Carlton's Market

National Labor Relations Board - Board Decisions

Jul 31, 1979

243 N.L.R.B. 837 (N.L.R.B. 1979)

CARLTON'S MARKET
Steven Davis and Michael Provenzano d/h/a Carl-
ton's Market and Retail Clerks Union, Local 1428,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO.' Case 21 CA 16490
July 31, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANt) MFMBERS PN.I.Io
AND TRUESDAI.I.
On April 5, 1979, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. and General Counsel
and Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs 2
and has decided to affirm the rulings, findings,' and
conclusions4 of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.5
' The name of the Petitioner, formerly Retail Clerks Union. Local 1428.
Retail Clerks International Union. AFL('IO, is amended to reflect the
change resulting from the merger of Retail Clerks International Union with
Amalgamated Meatcutters and Butcher Workmen of North America on
June 7 1979.
2 Respondent has requested oral argument. This request is hereby denied
as the record, exceptions, and bnefs adequately present the issues and posi-
tions of the parties.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings.
However, there are several inadvertent errors in the Administrative Law
Judge's Decision which we hereby correct. First. we note that the original
complaint, not an amended complaint as stated by the Administrative Law
Judge, was issued on May 18, 1978. Second, in quoting language from the
pretrail affidavit of employee Stanley Johnson as read by Johnson dunng his
testimony. the Decision states that Johnson was told that his salary would be
increased "by $299 per week to $375 a week" when it should read "from
$299 to $375 per week." Finally, in the discussion of Provenzano's testimony
concerning his conversation with employee Kim Crawford, the Decision
states that Provenzano denied "saying that he would hire anyone who was
prounion," when, in fact, he denied saying that he would not hire anyone
with union sympathies. None of the corrections affect our decision herein.
'We adopt the Administrative Law Judge's conclusion that Naushad
Kurji should be excluded from the bargaining unit because of the special
status enjoyed by him. However. in addition to the facts relied on by the
Administrative Law Judge in reaching this conclusion. we also rely on the
fact that pursuant to the agreement between Respondent and Tajico's own-
ers, Kurji was not subject to layoff or discharge as were the employees who
were not relatives of Tajico's owners.
Although the Administrative Law Judge found that Respondent's exten-
sive violations of Sec. 8(aX I) and (3) of the Act were of such a nature that a
bargaining order is required to remedy them. she did not give retroactive
effect to the bargaining order. In Beasley Energy, Inc, db/a Peaker Run
Coal Company, Ohio Division #1, 228 NLRB 93 (1977). the Board stated
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommmended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent. Ste-
ven Davis and Michael Provenzano d/b/a Carlton's
Market. El Monte. California, their agents. succes-
sors, and assigns. shall take the action set forth in the
said recommended Order, as so modified:
Insert the following as paragraph 1(1):
"( I ) In any other manner interfering with, restrain-
ing. or coercing employees in the exercise of their
rights guaranteed b Section 7 of the Act."
I)ECISION
SIA IIMINI OF llI: ( AS
EARI I)AN V. S. RoHBiNs, Administrative Iaw Judge:
The hearing in this matter was held before me in Los Ange-
les, (alifornia. on I)ecember I I and 12. 1978. and Januarv
16. 1979. The charge was filed bh Retail Clerks Union. Lo-
cal 1428. Retail Clerks International Union, AFL. C10,
herein called the Union. and served on Steven Davis and
Michael Provenzano d/b/a Carlton's Market. herein called
Respondent. on March 15. 1978. A first amended charge
and a second amended charge were filed by the Union on
April 25, 1978. and June 5. 1978. respectively. and served
on Respondent on April 26. 1978. and June 6. 1978. respec-
tively. An amended complaint which alleges violations of
Section 8(a)(1) and (3) of the National .abor Relations Act.
as amended, herein called the Act, issued on May 18. 1978.
On November 17. 1978, the parties entered into a stipula-
tion whereby Respondent admits that it discharged employ-
ees Arthur Rodriguez. William Rodriguez. and Mardelle
Durazo on December 3. 1977: Donna Guerra on December
7. 1977; Manuel Villarreal on February 19. 1978: and Mar-
tha Barrera on March 3. 1978. because of their union or
protected concerted activities in violation of Section 8(a)(l)
that in the absence of an alleged violation of Sec 8(aXS) of the Act and
where the union has not made a demand for recognition. the respondent will
be ordered to bargain with the union as of the date on which the respondent
initiated its campaign of unfair labor practices. if. as of that date. the union
had obtained majority support in the unit. In the instant case. the nion
obtained a majority as of November 29. 1977. Although Respondent em-
barked upon its campaign of unfair labor practice at approximately the same
time. the record reveals only that the initial unfair labor practice Involving
the unlawful interrogation of employee Martha Barrera occurred at the end
of November or in early December 1977. In view of the uncertainly as to the
exact date of this incident. we shall date the bargaining Order as of Decem-
ber 3. 1977. the date of the first unlawful discharge. For the reasons ex-
pressed in his concurnng opinion n Beasleo Energy. Inc., supra, (hairman
Fanning would make the bargaining order prospective in nature.
Finally. the Administrative Law Judge, in her recommended Order, nad-
vertently failed to include a broad order provision as a remedy although it is
included in the notice to employees. The widespread misconduct of Respon-
dent as evidenced by its numerous and serious violations of the Act in our
view clearly "demonstrates a general disregard for [its] employees' funda-
mental statutory rights." Hickmort Food. Inc. 242 NLRB 1357 (1979). Ac-
cordingly. we find a broad order to he warranted In this case and shall so
provide.
243 NLRB No. 137
817
[I):( ISI()NS () NAIIONAI I.AB()R REI.AII(ONS BOARI)
and (3) of the Act. In connection therewith. the parties en-
tered into an inforlmal settl.ment agreement providing for
hackpay and notice posting. Ihe discriminatees would not
accept reinstatement.
Respondent has complied with the settlement agreement.
and no further remedy of these iolations is required except
insofar as said violations relate to the propriety of the issu-
ance of a bargaining order as a further remedy. The parties
further stipulated that insofar as it relates to the propriety
of a bargaining order remedy, the Administrative Law
Judge may find and conclude that the above discharges
were violative of Section 8(a)( I) and (3) of the Act: that the
only issues to be decided herein are whether Respondent
committed any unfair labor practices as alleged in para-
graphs II through 15 of the amended complaint and
whether a bargaining order should issue; and that by enter-
ing into this stipulation, Respondent does not waive its con-
tention that it was not the Employer at Carlton's Market
until January I. 1978.
Upon the entire record, including my observation of the
demeanor of the witnesses and after due consideration of'
briefs filed by the parties, I make the following:
FINDINGS OF FA(I
I. Jt1RISl)I(C()N
Respondent is, and at all times material herein has been.
a partnership engaged in the operation of a retail grocery
market located at 11944 East Ramona Boulevard. El
Monte, California,' herein called Carlton's Market or the
market. Respondent. in the course and conduct of its busi-
ness operations, annually derives gross revenues in excess of
$500,000 and purchases and receives goods. materials, and
supplies valued in excess of $5,000 directly from suppliers
located within the State of' California. which suppliers pur-
chase and receive those same goods, materials, and supplies
directly from suppliers located outside the State of Califor-
nia.
