Farm Fresh, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 907 (N.L.R.B. 1991)

907
301 NLRB No. 130
FARM FRESH, INC.
1 The Respondent, the General Counsel, and the Charging Party have ex-
cepted to some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolutions un-
less 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.
As noted infra, we agree with the judge’s finding that the Respondent vio-
lated Sec. 8(a)(1) of the Act by Store Manager Fasciocco’s unlawful surveil-
lance of the union activities of employees Warren Carter and Walter Kent. We
therefore find it unnecessary to pass on the General Counsel’s exceptions to
the judge’s failure to find that the Respondent also engaged in unlawful sur-
veillance by the maintenance of a logbook at the Oyster Point store, by Night
Manager Briley’s observation of union organizers Hepner and Dixon in the
snackbar of the West Mercury Boulevard store, and the posting of a memo-
randum in the West Mercury Boulevard employee breakroom regarding, inter
alia, the recording of the activities of union organizers in that store. Such find-
ings would be cumulative and would not materially affect the remedy in this
case.
2 All dates are in 1987 unless otherwise indicated.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
4 The pretextual reason advanced by the Respondent for Carter’s discharge
is further evidence of the Respondent’s illegal motivation in his discharge. See
Active Transportation, 296 NLRB 431 (1989); Holo-Krome Co., 293 NLRB
594 (1989), remanded on other grounds 907 F.2d 1343 (2d Cir. 1990).
5 The judge concluded that ‘‘one can suspect that Kent was discharged for
reasons other than those stated by Respondent.’’
Farm Fresh, Inc. and United Food and Commercial
Workers Union, Local 400, AFL–CIO. Cases 5–
CA–17940, 5–CA–18407, 5–CA–18721, 5–CA–
18912, 5–CA–18951, 5–CA–19147, 5–CA–19303,
and 5–CA–19469
February 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 11, 1989, Administrative Law Judge David
L. Evans issued the attached decision. The General
Counsel, the Charging Party, and the Respondent each
filed exceptions and a supporting brief, and the Gen-
eral Counsel and the Respondent filed answering
briefs.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. The judge found that the Respondent’s discharge
of Warren Carter and Walter Kent did not violate Sec-
tion 8(a)(3) and (1) of the Act. We disagree.
In the winter of 19872 the Union engaged in an or-
ganizational campaign at various of the Respondent’s
grocery stores. Carter and Kent were both employed as
baggers at the Respondent’s 21st Street store where, on
the night of February 25, 1987, they were observed by
Store Manager Angelo Fasciocco as they met with
nonemployee union organizers during their break peri-
ods in the store’s snackbar. According to Kent’s cred-
ited testimony, Fasciocco passed as close as 3 feet to
the table where Kent was sitting and watched as Kent
delivered his signed union authorization card to the
union organizers who were seated with him. Carter
similarly testified that he was seen by Fasciocco hand-
ing his authorization card to a union organizer and that
while doing so, Fasciocco stood 10 to 20 feet away
with a pen and pad in hand ‘‘marking something
down.’’ Carter was discharged within 3 days and Kent
was fired a month later.
On these facts, the judge found that the General
Counsel had not made a prima facie case under Wright
Line3 because the record failed to show that antiunion
animus motivated the discharges. Contrary to the
judge, we find that the General Counsel has estab-
lished the requisite elements of a prima facie case that
Carter and Kent were discharged because of their
union activity.
Applying Wright Line, we find clear evidence that
the Respondent, through its highest management offi-
cial, had knowledge of the discriminatees’ union activ-
ity through Fasciocco’s observance of Kent and Carter
as they signed and delivered union authorization cards
to the union organizers. Further, the unfair labor prac-
tices found by the judge, which we adopt, establishes
the Respondent’s antiunion animus. In this regard, the
Respondent’s surveillance of the union activities of
Carter and Kent, described above, was unlawful under
Section 8(a)(1) of the Act. In addition, at two of its
other stores, the Respondent unlawfully interrogated an
employee and ejected union organizers from its prem-
ises. Given these facts, as well as the timing of both
discharges, we find that the General Counsel has estab-
lished a prima facie case of discriminatory discharge.
Under Wright Line, the Respondent must then show
that it would have discharged Carter and Kent even in
the absence of their union activities. The Respondent
clearly failed to make such a showing. The judge
found, and we agree for the reasons set forth by him,
that the one and only reason proffered by the Respond-
ent for Carter’s discharge was a ‘‘complete sham.’’4
Thus, having found that the asserted reason for
Carter’s discharge was false, we find that the Respond-
ent has failed to rebut the prima facie case and con-
clude that it violated Section 8(a)(3) and (1) by dis-
charging him.
As with Carter, we reject as pretextual the Respond-
ent’s reason for discharging Kent.5 According to the
Respondent’s head cashier, Laura Hilber, she estab-
lished a rule that any employee who missed just 1 day
of work, without notice or a good excuse, would be
terminated. Hilber testified that she discharged Kent
under this rule because, without prior notice or subse-
quent explanation, he failed to appear for work on
Monday, March 30. Kent did not deny that he did not
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Respondent contends that the ‘‘one no-show’’ rule applied only to
baggers and cashiers working under Hilber’s supervision in the front-end de-
partment. Accordingly, the Respondent contends that Kent was not disparately
treated vis-a-vis Robinson and Godsey because they worked in the produce de-
partment under a different supervisor where the rule had no effect. We find
no merit in this contention. As noted by the judge, Store Manager Fasciocco
and Night Manager Karen Wood both testified that the ‘‘one no-show’’ rule
applied storewide.
7 Although the presettlement allegations were litigated at the hearing, the
judge made no findings with regard to them in light of his reinstatement of
the settlement agreement.
come to work that Monday. He testified, however, that
when he telephoned the store the previous Sunday to
find out when he was next scheduled, he was told by
the employee who answered the phone that it was not
until Tuesday.
Contrary to the Respondent’s contentions, the record
establishes that the Respondent did not uniformly dis-
charge employees for violating its so-called ‘‘one no-
show’’ rule. The General Counsel presented evidence,
which the judge found to be credible, that at least two
other employees who did not engage in any union ac-
tivity violated the rule but were not terminated. Ken-
neth Godsey testified that 3 months after Kent was
fired, he missed work twice in one week because he
misread his schedule. After the first incident, he was
advised by the assistant manager that he should be
careful to pay more attention to the schedule in the fu-
ture. After his second absence, Fasciocco counseled
him and stated that, in light of his two missed shifts,
he would be suspended for a week so that he could de-
cide whether he really wanted to keep working. Em-
ployee Dan Robinson testified that, approximately 1
month before Kent was discharged, he failed to show
up for work without providing advance notice. When
confronted by his supervisor the next day as to why
he missed work, Robinson said, ‘‘I just needed some
time off. So I just didn’t come in.’’ No disciplinary ac-
tion was taken against him. Given that neither Godsey
nor Robinson were discharged for missing work, it fol-
lows that Kent, who had never before missed work,
was treated in a disparate fashion by being discharged
for his infraction.6
Consequently, having found that the Respondent’s
asserted ‘‘one no-show’’ defense to Kent’s discharge
was pretextual, we find, as we did with Carter, that the
Respondent has failed to rebut the General Counsel’s
prima facie case and thus discharged Kent in reprisal
for his union activity in violation of Section 8(a)(3)
and (1) of the Act.
2. On the basis of our foregoing findings, we con-
clude, contrary to the judge, that the Regional Director
properly set aside the settlement agreement signed by
the parties and approved by the Regional Director on
December 24, 1986. It is well established that an un-
fair labor practice will not be found based on
presettlement conduct unless there has been a failure to
comply with the settlement agreement, or subsequent
unfair labor practices have been committed. Nudor
Corp., 281 NLRB 927 (1986). In the settlement agree-
ment at issue here, the Respondent promised, inter alia,
that it would refrain in the future from engaging in un-
lawful surveillance and interrogation of employees and
threatening them with discharge. Yet, as found by the
judge, within 3 months of this agreement, the Re-
spondent committed another act of illegal surveillance
and interrogation. In addition, we have found two acts
of discriminatory discharge. Because this conduct
clearly violates the terms of the settlement agreement,
we conclude that the agreement was properly vacated.
Accordingly, we shall order that the settlement agree-
ment be set aside and that the case be remanded to the
judge for the purpose of deciding the merits of the
presettlement allegations.7
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 4 and re-
number the subsequent paragraphs accordingly:
‘‘4. The Respondent violated Section 8(a)(3) and (1)
of the Act by discharging employees Kent and Carter
because of their support for the Union.’’
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order the Re-
spondent to cease and desist and to take certain affirm-
ative action necessary to effectuate the policies of the
Act. Specifically, we shall order that the Respondent
offer Warren Carter and Walter Kent immediate and
full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges. We shall also order that the
Respondent make Warren Carter and Walter Kent
whole for any loss of earnings suffered as a result of
their unlawful discharge, with backpay to be computed
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Finally, we shall order that the Respondent remove
from its records any references to the unlawful dis-
charges of Warren Carter and Walter Kent, provide
them with written notice of such removal, and inform
them that the unlawful discharges will not be used as
a basis for future personnel actions concerning them.
