Farm Boy Food Mart

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 409 (N.L.R.B. 1986)

FARM BOY FOOD, MART
Larry Chapman , a sole proprietor , d/b/a Farm Boy
Food Mart and United Food and Commercial
Workers, District Union Local 227, AFL-CIO-
CLC. Case 9-CA-22016
31 January 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 23 October 1985 Administrative Law Judge
Thomas D. Johnston issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of ' the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Larry Chap-
man, a sole proprietor, d/b/a Farm Boy Food
Mart, Louisville, Kentucky, his officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Mark G. Mehas, Esq. and James E. Hornier, Esq., for the
General Counsel.
Bernard B. Ballance, Esq., of Louisville, Kentucky, for
the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS D . JOHNSTON, Administrative Law Judge.
This case was heard at Louisville, Kentucky, on 13
August 19851 pursuant to a charge filed by United Food
and Commercial Workers, District Union Local 227,
AFL-CIO-CLC (the Union) on 9 May and a complaint
issued on 2 July.
The complaint as amended at the hearing alleges
Larry Chapman, a sole proprietor ," d/b/a Farm Boy
Food Mart (the Respondent) violated Section 8(a)(1) of
the National Labor Relations Act, by unlawfully interro-
' All dates referred to are in 1985 unless otherwise stated.
409
gating its employees regarding their union membership,
activities, and sympathies and those of other employees;
solicited and promised to resolve employees' complaints
about working conditions; threatened to close Respond-
ent's store if the employees selected the Union as their
collective-bargaining representative; and through the cir-
culation of a written notice asked employees to divulge
to Respondent the union membership, sympathies, and
desires of employees who solicited union cards in a
manner offensive to the solicited employees. The amend-
ed complaint alleges the Respondent violated Section
8(a)(1) and (3) of the Act by imposing onerous terms and
conditions of employment on employee Gregory Murray
(by reducing his working hours because he joined, sup-
ported, or assisted the Union) to discourage employees
from engaging in such activities.
The Respondent in its answer served on 9 July denies
having violated the Act as alleged.
The issues involved are whether the Respondent vio-
lated Section 8(a)(1) and (3) of the Act, as alleged, by
unlawfully interrogating, soliciting, promising, threaten-
ing, or circulating a written notice concerning employ-
ees' union memberships and activities and discriminatori-
ly reduced Murray's work hours because of the Union.
On the entire record in this case and from my observa-
tions of the witnesses and after due consideration of the
briefs filed by the Respondent and the General Counsel,2
I make the followings
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a sole proprietorship owned by Larry
Chapman, doing business as and trading under the name
of Farm Boy Food Mart, has its office and place of busi-
ness located at Louisville, Kentucky, where it is engaged
in the business of the retail sale of food and related prod-
ucts. During the 12-month period preceding 2 July, a
representative period, Respondent in the course of its op-
erations derived gross revenues in excess of $500,000 and
purchased and received products, goods, and materials,
valued in excess of $50,000, at its Louisville, Kentucky
store directly from points located outside the State of
Kentucky.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers, District Union
Local 227, AFL-CIO-CLC is a labor organization
within the meaning of Section 2(5) of the Act.
2 The Union did not submit a brief.
a Unless otherwise indicated, the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
278 NLRB No. 58
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. Background and the Reduction of Gregory
Murray's Work Hours
The Respondent operates a grocery store and laundro-
mat at Louisville, Kentucky. It is open 7 days a week
and employs approximately 25 full-time and part-time
employees, most of whom work in the grocery store.
Larry Chapman is the sole owner, Other supervisory
personnel include Manager Clayton Farris4 and Assistant
Night Manager Ralph Randle.
Gregory Murray has been employed by the Respond-
ent since 28 February 1983. He works as a cashier in the
grocery store. Until 21 April he was a full-time employ-
ee and worked a 5-day, 40-hour week schedule.
Murray is also a member of the United States Army
Reserves and normally attends reserve drills one week-
end a month. However, from March through July
Murray was required to attend an extra weekend drill
each month to attend school to complete a basic non-
commissioned officers' course to receive his promotion.
