included wearing
his gloves out of his work area, failing to change his gloves
after eating a piece of cheese and after blowing his nose, failing
to sanitize a knife he had dropped on the floor, wearing a mesh
protective glove while eating in the breakroom and while enter-
ing a restroom, and attempting to reuse food that had been
thrown in the trash. As a result, Melhorn ended up taking the
food safety course a total of three times. He also violated Re-
spondent’s timeclock rule by making a purchase in the store
while on the clock instead of while off the clock or during a
break period. On August 5, Melhorn was suspended for 3 days
for going into the bakery and taking a cookie from a sample bin
with his bare hand which required that the remaining cookies in
the bin be destroyed. He had previously been told by a bakery
supervisor that he had to use a glove when removing cookies
from the bin. Cheese Shop Supervisors Monika Thompson and
Erin MacMillan and Service Area Manager Shawn MacKay, all
of whom had counseled Melhorn about glove rule violations,
credibly testified that Melhorn often made sarcastic comments
and/or engaged in conduct they considered mocking and disre-
spectful by waving his gloved hands or mentioning the number
of gloves he had used during a shift.
On August 7, Melhorn sent a letter to Respondent’s CEO
Wegman complaining about the management of the Hunt Val-
ley store. He asserted that morale was slipping badly, in part,
because “Wegmans does not provide an independent third-party
review of labor relations decisions or a fair process for appeal-
ing disciplinary actions,” and he requested a personal meeting
with Wegman to discuss his experiences at the store. Store
Manager Wendy Webster was instructed by Senior Vice Presi-
dent Mark Ferrera and HR Manager Kevin Stickles to meet
with Melhorn and to address his concerns, which is Respon-
dent’s usual procedure when an employee contacts the CEO.
On August 24, Webster and Flanagan met with Melhorn in

3 Hereinafter, all dates are in 2006.
WEGMANS FOOD MARKETS 1075
Webster’s office. What occurred at that meeting is in some
dispute; however, it is what led to Melhorn’s termination.4
Melhorn testified that when he arrived at the meeting he was
surprised to find Flanagan present because she had not told him
she would be there when she arranged the meeting. Flanagan
offered to leave but he told her to stay. Webster said she
wanted to discuss his letter to Wegman and that he could meet
with her or meet with Ferrera and Stickles, but not both, and he
agreed to talk to Webster. Webster began by saying she didn’t
know how to satisfy him. Melhorn responded that she should
treat him like every other employee and Webster said she could
not treat 800 employees the same. Melhorn said that he wanted
to discuss his letter, that he had been treated unfairly, that he
had been accused of stealing time, that he had been followed
around the store on three occasions, and that he had been
falsely accused of food safety rule violations. He also said that
there were morale problems in the cheese shop, that the em-
ployees were frustrated, and “the place is ready to explode.”
He said that there were morale problems in his old department
customer service. Melhorn next said that he felt Wegmans
needed an independent representative in labor relations deci-
sions and a fair process for appealing disciplinary actions. At
that point Webster threw up her arms and said: “[Y]ou’re talk-
ing union, aren’t you? That’s what you’re talking about.
You’re talking about the union. We don’t need a union here.
Have you been soliciting employees?” Melhorn said he had
not, but that employees had come to him, referring to morale
problems in the cheese shop and customer service desk. Web-
ster concluded by saying she would try to set up a meeting for
him with either Ferrera or the human resources representative.
When asked if he had anything else to say, Melhorn responded
that he had noticed a startling parallel between his treatment at
the store—being followed and under constant surveillance
which made him afraid to walk around in the store—and “the
Gestapo-like tactics of Nazi Germany.” Webster responded
that he would hear from them and he left the office.
Webster testified that at the start of the meeting she told Mel-
horn that she wanted to discuss his letter to Wegman and asked
how she could help him. She said that Melhorn seemed unhappy
and angry that the company CEO had not come from Rochester
to Hunt Valley to meet with him and that his demeanor during
the meeting was “aggressive and disrespectful.” Melhorn com-
plained about things that had happened to him including his sus-
pension, about morale at the cheese shop, and criticized the man-
ager. Although she said it was difficult to get Melhorn to focus
on his letter to Wegman, he did say that “an independent third-
party was needed to review Wegmans’ labor relations decisions.”
