C & W Super Markets, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1977

231 N.L.R.B. 403 (N.L.R.B. 1977)

C & W SUPER MARKETS, INC.
C & W Super Markets, Inc. and Retail Clerks Union
Local 1354, Chartered by Retail Clerks Interna-
tional Association, AFL-CIO. Cases 38-CA-2617
38-CA-2742, and 38-RC-1793
August 15, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On March 23, 1977, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, C & W Super
Markets, Inc., Rockford, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative 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 Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Chairman Fanning adopts the findings, conclusions, and recommenda-
tions of the Administrative Law Judge for the reasons stated in his
concurring opinion in Trading Port. Inc., 219 NLRB 298 (1975). He adheres
to his interpretation of N.LR.B v. Gissel Packing Co., Inc., 395 U.S. 575
(1969). as expressed in his dissenting opinion in Steel-Fab, Inc., 212 NLRB
363 (1974), that in the circumstances herein a violation of Sec. 8(a)(5) occurs
as of the date the Respondent refused to recognize and bargain with the
majority representative of its employees. Donelson Packing Co., Inc., 220
NLRB 1043 (1975).
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
consolidated proceeding was heard on April 19 and 20 and
231 NLRB No. 56
August 9, 10, and 11, 1976, at Rockford, Illinois. The
original charge in Case 38-CA-2617 was filed on January 5
and amended on February 9 and 25, 1976. The complaint
in Case 38-CA-2617, as amended, alleges violations of
Section 8(aX)(), (3), (4), and (5) of the Act in that following
the Respondent's refusal of the Union's demand for
recognition, based on an authorization card majority, the
Respondent engaged in unlawful coercive, retaliatory, and
discriminatory conduct which undermined and destroyed
the Union's majority status and made impossible the
holding of a free and fair election. The charge in Case 38-
CA-2742 was filed on April 26, 1976, and a complaint in
that case issued on May 24, 1976, alleging a further
violation of Section 8(aX)() and (3) of the Act with respect
to employee Diane Asbury. Respondent's answers, as
amended, deny the commission of the unfair labor
practices alleged in the complaints, and allege that alleged
discriminatees Terry Schabacker, Dennis King, and Larry
Buchanan are supervisors within the meaning of the Act,
and are not protected by its provisions. It is also contended
that the participation of Schabacker and King in the union
organizational drive taints the authorization cards upon
which the Union's claim of majority status is based.
The petition in Case 38-RC-1793 was filed on August
25, 1975. Pursuant to the Regional Director's Decision and
Direction of Election, dated November 12, 1975, an
election was held on December 11, 1975, among certain
employees of the Respondent-Employer.' The Charging
Party-Petitioner lost the election and thereafter filed timely
objections to conduct affecting the results of the election.
By a supplemental decision on objections, order authoriz-
ing consolidation of cases, and direction of hearing, dated
March 10, 1976, the Regional Director ordered that a
hearing be held with respect to the Petitioner's Objections
1, 2, 5, and 6 alleging in substance unlawful coercive and
discriminatory conduct which parallels certain aspects of
the amended complaints herein; and that these matters
might be the subject of the consolidated hearing before an
Administrative Law Judge following which Case 38-RC-
1793 would be transferred to and continued before the
Board and that the provisions of Section 102.46 and
Section 102.69(e) of the Board's Rules and Regulations,
Series 8, as amended, should govern the filing of excep-
tions. On March 15, 1976, Cases 38-CA-2617 and 38-RC-
1793 were consolidated for hearing by the Acting Officer-
In-Charge of Subregion 38.
All parties were afforded a full opportunity to participate
in the hearing. Oral argument was waived. The briefs, filed
by all parties, have been carefully considered. Upon the
' All full-time and regular part-time employees employed by the
Employer at its Rockford. Illinois facility, but excluding the store manager,
meat department employees, guards and supervisors as defined in the Act.
was found to be the appropriate collective-bargaining unit by the Regional
Director.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record in the case and from my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
C & W Super Markets, Inc.,2 is, and has been at all times
material herein, an Illinois corporation with an office and
place of business located at Rockford, Illinois, where it is
engaged in the business of retail sales of food and other
supermarket items. During the past 12 months, a represen-
tative period, in the course and conduct of its business
operations Respondent purchased and caused to be
transferred and delivered to its Rockford, Illinois, facility,
goods and materials valued in excess of $50,000 directly
from points outside the State of Illinois. During the same
period of time Respondent's gross volume of sales
exceeded $500,000. I find and conclude that the Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Retail Clerks Union 1354, Chartered by Retail Clerks
International Association, AFL-CIO,3 is, now and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union Campaign Begins
Following the termination of Store Manager Ken
Dellenberg on August 4, 1975, 4 and the succession of
Assistant Store Manager Duane Schmidt to the store
managership, employees Terry Schabacker, Larry Buchan-
an, Marilyn Palumino, and Dennis King expressed concern
to one another about their job security. A suggestion by
Buchanan that they try to get a union in the store
culminated in Schabacker's requesting Palumino to phone
the Union. On August 11 Palumino called. Organizer
Velma Skarvan made two visits to the Palumino home that
day, during which she obtained signed authorization cards
from Marilyn and her son Dino, and gave a supply of
blank cards to Marilyn and Larry Buchanan. During the
remainder of the day Schabacker, King, and Marilyn
Palumino solicited card signatures from employees at the
store. Thus, Schabacker signed a card, and obtained signed
cards from Russel Lester, Roger Wilson, Karen Brooks,
and Mary L. Brooks. Marilyn Palumino obtained signed
cards from Daniel Berton, Larry Buchanan, and his wife,
Nancy. Dennis King signed a card and obtained signed
cards from John Mattocks and Bruce Knutter. Katherine
Erlandson signed a card for Larry Buchanan at her home.
All of these cards were returned to Skarvan at a third
2 Hereafter referred to as the Respondent, or the Respondent-Employer.
I Hereafter referred to as the Union, or the Charging Party-Petitioner.
4 Hereafter all dates are in 1975 unless otherwise specified.
This finding is based on the admissions of Store Manager Schmidt and
Respondent's president, Robert Q. Whitely, the admissions and omissions
of Respondent s answer in Case 38-CA-2617, and Skarvan's testimony.
6 As set forth earlier in connection with the Union's demand for
recognition.
meeting that day at Schabacker's home about 8 p.m., at
which time Schabacker and Skarvan also obtained signed
cards from Leonard G. Thorsbakken III, Steven C.
Leombruni, and Produce Manager Michael J. Cerroni, for
a day's total of 17 cards. Terry Schabacker solicited and
received a signed card from Susan Cary on August 12.
Thereafter, Marilyn Palumino continued to solicit and
receive signed cards from Vickie Ferguson on August 14,
Brenda Heidel on August 18, and Brenda Kae Rose on
August 19.
On August 14 Respondent received a letter from the
Union, sent August 12, claiming to represent a majority of
its full-time and regular part-time employees at the
Rockford, Illinois, facility, excluding the store manager,
meat department employees, guards and supervisors as
defined in the Act, and requesting recognition and
collective bargaining.5 Respondent rejected this demand
on August 22, refusing to bargain with the Union, and on
August 25 the Union petitioned for an election. A
representation hearing was held September 17 and 30.
Terry Schabacker and Produce Manager Michael Cerroni
testified at the September 30 session concerning their
respective duties and authority. In addition, the alleged
supervisory status of Bakery Department Head Sue Carey
and Frozen Food Department Head Roger Wilson was
also litigated. In a Decision and Direction of Election
dated November 12, 1975, the Regional Director for
Region 13 found that the unit petitioned for was appropri-
ate.6 He also found that the two sons of Robert Q. Whitely
should be excluded from the unit, and that Schabacker,
Cerroni, Carey, and Wilson were not supervisors within the
meaning of the Act, and thus eligible to vote in the election.
The supervisory status of other employees in Respondent's
store was not litigated. The Regional Director's Decision
and Direction was upheld by the Board on a request for
review, except that Schabacker's status was left for
resolution by the challenge procedure. Since the number of
challenges at the election were not determinative, his status
was not resolved. Thus, the status of Schabacker, King,
and Larry Buchanan, alleged discriminatees, is properly
the subject of relitigation in the instant proceeding.'
B. Whitely Questions Schabacker About Who
Started the Union and Threatens to Close the Store
On the evening of August 22 when Terry Schabacker
went into the office to turn on some lights in the store,
Respondent's president, Robert Q. Whitely, invited him to
sit down and then asked who was behind the Union. When
Schabacker replied that he did not know, Whitely persisted
asking, "Larry Buchanan is behind it, isn't he?" When
Schabacker failed to respond to this question Whitely
became angry and said, "Terry, quit sh--- me, you
know everything that goes on in this store." Then Whitely
asked, "Are his initials L.B.?" Schabacker nodded his head
I Amalgamnated Clothing Workers ofAmerica, A FL-CIO [Sagamore Shirt
Co.] v. N.L.R.B., 365 F.2d 898 (C.A.D.C., 1966); Farm Fans, Inc., 174
NLRB 723, 724 (1969); Stanley Air Tools, Division of the Stanley Works, 171
NLRB 388, 389 (1968). The status of these employees is discussed in sec. III,
J, of this Decision.
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C & W SUPER MARKETS, INC.
affirmatively, whereupon Whitely, whose agitation had
increased, responded "Good, I knew it because he's
worked in a union store before." Then Whitely added that
the store had never made a dime as long as he had been
there, and stated, "I will close the door before I ever let a
union in here." 8
C. The Discharges of Larry and Nancy Buchanan
on August 23
Nancy Buchanan worked as a part-time stocker and
cashier, while her husband Larry was Respondent's frozen
food manager. 9 On August 23, while they were away on
vacation, Larry and Nancy Buchanan were discharged.
Respondent's personnel records for these employees each
contains as a final entry, "Terminate 8/23/75-fired d/n/r
vacation pay to 8/30/75." These records also contain an
entry showing that the Buchanans each received an
increase in pay on August 4. The record shows that the
Buchanans were first informed of their discharges upon
their return from their vacation on August 30, at which
time they were told the reason for their termination was
their inability to get along with their fellow employees.