On 11 March, on Murray presenting Manager Farris
with a letter from his sergeant explaining what the extra
drills were for and suggesting Farris could call the ser-
geant if he had any questions, Farris informed Murray he
was not required to give him more than one weekend off
a month. That same day and on several occasions after-
wards, Murray discussed his reserve training with his im-
mediate supervisor, Assistant Night Manager Randle,
who informed him not to worry for he would take care
of it.
During the workweek beginning 15 April Manager
Farris asked Murray whether a note on the calendar em-
ployees used to request time off was for Murray's regular
reserve drill or for the extra drill to attend school. On
informing Farris it was to attend school, Farris informed
Murray he did not have to give him time off for school.
Murray then requested Farris to call his sergeant and ex-
plain it to him and work something out. However, Farris
said he did not have to do anything and added, "Wait
until you see your schedule next week."
The next week, effective 21 April, Murray's work
hours were reduced to 2 days a week for a total of 16
hours. The schedule was changed to 3 days a week for a
total of 24 hours, beginning with the workweek ending
12 May, and this schedule was still in effect at the time
the hearing was held in August. The increase from 2 to 3
days a week occurred after Murray applied for unem-
ployment compensation on 3 May. This increase made
Murray ineligible to draw partial unemployment com-
pensation which Owner Chapman explained was the pur-
pose.
On 21 April Murray questioned Assistant Night Man-
ager Randle about his reduced work hours and com-
plained the reduction was due to his military duty.5
4 Both Owner Chapman and Manager Farris are supervisors under the
Act.
s During 1983 on a few occasions Murray's work hours were reduced
4 to 8 hours the week immediately preceding his monthly weekend re-
serve drill and restored to the normal 40 hours the following week.
These incidents ceased after Murray complained to Manager Farris.
Randle, however, informed Murray he would have to
talk to Manager Farris who, in turn, referred him to
Owner Chapman.
Murray testified on three different occasions he at-
tempted to learn from Owner Chapman why his work
hours were reduced. He first stated on two of those oc-
casions Chapman said he did not have anything to say to
Murray and on the last occasion Chapman just walked
away from Murray. However, Murray later testified
each time he attempted to talk to Chapman about his
work hours being reduced, Chapman said he was not
going to let Murray dress them down and that Murray
would have to say everything to Manager Farris. When-
ever Murray would ask Farris the reason, Farris' re-
sponse was he would let Murray know when he was
ready and wanted Chapman present.
Although Owner Chapman denied Murray ever asked
him why his work hours were reduced, I discredit his
denial. It is undisputed Murray unsuccessfully attempted
to learn the reason from both Manager Farris and Assist-
ant Night Manager Randle and was referred to Owner
Chapman and his asking Chapman is consistent with
these inquiries.
Murray was never informed by the Respondent prior
to the hearing the reason his work hours were reduced.
On 21 May Murray filed a complaint against the Re-
spondent and Owner Chapman alleging the reduction in
his work hours was due to his military reserve duties.
This complaint was investigated by the Veterans Admin-
istration.
On 24 April Murray went to the union hall.6 While
there, he signed a union authorization card and obtained
union authorization cards to get other employees at the
Respondent to sign. Murray distributed cards to Re-
spondent's employees as they left the store after work.
Between 24 and 26 April Murray got six other employ-
ees to sign cards. On 26 April, while Murray was at-
tempting to get two woman employees to sign cards,
Manager Farris stuck his head out of the back door of
the store and commented both of the woman, who were
holding the cards in their hands, were married.
Under Respondent's policies, employees on occasion
are requested to voluntarily take polygraph tests. About
April it was decided by Respondent's officials, rather
than take the quarterly inventory, to use the funds in-
stead to give employees a polygraph test.
