Big E's Foodland, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1979

242 N.L.R.B. 963 (N.L.R.B. 1979)

BIG E'S FOODLAND. INC.
Big E's Foodland, Inc. and Local 371, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case I CA 13380
June 11, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 30, 1978, Administrative Law Judge John
F. Corbley issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
MEMBER JENKINS, dissenting in part:
Although I agree with my colleagues in other re-
spects, I would find that Respondent violated Section
8(a)(1) of the Act by interrogating Ann Parizo and by
discriminatorily refusing to hire certain former em-
' Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Ds' Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The comments of Corbeil, Respondent's owner, on July 13. 1977, to a
union business agent that he would not be hinng all former employees of
Ed's Foodland and that he did not want to face the Union again do not.
contrary to our dissenting colleague's position, establish the "true reason"
and an unlawful one-for Respondent's refusing to hire the alleged discrim-
inatees. In the first place, when Corbeil made the foregoing comments, there
were njob openings at his store. To be sure, a statement of animus need not
be made prior to an alleged unlawful act to be relevant to the issue of the
legality of the act. But here there is, especially in the absence of other unlaw-
ful conduct, nothing to tie the comments to Respondent's hiring decisions
made a week earlier or to its failure to employ the discriminatees. Further-
more, as the Administrative Law Judge stressed, if Respondent had hired the
alleged discrminatees. the Union would still not have represented a majority
of its employees; thus, in failing to hire the alleged discriminatees, Respon-
dent did not thereby avoid facing the Union. Thus, the record wholly fails to
establish any plausible grounds to support a conclusion that Respondent
failed or refused to hire the discriminatees for unlawful reasons
ployees of Ed's Foodland. Inc., because Respondent
believed them to be union supporters and thereby
sought to avoid the possibility of dealing with the
Union.
On June 28, 1977, Respondent's owner, Ed Corbeil.
agreed to purchase the assets of Ed's Foodland. He
was aware that the Union represented the employees
of Ed's Foodland and that, in the election held on
February I 1, the Union received 23 votes in a unit of
24 eligible voters. On July 2 the Ed's Foodland em-
ployees were terminated, and, during the period from
July 3 to July 5. Corbeil placed employment adver-
tisements in newspapers and received applications
from prospective employees, including approximately
19 former Ed's Foodland employees) He offered jobs
to approximately 10 of the former employees (6 of
whom had been hired by Ed's Foodland subsequent
to the election). For reasons expressed infira, I would
find that Respondent unlawfully discriminated
against six of the remaining nine employees by refus-
ing to hire them.
Although a purchaser of the assets of a business
has no obligation to hire the seller's former employ-
ees, the refusal to hire is violative of the Act if it is
motivated by antiunion considerations. The record
demonstrates that Corheil was resolutely opposed to
dealing with the Union and purposely limited the
number of supposed union supporters in order to pre-
clude the possibility that the Union might represent a
majority of the employees at the store.4
The purchase agreement for the sale of the assets of
Ed's Foodland to Corbeil provided for indemnity and
reimbursement to Corbeil in the event the Union at-
tempted to impose itself on Respondent. During the
period when he was accepting applications, Corbeil
unlawfully interrogated Ann Parizo concerning the
union sentiments of her fellow employees. Further-
more, Corbeil stated that he wanted experienced em-
ployees, but refused to hire veteran employees of Ed's
Foodland and, with respect to most of the alleged
3 Ann Parizo. one of the former Ed's Fovdland employees, was questioned
by Corbeil as to why the employees had voted the Union in, if she liked the
former owner, and if this was the reason employees had oted for the Union.
The nature of the interrogation demonstrates that Corbeil presumed that
Panzo knew of the employees' reasons for selecting the Union. Such interro-
gation for the purpose of ascertaining the union attitutes of employees, with-
out adequate assurance against reprisal, which was not given herein, and
which took place in the course of an empioyment interview. is inherently
coercive and thus violative of Sec. 8sa ) of the Act. See Coastal Care Cen-
ters d/h/a Paciftic Conalescent Hospital, 229 NLRB 507 (1977) (see, in par-
ticular. fn. 2). and .irhorne Freight Corporation, 229 NL.RB 1141, 1145
(1977). It s not significant that Parizo may not have been intimidated or that
she was subsequently hired. See Munro Enterprises. Inc., 210 NI.RB 403
(1974). and Rochester Cadet Cleaners, Inc, 205 NLRB 773 (1973).
4 The fact that the Union would not have represented a majority of Re-
spondent's employees even if all the discriminatees had been hired is not
determinative. The complaint does not allege that Respondent unlawfully
refused to bargain with the Union. It is clear, however. that Corbeil did not
want to provide the linion with a substantial base of support
242 NLRB No. 145
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatees, provided no explanation for this ac-
tion.
Most significant is Corbeil's reply to Union Busi-
ness Representative Miondaka, who, on July 13,
asked Corbeil to hire the former Ed's Foodland em-
ployees. Corbeil responded that he would not be hir-
ing them, that he had enough of the Union in the Big
Y chain, and he would rather not face them again. He
added that the Union should concentrate its efforts
on organizing the nonunion stores in the Big Y chain
and should leave him alone.
It is difficult to conceive a more conclusive admis-
sion of Respondent's true reason for refusing to hire
the alleged discriminatees. However, the Administra-
tive Law Judge attached no significance to Corbeil's
July 13 admission because it occurred approximately
a week after Respondent had hired its work force,
and such force had already become essentially stabi-
lized.5 No cases are cited for the illogical and incor-
rect proposition that such expressions of animus must
be contemporaneous with the discrimination. Indeed,
countless cases have established the principle that a
respondent's postdischarge statements are considered
as evidence of true motive. 6
In view of the foregoing, I would find that the evi-
dence establishes that Respondent's hiring practices
were discriminatorily motivated, and a prima facie
case for finding discrimination has been made out on
behalf of each of the alleged discriminatees. It is then
Respondent's burden to come forward and establish
that its failure to hire these individuals was for rea-
sons unconnected with its discriminatory policies.