Robert Q. Whitely testified that he and Duane Schmidt
decided to discharge the Buchanans, upon Schmidt's
recommendation, during a wage review conference with
Schmidt on the last Sunday in July, a result of a talk
Whitely had with Schmidt earlier that week concerning his
intention to promote Schmdit to store manager. Although
not all the employees were selected for raises, it was
nevertheless decided to give the Buchanans a 15-cent
"token" raise in order to ward off any questions they might
ask. As Whitely put it in his affidavit to the Board, "it was
the least [he] could do." Some employees did not receive a
raise. Others also received a 15-cent increase. Concerning
the reason advanced for the discharge of the Buchanans,
Whitely testified that he based his decision on reports he
had received during the summer of 1975, from persons
whose names he could not recall, informing him about an
altercation between Larry Buchanan and Michael Cerroni.
Whitely was unable to relate any other specific examples of
the Buchanans' alleged inability to get along with fellow
employees. Instead he attributed their termination to an
"accumulation of circumstances and my own observation."
Whitely admitted that he conducted no investigation of
any of these incidents, nor did he ever take the matter up
with the Buchanans.
The record reveals that none of the Respondent's
employee witnesses, including Cerroni, testified to an
inability to work with the Buchanans. The only evidence of
any friction whatsoever was provided by the testimony of
I I find. that at all times material herein. Whitely acted as an agent of the
Respondent within the meaning of Sec. 2(13) of the Act. Whitely admitted
having a conversation with Schabacker about the Union around August 22.
and did not deny making the remarks which Schabacker attributed to him.
Whitely testified that all he could recall about the incident was Schabacker's
saying he was out of the union organizational attempt and was neutral.
According to Whitely, during a second conversation with Schabacker at a
slightly later time in August, Schabacker stated that if Whitely fired Larry
Buchanan he would be in big trouble. Whitely could not remember anything
else that either he or Schabacker said during this purported later
conversation. I credit Schabacker's version. Throughout his testimony
Whitely impressed me as a witness dedicated to telling a winning story. As
Russel Lester, a part-time checker, who testified that in
July or August 1975 he observed Larry Buchanan and
Mary Loos had an argument concerning calling Nancy
Buchanan away from her work station to check in the front
of the store at a time when she had other work to do.10
Schmidt's testimony paralleled that of Whitely, but
contradicted it and his own earlier testimony at one point
when, after reviewing the affidavit he gave to the Board, he
stated that the decision to grant the Buchanans a raise was
made at a separate meeting prior to that at which it was
decided to discharge them; i.e., the meeting at which he
learned he would become store manager. Subsequently,
Schmidt reversed his testimony again, and ultimately
asserted that he didn't know in which conversation these
events occurred, but remembered that it was at the end of
July. Schmidt maintained that he had had a confrontation
with Larry Buchanan in 1974, but nothing was done about
this incident at the time. He also stated that the Buchanans
had had disagreements with part-time cashier Olga Tehran
and that both the Buchanans could not get along with a
clerk named Jackson, Mary Loos, Betty Bogard, and Mike
Cerroni. Of this group of employees only Bogard and
Cerroni testified at the hearing, and both gave no evidence
about having had any difficulties with the Buchanans.
I find that Larry Buchanan was discharged because of
his union activities, and that Nancy Buchanan was
unlawfully terminated as a further retaliatory measure
because she was his wife. The evidence, considered as a
whole, supports no other logical conclusion. Thus, on the
day after Whitely pressed Schabacker into admitting that
Larry Buchanan was behind the Union, and at a time when
the Buchanans were the recent recipients of a selective
wage increase, they were discharged for a reason which is
almost totally unsupported by the evidence in the record.
These factors, considered in the context of the shifting,
conflicting, and generally incredible testimony of Whitely
and Schmidt, cause me to find, even in the absence of
testimony by the Buchanans themselves, that their termina-
tions were motivated by Larry Buchanan's activities on
behalf of the Charging Party-Petitioner, and Respondent's
desire to discourage such activities by other employees.
D. The Alleged Violations of Section 8(a)(1)
Associated with the Hiring of Greg Buban, Jeff
Jaynes, and Rick Hale During Late August and
Early September
At some point described as being in "very late August,"
Greg S. Buban called Store Manager Schmidt, stated that
he wanted to leave his present job, and asked how the
employment situation looked at Super Foods. Schmidt
exemplified by his testimony concerning the August 22 conversation with
Schabacker, he frequently suffered from a convenient memory, recalling
and embellishing points he considered to be in Respondent's favor while
minimizing and frequently completely forgetting important events which he
deemed detrimental to Respondent's case. Consequently, I credit his
testimony only where specifically indicated. On the other hand, I found
Schabacker to be. generally, an intelligent, honest. and forthright witness
who frequently displayed an excellent memory for detail.
9 Respondent's contention that Larry Buchanan was a supervisor within
the meaning of the Act will be discussed in a later section of this Decision.
'o Mary Loos, Larry Buchanan, and Nancy Buchanan did not testify.
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responded that he thought he could give Buban a job, and
for him to contact him later." On a weekend near the
beginning of September, Buban went to the store. Schmidt
took him outside behind the meat market doors, stated that
there was a union thing going on, and said he didn't want
Buban signing a union card. Then Schmidt told Buban to
come in at the beginning of the week and they would
discuss his hours and rate. Buban did as he was instructed,
and began work as a part-time stocker. 2 After about a
week Schmidt had another conversation with him in the
bakery. Schmidt stated that he wanted Buban to do
whatever he thought was best, but to try and remain
neutral through the whole thing and not have a side.
Schmidt admitted having a conversation with Buban
during the latter part of August in the area of the store
behind the meat department, at which time he "made Mr.
Buban aware" that an organizational drive was in progress
and said he hoped Buban would remain neutral. Schmidt
also agreed that he had a second conversation with Buban
in the bakery, which he placed during the first half of
October. According to Schmidt, he advised Buban that he
had been informed Buban was feeling some pressure from
other employees in the store over the Union, that he was
satisfied with Buban's work, and that it made no difference
whether Buban voted one way or the other. Buban
impressed me as a somewhat frightened witness who was
reluctantly telling the truth. Schmidt impressed me, here, as
in other portions of his testimony in this case, as a person
torn between a basic desire to be truthful and the
overriding necessity of supporting his employer. As a
result, Schmidt frequently admitted the occurrence of
events in the context of which violations occurred, but then
attempted to defuse the legal consequences arising from
these events by distorting or embellishing what was said or
what occurred. For example, it is beyond belief, in the
context of this case, that it made no difference to him
which way Buban voted. I credit Buban's testimony and
find that Schmidt violated Section 8(a)(1) of the Act by
interfering with his right to engage in lawful union
activities when he instructed Buban not to sign a union
card, and to try to remain neutral and not have a side.
Gerbes Super Markets, Inc., 176 NLRB 11 (1969), enfd. 436
F.2d 19 (C.A. 8, 1971).
Jeff Jaynes,'3 who had previously been employed by
Respondent, was contacted in June concerning reemploy-
ment by means of a telephone call from Whitely to Jaynes'
mother. Later Jaynes received word from Whitley through
his aunt, Donna Terrill, to apply for work at Super Foods
in late August, when his seasonal job ended. Pursuant to
these instructions, Jaynes went to the store sometime
between August 20 and 23, where he met Schmidt who led
him into the office. After discussing Jaynes' forthcoming
work schedule, Schmidt asked if his aunt had told him
about the Union, and if he was acquainted with what was
happening at the store at the time concerning the Union.
Jaynes replied that his aunt had talked to him about it.
Then Jaynes, as a stockboy at Super Foods, testified that
" Respondent's answer admits Schmidt is a supervisor within the
meaning of the Act, but does not admit he acted as an agent of Respondent.
I find at all times matenal herein he was an agent within the meaning of Sec.
2(13) of the Act.
2Z Respondent's records show Buban and Jaynes first listed on the week
ending August 30.
he performed the same duties as Dino Palumino, Greg
Buban, Mark Powell, and Rick Hale. Following either the
September 17 or the September 30 session of the represen-
tation hearing, Jaynes was on his break in the break room
with a few of the other employees when Mr. Whitely came
to the door. Whitley had just returned from the hearing
and began talking openly to one of the employees in the
break room about the union matter. As the break period
ended and Jaynes was leaving the room to return to work,
Whitely looked in Jaynes' direction and stated, "Anyone
who sticks with me through this thing will be justly
rewarded." Whitely testified that he could not recall having
a conversation with Jaynes following the September 17
session of the representation hearing. I credit Jaynes'
testimony and find that Whitely violated Section 8(a)(1) of
the Act by promising to reward employees who supported
the Company against the Union.
During the first part of September Duane Schmidt hired
Richard Hale as a part-time stockclerk.14 As such, Hale
was responsible for the soap aisle, and also worked with
milk and glassware. When Hale arrived at the store for the
purpose of setting up his work schedule, Schmidt talked
with him about the Union in the backroom. He mentioned
that the Union was trying to come in, and Hale replied that
he could work with it or without it, it didn't matter to him.
Then Schmidt answered that he didn't want to tell Hale
how to go on it one way or the other, and that it was
basically up to him, just to keep his nose clean. In his
testimony Schmidt omitted any reference to this incident.
On the other hand, Hale displayed a poor memory while
testifying, requiring considerable prodding by the use of
leading questions and the refreshment of his memory with
his affidavit. I find his testimony concerning his conversa-
tion with Schmidt to be unreliable and make no finding of
any violation based upon it. Furthermore, I note that the
remark attributed to Schmidt by Hale concerning keeping
his nose clean was prefaced, in Hale's words, by the
statement that Schmidt did not want to tell Hale how to go.
Therefore, as phrased, the remark attributed to Schmidt by
Hale is at most ambiguous, and thus I find it not violative
of Section 8(aX)(1).
E. Whitely Threatens Dennis King and Interrogates
King's Wife
Dennis King was one of the original employee organizers
involved in the birth of the Union's campaign. During the
first week in September Robert Whitely asked King to
come to his office when he had time. The following day
King went to the office. Whitely locked the door, and
proceeded to talk to King about his job and about the
Union. Whitely said that the store hadn't made a dollar
since it had been in business, and that he thought King had
been doing well for him. Whitely said that the reason he
had been riding King was not his fault, it had been
Dellenberg's fault, and that King didn't have any worries
about being fired while he was on vacation. Then Whitely
3' Spelled Janes in Respondent's payroll records.
14 Hale's name, spelled "Haile," first appears in Respondent's payroll
records for the week ending September 6.
406
C & W SUPER MARKETS, INC.
stated that he had had one other store that had wanted a
union, and that between the time the union had won the
election and become installed in the store, the people that
had voted for it were not there.
