Bedford Discounters, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 584 (N.L.R.B. 1973)

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bedford Discounters, Inc. and Retail Store Employees
Union, Local 372, Retail Clerks International
Association, AFL-CIO. Case 1-CA-8361
March 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 3, 1972, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Bedford Discounters, Inc., Bedford, New Hamp-
shire, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order, as so modified:
1. Delete paragraph 1(d) of the recommended
Order and reletter the remaining paragraphs accord-
ingly.
2. Substitute the attached notice for the recom-
mended notice.
I We hereby adopt, pro forma, the Administrative Law Judge's 8(a)(1)
findings to which no exceptions have been filed However, since the
supervisory status of Meat Department Manager Grasstnt, Produce
Department Manager Wieland, and Delicatessen Department Manager
Delessio has not been properly determined in this proceeding, and since
certain of the Administrative Law Judge's 8(a)(1) findings to which
Respondent has excepted are dependent upon resolution of the status of
these individuals, we do not adopt the Administrative Law Judge's findings
that Respondent violated Sec 8(a)(1) of the Act by creating an impression
of surveillance of employees' union activities with regard to Grassim, by
telling any of these managers that the store would or might close down "if
the Union came in", by stating to any of them that in the event its Bedford
store became unionized, it would close that store as an "example" to the
Concord and Salem, New Hampshire, stores, by implicitly threatening
Wieland with loss of his job if the Union won the forthcoming election, and
by interrogating Delessio and Grassmt concerning their knowledge of union
activity However, in view of Respondent's 8(a)(3) and numerous 8(a)(1)
violations and our consequent broad order herein, the deletion of the
foregoing findings will not affect our remedy herein
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
closing of our store or any other reprisals if they
engage in union activity or choose to be repre-
sented by a union.
WE WILL NOT question our employees about
their union activities or those of other employees.
WE WILL NOT grant or promise our employees
wage increases , holidays, insurance , or other
benefits for the purpose of discouraging their
union activities.
WE WILL NOT urge our employees to refrain
from signing union authorization cards or attend-
ing union meetings.
WE WILL NOT discharge or otherwise discrimi-
nate against employees in order to discourage
membership in Retail Store Employees Union,
Local 372, Retail Clerks International Associa-
tion , AFL-CIO, or any other labor organization.
WE WILL offer Paul Gamache and Clement
Nadeau immediate and full reinstatement to their
former jobs or , if those jobs no longer exist, to
substantially equivalent positions , without loss of
seniority or other rights or privileges, and WE
WILL make them whole for any pay they lost, with
interest, because of the discrimination against
them.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their right to engage in, or to refrain
from engaging in, any or all the activities
specified in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
BEDFORD DISCOUNTERS,
INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
202 NLRB No. 98
BEDFORD DISCOUNTERS, INC 585
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
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 compli-
ance with its provisions may be directed to the
Board's Office, 7th Floor, Bulfinch Building, 15 New
Chardon Street, Boston, Massachusetts 02114, Tele-
phone 223-3330.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed on May 24, 1972, by Retail
Store Employees Union, Local 372, Retail Clerks Interna-
tional Association, AFL-CIO, hereinafter referred to as
the Union. The complaint issued on July 12, 1972, alleging
that Respondent had violated Section 8(a)(1) and (3) of the
Act.' Thereafter, Respondent filed an answer denying the
commission of any unfair labor practices.
A hearing was held before me in Manchester, New
Hampshire, on September 13 and 14, 1972. At the
conclusion of the hearing, the parties waived oral argu-
ment. Briefs have been received from the General Counsel
and Respondent.
The issues to be decided are:
1. Whether Respondent through its agents on various
dates in May and June 1972 engaged in various violations
of Section 8(a)(1) of the Act.
2. Whether Paul Gamache and Clement Nadeau were
discharged on May 12, 1972, because of their union
activities.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following-
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Bedford Discounters, Inc., a New Hampshire corpora-
tion, is engaged at Bedford, New Hampshire, in the retail
grocery business and is the food department for the J.N.
Fields Discount store in Bedford. Respondent's annual
gross volume of business exceeds $500,000, and it annually
purchases products valued in excess of $50,000 which are
shipped directly to it from points outside the State of New
Hampshire. I find that Respondent is an employer engaged
in commerce within the meaning of the Act and that it will
i The complaint was amended at the hearing
2 Unless otherwise indicated , all dates set forth hereafter occurred in
1972
3 In his Decision , the Regional Director found that several department
managers in the store were supervisors within the meaning of the Act The
Union thereafter requested review of the Decision On August 18, by
telegram, the Board denied the request for review except as to the placement
of the meat, produce, and delicatessen department managers, and amended
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Since August 1971, George F. Pope, Jr., has been owner-
operator of Respondent and has served as its store
manager. From September 7, 1971, until after the events
here at issue, Harold E. Sanborn was assistant manager of
the store. There are about 20 full-time employees and a
number of part-time employees employed at the store. It is
conceded that at all times material Pope and Sanborn were
supervisors within the meaning of the Act and agents of
Respondent.