See Sterling Sugars, 261 NLRB 472 (1982).
ORDER
The Respondent, Farm Fresh, Inc., Norfolk and
Richmond, Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating any employee, threatening arrest of
any union representative who is lawfully conducting
909FARM FRESH, INC.
8 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
himself on the Respondent’s premises, or conducting
surveillance and creating the impression of unlawful
surveillance of union representatives and employees.
(b) Discharging or otherwise discriminating against
employees because of their engaging in protected ac-
tivity.
(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) Offer Warren Carter and Walter Kent immediate
and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision. Warren Carter and Walter Kent
and notify the employees in writing that this has been
done and that the unlawful discharges will not be used
against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under all terms of this order.
(d) Post at its Norfolk-Richmond, Virginia area
stores copies of the attached notice marked ‘‘Appen-
dix.’’8 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) 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 this proceeding is re-
manded to Administrative Law Judge David L. Evans
for the purpose of considering the allegations in the
presettlement agreement complaint in Cases 5–CA–
17940 and 5–CA–18407 and to prepare and serve on
the parties a supplemental decision containing credi-
bility resolutions, findings of fact, conclusions of law,
and recommendations, and that, following service of
the supplemental decision on the parties, the provisions
of Section 102.46 of the National Labor Relations
Board’s Rules and Regulations, shall be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively question you about your
union support or activities for United Food and Com-
mercial Workers Union, Local 400, AFL–CIO.
WE WILL NOT threaten arrest of any union represent-
ative who is lawfully conducting himself on our prem-
ises.
WE WILL NOT conduct surveillance or create the im-
pression of unlawful surveillance of you and union
representatives.
WE WILL NOT discharge you or otherwise discipline
you because you join or support United Food and
Commercial Workers Union, Local 400, AFL–CIO, 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.
WE WILL offer Warren Carter and Walter Kent full
and immediate reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, and WE WILL make them whole
for any loss of earnings they may have suffered by
reason of the discrimination practiced against them,
with interest.
WE WILL remove from our files all references to the
discriminatory discharges of Warren Carter and Walter
Kent and WE WILL notify them in writing that this has
been done and that evidence of unlawful conduct will
not be a basis for future personnel action against them.
FARM FRESH, INC.
Steven J. Anderson and Nathan W. Albright, Esqs., for the
General Counsel.
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 A11 dates are in 1987 unless otherwise specified.
A. W. VanderMeer Jr., Kelly O. Stokes, and Joseph D.
McClusky, Esqs., of Norfolk, Virginia, for the Respondent.
Thomas J. Flaherty, Esq., of Richmond, Virginia, for the Re-
spondent.
Carey R. Butsavage, Esq., of Washington, D.C., for the
Charging Party.
Jeff Lewis, Esq., and James Hepner, of Landover, Maryland,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
under the National Labor Relations Act (the Act) was tried
before me on 11 different dates between May 16 and July
15, 1988, in Norfolk, Virginia. The Charging Party is United
Food and Commercial Workers Union, Local 400, AFL–CIO
(the Union), and the Respondent is Farm Fresh, Inc. Because
this case involves an alleged violation of a Board settlement
agreement, there are really two cases, one before and one
after the settlement agreement. The dates of the charges in-
volved in the settlement agreement, which was approved by
the Regional Director for Region 5 on December 24, 1986,
are:
Case 5–CA–17940 March 25, 1986
Case 5–CA–18407 October 10, 1986
The record does not indicate if a separate complaint (or com-
plaints) issued on those charges. The second case began with
a second round of charges that were filed on these dates:
Case 5–CA–18721 Mar. 16, 1987
Case 5–CA–18912 Jun. 4, 1987
Case 5–CA–18951 Jun. 19, 1987
On June 30, 1987,1 the Regional Director advised Respond-
ent that the settlement agreement was being set aside based
on the investigation of the subsequently filed charges. On
August 31 the Regional Director (acting as the General
Counsel on behalf of the Board) issued an order consoli-
dating cases and a consolidated complaint based on all five
of the then outstanding charges. On October 5 the Union
filed the charge in Case 5–CA–19147; on December 14 the
Union filed the charge in Case 5–CA–19303. On December
30 the Regional Director issued a complaint based on the
charges in Case 5–CA–19147; and on January 26, 1988, the
Regional Director issued an order consolidating all of the
cases on which complaint, by that time, had issued (i.e., all
except Case 5–CA–19303). On February 16, 1988, the Re-
gional Director issued a complaint in Case 5-CA–19303 as
well. On February 29, 1988, the Union filed a charge in Case
5–CA–19469. On that charge, and all prior charges and com-
plaints, the Regional Director, on April 13, 1988, issue an-
other order consolidating cases and a second consolidated
complaint and notice of hearing (the complaint). This action
set the entire matter for trial, including the issue of correct-
ness of the Regional Director’s setting aside of the December
24, 1986 settlement agreement.
Respondent duly filed answers admitting jurisdiction and
the status of certain supervisors under Section 2(11) of the
Act but denying the commission of any unfair labor prac-
tices. On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has retail stores in the Norfolk-
Richmond area of Virginia where it is engaged in the busi-
ness of the sale of groceries. During the year preceding the
issuance of the complaint, Respondent, in the course and
conduct of the business operations, received gross revenues
in excess of $500,000, and it purchased and received at its
stores goods and materials valued in excess of $50,000 di-
rectly from suppliers located at points outside Virginia. Re-
spondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Settlement Agreement Involved
The first question to be decided is whether the Regional
Director was justified in setting aside the December 24, 1986
settlement agreement because of Respondent’s postsettlement
(second case) conduct. If the Regional Director was not so
justified, the settlement agreement will be reinstated and the
issues raised by the alleged presettlement (first case) conduct
need not be addressed.
The settlement agreement provided that Respondent would
not:
1. Promulgate or enforce any policy that prohibits
lawful ogranizational solicitation by employees.
2. Deny nonemployee representatives of the Union
reasonable access to store snack bars and parking lots
for the purpose of lawfully soliciting off-duty employ-
ees.
3. Threaten the Union’s representatives who are en-
gaged in lawful employee solicitations with arrest ‘‘for
failing to accede to unlawful demands to leave our
snack bars or parking areas around our premises.’’
4. Photograph, in the presence of employees, the
Union’s representatives who are engaging in lawful em-
ployee solicitations.
5. Confiscate organizational literature from employ-
ees.
6. Engage in conduct intended to give the impression
of unlawful surveillance.
7. Threaten employees with increased work assign-
ments, loss of work, discharge, loss of benefits, loss of
advancement opportunities, or store closings because of
the employees’ protected union activities.
8. Coercively interrogate employees.
9. Instruct employees not to meet with union rep-
resentatives.
10. ‘‘In any like or related manner’’ interfere with
statutory rights of its employees.
911FARM FRESH, INC.
2 Punctuation of this and subsequent quotations of testimony is supplied.
B. Alleged Postsettlement Conduct
1. Statement of facts
a. Admitted and alleged supervisors and agents
of Respondent
Individuals who are admitted to be, or who are stipulated
to be, supervisors within Section 2(11) of the Act, and the
stores at which they work, are:
Alan C. Adcock—Second Assistant Store Manager,
West 21st Street Store, Norfolk
Todd Briley Night—Manager, W. Mercury Blvd.,
Hampton
James E. (Rickey) Davis—Manager, Southside Plaza,
Richmond
Angelo Fasciocco—Manager, West 21st St., Norfolk
Charles Gilbert—Produce Manager, Merrimac Trail,
Williamsburg
Donald Gregory—Manager, Smithfield
Laura Hilber—Head Cashier, W. 21st Street, Norfolk
Gerald Mingee—Manager, Warwick Blvd., Newport
News
Tom Poyner—Produce Manager, Wards Corner, Nor-
folk
Michael Sachs—Manager, Main Street, Suffolk
Edward Sheedy—Assistant Manager, W. Mercury
Blvd., Hampton
The following individuals are alleged in the complaint to be
supervisors of Respondent within Section 2(11) of the Act;
however, these allegations are denied:
Daniel Hoadley—Dairy and frozen food manager,
Oyster Point, Newport News
Laurie J. Knill—Front end supervisor, West 21st
Street, Norfolk
Karen Wood Front end supervisor and/or night man-
ager, West 21st Street, Norfolk
The following individuals are alleged in the complaint to be
agents of Respondent within Section 2(13) of the Act; how-
ever, these allegations are denied:
Robert Melody—Independent contractor
J. D. Summerfield—Security guard at Wickham Av-
enue, Newport News
K. C. (Casey) Walker—Security Guard, West 21st
Street, Norfolk
b. Alleged violative conduct that is not directly related
to the discharges
Except for those that are directly involved in the discharge
cases of Warren Carter and Walter Kent Jr., this section will
deal with all alleged postsettlement violations of Section
8(a)(1) of the Act.