Lonnie Leech, the owner of A & B Polygraph Profes-
sionals, then administered polygraph tests to Respond-
ent's employees. His report of the polygraph test given
to Murray dated 16 April which was furnished to Owner
Chapman contains in pertinent part the following state-
ments:
He states that Larry the owner comes to the store
quite often and that when he is on the premises ev-
erybody is upset and that Larry is continuously
grabbing people and threatening them. He states
that Larry is very intimidating when he is on the
premises.
6 Prior to this time there is no evidence of any union activity regarding
Respondent's employees.
FARM BOY FOOD MART 411
This employee states that it is gotten so bad that
when Larry leaves the premises of the store the first
person that sees that he has left, grabs the micro-
phone and puts it on the PA system that Larry has
left the premises , and then everybody can relax and
go back to work.
Leech testified Murray made these statements, al-
though not verbatim, to him during the course of his
interviewing Murray after the polygraph examination
about some deceptions he noticed on some of the an-
swers to questions he had asked Murray during the ex-
amination and Murray 's explanations about his answers.
Murray acknowledged making the statements to Leech
about Larry being intimidating and the PA system when
Leech questioned him about his being nervous when he
answered certain questions on the polygraph examina-
tion. Although Murray did not specifically deny telling
Leech that Chapman grabbed and threatened employees,
he explained at the hearing what he believed he said was
Chapman would sometimes grab employees by the arm
and pull them into the backroom and give them what
was considered a chewing out.
To the extent the testimony of Leech and Murray
differ concerning what was said during the interview, I
credit Leech who was, more positive in his testimony
than Murray.
Murray testified about various incidents to show Chap-
man was intimidating . Every time Owner Chapman left
the store he or other employees would get on the PA
system and announce Chapman had left. He observed
Chapman get in heated arguments with customers. One
example occurred when a customer tried to return some
spoiled cheese. Chapman wanted to keep the cheese for
the health department to look at while the customer pre-
ferred to keep possession of the cheese . Murray said he
overheard employee Marion Parker, 7 whom he de-
scribed as almost being in tears, ask Assistant Night
Manager Randle to hurry up and count her money be-
cause she could not take another cussing out by Chap-
man., During a 10 May meeting Manager Farris held
with employees, Farris mentioned he had heard Murray
was afraid of Chapman and found him intimidating and
asked Murray why he wanted to work there. Another
employee, Pat White," then mentioned she found Chap-
man intimidating and said he even had her crying the
other day. Murray also said Chapman made him nervous
by drilling him about errors Murray made on the cash
register.
Kenneth Hardman, another employee presented as a
witness by the General Counsel , stated he had heard
other employees use the PA system to announce Owner
Chapman had left the store or was arriving . The reason
Hardman gave was some employees got nervous when
Chapman showed up and the announcement was to make
sure employees were working and Chapman - did not see
them just sitting around . Although Hardman also said he
heard Chapman argue , with customers , he stated Chap-
man had good reasons for doing so. Hardman denied
4 Parker did not testify-
$ White did not testify
seeing Chapman argue with employees, but stated he had
observed Chapman correct employees the way a father
corrects a child . Under cross-examination , Hardman ac-
knowledged he was not usually nervous working at the
Respondent.
Owner Chapman denied ever grabbing or threatening
employees or arguing or getting angry with them. He
also denied hearing any employee talking on the PA
system as he left the store, hearing employees make neg-
ative remarks about him , or being told employees had
made such negative remarks. Chapman also denied
seeing any indication employees were upset when he
came on the premises . Although Chapman acknowl-
edged he had had discussions with employees which
could get a little heated , he denied having a heated dis-
cussion with a customer over spoiled cheese.
Manager Farris denied seeing or hearing employees
make comments on the PA system about Chapman leav-
ing the store . About 1 May he said Assistant Night Man-
ager Randle told him Murray did it . Farris denied seeing
Chapman argue with employees or hear him raise his
voice with customers - Farris also denied employees had
complained to him about Chapman . Farris acknowledged
in the 10 May meeting hearing Pat White mention, in a
reference to Chapman, that she had cried.