Sometime in April 1972,2 several store employees began
discussing the possibility of seeking union representation.
On the night of Tuesday, May 9, a meeting was held at the
home of employee Richard Palmer which was attended by
employees Paul Gamache, Tom Peterson, Palmer, and
three union representatives. The three employees signed
cards at that meeting and took blank cards which they
solicited other employees to sign starting the next day both
at and away from the store.
On June 5, the Union filed a petition in Case
1-RC-12,203 seeking an election among Respondent's full-
time and regular part-time employees. After a hearing on
July 18, the Regional Director issued a Decision and
Direction of Election .3 An election was held on August 18,
1972, which resulted in a vote of 43 for the Union, 7
against, and 8 challenged ballots. Respondent filed
objections to the election which had not been resolved at
the time of the hearing in this case.
B. Respondent's Knowledge of the Union Activity
and Alleged Violations of Section 8(a)(1) of the Act
Before the Discharges of Gamache and Nadeau
In issue is whether Respondent became aware of the
union activity at the store before the discharges of
Gamache and Nadeau. Both Pope and Sanborn denied
that they learned of the union activity until shortly after
the discharges. However, Meat Department Manager
Michael Grassini, former employee Neal Smith, and
alleged discnminatee Clement Nadeau testified to conver-
sations with Pope and Sanborn prior to the discharges
which would establish their knowledge of the union
activity before that time . Although Grassini apparently
supported the Union in the election, he was an employee at
the time of the hearing in a position of some responsibility
the Decision to permit them to vote subject to challenge, leaving the issue of
their status to be resolved through the challenge procedure The three
managers in question appeared as witnesses for the General Counsel before
me and testified to alleged violations of Sec 8 (a)(1) Respondent did not
contend that they were supervisors before me and objected to litigation of
their status in this proceeding For purposes of this proceeding, I have
considered them to be employees within the meaning of the Act, as
Respondent has not contended otherwise
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had some interest in not testifying falsely against the
interests of his employer. His testimony, as was that of
Smith and Nadeau in this regard, was forthright and
convincing. On the other hand, neither Pope nor Sanborn
inspired confidence as witnesses. Pope concededly misstat-
ed the dates of the discharges in an affidavit given during
the investigation of this case. Whatever his reason for
doing so, his explanation , at the very least , cast strong
doubt on his memory of the timing of the critical events.
Sanborn first denied interrogating any employee and later
conceded that he did so. Both Pope and Sanborn testified
before Grassmi, Smith, and Nadeau, and neither of them
was questioned specifically about the conversations attrib-
uted to them by the General Counsel's witnesses.4 In these
circumstances, and as I find below that there are
independent reasons to reject critical portions of their
testimony as to the reasons for the discharges of Gamache
and Nadeau, I do not credit the denials of Pope and
Sanborn and do credit the testimony of Grassini, Smith,
and Nadeau.
In April, when a few employees had been talking about a
union, Grassini and Grocery Manager Ed Walsh went to
Pope and told him that there were problems in the store
and that the employees were thinking about organizing a
union. Thereafter, Grassini, Walsh, Pope, Sanborn, and the
produce department manager, Wieland, met with Pope,
and the department managers told Pope that a lot of
employees were unhappy about wages and working
conditions and that they felt something should be done
about it or there would be a union. After this meeting,
Pope went to the various departments and talked to
employees to find out what their grievances were.5
On May 10, the day when solicitation of employees to
sign union authorization cards began, Sanborn asked
Smith if Paul Gamache was trying to start a union. Smith
replied that he did not krow and walked off.
On the next day, May 11, Gamache spoke to Nadeau
about his interest in the Union. While they were talking,
Sanborn approached, and they ended their conversation.
As Nadeau resumed work, Sanborn asked if that had been
another union meeting. Nadeau said yes. Sanborn asked if
Nadeau was for or against the Union. Nadeaujust smiled
and did not answer.
On the same day, Sanborn asked Grassini if he knew
anything about a union. Grassini replied that he knew no
more than anyone else. Sanborn said he thought Gamache
was right in the middle of it. That night Pope asked
Grassmi if he knew anything about a union, and Grassmi
again replied that he knew no more than anyone else.