(1) Denials of access and threats of arrest to
nonemployee organizers
Paragraph 5 of the complaint alleges that, on certain dates,
at certain of its stores, Respondent’s agents ‘‘denied rep-
resentatives of the Union, who were engaged in lawful union
activity and were acting on behalf of employees, access to
its property by demanding that said Union representatives va-
cate Respondent’s property, including its snackbars and/or
parking lots.’’
Paragraph 6 of the complaint alleges that, on certain dates,
at certain of its stores, Respondent’s agents, ‘‘threatened
and/or caused the police to threaten representatives of the
Union, who were engaged in lawful union activity and were
acting on behalf of Respondent’s employees, with arrest if
they did not vacate Respondent’s property.’’
January 29; Wards Corner; Paragraph 6. Union Rep-
resentative Terry Dickson testified that he entered the store
between 5:45 and 6 a.m. He went to the snackbar and pur-
chased a cup of coffee. He saw two employees; approached
them, gave them union authorization cards, and asked if he
could speak to them about the Union. The employees replied
that they would get back to Dickson. Dickson went back to
his chair in the snackbar and was approached by Tom
Poyner, produce manager. According to Dickson:2
As I was standing there, I was talking to another per-
son, the cashier that had waited on me, Andre Tynes
. . . [Poyner] walked up and showed me some union
authorization cards and asked me had I been passing
out cards? I said, ‘‘yes,’’ [that] I had been talking to
his employees while they were off the clock.
He asked me did I read the no solicitation sign hang-
ing up in the front of the store and I said ‘‘yes,’’ but
[that] I wasn’t talking to those people on the clock. He
said he was going to have to ask me to leave because
he was going to call [store manager] Mr. Harmon.
I told him I had a right to be in the store, and he
said, ‘‘If you don’t leave, I’ll have you arrested.’’ So
I proceeded to walk out as he did [sic], and I asked
him, I said, ‘‘so are you saying I don’t have access to
the employees.’’ He said ‘‘yes,’’ so I left.
On cross-examination Dickson testified that at the time he
spoke to Tynes she was seated at a snackbar table, taking a
break, ant not doing her cashier duties.
Poyner testified that before seeing Dickson another em-
ployee had approached him and told him that Dickson had
given her a union pamphlet while she was on duty and that
the employee gave Poyner the pamphlet. Poyner went to the
snackbar where he saw Dickson giving another copy of the
pamphlet ‘‘to an employee that was on duty at the time.’’
The employee, whose name Poyner did not know, was stand-
ing before a snackbar table at which Dickson was sitting.
Poyner asked Dickson if Dickson had a right to do what he
was doing and Dickson replied that he did. Poyner replied
that he was going to call the store manager and, ‘‘[Dickson]
got up; he got real boisterous, and I said, ‘fine, I’ll go call
the store manager.’’’ Poyner looked around and found the as-
sistant store manager, Al Cook. As Poyner was telling Cook
what was happening, ‘‘then Mr. Dixon came up and said he
was going to bring charges against me, and I asked him why.
And he said, ‘violating his rights.’’’ Dickson then left the
store. Poyner denied telling Dickson that he was going to
call the police; he denied even asking Dickson to leave the
store.
Cook was not called to testify by Respondent, and no rea-
son for not doing so was advanced. Poyner advanced specu-
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lation, but no reason to believe, that the snackbar employee
was ‘‘on duty at the time.’’ Finally, Poyner did not deny that
in his initial exchange with Dickson, he referred to a general
‘‘no solicitation’’ rule posted at the front of the store. Be-
cause of these lapses, and his more credible demeanor and
logical account, I credit Dickson.
January 29; 21st Street; Paragraph 6. Union Representa-
tive James Hepner testified that he went to the store about
9 p.m. accompanied by Dickson. The representatives intro-
duced themselves to Night Manager Allen Adcock and told
Adcock that they would be going to the snackbar and talking
to off-duty employees. Adcock told them, ‘‘okay.’’ At the
snackbar Dickson and Hepner purchased drinks and sat down
at a table. They first spoke to a female employee at a nearby
table who indicated that she was not interested. Then
Dickson got up and went to the rear of the area, where two
other employees were taking their breaks, and Hepner re-
mained to talk to the first employee. Then a female police
officer, subsequently identified as Carey C. Walker, entered
the snackbar and walked directly to where Dickson was. Ac-
cording to Hepner:
. . . and she just said, you know in a pretty loud voice,
‘‘you can’t do this. You’re going to have to leave the
store. I mean now.’’ . . . I walked over behind [Walk-
er] and Alan Adcock had come in. He came in behind
her, but not real fast, and he kind of walked down with
me and I said, ‘‘excuse me, is there a problem here?’’
And she wheeled around and she kind of put her hand
back on her gun and she said, ‘‘yeah, somebody’s
going to jail; that’s what the problem is.’’ And I said
‘‘wait a minute. . . . let’s calm down. . . . I don’t
want to go to jail. . . . we’re not doing anything
wrong.’’ She said, ‘‘yes, you are.’’ She said, ‘‘there’s
union in the store,’’ and she said, ‘‘they’re going out.’’
Hepner further testified that he and Dickson showed Walker
and Adcock a reprint of the settlement agreement. Adcock
and Walker read the settlement agreement for several min-
utes and both Hepner and Dickson told Adcock that there
should be a copy posted in the store. Further, according to
Hepner:
And Alan Adcock said, ‘‘I’ll check it out,’’ and then
he left the snack bar, and the police officer [Walker]
had [sat] down with some of the other employees that
had come in, you know, during this exchange.
Hepner testified that he and Dickson stayed around the
snackbar for another 10 minutes, but Adcock did not return.
He and Dickson decided to leave. As they walked by the
manager’s podium at the front of the store, Adcock said to
them, ‘‘[W]ell, sorry guys; can’t blame a guy for trying.’’
Dickson testified consistently with Hepner, except that he
added: (1) When Walker said that ‘‘somebody was going to
jail,’’ Hepner responded, ‘‘no, no one’s going to jail to-
night’’; and (2) as Adcock told them that he was leaving the
snackbar to check out what they had said about the settle-
ment agreement, Adcock also told them to ‘‘carry on.’’
Adcock’s account was:
I was in charge of the store that night, and it was dur-
ing the busy time of the night; I was restricted to the
podium area, which is at the front of the store where
the cash registers were.
The security guard, which was a Norfolk police offi-
cer, brought to my attention that there was some Union
officials in the store, and we went to find them, and to
my knowledge at the time was, the procedure was to
ask them to leave the store, that there was no soliciting
and I approached the two that were there, and I told
them, ‘‘I am sorry, but we don’t allow soliciting in the
store,’’ and [I] asked them to leave. At that time, they
brought out an article in the paper, with some type of
sheet of paper saying that they were authorized to be
in the store as long as they was [sic] in the break room
where the employees took a break and as long as the
employees were on their break[s]; and I told them that
I wasn’t knowledged to that information, that I would
go check on it, and I would be right back with them.
And I tried to see if I could find some type of infor-
mation, and I couldn’t, so I called the store manager
[Angelo Fasciocco], and asked him. [Fasciocco] said
that they were allowed in the break room at the time,
as long as employees were on break. So, I went and I
apologized to them, and I said, ‘‘I’m sorry . . . I have
checked, and you are allowed here,’’ and then I had to
proceed back to the podium.
Adcock testified that he did not hear Walker say anything in
the snackbar; specifically, he did not hear her say anything
to the union representatives; and specifically, he did not hear
Walker threaten anyone with arrest.
Walker testified that she is a full-time police officer for
Norfolk. She was, at the time in question but not at the time
of trial, working evenings as a security guard at the 21st
Street store. Her usual duty covered ‘‘anything in a criminal
capacity as far as violations were concerned.’’ Walker’s ac-
count of the incident was:
. . . basically it was [that] two men that came into the
store, that introduced themselves as members of the
Union. They went around the store and talked to sev-
eral employees. There was nothing that was said at that
time. About 15 minutes later Mr. Adcock, who is the
assistant manager of the store at the time, came to me
and approached me and stated that he wanted to go
back and talk to the Union members. They were back
in the snack bar of the store. I accompanied him back
there. He introduced himself. I introduced myself. I was
working in plain clothes at the time. I explained to
them that I was a police officer in charge of security
of the store and I was for criminal purposes only. That
was the only conversation that I exchanged with them.
Mr. Adcock talked to the Union members. They
pulled out some type of flyer about some type of union
regulation. lThey] exchanged conversation briefly again,
and that was the end of it.
When asked what the exchange was, Walker testified:
It was basically, [Adcock] was asking them not to
bother the employees that were working on the clock.