She told Melhorn that the Company had avenues available to
pursue complaints such as the “You First” line (an anonymous
complaint line operated by an outside consultant) and “Ask Jack”
(an internal line to the senior vice president of operations). She
denied telling Melhorn that his comments sounded like “union
talk,” or accusing him of stirring up trouble among the employ-
ees. Melhorn told her “more than once” during the meeting that

4 Respondent asserts that this meeting was on August 22 but the evi-
dence as a whole indicates it was on August 24.
she “did not want to hear the truth about the store” and that “she
ran a Nazi-like environment.”
Flanagan testified that at the meeting Melhorn was upset that
the CEO was not there and that he was disrespectful, confronta-
tional, and hostile. He said he was concerned that the Company
had accused him of stealing time and it was trying to build a
case against him, that he was intimidated by his suspension,
and that people were following him around. He said that mo-
rale was bad in the cheese shop and that the manager was a
“manipulative and nasty young woman.” He told Webster that
“the company was a Nazi-like environment” and said “the truth
hurts, doesn’t it?” Melhorn said that an independent third party
was needed to review Wegmans’ labor relations decisions and
Webster referred him to the “You First” and “Ask Jack” pro-
grams. She said she did not know what Melhorn meant by “an
independent third party,” that Melhorn did not say what he
meant by his references in his letter to a third party review of
labor relations decisions or a fair process for appealing discipli-
nary actions, and that he was not asked any questions about
either subject. Melhorn did not make any comments about the
need for a union at Wegmans and did not indicate that he was
active on behalf of a union. He was not asked any questions
about his union activities or sympathies or whether he was
attempting to organize or unionize the employees.
Melhorn was told to meet again with Webster on the follow-
ing day at 9 a.m. Following the meeting and again the next
morning, Webster discussed what had occurred with Ferrera
and Stickles. They discussed Melhorn’s work history, the pre-
vious incident involving his disrespect toward other employees,
and his multiple problems in the cheese shop and concluded
that he should be terminated. When Melhorn arrived at her
office the next morning, Webster was on the telephone and, at
approximately 9:20 a.m., Melhorn left the store. Around 11
a.m., Webster telephoned Melhorn and told him that he was
being terminated “due to disrespect.” Melhorn asked for a copy
of the termination notice but Webster declined to provide it to
him. A memorandum in Respondent’s files prepared by Web-
ster states that Melhorn was terminated for numerous work rule
violations and for his disrespectful comments to Webster that
the store was a “Nazi-like environment,” “you don’t want to
hear the truth” and “the truth hurts doesn’t it.”
Counsel for the General Counsel asserts that Melhorn was
terminated in retaliation for his union and other protected con-
certed activity. The evidence shows that on April 6, Melhorn
went to the Towson office of Local 27 and met with organizer
Timothy Goins. Melhorn inquired about attempting to organize
Respondent’s Hunt Valley store. Goins talked to him about
Local 27’s policies and procedures and explained what an or-
ganizing effort at a large store would involve. Goins gave
Melhorn some union literature and a single union authorization
card. He suggested that Melhorn set up a meeting with a small
group of interested employees. No such meeting was ever ar-
ranged. Melhorn did not sign a union authorization card, he did
not solicit cards from other employees, and he never talked to
any other employees about getting a union at the store. There is
evidence that Local 27 representatives passed out union litera-
ture at the Hunt Valley store on June 22 as part of a handbilling
effort or “blitz” at Wegmans stores throughout the East Coast.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
There is no evidence that Melhorn had any involvement in that
handbilling effort.
Melhorn testified that shortly after he began working in the
cheese shop in March, he spoke with some coworkers, whose
full names he did not know, about conditions there because
some of them did not appear to him to be happy. He said that
one employee named Donna told him that morale in the de-
partment was poor, that they were frustrated, and that the place
was ready to explode. Donna did not say what she meant by
this and he did ask her. Melhorn testified that a week or so
later he spoke to Flanagan and informed her as to what he had
been told about the morale problems in the cheese shop, the
employees’ frustration, and it being about to explode. He told
Flanagan that the employees had taken their concerns to human
resources but that nothing had been done and told her that this
made him wonder “if third party representation is needed in a
matter such as this.” Flanagan did not ask him what he meant
by “third party representation,” but told him there was no need
for it. Melhorn testified that he again raised the need for “an
independent third party representative” during a meeting with
Flanagan on June 10 in which he was reprimanded following a
customer complaint about a glove rule violation. Flanagan did
not ask him what he meant and he did not explain but she said
she did not agree with him. In a followup meeting several days
later with Flanagan and Katerle, Melhorn told them they were
not true employee representatives which were needed in the
store and said he was talking about “an independent third party
representative.” Katerle asked him if he didn’t like the way
things were done at the store why he didn’t leave. He re-
sponded that he needed the job and that he wanted to be an
agent of change.