Whitely admitted having a conversation with King in his
office during mid-September, about 8 p.m. He conceded
that he initiated the meeting which lasted for about 5 or 6
minutes. Whitely agreed discussing King's job perfor-
mance, but in terms of a training program that they were
inaugurating which Whitely thought might interest King.
Whitely agreed, however, that he did discuss Respondent's
vacation policy in the context of reassuring King that he
should schedule his vacation whenever he wanted it
without fear of termination, as had occurred recently with
respect to others. Whitely did not deny talking to King
about the Union. I credit King's version and find that
Whitely's remark about what had transpired at his other
store following an election, constituted a threat to dis-
charge C & W employees who favored the Union.
Tommie King, Dennis' wife, testified that while shopping
at Respondent's store during the week of September 22 she
was approached in aisle 4 by Whitely who asked her which
her husband was for, him or the Union. Mrs. King replied
that her husband hadn't made up his mind, and whichever
way he decided, she would stand behind him. Later she
repeated this conversation to her husband. In his direct
testimony Whitely denied knowing Tommie King or
having any conversation with her on or about September
22. On cross-examination he retreated from this position,
stating that he had "greeted Mrs. King from time-to-time
over the months, in the aisles if she might be shopping,"
but that he did not remember having a specific conversa-
tion with her. Under these circumstances I credit the
testimony of Tommie King.
F. The Alleged Agency Status of Mary Loos and
her Alleged Threats to Terri Mitchell
Terri Mitchell had been previously employed by the
Respondent from September 1972 to April 1973. On
September 5 Mitchell went to the store and talked with
Duane Schmidt concerning reemployment. Schmidt told
her that he would not guarantee her hours, but would try to
get her in. He said that she would receive a call later that
afternoon from Mary Loos. That afternoon Loos called
and told Mitchell that certain employees were trying to
bring in the Union, that they really didn't want it in, and
that those who valued their jobs would vote no against the
Union. Mitchell responded, "Does that mean I vote no?"
Loos answered, "Yes," and Mitchell responded, "Okay."
Around September 17, while Mitchell was visiting at Loos'
home, Loos repeated her remark that anyone who valued
their job would vote no. After her talk at Loos' house,
Mitchell returned home to prepare to go to work, but
before leaving home she called Loos. Mitchell said that she
had signed a union card, but that she valued Loos'
friendship more than getting in the Union and asked if
i~ I also find that her remarks to Mitchell a week pnor to the election
violate Sec. 8(aXl). These statements constitute an unlawful threat to
discharge employees, and an attempt to solicit the assistance of Mitchell in
unlawful conduct.
16 Mitchell and Respondent's witness, Russel Lester, both testified, in
there was some way she could make it up to her. Loos
replied that she wasn't going to tell Mitchell what to do,
but maybe she should go see Mr. Whitely, and he might tell
her. Mitchell agreed, hung up, and called Whitely. Whitely
responded that he would return her call on his private line,
and when he did so Mitchell asked to speak with him when
she came to work. Whitely agreed. At the store, during her
break, Mitchell asked Whitely what she could do to make it
up to him for writing a statement, which she testified she
had voluntarily given, to the Union stating that she had
been hired to vote against the Union. Whitely answered
that she would have to act on her own, but added that she
was on the right track, when Mitchell wrote out another
statement for Whitely retracting the one she had written for
the Union. Thereafter, Mitchell continued working as a
cashier, and, as she testified, trained "for office duties to
relieve Marilyn Palumino of her job." This training began
around a week before Thanksgiving in accordance with
instructions given her by head cashiers Mary Loos and
Betty Bogard. The training consisted of learning to take
over the courtesy counter on the day shift. One day, about
a week before the NLRB election, Loos told Mitchell that
they were trying to fire Terry Schabacker, Marilyn
Palumino, Brenda Heidel, Kathy Erlandson, and Dennis
King, and if she could help the cause along to go ahead,
but stated, "It has to be a legit reason."
The complaint, as amended, alleges that Mary Loos
acted as an agent of the Respondent in threatening
Mitchell on or about September 5 and November 19. Loos
did not testify. Mitchell agreed on cross-examination that
she considered Loos a close friend. However, she also said
that while she had given a statement to the Union
voluntarily, she had written a retraction for Whitely
because she was afraid of losing her job. I am persuaded
that Mitchell was telling the truth. She exhibited a good
memory while testifying and did not attempt to hide the
fact that she had wavered because of fear and conflicting
loyalties. I credit her testimony and find that Mary Loos
threatened Mitchell. I further find that Respondent is
responsible for these threats, thereby violating Section
8(a)(1) of the Act, since the General Counsel has adduced
through Mitchell undenied and credible evidence that Loos
acted as an agent for Respondent within the meaning of
Section 2(13) of the Act. Loos called Mitchell on Septem-
ber 5 to question her about her sympathies and threaten
her at a time when Schmidt had assured Mitchell, before
agreeing to hire her, that she would be receiving a call from
Loos.t 5 In this context, Loos' statement on the phone that
those that valued their jobs would vote no against the
Union was the type of information which, under the
circumstances presented, could only have come to her from
Schmidt.16
addition, that Loos and Lester were members of a group of antiunion
employees who called themselves Concerned Action Clerks who used
Whitely's office to prepare letters in support of their employer's position
during the election campaign.
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Alleged Discriminatory Refusal to Hire
Pamela Garrison in Late September
Pamela Garrison had previously worked for Respondent
as a cashier from July until December 1974. In late
September she telephoned Schmidt and asked him if he
would be needing any help. Schmidt replied that he could
probably use her, and for her to come in and fill out an
application. Garrison went to the store, either that same
day or the following day, and obtained an application from
Mary Loos. Garrison testified that while she was talking to
Loos she noticed the employees in the store were not
speaking to one another, and asked Loos what it was all
about. Loos replied that an effort was being made to get a
union in the store, and Garrison responded that she
thought that was "Great." Loos asked, "Oh, you are for the
Union?" and Garrison answered, "Yes, I am." Garrison
finished filing out the application, gave it to Mary, and
proceeded to where Schmidt was working. She stated that
she had filled out an application, and asked, "What is
going on around here?" Schmidt replied, "Oh, everybody is
on their high horse about the Union. Nobody is more or
less speaking to each other." Then Garrison said that she
did not understand the situation because everyone had
been so friendly before, and that she "thought the Union
was great." Then Schmidt asked, "Oh, you are for the
Union?" and Garrison said, "Yeah." Then Schmidt told
Garrison he would get back to her about the job, or for her
to call him later on in the week. About a week later, when
Garrison had heard nothing from Schmidt, she went to the
store where he told her there were no openings, but if one
occurred he would let her know. Garrison heard nothing
more from Respondent about a job. On December 11,
while shopping in the store, she paused to talk with
Marilyn Palumino. Schmidt approached her and asked
what she was doing in the store. When Garrison answered
that she had bought some cigarettes and used the phone,
Schmidt asked her to leave.
Schmidt testified that during Garrison's previous em-
ployment with the Respondent while Dellenberg was store
manager, he observed that she failed to report for work on
several occasions. Schmidt did not specify when or under
what circumstances these absences occurred. He testified
that when Garrison called he told her he did not have any
part-time cashier's jobs available, but that she could come
in and fill out an application. Schmidt denied talking to her
when she came to the store. He testified that he had known
in the past that she was not a responsible person, and that
he checked her personnel record card, verified his opinion
of her as an employee, and decided that she would not be
rehired. He testified that the only other time he saw
Garrison in the store was in December at the courtesy
counter with Marilyn Palumino, at which time he asked her
to leave. He did not explain why he invited her to come to
the store and fill out an application when he knew she had
not been a satisfactory worker.
17 The most casual examination of these entries reveals, and I find, that
they were written by different persons at different times. No explanation
was given for this discrepancy in the exhibit.
18 The complaint alleges that the refusal to hire Garrison occurred on
September 21. At one point in his brief counsel for General Counsel argues
that this date was October 21. 1 find that the Respondent discriminated
Garrison's personnel record, to which Schmidt referred,
was introduced into evidence. It contains an entry, dated
December 16, 1974, showing that Garrison terminated her
employment on December 13, 1974. The word "terminate"
appears in cursive writing. On the same line as this entry, in
much darker characters and a mixture of different cursive
writing and printing, appears a further entry "Quit-NG
(Do not rehire)." 17 According to Schmidt his examination
of this record confirmed his memory that Garrison had
been a poor employee and should not be rehired. On cross-
examination, Schmidt agreed to having given an affidavit
to the Board, dated February 17, 1976, in which he stated
that at the time Garrison filled out her application he told
her she would be considered if a job came up, and that
thereafter no cashier's job fell open so she was not hired.
Schmidt ended his account of the Garrison incident in his
statement with the words, "That is all there is to it." During
cross-examination Schmidt admitted that on November 17,
1975, Evelyn Hale was hired as a part-time cashier, a time
when Garrison's application was still on file. Finally, it is
clear that the account of the Garrison incident which
Schmidt gave to the Board in his affidavit entirely omitted
any reference to the sole reason advanced for not hiring
Garrison; i.e., that she was a poor worker and that the
personnel record from her previous period of employment
contained a notation that she should not be rehired. No
explanation for these inconsistencies in Schmidt's testimo-
ny was provided. I therefore credit Garrison's account and
find that the reason advanced by the Respondent for
failing to hire Garrison is a pretext, and that the real reason
was her expression of her prounion sympathies, as she
described. I find that the Respondent violated Section
8(aXl) and (3) of the Act by failing to hire Garrison in late
September.18
H. The Alleged Discriminatory Reductions in
Working House of Terry Schabacker, Dennis King,
Marilyn Palumino, Katherine Erlandson, Brenda
Heidel, and Diane Asbury; and Dino Palumino's
Reduction in Hours and Discharge
I. Terry Schabacker and Dennis King
Following the September 17 session of the representation
hearing at which he was the principal witness, Whitely
returned to the store and approached Terry Schabacker
stating, "I was with your friend Velma all day." Then
Whitely drew Schabacker aside in the front of the store and
began describing what had transpired at the hearing,
including the fact that he was unhappy at having missed
lunch and had had to testify concerning some personal
matters. Schabacker described Whitely as frowning and
speaking loudly. At this point, while poking Schabacker in
the shoulder with his index finger, Whitely remarked,
"Terry, we'll see how you do the next time. There will be a
next time." Whitely admitted having a conversation with
against Garrison on the date she informed Schmidt she favored the Union,
on which date Schmidt fixed his intention not to hire her because of her
union sympathies. The calendar date, from which point the Respondent will
be required to make Garrison whole, is a matter for compliance. See
Goodwater Nursing Hornme, Inc., 222 NLRB 149, AUD, fn. 12 (1976).