. . . [The organizers] said [that] they had no problem
with that. They said, according to the law, they were
913FARM FRESH, INC.
able to pass out flyers. . . . [Adcock] said he had no
problem with them talking to employees that were off
the clock, during their break. And he went on about his
business, and they stayed back in the snack bar and I
left.
Walker denied that she told the union organizers that they
were going to be arrested or that ‘‘somebody is going to jail
tonight.’’
On cross-examination, Walker testified that she was there
only as a witness and that Adcock did not tell her to remove
the union representatives. She added that Adcock had told
her that some employees had reported to him that the union
representatives had bothered them while they were working,
and that was the reason Adcock had approached them, bring-
ing her along as a witness. She further testified that Adcock
did not ask the union representatives to leave the snackbar.
Of course, Adcock acknowledged that he initially told
Hepner and Dixon that Respondent did not allow solicitation
in the store and that he asked them to leave. I firmly believe,
contrary to his and Walker’s denials, that he instructed Walk-
er to convey the impression that Walker was there to stop
solicitations, which (until he was shown the settlement agree-
ment and spoke to Fasciocco on the telephone) he believed
Respondent did not allow. I further believe, and find, that
Walker did so by telling Hepner and Dixon that ‘‘someone
[was] going to jail’’ that night.
February 19; Southside Plaza; Paragraph 6. Frank Davis
is a butcher who is usually employed by one of Respondents
organized competitor. In 1987 he worked as a paid organizer
on the Union’s staff. Davis testified that on February 19 he
went to Respondent’s Southside Plaza store where Ricky
Davis was the manager. According to Frank Davis, he first
walked around the store and:
I guess I had been in there about 5, maybe 10, min-
utes ant I was walking past the deli. And one of the
employees was walking by, going behind the case and
he hat a drink and some kind of a sweet roll or cup-
cake, or something. And he told the girl back there, he
says, ‘‘I’m back.’’ And she says, ‘‘Well, I’m going.’’
So she picked up her purse and put it on her arm
and she came around to the front of the deli case, the
fridge case, whatever it was, and I approached the girl
and I told her who I was, that I was an organizer for
Local 400. And I gave her a piece of literature. . . .
She put the literature in her purse.
On cross-examination, Davis acknowledged that his pretrial
statement did not refer to the employee with the sweet roll
or the woman’s remark to that employee.
Davis further testified that he then began looking at the
meat in Respondent’s meat counter and he was approached
by Davis. Then:
And [Ricky Davis] told me, he says, ‘‘You’re going
to have to leave these premises or I’m going to have
you arrested. . . . You were interfering with that young
lady’s work.’’
Frank Davis further testified that he protested to Ricky Davis
that the employee was on break, but Ricky Davis again said
that, if Frank Davis did not leave the store, Ricky Davis
would call the police and have him arrested. Frank Davis
then left the store.
Trudi Donati, who was not employed by Respondent at
time of trial, testified that she was standing in a doorway to
the delicatessen when ‘‘a man’’ approached her and gave her
a union pamphlet. She testified that she was not on break at
the time, and did not have her purse with her. She testified
that she gave the pamphlet to Assistant Store Manager
Danny Bollier and, ‘‘I told him that it was [from] a union
man in the store.’’
Bollier testified that Donati had brought the pamphlet to
him, stating that ‘‘there was a gentleman who had given her
this pamphlet,’’ and he took the pamphlet to Ricky Davis.
He and Davis walked through the store until they found
Frank Davis. When they did, Ricky Davis told Frank Davis,
‘‘that it was not allowed to hand out literature to his employ-
ees while they were on the clock.’’ Frank Davis then told
Ricky Davis that he had thought that the employee was on
break. Ricky Davis replied that she was not, and he asked
Frank Davis to leave the store. Bollier denied that Ricky
Davis mentioned arrest or the police.
According to Ricky Davis:
When I approached [Frank Davis], he introduced
himself to me. I inquired whether or not he was aware
of the fact that he was not allowed to pass out pam-
phlets to employees while they were working. 10 He,
in turn, said that he thought she was on her break. I
replied that if she was on her break she would not have
been behind the counter working. I, in turn, asked him
to leave the store.
Ricky Davis denied that he threatened to call the police or
have Frank Davis arrested.
I credit Donati about the distribution of the pamphlet; and
I credit Ricky Davis and Bollier about what Ricky Davis told
Frank Davis. Frank Davis’ account of the exchange between
Donati and the employee with the sweet roll smacked of pure
fabrication; I believe Frank Davis concocted it to support his
account of why he believed Donati was on break. Donati was
a former employee with nothing to gain by her testimony,
and there was nothing in the accounts or demeanors of
Donati, Ricky Davis, or Bollier to cause me to suspect their
credibility.
March 2 and 3; Midlothian Store; Paragraph 6. Union
Organizer Frank Davis testified about several visits to the
Midlothian store where Ricky Green was the manager. The
first date he mentioned was February 24. Davis testified that,
on that date and whenever he would enter the store, a public
address announcement would be made that ‘‘all department
heads go to the sales floor.’’ Davis testified that on February
24, and ‘‘every occasion [that] I was in that store,’’ ‘‘he was
followed by up to eight department managers as he walked
around the store and went to the snackbar.
On March 2, according to Davis, the same announcement
was made as he entered the store. Then:
And I was walking around the store. It was supposed
to have been renovated, and I really had never taken a
good look at it. So I said [apparently to himself], ‘‘I
have a little bit of time to kill. I’ll just walk around.’’
And I had gone all the way around the perimeter of
the store and gotten back in front of the dairy case and
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the store manager, Mr. Ricky Green, approached me
and there were 6 or 8 other department heads around
me.
And [Green] told me to get out of the store or he
was going to call the police and have me arrested for
loitering.
When asked by the General Counsel what he did then,
Davis replied, ‘‘I went straight to the snackbar and bought
a cup of coffee.’’ Davis testified that Green and five of the
department heads followed him into the snackbar. Davis did
not testify that any employees were within earshot when
Davis told him to leave.
Davis testified that he returned to the Midlothian store on
March 3. When he entered the store the ‘‘department heads
to the sales floor’’ announcement was made on the public
address system. Further according to Davis:
I went into the snack bar area, bought a cup of cof-
fee and sat down. Approximately 10 to 15 minute later
. . . Green asked all of the department heads to come
to the snack bar area. They also bought coffee.
[Green] finished his. He walked up behind me and
placed his right hand on my left shoulder and bent over
ant he says, ‘‘You get out of this store as soon as you
finish your coffee or I’m going to have you arrested.’’
The General Counsel asked by leading question if Green
had spoken in a loud voice, and Davis replied, ‘‘Yes sir. He
made it nice and loud so the employees could hear and the
department heads could hear.’’ When asked what he did
thereafter, Davis testified:
Well, I finished my coffee. And after about 10 min-
utes I got up and went over and purchased another cup
of coffee and sat down. I stayed there for another hour-
and-a-half.
On cross-examination Davis acknowledged that he would
regularly walk the aisles when visiting the Midlothian store
to greet the employees.
Green testified that, beginning in late January and ‘‘ap-
proximately 90 straight days’’ thereafter, Davis came to the
Midlothian store. Davis, whom Green had known for some
time before, would walk right by the manager’s booth so that
Green could see him. Davis would walk the aisles of the
stores for 45 minutes to an hour and a half, go to the snack-
bar for similar periods, then walk the aisles for a similar pe-
riod. Green saw Davis purchase something from the aisles
only once during this 90-day period. On March 2 Green saw
Davis give dairy department employee Gino White a union
authorization card while White was working. Green ap-
proached Davis and told Davis that Green had noticed that
Davis had been walking around the store for about 45 min-
utes, that he knew that Davis had purchased nothing, and that
he considered Davis to be loitering. Further, according to
Green, ‘‘I asked him to leave the store.’’ Davis did not reply;
he just smiled and walked to the snackbar. Green denied that
he threatened to have Davis arrested on March 2.
Green testified that thereafter, until about April 1, he fol-
lowed Davis each day that Davis walked around the store.
Green described the March 3 incident as follows:
I was sitting in the snack bar, and it was approxi-
mately nine thirty that morning, and I was having a cup
of coffee. I was finishing up my coffee. As I was leav-
ing, Mr. Davis was coming into the snack bar [where
he purchased a small cup of coffee]. I went on about
my business, and I went to my office and started some
paperwork . . . . About an hour to an hour and a half
later, the department manager paged me back over into
the snack bar. I went over there and took care of a
problem, that she had, and I noticed that Mr. Davis was
still sitting in the same booth.
The snack bar was beginning to fill up. I went up
to Mr. Davis, asked—I told him that I did not see him
purchase anything but that cup of coffee, would he
mind at that time leaving because the snack bar was
filling up. He refused to do so. He sat there for about
approximately 30 minutes, got up and then [sic] started
walking around the aisles again.
Green denied that he touched Davis or that he threatened
to have Davis arrested.