Upon the foregoing, I find that Respondent is. and at all
times material herein has been, an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(2). (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRA(TI('ES
A. Facts
Prior to November 28, 1977,. Carlton's Market was
owned and operated by Tajico Supermarkets, Inc. In Sep-
I This finding will be discussed more fully below.
2Unless otherwise indicated all dates in November and December will be
in 1977 and all other dates will be in 1978.
tember or October 1977 Steven Davis and Michael Proven-
zano. both experienced managers in the grocery industry,
began seeking a supermarket to purchase. In pursuit
thereoft they contacted the real estate division of' Certified
Grocers, a grocery cooperative, herein called Certified. Cer-
tified informed them that ('arlton's Market was available
fior sale. After some investigation Provenzano and Davis
began negotiation with Tajico for the purchase of (Carlton's
Market. At this point in time, according to Davis. ('arlton's
Market was losing a considerable amount of' money, and
Davis and Provenzano had not secured financing so they
reached an agreement whereby Tajico would secure the ser-
vices of Davis and Provenzano as consultants in lieu of
some of the financing.
The consulting agreement, executed on November 28.
was for a period of 5 weeks. from November 28 through
December 31. The "Business Consultant and Management
Agreement" provided that Davis and Provenzano would be
operating as independent contractors and would each re-
ceive a salary of $500 per week. The agreement further re-
cites. inter alia:
4. Obligations of Consultants. One or both of Con-
sultants shall be at the premises of the market during
all business hours during the term hereof. Consultants
agree to supervise the acquisition and purchasing of
products sold in the market, the marketing of' said
products. cost control matters, customer relations, and
employee management. The Consultants shall have the
power to hire or terminate employees.
Consultants have represented that they have the ca-
pacity to cut the overhead or increase the margins by
amounts not less than the amount of compensation
being paid to Consultants hereunder. It is the expecta-
tion of the Corporation that Consultants will achieve
such results.
5. Limit of Liability. With regard to the services to
be performed by Consultants pursuant to this Agree-
ment, the Consultants shall not be liable to the Corpo-
ration or to anyone who may claim any right, due to
Consultants' relationship with the Corporation, for any
acts or omissions in the performance of the consulting
services to be performed by Consultants or on the part
of the agents or employees of Consultants, except when
said acts or omissions of the Consultants are due to
their willfullness or conduct.
On the same date3 Davis and Provenzano as buyers and
Tajico as seller entered into an "Agreement for Sale of As-
sets of Business" which provides, inter alia.
6. Escrow. Seller and Buyer agree to establish an
escrow for this Agreement .... Escrow shall be opened
on or before November 25, 1977. Said escrow shall
close effective 12:01 a.m., on January 1, 1978, although
recordations and disbursements will occur January 3,
1978.
9. Consultant. Commencing on November 28, 1977,
and continuing to and including January , 1978, STE-
Provenzano and Davis testified that they are not sure that the documents
were executed on the same date; however, both the documents recite that
they were entered into on November 28, 1977.
838
CARLTON'S MARKET
VEN DAVIS and MI('HAEL PROVENZANO shall act as Con-
sultants on a full time basis on the premises of the
CARI.TON MARKET, under the terms and conditions of a
Consultant Agreement to be executed by the parties
and attached hereto as Exhibit "A." Said Agreement
shall provide for compensation to each consultant of
Five Hundred Dollars ($500) per week.
10. Date of Possession. Buyer shall assume posses-
sion of the assets and operation of the business at the
opening of business on January 1, 1978.
* * * . *
13. Interim Conduct and Operation of Business. Ex-
cept as provided for herein, from the date hereof to the
time of closing, Seller will:
(a) Carry on the business of ARLTON MARKEI' dili-
gently and in substantially the same manner as they
previously have operated CARLTON MARKET., and shall
not make or institute any unusual or novel methods of
operation, except as expressly suggested by Buyer act-
ing in their capacity as Consultants;
Davis testified that they reached certain oral understand-
ings with Tajico as to the consulting arrangement, specifi-
cally that Tajico would oversee Davis and Provenzano in
their operation of Carlton's Market through Naushad
Kurji, nephew of Zul Jivani (the president of Tajico). Davis
and Provenzano agreed to reduce the inventory down to
$80,000, the amount that Tajico was willing to finance, and
to teach Kurji the functions of running a supermarket dur-
ing the month of December to the best of their ability: and
it was agreed that Davis' and Provenzano's authority to
discharge employees would not include the four or five
members of the family of Tajico's owner, including Kurji,
who were then employed at Carlton's Market. Accordingly,
Davis and Provenzano were required to discuss all their
actions with Kurji. He, in turn, would discuss such with
Shamas Habib, the general secretary for Tajico. Addition-
ally, Habib would telephone Davis and Provenzano at least
three times each week, and Habib and Jivani would each
visit Carlton's Market perhaps once or twice each week.
Davis further testified that it was expected that they in-
crease the profits so rapidly (by at least the $1,000 weekly
value of the consulting agreement) that it was impossible to
improve the gross income. Thus, any improvement in the
first or second week would have to be achieved through a
reduction in labor. Provenzano testified that after 2 or 3
days of the first week, Kurji reported to Habib that the
payroll had not been reduced.4 Habib then telephoned Pro-
venzano and instructed him to cut the payroll.
Davis and Provenzano assumed the management of Carl-
ton's Market on November 28, 1977, pursuant to the con-
sulting agreement. On November 28 and 29, 1977, a num-
ber of the employees at Carlton's Market signed cards
authorizing the Union as their collective-bargaining repre-
sentative.
Martha Barrera testified that around the end of Novem-
ber Provenzano told her that he knew the Union was com-
' Davis and Provenzano had not requested that Kurji give Habib this
information.
ing in, that he would do anything to keep it out, that those
who would be for the Union would not stay at the market.
but that those who were with him all the way would con-
tinue to work there. He then asked Barrera what she
thought of the Union. Barrera replied that she was with
him all the way. Provenzano admits that he told Barrera in
November that he did not want the Union in the market:
however, he testified that he does not recall having a con-
versation with Barrera such as she related. According to
him, he cannot remember that long ago. He does specifi-
cally deny ever saying to Barrera that employees who were
for the Union would not remain employed at the market.
On December 3. 1977, Provenzano and Davis discharged
employees Arthur Rodriguez. William Rodriguez, and
Mardelle Durazo. On December 7, 1977, they discharged
employee Donna Guerra. As set forth above. Respondent
admits that they were discharged because of their union or
protected concerted activities in violation of Section 8(a)( I )
and (3) of the Act.
Employee Manuel Villarreal testified that sometime in
mid-January Provenzano asked him what he thought about
the Union. Villarreal said that he did not think anything
about it. Provenzano said that if he learned of anyone
thinking about the Union, he would fire him immediately.
Provenzano testified that he does not specifically recall
whether he ever made such statements to Villarreal. When
asked whether he would remember if he had, in fact. made
such statements. Provenzano testified:
A. You had to spend too much time with Manuel.
[Apparently referring to a language difficulty.]
Q. You are testifying here that you never said that
to Mr. Villarreal?