408
C & W SUPER MARKETS, INC.
Schabacker on September 17 in which he said he had spent
the day with Velma Skarvan and her friends, and had been
asked many personal questions. Whitely could not recall
saying anything else. Schabacker's version is credited. The
second and final session of the representation hearing was
held on September 30. The record of the representation
proceeding shows that following the completion of White-
ly's testimony, Schabacker contradicted portions of White-
ly's testimony. Immediately following the completion of
the hearing Whitely approached Schabacker in the hearing
room and ordered him to go directly to work, observing
that Schabacker was already late. Schabacker explained
that he had no choice about being late, since he had not
been released from his subpena until after the hearing.
Then Whitely answered, "Well, you better be there when I
get there." When Whitely arrived at the store and found
Schabacker already working, he remarked, "I see you made
it." After Schabacker answered, "Yes," he observed
Whitely proceed to where Marilyn Palumino was working.
Nothing else was said to Schabacker. Whitely remembered
having a conversation with Schabacker at the courthouse
following the hearing and asking Schabacker if he was
scheduled to work that night. He could remember nothing
else about this conversation, although he recalled that in
addition to Schabacker, Duane Schmidt, Roger Wilson,
Michael Cerroni, Sue Cary, Marilyn Palumino, Brenda
Heidel, and several others attended the hearing.?9 Whitely
also remembered that upon returning to the store that
evening he commented to Schabacker that he had "made
it." Thus, Whitely's testimony tends to corroborate that of
Schabacker. Schabacker's more detailed version is credit-
ed.
The Company's records show, as summarized and
graphically displayed in detail in the General Counsel's
brief, that Schabacker and King's hours were drastically
cut in early October, shortly after the closing of the
representation hearing. When Schabacker first observed
this drastic reduction on the posted work schedule, he
questioned Schmidt about the matter. Schmidt responded
that business was down. When the work schedule for the
following week revealed a continued reduction in hours,
Schabacker went to Schmidt again and asked when he
could get his hours back. This time Schmidt replied,
"Terry, you blew it, but, for the record, your hours were cut
because business is down." A few days later Schabacker
again approached Schmidt and asked what he would have
to do to get the hours back. Schmidt answered, "Terry, the
only way you're going to have a future with this company
again is to talk to the old man." 20 According to Duane
Schmidt he reduced the working hours of Schabacker and
King because he had received reports from other employ-
ees "that there was some fooling around going on; long
break periods; other people had to cover for these break
19 Whitely testified that it was at the September 30 session of the heanng
that he learned "specifically" who was involved in the Union.
20 Schmidt admitted having a conversation with Schabacker, in which he
told him he'd have to talk to Whitely. He also agreed that there were
probably other conversations in October with Schabacker concerning his
reduction in hours.
21 Only Hale and Lester testified concerning having reported employees
taking long breaks. Hale, who had been hired in September only shortly
before the reduction, testified that he noticed Schabacker's and King's
periods while these people were on these extended breaks;
[and] certain duties weren't getting done." He identified
the persons who had made these reports as part-time
employees Dick Nortch, Jeff Jaynes, and Rick Hale, and
full-time clerk Russel Lester. 21 Schmidt could not recall
ever having had a conversation with Schabacker and King
in which he confronted them with the reports he had
received. Schmidt conceded that it was possible he might
not have had any such conversation at all.22 Schmidt also
testified, at another point, that he reduced Schabacker's
and King's hours to bring them into line with his own, but
that their duties and responsibilities did not change further
until December when he relieved them of their night
responsibilities. Schmidt conceded that in October he knew
that Schabacker, King, Erlandson, Marilyn Palumino, and
Brenda Heidel were union supporters.
Robert Whitely testified that it was he who ordered the
reduction of Schabacker's and King's hours based on
reports from Roger Wilson, Lester, Jaynes, Nortch, and
Hale over a period of 10 days at the end of September that
Schabacker and King "had not been carrying out their
responsibilities." Whitely admitted, however, that he never
discussed these reports with Schabacker, nor did he testify
that he had such a discussion with King. On the contrary,
concerning Schabacker, Whitely testified that Schabacker
had been a good conscientious employee, and that "from
force of habit" he knew that Schabacker would continue to
perform the type of service he had been doing before.
Thus, in summary, it is clear that, immediately following
the representation hearing at a time when the Respondent
was acutely aware of the union activities of Schabacker
and King, it sharply reduced their income by cutting their
working hours. Credible testimony shows that, having been
angered by learning at the hearing of the extent of his
employees' organizational activities, Whitely retaliated
immediately. Schmidt even informed Schabacker of the
true reason for the reduction, telling him he "blew it," and
only subsequently sought to hide it by the assertion that the
cut occurred as a means of discipline for poor work
performance. Finally, the Board has often held that the
failure on the part of an employer to verify employees'
reports that other employees have engaged in improper
conduct, and the failure to give the accused employee an
opportunity to deny or explain such accusations before
disciplinary action is taken, is a strong indication that the
assertion of such alleged misconduct as a reason for the
employer's action is a pretext, and that the true reason lies
elsewhere. Such is the case here, where the record
specifically shows that the testimony of the Employer's
witnesses, including those who allegedly made such
reports, is inconsistent and conflicting. I am therefore
persuaded by a preponderance of the evidence that
Schabacker's and King's hours were reduced because of
performance fell off near the end of September and that he took a number
of long breaks with them during this period of time. He also noticed that
Schabacker got his work done and stated that in his opinion Schabacker was
a good worker. Lester testified that he could not recall Schabacker taking a
long break. The record also shows that Lester had knowledge of the union
activities of Schabacker, King. and Marilyn Palumino.
22 In view of this testimony by Schmidt. I find that he did not inform
them of these accusations.
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their activities in support of the Union's organizational
drive, and in the case of Schabacker also because he
testified at the representation hearing.
2. Marilyn Palumino
Marilyn Palumino worked in that portion of the front
office of Respondent's store commonly known as the
courtesy counter, where she cashed checks, performed
customer service duties, and prepared a daily sales report
each evening. In late September her normal working hours
were from 5 to 10 p.m. According to Duane Schmidt, at
some unspecified time, Whitely mentioned to him that he
would like to have the sales report completed within a 3-
hour time span in order that he could review it when he
returned to the store in the evening. 23 Whitely felt that the
report could be completed in 2-1/2 to 3 hours and
complained that this was not being done. On another
unspecified occasion Whitely returned to the store and
complained to Schmidt that the report was not on his desk
at 9:30 in the evening. Because it was felt that Palumino
was not completing the reports promptly, her hours were
reduced to from 5 to 9 p.m. Later in October or November,
according to Schmidt, Palumino's hours were further
reduced because Respondent's volume of business, and
consequently the check cashing activity, were down.24
Schmidt testified that Palumino's hours were reduced
pursuant to a discussion with Mr. Whitely. Whitely's
testimony supported that of Schmidt. He agreed that he
made the decision to cut Palumino's hours based on his
personal observations of her work "from time to time"
during a number of weeks in September and October,
during which he concluded that she was not completing her
reports in a timely fashion.
I do not credit the testimony of Whitely and Schmidt
concerning the reasons they espoused for having reduced
Palumino's hours. I am persuaded and conclude that the
reasons they have advanced were designed to hide the fact
that they were actually penalizing Palumino because of her
union activities. There are several considerations, strongly
supported by the record, which all point to this conclusion.
First, reduction in Palumino's hours occurred contempora-
neous with the discriminatory reduction of other prounion
employees' working hours. Second, credible testimony on
the part of Palumino shows that on September 30,
following the representation hearing, Whitely approached
Palumino at the courtesy counter, berated her for leaving
the hearing early, and angrily complained about Terry
Schabacker's testimony. Whitely continued, "By the way,
don't you know that you run the store?" Palumino replied,
"No, I didn't know that I run the store." Whitely: "Well,
according to Terry Schabacker you do run the store."
Palumino responded, "From what I was told no one runs
this store but Smitty." 25 Third, in another portion of his
23 At this particular time the store was open until midnight.
24 The Company's payroll records show that commencing with the week
ending September 27 Palumino's hours were reduced by 4 hours, and that a
further reduction occurred beginning with the week of October I i.
25 Schmidt testified that he was nearby when Whitely talked to
Palumino, and that Whitely did not raise his voice. Schabacker testified that
immediately after his September 30 confrontation with Whitely at the store
following the hearing, he saw Whitely proceed toward where Palumino was
working. I credit Palumino.
testimony, with Whitely's and Schmidt's inability to be
specific concerning when Palumino allegedly took too long
to prepare the reports, the lack of any documentary
support for the assertion that Respondent's volume of
business declined in October, and the absence of any
evidence showing that the Respondent ever discussed with
Palumino the alleged problem of her taking too long to
prepare sales reports persuades me that the reasons
Respondent has advanced for its action concerning
Palumino are fabrications, and that a preponderance of the
evidence showed that the reduction in her hours was
motivated by her union activities, and I so find. 26
3. Brenda Heidel and Kathy Erlandson
Katherine Erlandson signed a union card on August 11.
Brenda Heidel signed a card on August 18. Both were
active in the Union's campaign and both attended the
September 30 session of the representation hearing along
with Tommie King and Marilyn Palumino. Duane Schmidt
acknowledged that in October he became aware of the fact
that they were union supporters. As stated earlier, Whitely
acknowledged that at the September 30 hearing he became
aware of who was involved in the Union. The General
Counsel contends that as in the cases of Schabacker, King,
and Marilyn Palumino, Heidel's and Erlandson's hours
were drastically reduced immediately after the representa-
tion hearing. Concerning Brenda Heidel, who did not
testify, Respondent's payroll records show that during the
week of October 4 she worked 38 hours, which represents
her highest number of hours for the year. On only two
other occasions had she worked more than 30 hours.
Beginning with the pay period ending October 11 Respon-
dent's records show some reduction in her hours worked.