Green impressed me far more favorably as a witness and,
to the extent their testimonies differ, I credit Green over
Davis about the events of March 2 and 3 at the Midlothian
store.
May 12; Wickham Avenue; Paragraph 5. The Wickham
Avenue store is smaller than Respondent’s other stores in-
volved herein; it has no snackbar in which employees can
take breaks. They take breaks in the manager’s office, which
is about 6-feet square, or, weather permitting, on the side-
walk immediately outside the front door.
Hepner testified that after 5 p.m. on May 12 he, along
with Dixon and Union Representative Vernon Thomas, drove
to the store and parked in the lot. Employees taking breaks
and denizens of the neighborhood had congregated on the
sidewalk immediately in front of the store. Thomas and
Hepner were talking to these individuals when Hepner no-
ticed a Newport News police car entering the parking lot. A
uniformed officer, J. D. Summerfield, got out and went into
the store. About 10 minutes later:
[Summerfield] walked over to the car. We had [sat]
in the car because everybody left when he got there
and, you know, he said, ‘‘Are you the guys from the
Union?’’ And [Dixon] was sitting up in the driver’s
side and he said, ‘‘yeah.’’ And [Summerfield] said,
‘‘Well, I’m going to have to ask you guys to leave the
property.’’ And we said, ‘‘Why?’’ He says, because
[Night Manager Noralene ‘‘Jeannie’’ Maxey] wants you
to leave. He said, ‘‘You know, I don’t want any prob-
lem.’’ He said, ‘‘You guys are going to leave or I’m
going to have to have you arrested.’’
Dixon, further according to Hepner, told Summerfield that
the Union had a right to be there and he showed Summer-
field a copy of the settlement agreement. Summerfield told
the three representatives that he would show the settlement
agreement to Maxey, ‘‘but . . . we’re going to have to do
what she says.’’ Summerfield went back into the store and
came out ‘‘more than 15 minutes’’ later, Summerfield told
them:
915FARM FRESH, INC.
All right, guys. . . . [Maxey] said the reason she
wants you to leave is [District Manager] Patterson had
told her that you all violated this agreement and it’s no
good anymore and if the Union comes, throw them off
the property, have them taken to jail. . . . But she can’t
get in touch with [Patterson]. She said you all could
stay out here but you’re not to enter the store. You stay
out here for the afternoon, but you’re not to enter the
store.
Hepner further testified that, ‘‘after [Summerfield] talked to
us, an employee came out of the store, and I introduced my-
self to her, and she ran.’’
On cross-examination Hepner acknowledged that, at some
point in his discussions with Summerfield, Summerfield told
him that Maxey had told Summerfield that union representa-
tives had been inside the store (at an unspecified time) and
distributed literature to employees who were working, and
that Hepner replied to Summerfield that none of the three
representatives had been inside the store that day. Hepner
further acknowledged that when Summerfield told them that
they could not go into the store, Hepner replied that they had
no intention of going into the store anyway. Hepner further
acknowledged that he and Thomas had been at the store for
‘‘two or three hours’’ earlier in the day; at that time they
were soliciting employees who were outside on breaks; and
the union representatives were not interrupted. Finally,
Hepner acknowledged that after his last exchange with Sum-
merfield, the union representatives stayed in the parking lot
as long as they wanted to.
Dixon was present throughout the hearing, and testified on
other matters, but did not testify on this point.
Summerfield, who was still employed part time by Re-
spondent as a security officer at the store, was called by Re-
spondent and testified as follows:
On that date, when I reported for duty at the store,
I reported to duty in complete uniform as [a] Newport
News police officer. I was met by the manager at the
office, a Ms. Noralene Maxey, and advised that there
were Union people on the premises in violation of an
agreement that they had with [Respondent] at that par-
ticular time.
I asked what type of violation [sic] they were in vio-
lation of and she advised that, previously, somebody
had come into the store and was handing out a pam-
phlet, talking to employees at the cashier line; some-
thing to this effect.
I asked her how that was a violation. She advised
that she had contacted Mr. Patterson, the District Super-
visor, and there was some question about the agreement
that the Union had with [Respondent], and that that was
a violation of that policy and he wanted them off the
property.
I advised her at that time that this was only an alle-
gation as far as I was concerned and, based on what
Mr. Patterson said, I was not going to put anybody off
the property because I didn’t know what the contract
[sic] said.
Summerfield further testified that he thereupon went out
and talked to the union representatives. He expressed union
sympathies of his own and told them that he was not asking
them to leave. Summerfield denied that he either asked or
told the union representatives to leave the premises. He fur-
ther denied that he told the union representatives that they
could not enter the store. He did testify that the union rep-
resentatives told him that under the settlement agreement
they had a right to solicit in snackbars, and he told them that
there was no snackbar at that store. He further testified that
he told them that they could come into the store and shop.
Summerfield further testified that the union representatives
told him that they had a right to solicit employees in front
of the store, and he told them that that was ‘‘fine.’’
To the extent they differ, I credit Summerfield. He had a
credible demeanor, and his account was convincing to me.
On the other hand, I am suspicious of Hepner’s account. He
added the threats of arrest that are not included in the com-
plaint and that appeared to be factual embellishments. More-
over, Hepner is not supported by either Dixon or Thomas.
Both of those union representatives were present at the inci-
dent; neither was called to testify on the point; and Dixon
was present throughout the hearing and testified on other
issues. No reason is suggested by the General Counsel for
this failure to present Dixon and Thomas.
September 30; Main Street; Paragraph 5. On this date,
Dixon and Union Representative Joe Metille went to the
store at which Michael Allen Sachs is the manager. Dixon
testified that he and Metille went to the snackbar and:
We were sitting at a table and a girl walked by our
table and she had her coat with her and her apron
draped across her arm.
Joe said, ‘‘excuse me,’’ and gave her a union author-
ization card. The girl proceeded on out of the snack
bar.
. . . .
The girl left the snack bar and Mr. Sachs walked
over to us, said the girl was on the time clock and
asked us to leave. . . . Joe and I both tried to explain
to Mr. Sachs that she appeared to be off the time clock,
wasn’t on Farm Fresh’s time, and he got real hysterical.
Raised his voice and said if we didn’t leave, he’d have
us escorted out of the store.
. . . .
We tried to explain to Mr. Sachs that we had the
right to talk to people and we didn’t intentionally talk
to people on the time clock. He said if we didn’t leave
he’d call the police.
Dixon and Metille went back to the snackbar and sat down.
Within a few minutes the police arrived and asked them to
leave, which they did.
Sachs testified:
I was standing in the presence of George Eason [Re-
spondent’s district manager] and my meat manager,
Paul Keller, near the salad bar and we were discussing
some problems in the store; a meat problem, I believe.
My snack bar manager then walked up to me and in-
formed me that one of her girls was just handed a piece
of Union literature and that she was, in fact, on the
clock. . . . I approached the organizer and told him
that they were not allowed to hand out literature to an
employee that was on the clock; told them that they
would have to leave the premises.
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although Respondent denies the allegation of Hoadley’s supervisory status,
it adduced no evidence to rebut Hoadley’s testimony that, at all times material,
he had the authority to hire, fire, and discipline employees. Moreover, Re-
spondent does not argue in its brief that Hoadley’s testimony was inadequate
to prove the point.
4 In subsequent testimony, Hoadley made clear that James was referring to
expected confrontations between union representatives and employees, not in-
tended confrontations between management and employees.
5 Front end supervisors were superior to baggers, cashiers, and, sometimes,
office clerical personnel, but it was not stipulated or proved that all front end
supervisors were ‘‘supervisors’’ within Sec. 2(11) of the Act.
They told me that they did not have ESP; that they
didn’t know that the employees [sic] were on the clock;
and I said she was, in fact, on the clock and repeated
again, ‘‘You will have to leave the store.’’
I was then told by one of them that they were not
going to leave. I said, ‘‘I will have you escorted from
the premises.’’
Sachs had the head cashier call the police who, as Dixon tes-
tified, asked them to leave the store.
There are no credibility resolutions necessary to resolve in
these accounts. I did note that Sachs emphasized the apposi-
tive ‘‘in fact’’ both times he said it.
February 22, 1988; Smithfield; Paragraph 6. Dixon made
two trips to this store this date. About 7 a.m. he stood
around the office area at the front end of the store; in that
area are the manager’s booth, the timeclock, and a row of
cash registers. Dixon spoke to no employees at this time;
after a while, he left. At 9 a.m. he returned to the store,
bought a cup of coffee, and walked with it to the front area
of the store. According to Dixon:
I observed an employee get out of his car and come
in to work and he was carrying his smock, and I gave
him an authorization card [and] identified myself. And
as I was standing there shaking hands with the em-
ployee [Store Manager Donald] Gregory came out of
the office and . . . at that time he said I was loitering.
If I didn’t leave the store, he would call the police and
have me arrested.
Dixon continued to stand around the area, and Gregory told
him, ‘‘Dixon, get your bail money ready; you’re going to
jail.’’ The police arrived within a few minutes; they asked
Dixon to leave, which he did.