With respect to James Ramsey, Kenneth Farr, Emile
Derouin, Henry Poznanski, Howard Daehne, and
Henry Opatkiewicz, Respondent has not done so.7
With respect to Alice Schwartz, Allan J. Guthier,
and Henry Poznanski, I agree with the Administra-
tive Law Judge that Respondent had legitimate rea-
sons for not hiring them.8
Accordingly, I would find that Respondent vio-
lated Section 8(a)(3) and (1) by refusing to hire Ram-
sey, Farr, Derouin, Poznanski, Daehne, and Opatkie-
wicz.
5 In his recitation of the facts, the Administrative Law Judge found that
the employee complement had stabilized by July 16. No explanation is given
for this apparent inconsistency.
See Missouri Pressed Metals, Inc., 237 NLRB 1398 (1978); Unimedia
Corpora 'on, 235 NLRB 1561 (1978); and Creative Engineering, Inc., 228
NLRB 582 (1977).
The Administrative Law Judge found that Corbeil telephoned Opatkie-
wicz on July 5 to offer him a job as a meatcutter, but Opatkiewicz was not at
home. This one attempt does not explain why Opatkiewicz was not con-
tacted when Corbeil hired meatcutters on subsequent dates.
The General Counsel does not except to the Administrative Law Judge's
finding that Schwartz and Guthier were justifiably refused employment.
With respect to Poznanski, who was produce manager for 12 years at Ed's
Foodland, the record indicates that the position of produce manager had
been filled prior to Poznanski's application.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held before me in this case at Northampton, Massachu-
setts, on December 5 and 6, 1977, pursuant to a charge filed
on July 14, 1977, by Local 371, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, here-
inafter referred to as the Union, on a complaint and notice
of hearing issued by the Regional Director for Region I of
the National Labor Relations Board on August 24, 1977,
and on an amended complaint and notice of hearing issued
by the Regional Director on November 14, 1977, which
complaint and amended complaint were also duly served
upon Respondent. The complaint,' which was amended on
the record at the hearing, alleges that Respondent violated
Section 8(a)(1) of the Act by interrogating its employees
about their union sympathies on various dates from July 3
through 6, 1977, and that Respondent violated Section
8(a)(l) and (3) of the Act by refusing to hire some nine
applicants for employment during the period July 3-5,
1977, because of said applicants' assistance to the Union or
because of their concerted activities.2 In its answer to the
complaint, Respondent has denied the commission ol any
unfair labor practices.
For reasons which appear hereinafter, I find and con-
clude that Respondent has not violated the Act as alleged
in the complaint, and I shall recommend that the complaint
be dismissed in its entirety.
At the hearing all parties were represented by counsel.
All parties were given full opportunity to examine and
cross-examine witnesses, to introduce evidence, and to file
briefs. The General Counsel and Respondent waived the
right to make closing statements. Respondent's counsel
waived participation in the final phase of the hearing. Ex-
cellent briefs have subsequently been received from the
General Counsel and Respondent and have been consid-
ered.
Upon the entire record in this case, including the briefs,
and from my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACI
I. THE BUSINESS OF RESPONDENI
Respondent is, and has been at all times material herein,
a corporation duly organized under and existing by virtue
of the laws of the Commonwealth of Massachusetts.
At all times herein mentioned, Respondent has main-
tained its principal office and place of business (herein
called the store) at I I Union Street, Easthampton, Massa-
chusetts, and is now and continuously has been engaged at
said store in the retail sale of groceries and related products.
Pursuant to an agreement executed on July 5, 1977, Re-
spondent (Big E's Foodland, Inc.) purchased the assets of
I The complaint wth all its amendments will be referred to hereinafter
simply as the complaint.
2 At the beginning of the hearing the complaint was amended to delete the
names of Michael Szostak and Edward Kortes and to add the name of Julie
Thibodeau to this allegation.
964
BIG E'S FOODLAND. INC.
Ed's Foodland, Inc., and opened for business at the same
location on July 6, 1977.
In the year prior to July 6, 1977, Ed's Foodland, Inc.,
had gross revenues in excess of $500,000.
In the first month of operations Respondent had gross
revenues in excess of $50,000.
It is projected that Respondent will have an annual gross
volume of business in excess of $500,000.
In the first month of operations, Respondent received at
its Easthampton, Massachusetts, location goods and mate-
rials directly from points outside the Commonwealth of
Massachusetts valued in excess of $5,000.
Respondent is, and has been, engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALEGED UNFAIR LABOR PRACltIES
A. Supenrvision
At all times material herein Edward A. Corbeil was Re-
spondent's owner, and has been and is now an agent of the
Respondent, acting on its behalf, and is a supervisor within
the meaning of Section 2(11) of the Act.
B. Background
The proprietor of Ed's Foodland, Inc.-the assets of
which were purchased by Respondent in early July 1977-
had been for over 20 years Edwin P. Stawarz.
On February 11, 1977, a Board-conducted election in
Case -RC-14940 was held among the employees of Ed's
Foodland, Inc., to determine whether they desired to be
represented for the purposes of collective bargaining by
Amalgamated Meat Cutters, Food Store and Allied Work-
ers of North America, AFL-CIO, Local No. 33. The tally
of ballots showed that of some 24 eligible votes, 23 voted in
favor of that labor organization, I voted against, and there
was I challenged ballot. Thereafter, on February 22, 1977,
the Regional Director, on the basis of the election, certified
that labor organization as the collective-bargaining repre-
sentative of the employees in the following unit, found ap-
propriate for the purpose of collective bargaining:
All employees employed at the employer's supermar-
ket located in Easthampton, Massachusetts; but ex-
cluding office clerical employees, store manager, assist-
ant store manager, professional employees, guards and
supervisors as defined in the Act.