In her testimony, Flanagan denied that these conversations
about an independent third-party representative ever took place,
saying, that Melhorn had never come to talk to her about morale
in the cheese shop, never said that the cheese shop was ready to
explode, and, prior to August 22, had never said anything to her
about the need for third-party review. Katerle testified that she
met with Melhorn in June, after he asked to see his personnel file,
and that Flanagan was present. They discussed his concerns
about the store management and Melhorn said that people were
following him and watching his every move. She asked why he
chose to work there if he was so unhappy and he responded that
he was 80 years old and that this job was his last resort. Melhorn
said that he wanted to see things changed. She told him to jot
down what he would like to see changed and they would meet
again to discuss what they could do to make the changes happen.
The conversation ended after Melhorn said he did not need to see
his personnel file but he never followed up with her about the
changes he wanted to see. Katerle denied that Melhorn said any-
thing about morale in the cheese shop or the store or that he said
anything about the need for employee representation by an inde-
pendent third party at the store.
Analysis and Conclusions
In cases where an employer’s motivation for a personnel ac-
tion is in issue, it must be analyzed in accordance with the test
outlined by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). Under Wright Line, the General Counsel
must persuade the Board that animus toward protected activity on
the part of employees was a substantial or motivating factor in
the employer’s decision. Once that has been done, the burden
shifts to the employer to demonstrate that it would have taken the
same action even in the absence of protected activity on the part
of the employees. Manno Electric, 321 NLRB 278, 280 at fn. 12
(1996). The General Counsel’s initial burden is met by proof of
protected activity on the employee’s part, employer knowledge
of that activity, and employer animus toward it. W. R. Case Cut-
lery Co., 307 NLRB 1457, 1463 (1992).
It is clear that Melhorn did not engage in any activity in sup-
port of the Union beyond a single visit to its Towson office in
April. He did not sign an authorization card and he took no
action to follow up on the union representative’s suggestion
that he arrange a meeting of employees to discuss representa-
tion. He admits that he did not talk to any other employees
about the Union or solicit any support for it. He had no in-
volvement in the Union’s “blitz” at the Hunt Valley store on
June 22 in which union literature was distributed. There is no
evidence that any of Respondent’s supervisors was aware of
Melhorn’s contact with the Union and I find that no discipli-
nary action was taken against him as a result of that contact.
Counsel for the General Counsel contends that Melhorn was
engaged in protected, concerted activity when he sent his letter
to CEO Wegman and when he discussed it with Webster on
August 22. I do not agree. The standard for determining
whether an employee’s activity is concerted is found in the
Board’s decision in Meyers Industries, 281 NLRB 882 (1986),
where on remand, it reaffirmed the definition set forth in its
prior decision in the case, Meyers Industries, 268 NLRB 493,
497 (1984), that it must “be engaged in with or on the authority
of other employees, and not solely by and on behalf of the em-
ployee himself.” The only evidence in the record of Melhorn’s
alleged concerted activity consists only of his own self-serving
testimony.
I found Melhorn to be a singularly unreliable witness who
appeared to be unable to admit any failings or accept personal
responsibility for his actions. The record shows that when he
was criticized or reprimanded for ineptness or work rules viola-
tions, he consistently claimed that he did not commit any viola-
tions, that he was not properly trained, and/or he was the victim
of a plot by management to build a case against him. The evi-
dence shows that although Respondent made special arrange-
ments to permit him to take a food safety training program
three times, he repeatedly violated Respondent’s glove rule that
was a part of that training. Melhorn admittedly deliberately
lied on the employment application he submitted to Respondent
(omitting the fact that he was a college graduate) because he
had “been advised” that if he indicated that he was a college
graduate he would probably be considered “over-qualified” for
the entry level job he was seeking. In an affidavit Melhorn
gave the Board in which he was asked to describe the meeting
with Webster and Flanagan on August 22, during which he
made comments that led to his termination, he omitted any
reference to accusing Webster of running a “Nazi-like envi-
ronment” or saying that she “didn’t want to hear the truth.” He
WEGMANS FOOD MARKETS 1077
now admits saying those things but testified that he did not
think they were “important.” Melhorn told Maryland Unem-
ployment Insurance Adjudicator Robert Marker that his re-
marks were not disrespectful and that he felt justified in accus-
ing management of being “Nazis” because that is what they
were. He also told Marker that he had become enraged during
the August 24 meeting with Webster.