Gregory testified that he was not there on Dixon’s first trip
to the store that day, but the visit was reported to him by
employees. While Dixon was there the second time, accord-
ing to Gregory:
I noticed one of my employees coming in the door;
he walked over toward the time clock, and right before
he got to the time clock . . . Mr. Dixon approached
him, and started to talk to him.
I interjected at the time, as it was after nine o’clock,
and the employee was scheduled to report at nine
o’clock, and I told him to go ahead and punch in; he
needed to go ahead and go to work.
And Mr. Dixon, at that time, started telling me what
his rights were under the National Labor Relations
Board [sic], and this type thing. And I told him that the
employee needed to go to work.
. . . .
We exchanged some words; his voice got louder and
louder and at that time, I asked him to leave the store.
He continued to tell me what his rights were; I told him
to please leave the store, that I was the store manager,
and if he did not leave, I’d call the police.
As Dixon testified, Dixon did not leave, and the police
were called.
Again, there is no significant credibility resolution to make
about this incident. I am confident, however, that both men
were loud.
(2) Surveillance and creation of the impression
of surveillance
Surveillance and impression thereof; September 1, 1986,
and thereafter; Oyster Point. Respondent’s Oyster Point store
was purchased from another Norfolk food chain in Sep-
tember 1986, or about 3 months before the settlement agree-
ment was approved. At the time, Gerald James was the store
manager. James remained Oyster Point store manager until
he was succeeded in May 1987 by Gerald Mingee. One of
the subordinates of James and Mingee was Daniel Hoadley,
frozen food and dairy department manager, whom I find and
conclude was a supervisor within Section 2(11) of the Act.3
Hoadley was called as a witness by the General Counsel.
He freely admitted prounion sympathies, friendship with
Union Representative Terry Dixon, and bad feelings about
the circumstances under which he resigned his employment
with Respondent in September 1987.
Hoadley testified that in July or August 1986, when the
Union was attempting to organize Respondent’s predecessor,
James conducted a supervisors’ meeting. According to
Hoadley:
And George James said that the reason that we were
called in there was [that] there was a log book that
wanted [sic] to be kept on the union activity. And that
this log book would be kept up in the front podium.
And any time that a Union representative was seen
coming into the store, talking with an employee that
that employee was going to be confronted4 and this was
what he wanted logged in this book. It was to keep up
with the activity going on within the store.
Hoadley testified that James told the supervisors to write
down the names of the employees spoken to by union rep-
resentatives. Hoadley testified that a log book was created
and kept at the manager’s podium, ‘‘locked up in a drawer’’
to which only the store manager, the assistant store manager,
and the front end supervisor5 had access. Hoadley testified
that he told those under his supervision, about four employ-
ees, what James had said in the meeting. Hoadley further tes-
tified:
They were just curious as to whether or not they
would lose their jobs [if] they were seen talking with
a representative. . . . I told [them] that was very prob-
able. And that it wasn’t up to me, but it was pretty
clear that something, some kind of action would be
taken.
917FARM FRESH, INC.
6 The transcript, p. 292, L. 5, is corrected to change ‘‘own’’ to ‘‘zone.’’
7 Hepner testified that the Union received the book from persons unknown
through the mails.
8 Respondent has two stores on West Mercury Blvd. in Hampton, Virginia.
Unless otherwise stated, all references are to the larger of the two, store num-
ber 269.
Hoadley further testified that after Respondent took over
the Oyster Point store, James conducted another meeting of
department heads. At this meeting James stated that Re-
spondent’s zone6 manager, Dennis Patterson, had stated that:
They wanted to make sure that the book was being
kept on, kept up on and kept up with. And that they
stressed very strongly that when there was activity
within the store to have this logged down into the book.
In May 1987 James was succeeded by Gerald Mingee as
manager of the Oyster Point store. Hoadley testified that
about that time Mingee conducted a meeting of department
heads in which he told them:
And he was aware of the problem of the organizers
coming around to the store and trying to approach the
employees. And he was aware of this log book. And he
wanted us to make sure that we were keeping up with
it. And keeping up with the organizers when they came
into the store. And that he wanted to continue to have
these things logged into this book. . . . Just whoever
[Dixon] talked to, who he approached, what he may
have done in the store.
James was not called to testify; Mingee testified, but he did
not dispute this testimony by Hoadley.
The logbook was offered in evidence by the General
Counsel and received over Respondent’s objection. Respond-
ent renews its objection in its brief and moves to strike the
document from the record. Respondent’s argument, in its en-
tirety, is:
To the extent that this log was maintained by Farm
Fresh following the merger, it was done on the advice
of counsel in connection with pending or anticipated
litigation. As such it was privileged, and its admission
in evidence was error. Patrick Cudahy, Incorporated,
288 NLRB 968 (1988). [Br. p. 45, fn. 35.]
In citing Cudahy, Respondent appears to rely on the attor-
ney-client privilege; however, in referring to anticipated liti-
gation, Respondent seems to rely on the work product exclu-
sionary rule. I find that neither applies. It was not the attor-
ney’s work product; it was that of the manager’s. Assuming,
somehow, that it was the work product of the attorney, the
privilege still would not apply. Respondent did have abun-
dant reason to expect litigation with the Union. As recited
above, Respondent has been charged many times with unfair
labor practices. Additionally, on at least three occasions in
the fall and spring of 1986/1987, the Union conducted what
were, at the hearing, called ‘‘blitzes’’ of Respondent’s stores.
These blitzes consisted of from four to eight union represent-
atives going into the stores, strewing union literature on the
floors, grocery shelves, meat and dairy cases, nonpublic-ac-
cess storage and workrooms, and any other areas the union
representatives could physically gain access to, and soliciting
employees who were trying to work. The Oyster Point store
was one of those that was ‘‘blitzed.’’ However, while Re-
spondent may have anticipated litigation over future tres-
passes, there is no evidence that the logbook in evidence was
maintained after the merger solely for that purpose.
Moreover, assuming that the privilege ever applied, Re-
spondent is required to secure the document. As stated at 8
Wigmore, Evidence, Sec. 2298:
All involuntary disclosures, in particular, through the
loss or theft of documents from the attorney’s posses-
sion, are not protected by the privilege, on the principle
. . . that, since the law has granted secrecy so far as
its own process goes, it leaves to the client and attorney
to take measures of caution sufficient to prevent being
over heard by third persons. The risk of insufficient
precautions is upon the client. This principle applies
equally to documents. [Emphasis in original.]
Therefore, any attorney-client privilege was destroyed when
the person (whoever it was)7 took it from lock and key and
turned it over to the Union, which, in turn, turned it over to
the General Counsel (who is not accused in participating in
the theft). I adhere to my ruling, and Respondent’s motion
is denied.
Hoadley identified the first entry, dated ‘‘1–14–87’’ as
having been signed Ron Yates, front end supervisor. The
entry notes a visit by Union Representative Terry Dixon and
his contacts with three employees who are
An entry dated ‘‘1–15–87’’ by Linda King, another front
end manager, recites contact by Dixon with two named em-
ployees and King’s questioning of a named night stocker
about his contact with Dixon.
An entry immediately following that one, apparently also
made on January 15, is by Hoadley; it recites a short discus-
sion with Dixon. Hoadley testified that King had seen Dixon
and ordered him to make the entry.
An undated entry, which appears between entries between
January 15 and March 12, recites a visit by Dixon and his
contact with one named employee. The author is not indi-
cated.
An unsigned entry dated ‘‘5–21 87’’ notes that Dixon was
talking to a named employee ‘‘on the clock.’’
An entry dated ‘‘6–13’’ by Morris Siebert, another front
end manager, records Dixon’s contact with a named em-
ployee while she was ‘‘outside on her way to work.’’
The last entry is dated ‘‘6–17–87.’’ Written by Siebert, it
notes a visit by Dixon and his contact with a named em-
ployee who was ‘‘off the clock.’’ This was the last entry in
the log. There were several other entries that only noted the
times Dixon, sometimes accompanied by other union rep-
resentatives, came and left.
Surveillance; February 3; West Mercury Blvd.8 Union
Representative Hepner testified that he and Dixon went to
the store about 7 p.m. and stayed in the snackbar ‘‘a total
of two hours off and on.’’ Night Manager Todd Briley came
into the snackbar about 5 minutes after they arrived. He posi-
tioned himself in a booth about 20 feet from the one in
which Hepner and Dixon sat; Briley turned at an angle so
that he was directly facing the union representatives. At first,
no employees were in the snackbar on breaks. Hepner and
Dixon got up to walk around the store to see if there was
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
any other place at which the employees could be taking
breaks. Briley followed them. When they would stop, Briley
would stop. Then Briley would follow them, as close as 5
or 10 feet, when they would start walking again.