Owner Chapman testified that about 19 April , on read-
ing the above comments by Murray contained in Leech's
report of his polygraph interview with Murray, he
became very mad and infuriated , Although his initial re-
action was to fire Murray, he withheld taking action im-
mediately . Instead, on 21 April he instructed Assistant
Night Manager Randle to reduce Murray 's work sched-
ule from 5 days a week to 2 days a week and, as previ-
ously noted, this was subsequently changed to 3 days a
week to prevent , Murray from drawing partial unemploy-
ment compensation . Randle corroborated Chapman's tes-
timony concerning , these instructions and denied Chap-
man ever informed him the reason.
Owner Chapman specifically denied at the hearing the
reduction or continued reduction of Murray's work
hours had anything to do with the Union and said the
sole reason for reducing Murray 's work hours was to
discipline Murray for the comments about him contained
in the polygraph repo rt. Chapman stated he did not feel
he had to tell Murray the reason for disciplining him be-
cause Murray knew it.
According ' to Chapman, he first learned about the
Union on 26 April when Manager Farris informed him
he had received a call from employee Otis Trautwein
telling him Murray was trying to form a union. Both
Farris ' and Trautwein corroborated Chapman 's testimony
about this report concerning Murray 's union activities.
Owner Chapman testified Manager Farris on other oc-
casions had reduced employees' work hours for discipli-
nary reasons . Although those reductions only lasted a
week, the reasons for the discipline were not established.
Murray also acknowledged that about 2 weeks before
the hearing employee Charlotte Webb had her work
hours reduced to 3 days a week for disciplinary reasons.
According to Murray , about 11 May a sign was posted
at the store stating Otis Trautwein was'in charge. Prior
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that time Murray said there had been a general under-
standing, but not a spoken rule, that Murray had general-
ly had charge of the store.9
B. Interrogations, Solicitations, Promises, Threats, and
Circulation of a Notice
On 3 May Kenneth Hardman went to Gregory Mur-
ray's home at Murray's request. While there, Murray
talked to him about the Union and asked him to sign a
union authorization card. Prior to going to Murray's
home, Hardman informed Assistant Night Manager
Randle he was going there but did not tell him the pur-
pose of the visit, which Hardman denied knowing at the
time.
The next day Hardman testified Manager Farris asked
him if he had gone over to Murray's home the previous
night and what it was about. Upon telling Farris that
Murray had asked him to join the Union, Farris in-
formed Hardman that Hardman had the right to join the
Union if he wanted to and the Company could not stop
him. Farris also mentioned he had heard something
about there had been union activity going on.
Manager Farris, while denying he ever questioned em-
ployees about the Union, did not specifically deny
having such a conversation with Hardman.110
About 9 May Murray met with Manager Farris to dis-
cuss 2 days Murray had called in sick. Owner Chapman
and employee Otis Trautwein were also present. Murray
testified he mentioned he had heard Chapman had tried
to work out problems with employees and did not need a
union to do it and asked Chapman if they could work
out his problem. Chapman, however, told Murray he
would have to talk to Farris. Later, when Murray asked
Chapman if he would hear his side of the story, Chap-
man said he would not. During the conversation Murray
testified Farris asked him whether he had socialized with
another employee during this time. Murray acknowl-
edged the only mention of a union during the conversa-
tion was by himself.
Neither Manager Farris nor Owner Chapman testified
about this conversation. However, Chapman specifically
denied ever questioning Murray concerning his union ac-
tivities and Farris, as previously noted, denied ever ques-
tioning employees about the Union.
Assuming Farris asked Murray whether he had social-
ized with another employee, such inquiry on its face fails
to establish Farris interrogated Murray about his union
activities, especially since the only reference to the
Union during the conversation, as acknowledged by
Murray, was raised by Murray himself and in a different
context. Further, there is no allegation Manager Farris
unlawfully interrogated Murray and no finding will be
made. Although the amended complaint does allege
about 7 May Owner Chapman unlawfully interrogated
employees concerning the Union, no evidence was prof-
fered to support this allegation.
9 No evidence was proffered to show what being in charge of the store
entailed and there was no allegation Murray's duties had been changed.