Prior to January or February the payroll for Ed's Food-
land, Inc., had been maintained by Stawarz's office clerk,
Maria Tourville. Sometime about February the payroll be-
gan to be handled by a local bank. Tourville, although she
no longer prepared the payroll, began keeping a list consist-
ing only of those employees hired after March 1. This list
was kept on a green sheet of paper on Tourville's desk.
3 Unless otherwise noted all dates appearing hereinafter occurred in 1977.
In May the certified bargaining representative of the em-
ployees of Ed's Foodland, Inc., that is, Local 33 of the
Meatcutters, merged with Local 371 of the Meatcutters, the
Union (Charging Party) herein. Neither Local 33 nor Local
371 entered into a collective-bargaining agreement with
Ed's Foodland, Inc.
Also in about May, Edwin Stawarz and Edward Corbeil4
(who would become Respondent's owner) began discus-
sions about the sale of Ed's Foodland, Inc. By June these
discussions had become serious, and Corbeil visited the
store on a couple of occasions and also reviewed its books.
About a week or two before July I Judith Corbeil, Corbeil's
daughter. came in on a few mornings and worked with
Tourville, who explained to Judith the various ramifications
of the recordkeeping system of Ed's Foodland, Inc. Judith
Corbeil's true identity was not revealed to the employees of
Ed's Foodland. Inc. Judith was instead given the fictitious
name of Judith Boen or Bowen. at the suggestion of Sta-
warz to Tourville. Stawarz explained to Tourville that Sta-
warz did not want anyone to know who Judith was, be-
cause he, Stawarz, was negotiating for the sale of the store.
On June 28 an agreement was drawn up-at least in
part-for the sale of the assets of Ed's Foodland, Inc., to
Edward Corbeil.
Corbeil was aware that the employees of Ed's Foodland,
Inc., were represented by a union but was uncertain as to
the impact of this situation on his potential purchase of the
store. Accordingly. on or about June 30 or July 1, Corbeil
went to visit Robert Petronella, the president of the Charg-
ing Party, at the latter's office in Westport, Connecticut.
Petronella explained to Corbeil that Corbeil would become
a successor employer to Ed's Foodland, Inc., on the basis of
hiring the employees of Ed's Foodland, Inc., in addition to
purchasing the assets of that store. Petronella also furnished
Corbeil with three draft collective-bargaining agreements of
the Charging Party. Corbeil did not sign any of these agree-
ments.'
After meeting with Petronella, Corbeil spoke with Cor-
beil's then attorney, and certain provisions dealing with the
Union were thereafter inserted into the draft purchase
agreement for the assets of Ed's Foodland, Inc. These pro-
visions, "Section 9" of the agreement, included the follow-
ing:
a. The seller's indemnity of the buyer [Respondent]
for any NLRB charges against the seller which might
be imposed upon the buyer as a "successor employer"
to the seller.
b. The seller's agreement to reimburse the buyer for
one half of any attorney's fees resulting from the
Union's attempt to impose itself upon the buyer be-
cause the Union was the representative of the seller's
employees, or because the buyer was deemed a succes-
sor employer by the NI.RB or because the buyer ac-
cepted the responsibility of a successor.
4Corbeil had been in the grocery business for some 35 years, 28 of which
were spent with Big Y, a local food chain. When Corbeil left Big Y in April,
he was vice president and general sales manager. The Jumbo Division of Big
Y was organized by Local 33 of the Meatcutters. Since 1968 Corbeil had
handled a -umber of union matters with officers of Local 33.
He still has them.
965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The seller's agreement to use its best efforts to
settle all charges brought by the Union against the
seller prior to the closing time of the sale. If the charges
were not settled by closing it was agreed that an
Escrowee would continue to hold funds for payments
of moneys required to settle any liability under such
charges, if the escrow funds were sufficient for this pur-
pose. If the funds were not sufficient, it was further
agreed that the buyer had the right to terminate the
agreement.
Ed's Foodland went out of business on the evening of
July 2, and the employees were given their wages and vaca-
tion payments and a letter from Stawarz. The letter advised
them that the assets of Ed's Foodland, Inc., had been sold
to Big E's Foodland, Inc. (Respondent), and that their em-
ployment with Ed's Foodland, Inc., had come to an end.
The letter offered to assist employees in finding new work
or to process unemployment insurance applications.
"Help wanted" advertisements by Respondent were
placed in the windows of Ed's Foodland, Inc., on July 2
and in a local newspaper on the same date. The newspaper
advertisement sought full- and part-time help. Corbeil came
into the store after closing that evening and went over the
books. At that time he hired Tourville, Stawarz' office clerk,
to be the office clerk for Respondent. On that same day he
hired Michael Superson, a family friend, to be his, Cor-
beil's, assistant and produce manager.
During the period July 3 5 the business was closed, but
Corbeil and his family and friends were in the store clean-
ing up and handling stock preparatory to Respondent's in-
tended grand opening on July 6. Corbeil also received ap-
plications from prospective employees, including former
employees of Ed's Foodland, Inc. During this period there
were some 130 applications in all.
On July 4 Corbeil interviewed Ann Parizo, who had
worked for over a year for Ed's Foodland, that is. beginning
before the Board election in February. After questioning
Parizo about her qualifications, Corbeil asked Parizo why
the employees had voted the Union in. Parizo told Corbeil
that the employees were not being treated right and were
underpaid. Corbeil also asked Parizo whether she liked Sta-
warz and whether this was the reason employees voted for
the Union.6 Parizo was hired by Respondent as a part-time
cashier and began work on July 6.