I do not credit Melhorn’s testimony about his purported con-
versations with other employees of the cheese shop about prob-
lems there. No other cheese shop employee corroborated his
testimony and his claims about the employees’ unhappiness
were refuted by the credible testimony of MacMillan, Webster,
and Flanagan. However, even taking Melhorn’s testimony at
face value, it fails to establish that he did anything “with or on
the authority of other employees” or even sufficiently identify
who those employees might be. According to his vague, gener-
alized testimony, Melhorn talked to some employees shortly
after he began working at the cheese shop because some of
them looked unhappy. An employee named “Donna” told him
that morale in the cheese shop was bad, that the employees
were frustrated, and the place was ready “to explode.” Al-
though Donna did not say what she meant by any of this (and
Melhorn did not ask her), it was the alleged basis for his actions
in contacting management. There is no evidence that Melhorn
discussed taking any action about perceived problems in the
cheese shop with any other employee or that any other em-
ployee was aware that he was going to contact human resources
about those problems or write a letter about them to the CEO of
the Company. There is also no evidence that any other em-
ployee authorized Melhorn to speak on his or her behalf.
In his letter to Wegman, Melhorn offered his view of the
Hunt Valley store and stated, “[M]y enthusiasm has been di-
minished by my personal experience of discrimination, retalia-
tion, mendacity, intimidation, and lack of respect by . . . man-
agement.” He also stated, “I would like to meet with you to
discuss the details of my experiences at Wegmans Hunt Val-
ley.” His only arguable reference in the letter to anyone other
than himself is his statement that “morale is slipping badly,” an
apparent reference to the entire store, not just the cheese shop.
Similarly, at the August 24 meeting with Webster, he men-
tioned morale in the cheese shop but the focus of his remarks
was the alleged mistreatment of himself as an individual. Web-
ster testified that she believed that Melhorn was speaking on his
own behalf when he met with her on August 24 and that she
never had the impression that he was acting or speaking on
behalf of other employees. I find the evidence fails to establish
that Melhorn was engaged in concerted activity when he sent
his letter to Wegman, nor when he met with Webster on August
24 to discuss his letter.
Counsel for the General Counsel contends that, even if Mel-
horn did not actually engage in any union activity or in any
concerted activity, Respondent thought that he did and that is
why it terminated him. I did not believe Melhorn’s testimony
that he repeatedly voiced his concern that independent third-
party employee “representation” was needed at the store to
human resources personnel, based on his overall lack of credi-
bility, the complete absence of any corroborating evidence, and
the credible denials by both Flanagan and Katerle that he ever
mentioned it to them. In his August 7 letter to Wegman, which
was discussed at the August 24 meeting that resulted in his
discharge, Melhorn stated that morale at the store was slipping
because of “onerous conduct on the part of Hunt Valley man-
agement and also the fact that Wegmans does not provide an
independent third-party review of labor relations decisions or a
fair process for appealing disciplinary actions.” This, it is ar-
gued, led Respondent to believe Melhorn was advocating that
there be union representation of employees at the store and that
was the motivation behind and the real reason for his discharge.
The only support for this argument is Melhorn’s self-serving
testimony that at the August 24 meeting with Flanagan and
Webster, when he said that Wegmans needed “independent
third party representation in labor relations decisions” and “a
fair process for appealing disciplinary actions,” Webster threw
up her arms and said: “You’re talking union, aren’t you. That’s
what you’re talking about. You’re talking about the union. We
don’t need a union here. Have you been soliciting employees?”
I did not believe his testimony. First, both Flanagan and Web-
ster credibly denied that Webster made any reference to a union
during the meeting.5 Their mutually corroborative testimony
described a meeting in which, at the outset, Melhorn became
irate when he learned that the CEO of the Company had not
come to Hunt Valley from Rochester to meet with him. He was
hostile and argumentative throughout the meeting. He stated
his belief that he was being followed around and that manage-
ment was building a case against him. He complained about
being suspended and about his supervisor MacMillan whom he
admittedly asserted was “an asshole” and “a nasty, manipulat-
ive young woman,” although he said he was just repeating what
other employees had told him.6 While Melhorn told them that
morale in the cheese shop was bad, both Webster and Flanagan
testified they believed that the opposite was true since em-
ployee turnover there was low and they had heard no other
complaints.