10 There is no allegation Manager Farris unlawfully interrogated Hard-
man and no finding will be made.
On 9 and 10 May Manager Farris, during work hours,
conducted meetings at the store with small groups of em-
ployees. The purpose of the meetings, according to
Farris, was to let the employees know the Respondent's
feelings concerning the Union. Copies of Respondent's
policy regarding unions were distributed to the employ-
ees during the meetings and the employees were request-
ed to read them.
This written policy provides as follows:
We prefer to deal with our employees directly
rather than through a third party. Since the start up
of this business, this has been a non-union organiza-
tion and it is our desire that it remain that way.
This does not mean that from time to time we do
not have problems. However, we have been able to
work these out among ourselves without the inter-
vention of outsiders. We encourage you to bring
your problems to management, and we, in turn,
promise to listen and give the best possible response
that we can. We feel that a union would be of no
advantage to any of us. It is not necessary for you
to pay union dues to receive fair treatment. Each of
you is an individual, and you have the right to
speak for yourself.
If anyone should come to you and ask you to
sign a union authorization card, we are asking you
now to refuse to sign it. You have a right to join
and belong to a union, and you have an equal right
not to join and belong to a union. If any other em-
ployee should interfere or try to coerce you into
signing a union authorization card, please report it
to your store or shift manager and we will see that
the harassment is stopped immediately.
Manager Farris stated at the hearing the purpose of
the policy was to let employees know their feelings re-
garding a third party. Additionally, the employees
worked in close contact with each other and it was
sometimes hard to maintain control. Although Farris
stated employees had brought up complaints about card
signing and were worried about people interfering with
other jobs they held, no employees were called to testify
about these alleged complaints or interference. Farris
denied in carrying out this policy he ever asked employ-
ees to divulge the names of any other employees who
may have been approached or asked employees if they
had been solicited to sign cards.
Both Gregory Murray and Kenneth Hardman attended
one of these meetings held on 10 May, along with sever-
al other employees, including Pat White and Billy
Doyle. After copies of Respondent's policy were distrib-
uted to the employees, various matters were discussed.
Murray brought up his hours had been cut. Although
Murray stated Farris mentioned he did not know the
reason, Hardman said Farris' response was, did not
want to discuss it at this time.
Farris, however, said when Murray asked for an expla-
nation he referred him to Chapman.
FARM BOY FOOD MART 413
Billy Doyle" asked Farris whether Owner Chapman
could close the store if they brought in the union. Al-
though Murray stated Farris' response was it was Larry's
store and he had the money to do it, and he probably
would and was financially able, Hardman's version of
Farris' response differed. According to Hardman, Farris
said he really did not have any idea and that Larry had
closed the store once before in the past, but he could not
say whether Larry would close the store or not. Hard-
man denied Farris said Chapman was financially well off
enough to close the store.
Murray, unlike Hardman, also said Doyle asked Farris
if it was true Larry could hire 40 more employees and
give them all 2 hours a week whereupon Farris said he
did not know and asked Doyle why he did not ask
Murray.
Farris, however, testified he said it was Chapman's
business and what he did with the store was his business.
He denied being able to recall whether he mentioned
Chapman had closed the store before.12
Both Murray and Hardman testified Farris asked the
employees what they wanted or would like the Compa-
ny to do for them. Hardman suggested providing health
insurance. Murray stated Farris responded by saying
they would get a list together for those employees inter-
ested to sign and put down how many dependents they
had.
Murray also testified Farris mentioned other employ-
ees in a prior meeting had suggested they get shirts and
smocks for the employees and that employee Marilyn
Skeleton would be taking measurements for them. Hard-
man also stated another employee asked Farris about get-
ting shirts for them to wear around the Company. Hard-
man's recollection on both the health insurance and
shirts was Farris said he would talk to Owner Chapman
about them.