While there is no direct evidence that Pope or Sanborn
observed the union activity at the store, Pope had been
4 Pope testified as an adverse witness called by the General Counsel as
his first witness and was examined by the Respondent at that time Sanborn
testified out of, turn immediately after Pope at the request of the
Respondent Neither was recalled to testify after the General Counsel
completed his case
5 Grassini so testified without contradiction Walsh was found to be a
supervisor by the Regional Director in the representation case and that
finding was not set aside by the Board on review Walsh did not testify
6 Wiese Plow Welding Company, Inc, 123 NLRB 616, Ballard Motors,
Inc, 179 NLRB 300
7 Gamache had punched his card wrong that day so that the times when
he returned from lunch and next punched out for supper were reversed in
forewarned by Grassini that the employees were thinking
of getting a union to represent them. There is evidence that
starting on May 10 employees talked about the Union and
solicited on its behalf both at and away from the store
premises. The complement of employees at the store was
not large. In these circumstances and in the light of the
questions of Pope and Sanborn to Grassini, Smith, and
Nadeau, the inference is warranted that knowledge of the
umon activity had come to Pope and Sanborn, and that
indeed they suspected Gamache before May 12, the day of
the two discharges,6 with some accuracy, of being a leader
of the organizing effort.
I further find, as alleged in the complaint, that Sanborn
interrogated Smith as to the union activities of Gamache,
interrogated Nadeau as to his own umon activities, and
created the impression of surveillance of the union
activities in his statements to Grassmi about Gamache, all
in violation of Section 8(a)(l) of the Act. In the context of
these and later violations found below, I find further that
Sanborn and Pope unlawfully interrogated Grassim.
C. The Discharge of Paul Gamache
As found, Gamache attended the meeting at Palmer's
house on May 9 where he signed an authorization card.
During the rest of the week until his discharge, Gamache
talked to other employees and solicited them to sign
authorization cards. He obtained about 10 or 11 signatures
and talked to 20 or 30 employees. He camed on these
activities at the store during lunch hours and breaks as well
as away from the store. He did not try to hide what he was
doing.
On Friday, May 12, at about 7:30 p.m., Pope came to
Gamache on the floor of the store. Pope had Gamache's
timecard for that week in his hand. Pope asked him what
time he had gone to lunch that day, and Gamache pointed
to the times on the card.? Pope said he was going to have to
do something he did not want to do. Gamache said he
could guess what that was and asked if he had reasons for
it. Pope told Gamache he had a bad attitude and wasn't
doing his work properly. Gamache indicated that he
believed that he was being discharged because of the
Union. Pope replied that he did not say that. Pope did not
explain what he meant by his reference to Gamache's
attitude, but, when Pope mentioned Gamache's poor work,
Gamache said that he was not only doing the particular job
to which he was assigned but was also performing several
additional duties. Pope agreed that he was.8
According to Pope, he decided to discharge Gamache on
May 12 because of Gamache's excessive tardiness, absen-
teeism , and poor work habits.
order on the card Superficially the card showed that he had left for lunch at
123 and had not returned until 4 13 However the next entry which shows
"out" at 2 24 represented the time he returned and indicates that he was I
minute late returning from lunch rather than almost 2 hours late Gamache
pointed out this reversal to Pope
8 Gamache so testified as to his final conversation with Pope Pope was
not asked to describe that conversation in full but testified that he gave
Gamache three reasons for his discharge , excessive tardiness , absenteeism,
and poor work habits As Pope concededly referred to Gamache's timecard,
I find it likely that he also indicated to Gamache that his attendance was a
reason for the discharge
BEDFORD DISCOUNTERS, INC: 587
The attendance record of Gamache shows two instances
in 1972 when Gamache missed a half day's work,9 three
instances in April and May when Gamache was from 13 to
15 minutes late in arriving at work, eight instances in that
period when Gamache was from 5 minutes to 29 minutes
late returning from lunch, and one instance when Ga-
mache was 2 hours late returning from lunch.10 Gamache
conceded that on the day before his discharge he took an
unusually long time in building an end display. However,
the testimony of Pope and Sanborn with respect to
Gamache's attendance and work persuades me that they
are not to be credited that these were considered to be
serious problems by them, that they had ever previously
warned Gamache, or that these were the true reasons for
Gamache's discharge.