In his letter to Wegman and in a statement he prepared some-
time after his meeting with Webster, Melhorn referred to the
need for independent third-party “review” of labor relations
decisions, not “representation” and he did not elaborate on what
he meant by such review. The difference is significant. While
it might reasonably be argued that “independent third party
representation” means union representation, this cannot be said
of “independent third party review” which suggests a disinter-
ested, neutral arbiter. A union presumably serves as an advo-
cate for the employees it represents, not as a neutral party. I
find it unlikely that any employer would consider having its
employees’ collective-bargaining representative review its la-
bor relations decisions or disciplinary actions; consequently, I
do not believe Melhorn’s claim that Webster concluded from

5 I find counsel for the General Counsel’s attacks on the credibility
of Webster and Flanagan are not persuasive and find no basis for credit-
ing Melhorn over them. Moreover, I find Melhorn’s failure to mention
Webster’s alleged “union” comments to Marker, the unemployment
adjudicator on his claim, suggests they were not made.
6 While counsel for the General Counsel argues this is evidence that
he was speaking on the behalf of other employees, I find it another
example of his inability to take responsibility for his own words and
actions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1078
his statement, that Wegmans needed such reviews by an inde-
pendent third party, that he was “talking union.”
As noted, I did not believe Melhorn’s testimony that Webster
accused him of talking union nor that she asked him if he had
been soliciting employees at the August 24 meeting. There is
no other evidence casting any doubt on the credible testimony
of Webster and Flanagan that this never happened. Accord-
ingly, I find that the allegation that Melhorn was subjected to
an unlawful interrogation has not been proved.
The General Counsel has presented evidence of union ani-
mus on Respondent’s part, consisting of an antiunion video
shown to new employees, which is not alleged to be unlawful.
E.g., Ross Stores, Inc., 329 NLRB 573, 576 (1999); Affiliated
Foods, Inc., 328 NLRB 1107 (1999). However, I find that the
evidence fails to establish any nexus between this animus and
Melhorn’s discharge which is essential to establish a violation.
Teletech Holdings, Inc., 333 NLRB 402 fn. 2 (2001). Nothing
in the video suggests that Respondent’s hostility towards un-
ions was such that it would be willing to violate the law by
discriminating against employees to keep unions out. Raysel-
IDE, Inc., 284 NLRB 879, 880 (1987); Fibrican Corp., 259
NLRB 161, 171–172 (1981).
The timing of disciplinary action can be indicative of an
unlawful motivation. Masland Industries, 311 NLRB 184, 197
(1993), Limestone Apparel Corp., 255 NLRB 722, 736 (1981).
That is not the case here. In fact, even if all Melhorn’s testi-
mony were to be believed, and he spoke about third party “rep-
resentation” at the August 24 meeting, it would have been no
different than what he had already told human resources per-
sonnel several times months before. What is different is that he
had not previously accused Respondent of operating a “Nazi-
like” environment or told the store manager that “the truth
hurts.” I find that the timing of Melhorn’s discharge is ex-
plained by these comments at the August 24 meeting, not by
any revelation that he was “talking union.”
Counsel for the General Counsel contends that Melhorn’s
comments to Store Manager Webster at the August 24 meeting
were not so egregious as to lose the protection of the Act. It is
clear that his comments were insubordinate and disrespectful
and that Respondent considered them so. Since Melhorn was
not engaged in protected activity when he said them, they were
not protected by the Act. I find that by any objective standard
accusing one’s employer of operating a Nazi-like work envi-
ronment constitutes the kind of disrespect Respondent’s poli-
cies and work rules prohibit.
In summary, the evidence concerning Melhorn shows him to
be a marginal employee who failed to adequately perform the
duties of three different positions, customer service, cashier,
and food demonstrator in the cheese shop. While in each case
Respondent attempted to make accommodations for him, his
response was to deny any responsibility for his actions and
accuse it of being out to get him. At his final assignment in the
cheese shop, he repeatedly ignored its food safety rules, denied
doing anything wrong despite numerous disciplines, and often
taunted the supervisors who called him to task. He had previ-
ously been warned about making disrespectful comments and
had consistently shown a dismissive attitude about the many
disciplinary actions taken against him. Based on the foregoing
findings, I conclude that Melhorn did not engage in any union
or concerted activity protected by the Act. The evidence fails
to establish that Respondent had any knowledge that he had or
that it any reason to believe that he had engaged in such activ-
ity. It also fails to establish that it had a mistaken belief that he
had done so, which led it to terminate him. Accordingly, I find
that the General Counsel has not established that union or other
concerted protected activity on Melhorn’s part was a motivat-
ing factor in his termination and, therefore, has not met his
initial burden under Wright Line. I shall recommend that the
complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent, Wegmans Food Markets, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The complaint is dismissed in its entirety.

7 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 objections to them shall be deemed waived for all pur-
poses.