A. No, sir.
Employee Stanley Johnson testified that sometime after
Davis and Provenzano assumed management of the mar-
ket, prior to February, Provenzano told him that he did not
believe he could afford to have a union represent the em-
ployees. Johnson also testified the in January he had a con-
versation with Davis and Provenzano. Provenzano said that
he liked Johnson's work, it seemed that fellow employees
liked him and he was doing a pretty fair job. Provenzano
said that he would like Johnson to join his team and be a
part of his organization. He further said that he would
rather avoid becoming part of the Union because of their
financial situation. Provenzano also offered Johnson a raise
from $5.50 per hour to $375 per week. After being shown
his prehearing affidavit, Johnson testified that Provenzano
said that they liked Johnson's work and would like him to
become a member of their team, and that they did not want
to have too much to do with the Union. Johnson said he
believed that the latter statement was because of their fi-
nances.
However, in his prehearing affidavit dated March 22.
1978, Johnson stated:
I can recall sometime during the first week of Janu-
ary of 1978, being called into the office of the new store
owners. Both owners, Steve Davis and Michael Pro-
venzano were there. Michael started off by saying that
he liked my work, the way I talked to people, and was
respected by them. He said he would like me to be a
839
I)ECISIONS OF NATIONAI. LABOR RELATIONS BOARD
part of his team. He said he knew I had been a union
supporter during the union's last organization cam-
paign. He said there was no way the store would be
going union. He said since I had remained at the store
for the last year, he assumed I had lost interest in the
union. He said if' I became a part of' his team, my
wages would be increased by $299 per week to $375 a
week. He said, "However, if I find out you have any-
thing whatever to do with any union, I'll just I'll fire
you on the spot. If you then get a job in any other
store, you won't be there for 30 days before I can get
you fired out of it also. You know, that the Labor
Board claims there is no way I can find out how an
employee votes, but I can. There are ways." I said, "I'll
accept the job and do the best I can for you."
The following week Johnson did receive a wage increase to
$375 per week.
Johnson further testified that at various times during the
first quarter of 1978 Provenzano made statements that he
did not feel he could go union, and that he did not believe
that union organization should be discussed in the market.
Provenzano also said that he did not want anyone in the
store who was for the Union. After being shown his pre-
hearing affidavit Johnson testified that Provenzano stated
several times that there was just no way he felt he could go
union because financially he could not do it. He also said
that he would find out sooner or later what their union dues
were or whatever, and if it got too strong he would have to
do something about it. When asked whether Provenzano
said what he would have to do, Johnson testified that he
believed it was termination, but that he cannot recall.
In his prehearing affidavit Johnson stated:
Every week or so, I would be told by [Provenzano]
about his antiunion views. He would time and time
again claim he would fire anybody who was even inter-
ested in any union. He said several times I have my
leaks up in front and sooner or later I'll find out who's
doing what.
Neither Provenzano nor Davis denies these conversations.
Employee Kim Crawford testified that she was employed
by Respondent on February 3. On February 2 she had an
employment interview with Provenzano. During this inter-
view Provenzano asked her if she was interested in working
for the Union. Crawford said no, she had no thoughts about
the Union. Provenzano said that he was having problems
with the Union, that he was trying to keep the Union out,
and that he was not going to hire anyone who wanted to
work with the Union. Crawford said that she had no knowl-
edge of any union activities. Provenzano testified that he
does not recall this conversation. He specifically denies say-
ing that he would hire anyone who was prounion. He does
not deny asking her if she was interested in working for the
Union.
Crawford further testified that during the latter part of
February Provenzano asked her if she had heard anything
about the Union and how her vote would be. He concluded
the conversation by saying. "Just as long as I know where
your vote is going to be." Provenzano denies that he asked
Crawford for her personal beliefs about the Union. He ad-
mits that he may have said that he did not want the Union
to represent the employees.
Johnson testified that, sometime in February William
Rodriguez came into the market and talked to him for a few
minutes. Shortly thereafter Provenzano told Johnson that
he felt that Rodriguez was part of' Respondent's union
problems, and that if he continued to hang around the store
he would have to do something about it. Provenzano said
that he felt he knew enough of the right people in the right
places that he could have Rodriguez discharged. 5 He said
that he would rather not have Rodriguez hang around the
market. Provenzano then suggested that Johnson should re-
port this conversation to Rodriguez. Johnson further testi-
fied that the next time he saw Rodriguez he related this
conversation to him. Provenzano does not deny this conver-
sat lon.
On February 19 Respondent discharged employee Ma-
nuel Villarreal and on March 3 discharged employees Mar-
tha Barrera and Helena Sanfiord. Respondent admits that
Villarreal and Barrera were discharged because of their
union or protected concerted activities in violation of Sec-
tion 8(a)( I) and (3) of the Act.6
Sanfbrd testified that on March 3 she had the following
conversation with Provenzano:
He asked me to come in his office and he told me
that the union would be contacting me soon either bh
phone or at my home asking me to sign a card for them
and he just wanted to talk to me to find out where I
stood as far as the union was concerned. tHe didn't
want the union in the store. I asked him, "W'ell, what
would happen if they got in?" And he said. "Well, that
won't happen," because he says, "It just won't hap-
pen." liHe says, "Right now you are getting 40 hours a
week. If the, were lo get in, you wouldn't get 40 hours
a week and I would have to cut staff and I pretty well
think that I have gotten rid of all the people that want
the union in the store and I have to know where I
stand with ou. You are a really good worker and I
have plans for you in the future. We want to buy a
store maybe next year and I know you want a raise. If
you will just wait until March a little while we will try
to give you the raise. but right now wejust can't swing
it."
I asked again. "If the- say the union tries and they
don't get in and you find out someone was for the
union. Would you still fire them?"
And he said. "That isn't going to happen." He says.
"The union is not getting in my store. If' I have to, I
will fire the whole damn bunch."
And I said. "Well. I don't think you have anything
to worry about." He told me I could go back to work.
Sanford further testified that with regard to the 40-hour
week statement Provenzano said he would not be able to
afford it. that he would have to reduce hours.
Rodriguez was then working at another supermarket.
In the original complaint which issued on May 18 Sanford's discharge
was alleged as violative of the Act. However, on Ma I Respondent offered
her reinstatemen and backpay. She accepted the hackpay but declined rein-
statement. Her discharge was not alleged in the amended complaint.
840
CARI.TON'S MARKET
Later that day after the end of her shift, according to
Sanford. she had another conversation with Provenzano as
follows:
A. He started off by telling me that I would be bet-
ter off to just collect my unemployment and I asked
him why and he said I didn't fit into his plans anymore
and I asked him because he didn't like the answers I
had given him in the morning when we had talked.
And he said it was just my whole attitude about the
union and the whole matter, that he just couldn't af-
ford my attitude in his store and, you know. I kept
asking him, "Well, what had I done? Was it something
I said?"
I asked him, "You should at least appreciate my
honesty when I told you," you know. I couldn't give
him an answer if I was going to sign for it-sign for the
union or not, and he told me it was just my attitude
and I didn't fit in anymore and he didn't want me
anymore.
Q. Did he say anything else during this conversa-
tion?