With respect to Gamache's absenteeism, Pope initially
testified that on three occasions Gamache had failed to
return to work after lunch. When shown Gamache's
timecards, Pope identified two dates, one on March 24,
when Gamache did not return to work after lunch, and the
other on April 28, when Gamache reported at noon instead
of 8 a.m. According to Pope, on the first occasion
Gamache called in to say he was unable to return because
he had personal problems and had been drinking. On the
other occasion, Pope testified that Grocery Manager
Walsh reported to him that Gamache had called in to say
that he had been to a party the night before and would be
late. Although Pope testified that on both occasions he
reprimanded Gamache and threatened disciplinary action,
he also testified that on the first occasion he called
Gamache aside and talked to him to see if he could help
straighten out the problem and that he did nothing on the
second occasion. Sanborn testified that most of the time he
was in charge of the store on Thursdays and that many
times Gamache's afternoon absences were on Thursdays
when Gamache was the only person in the grocery
department. In fact, Gamache's timecards show that
neither of his half-day absences were on Thursdays.ii
While Gamache conceded the reason he did not return
from work on March 24, and did not dispute the reason he
gave for missing work on the morning of April 28, he
denied that he was warned or reprimanded on either
occasion. It is undisputed that Gamache was paid for the
time he missed and was not docked for either the half days
he missed or his tardiness. Pope testified that he was
unaware that Gamache was paid for the time he missed
because someone else handled the payroll.
I do not credit Pope or Sanborn that Gamache's
absences had been a matter of concern to Respondent or
that Gamache had been reprimanded because of them.
Sanborn's testimony is refuted by Gamache's timecards.
Initially, Pope also erroneously stated the nature of
Gamache's absences. His testimony as to what he said to
Gamache on these occasions was shifting and, in conjunc-
tion with his initial misapprehension of the number and
nature of Gamache's absences, indicated at the very least
uncertain recollection. His claim that he was concerned
about Gamache's absenteeism and tardiness for at least a
month but yet remained unaware that Gamache was being
paid for time missed is difficult to swallow. For these as
well as the reasons expressed elsewhere with respect to
other critical testimony of Pope and Sanborn, I have not
credited Pope or Sanborn and credit Gamache.
With respect to Gamache's tardiness, Gamache testified
that he ate lunch with Grocery Manager Walsh three or
four times a week and that they returned late on occasion.
According to Gamache, Walsh told him that it would be all
right and that he would take care of it. Walsh who was
found to be a supervisor in the representation proceeding
did not testify. Yet Pope testified that Walsh had told him
of Gamache's excessive tardiness and that Walsh had
warned Gamache about it. Pope also testified that he told
Walsh to reprimand Gamache and that on at least two
occasions Pope personally reprimanded Gamache. San-
born testified he warned Gamache about his long lunch
hours on two or three occasions, and told Pope on those
occasions that they ought to do something about it. Yet
when asked to be specific, he named only two occasions
when he warned Gamache, one when Gamache allegedly
failed to return from lunch on a Thursday and the other
when Gamache and two other employees overstayed a
coffeebreak.
It is quite clear that Gamache's only significant tardiness
was in returning from lunch. As Gamache was not docked
for being late, as Walsh did not testify to contradict
Gamache's testimony that Walsh said he would take care
of it,12 and as Sanborn's testimony was deficient on its
face, I credit Gamache that Walsh condoned this tardiness
and said he would take care of it, and I do not credit Pope
or Sanborn as to their alleged warnings to Gamache or that
his tardiness was viewed as a serious breach by them.
With respect to Gamache's poor work, which allegedly
triggered Pope's decision to discharge him, the testimony
of Pope and Walsh is equally deficient. According to Pope,
the fact that Gamache was working poorly first came to his
attention on May 11, the night before Gamache's dis-
charge, when Sanborn told him it had taken Gamache 7
1 /2 hours to build an end display. Sanborn, on the other
hand, testified that for 2 or 3 months before Gamache's
discharge he was dissatisfied with Gamache's work and
discussed it with Pope on two or three occasions before
May 11. Indeed Sanborn after conceding that he said
nothing to Pope on May 11 to criticize Gamache's
performance that day or to attempt to speed it up,
explained that he felt that he wasn't getting any results by
going to Gamache himself and that he would tell the store
manager "who could make the decision." Sanborn's
attempts to explain what he meant by not getting results
were unconvincing, and a reading of his testimony as a
whole with its shifts, inconsistencies, and rationalizations
9 The record also shows that Gamache was absent for a full day on
March 10 However Pope testified that he did not know whether Gamache's
absence on that day was excused, and Respondent did not rely on this
absence as evidence of improper absenteeism
IU Gamache challenged the accuracy of the entry representing his return
from lunch on this occasion which unlike others was written by hand There
is some indication also that the timecard showed Gamache 1 hour late and
that Pope erroneously described it as showing him 2 hours late
11 The records also show that he was late returning from lunch only
twice on Thursdays On April 27 he was I I minutes late, and on May 4 he
was 8 minutes late
11 Gamache testified that he believed Walsh was still employed by
Respondent No evidence was offered to the contrary or to show that Walsh
was unavailable as a witness
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaves little doubt that Gamache's work performance never
had been viewed as a problem before and that Sanborn
had not in fact previously discussed Gamache's alleged
poor work with Pope. Much more believable than
Sanborn's explanation for his failure to criticize or to
attempt to speed Gamache's work on May 11 is Gamache's
explanation that his work building the end display was
interrupted by other duties which he was also expected to
perform and that the nature of the display made it more
difficult to build.
