Woodman's Food Market, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 5, 2012

30-CA-078663 (N.L.R.B. Oct. 5, 2012)

JD–56–12
Appleton, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WOODMAN’S FOOD MARKET, INC.
and Case 30-CA-78663
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 1473
Andrew S. Gollin, Esq.,
for the General Counsel.
Fred B. Grubb, Esq. (Fred B. Grubb & Associates, LLC)
for the Respondent.
John M. Loomis, Esq. (Sweet & Associates, LLC),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. Woodman’s Food Market,
the Respondent Company in this case, operates a grocery store and auto center in Appleton,
Wisconsin. For at least the last 20 years, the United Food and Commercial Workers Union,
Local 1473 has been the exclusive bargaining representative for the employees at the facility.
However, on April 10, 2012, shortly after the most recent collective-bargaining agreement
expired, the Company withdrew recognition from the Union based on a petition that was
circulated by the manager/department head of the auto center (Wydeven).1
The sole issue in dispute in this proceeding is whether Wydeven is a supervisor and/or
agent of the Company within the meaning of the Act. If he is, as alleged by the General Counsel,
the Company concedes that both the circulation of the petition and the withdrawal of recognition
were unlawful. See, e.g., SFO Good-Nite Inn, LLC, 357 NLRB No. 16 (2011) (employer
violates Section 8(a)(1) and (5) of the Act by soliciting employees to sign a decertification
petition and by thereafter withdrawing recognition from the union based on the tainted petition).
Following a prehearing conference, the case was tried before me on August 21, 2012, in
Neenah, Wisconsin.2 Thereafter, on September 18, the General Counsel and the Company filed

1 The Union filed the underlying charge and amended charge on April 12 and July 19, 2012,
respectively, and the General Counsel issued the complaint on July 26, 2012.
2 Wydeven was the sole witness. In the absence of any objection, page 103 of the transcript
is corrected as follows: line 24 is correct to read “Cross Examination Resumed”; and line 25 is
corrected to read “By Mr. Grubb.”
JD–56-12
2
posthearing briefs. Having carefully considered the briefs and the entire record,3 for the reasons
set forth below I find that Wydeven is both a supervisor and an agent of the Company, and that
the Company therefore violated Section 8(a)(1) and (5) of the Act as alleged.4
FINDINGS OF FACT 5
As indicated above, the subject facility consists of both a grocery store and an auto
center. The auto center is located away from and in front of the store, closer to the street. It
includes a gas station, which also sells food and drinks, and a “lube center” with three attached
bays where cars drive in to have the oil changed, etc. Approximately six to eight employees 10
work in the auto center, four full time. All are expected to perform both the lube-center and gas-
station work. (Tr. 18, 27, 87, 110–112.)
When employees begin working in the auto center, they are given a 44-page document
entitled “Lube Station Policies.” It contains a detailed description of various lube procedures, 15
including guiding vehicles into the bay, releasing the hood, replacing the oil filter, checking,
filling, and changing oil, checking oil plugs and zerks, checking and filling transmission and
brake fluids and engine coolant, and changing air filters and wiper blades. (Tr. 107; GC Exh. 21;
R. Exh. 19.) However, there is no evidence of any similar policy manual with respect to gas-
station procedures. 20
Wydeven, the current “auto center manager,” has worked at the facility for about 10
years, since May 2002. Like the other auto-center employees, he initially started in the grocery
store. He later applied for and was transferred to work as a lube technician in the auto center.
He performed this job for about 5–6 years, until June 19, 2011, when he was promoted to his 25
current full-time position. (Tr. 16, 39; GC Exh. 20).
There is apparently no formal job description for the “auto center manager” position.
However, the job posting, which Wydeven and eight other employees signed to apply for the
position in May and June 2011, stated that “responsibilities will include directing the workforce 30
and maintaining customer service” (GC Exh. 2). In addition, Wydeven’s change-of-status form
stated that he would be “in charge of the auto center” (for which he would receive premium pay
and sales points) (GC Exh. 3). And his February 2012 periodic evaluation rated him on such
factors as “ability to handle customers/employees,” “ability to direct workforce,” “ability to
control inventory,” “buying and/or ordering of product,” and “training of backup to cover 35
absence.” Frederick, the store manager and his immediate supervisor, also praised him in the
evaluation for being “very much a Woodman’s backer,” for “mak[ing] his people accountable,”
and for “keep[ing] me informed of what is happening out there.” (GC Exh. 11; Tr. 17.)
Various other employment records indicate that the auto center manager is also 40
considered to be a “department head” (GC Exhs. 11, 13, 20). Accordingly, like other department
heads (liquor store, meat, produce, dairy, frozen, bakery, and non-foods) and certain specified
managers and supervisors, the auto center manager is excluded from the bargaining unit. These