Also on July 4. Corbeil interviewed Kenneth Farr, who
had worked for 1-1/2 years for Ed's Foodland in the meat
department. After querying Farr about Farr's application.
Corbeil asked Farr why there were so many "unhappy"
people (apparently speaking of the former Ed's Foodland
complement). Farr merely shrugged his shoulders. Then
Corbeil opined that it looked like Corbeil had purchased a
"horr t's nest." Farr has not been employed.
On July 5 Corbeil interviewed Emile Derouin, who had
worked for 21 years as a general clerk for Ed's Foodland.
When Corbeil had finsished discussing Derouin's former
duties with him, Corbeil told Derouin that the store was "a
mess." Derouin agreed. Corbeil stated that he, Corbeil,
wanted a "clean store and a happy store." Corbeil told
6 Her answer to this question was nt shown.
Derouin that Corbeil would call Derouin later, but Derouin
has not been employed.'
Also on July 5, Corbeil interviewed James Ramsey, who
had worked for over a year as a general stock clerk for Ed's
Foodland. After examining Ramsey's application, Corbeil
told Ramsey that everyone coming in seemed upset about
something, and it seemed that Corbeil had bought a "hor-
net's nest." Ramsey was not hired at the time, although he
obtained temporary work with Respondent shortly before
the hearing, to put up Christmas decorations.
Corbeil's instant interviews with Parizo, Derouin, Farr,
and Ramsey are alleged by the complaint to have been
violative of Section 8(a)(1) of the Act.
A number of other former employees of Ed's Foodland
also submitted applications for employment with Respon-
dent but were not hired. These included: (a) Julie Thibo-
deau, who applied on July 3 or 4 and was interviewed on
July 5; (b) Allan Guthier, who received an application on
July 3 and was interviewed on July 4 and 6 (c) Howard
Daehne, Henry Poznanski, and Henry Opatkiewicz, who
filled out applications on July 5; and (d) Alice Schwartz,
who completed an application on July 8 and spoke to Cor-
beil on the same day.
The complaint alleges that Respondent's failure to hire
Ramsey, Farr, Derouin, Thibodeau, Opatkiewicz, Poznan-
ski Daehne, Schwartz, and Gutheir was violative of Section
8(a)(3) and (1) of the Act.
However, Respondent, by July 16, had hired some eight
former bargaining unit employees of Ed's Foodland8 and
had offered employment to at least two others who declined
it.,
By July 16 Respondent's complement had stabilized to
some 43 individuals, including Corbeil himself and his
daughter. Judith. Also by July 16, Respondent had received
some 165 job applications, including those of the employees
it hired.
Meantime, Respondent, on July 5, executed the agree-
ment to purchase the assets of Ed's Foodland.
On July 6 Respondent opened for business.
On or about July 7 Opatkiewicz dropped by the store and
spoke to Corbeil. He suggested to Corbeil that Corbeil get
together with the employees of Ed's Foodland who had not
been hired by Respondent, in order to alleviate some of the
tension. Corbeil agreed to do this and told Opatkiewicz to
set up a meeting. Opatkiewicz, as requested, arranged for a
get-together at a local club on July 14.
On July 13 Miondaka, business representative of the
Union, who had known Corbeil when Corbeil was em-
ployed by the Big Y chain, went to visit Corbeil at the store.
Miondaka told Corbeil that Miondaka was aware that Cor-
beil had earlier visited Petronella and that it was Mion-
daka's understanding that Corbeil was supposed to get back
to Petronella. Corbeil replied that he had not gotten around
to it. Miondaka allowed that it would be to Corbeil's ad-
vantage to get back as soon as he could.
' These findings are based on the credible testimony of' Derouin in this
regard, as not specifically denied by Corbeil.
8 Nowak. Lawler, St. Martin, LaBonte. Zaik. Wojner. Cobb. and Parizo
(as previously noted). Moynihan, a former Ed's Foodland employee hired by
Respondent and who worked briefly had been he manager of Ed's Food-
land an excluded classification.
9 Edward and Jeannette Krles.
966
BIG E'S FOODLAND, INC.
Miondaka continued that Miondaka couldn't understand
why Corbeil didn't "hire the people back" from Ed's Food-
land as a goodwill gesture. At this Corbeil became angry
and said something to Miondaka to the effect that Corbeil
had done business with the Union in Big Y before and that
he had had enough of them and would rather not face them
again. Corbeil suggested that the Union concentrate on or-
ganizing the unorganized stores in the Big Y chain and
leave Corbeil alone.
On July 14 Opatkiewicz went by the store and advised
Corbeil that his meeting with the former Ed's Foodland
employees would be held that afternoon. Corbeil responded
that he did not want to talk to those employees and did not
want anything to do with them. Opatkiewicz replied that, if
this was the situation, there would be no more discussion
between them.
The charge herein was filed by the Union on July 14,
alleging that Respondent had violated Section 8(a)(1), (3).
and (5) of the Act by discriminating against employees be-
cause they were represented by the Union and by refusing
to bargain with the Union.
On August 19 the Regional Director advised the Union
by letter that he was dismissing the 8(a)(5) allegation of the
charge for the following reasons:
I have determined that further proceedings are not
warranted with regard to the allegation that the Em-
ployer violated Section 8(a)(5) of the Act by refusing to
bargain with the Union. Even if those applicants for
employment who were discriminatorily refused em-
ployment had been employed by the Employer in
place of an equal number of persons who were in fact
hired by the Employer, a majority of the Employer's
bargaining unit work force would not at any relevant
time have been composed of employees who were for-
merly employed by Ed's Foodland or who had other-
wise designated the Union to represent them. For pur-
poses of making this computation I have excluded the
first week of the Employer's operation. since during
that week the Employer had not stabilized its work
force. Accordingly, the Employer did not have an obli-
gation, as a successor to Ed's Foodland to recognize
and bargain with the Union. I am, therefore, refusing
to issue a complaint based on the Section 8(a)(5) alle-
gation of the charge.