A. Yes. but I don't remember it all.
Q. Do you remember any more of it?
A. No.
Provenzano admits that he had two conversations with
Sanford that day. According to him, he called her in the
first time to discuss her attitude toward customers, Davis,
and himself. Hie told her that he did not like the way she
was handling the customers up front, and that the front end
was the crux of their business. He further said that he did
not like the manner in which she was performing her work
on the floor, i.e., not bringing products forward for better
eye appeal?
Sanford said that she did not think he was being fair.
Provenzano denies saying he would fire everyone. Specifi-
cally, when asked if he made this alleged statement he re-
plied, "not to Helene Sanford." When asked if he made
such a statement to anyone he testified, "I don't recall that.
sir." He also denies saying that Sanford would not work a
40-hour week if the Union came in. However, he admits
saying that possibly he would change her to part-time work
if she did not get it together.8 He does not specifically deny
that he asked her where she stood as far as the Union was
concerned. When asked if he made that statement he an-
swered, "No. I take that back. Yes ... I guess I came down
on her pretty heavy.'] She, I guess. threw that out at me."
Provenzano testified in no further detail as to this even
though he was immediately asked what specifically was
said. He was asked how Sanford responded to his criticism.
In reply, he testified only that Sanford said that he was not
being fair. He was then asked what was said after that. He
replied, "Nothing. Just told her I wanted her to shape up."
According to Provenzano, Respondent did not have much money, so he
was adept at making the shelves look full even though they were not. This
was done by bringing the items to the front of the shelf. He had explained to
Sanford the way he wanted it done, but she "did a halfway job."
s Provenzano testified that by "get it together" he meant improve her work
habits. He denies that this referred to the Union in any way
I Provenzano testified that again he was referring to her work habits.
Provenzano testified that he watched Sanford for the re-
mainder of her shift. and she "just moped around" the mar-
ket. He felt that she would not work out under Respon-
dent's style of operation.' 0 As to the discharge interview.
according to Provenzano, he called her into the office. told
her what he had observed of her performance that day, and
told her that she was being discharged because of her atti-
tude as to the performance of her work. He does not specif-
ically deny Sanford's account of this conversation.
Johnson testified that on March 4 when he was in the
office drinking coffee Provenzano said that a couple of girls
had been terminated, and he knew that Johnson would find
out about it during the course of the day. Provenzano said
that he felt the dischargees were causing disruption up in
front because of their union views. He said that he did not
particularly like the disruption up in front, and he had to
get rid of it. Provenzano said that he hoped Johnson did not
have the same views, because if he did he would help him
find a position in another store if Johnson wanted it.
When specifically asked, Johnson testified that Proven-
zano may have said that he would discharge Johnson.
When pressed to be more definite, Johnson testified that he
thinks Provenzano said that he would discharge him, but he
does not really recall. Johnson further testified on cross-
examination by counsel for Respondent that Provenzano
explained that by disruptions up front he meant that the
girls were doing too much talking among themselves and
with the other employees when they should have been
working, and that they were not taking care of customers
properly. He also said that the customers were getting in-
volved in the situtation by asking questions as to what was
going on, and he felt that this was not the customers' busi-
ness. According to Johnson. Provenzano did not explain
what he meant by "the situation" or what the customers'
inquiries were directed toward.
However, Johnson also testified that Provenzano made
the following statements as set forth in his prehearing affi-
davit:
Toward the first of March. Michael called me into
his office and said, "You'll probably hear of it, but we
let two of the girls go, Helene Stanford [sic] wasn't 100
percent behind my operation. I didn't like that, so I let
her go. Martha. I think, has been the instigator of all
my union problems since she came hack to work. so
let her go also. I can't have people who stand in my
way. I want you to know my feelings. If you disagree.
you better quit now while you have the chance. If you
want a union job, Stan. I'll call right now and you can
be working in one of those stores tomorrow. If I hear
anyone here interested in a union, I am going to get rid
of them. No bones about it." Nothing more was said.
B. Conclusions as to the Alleged Unfair Lhbor Practices
I credit Barrera's testimony that Provenzano told her that
he knew the Union was attempting to come into the mar-
ket, that he would do anything to keep it out, and that
°0 According to Provenzano. Respondent's policy was to operate differ-
ently from a chain store They wanted to stress service. to know customers bh
name, and to treat customers with respect.
841
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
employees who were for the Union should not retain their
employment. Barrera impressed me as an honest reliable
witness. The testimonies of other employees that Proven-
zano made similar statements to them tend to corroborate
her testimony. Also, Provenzano carried out this threat
within the next few days by discharging employees because
of their union activities including Rodriguez. the employee
who (with one exception), solicited signatures on all of the
union authorization cards. In this regard, I note that he
does not deny saying that he would do anything to keep the
Union out. He does not deny having such a conversation
with her: he merely testified that he does not recall, and he
admits that he told her that he did not want the Union in
the market.
I also credit Villarreal as to his conversation with Proven-
zano. Again, the threat to discharge prounion employees is
similar to threats made to other employees. Provenzano
does not specifically recall whether he ever made such a
statement to Villarreal. Rather, his denial that he made
such a threat seemed to be based solely on his conclusion
that he must not have said it since it required too much
time to communicate with Villarreal. Villarreal's native lan-
guage is Spanish. However, he testified in English without
an interpreter. His sentence structure is awkward, and he
had some difficulty with the nuances of leading questions,
particularly when his testimony was slightly mischaracter-
ized. However, he clearly understood and responded to
straightforward questions.
I have no difficulty concluding, and I do conclude, that
Provenzano could and did communicate with Villarreal in
the manner Villarreal described. As to the alleged interro-
gation, Respondent contends that it could not be consid-
ered interrogation since Villarreal testified as to a statement
rather than a question. I reject this argument. It was appar-
ent that he used the word "told" in the same manner that
"said" would be used. Even with the awkwardness of his
sentence structure his testimony is easily understood, and
he testified in a straightforward honest manner.
I also credit Crawford as to the conversation she had
with Provenzano. Provenzano does not deny that he inter-
viewed her prior to her employment. He merely testified
that he does not recall the conversation. Although he denies
that he said he would not hire anyone who was prounion,
he does not deny the remainder of the conversation. As to
the second conversation, he denies only that he qtestioned
her regarding her personal beliefs about the Union. and he
admits that he may have told her that he did not want the
Union. Crawford appeared to be an honest sincere witness
who was endeavoring to relate truthfully what was said.
Johnson was still in Respondent's employ at the time of
the hearing. He refused to honor the Board's subpena and
only appeared after he was compelled to do so by an order
of a United States district court. When he did testify it
became obvious that he remained a reluctant witness. In
the face of his convenient failure to recall portions of sev-
eral conversations, his account of these conversations con-
tained in his prehearing affidavit dated March 22, 1978, was
read into the record.
Provenzano does not deny Johnson's testimony at the
hearing herein, nor does he deny the statements in John-
son's prehearing affidavit. In these circumstances, I credit
Johnson, and where Johnson's testimony at the hearing
conflicts with the statements contained in his prehearing
affidavit, I credit the account of the conversations set forth
in the affidavit and find that a composite of his affidavit and
his credited testimony more accurately reflects what was
said. See Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978).
I also credit Sanford as to her conversations with Proven-
zano. She impressed me as an honest reliable witness. Pro-
venzano does not specifically deny much of the alleged con-
versation, and he was somewhat evasive regarding portions
of the conversation.