3 Factual findings are based on the record as a whole, including but not limited to the
transcript pages and exhibits specifically cited.
4 Jurisdiction is undisputed and well established.
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3
exclusions are specifically set forth in an April 2009 letter of understanding between the
Company and the Union, which was incorporated into the most-recent, April 2009–March 2012
collective-bargaining agreement. (Jt. Exh. 1, p. 33; Tr. 120–121.)
Aside from Wydeven, there is no one else in the auto center who is “in charge” of the 5
operation. Store Manager Frederick works from an office in the grocery store, does not know
how to perform lube work, and visits the auto center only once or twice a week, usually just to
report what the gas prices are (Tr. 30–31). Although one of the auto center employees, Keesey,
has been appointed the “fill-in supervisor” to cover for Wydeven in his absence (for which he
receives a small premium), Keesey remains in the bargaining unit and has been specifically told10
by Frederick that he is not “second in charge.” See the April 2009 letter of understanding
discussed above, Jt. Exh. 1, p. 33 (specifically including fill-in supervisors in the unit); and
Frederick’s December 13, 2011 evaluation of Keesey, GC Exh. 10 (reminding him, among other
things, to “[w]ork together as a team. All are equal in the lube station excluding Wydeven who
is the lube manager. We do not have a second in charge.”).5 15
In practice, Wydeven spends most of his time doing the same work as the lube-center
employees: changing oil, handling customers, and working the cash register (Tr. 27). However,
he also makes sure the employees follow correct procedures and assists them with questions or
problems that arise in doing the work or dealing with a customer. See Wydeven’s February 2012 20
evaluation, GC Exh. 11 (quoted above); the “Lube Station Policies” manual, GC Exh. 21
(instructing employees to “see,” “ask,” “inform,” or “notify” the “lube manager or store
manager,” “manager,” or “supervisor” before doing certain tasks or if they have problems
working on any vehicle); and Wydeven’s testimony, Tr. 37–38 (the employees come to him with
their questions or issues, unless he is not there, in which case they go to Store Manager 25
Frederick). If the question or issue relates to performing the work, he will handle it himself. If it
is more complicated, such a customer complaint about the quality of the work that cannot be
easily rectified, he will consult Frederick about how the Company wants to handle it. (Tr. 31–
34.)
30
As indicated by his February 2012 evaluation, Wydeven is also responsible for keeping
the auto center properly stocked. He usually orders the supplies for the lube center (bulk oil,
filters, wipers, plugs, etc.) himself, which he does once every 1–2 weeks. However, Keesey and
another employee have also ordered supplies when he is not there. And another employee orders
supplies for the gas station. (Tr. 31–32, 84–86, 109.) 35
Wydeven also completes “performance evaluations” of newly assigned employees near
the end of their initial probationary period. (Employees do not receive periodic evaluations after
their probationary period. Tr. 65, 67–68.) He assigns the employee a rating (exceeds
requirements, meets requirements, needs improvement, or not acceptable) on each of the 40
following “job factors”: (1) work quality, (2) job knowledge, (3) work quantity, (4) follows
instructions, (5) cooperates with others, (6) dependability, (7) safety, (8) respect for property, (9)
courtesy towards customers, (10) appearance, and (11) attendance and punctuality. He also

5 But see the June 15, 2011 job posting for the fill-in position, which stated that
“responsibilities will include directing the workforce and maintaining customer service on days
when the manager and 2nd I/C are off” (GC Exh. 4).
JD–56-12
4
completes, in his own handwriting, the designated sections for “comments,” “strengths,” and
“areas for improvement,” typically to explain why he assigned either the highest or the lowest
rating (e.g. “great customer service,” or needs improvement in “problem solving,” the “order of
doing things in [the] lube center,” or “working the gas station”). He does so based on his own
observations and judgment, although he also sometimes considers comments from other 5
employees.
After completing the above sections, Wydeven takes the evaluation to Store Manager
Frederick. He discusses the evaluation with her and recommends whether the employee should
be retained in the auto center or have the probationary period extended. Frederick, who as 10
indicated above spends very little time in the auto center, normally follows his recommendation.
However, on one occasion, in November 2011, Frederick declined to do so. Wydeven had
reported in his evaluation that the employee was unable to perform certain tasks in the lube
center. Nevertheless, he recommended retaining the employee beyond the initial probationary
period because of her strong customer service and ability to perform the gas station work, where 15
she spent most of her time. Frederick, however, decided to transfer the employee back to the
grocery store because the auto center employees had to be capable of performing both the gas-
station and the lube-center work.
Once Frederick has made her decision (by checking a box on the evaluation),6 Wydeven 20
typically signs the evaluation on the line for “Manager or Supervisor’s Signature” and presents
the evaluation to the employee (who then signs it as well). However, in one of the six
probationary evaluations since June 2011, Frederick signed the evaluation and she and Wydeven
jointly presented it to the employee. And in another instance, both Wydeven and Assistant Store
Manager Anderson (who, like Frederick, is an admitted supervisor) signed the evaluation, and it 25
is unclear who presented the form to the employee (Wydeven could not recall). (Tr. 43–54, 69–
70, 86–87, 91–92, 109, 112; GC Exhs. 5 [both evaluations], 6, 7, 8, 15.)
Wydeven (who as noted above was the sole witness in the proceeding) testified
repeatedly that Frederick also talks to other employees about how their coworkers are 30
performing in the auto center before making her decision (Tr. 47, 50, 111). However, I do not
credit this uncorroborated testimony, at least not to the extent it suggests that Frederick conducts
an independent investigation. First, it is clear from Frederick’s February 2012 evaluation of
Wydeven and the record as a whole that she relies heavily on him. Second, although Wydeven
testified that he had “seen” Frederick “ask people how they are doing when she comes out to 35
talk,” he could not recall where she did so (“outside or inside I don’t really know”) or any
particular employees that she had talked to (Tr. 47, 92). Third, as Frederick performs periodic
evaluations of both Wydeven and Keesey, his “fill-in supervisor,” it is entirely possible that she
talked to employees about one or both of them, rather than about other employees. See
GC Exhs. 10, 11, and 14.7 Fourth, the record indicates that the Company has a formal procedure 40
for obtaining input from other employees in writing when it wishes to do so. And the procedure