Thereafter the Union apparently appealed the dismissal
of the Section 8(a)(5) allegation of the charge. However, the
appeal was withdrawn with the approval of John S. Irving,
the General Counsel, National Labor Relations Board. on
October 31.
C. Concluding Findings
I. The 8(a)(1) allegations f the complaint
a. The alleged interrogation of Parizo
I have found that Corbeil asked Parizo on July 4 why the
employees had voted the Union in. Parizo replied that it
was because they were not treated right and were under-
paid. He also asked Parizo whether Parizo liked Stawarz
and whether this (apparently the employees' possible dislike
of Stawarz) was the reason why the employees had voled
the Union in. Parizo's reply to the latter question was not
recorded.
I do not find that in this incident Respondent interro-
gated Parizo in violation of Section 8(a)( I ) of the complaint.
For not every inquiry by an employer o an emploee in
respect to a union is unlawful.l0 Parizo was not asked any-
thing about her own union activities or sn mpathies or those
of any fellow employees. Corbeil's questions presumed that
the employees favored the Union and merel asked wh.
Further, there is no indication that the atmosphere of the
interview was coercive Parizo was hardl\ reticent in reply-
ing. Nor had Respondent committed an, unfair labor prac-
tices prior to this interview.
In all the circumstances. I conclude that Corbeil's re-
marks to Parizo on this occasion were merely tentative
probings and were not coercive interrogation.] I further
conclude that Parizo was not left with a coercive aftertaste
based on this incident. For she was hired by Respondent
and began work on July 6 despite her forthright reply to
Corbeil's questions.
b. The alleged interrogation of Ramseo. Farr. and Derouin
on Ju6 4 and
I find no evidence whatsoever in any of these incidents of
any direct inquiry' by Corbeil into the union activities or
sympathies of any of these applicants for employment. Nor
do I find any indication of any indirect inquiry by Corbeil
into these same matters during the course of his interviews
of these employees. For there is no credible probative evi-
dence that his expressed concern to them about the unhap-
piness of applicants for employment or about his purchase
of a "hornet's nest" could reasonably be construed by them
as being a roundabout reference to the Union. Indeed, the
Union election had occurred almost 5 months before, and
this record is barren of any evidence of any activity b the
Union or by any individual employee between Februar I I
and Corbeil's purchase of the store on July 5-except for
mention of a newspaper article which had identified Opat-
kiewicz as the union steward-without more-and a state-
ment in the agreement of purchase for Ed's Foodland, ex-
ecuted on July 5. that the Union and Ed's Foodland had
not reached agreement on a contract (which would suggest
that at least at some point the Union had sought to bargain
for one).' 2
I shall, accordingly, recommend that all of these 8(a)( I)
allegations of the complaint be dismissed."
0 Frito lu, Inc. 151 NLRB 28. 34 (1965)
\aitonual Souihire 4
1
luminun (rmpan. 197 Nt.RB 1008 (1972)
2 (GRI ('orporatrion and lit Diwon. 210 NlRB 34 1975); Gates Air (on-
dtioning. Inc., 199 NI.RB 1101. 1102 11972): and Douglau. Diy.sion. The S ,lo
& Feizer Comnparnv. 228 NLRB 1016 (1977). all relied upon b the General
Counsel (the last particularly). are thus distinguished on their acts front the
present case
Even i I am In err.,r n respect Io the Parlzo intervie,. this single, solated
violation ould not arrant a remedial order Phil .lunmher (n,,"onv, 229
NIRB 210(1977)
bOther (a)(1) allegations oit the complaint ere remos.ed Iheretrom at
the hearing upon unopposed motion h the General (Counsel
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The 8(a)(3) and (I) "Refusal to Hire" allegations of the
complaint
The General Counsel argues that Respondent refused to
hire the nine alleged discriminatees because it desired to
avoid the necessity of bargaining with the Union. That is,
says the General counsel, Corbeil sought to avoid this obli-
gation by including "paragraph 9" in his purchase agree-
ment for the assets of Ed's Foodland and by failing to em-
ploy a majority of the employees of the latter.
The General Counsel contends that Corbeil was aware
that the employees of Ed's Foodland had voted overwhelm-
ingly in support of the Union. Consequently. urges the
General Counsel, Corbeil, for the most part, refused to hire
veterans of Ed's Foodland, and of those veterans who were
hired, most had been taken on by Ed's Foodland after the
election. The General Counsel, knowing that other success-
ful applicants had formerly been employed by Big Y, fur-
ther contends that most of the latter were employed by
stores in the Big Y chain which were not unionized.
In consideration of all the evidence, I am not satisfied
that the General Counsel has made out a primta facie case in
respect to these allegations of the complaint.
a. The "prima facie" case
Essentially, the elements of a discriminatory refusal-to-
hire case are the employment application by each alleged
discriminatee, the refusal to hire each, a showing that each
was or might be expected to be a union supporter or sympa-
thizer, and further showings that the employer knew or sus-
pected such sympathy or support, maintained an animus
against it, and refused to hire the applicant because of such
animus.
Each of the nine discriminatees submitted an application,
and none has been hired.'4
As to the union or other concerted activities of the appli-
cants, there is no evidence that any, specifically, engaged in
any union or other concerted activities (besides Opatkie-
wicz), although all by implication (or at least all but one)
voted for the Union (Local 33) in the February election."