Accordingly, I find that Respondent, through Proven-
zano, in violation of Section 8(a)(1 ) of the Act:
I. Coercively interrogated Barrera as to her union activi-
ties and sympathies around the end of November.
2. Coercively interrogated Villarreal as to his union ac-
tivities and sympathies in mid-January.
3. Coercively interrogated Crawford as to her union
sympathies during her preemployment interview and later
in February.
4. Coercively interrogated Sanford as to her union activi-
ties and sympathies on March 3.
5. In January promised and granted Johnson a substan-
tial wage increase in order to induce hint to withdraw or
withhold his support from the Union.
6. Promised Sanford a wage increase on March 3 in or-
der to induce her to withdraw or withhold her support from
the Union.
7. Created an unlawful impression of surveillance by tell-
ing Johnson that he had his leaks up front and sooner or
later he would find out who was doing what and by telling
Johnson. "You know, that the Labor Board claims there is
no way I can find out how an employee votes but I can.
There are ways."
8. Threatened to cause the discharge of Rodriguez and
to cause the discharge of Johnson from any future employ-
ment because of his union activities.
9. Told Crawford that he was trying to keep the Union
out and would not hire anyone who was prounion.
10. Threatened to reduce Sanford's hours if its employ-
ees selected the Union as their collective-bargaining repre-
sentative.
II. In separate conversations with Barrera around the
end of November: with Villarreal in mid-January: with
Johnson in January, February, and March: and with San-
ford in March threatened to discharge employees because
of their union activities and/or sympathies.
12. Told Sanford on March 3 that Respondent had got-
ten rid of most of the prounion employees.
13. Told Johnson in January that there was no way that
Respondent would go union and told Barrera around the
end of November that he would do anything to keep the
Union out.
14. Told Johnson in January that he did not believe
union organization should be discussed in the market.
15. Told Johnson in January that he did not want any
prounion employees in the market.
The parties stipulate and I find that Respondent dis-
charged employees Arthur Rodriguez, William Rodriguez,
and Mardelle Durazo on December 3, 1977: employee
Donna Guerra on December 7. 1977; employee Manuel
842
(ARI O()N'S MRK I
Villarreal on ehruar 19. 1978: and emplo\ ee Martha
Barrera on March 3. 1978. because of their 111nion or pro-
tected concerted activities in violation of Section 8(a)(I)
and (3) of the Act.
(C. The A4/prol/riatlc.s o,/ a Bartacjiig Order
The parties agree that at least 17 employees were in the
appropriate unit at the time the complaint alleges that ma-
jority was achieved. The placement of three other persons
in the unit is in dispute-- Donald Conro3, Naushad Kurli.
and Angus Garrison. Davis testified that Conroy was hired
by Tajico to straighten out the pricing problems in the mar-
ket. He was to survey the price on each product, change
prices, and update the pricing system as necessary. C'onroy
is a retired executive in the industry" who does jobs for
small markets. He goes in, analyzes the operation, and then
performs needed services such as pricing, setting ads. etc.
He is considered an expert in the grocery business with
considerable background in the industry. Davis admits that
even though under the consultant agreement he and Pro-
venzano had full control over employees, they had no con-
trol over Conroy who reported directly to -labhib. TIhey also
had no control over prices, which were determined b, (on-
roy. 2
Conroy did not appear on the payroll. The hours he
worked in the market varied. Kurji testified that (Conroy
was in the market at least once a week. and when the need
arose he would come in fr a few minutes on other days. He
was paid the same amount whether he came in once or
more than once a week.
Kurji testified that Habib told him that ('onro> had been
involved with Thriftmart. and that he was a consultant to
various stores as to pricing, ordering. etc. According to
Kurji, Habib also told him that Conro) was hired to check
on the pricing in the market, and that he would be retained
only until he got the prices to a desirable level. Kurji also
testified that it was his understanding that Conroy was per-
forming services at other stores at the same time that he was
performing services at the market.
In all the circumstances, I find that Conroy was retained
as a consultant for the limited purpose of bringing the pric-
ing up to a desirable level at which time his services would
cease, and that he had no community of interest with unit
employees. Accordingly. I find that he should be excluded
from the unit.
Naushad Kurji is the nephew of the president of Tajico.
who provided Kurji with money in addition to his salary if
he needed it.'" He was paid a salary and did not receive
overtime pay as did other employees. He worked primarily
as bookkeeper, but relieved in the courtesy booth for lunch
and breaks or if business was heavy. He also assisted with
bagging and stocking when business was heavy. This did
not occur every day. Approximately 2 or 3 weeks prior to
A Davis testified that he thinks Conroy was president or vice president of
Thriftmart.
12 Davis does not know whether Conroy was required to consult with
Habib. Habib told them that Conroy had autonomy to continue with pric-
ing, and that there would be no overlap between his responsibilities and
those of Davis and Provenzano.
t~ Kurji testified that these occasions were rare.
November 29 the malnager of the market was transferred to
another Iicilit. [)uring this interval, until Davis and Pro-
venlzailCo assumed the management of thet market. Kurji
managed the market with some assistance from the assist-
antill manger of' the liquor department.
Prior to Novemnber 29 he reported to Habib oni an almost
daily basis as to sales. numher of customers, customer com-
plaints. or any other problems. After November 29 he made
the same type of reports to Habib but less requentl . prob-
abl twice a week. He served as liaison between Habhihb and
D)avis and Proenzano. According to Davis. during the con-
sulting period they were required to discuss an) changes
with Tajico before implementing them. Initially these dis-
cussions were with Kurti.
Kurji sat in with )a is and Provenzano on some of' the
discharge interviews. According to him, he neither partici-
pated in the decision to discharge nor actively participated
in the iiteri e. iowever. I)avis testified that. alter IHabib
instructed themin to reduce the payroll. he and Pros enzanol
got together with Kurji. and based on talking to Kurji
about his experience in the market and on their ow n obser-
vation and experiences thes selected certain nonproductive
employees lor discharge.
I)avis further testified that they had an understaniding
with lajico that the! W ere to train Kurji as to all unctions
of ioperatting a market. It sas further understood that Kurji
woulLd not remlain at the market indefinitely but only until
he was placed in another position swith la ico. Kurpi ceaised
vorking at the market in March. In these circumstances I
find that Kurjli enjoyled a special status not shared h unit
employees. an d that his interests are more closels alignied
w ith management than ks ith unit emploees. Accordingl .
sill exclude himi 1.o1i tlie union. See (;roh .. ollilS' Iis-
ures ( ',. Ir ., 224 NI.RB 842 (1976): I tccrhauc (or-
pain. S/il D.psiailh' Dli iowin. 1 1 NL RB 10)12 1974).
The complaint alleges that the appropriate unit is:
All emplo,ees emplo, ed hb Respondent at its retail
grocerN located at 11944 L.ast Ramona Boulevard. l
Monte, California: excluding all meat department em-
ployees. otlice clerical employees, professional emplo 5:-
ees. guards, and supervisors as defined in the Act.