6 The three options listed on the form are: “Passing Probation,” “Not Passing Probation,” or
“Extend Probation.”
7 Although Wydeven performed the initial probationary evaluation of Keesey (GC Exh. 6),
he testified (Tr. 59) that he had no involvement whatsoever in Keesey’s subsequent December
2011 periodic evaluation (GC Exh. 10).
JD–56-12
5
appears to be used relatively infrequently. Indeed, the Company presented only one example
where it was used, in August 2010, well before Wydeven became the auto center manager. See
the three “Evaluation Work Papers” attached to the probationary evaluation of employee
Madison (R. Exh. 2), and Tr. 98–100.8
5
Moreover, Wydeven did not impress me as a credible witness generally. Thus, despite
claiming that he did not know what the hearing was about (Tr. 116, 119), he frequently
volunteered or modified his testimony to minimize his authority. In addition to his above-cited
testimony, see, e.g., Tr. 28–29 (initially testifying that Keesey covers for him when he is not
there, but subsequently testifying that he was “unaware” that Keesey is the official “fill-in 10
supervisor”―even though the job was likewise posted in June 2011, Wydeven’s evaluation
indicates that he trained Keesey to be his backup, and Wydeven completed, signed, and
presented a probationary evaluation to Keesey within 30 days after he was appointed to the fill-in
position―and that “pretty much anyone” fills in for him in his absence). Further, his testimony
at times seemed rehearsed, and he became noticeably nervous when asked about certain subjects, 15
including his discussions with Frederick. Of course, neither necessarily indicates prevarication.
However, after carefully considering my initial observations and the entire record, I am
convinced that his testimony in this respect (and other respects discussed below) was neither
entirely truthful nor entirely true. See generally 300 Exhibit Services & Events, Inc., 356 NLRB
No. 66, slip op. at 1 fn. 2 (2010), and cases cited there (uncontradicted testimony need not be 20
accepted as true if it contains improbabilities or there are other reasonable grounds for believing
it is false, including the demeanor of the witness). See also EEOC v. G-K-G, Inc., 39 F.3d 740,
746 (7th Cir. 1994).
In December 2011, Wydeven also completed and signed, on the line for “Management 25
Signature,” what appears to be a “verbal” disciplinary warning or admonishment issued to
Keesey. The notice, which is entitled “Notice of Failure to Follow Work & Safety Rules,” cited
Keesey for:
Failure to follow procedure on oil change. Did not tighten filter causing leaking 30
on vehicle. You must finish the job you are on before moving on to the next one.
The notice additionally cited Keesey for “lack of communication.” (GC Exh. 9; Tr. 55–56, 115–
116.)
35
As with the probationary evaluations, Wydeven minimized his involvement with this
notice, testifying that Frederick told him to fill it out based on a customer’s complaint she had
received; that he did not know or recall why he signed the notice; and that Frederick presented
the notice to Keesey. In essence, Wydeven testified that he was simply Frederick’s scribe.
However, it makes little sense that Frederick would have involved Wydeven with the notice if he 40
had no significant role in it. It is also inconsistent with the usual practice. Compare the initial