Hepner and Dixon, after 5 or 10 minutes of this, returned
to the snackbar. Briley followed them and again sat at an
angle in a booth so that he was directly facing the union rep-
resentatives. The union representatives had three exchanges
with employees in Briley’s presence. The first was an em-
ployee whom Hepner stopped as he walked by the table at
which Hepner and Dixon were seated. Hepner said, ‘‘excuse
me,’’ introduced himself, and asked him to accept some lit-
erature that had a union authorization card attached. The em-
ployee took it, but then he then announced that he was
throwing it away; he did discard it in a trash receptacle im-
mediately behind Briley. The second employee was a woman
who, according to Hepner, ‘‘came in kind of on the other
side of the booth where we were.’’ Hepner walked over and
introduced himself and asked the woman to accept some
union literature. The employee took it, read it, and then an-
nounced that she was tearing it up; she did so and also de-
posited the scraps in the trash can behind Briley. The third
employee invited Hepner to come to her table; she told
Hepner that she wanted to talk to them but could not then
do so, nodding her head toward Briley as she did so.
There is little difference in the testimony of Briley, except
that he testified that he stayed somewhat further from Dixon
and Hepner than they claim. Briley testified Dixon had been
in the store many times before and talked to employees, and
distributed literature to employees, while they were working,
and this was the reason he followed them.
Briley further acknowledged that he followed Dixon each
time he went into the store and watched him while he was
in the snackbar. Briley acknowledged that, after the union
representatives left, and when he was in an enclosed office,
out of sight of any employees, he made notes of union visits,
and he transmitted to his superiors. These notes included the
names of the employees to whom the union representatives
spoke; he did not qualify his acknowledgement to state that
he made such notes only when the employees involved were
on duty. (The General Counsel does not contend that this
note keeping is a violation of the Act.)
Surveillance; February 26; Kempsville Road. Donald
Dickerson is the Union’s organizing director; Mike Trotter is
an organizer. Hepner testified that he, Dickerson, and Trotter
entered the store about 11 a.m., and they went directly to the
snackbar. Each bought coffee and sat down. Within 5 min-
utes four men, whom Hepner could not identify by name, en-
tered the snackbar. Each of the four was wearing a tie and
a green name tag that, according to Hepner’s observation,
was usually worn by department heads. The four men stood,
arms crossed, within 5 to 10 feet of the seated union rep-
resentatives for the entire time that the union representatives
were in the snackbar. There were employees in the snackbar,
but the union representatives made no attempt to talk to them
because of the presence of the four men. After 15 minutes
of this, the union representatives got up and left. The four
unidentified men followed them to the front of the store, then
out the door. They stood before the door and watched as the
union representatives got in their automobile and drove
away. No words were exchanged between the four unidenti-
fied men and the three union representatives.
Lawrence Green was store manager at the time. He denied
knowledge of any such incident. Green testified that he had
witnessed only two incidents with union representatives; a
blitz (defined above) in the spring of 1986, and a confronta-
tion with Dixon in the fall of that year. Green further testi-
fied that sometimes assistant department heads wear green
name tags such as those described by Hepner and that all
male employees are required to wear ties.
Hepner was completely credible in his account of the inci-
dent, and I find the facts to be as he described.
Surveillance; February 26; Merrimac Trail. Eva Andriuk,
another union organizer, testified that she and Dixon entered
the store and went to the snackbar. She purchased a soft
drink. After she and Dixon had been there 3 to 5 minutes,
Assistant Store Manager Edward Sheedy entered the snack-
bar and sat opposite them, about 25 to 30 feet away. Andriuk
testified that Sheedy had nothing with him and that, ‘‘he was
just sitting there looking at the workers and at myself and
[Dixon].’’ After an hour of this Andriuk got up and left the
snackbar; Sheedy followed closely behind until she went out
the front door. On cross-examination, Andriuk acknowledged
that when she went to Respondent’s stores she brought lit-
erature to distribute to employees, but she testified that she
would distribute the literature only after she was seated with
the employees.
Dixon testified about this incident; his testimony is essen-
tially consistent with that of Andriuk, except he also placed
Produce Manager Charlie Gilbert with Sheedy. Also, Dixon’s
testimony is not clear that Gilbert and/or Sheedy came in
after he and Andriuk arrived in the snackbar. Dixon testified
that he and Andriuk approached employees and handed out
literature during this visit. On cross-examination Dixon ac-
knowledged that at one point he and Andriuk got up, walked
around the store, returned to the snackbar, and sat down for
another 30-minute period during which he bought nothing.
Dixon acknowledged that one reason he walked around the
store was to let employees know that he was there.
About this incident Sheedy testified:
They sat at one booth, and Mr. Dickson and the fe-
male had gotten up from their booth and put pieces of
paper on—in front of anybody at any table in the cafe-
teria at the time; and it—one of those people was a cus-
tomer.
Dixon and Andriuk generally denied that they engaged in
such conduct; however, I found Sheedy credible on the point.
Sheedy did not deny the remainder of the testimony by
Dixon and Andriuk about the February 26 incident.
Surveillance; March 2; Merrimac Trail. Dixon testified
that he went alone to the snackbar and purchased a cup of
coffee. Sheedy came into the snackbar and sat at a booth
about 20 feet away. Dixon was asked and testified:
Q. Was he doing anything?
A. Not that I noticed, no.
Q. How long did you stay that day?
A. About two-and-one-half hours.
Q. Did Mr. Sheedy watch you the entire two-and-
one-half hours?
A. I had walked the store about three times. Cause
while I was there after a long period of time no one
had taken breaks. I thought that to be very unusual for
919FARM FRESH, INC.
9 Alleged in par. 9 of the complaint.
being such a large store. I walked the store to let the
people [see] that I was going to be in there, to identify
myself.
Dixon testified that Sheedy followed him in these walks.
After his last walk around the store, he returned to the snack-
bar. Sheedy followed him and sat down. After a while Dixon
left the store; Sheedy followed him and watched him leave.
Sheedy did not deny this testimony.
Surveillance; March 18; Merrimac Trail. Andriuk testified
that she and Dixon again went to the snackbar at the store
between 11 a.m. and noon. They ordered and sat down.
About 3 to 5 minutes after they arrived, Sheedy and Gilbert
arrived in the snackbar. They sat in a booth about 10 feet
away and stayed there the entire time she and Dixon were
in the snackbar. (Andriuk did not indicate how much time
that was.) She and Dixon spoke to the 8 or 10 employees
who were there on break, and, as they did so, Sheedy and
Gilbert watched. She denied that Sheedy and Gilbert were
eating, or that they were working on papers at the time.
When the union representatives left, Sheedy and Gilbert fol-
lowed them to the front door.
On cross-examination Andriuk acknowledged that, as indi-
cated in her pretrial statement, Sheedy and Gilbert ordered
lunches about 12:15 p.m.
Sheedy did not dispute this testimony. In fact, he acknowl-
edged that every time Dixon entered the store, he followed
him around or sat where he could watch what Dixon did in
the snackbar. Sheedy also acknowledged that he regularly
followed Dixon as Dixon left the store and watched as Dixon
went to his automobile.
Dixon did not testify about the March 18 incident.
Surveillance and attempted confiscation of union lit-
erature; April 2; Merrimac Trail.9 Dixon testified that he
and Andriuk went to the snackbar at the store and stayed for
about an hour talking to employees. After they arrived,
Charles Gilbert, produce manager, came in and sat down at
a booth 15 or 20 feet away. Gilbert was accompanied by
Paul Purdham and a third man whom Dixon could not iden-
tify. Dixon and Andriuk left the snackbar, and Gilbert fol-
lowed. The union representatives went to the produce section
where Andriuk purchased some fruit. They went to the
checkout section and Andriuk got in line.
Dixon testified that he left the line to go to the public rest-
room, which is located at the front of the store. Dixon de-
scribed the restroom as about 15 by 20 feet, having a toilet
and a urinal with a sink next to the urinal. Dixon went to
the urinal and laid his folder on the sink. The folder then
contained signed authorization cards and other union lit-
erature. Gilbert, Purdham, and the third man entered the rest-
room. Dixon testified:
Mr. Gilbert saw I was using their urinal and reached
for my folder; and I put my hand on his and asked him
what he was doing. He said he wanted the Union au-
thorization cards. . . . And, I put my hand on him–-on
his hand to stop him from getting the folder and turned
around and asked him what he was doing and he said
[that] he wanted the Union authorization cards. And, I
proceeded to walk around him . . . and he nudged me.
. . . And then [Purdham] stepped over and he nudged
me. That’s when I yelled for [Andriuk]. . . . I opened
the door and [Andriuk] stepped right into the bathroom,
and that was it. Eva said, ‘‘We better go; you look pret-
ty shaken up.’’ And that was it.
Gilbert and Purdham were called by Respondent. Both tes-
tified that only they, and not any third man, followed Dixon
into the restroom, and I find that was the case.