This is the unit sought by the Union. and no labor organi-
zation seeks a broader unit. Respondent contends that the
appropriate unit should include office clerical employees
and meat department employees. On November 29, the
date the Union allegedly achieved majority. there were no
office clerical employees. Davis testified that Angus Garri-
son was the only employee in the meat department at that
time.
The Board has usualls found appropriate a unit of gro-
cery employees excluding meat department personnel. This
is in recognition of the general trend in the retail ood in-
dustry whereby grocery employees and meat department
employees are represented in separate units based upon the
different skills, experience, functions, work locations. and
conditions of employment of the two employee groups.
Mock Road Super Duper, 1.. 156 NLRB 983 (1966); R -'
Marketr. Inc., 190 NLRB 292 (1971): Buehler's Food Mar-
kets. Incorpirated. 232 NLRB 785 (1977).
843
DIt)('ISIONS ()O NA IOI()NA I. IAB()R RIA IIONS O()ARI)
Here the record establishes that the bargaining pattern in
the Southern ('alifrnia area is for separate units. There is
no real interchange between the meat and grocery employ-
ees. Garrison may have. on occasion, placed bacon or hams
in the delicatessen case. However, this was essentially the
job of Mardelle Durazo, who was responsible for the delica-
tessen case.
In the circumstances, including the absence of any bar-
gaining history in broader units I find that the common
supervision of the meat and grocery department is not a
sufficient reason to depart from the Board's normal practice
of finding appropriate a unit of grocery employees, exclud-
ing meat department employees and office clerical employ-
ees. Accordingly, I find that the appropriate unit is the one
alleged in the amended complaint.
Respondent attacks the validity of some of the authoriza-
tion cards on the grounds, in some instances, that the em-
ployees were told that the cards would be used for the pur-
pose of obtaining an election 4 and in other instances
because the card was authenticated by William Rodriguez.
the solicitor. Respondent concedes that the cards signed by
Sanford and Barrera are valid.
Johnson's testimony was contradictory to what he was
told by the solicitor regarding the purpose of the card. As
indicated above, I do not credit Johnson where his testi-
mony at the hearing conflicts with his prehearing alfidavit.
In his affidavit he states:
When I signed the card. I understood it was to autho-
rize the Union to represent Carlton's employees for
negotiations for better working conditions, more bene-
fits. I was aware of this because I had been a member
of the Union for 16 years.
When questioned as to whether that particular portion of
the affidavit was phrased in his words or the Board agent's
words, Johnson testified that the phrasing was his. Accord-
ingly. I find that his card is valid for purposes of determin-
ing majority status.
Respondent argues that the authorization cards signed by
Jessie Diaz. Terry Diaz, Esther Garcia. Donna Guerra.
Linda McClurg, Arthur Rodriguez. and Oscar Villarreal
are invalid for purposes of determining majority because
they were authenticated by the solicitor. William Rodri-
guez, whose testimony, Respondent contends, should not be
credited. Rodriguez testified that he solicited signatures on
II cards during a I-day period, November 29. so that he
had a more or less set speech that he used except when he
spoke to Oscar Villarreal. Villarreal has difficulty reading
English. so he had to explain to him what the card stated.
He denies that he mentioned an election on any of these
occasions.
Respondent argues that Rodriguez' testimony is contra-
dicted by the testimonies of Durazo and Manuel Villarreal.
1 The Board and the courts have long held that if the card itself is unam-
biguous in its authorization of the Union to represent the employees for
collective-bargaining purposes it will be counted unless it is proved that the
employee was told that the card was to be used solely for the purpose of
obtaining an election. See N.L.R.B. v. Gissel Packing Co., Inc., et al, 395
U.S. 575 (1969): Cumberland Shoe Corporation, 144 NLRB 1268 (1963): Levi
Strauss & Co., 172 NLRB 732 (1968).
which cast doubt upon the veracity of Rodriguez' testimony
as to all I I of these conversations. I do not agree. Although
Villarreal's testimony was somewhat contradictory in this
regard. on cross-examination he kept returning to his initial
testimony that Rodriguez asked him to sign the card so that
the Union could represent them. He finally testified:
Q. Did Willie [Rodriguezl say how that was going to
come about, the union election'? Did he say that to get
the Union to represent you, you would have an elec-
tion following those cards?
A. Well no. he don't told me that. lie only told me
sign the card, give it back to him so the union represent
me. that is all.
He then testified that he read the card before he signed it
and understood that by signing the card he was authorizing
the Union to represent him so the employees "would have
more benefits. more security in the job and everything."
[)urazo first testified that Rodriguez said that the card
was just to get an election in the market to have the Uinion
represent them. However, when asked to relate as nearly as
she could recall exactly what was said, she admitted that
she does not really recall that Rodriguez said anything re-
garding an election. Rather, she assumed that there would
be an election because of her knowledge of what occurred
during a union organizational campaign the previous ear.
Sanltord and Barrera both testified that Rodriguez did not
mention an election when he talked to them. In these cir-
cumstances I find that Rodriguez' credibility is not im-
pugned by the testimonies of Villarreal and Durazo.
Respondent further argues that Rodriguez' testimnon)
should not be credited because his answers were "flip." and
he admitted that "he didn't mean anything by his testi-
mony." Specifically. Respondent is referring to Rodriguez
testimony that in explaining the authorization card to Oscar
Villarreal he told him. "()scar. if you want to be repre-
sented by the U:nion. sign this card. In order to get like a
bargaining order we have to have a m;l jority of signatures."
lie then testified:
Q. A bargaining order?
A. Yes. You know, to get a majority.
Q. Well, what did you say. "bargaining order" or
"majority" or did you say both?
A. I can't remember. I can't recall the exact words.
Respondent's credibility argument is based on Rodriguez
testimony in response to close questioning regarding the use
of the term "bargaining order." Rodriguez admitted that he
did not recall i he used those words, and he testified that to
him "bargaining order" meant to deal with someone, to
come to an agreement. He further said that he used the
term because "it was the first thing that come to my mind.
I didn't say it because it meant something. That was the
first thing that come to my mind."
Respondent argues that this indicates a disregard for tes-
tifying truthfully. I do not agree. It is apparent from the
totality of his testimony that Rodriguez was referring only
to his use of the term "bargaining order" in his testimony.
He did not recall exactly what words he used, and he se-
lected this term fr no particular reason other than the be-
lief that the term conveyed the substance of what he said. I
do not think that this is sufficient to destroy his credibility.
844
('ARI.I()ON'S MARKKT
in this regard I note that Rodriguez worked the night he-
fior e testified anti proceeded to the hearing without sleep.
His testimony was given in the afternoon. lie was obviously
tired and rather frustrated at the insistence that he articu-
late some reason for the use of' those particular words.
In these circumstances I find that Rodriguez. in soliciting
signatures on the authorization cards, said nothing which
serve to refute the clear meaning of the authorization cards
as stated thereon. Clearly, he did not tell the employees that
the sole purpose of the cards was to obtain an election.
Accordingly. I find that the authorization cards of Oscar
Villarreal, Manuel Villarreal, Mardelle Durazo. William
Rodriguez. Jesie Diaz, Terry Diaz. Esther (iarcia. Donna
Guerra, Linda McClurg, and Arthur Rodriguez are valid
for purposes of establishing the Ulnion's majority status.