8 The “work papers” list five factors (customer service, effort, job performance, cooperation,
and appearance). The three employees (Wydeven and two other employees) separately rated
Madison on each factor as “poor,” “average,” or “good.” They also then dated and signed the
forms on the line for “Supervisor.” As discussed infra, Wydeven also signed the final
probationary evaluation that was given to Madison the next day.
JD–56-12
6
probationary evaluations, discussed above. Compare also Frederick’s subsequent periodic
evaluation of Keesey, which she alone completed, signed, and presented to Keesey several days
later (GC Exh. 10; Tr. 56–59). (The record also includes another periodic evaluation of Keesey
2 months later, which Wydeven filled out. However, Frederick signed it and the record does not
reveal who presented it to Keesey. GC Exh. 14; Tr. 59–61.) And see Frederick’s subsequent 5
February 2012 evaluation of Wydeven, discussed above, which praised him for “mak[ing] his
people accountable” (GC Exh. 11). Further, as noted above Wydeven was not a credible witness
generally, and his testimony in this respect was not corroborated by Frederick or Keesey (neither
of whom, as indicated above, were called to testify).
10
Accordingly, I find that Wydeven likely had a significantly greater role in the notice than
he admitted to at the hearing. Specifically, it is likely that, at the very least, Wydeven
participated in the investigation of the customer’s complaint, reported his findings, conclusions,
and recommendations to Frederick, and completed and signed the notice pursuant to his duties
and responsibilities as the auto center manager.15
Since becoming the auto center manager, Wydeven has also attended a meeting where
one of his workers (Gosz) was terminated. Gosz had failed to put any oil in a vehicle, causing
the motor to seize up, and also subsequently failed a drug test.9 Frederick and another grocery
supervisor attended the meeting as well. 20
Again, Wydeven minimized his role in the meeting, testifying that he “asked to attend”
because:
I was really good friends with [Gosz], I actually lived with him for a couple of 25
years, and I felt really bad for him, with the situation. We were really good friends
and I didn't want to see him go, so I kind of wanted to be there as support for him.
However, I do not credit this uncorroborated testimony to the extent it suggests that Wydeven
attended the Gosz termination meeting solely as a friend. It is inherently unlikely, and I do not 30
believe on this record, that the Company would have permitted Wydeven to attend Gosz’
termination meeting absent his role as the auto center manager.10 Although Wydeven testified
that he did not attend a termination meeting for another employee, Wydeven admitted that it
occurred shortly after he became manager and he was not familiar with that employee’s offense
or situation. (Tr. 61–62, 113–114.)35
ANALYSIS
As indicated above, the General Counsel contends that Wydeven is a supervisor and/or
agent of the Company within the meaning of Section 2(11) and (13) of the Act. 40

9 The foregoing is based solely on Wydeven’s testimony. There is no documentation in the
record about Gosz’ termination or the reasons therefor.
10 Wydeven also testified, when asked by Company counsel whether he had recommended
Gosz be terminated, “if it was up to me, he wouldn’t have been terminated” (Tr. 88). However,
Wydeven never directly answered counsel’s question whether he actually made a
recommendation to Frederick.
JD–56-12
7
I. Whether Wydeven is a supervisor
Under Section 2(11) of the Act, 11 an individual is not considered a supervisor, even if the
employer calls him/her one, unless the individual possesses, in the interest of the employer, at
least one of the types of authority listed therein. In addition, the exercise of that authority cannot 5
be merely routine or clerical, but must require independent judgment. This means that the
authority requires making a judgment, which involves “a degree of discretion that rises above the
‘routine or clerical’,” and is not “dictated or controlled by detailed instructions, whether set forth
in company policies or rules, the verbal instructions of a higher authority, or in the provisions of
a collective bargaining agreement.” Oakwood Healthcare, Inc., 348 NLRB 686, 687, 693 (2006). 10
Further, the party asserting supervisory status has the burden of proving that these requirements
are met by a preponderance of the evidence. Id. at 687, 694 (citing NLRB v. Kentucky River
Community Care, 532 U.S. 706, 711–712 (2001); and Dean & Deluca New York, Inc., 338
NLRB 1046, 1047 (2003)).
15
Here, the General Counsel contends that Wydeven possesses two such types of authority:
(1) the authority to effectively recommend whether employees will be retained in the auto center
following their initial probationary period; and (2) the authority to responsibly direct the auto
center employees. The General Counsel also contends that Wydeven’s supervisory status is
supported by several secondary indicia.20
(1) Authority to effectively recommend whether to retain probationary employees
The authority to recommend is considered “effective” under Section 2(11) if the
recommendations usually are or would be followed by the deciding official without conducting25
an independent investigation. See, e.g., DirectTV, 357 NLRB No. 149, slip op. at 3 (2011),
citing Children’s Farm Home, 324 NLRB 61 (1997); and Sheraton Universal Hotel, 350 NLRB
1114, 1115–1118 (2007). Compare also Pine Manor Nursing Center, 270 NLRB 1008 (1984)
(charge nurses effectively recommended termination or retention of probationary employees
where director of nursing reviewed but did not independently investigate the basis of the 30
recommendation), with Consolidated Services, Inc., 321 NLRB 845 (1996) (senior cooks did not
effectively recommend promotion of cook-trainees where the facility manager did not follow
their recommendations without conducting an independent investigation).
Here, as discussed above, the credible evidence establishes that Frederick follows 35
Wydeven’s recommendations whether to retain probationary employees in the auto center based
solely on his evaluations and without conducting an independent investigation. Indeed, even in
the one instance (out of six) that Frederick disagreed with Wydeven’s recommendation, and
transferred the employee back to the grocery store, it was based on Wydeven’s conclusion that
the employee was unable to perform lube work. Accordingly, I find that Wydeven’s authority to 40