I conclude that Corbeil was aware of the vote count in
the election, based on his testimony appearing at pages 96
and 97 of the transcript of the record in these proceedings,
as follows:
(By Mr. Feinberg for the Charging Party)
Q. When you purchased the company from Ed Star-
warcz [sic] or the assets or whatever, is it your testi-
mony that you never talked to him about the reason
why the employees had voted by 23 to I margin to
have the Meatcutters represent them?
A. It wasn't any oh [sic] my business to discuss that
with him.
Q. Did you form any conclusions at all as to why
the employees had voted such a large number for-
A. I may have had that in mind. [Emphasis supplied.]
14 It is well settled that an applicant for employment is an employee within
the meaning of the Act. Briggs Manufacturing Company, 75 NLRB 569, 570
(1947); Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177 (1941).
If All nine alleged discriminatees had been employed by Ed's Foodland
prior to the election. t
But the probable ' vote of each the alleged discriminatees
in favor of the Union could hardly serve to distinguish them
from those former 10 Ed's Foodland unit employees who
were hired or offered jobs.l7 While five of the latter
(LaBonte. Lawler. Wojner, Zaik, and St. Martin) had been
hired by Ed's Foodland after the election,8 they were none-
theless represented by the Union while they were employed
by Ed's Foodland.'? And, in any event, the Board presumes
in such situations that the same percentage of new hires
favor the Union as those who preceded them.20 The remain-
ing former employees of Ed's Foodland who were hired by
Respondent (Cobb, Nowak, and Parizo) had been em-
ployed by Ed's Foodland prior to the election. Edward and
Jeannette Kortes. who refused offers of employment, were
also former employees of Ed's Foodland, but it is not clear
whether they had been hired by Ed's Foodland before or
after the election.
Other employees hired by Corbeil included Bob Kelly,
James Colpack. and Michele Goulet, who. at least at one
time, had been employed as employees by the Jumbo Divi-
sion of Big Y, where the employees are represented by the
Union.
In these circumstances, where Corbeil offered employment
to as many as 13 employees, as I have found,' who had
been represented by the Union, I am unable to conclude
that Corbeil denied employment to the 9 alleged discrimi-
natees for the same reason, i.e.. that they had been repre-
6 Odds of 23 to 1.
I note that the entries "before election" and "after election" appear in
the margin of G. C. Exh. 4A G. the employment applications of former Ed's
Foodland employees, These entries were not made by me. nor am I aware of
any such entry thereon at the time these exhibits were placed in evidence, In
any event, the General Counsel offered these exhibits only for the material
reflected on the employment applications themselves. The instant entries do
not appear on the applications as such.
ms The General Counsel attempted to show that a separate record was kept
of all hires by Ed's Foodland after the election. However, as I have already
noted, a record of people hired after Februarv was begun at that time by
Tourville because the payroll. which she had kept before that time, had just
been transferred for handling to a local bank. The list of new employees
merely supplemented the old payroll lists kept by Tourville (the old payroll
list plus a list of new hires with their addresses gave Tourville a complete
record of the employee complement).
I further note that there is no credible probative evidence that Tourville's
supplemental list was shown to Corbeil or, indeed, that Corbeil was negotiat-
ing to buy the store at the time Tourville began maintaining that supplemen-
tal list. Corbeil, in any event, could have ascertained which former Ed's
Foodland applicants for employment had worked before the election simply
by looking at their applications or by asking them.
Finally, in the light of the uncertainty expressed by General Counsel's
witness Ramsey on cross-examination and in the light of Tourville's denial in
this regard. I do not credit Ramsey's testimony on direct examination that
Tourville's list made any reference to the nion as such or its victor) in the
election. The list is not in Respondent's possession.
m1 It is interesting to note that the expressed theory of the Union's charge
herein is that the alleged discriminatees were unlawfully refused hire by
Respondent because they were represented b the Union.
20 E.g., Dale'vood Rehabilitation Hospital, Inc. d/b/a Golden State Habilita-
tion Convalescent Center 224 NLRB 1618, 1620 (1976) Printers Service Inc..
Photo-Cornposiion Srvice, Inc.. 175 NLRB 809. 812 (1969)., enfd. 434 F.2d
1049 (6th Cir. 19701.
21 This number will increase to 14 with the inclusion of Thibodeau, as will
appear. If Michael Szostak, whom Respondent intended to hire, as will also
appear, is added, the number becomes 15
968
BIG E'S FOODLAND, INC.
sented by the Union or, presumably, voted for it in the
Board's conducted election.2
The General Counsel's case is further weakened by the
facts, which I will find in more detail. infra, that Corbeil, at
least at one point, made an effort to seek out Opatkiewicz
for hire, even though Opatkiewicz, as union steward, is the
only former Ed's Foodland employee for whom any specific
union activity is shown. In addition, Corbeil hired one al-
leged discriminatee, Ramsey, for temporary work just be-
fore the hearing.
Nor can it be held in this case that Corbeil sought to keep
the Union out of the store by refusing to hire a majority of
the former Ed's Foodland employees, who, presumably.
were supporters of the Union. For, as the Regional Director
has conceded in his dismissal of the 8(a)(5) allegations of
the charge, Corbeil could have hired all of the alleged dis-
criminatees in place of an equal number of the employees
he did hire, and the Union's support would still have been
insufficient to make Respondent a "successor" to Ed's
Foodland (i.e.. the Union would have had less than a pre-
sumed majority of Respondent's employment complement,
and, hence, Respondent would not have been required-as
a "successor" employer-to bargain with the union which
represented his predecessor's employees). Thus, if all the
discriminatees had been hired, no bargaining obligation
would have thereby devolved upon Respondent. All the
support which the Union could be presumed to have had in
the store, if the alleged discriminatees had been hired.
would have been a substantial minority of the employee
complement. But since Corbeil offered some 13 jobs to for-
mer employees of Ed's Foodland and of Jumbo Division of
Big Y, he was obviously prepared to have a fairly substan-
tial minority of potential union supporters in his employ-
ment in any event.