Betty Bogard testified that Heidel, a part-time employee
with no guarantee of hours, came to her after school had
started in the fall and asked to switch to days. Duane
Schmidt testified that Heidel came to him in late Septem-
ber or early October and complained of migraine headach-
es and asked for time off, and that he promised to work it
out for her. Payroll records show that Heidel did not work
at all during the week of October 18. Bogard's and
Schmidt's testimony is uncontradicted. Further examina-
tion of Respondent's payroll records shows that for the pay
period ending November I Heidel's hours per week rose to
29, a figure higher than most of the pay periods preceding
October 4. Under all these circumstances I find that the
General Counsel has adduced insufficient evidence to
prove that the reduction in Heidel's hours was prompted
by a retaliatory motive rather than her own request. I find
that the Respondent has not violated Section 8(a)(3) and
(1) of the Act with respect to any reduction in Heidel's
hours.
26 Respondent's position with respect to Marilyn Palumino is not
assisted by the testimony of Head Cashier Betty Bogard to the effect that
from August through December she set up the "initial" schedule for part-
time employees, including Palumino, and that during this time she received
no instructions from management concerning Marilyn Palumino's schedule.
The suggestion in Bogard's testimony that Palumino's hours were not cut
during the period in question conflicts directly with the Respondent's
payroll records and other testimony.
410
C & W SUPER MARKETS, INC.
I likewise find that the General Counsel has not
established that the Respondent discriminatorily reduced
the hours of Katherine Erlandson. The payroll records
show a reduction in Erlandson's hours beginning with the
October 4 payroll period. Betty Bogard, who schedules the
part-time employees, testified that during the summer,
when full-time employees are away, part-time employees'
hours are increased. An examination of her hours worked
for the pay periods March 15 through September 27 reveals
a rather dramatic increase in Erlandson's working hours
following the payroll period ending July 5. Thus, Respon-
dent's payroll records tend to substantiate Bogard's
explanation. In addition, further examination of Respon-
dent's payroll records with respect to Erlandson reveals
considerable fluctuation in her working hours for the entire
period March 15, 1975, through January 9, 1976. Erland-
son was called to testify by the General Counsel only for
the limited purpose of identifying her authorization card.
Therefore, the record reveals simply that Erlandson, an
active union adherent, had her temporarily inflated hours
per week reduced shortly after the representation hearing
beginning with payroll period ending October 11, support-
ing Bogard's uncontradicted explanation. Under all these
circumstances I find that the General Counsel has failed to
prove that the reduction in Erlandson's hours was the
result of a desire by Respondent to punish her for her
union activities.
4. Diane Asbury
Beginning with the Union's initial contacts with Respon-
dent's employees at the homes of Marilyn Palumino and
Terry Schabacker, regular weekly meetings were held every
Wednesday, which was Palumino's and Schabacker's day
off. One of the meetings was held at the King residence.
The others were at either Marilyn Palumino's or Terry
Schabacker's home. Schabacker, King, Marilyn Palumino,
Kathy Erlandson, and Brenda Heidel were those who were
active in arranging these meetings. In early October, as one
of the meetings at Terry Schabacker's home was ending,
Diane Asbury, a meat department employee, appeared at
the Schabacker home to return some luggage she had
borrowed. Pursuant to Schabacker's invitation she stayed
to eat with the group. On the morning of October 18, when
Asbury arrived at work, she was approached by Meat
Department Head Orville Mahle who said that Whitely
had called him and stated that he knew Asbury was
attending union meetings and that he wanted her hours
cut. Asbury denied attending the meetings but stated that
she had gone to Terry Schabacker's home to return some
suitcases. Mahle retorted that there was nothing he could
do about it, but to see Schmidt if she wanted to talk to
someone about the matter. Asbury did not work the
following day, Saturday. When she came to work on
Monday she discovered that her hours for the week had
27 I reject the suggestion in Respondent's brief that because Mahle was
called as a witness by the General Counsel for the limited purpose of
questioning him about his status, that Mahle became the General Counsel's
witness for all purposes in this proceeding, and that counsel for General
Counsel was obliged to question Mahle about his conversations with
Asbury. To the contrary, once counsel for General Counsel had produced
evidence that Mahle was a supervisor and had participated in unlawful
been reduced from 40 to 32. Asbury went to talk to
Schmidt about the matter. Asbury began the conversation
by explaining the reason for her presence at Schabacker's
home, and then stated that she did not think it was fair to
have her hours cut for that reason because she wasn't doing
anything. Schmidt answered that her hours were cut
because of lack of work, and for her to keep her nose clean,
watch her reputation, and stay out of stuff. Thereafter,
Asbury talked to her union representative about the
matter, and informed Mahle that she had done this. After
lunch she noticed that her scheduled hours had been
revised back to 40 hours per week.
Respondent's answer in Case 38-CA-2742 admits that
Diane Asbury did not work on October 25, as is confirmed
by the Respondent's payroll record for that period. The
complaint in Case 38-CA-2742 alleges that Orville Mahle
is a supervisor within the meaning of the Act and that the
Respondent, through its supervisors and agents Whitely,
Schmidt, and Mahle, reduced the hours, and consequently
the income, of Asbury on or about October 25 in order to
discourage her from participating in union or concerted
activity. Mahle was called as a witness for the General
Counsel solely on the issue of his duties and status. He
testified that he was Respondent's market manager and a
head meatcutter under their Union's contract with Respon-
dent. As such, he directed the activities of three other
employees, did the purchasing, and scheduled the hours,
days off, and vacations of those who worked for him. He is
responsible for the general sales in the meat department.
Mahle testified that Whitely hired one journeyman meat-
cutter for the meat department upon Mahle's recommen-
dation. The Board has frequently held that heads of
supermarket meat departments having similar duties,
responsibilities, and authority are supervisors. I find that
Orville Mahle at all times material herein is a supervisor
within the meaning of Section 2(1 1) of the Act.
Mahle was not called as a witness for the Respondent
and consequently did not deny any of the statements
attributed to him by Asbury.27 Schmidt gave no testimony
at all about the reduction in Asbury's hours or concerning
the conversation she testified they had about this matter.
Whitely denied having instructed Mahle by phone on
October 18 to cut Diane Asbury's hours. 28 I credit
Asbury's testimony and find that the Respondent violated
Section 8(aXl) of the Act by Mahle's threat that Schmidt
wanted to reduce her hours because she was attending
union meetings, which created the impression that employ-
ees' union activities were under surveillance, and by
Schmidt's instruction, in the context of Asbury's efforts to
explain her presence at the aftermath of the meeting, to
"keep her nose clean" and to "stay out of stuff," as alleged
respectively in paragraphs 5(g) and (h) of the complaint in
Case 38-CA-2617. I also find that Asbury's hours were
reduced on October 25 as alleged in paragraph 5(a) of the
complaint in Case 38-CA-2742.
conduct with respect to Asbury, it was Respondent's obligation to come
forward with evidence to refute the General Counsel's contention.
28 Whitely testified that he was a bed patient in the hospital on October
25. There is no evidence concerning the duration of Whitely's confinement.
I note, however, that Asbury's testimony indicates that Mahle began their
conversation on October 18 by telling Asbury that Whitely had called him
from the hospital.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Dino Palumino
Dino Palumino did not testify in this proceeding. He had
been employed as a part-time stocker by Respondent for
about 2 years. Respondent's payroll records show that he
reached a peak in the number of hours worked when he
worked 59 hours during the payroll period ending August
30. Between that time and the date of his discharge on
October 31, his hours, with only one exception, steadily
declined. This decline began around the time that the
Respondent fired additional part-time employees Jaynes,
Buban, Powell, and Hale, who performed the same duties
as Palumino. Russel Lester, who often worked with Dino
Palumino in the evening stocking the aisles, testified that
the main problem he observed in Dino's work was that he
was slow and that during the latter stages of Dino's
employment at the store he did some "clowning around."
Lester also testified that on one occasion 3 or 4 weeks prior
to Palumino's termination he observed Palumino use a box
cutter to damage a table in the break room. Richard Hale
testified that he observed Palumino put his fist through a
box accompanied by profane language. The record
contains no testimony by Lester or Hale to the effect that
they reported any of these matters to management. Lester
also testified that, generally speaking, over the 2-year
period he worked with Palumino, Dino's work habits were
"pretty much" the same. Susan Cary, Respondent's bakery
manager, testified similarly. In working with Dino Palumi-
no during August, September, and October she noticed
that he was slow, liked "to goof off and clown around a
lot," and at times used profane language in front of
customers. On cross-examination she admitted that Dino
had been a slow worker "for quite some time," that other
employees in the store from time to time used foul
language, but insisted that on one particular unspecified
occasion Palumino's remarks were especially foul. None of
Cary's testimony indicated that she ever reported any of
Dino's allegedly undesirable work habits to management.
Store Manager Schmidt testified that Palumino "was a
slow worker and liked to joke around quite a bit." Schmidt
stated that he reduced Palumino's hours during the last
half of August. When Palumino complained about the
matter, stating, "Say man, I can't live on these hours,"
Schmidt considered this remark insubordinate and reduced
Palumino's hours again. Thereafter, Schmidt found it
necessary to talk to Dino about using foul language in the
front of the store in the presence of a cashier. According to
Schmidt when it was reported to him that Palumino had
carved up one of the tables in the break area, a further
reduction in hours ensued. Finally, Schmidt terminated
Palumino for insubordination and unsatisfactory job
performance. 2 9
Since Dino Palumino did not testify, the record lacks
whatever evidence he might have provided to shed further
light on the accuracy of Respondent's accusations concern-
ing his conduct, which Respondent contends resulted in a
reduction of his hours and, later, his discharge. There exists
simply the testimony of Schmidt, supported to some extent
29 Company President Whitely did not participate in Dino Palumino's
termination, and testified only that Schmidt "mentioned" his reasons for
reducing Palumino's hours.
by that of Lester, Cary, and Hale, concerning incidents
that occurred throughout the time that Palumino worked
for Respondent. On the other hand, there exists clear
evidence of Palumino's union activities, and those of his
mother, which when considered against a background of
Respondent's vigorous and often times unlawful efforts to
defeat the Union, tends to support the General Counsel's
case. After carefully weighing all of these factors I am
persuaded that the Respondent reduced Palumino's hours
and later discharged him in violation of the Act. Dino
Palumino, together with his mother, Marilyn, were the first
union card signers at the initial union meeting. Although
no direct evidence exists that the Respondent knew of
Dino's union activities at any specific time prior to his
discharge, there is an abundance of evidence that the
Respondent was making every effort to learn the identity
of the union activists, and there is clear evidence that the
Respondent knew of Marilyn Palumino's union activities.