11 See 29 U.S.C. Sec. 152(11) (“The term ‘supervisor’ means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly 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.”)
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8
recommend is “effective.” See Pine Manor, above. See also Venture Industries, 327 NLRB
918, 919–920 (1999) (department and line supervisors effectively recommended selection of
applicants where the department managers followed the recommendations 80–90 percent of the
time).
5
As for whether Wydeven’s recommendations require “independent judgment,” the
evidence shows that Wydeven evaluates probationary employees on a number of factors before
making his recommendations. As indicated above, some of these factors relate to the actual
physical work, much of which (with respect to the lube center) is described in the “Lube Station
Policies” manual that is provided to every employee. However, several are more subjective, 10
requiring Wydeven to evaluate such things as “respect for property,” “cooperat[ion] with others,”
and “courtesy towards customers.”12 Further, Wydeven testified that, except for ordering
supplies, he has never been given any specific instructions on how to perform his duties as auto
center manager, and that he completes the probationary evaluations using his own “judgment,”
based on his and others’ observations of the employee, without discussing them with anyone 15
beforehand (Tr. 26, 31–32, 80–84).
I find that the foregoing evidence is sufficient to meet the General Counsel’s burden
under Oakwood, above. In arguing to the contrary, the Company cites two previous probationary
evaluations that Wydeven signed in August and November 2010, well before he became auto 20
center manager. See R. Exh. 1 (Beyer evaluation), and R. Exh. 2 (the Madison evaluation
previously discussed above). The Company argues that these two evaluations show that “it is the
clerical practice of the Employer to have unit employees partially fill out and sign [probationary
evaluations] and it has been so practiced since well before Mr. Wydeven took on his current
responsibilities” (Br. 13). 25
However, there are several problems with this argument. First, Wydeven testified that he
was unsure whether he did the ratings on the Madison evaluation. Moreover, he acknowledged
that someone else handwrote the comments on both evaluations. (The handwriting is obviously
different that the handwriting on the evaluations he has completed since June 2011.) With 30
respect to the November 2010 Beyer evaluation, Wydeven testified that he “probably” asked
“one of the girls” in the gas station to write the comments for him because he was “embarrassed”
by his “very sloppy” handwriting at the time. However, he was never asked who specifically
wrote the comments on the Madison evaluation. (Tr. 101–102.)
35
Second, even assuming Wydeven did fill out both evaluations (or had someone else fill
them out for him at his direction), two evaluations are hardly sufficient to establish a “practice,”
clerical or otherwise.13 On the contrary, the fact that the Company, which has been in business

12 While the manual addresses this last factor, it simply urges employees to be “courteous,
professional, and friendly with the customer,” and to “greet them when they exit the vehicle and
ask if they have any questions.” (GC Exh. 21, pp. 7, 43). It does not otherwise state what kinds
of conduct are or are not considered by the Company to be “courteous,” “professional,” and
“friendly.”
13 To conclude that the 2010 evaluations show a “clerical” practice of using unit employees to
evaluate each other requires an assumption that Wydeven was not a statutory supervisor in 2010.
However, while Wydeven had not yet been designated the “auto center manager” in 2010, as
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for many years, proffered only two evaluations, both signed around the same time period in 2010
by the same individual, suggests that the two evaluations are an aberration rather than the norm.
Third, it is unclear whether the circumstances in 2010 were the same or similar to those
in 2011–2012. Indeed, it is not even clear whether there was an active, full-time auto center 5
manager at the time Wydeven signed the 2010 evaluations. Although the previously described
letter of understanding indicates that another individual, Cortazzo, was the manager in April
2009, and Wydeven testified that he replaced Cortazzo (Tr. 19), Cortazzo’s name does not
appear anywhere on the two evaluations. In fact, the Madison evaluation indicates that an
entirely different individual, Champeau, presented the evaluation. (Wydeven testified that he 10
presented the Beyer evaluation.) And, despite Cortazzo’s previous service as the auto center
manager in 2009, he was one of several employees who applied to be the “fill-in supervisor” on
June 16, 2011 (GC Exh. 4), before Wydeven was formally appointed the new manager effective
June 19, 2011.
15
The Company never presented any evidence to explain the foregoing circumstances.14
Wydeven himself testified (Tr. 100) that he did not know why he signed the 2010 Madison
evaluation (he was never asked why he signed the 2010 Beyer evaluation), and Champeau’s
position or title was never identified. Further, the Company never called Frederick to testify,
even though she was present throughout the hearing. (Frederick was the Company’s designated 20
representative and was therefore exempt from the sequestration order.) Although the General
Counsel has the burden of proof, the Company introduced the 2010 evaluations, which came
from its own personnel records.15 Thus, the Company bears the burden of persuading that the
evidence is relevant, material, and significant, i.e., that the two previous 2010 evaluations signed
by Wydeven support an inference that the 2011–2012 evaluations and other evidence presented 25
by the General Counsel in support of Wydeven’s supervisory status during the relevant period
are insufficient to carry the burden of proof.16 The Company has failed to do so. As presented,
the two evaluations are little more than a historical curiosity.17