Farris denied asking the employees what they wanted
or if they had any complaints. Although he stated em-
ployees asked questions about various things during these
meetings Farris denied making any promises to resolve
those matters raised . Farris acknowledged employees
asked about getting health insurance in the store, but
stated he told them they had considered it before and the
final decision had to be made by Chapman. He also told
them he could not give them an answer then and had to
get back to them at a later, date. According to Farris, the
employees were interested in a group policy with a re-
duced rate and he told them the only way he could con-
sider approaching Chapman, was if it were payroll de-
ductible and the employees paid for it. Farris also ac-
knowledged at one of these meetings Marilyn Skeleton
asked about getting more feminine smocks for the
women employees. Skeleton rejected Farris' suggestion
the aprons they already had for employees were suitable
and wanted to know whether she could check into the
smocks and, if they were within reason, would the Re-
spondent consider the possibility of leasing them. Farris
11 Doyle did not testify.
12 Owner Chapman had closed the store for about 90 days in 1978 due
to certain problems in its operations unrelated to a union.
stated he told Skeleton to check into the sizes, costs, and
everything and to let him know what she found out.
Following this meeting Respondent, at Farris' direc-
tion to his bookkeeper, posted a list on the bulletin board
for those employees interested in obtaining health insur-
ance to sign listing their ages and the number of their de-
pendents. Murray and several other employees signed
the list. Although Owner Chapman and Manager Farris
denied any other action has been taken on the health in-
surance, Chapman said they would look into it because
the employees had asked about it. Concerning the
smocks, Farris stated Skeleton later reported she could
not find any suitable or reasonably priced smocks where-
upon he told her to get back with him later.
Based on the testimony of Murray and Hardman,
which I credit, I find Manager Farris in the 10 May
meeting solicited employees' complaints about their ben-
efits. I further find, based on Murray's testimony and
Farris' acknowledgement, that acquiring health insurance
and smocks for employees was discussed in these meet-
ings , and that Farris also impliedly promised to resolve
the employees' complaints about their benefits. These
findings, apart from my observations of the witnesses,
are supported by the fact that, subsequent to these meet-
ings, Farris. had a list posted for those employees inter-
ested in obtaining health insurance to sign and had dis-
cussions with Skeleton about acquiring smocks. More-
over, Respondent's policy regarding unions, which was
furnished to the employees in the meetings, encouraged
the employees to bring their problems to management
and promised the best possible responses. However, in
view of the contradictory testimony between Murray
and Hardman about whether Farris said Chapman would
close the store, I do not find, as further alleged, that
Farris threatened to close Respondent's store if the
Union was selected to represent the employees as their
bargaining representative. This finding is consistent with
Farris' testimony that what Chapman did with the store
was Chapman's business.
Murray denied he had ever attended meetings before
where supervisors asked employees what they wanted.
Although Manager Farris stated there had been meetings
held with employees before where benefits including
health insurance and smocks were discussed, it was not
specifically established when these discussions were held
or what they were about. Farris did state about a year
earlier they had checked into getting smocks and learned
it was quite costly and they could not find suitable
smocks. Although Owner Chapman claimed they had
meetings with employees all the time in which employ-
ees were asked what their complaints were, no specific
instances of such meetings were given. Further, Chap-
man had previously denied he personally had a practice
of holding meetings with employees and denied they had
solicited employees' grievances.
Absent, as here, any specific instances of prior meet-
ings Respondent held with employees to solicit their
complaints about their working conditions, Murray's
denial such meetings were held, and Chapman's contra-
dictory testimony about whether such meetings were
held, I find such meetings had', not been held previously.
414 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
C. Analysis and Conclusions
The General Counsel contends, contrary to the Re-
spondent's denials, that the Respondent unlawfully inter-
rogated, solicited, promised, threatened, and circulated a
notice concerning employees' union memberships and ac-
tivities and discriminatorily reduced Murray's work
hours because of the Union and thereby violated Section
8(a)(1) and (3) of the Act.13
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part,
"It shall be an unfair labor practice for an employer .. .
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encour-
age or discourage membership in any labor organiza-
tion."
The findings, supra, establish on 10 May Manager
Farris solicited employees' complaints about their bene-
fits and impliedly promised to resolve those complaints.