As described in other portions of this Decision, the time
period between the final days of August and Palumino's
discharge in October witnessed a variable parade of
discriminatory acts directed by the Respondent against
union adherents. An examination of the evidence present-
ed by the Respondent in support of its position concerning
Palumino reveals that (consistent with its pattern of action
as to other discriminatees), except for one undated instance
where he criticized Palumino for foul language, over an
extended period of time he was never counseled, warned,
or otherwise confronted with the fact that Schmidt was
dissatisfied with his work or deemed any of his remarks to
be insubordinate. None of the employee witnesses testified
concerning having made reports to the Respondent about
Palumino. Schmidt's testimony concerning these matters
was somewhat vague, in that he was able to provide only
the faintest indications as to when they occurred, and
failed to state from whence came the reports on which he
relied. A close examination of Schmidt's testimony, as the
General Counsel points out in his brief, reveals an
inconsistency and shifting on the part of Schmidt in
testifying concerning the sequence of the events on which
he based his discipline of Palumino. Finally, and perhaps
most significantly, Schmidt's testimony reveals that the
"insubordination" which constituted part of the reason for
Palumino's termination was the same remark for which
Palumino allegedly had had his hours reduced earlier.30
The Board has frequently held that an employer's knowl-
edge of an employee's union sympathies and activities may
be inferred from a consideration of all the surrounding
facts and circumstances, and that such inconsistencies in a
respondent's asserted reasons for its actions, as described
above, constitutes a strong indication that the motive
behind its action was unlawful. I therefore find, on the
basis of all of these factors and the record as a whole, that
the Respondent reduced Dino Palumino's hours and then
terminated him on October 31 because of his union's
sympathies and activities, and those of his mother, in
violation of Section 8 (a)(1) and (3) of the Act.3 1
3' I note the testimony of Terry Schabacker to the effect that Schmidt
told him that Dino Palumino was released for lack of work.
'3 Par. 5(e) of the complaint in Case 38-CA-2617 alleges, as a
412
C & W SUPER MARKETS, INC.
I. The Allegations That Michael Cerroni, as an
Agent for the Respondent, Threatened Steven
Leombruni With Discharge or Other Reprisals
Because of his Union Activities on or About
November 19 and December 6
Michael Cerroni, Respondent's produce manager, was
one of the employees whose alleged supervisory status was
specifically litigated in the representation proceeding. The
Regional Director's finding that Cerroni was not a
supervisor within the meaning of the Act was approved by
virtue of the Board's sustaining of the Regional Director on
a request for review. The complaint in Case 38-CA-2617
alleges that Cerroni, acting as an agent of the Respondent,
threatened his first cousin, Steven Leombruni, a produce
clerk who had signed a union card for Terry Schabacker on
August II, as did Cerroni. According to Leombruni it was
Cerroni who approached him together with Schabacker
and encouraged him to sign a card. Later, around the
beginning of November, after inviting Leombruni back
into the cooler to talk, Cerroni observed that "this union
thing . . . is causing a lot of trouble." He then stated that
he was going to vote no, and that it would probably be best
if Leombruni also voted no. Cerroni ended the conversa-
tion by saying, "I am telling you this because you are my
relative, and I don't want to see you get into trouble." The
next conversation between the two men occurred around
Thanksgiving at Cerroni's parents home. While watching
TV in the den, Cerroni stated that he was going to vote no,
and it would probably be better for Leombruni at work if
he voted no because he would probably stand a better
chance of keeping his job. Their final conversation
occurred in December, once again in the produce cooler.
At that time Cerroni repeated substantially the same
remarks as he had made on the previous two occasions,
except he added that he had talked to Mr. Whitely, but
Cerroni did not state that Mr. Whitely had told him what
to say.
Cerroni recalled talking about the Union with Leombru-
ni at the evening union meeting held on August 11 at
Schabacker's home with Velma Skarvan present. Skarvan
had produced a union contract from another store as an
example of a typical contract from a store represented by
the Charging Party-Petitioner. Both men reviewed the
contract and Cerroni remembered asking Leombruni for
his opinion. He further recalled that Leombruni liked the
economic benefits in that agreement, but that he observed
counterpart to par. 6(a). that Respondent rewarded employees who were
known or believed to be antiunion by giving them additional hours of work
to increase their income. The General Counsel views this conduct as, in
effect, the alleged fulfillment of Whitely's promise to "justly reward" those
employees who supported the Company against the Union. However, except
for Schmidt's acknowledgment that he knew Hale was not in favor of the
Union, and evidence, discussed elsewhere, that certain employees were hired
in August and September after having expressed a lack of interest in the
Union in response to interrogations, there is nothing to specifically identify
what group of employees the General Counsel claims were rewarded. His
brief is silent on this aspect of the case, although counsel for the General
Counsel was placed on notice at the hearing that G.C. Exh. 9(a), 101 pages
of payroll records for all Respondent's employees, as tentatively being
received into evidence on the condition that the brief, would contain a
specific statistical analysis demonstrating how these records proved
discriminate treatment (which analysis was supplied in well-organized form
concerning the reductions in the hours of prounion employees). Neverthe-
that he was happy with things as they were and did not
know how he was going to vote. Cerroni admitted talking
to Leombruni on one other occasion prior to the election
when Leombruni asked for his opinion. At that time
Cerroni expressed his concern about strikes and picketing
at other stores represented by the Union. Cerroni denied
questioning Leombruni about his sympathies or threaten-
ing him. I credit Leombruni's testimony which was more
precise in detail than that of Cerroni who rambled and was
uncertain. On cross-examination Cerroni admitted having
five or six conversations with Leombruni, indicating that
there were others than those concerning which he had
testified. Thus, he admitted talking to Leombruni at his
mother's home. However, there is no evidence in the record
tending to prove that Cerroni was at any time an agent of
the Respondent. I therefore find that the conversations
between Cerroni and Leombruni were simply conversa-
tions between two rank-and-file employees, for which
Respondent is in no way responsible. Therefore, I find that
the Respondent did not violate Section 8(a)(1) of the Act
with respect to those allegations concerning Michael
Cerroni set forth in paragraph 5(c) of the complaint in Case
38-CA-2617, as amended.
J. The Status of Larry Buchanan, Dennis King,
and Terry Schabacker and Resulting Findings and
Conclusions
The Respondent contends that Buchanan, King, and
Schabacker are not protected by the Act, with respect to
the violations relating to them alleged in the complaints,
because they are supervisors within the meaning of Section
2(1 1) of the Act. This contention is also the keystone of the
Respondent's defense to the alleged violation of Section
8(aX5) and the General Counsel's request for a bargaining
order as an appropriate remedy, since the Respondent
claims that these alleged supervisors' deep involvement in
the card-signing campaign tainted the cards and resulted,
at most, in a coerced majority. King's status was not
specifically litigated in Case 38-RC-1793. The status of
Schabacker was, as noted earlier, left open for further
consideration by the Board in its denial of the Respon-
dent's request for review. Concerning Buchanan, the record
in the representation proceeding, in evidence, compared
with that in the consolidated proceeding before me, shows
that Buchanan occupied the position of frozen food
department head. At the time of the representation
less, an examination of these records does not reveal any distinct pattern of
rewarding employees for their antiunion sympathies. In accordance with my
ruling at the heanng I reject G.C. Exh. 9(a) as evidence of the violations
alleged in par. 5(e). Moreover, those few employees who can reasonably be
identified as antiunion, or apparently so, were for the most part newly hired.
and thus little, if any, basis exists for statistical comparison to determine if
their hours were increased as a reward. Nor does it necessarily follow, since
there is no evidence that certain employees' hours were increased expressly
as a reward, that increases in the hours of some, contemporaneous iwith
decreases in the hours of others (and discharges of still others), were intended
as rewards, rather than simply a means of restoring needed manpower to the
depleted work schedule. Finally, there is no evidence of a design by
Respondent to grant inflated Christmas bonuses to those who supported the
Company in the campaign, as suggested by the General Counsel dunng the
hearing. I find that the General Counsel has failed to prove the allegation in
par. 5(e).
413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding, following Buchanan's discharge, this position
was occupied by Roger Wilson. Wilson's duties were found
to be nonsupervisory. Nevertheless, since Buchanan, King,
and Schabacker are all named as discriminatees their status
is subject to relitigation.
At the time of the events which are the subject of this
proceeding, it is undisputed that the Respondent's manage-
ment hierarchy would include Company President White-
ly, Store Manager Schmidt, and the assistant store
manager, which position remained vacant during the time
material herein. The Respondent contends, using a phrase
utilized by Whitely in his testimony, that his "management
troika" also included Terry Schabacker, in the capacity of
"acting assistant manager," Dennis King, and Larry
Buchanan as frozen food manager. The status of the
Respondent's remaining grocery department heads, Bakery
Manager Sue Cary and Produce Manager Michael Cerroni,
found not to be supervisors in the representation proceed-
ing, is not in issue. All department heads and the three
employees whose status is contested occupy hourly paid
positions, and receive benefits no different from other
hourly employees. They punch a timeclock and fall within
the provisions of the wage and hour law for purposes of
computing overtime compensation.
With respect to Frozen Food Manager Buchanan, whose
position was later occupied by Wilson, the record discloses
that he was the full-time employee responsible for the day-
to-day ordering, pricing, stocking, and displaying of
products in the frozen food area. Depending on the work
schedules compiled by the store manager, Buchanan either
worked alone or was alloted assistance, as was Cerroni who
worked in produce. When physically working with others
in his area in the daily routine of unpacking and stocking
his counter, he would distribute tasks between himself and
those assigned to assist him in accordance with the needs of
the work routine. He had no authority to hire and fire, and
any recommendations made by Buchanan require indepen-
dent consideration by the store manager before action was
taken. Whitely testified that he was unaware of any
instance where the store manager had received a complaint
from a department head about employee performance. In
elaborating further he stated that he knew of no instances
of the frozen food manager disciplining employees. On
occasion Buchanan did close the store at night and
sometimes opened it in the morning.
The duties and responsibilities of Dennis King and Terry
Schabacker must be discussed in the light of Former
Manager Dellenberg's replacement by Schmidt and the
conversation which Schmidt had with Schabacker and
King shortly thereafter on August 4. On August 4,
according to King and Schabacker, Duane Schmidt called
them into the manager's office and informed them that Mr.
