Bert's Foodland Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1973

201 N.L.R.B. 43 (N.L.R.B. 1973)

BERTS FOODLAND 43
Bert's Foodland Incorporated and Betty I. Donaldson.
Case 6-CA-5997
January 4, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
McKeesport, Pennsylvania, store. During the 12-month
period immediately preceding issuance of the complaint
the Respondent had gross revenues in excess of $500,000 at
this store. During the same period it received goods valued
in excess of $50,000 directly from sources outside the State
of Pennsylvania. I find that the Respondent is engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to exercise jurisdiction
herein.
On September 21, 1972, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering 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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 and
hereby orders that Respondent, Bert's Foodland
Incorporated, McKeesport, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held on August 9, 1972, at
Pittsburgh, Pennsylvania, on complaint of the General
Counsel against Bert 's Foodland Incorporated, herein
called the Respondent or the Company. The complaint
issued on June 28, 1972, on a charge filed on April 4, 1972,
by Betty I. Donaldson. The sole issue presented is whether
Donaldson suffered illegal discrimination in employment
at the hands of the Respondent in violation of Section
8(a)(3) of the Act. Briefs were filed by the General Counsel
and the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation engaged
in the retail sale of groceries and related items at its
201 NLRB No. 18
II. THE LABOR ORGANIZATION INVOLVED
I find that Retail Clerks Store Employees Union, Local
1407, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Question to be Decided
Betty Donaldson has for 4 years been the Union's
steward in this store, where 50 to 60 employees work; the
Union has had contractual relations with the Respondent
for a longer period. Over the years many employees
brought complaints, or grievances, to the steward, and she
either satisfied them in discussion or sent them to see the
store manager; for the past 2 years and 9 months this
manager has been Anthony Matarazzo. Only once or twice
over her 4-year stewardship did Donaldson herself have to
talk personally with the manager about a grievance. The
first grievance that reached the written stage was precipi-
tated by suspension of a butcher-Dan Varanich-on
March 11, 1972. Every grievance or complaint before that
was settled amicably without any necessity for reducing the
complaint to writing. There was a regular conference on
Varanich's grievance on March 22; both company and
union, including Donaldson, representatives spoke their
piece, and the upshot was the man was restored to work
with full backpay.
For an entire year Donaldson, a full-time employee
entitled to and performing 40 hours of work a week, had
been working 3 nights one week and 2 nights the next, an
unvarying repetitive arrangement so scheduled. Nightwork
is deemed more onerous and less desirable than daywork
by the employees. For the workweek immediately follow-
ing the grievance conference on March 22, she was
scheduled for work 3 nights, although she had worked 3
nights the week ending March 25. She has been working,
because so scheduled, 3 nights each and every week since.
The theory of complaint is that the Respondent imposed
this more onerous work schedule on Donaldson in
retaliation for her activity in connection with the Varamch
grievance, and thereby violated Section 8(a)(3) of the Act.
In its answer to the complaint the Respondent defends on
the ground that under its collective-bargaining contract
with the Union it has a right to schedule the working hours
of employees in this fashion.
The question is purely one of motivation: did the
Respondent do what it did to Donaldson because of her
activities as union steward? The General Counsel conceded
on the record that the Company did not violate the current
contract by changing the steward's hours, "We are not
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disputing the company's contractual right to schedule Mrs.
Donaldson three nights a week." With this, the Respon-
dent's assertion that its action fell within the purvue of the
contract becomes an irrelevancy; that matter has nothing
to do with this case.
B. Evidence in Support of the Complaint
Store Manager Matarazzo told Donaldson of Varanich's
suspension on March 11, a Saturday, with the thought he
might communicate with her. Varanich gave the steward a
written statement and on Thursday the steward mailed a
formal grievance to the Union's office . On Friday, in the
store, Matarazzo asked Donaldson had she talked to
Varanich and she said yes, she had mailed out the
grievance. She asked was he sure of what he was doing and
he said he was. The next day Donaldson had occasion to
ask the manager to help her fix certain electric lights in the
dairy department, where she worked. As they talked he
asked did she know Allan Arkin, she said no, and he added
"well, he was doing some special investigating out of the
D.A.'s office for us on Danny Varanich." When she
repeated she did not know the man, the manager
continued: "Well, your name came up-Betty Donaldson,
union steward." She simply repeated she hoped he knew
what he was doing.