To be sure, the burden is on the General Counsel to
prove the discriminatory motive for Gamache's discharge,
and not upon Respondent to prove the contrary. But the
General Counsel's burden is more than met in this case.
Gamache was a leader of the organizing effort. Sanborn's
interrogation before Gamache's discharge shows both that
Gamache's role was suspected by Respondent and that
Respondent was actively seeking to confirm its suspicions.
Respondent's later conduct, described below, and the
testimony of Pope amply establish Respondent 's union
animus. These factors, coupled with the timing of the
discharge, establish a prima facie case. The evidence as to
the alleged cause of the discharge not only fails to negate
the inference of discrimination but adds support to it,13
warranting the conclusion that those reasons were not the
true reasons for Gamache's discharge but pretexts ad-
vanced in the hope of justifying the discrimination against
him. I find that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Paul Gamache.
D. The Discharge of Clement Nadeau
As found above, on May 11 Nadeau talked to Gamache
about the Union at the store and was observed and
questioned by Sanborn immediately thereafter. Nadeau
confirmed that he and Gamache had been talking about
the Union and replied only with a smile when Sanborn
asked if he was for or against the Union. During that day
and the next day, Nadeau spoke to several employees
about the Union at the store during supper hours, on
breaks, and in the aisle near the dairy department where he
worked. He did not attempt to conceal what he was doing.
On May 12 during his lunch hour, he signed a union
authorization card which he gave to Gamache upon
returning to the store.
Nadeau had worked for Respondent since August 1970,
and since the spring of 1971 he had been dairy manager.i4
At around 4 p.m. on May 12, Pope told Nadeau that he
had some bad news for him, that he was going to have to
let him go. According to Nadeau, Pope gave as reasons
that he was not doing his work and had a bad attitude.
According to Pope, he told Nadeau that he was incapable
of running the department, was not properly set up for
business, and had excessive waste of time and merchan-
dise. Nadeau asked Pope why he said he had not been
doing his work, and told Pope that his part-time helper had
been out sick, that his stock had come in late on delivery,
and that these were the reasons he had been unable to
complete his work . Pope did not answer him and just
walked away.15
At first blush , the evidence in the case of Nadeau is
closer than in the case of Gamache. Although Nadeau
initially testified that he had never received complaints
about his work, he conceded that he had been spoken to
about his work , had been criticized for leaving the store on
Wednesday nights before his case was set up , and had been
told it was his fault in months when the percentage of
profit figure for his department was low . There is also
independent evidence that Respondent was dissatisfied
with Nadeau's work in the testimony of Gamache that
approximately 6 weeks before Nadeau 's discharge Pope
told Gamache he was being considered for the dairy
manager 's job and indicated that Nadeau was to be
terminated . Also, unlike Gamache , Nadeau was not one of
those who was instrumental in starting the organizing
campaign , and only started to participate in the union
activity on the day before his discharge.
However, the version of Pope and Sanborn of the events
which immediately preceded and finally caused Nadeau's
discharge simply does not withstand analysis. According to
them , the busiest day of the week at the store was
Thursday, and by Wednesday night Nadeau was expected
to have the dairy cases fully stocked and ready for business
the following day. Pope testified that he decided to
discharge Nadeau because on Thursday, May 11, the dairy
case was again not ready for business and that was the
final thing in a series of events he could not tolerate. Pope
testified that he had told Nadeau to stay the night before to
get his case in shape, that Pope was away from the store
most of Thursday, and that upon his return Sanborn had
told him that the case was not stocked and was out of
business for most of the day on Thursday. Pope also
testified that it was necessary that Nadeau have the case
completely set up on Wednesday night because Thursday
was normally Nadeau's day off. Sanborn also testified that
he noticed that the case was not stocked on Thursday
morning and reported it to Pope when Pope returned to the
store late in the day . He also testified that Nadeau did not
work Thursday.