Dellenberg had been terminated. He said he had been
appointed store manager, he would operate without an
assistant manager, and that King and Schabacker would
not have the power to hire and fire. Schmidt also added
that they were not to harass Mary Loos and Betty Bogard.
Schmidt added that if it was necessary to discipline
:12 These findings concerning the August 4 conversation are based on a
composite of the testimonies of King. Schabacker, and Schmidt, including
Schabacker's testimony at the representation heanng.
someone, all King and Schabacker could do was send them
home.32
Dennis King was employed as a stocker and was
responsible for ordering, pricing, displaying, and otherwise
maintaining the glassware and juice area of the store. He
had no title. On his union authorization card, dated August
II, King described his job as that of assistant manager. At
the outset of his testimony he described his position as
night manager. However, it is clear from subsequent
portions of his testimony, and the testimonies of Schaback-
er, Whitely, and Schmidt that the assistant manager's
position was not occupied by King, and that the term night
manager was coined by King as a means of describing his
duties on occasions when he was left in charge of the store
at night. At the time of the Union's campaign King had
worked for Respondent approximately 4 years. He became
a full-time employee during September 1973, and as such
stocked shelves, mopped floors, and cleaned the backroom.
At that time the Respondent's store was opened 24 hours a
day. King worked the third shift. About a year later, when
the Company curtailed its round the clock schedule his
hours changed to from 4 p.m. until closing at midnight.
Eventually, beginning in early 1975, King began working a
varied schedule of days and nights, which practice
continued at all times relevant in this proceeding. His
regular duties continued, but at times, in addition, on certain
evenings in the absence of the store manager, he was
assigned the additional responsibility of being in charge of
and closing the store. These additional duties were also
assigned on different nights to stockers Terry Schabacker
and Bruce Knutter. King worked 2 to 3 nights a week
during August and September. On those evenings when he
was placed in charge Schmidt, who was usually on duty
when King reported for work, would issue either oral or
written instructions concerning the work to be done. Later,
as the evening progressed, while working an aisle himself,
King would parcel out these items to others, working in the
front of the store only when needed. The record discloses
that on Saturdays and Sundays King was also in charge at
times on a rotating schedule with Terry Schabacker. King
also had the combination to the safe, signed drafts, and
obtained money for the store from the bank. However,
these activities were discontinued following Schmidt's
appointment as store manager and his conversation with
King and Schabacker on August 4. Thereafter, King
continued his regular stocking duties, which occupied 75
percent of his time. He also continued to be placed in
charge of closing the store at times as before but with more
limited responsibilities, as described above. He still at times
was responsible for reconciling sales reports, as were Terry
Schabacker and Marilyn Palumino at other times. The
record discloses that King was never actually told that he
had any authority over other employees. He did not
schedule their hours, grant time off, sign timecards, or send
employees home for disciplinary reasons. He had access to
the courtesy counter where the approval and cashing of
customer checks was performed by King and a number of
other employees. King summarized his job duties after
August 4, in general, by stating that the only basic changes
414
C & W SUPER MARKETS, INC.
were that he was relieved of his financial responsibilities
and that Schmidt had expressly stated that he and
Schabacker could not hire and fire.
Terry Schabacker has had a long history of employment
with the Respondent. He started working as a part-time
stocker in 1962. Following a break in his employment while
in the service, he returned, but left again in November 1974
by which time he had risen to the assistant manager's
position with hiring and firing authority. After approxi-
mately 4 months as the manager of a supermarket in
Vermont, Schabacker returned to C & W in March 1975.
By that time the assistant manager position had been
awarded to Duane Schmidt, and consequently Store
Manager Dellenberg told Schabacker that the best he
could do at that time was reemploy him as a stocker at
equivalent pay. Dellenberg assigned Schabacker the duties
and responsibilities very similar to those described above
with respect to Dennis King following King's switch to
days and evenings in September 1974. Thus, Schabacker,
the highest paid hourly employee in the store, was
specifically told by Dellenberg that he would only be
employed as a stocker, would be responsible for ordering
and stocking the dairy area, and would closeup the store 1
to 2 nights a week. Dellenberg specifically admonished
Schabacker that since he would be a stocker he could not
hire or fire because it would not look good.33
As in the case of Dennis King, Schabacker's duties
changed after August 4 only in the area of having the keys
to the store and with respect to certain financial responsi-
bilities. He continued to spend 90 percent of his time
stocking his area. Following the conclusion of the represen-
tation hearing on September 30, Schabacker was even
assigned such duties as mopping floors and cleaning the
restroom. He did not hire or fire anyone; no one was hired
or fired on his recommendation.3 4 On those evenings when
Schabacker was assigned to be in charge of and to close the
store, Schmidt would either leave Schabacker a list of tasks
to be performed or else would tour the store with him,
during which Schabacker would make a list of these
assignments. 35 Thereafter, during the course of the eve-
ning, Schabacker would divide these tasks among himself
and others. Following the curtailment of his financial
responsibilities he continued to perform courtesy counter
duties, including check cashing, until about September 30
when Schmidt told him not to go into the office anymore.
He continued to reconcile sales reports, dispense instruc-
tions as described above, and perform the other phases of
his work, but exercised no disciplinary functions. Scha-
':' On cross-examination Schabacker was questioned about his testimony
at the representation proceeding to the effect that pnor to August 4 Dennis
King. Larry Buchanan, and he had hiring and finng authority and were part
of management. A careful examination of all the available evidence
concerning this area establishes that Schabacker's conclusion was erroneous
and unfounded. Its basis with respect to Dennis King and Larry Buchanan
was. simply, conjectural, based in part on King's somewhat inflated idea of
his position in the store and on an assumption stemming from Schmidt's
August 4 remark. With respect to his own authority, Schabacker's
conclusion was based on both the August 4 conversation and his very close
relationship with Dellenberg which led him to believe that his expression of
an opinion would carry considerable influence. Thus, this aspect of
Schabacker's testimony at the representation heanng is merely supposition
and conjecture inconsistent with his otherwise credible testimony and with
the record as a whole.
:4 Respondent asserts that Schabacker recommended that Mark Powell,
backer, King, Marilyn Palumino, and Betty Bogard from
time-to-time called employees in to work as needed and
sent them home if business in the store decreased or their
duties were completed.
The record clearly establishes that Schabacker, King,
and Buchanan were hourly paid employees who received
overtime compensation but were not afforded any benefits
not provided to the rank-and-file. They spent the vast
majority of their time performing the same duties in which
the Respondent's other clerks and stockers were regularly
engaged. In other respects referred to above, their duties
coincided with those of Respondent's other department
heads found not to be supervisors, and whose status is not
contested. All the credible evidence concerning their
authority negates the existence of any power to hire and
discharge. The fact that they never effectively recommend-
ed such action is supported by the lack of any credible
evidence to the effect that they ever exercised such power.
Finally, with respect to Schabacker and King, the routine
assignment of tasks pursuant to a list left by the store
manager and other routine functions performed in his
absence is, in my view, not sufficient to establish their
supervisory status, even considering the fact that Schmidt
did confer upon Schabacker and King the authority to
send employees home.36 As the Board has recently noted in
a similar context, this authority was conferred only to
insure that employees woutid not take advantage of them
while they sought to carry out Schmidt's expressed
instructions in his absence. Foote's Dixie Dandy, Inc., 223
NLRB 1363 (1976); and Luoma's Foods, Inc., d/b/a Valu
King, 206 NLRB I (1973). See also Dorance J. Benzschawel
and Terrence D. Swingen Co-Partners, d/b/a Parkwood IGA
Foodliner, 210 NLRB 349 (1974). I find that Terry
Schabacker, Dennis King, and Larry Buchanan, at all
times material herein, were not supervisors within the
meaning of Section 2(1 1) of the Act, but were rank-and-file
employees entitled to the Act's protection. I therefore also
find that the Respondent's conduct towards them, as
discussed in earlier portions of this Decision, violated
Section 8(a)(1), (3), and (4) of the Act as alleged in the
complaint in Case 38-CA-2617.
K. The Alleged Violation of Section 8(a)(5) of the
Act
Paragraph II of the complaint in Case 38-CA-2617
alleges that following a refusal to recognize and bargain
with the Union on or about August 22, the Respondent
Jerry Rice, and Dick Nortch be fired. Schabacker denied having ever made
such recommendations. He testified that he may have made a derogatory
remark to Schmidt concerning the work of Rice or Nortch, and that at the
representation hearing he made a similar remark about Powell. Rice and
Nortch were not fired. Respondent's payroll records show that Powell was
employed through week #46, or November 8. Thereafter Schmidt told
Schabacker he had stated at the hearing that Powell "should be let go."
According to Schabacker he said that when he knew he was going to work
with Powell, he took two aspirin and prepared for a rough night. I credit
Schabacker's explanation.
3s Schabacker's testimony in this respect is confirmed by the testimony
of Russel Lester and by that of Greg Buban who also testified that he was
issued similar instructions from Produce Manager Cerroni
36 There is no evidence that this authority was ever exercised for a
disciplinary reason.
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in serious unfair labor practices in order to
undermine and destroy the Union's majority, which
interfered with the election process and precludes the
holding of a fair election thereby violating Section 8(a)(5)
and (1) of the Act. Accordingly, the General Counsel has
requested an order requiring the Employer to bargain with
the Union in accordance with the United States Supreme
Court's decision in N.LR.B. v. Gissel Packing Co., Inc., et
al., 395 U.S. 575 (1969).