This solicitation occurred during the Union's organiza-
tional campaign in a meeting Respondent held with its
employees to express its policy against the Union repre-
senting its employees as their bargaining representative.
Prior to the May meetings, the Respondent did not have
a past policy or practice of conducting employee meet-
ings to solicit their complaints concerning their benefits.
The solicitation of employee complaints or grievances,
with promises to resolve them, made by an employer
during a union organizational 'campaign among its em-
ployees violates Section 8(a)(1) of the Act. The essence
of a solicitation of grievances' violation is not the solici-
tation itself but the inference that the employer will re-
dress the problems. University of Richmond, 274 NLRB
1204 (1985). The solicitation of complaints or grievances
carries with it a inference that a employer is implicitly
promising to correct those inequities it discovers as a
result of its inquiries, however, such inference is rebutta-
ble by the employer. Cutting, Inc., 255 NLRB 534
(1981). An employer who has had a past policy and
practice of soliciting employee grievances may continue
such a policy and practice during a union's organizing
campaign . Kingsboro Medical Group, 270 NLRB 962, 963
(1984).
Applying the applicable law to the facts here, which
clearly establish on 10 May the Respondent, during the
Union's organizational campaign, both solicited its em-
ployees' complaints about their benefits and impliedly
promised to resolve such complaints,, and absence any
prior policy or practice of soliciting employee's com-
plaints or grievances, I find the Respondent on 10 May
unlawfully solicited its employees' complaints about their
benefits and impliedly promised to, resolve them, thereby
interfering with, restraining, and coercing employees in
their union activities and violated Section 8(a)(1) of the
Act.
The evidence, supra, also establishes Respondent's
policy regarding unions, that was distributed to employ-
ees in the 9 and 10 May meetings, contains in pertinent
is To the extent some of these allegations have already been disposed
of supra, no further discussion is warranted.
part the statement "If any other employee should inter-
fere or try to coerce you into signing a union authoriza-
tion card, please report it to your store or shift manager
and we will see that the harassment is stopped immedi-
ately."
The Board has held similar type instructions directed
to employees violates Section 8(a)(1) of the Act in that it
has the potential dual effect of encouraging employees to
report to Respondent the identity of union card solicitors
who in any way approach employees -in a manner subjec-
tively offensive to the solicited employees, and of corre-
spondingly discouraging card solicitors in their protected
organizational activities., J. H, Block & Co., 247 NLRB
262 (1980); and Pine Lumber Cashway, 267 NLRB 955,
(1983): Accordingly, I find Respondent on 9 and 10 May
violated Section 8(a)(1) of the Act by instructing its em-
ployees to report to it any instances wherein employees
are interfered with or tried to be coerced into signing a
union authorization card.
The remaining issue to be resolved is whether Mur-
ray's work hours were discriminatorily reduced because
his union membership or activities.
The law is well settled that to discriminate against em-
ployees in their employment because of union activities
violates Section 8(a)(3) and (1) of the Act. Where moti-
vation for discharge is at issue in cases alleging violations
of Section 8(a)(1) and (3) of the Act, the General Coun-
sel must make a prima facie showing sufficient to support
the inference that protected activity by employees was a
motivating factor 'in an employer's decision to discharge
them and the employer then has the burden of showing
the employees would have been discharged absent the
protected activity. Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st. Cir. 1981), cert. denied
455 U.S. 989 (1982), approved by the Supreme Court in
NLRB v. Transportation Management Corp., 459 U.S.
1014 (1983). Direct evidence of discriminatory motiva-
tion is not necessary to support a finding of discrimina-
tion and such intent may be inferred from the record as a
whole. Heath International, 196 NLRB 318 (1972).