Nadeau testified, however, that at the time of his
discharge Thursday was not his day off, and his timecard
shows that he worked from 9 a.m. to 9 p.m. on Thursday,
May 11. Moreover , Nadeau testified , and his timecard
again confirms, that on Wednesday, May 10, Nadeau was
sick and not at work. Further Nadeau testified without
contradiction that a part-time employee, David Healy, was
normally assigned to help him and did not work at all for 2
or 3 weeks before Nadeau's discharge, leaving Nadeau
without any help to stock the dairy case and keep it
stocked.
Whatever dissatisfaction Respondent may have had with
Nadeau's work prior to his discharge, it is clear that the
testimony of Pope and Sanborn as to the alleged
immediate cause of Nadeau 's discharge cannot be credited.
13 In addition to the reasons set forth above for discrediting Pope and department manager and requests by him that Pope do something about it
Sanborn's testimony concerning Gamache 's attendance record , I also note 14 It is conceded that Nadeau was not a supervisor within the meaning of
that from the time Pope became owner-operator of Respondent until May the Act
12 no employees had been discharged , and one employee with a poor 15 Nadeau so testified Pope was not questioned about his conversation
attendance record had been retained despite complaints by the meat with Nadeau , except as to the reasons he gave Nadeau for the discharge
BEDFORD DISCOUNTERS, INC.
It is likely that the dairy case was not fully stocked on
Thursday morning, but Pope could not have told Nadeau
to stay late on Wednesday night to finish stocking it, and
Nadeau was not off work on Thursday. That Nadeau's
helper was not at work and was not replaced is undisputed.
Respondent has not contended that Nadeau' s illness on
Wednesday was feigned or that it had any criticism of his
attendance record. Whatever the state of the dairy case on
Thursday morning, Nadeau was hardly to be faulted for
having failed to stock it when he was not at the store and
had no assistance. Pope and Sanborn did not testify that
they were unaware of the extenuating circumstances, nor
could one believe that they might have been. Rather their
version simply altered the facts to eliminate the valid
explanation for the state of the dairy case on Thursday
morning. In these circumstances, I cannot credit either
their version of the facts or Pope's testimony as to the
reason he decided on May 12 to discharge Nadeau.
This is then a case in which the alleged triggering cause
for the discharge of an employee has been demonstrated to
be false, and that demonstration itself warrants the
inference that some other cause existed which Respondent
desired to conceal.16 Although Nadeau was not an initiator
of the union activity, there is ample evidence to lead to the
conclusion that the concealed cause was Nadeau's union
activity. Thus, Sanborn's questioning of Nadeau elicited
that he and Gamache had been having a "union meeting"
when Sanborn observed him, and Nadeau's evasive smile
when Sanborn asked him if he was for or against the Union
was tantamount to an admission that Nadeau was for the
Union. These factors considered in conjunction with
Respondent's union animus and the timing of Nadeau's
discharge on the same day as the discharge of Gamache
lead to the conclusion that the final event which caused
Respondent to translate its dissatisfaction with Nadeau
into a discharge was Nadeau's identification by Sanborn
on the day before his discharge as a coactivist of Gamache
in the union organizing effort. I find that Respondent
discriminatorily discharged Clement Nadeau in violation
of Section 8(a)(3) and (1) of the Act.
E. The Alleged Violations of Section 8(a)(1)
After May 12
Several employees or former employees testified in
support of the allegations of the complaint as to alleged
violations of Section 8(a)(1) of the Act which occurred
after May 12: Pope and Sanborn both testified before any
of this testimony was adduced and left much of it
uncontradicted.
Pope conceded that he was upset when he learned that
the employees tried to contact the Union and that they had
gone to a union before talking to him about their problems.
He conceded that he probably asked employees the
question how it got started and that he did not want a
union in the store because it would cause him undue
headaches and trouble . Pope was not questioned otherwise
16 Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466 (C.A. 9).
17 Although Taylor's card is dated May 10, it appears that the date on
the card may have been in error. While I credit Taylor's uncontradicted
testimony as to the substance of his conversation, I do not find, as Taylor
testified, that this conversation occurred before the discharges of Gamache
589
as to any of the alleged violations of Section 8(a)(1)
attributed to him.
Sanborn initially denied questioning any employees
about their union activities. However, he later conceded
that he asked employees if they were for or against the
Union, and after an initial denial of recollection also
conceded that he told employees he thought there was a
possibility that the store could close if the Union were "too
strenuous" on Respondent. Sanborn's testimony in these
respects as in others was vague, inconsistent, and shifting.
The testimony of Pope and Sanborn where it differs from
that of the employee witnesses is not credited, and the
findings which follow are based upon the substantially
uncontradicted employee testimony.