indicated above supervisory status under 2(11) is not determined by job title. See also Jochims v.
NLRB, 480 F.3d 1161, 1168, 1173 (D.C. Cir. 2007).
14 The Company’s posthearing brief states (without citing any record evidence) that Cortazzo
“was demoted by the Employer into a non-supervisory position” (Br. 2, fn. 3). However, the
Company does not reveal when this occurred (and, again, there is no record evidence when it
occurred). The Company also submitted into evidence a form that employee Madison signed in
July 2010 acknowledging receipt of the company lube center policy manual, which Wydeven
cosigned on the line for “Training Supervisor” (R. Exh. 19; Tr. 108). However, the Company
never offered any evidence to explain this either.
15 The 2010 evaluations had not previously been disclosed to the General Counsel. There is
no pretrial discovery in Board proceedings and the General Counsel’s hearing subpoena only
required the Company to produce personnel records since January 2011, 6 months before
Wydeven became the auto center manager (Tr. 120).
16 This is not a situation, such as in Dean & Deluca, supra, where there are critical gaps in the
General Counsel’s evidence with respect to the subject 2(11) indicia during the relevant period.
17 As indicated by the General Counsel, the Company’s failure to call Frederick―who as
store manager would likely be disposed to testify in the Company’s favor (and thus was not
“equally available” as a General Counsel or Union witness)―actually supports the opposite
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(2) Authority to responsibly direct the auto center employees
In order to establish that an individual possesses the authority to responsibly direct
employees, it must be shown that the individual has the authority to “direct” employees in the
interest of the employer; that the direction is “responsible”; and that it requires “independent 5
judgment.” Oakwood, 348 NLRB at 687. See also the Board’s companion decisions in Golden
Crest Healthcare, 348 NLRB 727, 730 (2006); and Croft Metals, Inc., 348 NLRB 717 (2006).
Here, there is little doubt that Wydeven has the authority to “direct” employees. As
discussed above, the employees are required by the lube center policy manual to contact 10
Wydeven or Frederick before doing certain tasks or if they have problems working on any
vehicle. Further, Wydeven testified that the employees do, in fact, come to him with their
questions or issues when he is there, and that Frederick does not even know how to perform the
lube work. Moreover, Wydeven’s February 2012 evaluation specifically rated his ability to
handle employees and direct the workforce and praised him for “mak[ing] his people 15
accountable.” Considered together, these facts are sufficient to establish the authority to direct.
Cf. Golden Crest, above.
A preponderance of the record evidence also indicates that Wydeven’s authority to direct
employees is “responsible” direction. Direction is “responsible” if the individual directing the 20
task is accountable for its performance. This means that the directing individual has the
authority to take action, if necessary, to ensure that the task is performed correctly by the
employee, and that there is a real prospect of material consequences to the directing individual’s
terms and conditions of employment, either positive (e.g., a merit increase or bonus) or negative
(e.g. a demotion or termination), if the task is or is not performed correctly by the employee. 25
Golden Crest, 348 NLRB at 731 and fn. 13.18
Here, as found above, Wydeven had a significant role in the disciplinary warning that
was issued to Keesey in December 2011 for failing to follow lube procedures and poor

inference, i.e. an inference that her testimony on this and other factual issues within her
knowledge would not have supported the Company’s position. See, e.g., International
Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988).
See also Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719 F.2d 1335, 1353
(7th Cir. 1983). But see Advocate South Suburban Hospital v. NLRB, 468 F.3d 1038, 1049 (7th
Cir. 2006) (General Counsel’s failure to call a union organizer to corroborate an employee’s
testimony did not warrant an adverse inference, as the respondent employer itself could have
subpoenaed the union organizer to testify and the General Counsel did not have a strong
incentive to present the testimony, as it would have been “essentially cumulative and of little
value”). However, I need not rely on such an adverse inference, as I would reach the same
conclusions without it.
18 Although Oakwood states that there must be a prospect of adverse consequences for
failing, the Board’s companion decision in Golden Crest makes clear that a prospect of positive
consequences for succeeding is also sufficient to establish accountability. See also Alternate
Concepts, Inc., 358 NLRB No. 38, slip op. at 3 fn. 12 (2012). Indeed, this seems self evident; if
there is a prospect of a merit increase or bonus for succeeding, it follows that there is a prospect
of a merit increase or bonus being denied for failing.
JD–56-12
11
communication. Further, approximately 2 months later, in February 2012, Frederick specifically
evaluated Wydeven’s ability to handle employees and direct the workforce (he was rated “meets
requirements” on both these and all other factors) and praised him for “mak[ing] his people
accountable.”19 And approximately 7 weeks thereafter, effective April 8, 2012, the Company
awarded Wydeven his first and only base-rate pay raise since he became the auto center manager 5
in June 2011 (GC Exh. 20, p. 2). 20 While there is no record evidence that the Company awarded
Wydeven the raise solely because of his performance in directing employees and holding them
accountable, such evidence is not required to establish that his performance on that factor may
have an affect on his terms and conditions of employment. Ibid.
10
Finally, a preponderance of the evidence likewise indicates that Wydeven’s direction of
employees requires “independent judgment.” As discussed above, although the lube center
policy manual provides a detailed description of the various services and procedures performed
in the lube center, it repeatedly instructs employees to contact their manager or supervisor before
doing certain tasks or if they have questions or problems. Further, there is no policy manual 15
whatsoever for the gas station. Thus, while many of the tasks in the auto center may be
repetitive and “dictated or controlled by detailed instructions” (Oakwood, above), many are not.
Moreover, as discussed above, except for ordering supplies in the lube center, Wydeven has
never been given any specific instructions on how to perform his duties as auto center manager.
Thus, like his probationary evaluations and recommendations, it is clear that his direction of 20
employees involves discretion that is beyond “routine or clerical.”
Secondary indicia of supervisory status
As indicated by the General Counsel, the conclusion that Wydeven is a 2(11) supervisor 25
based on the foregoing factors (either of which alone is sufficient to establish such status) is fully
consistent with how he has been treated and held out by the Company. As discussed above, the