Nor can I find any probative credible evidence of any
antiunion animus on the part of Respondent. Thus, I have
found no independent violations of Section 8(a)(1) 24 and no
violative expression of antiunion sentiment at the time
when Corbeil, in effect, rejected the applications of the al-
leged discriminatees,'? and I detect nothing in "Section 9"
of the purchase agreement for Ed's Foodland which dis-
closes an intention by Respondent to avoid dealings with
the Union. By section 9 of the agreement Corbeil merely
obtained an indemnity from Stawarz for any remedial
award against Respondent as a possible successor to Ed's
Foodland whereby Respondent would be held liable for
any unfair labor practices by Edsv Foodland Further, sec-
tion 9 required Stawarz to pay half of the attorney's fees
2] The General Counsel also attempted to show, apparently by implica-
tion, that Judith Corbeil (alias "Boen" or "Bowen") was placed in the store
by Corbeil in June to spy on the employees' union activities. However, even
assuming (which I do not) that Judith was placed in the store for this pur-
pose, t': record indicates no union activities at the store by any employees
during this penod which Bowen could spy n.
2 That is, about 13 out of 39 (the 43-person work force minus Corheil.
Judith Corbeil. Toursille, and Superson). With the addition of Szostak and
Thibodeau, as will appear, the number becomes 15 out of 39
24 Even if I am in error in finding no violation in respect to the Parizo
incident, no antiunion animus on the part of Corbeil is indicated by Corbeil's
comments to Panzo at that time.
2 I attach no significance to Corbeil's testy remarks to Miondaka on or
about July 13, because that incident occurred after Respondent had hired its
work force and such force had already become essentially stabilized
resulting from the Union's effort to impose successorship
upon Respondent. Indeed the latter provision by its express
terms contemplated, inter alia, the possibility that the buyer
(Respondent) might "accept responsibility" as a successor,
which connotes that this, if it occurred, would be voluntary.
Under the final provision of section 9 Siawarz agreed to use
his best efforts to settle all union charges against Ed's Food-
land.
In view of all of the above--and the circumstances that
no purchaser of the assets of a prior business has an obliga-
tion to hire the seller's former emploees26-I conclude that
the General Counsel has failed to establish a prinma facie
case as to any of the nine discriminatees."7
I shall, accordingly, recommend that the 8(a)(3) and (1)
allegations of the complaint be dismissed.
But even if I were to hold, contrary to the above, that the
General Counsel had otherwise established a prima ficie
case in respect to each of the nine discriminatees, I would
nonetheless recommend dismissal of the allegations of the
complaint with respect to Thibodeau. Schwartz, Guthier,
Opatkiewicz. and Poznanski for the reasons which follow.
I will now take up the case of each of these alleged dis-
criminatees.
Julie Thihodeau. Thibodeau had been employed by Ed's
Foodland as a cashier for 21 years. Thibodeau filled out an
application on or about July 3 and was interviewed by Cor-
beil on July 5. As Thibodeau testified. Corbeil offered her
10 hours' employment per week, subject to call. Thibodeau
said she wanted 40 hours' work and did not want to work
Saturdays. She also said she did not like to be subject to
call, because she might want a day off. She also asked him
what she would do if she were invited to a party while she
was on an on-call schedule. His answer was not shown.
Upon hearing Thibodeau's responses, Corbeil suggested
that she apply for unemployment compensation.
I think it clear from the foregoing that Corbeil offered
Thibodeau employment on a part-time basis. which she, in
effect. refused by her insistence on 40 hours' employment.
Corbeil's offer of part-time employment was consistent with
his treatment of all rank-and-file personnel actually hired.
Only management positions and possibly a meatcutter's job
(Grimaldi's. which later became a management position)
were filled on a full-time basis.
Alice Schwartz. Schwartz did not testify. Hence my find-
ings as to her application are based on the unrebutted testi-
mony of Corbeil in this regard.
:2 The Co-Op Trucking Company, Inc.. and C & E Warehouse. Inc.. and
S & S Trucking Co., Partnership. 209 NLRB 829 (1974): Industrial Catering
Company. Division of Merrill' Restaurant, Inc., 224 NLRB 972. 978 979
(1976).
27 In reaching this conclusion. I have been careful not to rely on the testi-
mony of Corbeil (except, in part, on the Opatkiewicz matter), who, as the
General Counsel correctly points out in his brief, was a witness of question-
able reliability. Corbeil contradicted himself on a number of occasions as to
important matters and frequently comported himself as an adsocate on the
stand. He also answered questions before they were completed, as the record
shows. which suggests that he was pressing his side of the case and w as not-
witnesslike testifying in a straightforward manner, In respect to the Opat-
kiewicz matter where, as will appear. I will in part credit Corbeil. I shall do
so in all the circumstances and particularly where the testimony of Corbeil is
consistent with that of Opatkiewicz
In finding no s iolation n respect to this allegation of the complaint, I also
note that the employees hired hby Respondent were experienced or required
little raining tfor their work with Respondent
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schwartz, a former meatwrapper with Ed's Foodland,
filled out an employment application dated July 8. She
spoke with Corbeil at the time and demanded her job back.
She explained she had not come in earlier because she was
upset. She told Corbeil she was angry. He told her not to be
angry with him, because he had nothing to do with her
losing her job. Schwartz then said, "We'll see about that,"
and stormed out.
In this state of the record I cannot conclude that
Schwartz permitted herself to be interviewed by Corbeil,
whereas everyone else who was, in fact, hired was inter-
viewed by him personally prior to hire. Nor is the record
clear that, as of July 8, there were any openings for a meat-
wrapper. Finally, when Schwartz came in on at least one
other occasion in August, she told Corbeil that she might be
interested in coming back to work in September. Corbeil
told her the door was open if Schwartz was ready and that,
if things were progressing, he would be more than happy to
take on Schwartz. Schwartz again spoke to Corbeil in Sep-
tember but told him she had decided to move to Florida.