1. Threats that the store would close
Around the time that Frederick Taylor, a meatcutter,
signed a union authorization card 17 Pope asked him if he
had heard about a union. Taylor said that he had. Pope
asked if he had signed a card. Taylor said that he had not.
Pope told him that the store could not run with a union
and asked Taylor something about the employees' griev-
ances and why they wanted a union. Taylor voiced some of
the employees' complaints, and Pope ended the conversa-
tion by saying that if a union was voted in, the people who
voted for it would not be there 2 months after it came in.
He said he was going to close the store if the Union got in
because it would be financially impossible for him to
operate it.
On or about May 15, Pope told Delicatessen Manager
Delessio that if the Union came in he would close the store
because he could not afford the Union. Pope also told
Delessio to go back and tell the employees in his
department what he said. Delessio did so.
In mid-May, Pope told Neil Smith that he wanted to give
him the Company's viewpoint on the Union and said that
if the Union got in there was a very distinct possibility that
the store might close or that hours would have to be cut.
Smith told him he thought the store needed a union.
On or about May 24, 1972, Pope told produce clerk
Richard Palmer that he would like to discuss the Union
with him and tell him his side of it. Pope said he did not
feel that the employees needed a union and believed they
could solve their problems in the store by themselves. He
said that if a union came in and put a hardship on the store
it would have to close. Pope asked Palmer not to attend a
union meeting that evening. Palmer replied that it was his
right to attend and he felt that he should go for his own
benefit.
On or about June 12, Sanborn asked Delicatessen
Manager Delessio what he thought of the Union. Delessio
replied noncommittally. Sanborn said that he was glad that
he, Sanborn, was leaving because the store would be
closing and that Pope was going to set an example for the
Concord and Salem stores.18 Delessio disputed Sanborn's
assertion.
and Nadeau.
18 There were food stores similar to Respondent's in Concord and Salem
associated with Fields Discount stores but with different owner-operators.
The Union filed petitions to represent the employees at those stores
concurrently with its petition in Case I-RC-12,203.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In mid-June, Sanborn told Meat Manager Grassini that
the store would probably close if the Union was voted in.
Grassini said he didn't believe it.
On the morning of June 13, Pope asked Wieland what he
thought. Wieland replied that he thought they were in the
wrong business. Pope said, "Well you may have your
chance to get out pretty soon." Wieland asked if he should
start looking for another job, and Pope gave no answer.
Sometime in July, Sanborn asked Palmer if he had
another job. Palmer said that he did not and asked
Sanborn why he had asked. Sanborn said that if the Union
came in they were going to have to close the store. Palmer
told Sanborn he did not believe it, and that he would
believe it the day he came to work and found the doors
locked.
Also in July, Sanborn told Grassini that if a union was
voted in the Bedford store they would close it to make an
example for the Concord and Salem stores.
In all but one of these conversations, Pope and Grassini
stated that the store would or might close if the Union
became the representative of the employees. Even though
Pope in some instances stated that Respondent might be
forced to close because of economic necessity, he did not
condition his statement on any wage or contract demand
but simply upon the advent of the Union. These statements
cannot be viewed as mere predictions of the consequences
of agreement to particular demands of the Union.19 In
other instances Pope and Sanborn gave no reason for their
statements that the store would close, and in two instances
Sanborn stated that the store would close to set an example
for other stores. I find that in each of the conversations the
statements that the plant would or might close were threats
of reprisal in violation of Section 8(a)(1) of the Act.
In the June 13 conversation between Pope and Wieland,
there was no mention of the Union or of closing the store.
But in the context of the numerous threats of store closure
and absent any other explanation, I find that Pope's
statement that Wieland might have a chance to get out of
Respondent's business pretty soon was intended to convey
that Wieland might need to look for another job if the
Union won the election because of the threatened store
closure. I find that this statement also violated Section
8(a)(1) of the Act.
2. Grants of benefit
Around May 1, before the union activity began, the
meatcutters had a conversation with Pope about a raise. At
that time, Pope told them that they had been due for a
raise on February 10 and would be getting a 5.5 percent
increase which was permissible under Wage Board policy.
The meatcutters asked if they would get retroactive pay
from February 10. Pope said he didn't have any answer for
that question. They asked if they would get as much as the
employees of Stop and Shop because their raises had
previously coincided and raises for the Stop and Shop
employees were then being considered by the Wage Board.
Pope said he did not know and would have to check with
Philadelphia.
19 Components, Inc., 197 NLRB No. 25.
20 The Hertz Corporation, 184 NLRB No. 49.
On May 17, the meatcutters met again with Pope. At that
time, Pope said that they would get raises retroactive to
February 10 and that he still had no answer as to whether
they would get the same raises as the Stop and Shop
employees.