She was at the grievance conference on March 22, with
Varanich and Anthony Guarino, the Union's business
representative. Matarazzo's position was he had two
witnesses besides himself supporting his conclusion Vara-
nich had stolen some steaks from the store. With
Matarazzo there were Charles Vernau, a roving supervisor
of the parent company, and John Charmo, another
butcher, upon whose story the manager had partly relied.
Guarino testified that in the discussion the manager
"flared up" at Donaldson and both he and Vernau had to
tell him he was out of order. Matarazzo said he criticized
Donaldson then for shaking her head and told her "Why
are you shaking your head, Betty? You seen that he is
already not guilty?" He also said to her, according to
Donaldson's uncontradicted testimony, "You are doing a
fine job."
Varanich was reinstated and on March 25, Saturday,
Donaldson saw on the schedule posted for the following
week that she was again set down to work 3 nights. Vernau
was in the store on business and she asked him why the
change for her; according to her he answered: "Well, you
better believe Danny [Varanich] is guilty." She said that
was all forgotten. Vernau remembered Donaldson com-
plaining to him about the matter but testified all he did was
tell her "To go to the store manager and discuss the
schedule with him. I saw no problem with the schedule. It
didn't violate the contract. That was the end of the
conversation." He denied making any reference to Vara-
nich's guilt or innocence.
C. The Affirmative Defense
At the hearing the Respondent for the first time
articulated an economic justification for changing Donald-
son to a steady program of 3 nights weekly work. It now
asserts that a certain "construction problem" in front of
the store might require reducing the number of part-time
employees and that therefore it was necessary back in
March to train other employees on the cash register, and
that the program made necessary changing others besides
Donaldson to a continuous 3-nights-a-week schedule.
Aside from Matarazzo's conclusionary statements, the
evidence proves neither that necessity nor the fact of
similar change for anyone else. The manager also testified
that the training program had been discussed as far back as
January, with mention made of it even to Donaldson, and
that the actual training began the week of March 22. The
object was, according to Matarazzo: "To learn to run the
register and be able to in case we had to lay off our part
timers who run the register-they would be acceptable to
be able to run the register." He said he started training
Donaldson first because of her contractual superseniority
as steward, and then two other full-timers-Haychak from
the meat department and Buleiput from produce.
As he continued, Matarazzo then said Haychak now
works only 2 nights a week and Buleiput just returned from
4 months' sick leave. There is therefore no proof that either
of these two women worked 3 nights a week continuously,
as has Donaldson, nor indeed that either was ever changed
in schedule like the steward. The Respondent did not
produce its payroll records which would have established
uncontrovertible facts. Matarazzo was asked how many
employees "since March" have been scheduled to work 3
nights each week; he answered six to eight and then listed
the names of five employees. He then added as clearly as
can be that all of these had been doing 3 nights a week
without change from long before March. The assertion that
it was "necessary" to change Donaldson's schedule and
that others were treated the same way simply has no
support in the record. There is nothing to show that it ever
became necessary to release part-timers, or anyone else.
During the first "training" 3-night-week-the one ending
April 1-Donaldson did not work on cash registers at all.
And yet 5 months later she was still working 3 nights every
week, learning to operate the cash register.
D. Analysis and Conclusion
I conclude that the Respondent changed Donaldson's
work schedule, and imposed -a more burdensome assign-
ment upon her because the manager did not like her
attitude when processing the Varanich grievance. Mataraz-
zo personally makes the schedule each week; he first
altered Donaldson's established regimen 2 days after the
Union had prevailed in its grievance. The defense assertion
of economic need was an afterthought, now really a
pretext, and not the real reason for changing her hours.