19 As reflected by the Board’s own definition of “accountable,” this language indicates that
Wydeven possesses the authority to take corrective action (and has actually exercised that
authority). It also indicates that Wydeven’s corrective action had “some force behind it or
place[d] ‘some small burden on the employee’” (Rochelle Waste Disposal, LLC v. NLRB, 673
F.3d 587, 595 (7th Cir. 2012), quoting Loparex LLC v. NLRB, 591 F.3d 540, 551 (7th Cir.
2009)). Although no specific examples are discussed, the evaluation was completed by
Frederick, an admitted supervisor of the Company, the party currently opposing Wydeven’s
supervisory status, before the facts relevant to the instant litigation occurred, when there was no
apparent reason for concern about his status. The evaluation is therefore more reliable evidence
of Wydeven’s authority than post-hoc conclusory testimony offered by the party alleging
supervisory status. Cf. G4S Regulated Security Solutions, 358 NLRB No. 160 (2012) (“rote and
conclusory testimony” of respondent’s project manager in response to leading questions by
counsel was insufficient to satisfy respondent’s burden of establishing supervisory status).
20 Although there is no direct evidence that the pay raise was based on the evaluation, the
satisfactory ratings and positive comments in the evaluation, coupled with the timing of the pay
raise (10 months after starting and just 7 weeks after the evaluation) and the absence of any prior
or subsequent raises, is sufficient circumstantial record evidence (which the Company never
rebutted) to satisfy the General Counsel’s burden of proof that there is a prospect of positive or
negative consequences as a result of the evaluation.
JD–56-12
12
Company describes Wydeven as a “manager” and “department head” and he is excluded from
the bargaining unit by agreement along with other managers and department heads (including
Assistant Store Manager Anderson, an admitted statutory supervisor). Further, Store Manager
Frederick specifically advised unit employee Keesey in December 2011 that he and the other
auto center employees are not “equal” to Wydeven and that there is no “second in charge” in the 5
auto center. In addition, Wydeven has signed and presented probationary evaluations to
employees, also signed a disciplinary warning to an employee, and attended the termination
meeting for another employee. Cf. Sheraton Universal Hotel, 350 NLRB at 1118 (listing several
similar “secondary indicia” as corroborating evidence of 2(11) supervisory status). See also
E & L Transport Co. v. NLRB, 85 F.2d 1258, 1270 (7th Cir. 1996) (“Although not determinative 10
on their own, where one of the enumerated indicia in Sec. 2(11) is present, secondary indicia
support a finding of statutory supervisor”).
Accordingly, for all the foregoing reasons, I find that Wydeven is a supervisor within the
meaning of Section 2(11), and that the Company therefore violated the Act as alleged. 15
II. Whether Wydeven is an agent
As indicated above, the General Counsel additionally or alternatively contends that
Wydeven is an agent of the Company under Section 2(13) of the Act.21 Although there is no 20
evidence that he was specifically directed or authorized by the Company to circulate the
antiunion petition, the General Counsel asserts that Wydeven was acting as an agent of the
Company under the doctrine of apparent authority.
As stated in Hausner Hard-Chrome of Kentucky, 326 NLRB 426, 428 (1998):25
“Apparent authority results from a manifestation by the principal to a third party
that creates a reasonable basis for the latter to believe that the principal had
authorized the alleged agent to perform the acts in question.” Southern Bag Corp.,
315 NLRB 725 (1994), and cases there cited. See also Alliance Rubber Co., 286 30
NLRB 645, 646 (1987). The test is whether, under all the circumstances,
employees “would reasonably believe that the employee in question [the alleged
agent] was reflecting company policy and speaking and acting for management.”
Waterbed World, 286 NLRB 425, 426-427 (1987). Under Board precedent, an
employer may have an employee's statements attributed to it if the employee is 35
“held out as a conduit for transmitting information [from management] to other
employees.” Debber Electric, 313 NLRB 1094, 1095 fn. 6 (1994).
As with supervisory status, the burden is on the party asserting the agency relationship with
respect to specific conduct to prove it. Pan-Oston Co., 336 NLRB 305 (2001). 40