Since. on November 29. 13 of the 17 unit employees signed
cards authorizing the Union as their collectie-bargaining
representative. I further find that commencing on Novem-
her 29 the Union was the majority representative of the
employees in the unit found appropriate herein.
The final question is whether, as alleged in the complaint.
a bargaining order is an appropriate remedy herein. Re-
spondent argues that a bargaining order is not appropriate
since most of' the alleged misconduct occurred prior to
January 1. 1978. when the market was owned by Tajico. It
is well settled that a successor" with knowledge of the un-
fair labor practices of its predecessor is obligated to remedy
such unfair labor practices. See Peria I in'l (orporalrio,
fDad Pla.stic. (. ulnd iintd Staes Pi 1ie antd kloulidn' (CS7-
paD'. 164 N LRB 968 (1967): ,4m -Del-( o, Inc. and ('omplon
Service Co.. e at.. 234 NI.RB 1040 (1978): Eotl Behlken ('or-
poration. 239 NI.RB 776 (1978).
Respondent apparently does not question this principle
as to general remedies, but rather argues that it should not
apply here as to a bargaining order. I find no merit in this
argument. In the first place, substantial unfair labor prac-
tices were committed after January I two discharges.
most of the threats, interrogation, creating the impression
of surveillance, and the promise and grant of benefits. Also.
the unfair labor practices were committed by Davis and
Provenzano. and the post-January I conduct was a continu-
ation of a campaign to dissipate the Urnion's majority which
commenced with the pre-January I conduct. Further, con-
sidering the timing, it is obvious that this conduct was in-
tended to benefit Respondent.
I do not credit Davis' and Provenzano's testimonies to
the effect that their conduct in December was motivated
principally by a desire to benefit Tajico. Escrow had
opened, and they expected to take possession on January I.
It is apparent that they had to effect an increase in Decem-
ber profits because the consulting agreement was in lieu of
a portion of financing. Other than that, it is clear that any
successful changes could only inure to the benefit of Re-
spondent. Certainly, any dissipation of the Union's major-
ity would only benefit Respondent.
' It is clearly established by the record that Respondent is a successor
employer. It continued to operate the same business, under the same name,
at the same location. with the same equipment and inventory. and with the
same employees.
Respondent also argues that a hargaining lorder is riot
appropriate herein because: (I) there Is little likelihllood of a
recurrence of misconduct since all misconduct ceased onlce
Respondent consulted an attorney: (2) there had been no
demand for recognition at the time of the unl;lwtul co1n-
duct; and (3) it is ery likeln that an! effect of the unlair
labor practice has been dissipated. a fair election is possible
since only 9 of the 37 current employees were employed at
the market at the time of the unlawful conduct. inllt since,
b making whole the six discriminatees and posting a notice
pertaining thereto. Respondent has remedied the most sig-
nificant portion of the unlawful conduct.
I find no merit in these arguments. Ans change in Re-
spondent's conduct occurred during the pendenc, of the
charge and subsequent proceeding herein and, one can rea-
sonably infer, solelI because thereof. Furthermore. as Pro-
venzano stated to Barrera. he was of the opinion that he
had gotten rid of the union adherents. Cessation of mliscon-
duct under such circumstances can hardly he conlsidered an
indication that there is little likelihood of' a recurrence ol
misconduct.
As to the absence of a demand for recognition. It is well
settled that a (;i.sel bargaining order is not conditional
upon such a request. See Beasl/ei Enlrg. . c. It ~i, Pac ar
Run (Coa ( mpati. Ohio Ditiiiosn 1. 22 Nl RB 93
( 1977): Janic ltna( o 1/hta Sklilhn 7ralnport 228 NIl R
352 (1977): Bantlag, horporatim. 228 NRB 10()45 ( 1977.
enfd. 583 F.2d 765 (5th ('ir. 1978).
I also reject the argument that employee turnover alone
mitigates against the appropriateness of' a bargaining order.
Such a finding would. bh reason of the normal delay in the
hearing and decision process. unjustly insure to Respondent
the sought after fruits of its unfair labor practices.
Finally. I reject Respondent's argument that an! effect of
the unfair labor practices has been dissipated. ind a tflr
election is now possible. The extent of Respondent's unfair
labor practices are so pervasive that traditional remedies
will not erase the effects thereof. Provenzano and Davis
deliberately embarked upon a course of action designed to
(and which did). undermine the Union's majorit. Fhe lead-
ing union adherent was discharged along with 5, probabhl
6, of the 13 card signers in a unit of only 17. Nine of' the
current employees were employed at the time of the unfair
labor practices. The nature of Respondent's conduct dis-
charges, threats of discharges, threat to cause discharge
from future employment--is the type of conduct which em-
ployees are apt to relate to other employees which is rather
difficult, probably impossible. to forget or discount. Nor are
employees likely to miss the point that backpay and offers
of reinstatement made some 9 to II months after the dis-
charges do not necessarily compensate for the financial
hardship and emotional and mental anguish apt to be expe-
rienced during an interim period of unemployment. Thus.
such conduct would have a longlasting. if not permanent.
effect on the employees' freedom of choice in selecting or
rejecting a bargaining representative, and it is unlikely. if
not impossible, that the Board's traditional remedies would
i6 Only five of these nine were employed at the time the in on achieved
majority status, and only three employees signed union autihrizallon cards
X4>
1)1 (ISItt)NS NA I)N \ I B(R R A IO)NS IBO()ARI)
(l1islil Ill I (,tL' C L t al l.O) hltcrc shiT.h RcspLndctl h1Ils re-
a Itel.
/\s to tI ihts (u Ctirttit tlpt)loc,. istliatce (i' a' bar-
ginming order ssill dtepric them of ,inothinlg xhich te
outld not ;llt;ild\ I;c been deprised it Rspondent had
not engaged in condutC to dissipalte the union nia jority Ihe
decision then ;Is now ias to their collectix e-hblainineg gent
would have been mlade b'h sonlclone else. and any attemlpt to
disavow such representation swould hve to be made tl a ;ill
appropriate time.
In the circunislance herein I find that Respondent has
engaged in conduct which has dissipated the union majorits
and is of' such a nature as to preclude the holding otf a lair
election. Accordingl I lind that the unf'ir labor practices
committed by Respondent require a remedial hargaining
order.
('ON( I SNS (ii I As
1. Respondent is In1 eCmpliyeC elnglged in Comnl nerce
within the ineaning of' Section 2(2). (6), aind (7) of the Act.
2. 'Ihe t nion is a labor organization within the necaning
of' Section 2(5) of the Act.
3. All employees employed by Respondent at its retail
grocerN located at 11944 Iast Ranlona Boulevard, 11I
Monte (California. excluding all meat dcpartilent employ-
ees office clerical emplo yees. prolessional enmployees,
guards, and supervisors as detiined in the Acl constitute a
unit appropriate or the purposes of collective bargaining
within the meaning of' Section 9(h) of the Act.
4. Since Nosecmber 29, 1977. the L nion has been desig-
nated as tile exclusise bargaining represenlative of' the em-
ployees in tlie appropriate unit described above.
5. B discharging employees Arthur Rodriguez Mr-
delle DuraLo. and William Rodriguez on )ecember 3.