Corbeil did hire a meatwrapper in September.2
Allan J. Guthier. Guthier was a general stock clerk with
Ed's Foodland for a year and a half. Guthier picked up an
application on July 3 and was briefly interviewed by Cor-
beil on July 4. Guthier returned to the store on July 6 to
inquire if there were any more openings. Corbeil could not
find Gutheir's job application at the time, so he asked
Guthier to fill out another one, which Guthier did. On all
three occasions Guthier was accompanied by Michael Szos-
tak, another former Ed's Foodland employee, who had like-
wise filled out an application for employment with Respon-
dent. While in the store on this last occasion, Guthier and
Szostak refused to help an elderly customer and told her
that things would not be the same again around the store.
This incident was witnessed by Corbeil's wife, who reported
it to Corbeil.2 9 Corbeil testified that upon hearing of the
treatment accorded this customer, he decided not to hire
either Guthier or Szostak.3 I credit this testimony in all the
circumstances.
For the incident certainly occurred. Further, as Respon-
dent's records show, Respondent had previously decided to
hire Szostak (i.e., Szostak's application was marked with an
"H"-for hire-as were the applications of others who
were, in fact, hired). Yet it is clear that neither Szostak nor
Guthier was hired after July 6. 1 therefore conclide-in the
absence of any other credible probative evidence on the
point-that this incident was the reason for Respondent's
refusal to hire Szostak. Since Respondent refused to hire
Szostak for this valid and lawful reason-after previously
determining to hire him-there would be no basis upon
which to conclude that Respondent should treat Guthier (as
to whom no decision to hire had been made) any better.
12 Corbeil hired three employees for meat department work after Jul) 17.
but only where the individuals had actively sought employment shortly be-
fore hire. Schwartz never came in again after July 8 to say she was ready to
go to work immediately.
29 These findings are based on the essentially consistent testimony of
Guthier and Corbeil in this regard.
30 Szostak's name was withdrawn from the complaint upon the General
Counsel's motion.
I therefore find that Guthier's application was rejected
for cause.
Henry Opatkiewicz. Opatkiewicz had been a meatcutter
for Ed's Foodland for nine years. He had also been the
union steward at the store, a fact known to Corbeil.
Alleged discriminatees Opatkiewicz, Poznanski, and
Daehne all went to the store on July 6 to apply for work
with Respondent. Opatkiewicz did not speak to Corbeil on
this occasion (the latter had gone to the lawyer's office).
Opatkiewicz did, however, complete an application, which
he turned over to Tourville. Tourville, he said, told him that
Corbeil would get in touch with him, and he left the store.'
On the afternoon of July 5 Corbeil did attempt to call
Opatkiewicz, but could not reach him. 2 When Corbeil was
unable to reach Opatkiewicz, he hired Grimaldi, an experi-
enced meatcutter, who had not previously worked for Ed's
Foodland. It is not clear whether Grimaldi began as a part-
time employee on July 6 (Corbeil thought he had), but, by
July 9, he had become a full-time employee, and later,
meat department manager. Part-time meatcutters were
hired on July 5. While other meat employees were hired in
August and September, they were recent applicants at the
time. Opatkiewicz never-after July 5-pursued his own
application for employment with Respondent.
I conclude, therefore, that Corbeil attempted to reach
Opatkiewicz, and, being unsuccessful but in need of a meat-
cutter for the store's opening the next day, he hired Grimal-
di and others on July 5 and 6.
Henry Poznanski. Poznanski had been produce manager
for Ed's Foodland and had been employed by Ed's for over
12 years. He filled out an application for employment on
July 5. However, the position of produce manager had al-
ready been filled by Corbeil on July 2, when Corbeil hired
Superson.
1, accordingly, conclude that this position was filled be-
fore Poznanski applied for it.
In view of all the foregoing, I shall recommend that the
complaint be dismissed in its entirety.
CONCIUSIONS ()F LAW
I. Respondent is, and has been, engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not coercively interrogated employ-
3 To the extent that Tourville's testimony is contrary, I do not credit it.
There are a number of contradictions in the testimony of Tourville, particu-
larly in respect to her own application for employment; hence, I do not find
her testimony entirely reliable. Opatkiewicz seemed to me to be a sincere,
straightforward witness. Poznanski testified that Tourville did not say Cor-
beil would call him (Poznanski). Poznanski did not testify that Tourville did
not say Corbeil would call Opatkiewicz.
12 I credit Corbeil's undisputed testimony on the point. Opatkiewicz was
not home part of the afternoon, but he said his elderly mother-in-law, who
never goes out, and his wife were. Neither the wife nor the mother-in-law
was called to testify. Even if they were both at home, it is, of course. possible
that both were in parts of the house where they could not hear the telephone.
In any event, as I have found, Tourville told Opatkiewicz that Corbeil would
call, Corbeil said he called, and, per Opatkiewicz, Corbeil told Opatkiewicz,
on July 14, that Corbeil had tried to reach Opatkiewicz.
1I Resp. Exh. 3 so indicates.
970
BIG E'S FOODLAND, INC.
ees, in violation of Section 8(a1I ) of the Act, as alleged in
the complaint.
4. By its failure to hire Julie Thibodeau, Henry Opatkie-
wicz, Henry Poznanski, Alice Schwartz, Howard Daehne,
Allan Guthier, James Ramsey, Kenneth Farr, and Emile
Derouin, Respondent has not violated Section 8(a)(3) and
(1) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following recom-
mended:
ORDERu
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
4 In the event no exceptions are filed as provided b 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 he deemed
waived for all purposes.
971