The above findings show Murray signed a union au-
thorization card and 'solicited other employees to sign
cards. His union activities were admittedly known to the
Respondent. However, these union activities engaged in,
by Murray did not begin until 24 April when he first
contacted the Union. This was after his work hours had
already been reduced effective 21 April. There is no' evi-
dence to show, prior to 24 April any union organizational
activities had occurred or that the Respondent suspected
or had reason to believe they might occur. Therefore I
fmd the reduction of Murray's work hours on 21, April
had nothing to do with his union membership or activi-
ties or to discourage employees from engaging in such
activities as alleged. Neither do I find persuasive' the
General Counsel's contention that the continuation of the
reduction in Murray's work hours by the Respondent
after it learned of his union activities was unlawful. Re-
spondent employed both full-time and part-time employ-
ees. After reducing Murray's work hours from that of a
full-time to a part-time employee, Murray was never in-
formed this reduction would only be temporary. The Re-
FARM BOY FOOD MART 415
spondent's reason given at the hearing for reducing Mur-
ray's work hours, which was never expressed to Murray
prior to the hearing, was because of certain statements
made by Murray about Owner Chapman to polygraph
operator Leech which infuriated Chapman. These state-
ments contained in Leech's report- dated 16 April to
Chapman are of a derogatory nature and accuse Chap-
man, among other things, of grabbing people and threat-
ening them. Chapman denied and no evidence was prof-
fered to show Chapman had ever engaged in such con-
duct in the operation of his store or treatment of his em-
ployees. Such evidence supports Chapman's assertion he
disciplined Murray by reducing his work hours because
of these derogatory remarks. Inasmuch as the reduction
of Murray's work hours was not unlawful or shown to
be of a temporary nature and Respondent's reason for
disciplining Murray is supported by the evidence, I do
not fmd, as urged by the General Counsel, that the con-
tinuation of the reduction of Murray's work hours was
also unlawful. Therefore I fmd the Respondent did not
violate Section 8(a)(3) and (1) of the Act by reducing
Murray's workhours because of the Union as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Larry Chapman, a sole proprietor, d/b/a Farm Boy
Food Mart is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers, District
Union Local 227, AFL-CIO-CLC is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By instructing its employes on 9 and 10 May to
report to it any instances wherein employees are inter-
fered with or tried to be coerced into signing a union au-
thorization card; and by soliciting on 10 May during the
Union's organizational campaign the employees' com-
plaints about their benefits and impliedly promising to re-
solve such complaints, Respondent has interfered with,
restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act and has
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. The Respondent did not violate Section 8(a)(3) and
(1) of the Act by discriminatorily reducing the work
hours of Gregory Murray beginning on 21 April as al-
leged.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist and take certain affirmative action to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent, Larry Chapman, a sole proprietor,
d/b/a Farm Boy Food Mart, ` Louisville, Kentucky, by
its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Notifying its employees in written notices or other-
wise that they should inform Respondent if they are
interfered with or tried to be coerced into signing a
union authorization card, or otherwise inviting and en-
couraging employees to report to Respondent the identi-
ty of union card solicitors.
(b) Soliciting complaints from its employees about
their benefits and impliedly or implicitly promising to
remedy or adjust them in order to interfere with the
right of employees freely to choose a bargaining repre-
sentative, or to induce employees to reject, or to refrain
from engaging in activities in support of United Food
and Commercial Workers, District Union Local No. 227,
AFL-CIO-CLC or any other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in' the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Louisville, Kentucky store copies of the
attached notice marked "Appendix."15 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and, maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the amended complaint
is dismissed insofar as it alleges unfair labor practices not
specifically found herein.
14 If no exceptions are filed as provided by Sec. 102 .46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT notify you, in written notices or other-
wise, that you should inform us if you are interfered
with or tried to be coerced into signing a union authori-
zation card; and WE WILL NOT otherwise invite or en-
courage you to report to us the identity of union card
solicitors.
WE WILL NOT solicit complaints from you,about your
benefits and impliedly or implicitly promise to remedy or
adjust them in order to interfere with your right to
freely choose a bargaining representative, or to induce
you to reject, or to refrain from engaging in activities in
support of United Food and Commercial Workers, Dis-
trict Union Local No. 227, AFL-CIO-CLC or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
LARRY CHAPMAN, A SOLE PROPRIETOR
D/B/A FARM Boy FOOD MART