As discussed earlier, the appropriate unit of the Respon-
dent's employees herein was established by the Board in
Case 38-RC-1793. On August 12 the day on which the
Union requested recognition, it had obtained 18 valid
authorization cards from rank-and-file employees in the
appropriate unit. By August 14, the date on which
Respondent received the Union's demand to bargain, an
additional valid card had been obtained from employee
Vicky Ferguson. On August 18 and 19, respectively, valid
cards were obtained from Brenda Heidel and Brenda Kae
Rose. At the hearing all parties stipulated that General
Counsel's Exhibit 8(a) constituted a list of "all the full time
and regular part-time persons on the payroll of C & W
Super Foods facility located at 1417 Sandy Whollow Road,
excluding the store manager and the prior store manager
and the meat department employees, for the time period
from August 9, 1975 up until August 20, 1975." Listed on
General Counsel's Exhibit 8(a) are 33 individuals, of whom
Thomas Whitely and Robert P. Whitely who were
specifically excluded from the unit by the Board in Case
38-RC-1793. Thus the appropriate unit consists of 31
employees. It is, therefore, established that on August 14,
the date on which the request for recognition was received,
and at all times material thereafter, the Petitioner-Charging
Party had obtained a sufficient number of valid authoriza-
tion cards to demonstrate that it had been clearly
designated the collective-bargaining representative of an
uncoerced majority of Respondent's employees in an
appropriate unit, and I so find.37 I have found that
following the Union's request for recognition and continu-
ing thereafter through a substantial portion of the preelec-
tion campaign, Respondent engaged in extensive unfair
labor practices through its supervisors and agents, begin-
ning August 22. In the context of the events which
transpired, no other purpose can exist for the commence-
ment of such a program of unlawful activity immediately
following the Union's demand for recognition, other than
to sabotage the Union's organizational drive, and under-
mine its majority status, and inhibit the election process.
Therefore, consistent with the Board's decision in Trading
Port, Inc., 219 NLRB 298 (1975), and The Kroger Co., 228
NLRB 149 (1977), I find that the Respondent violated
Section 8(a)(5) and (1) of the Act on August 22.
IV. THE OBJECTIONS TO THE ELECTION
Finally, since the objections to the election in Case 38-
RC-1793 are based on Respondent's promise of benefits,
37 Extensive cross-examination of Union Organizer Velma Skarvan,
employee card solicitors. and some of the card signers shows that employees
were asked to sign an authorization card for the purpose of union
representation. Further examination also revealed that no assurances were
made to prospective card signers to the effect that union initiation fees
threat to close the store, discriminatory discharges, and
reductions of hours, which were alleged in the complaint
and found to be violations of the Act which occurred
between the date of the filing of the petition and the date of
the election, the critical objections period, the Union's
objections have merit. I recommend that the election be set
aside, that Case 38-RC-1793 be dismissed, and that all
proceedings in connection therewith be vacated in view of
my recommendation that a bargaining order issue.3 8
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Charging Party-Petitioner is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By interrogating employees and their relatives
concerning their union activities and sympathies and those
of other employees; by threatening employees with closure
of the store, discharge, and other reprisals; by issuing
instructions which restricted employees from engaging in
union activities; by making statements which created the
impression that their union activities were under surveil-
lance; by soliciting employees to assist Respondent in
unlawful antiunion activity; and by promising to reward
employees who supported the Company against the Union,
Respondent through its supervisors and agents violated
Section 8(a)(1) of the Act.
4. By reducing the working hours and the income of the
following named employees beginning on the date set
opposite their names, because they or their relatives
become members of the Union or engaged in union or
protected concerted activities, the Respondent violated
Section 8(aXl) and (3): Dino Palumino, September 7;
Marilyn Palumino, September 21; Terry Schabacker,
October 5; Dennis King, October 5; and Diane Asbury,
October 25.
5. By reducing Terry Schabacker's working hours and
income, beginning October 5, in part because he gave
testimony at the representation hearing in Case 38-RC-
1793, the Respondent also violated Section 8(a)(4) of the
Act.
6. By refusing to hire Pamela Garrison on September
21, by discharging Larry Buchanan and his wife Nancy on
August 30, and by discharging Dino Palumino on October
31 because of his union sympathies and activities, and
those of his mother, the Respondent further violated
Section 8(a)(X) and (3) of the Act.
7. All full-time and regular part-time employees em-
ployed by the Employer at its Rockford, Illinois facility,
but excluding the store manager, meat department employ-
ees, guards and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
8. On or about August 14, 1975, and at all times
material thereafter, the Union represented a majority of the
would be waived only for those who signed union cards. See N.LR.B. v.
Savair Manufacturing Co., 414 U.S. 270 (1973).
38 The Ideal Electric and Manufacturing Company, 134 NLRB 1275
(%961); Trading Port, Inc., supra.
416
C & W SUPER MARKETS, INC.
employees in the above-appropriate unit, and has been the
exclusive representative of all said employees for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
9. By refusing to recognize and bargain collectively
with the Union with respect to the employees in the
appropriate unit on and after August 22, 1975, on which
date it also embarked on a clear course of unlawful
conduct which undermined the Petitioner's majority status
and made the holding of a fair election improbable,
Respondent violated Section 8(a)(5) and (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
11. Respondent has not violated the Act in any respects
other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
that the Respondent cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged
Larry Buchanan, Nancy Buchanan, and Dino Palumino, I
find it necessary to order that Respondent offer them full
reinstatement and make them whole with backpay comput-
ed on a quarterly basis, plus interest at 6 percent per
annum as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), from date of discharge to date of proper
offer of reinstatement. Since the Respondent unlawfully
refused to hire Pamela Garrison, I shall order the
Respondent to offer her employment in the position which
she was denied or, if that position no longer exists, a
substantially equivalent position, and to make her whole
for any loss of pay she incurred by reason of the
discrimination practiced against her in accordance with the
same formula. Likewise, having found that the Respondent
discriminatorily reduced the working hours and income of
Dino Palumino, Marilyn Palumino, Terry Schabacker,
Dennis King, and Diane Asbury, I find it necessary to
order that the Respondent make these employees whole
according to this formula, for any loss of earnings they may
have suffered as the result of the discriminatory reductions
in their hours beginning on the dates listed in Conclusion
of Law 4, above.
Since the Respondent unlawfully refused to bargain with
the Union. I shall also order Respondent to bargain with
Retail Clerks Union Local 1354, Chartered by Retail
Clerks International Association, AFL-CIO, the Charging
Party-Petitioner herein, effective August 22, 1975, and to
post an appropriate notice. Moreover, since I find that the
unfair labor practices committed by Respondent were
serious in nature and struck at the very heart of rights
intended to be protected by the Act, I find a "broad"
cease-and-desist order is warranted.
:' 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.
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:
ORDER 39
The Respondent, C & W Super Markets, Inc., Rockford,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees and their relatives concern-
ing their union activities and sympathies, and those of
other employees.
(b) Threatening employees with closure of the store,
discharge, and other reprisals; issuing instructions which
restrict employees from engaging in union activities;
making statements which create the impression that
employees' union activities are under surveillance; solicit-
ing employees to assist in unlawful antiunion activities; or
promising to reward employees who support the Company
against the Union.
(c) Reducing the working hours and the income of
employees because they become members of or engage in
union activities on behalf of Retail Clerks Union Local
1354, Chartered by Retail Clerks International Associa-
tion, AFL-CIO, or any other labor organization, because
they engage in protected concerted activities, or because
they have given testimony under the Act.
(d) Refusing to hire, discharging, or otherwise discrimi-
nating against employees in regard to hire or tenure of
employment, or any term or condition of employment,
because they or their relatives have become members or
supporters of Retail Clerks Union Local 1354, Chartered
by Retail Clerks International Association, AFL-CIO, or
any other labor organization, or because they engage in
union activities or protected concerted activities.
(e) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, or other terms and
conditions of employment, with Retail Clerks Union Local
1354, Chartered by Retail Clerks International Associa-
tion, AFL-CIO, as the exclusive representative of all
employees in the appropriate unit described in Conclusion
of Law 7, above.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively with
Retail Clerks Union Local 1354, Chartered by Retail
Clerks International Association, AFL-CIO, as the exclu-
sive representative of the employees in the appropriate unit
described in Conclusion of Law 7, above, and embody in a
signed agreement any understanding reached.
(b) Offer Pamela Garrison employment in the job which
she was denied and offer Larry Buchanan, Nancy Buchan-
an, and Dino Palumino immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges.
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.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole Pamela Garrison, Larry Buchanan,
Nancy Buchanan, Dino Palumino, Marilyn Palumino,
Terry Schabacker, Dennis King, and Diane Asbury for any
loss of earnings they may have suffered as a result of the
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its Rockford, Illinois, place of business, copies
of the attached notice marked "Appendix." 40 Copies of
said notice, on forms provided by the Officer-In-Charge for
Subregion 38, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Officer-In-Charge for Subregion 38, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
40 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 "Posled by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law, and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT interrogate our employees or their
relatives concerning their union sympathies and activi-
ties.
WE WILL NOT issue instructions which restrict
employees from engaging in union activities, make
statements which create the impression that the union
activities of our employees are under surveillance, or
solicit employees to give assistance in unlawful antiun-
ion activities.
WE WILL NOT threaten employees with closure of the
store, discharge, or other reprisals; nor will we promise
to reward employees who support the Company against
the Union, in order to discourage them from engaging
in union membership or activities, or protected concert-
ed activities.
WE WILL NOT reduce the working hours and the
income of our employees because they become mem-
bers of or engage in activities on behalf of Retail Clerks
Union Local 1354, Chartered by Retail Clerks Interna-
tional Association, AFL-CIO, or any other labor
organization, because they engage in concerted activi-
ties, or because they gave testimony under the Act.
WE WILL NOT refuse to hire, discharge, or otherwise
discriminate against employees in regard to their hire or
tenure, or any term or condition of employment,
because they or their relatives become members of,
engage in activities on behalf of, or otherwise support
Retail Clerks Union Local 1354, Chartered by Retail
Clerks International Association, AFL-CIO, or any
other labor organization, or because they engage in
protected concerted activities.
WE WILL offer Pamela Garrison employment in the
job which she was discriminatorily denied and WE WILL
offer Larry Buchanan, Nancy Buchanan, and Dino
Palumino immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges.
WE WILL make Pamela Garrison, Larry Buchanan,
Nancy Buchanan, Dino Palumino, Marilyn Palumino,
Terry Schabacker, Dennis King, and Diane Asbury
whole for any loss of earnings they may have suffered
as a result of the discrimination against them.
WE WILL, upon request, recognize and bargain
collectively in good faith with Retail Clerks Union
Local 1354, Chartered by Retail Clerks International
Association, AFL-CIO, for the unit described herein
with respect to rates of pay, wages, hours of work, and
other terms and conditions of employment, and WE
WILL, upon request, embody in a signed agreement any
understanding reached. The bargaining unit is:
All full-time and regular part-time employees
employed by the Employer at its Rockford,
Illinois facility, but excluding the store manager,
meat department employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to engage in union activities on behalf of the
above-named labor organization, or any other labor
organization, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection. Our employees are also free to refrain from
any or all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(aX3) of the
Act, as amended.
C & W SUPER MARKETS,
INC.
418