On June 6, Pope called Wieland's attention to a notice
posted on the bulletin board. Pope explained to Wieland
and the grocery department manager benefits which were
set forth in the posted notice and told them to explain them
to their employees. Pope told Wieland that there was
$1,000 of life insurance for part-time employees after so
many months of service and that there would be a personal
holiday for all full-time employees subject to agreement
between the department head and the store manager.
Wieland had not previously heard of these benefits, and
the employees did not previously have a personal holiday.
Respondent offered no explanation for Pope's an-
nouncement to the meatcutters on May 17 that, their wage
increase would be retroactive or for the June 6 posting of
the notice of additional benefits for other employees. In the
case of the retroactivity, little more than 2 weeks earlier,
before the union activity began, when the meatcutters
expressed their interest in retroactivity Pope told them he
could not give them an answer. Yet, only shortly after the
union activity started and before Pope could tell them the
amount of the increase, he announced that it would be
retroactive. In the case of the other benefits, they were
announced concurrently with the filing of the representa-
tion petition, and Pope made it clear that he wanted the
good news spread and understood. In the context of
Respondent's other efforts to discourage support of the
Union and in the absence of any explanation for the grant
of these benefits at these times, I find that they were
granted and announced to coerce employees in the exercise
of their protected rights in violation of Section 8(a)(1) of
the Act.20
3. Other violations of Section 8(a)(1)
Around May 17, Pope asked porter Ross Gookin not to
sign a card for the Union and not to attend union
meetings. Gookin told him that he did not think anyone
was out to hurt Pope and that the employees were
organizing to help themselves to get more pay. Pope said
the Union would hurt him more than it would help the
employees. As found above, during Pope's May 24
conversation with Palmer, Pope also asked Palmer not to
attend a union meeting that evening. I find that Pope urged
Gookin and Palmer to refrain from signing authorization
cards and attending union meetings in violation of Section
8(a)(1) of the Act.21
Toward the end of May, Pope told Produce Manager
Wieland the Union could be stopped but that he could not
do it without the help of the department heads. Wieland
disagreed with him and told him he thought it was too far
along. Pope said he could not afford to pay cashiers top
wages or any of the other employees top wages if the
Union came in the store. Pope also said that the employees
could do without outside help and did not need such help
21 N.L.R.B. v. Witbeck, 382 F.2d 574 (C.A. 6); Southbridge Sheet Metal
Works, Inc., 158 NLRB 819.
BEDFORD DISCOUNTERS, INC. 591
to make the store run better and to get better benefits. He
asked Wieland to tell the produce employees to have faith
in Respondent and that things would get better in the
future. After this conversation, Wieland repeated what
Pope had said to two produce department employees. I
find that Pope threatened reprisals if the Union became the
representative of the employees and promised unspecified
benefits if it did not, thereby violating Section 8(a)(1) of
the Act.
On June 9, Taylor asked Pope for an advance on his pay.
Pope said that he could have it but that if the Union got in
he did not know whether he could do it again. Pope asked
Taylor if he thought the Union were coming in, and Taylor
said that it was definitely coming in. Pope then discussed
some of the employees' grievances and said that he could
promise Taylor 25 cents more an hour but that it would be
classified as an unfair labor practice. Pope added that if the
Union did not come in there would be changes made. Pope
said that they could organize a type of grievance
committee and in that way he could listen to the problems
of the employees. Taylor said that he did not think a
grievance committee would work because Pope would still
have the final say. I find that Pope threatened loss of
privileges if the Union won the 'election, indirectly
promised a wage increase, and promised other changes of
benefit to the employees if the Union lost the election, all
in violation of Section 8(a)(1) of the Act.
Finally, I find that when Pope spoke to Taylor in May
and when Sanborn spoke to Delessio in June about the
store closing, as set forth above, Pope also unlawfully
interrogated them in violation of Section 8(a)(1) of the Act.
offers of reinstatement , less net earnings , to which shall be
added interest at the rate of 6 percent per annum, in
accordance with the formula set forth in F.W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
CONCLUSIONS OF LAW
1. Bedford Discounters, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Retail Store Employees Union, Local 372, Retail
Clerks International Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening employees with reprisals if they
engaged in union activities, by interrogating employees
concerning their union activities and those of other
employees, by granting and promising employee benefits
to discourage their union activities, by creating the
impression of surveillance of union activities, and by
urging employees to refrain from signing authorization
cards or attending union meetings, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
4. By discharging Paul Gamache and Clement Nadeau
on May 12, 1972, because of their union activities,
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(aX3) and (1) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and
desist therel