1977: employee Donna (iuerra on December 7 1977: em-
plovee Manuel Villarreal on Fehbruary 19, 1978: and em-
ployee Martha Barrera on March 3, 1978. Respondent has
committed unfair labor practices in iolation of' Section
8(a)(I ) and (3) of the Act.
6. B coercively interrogating employees as to their
union activities and/or sympathies: by promising and
granting employees uage increases in order to induce them
to withdraw or withhold their support from the Union: by
creating an unlawful impression of surveillance of the union
activities of its employees: by threatening to discharge em-
ployees because to their union activities and/or sympathies:
by threatening to cause the discharge of l'ormer employees
from future employment because of their union activities
and/or sympathies: by threatening to reduce employees'
working hours if they select the Union as their collective-
bargaining representative: and by telling employees that it
would not go union, it had gotten rid of most of the pro-
union employees, that it would do anything to keep the
Union out, that it did not want any prounion employees in
the market. and that it did not believe union organization
should be discussed in the market Respondent has engaged
in unfair labor practices in violation of' Section 8(a( I) of
the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Ii i Ri Ni I)\I ?
[laving lound thit Respondent h1is egaged in certain
unfair labor practices I shall recommend that Respondent
ceaise and desist therefronl and take certa;in affirmative ac-
tion in order to eectuate the policies of' the Act. Since I
h;ave tound that Respondent's unfair labor practices have
undermined the Union's mLiaority and rendered doubtfuli or
impossible the holding of a free and fair election I recom-
miend that Respondent be ordered to recognize and bargain
\with the tnin las the exclusive bargaining representative of
its emploNees in the unit tound appropriate and. upon re-
quest. embody in ai signed agreement any understanding
reached. N. IR.B. v. (i..vcl Ptk,,ig ( ompoaI Inc., 395
l.S. 575.
UIpon the basis of the foregoing findings of' act conclu-
sions of law, the entire record in this proceeding, and pursu-
iant to Section 10(c) o thile National I.abor Relations Act, as
antended, I hereby recommend the follouing:
()RDI)IR'"
I'he Respondent. Steven Davis and Michael Provenzano
d/b/a (arlton's Market, FI Monte (ali'ornia. its officers.
agents. sccessors, and assigns. shall:
. ('ease and desist frnom:
(a) ('oercielN interrogating employees as to their union
activities and/or symlpathies.
(h) Promisinig and granting employees wage increases in
order to inluce them to w ithdraw or withhold their support
from the Union.
(c) ('reating an unlawful implessioln Of surveillance of
the union actliities ot' its employecs.
id) ''hreatening to discharge employ ees because of their
union activities and/uor smnpathies.
(e) T'hreatening to cause the discharge of former emplo-
ces from any subsequent emnplo ment they have obtained
or mayl obtain becaluse of their union activities and/or sym-
pathies.
(f) I'hrealtening to reduce employees' orking hours it'
they select the Illnion ais their collective-bargaining repre-
sentalive.
(g) 'Felling employees that it will not go union.
(h) Felling employees that it has gotten rid of most of the
prounion employees.
(if Telling employees that it will do anything to keep the
Union out.
(j) Telling employees that it does not want any prounion
employees in the market.
(k) Telling employees that it does not believe union or-
ganization should be discussed in the market.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
7 As stipulated bh the parties. I shall recommend no remed) ftr the viola-
tions ol Sec 8(a}(3) other than the remedial bargaining order.
1i In the event no exceptions are filed as provided in Sec. 102.46 ol the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations. be adopted b the Board and become its
findings. conclusions and Order, and all objections thereto shall be deemed
waived for all purposes.
('ARLTON'S MARKI'4
(a) Upon request. recognize and bargain collectively
with Retail Clerks Union. Local 1428. Retail Clerks Inter-
national Union. AFL-CIO. as the exclusive bargaining rep-
resentative of the employees in the following appropriate
unit and, upon request, embody in a signed agreement any
understanding reached.
All employees employed by Respondent at its retail
grocery located at 11944 East Ramona Boulevard. El
Monte, California; excluding all meat department em-
ployees, office clerical employees, professional employ-
ees, guards. and supervisors as defined in the Act, con-
stitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
(b) Post at its place of business in El Monte. California.
copies of the attached notice marked "Appendix."' 9 Copies
of said notice, on forms provided by the Regional Director
for Region 21, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it bfor 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
19 In the event that this Order is enforced b) a Judgment o a linilel
States court of appeals. the words in the notice reading *Posted h Order o
the National Labor Relations Board" shall read "Posted Pursuant Io a Judg-
ment of the United States Court of Appeals Enforcing an Order ot the Na-
tional Labor Relations Board"
APPENDIX
No I( i To EMPIOYEilS
POSIED BY ORDI)R OF rIlt
NAIIONAL LABOR REI.AII(Ns BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence. the National Labor Relations Board has found
that we violated the National Labor Relations Act. and has
ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective hargailning or other
mutual aid or protection
lo refrain from any or all these things except to
the extent that membership in a union ma, be re-
quired pursuant to a 3lawful union-securitx clause.
Wri \\l \(1I do anthing that interferes with. re-
strains, or coerces our employees with respect to these
rights. More specificall .
WVi 55 il N)ot coercisvel b interrogate oou as to our
union activities and/or s mpathies.
Wi'- \it i N)I promise andor grant vsage increases
in order to induce ou to withdraw or withhold ',our
suipport from the [Union.
Wi- sIn i sINt create the impression that %xe are en-
gaging in surveillance )of your union activities.
Wt .i ii Not, threaten to discharge you because of
your union activities and, or s mpathies.
W- w' IIt Not threaten to cause the discharge oft' our
fo)rmer employ ees from subsequent employment which
they hae obtained. or maN obtain. because of their
union actis ities and /or s mpathies.
W \ll i NOt threaten to reduce our vworking hotrs
if Sou select the Ulnion as sour collecti,e-hargainlng
representatis e.
Wi s's iiI sNoI tell You that we ' will not go union.
Wl \ i11 I NI tell you that we ha,e gotten rid of
most otf our protunion emploeCs.
Wi 'ssii tiol tell you that we will do anxthing to
keep the union out.
Wi W II N)I tell xou that we do not anMt tll pro-
union emploxees in the Market.
W \\'s ii tl tell otl that we do not hltee iunion
organllatiolt should he discussed in the Miarket.
'Wi \ lii N s)l ill jilts other manner interlere with.
restrain or coerce ,Nou ill the eercise of our rights to
engage ini orgalnizational ctivits or colleclie h;argail-
ing or to retrain trom such actisities.
WI \' Ii. Uip itl request. recognize and bargain with
Retail ('lerks t nion Local 1428. Retail Clerks Inter-
national Union, F'l. ('10. as the exclusive bargaining
representative off our employees in the tollowing ap-
propriase bargaining utnit and embodx in a signed
agreement ans understandiing reached:
All eplosees emplosed bh us at our retail grocer-
located at 11944 East Ramona Boulesard. El
Monte. ('alifornia. excluding all meat department
employees, office clerical employees. professional
employees. guards. and supervisors as defined in the
Act.
SITVEN DAVIS ANI) MI( IIA PRO() INZAN) I)i/B
CARt ()ON'S MARKIAI
847