Had this been the true explanation for the action, the
Company representatives would have told her much sooner
than August 9, the day of the hearing. If Vernau is to be
believed, all he told her when she first complained was that
the contract permitted the Company to make the change.
He is higher in authority than the store manager, and
therefore must have known of any necessary "training
program" if there had been any. Donaldson then com-
plained through the Union, and, as the manager himself
testified, at a joint conference, with the steward charging
him outright with discrimination because of her union
BERT'S FOODLAND
activity, all he said in defense was again that it was a
contractual prerogative of the Company. Where was the
economic explanation then? And finally, the answer, 3
months later, does no more than repeat the same refrain,
Matarazzo was not being truthful at the hearing, and
neither was Vernau.
I credit Donaldson. I find that Matarazzo tried to inhibit
her enthusiasm for the Varanich grievance by frightening
her with the thought the District Attorney was investigat-
ing her in a criminal matter. I find that he expressed his
displeasure at her attitude during the grievance conference
with the statement "you are doing a fine job." I also find
Vernau, the highest supervisor, made her understand
directly enough that the change in schedule came about
because she persisted in believing, contrary to the Compa-
ny view, that Varanich had not been guilty as charged.
This, together with the complete lack of persuasiveness in
the asserted affirmative defense, and the critical timing of
the events, amply support the conclusion that, as alleged in
the complaint, the Respondent in March imposed an
added burden on the steward, and has since continued to
do so, in retaliation for her protected union activity, all in
violation of Section 8(a)(1) and (3) of the Act.'
IV. THE REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the Act, it must be ordered to
cease and desist therefrom and to take affirmative action
designed to effectuate the policies of the Act. The
Respondent must be ordered to discontinue assignment of
night work on a regular 3-nights-a-week schedule to Betty
Donaldson and resume its previously established system of
assigning her to work 2 nights one week and 3 nights the
next, as a regular practice.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By discriminatorily scheduling Betty Donaldson to
work 3 nights each and every week as a regular procedure,
because she processed a grievance as a union steward, the
Respondent has violated Section 8 (a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing finding of facts, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 2
ORDER
The Respondent, Bert 's Foodland Incorporated,
McKeesport, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily assigning Betty Donaldson to work
3 nights each and every week as a regular practice, or in
45
any other manner interfering with, restraining, or coercing
union stewards in the performance of their duties.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under the Act.
2. Take the following action designed to effectuate the
policies of the Act:
(a) Discontinue the practice of scheduling Betty Donald-
son to work 3 nights each week and resume the old practice
of scheduling her to work 2 nights one week and 3 nights
the next, on a regular alternative basis.
(b) Post at its McKeesport, Pennsylvania, place of
business copies of the attached notice marked "Appen-
dix."3 Copies of the notice on forms provided by the
Regional Director for Region 6, after being duly signed by
the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.4
I Lenkurt Electric Co, 182 NLRB 510.
2 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
3 In the event that the Board's 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
4 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read.
"Notify the Regional Director for Region 6, in wasting , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
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 having found, after a
trial, that we violated the Federal law by altering the
scheduled hours of work for Betty Donaldson because of
her activities on behalf of the Union as a steward:
WE WILL NOT hereafter discriminate against any
employee or representative of Retail Clerks Store
Employees Union, Local 1407, AFL-CIO, because of
their activities on behalf of this union or any other
labor organization.
WE WILL discontinue the practice of scheduling
Betty Donaldson to work 3 nights each week consecu-
tively without interruption and instead restore our
previously established practice of scheduling her to
work 2 nights one week and 3 nights the next as a
regular alternating schedule.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unlawfully interfere with our employ - This is an official notice and must not be defaced by
ees' union activities . anyone.
This notice must remain posted for 60 consecutive days
BERT's FOODLAND from the date of posting and must not be altered, defaced,
INCORPORATED or covered by any other material. Any questions concern-
(Employer) ing this notice or compliance with its provisions may be
directed to the Board's Office, 1536 Federal Building, 1000
Dated By Liberty Avenue , Pittsburgh , Pennsylvania, 15222 Tele-
(Representative) (Title) phone 412-644-2977.