21 See 29 U.S.C. Sec. 152(13) (“In determining whether any person is acting as an ‘agent’ of
another person so as to make such other person responsible for his acts, the question of whether
the specific acts performed were actually authorized or subsequently ratified shall not be
controlling.”)
JD–56-12
13
Here, as discussed above, the Company holds out Wydeven as a member of management
and utilizes him as a “conduit” for transmitting information to employees about whether they
will be retained following their probationary period. Moreover, as Wydeven is excluded from
the bargaining unit along with other managers and department heads, it cannot be concluded that
the unit employees would likely view his antiunion actions as taken in furtherance of his own or 5
their interests, rather than the Company’s interests. Cf. Comau, Inc., 358 NLRB No. 73 (2012)
(reaching the opposite conclusion where the individuals who circulated the disaffection petition
were included in the unit and had previously served as union officials). Although there is no
record evidence that Wydeven’s statements or actions were consistent with the Company’s
statements or actions, this is not dispositive. Pan-Oston, 336 NLRB at 306.10
Accordingly, I find that the General Counsel has adequately established that Wydeven
was an agent of the Company when he circulated the petition, and that the Company therefore
violated the Act on this basis as well.
15
CONCLUSIONS OF LAW
1. By soliciting employees, through its supervisor and agent Wydeven, to withdraw their
support for the Union in March and April 2012, the Company has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of 20
the Act.
2. By withdrawing recognition from the Union on April 10, 2012, and thereafter refusing
to bargain with the Union as the exclusive collective-bargaining representative of the unit
employees, the Company has engaged in unfair labor practices affecting commerce within the 25
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
To remedy the foregoing violations, the complaint requests that the Company be ordered 30
to recognize and, on request, bargain with the Union over the unit employees’ terms and
conditions of employment; to promptly notify the Union of any changes in the unit employees’
terms and conditions of employment that have been implemented since April 10, 2012; to
rescind, at the Union’s request, such changes; and to make the unit employees whole for any loss
of earnings or benefits suffered as a result of the changes, with interest compounded daily. In 35
addition, the complaint requests that the Company be ordered to read the remedial notice to
employees during working time. The Company has not contested the appropriateness of any of
these requested remedies and they are supported by Board precedent. See Specialty Hospital of
Washington-Hadley, LLC, 357 NLRB No. 77 (2011); and Vincent/Metro Trucking, LLC, 355
NLRB 289 (2010). The remedies are therefore granted.2240

22 One of the two management officials who notified the employees on April 12, 2012 that
the Company had withdrawn recognition from the Union based on the petition will be ordered to
read the remedial notice to the employees. See Jt. Exh. 3 (also notifying employees that the
Company would be granting them a wage increase that it had previously proposed during
contract negotiations with the Union).
JD–56-12
14
The complaint also requests that the Company be ordered to reimburse employees for any
excess Federal and State income taxes they may owe from receiving lump-sum backpay, and to
submit appropriate documentation to the Social Security Administration so that their backpay
will be allocated to the proper periods. However, the appropriateness of such remedies is
currently being considered by the Board. See Latino Express, 358 NLRB No. 94 (2012). These5
additional remedies are therefore denied.
Accordingly, based on the foregoing findings of fact and conclusions of law and the
entire record, I issue the following recommended23
10
ORDER
The Respondent Company, Woodman’s Food Market, Inc., Appleton, Wisconsin, its
officers, agents, successors, and assigns, shall
15
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in good faith with United Food and
Commercial Workers Union, Local 1473 as the exclusive collective-bargaining representative of
the unit employees.20
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.25
(a) On request, bargain in good faith with the Union as the exclusive representative of the
unit employees concerning terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
30
(b) Promptly notify the Union, in writing, of any changes in the unit employees’ terms or
conditions of employment that have been implemented since April 10, 2012.
(c) On request by the Union, rescind any changes in the unit employees’ terms or
conditions of employment since April 10, 2012.35
(d) Make the unit employees whole for any loss of earnings or benefits suffered as a
result of any changes in their terms or conditions of employment since April 10, 2012, with
interest compounded daily.
40

23 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 purposes.
JD–56-12
15
(e) Within 14 days after service by the Region, post at its Appleton, Wisconsin facility,
copies of the attached notice marked “Appendix.”
24
Copies of the notice, on forms provided by
the Regional Director for Region 30, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In 5
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of business or closed the facility involved in 10
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since April 10, 2012.
(f) Within 14 days after service by the Region, hold a meeting or meetings, scheduled to 15
ensure the widest possible attendance, at which the attached notice is to be read to the employees
by Vice President Clint Woodman or Vice President John Adams, or, at the Respondent's option,
by a Board agent in the presence of either or both of the foregoing company officials, with
translation available for any non-English speaking employees.
20
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., October 5, 201225

__________________________________
Jeffrey D. Wedekind30
Administrative Law Judge

24 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 Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to recognize and bargain in good faith with United Food and
Commercial Workers Union, Local 1473 as the exclusive collective-bargaining representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the Union and put in writing and sign any
agreement reached on terms and conditions of employment for the employees in the bargaining
unit.
WE WILL promptly notify the Union, in writing, of any changes in the unit employees’ terms
or conditions of employment that we have been implemented since April 10, 2012.
WE WILL, on request by the Union, rescind any changes in the unit employees’ terms or
conditions of employment since April 10, 2012.
WE WILL make the unit employees whole for any loss of earnings or benefits suffered as a
result of any changes in their terms or conditions of employment since April 10, 2012, with
interest compounded daily.
WOODMAN’S FOOD MARKET, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
310 West Wisconsin Avenue, Suite 700, Milwaukee, WI 53203-2211
(414) 297-3861, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (414) 297-2862.