Purdham and Gilbert testified that they had jut gotten off
duty; Gilbert had bought some beer, and the two stood to-
gether on one of the register lines. According to Purdham:
We were going through the line purchasing some
merchandise, and we noticed Mr. Dixon was hanging
around the front end of the store.
And I didn’t really think nothing about it. We were
going through the line and we noticed him, about four
or five registers down, talking to a cashier. We didn’t
think nothing of it; and, as we were going through the
line, we noticed him coming in and out of the rest
room, the men’s rest room several times.
So Mr. Gilbert turned to me and asked me if I would
come along with him to see what was going on. I said,
‘‘Okay,’’ and as we walked into the bath room there
was a bagger coming out.
Gilbert testified on direct examination:
I saw Terry Dixon talking to a cashier as she was
ringing an order through; and Dixon came back to the
rest room, which is located right on the front, and he
followed an employee into the rest room.
Now, [Purdham and] I were ready to go home, so I
said, ‘‘Paul, let’s you and I go in, see what’s going
on.’’ So on the way inside—in the rest room, the em-
ployee was coming out.
On cross-examination, Gilbert was asked why he went into
the restroom and he testified only: ‘‘Because I had seen him
talking to a cashier while she was ringing groceries, and I
wanted to ask him about that.’’ Gilbert acknowledged that he
had not heard what Dixon had said to the cashier, that cus-
tomers and cashiers do converse, and that the cashier had not
complained to him. Gilbert further acknowledged confronting
Dixon while Dixon was urinating; when asked why he had
not waited until Dixon had come out of the restroom, Gilbert
replied: ‘‘I don’t know. We just wanted to go in and see
what was happening.’’
Gilbert denied that he had, immediately previous to this
incident, been in the snackbar when Dixon and Andriuk were
there, as Dixon claimed. Purdham was not asked what he had
been doing before he and Gilbert noticed Dixon following
baggers in and out of the restroom. Gilbert and Purdham de-
nied that either of them touched Dixon, or his folder con-
taining the authorization cards, and they denied that Gilbert
stated that he wanted the materials in the folder. They testi-
fied that Gilbert just leaned backwards against the sink and
stated to Dixon, who was facing the opposite direction as he
was at the urinal, that he wanted to ask Dixon if he were
not prohibited from talking to employees who were ‘‘on the
clock.’’ Dixon replied by yelling that they would know when
he was talking to employees who were working.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 There are reported cases on confiscation of literature, but these involve
cases in which supervisors confiscate literature from employees. There are no
cases of confiscation of literature from nonemployee union organizers, and I
find it unlikely to the point of disbelief that the phenomenon occurred here.
11 Par. 20(c) of the complaint. This allegation concerns the smaller of Re-
spondent’s two West Mercury Blvd. stores.
12 Tr. 129.
Gilbert and Purdham conflict somewhat about why they
followed Dixon. However, they were consistent and credible
about what happened in the restroom. Moreover, Dixon’s tes-
timony that Gilbert said, in haec verba, that he wanted the
union authorization cards is too much to believe, and I do
not. As well as being ‘‘too pat,’’ and not ringing true, there
is no reason to believe that Gilbert would have thought that
confiscation of the cards would have brought Gilbert, or Re-
spondent, anything but trouble.10 Finally, if Dixon had actu-
ally thought he was being assaulted, and if he had called
Andriuk to come and assist him (in the men’s restroom), and
if Andriuk had actually come into the restroom, Andriuk
would have been asked to testify about the matter. Although
she testified about other matters, she was not asked about
this incident.
In summary, I credit the testimony of Gilbert and Purdham
about what happened in the rest room on April 2.
Surveillance and impression of surveillance by posting of
notice; spring of 1987; West Mercury Blvd.11 Employee
Linda Boitnott testified that during the spring of 1987, for
a period of at least 3 weeks, a notice was posted in the em-
ployee breakroom near the timeclock that is used by employ-
ees and some supervisors. Other notices that were posted on
that board concerned such matters as equal employment op-
portunities. Boitnott testified that a few days after the notices
were first posted, a stack of the notices was also placed on
a table near the posting; before the events of this case, other
postings, such as notices about insurance coverage, had been
accompanied by stacks of copies for employees to take.
The notice, on Farm Fresh stationery, is dated April 10,
1986. (Boitnott testified that, when it was posted, it was ap-
parent that it was old.) It is addressed to store managers, and
it is from Jim Cox who is vice president of human re-
sources.12 The topic line is: ‘‘RE: No Solicita-
tion/Distribution Policies.’’ The memorandum is four pages
long, and it refers to attached no- solicitation and no-distribu-
tion rules. The General Counsel does not contend that either
of the attached rules are facially invalid. The General Coun-
sel does contend that the posting and enforcing of the memo-
randum constitutes a violation of Section 8(a)(1) insofar as
it applies to Respondent’s snackbars.
The introductory paragraph of the five-page memorandum
is:
The attached statement of our basic solicitation and
distribution policies should be posted in appropriate
store locations where it will be seen by employees
promptly. In addition, we have prepared the following
guidelines regarding appropriate responses to problems
involving solicitation and distribution by outside orga-
nizers for your attention and discussion with appro-
priate members of management and supervision.
The second paragraph recites that nonemployees had come
into private and public areas of the stores for purposes of so-
licitation and distribution, and that guidelines for each area
of the stores were being stated. The guidelines for the snack-
bar areas are those placed in issue by the General Counsel;
they are:
This area is likely to be the focus of activity by out-
side union organizers. Typically they will attempt to so-
licit employees in this area and may distribute literature
while posing as snack bar/cafeteria patrons. It is impor-
tant to understand what our rights are regarding the use
of the snack bar/cafeteria by outside organizers.
The snack bar/cafeteria is for patrons or customers.
Outside union organizers have the same rights to use
the snack bar/cafeteria as any other patrons. This means
that they may sit, order food and drinks and converse
privately and in a non-disruptive manner for a reason-
able period of time on any subject with employees, pro-
vided that the employees are off duty. Outside union
organizers are not permitted to solicit employees while
they are on duty or to disrupt or harass our customers.
They may, of course, engage in casual conversation
with customers unrelated to union solicitation.
Here are some more specific guidelines for dealing
with problems involving outside organizers which may
occur in the snack bar/cafeteria:
1. The snack bar/cafeteria should be alert to the pres-
ence of outside union organizers and should imme-
diately notify the store manager or the assistant man-
ager of their presence. Both the snack bar/cafeteria
manager and the store manager should remain alert to
evolving problems once the presence of the union orga-
nizers is detected.
2. The outside organizers have a right to sit in
booths or at tables as patrons. They do not have the
right to occupy booths and tables for extended periods
or in such a way as to prevent other patrons from using
the restaurant. Normally, assuming their activities are
otherwise unobjectionable, they may remain for the pe-
riod of time reasonably needed to consume whatever
food items and drinks they may order. However, just as
others would not be permitted to loiter, the outside or-
ganizers may be asked to leave if it becomes clear that
the snack bar/cafeteria facilities are being used by them
merely as a meeting place for union business or for a
series of meetings with employees, rather than to have
snacks, drinks or meals as patrons normally do. The
point when they may be asked to leave will occur when
the outside organizer has had a reasonable period of
time to complete a meal or snack as the case may be.
For example:
a. Two or three cups of coffee or soft drinks in
a one-half hour period is probably reasonable, but
lingering much beyond that to the point where the
facilities are obviously being used merely as a meet-
ing place need not be permitted even if the union or-
ganizers order additional drinks or coffee, just as you
would not permit others to loiter or abuse the facili-
ties.
b. Similarly, a reasonable time should be allowed
to order and eat a meal, including an additional 15
or 20 minutes to have coffee or tea at the end of the
meal, after which they may be asked to leave.
921FARM FRESH, INC.
3. The outside organizer may not use a booth or
table as a point of distribution of union literature to em-
ployees who pass by the booth or who momentarily sit
at the booth for the purpose of receiving the literature.
However, the handing of a brochure or union card to
an employee who is sharing a booth during his/her
brake meal [sic] or other non-working time and engag-
ing in conversation with the organizer is permissible.
4. Snack bar/cafeteria managers should make a
record of any such incidents, including the following:
a. Identity or description of the outside organizer
(not employees)
b. Time of arrival
c. Location of activity
d. Distribution of literature or other activities
which may be beyond the scope of proper conduct
as outlined above.
e. Whether they were asked to leave and, if so,
what was said by all parties
f. Time of departure.
These descriptions should be sent to me or to my staff
promptly. If any problem situations have occurred, we
should be notified by telephone immediately.
Clayton Hewitt, the store manager during the time in ques-
tion, was called by Respondent. On direct examination Hew-
itt testified that he had not seen the memorandum before the
hearing opened. He was further asked and testified:
Q. Did you ever see that document posted at Store
213 while you were manager there?
A. I don’t recall seeing it, no.
Q. Did you ever see copies of that document in that
store while you were manager there?
A. No.
To the extent Hewitt’s professed inability to recall seeing
the document posted was intended to operate as a denial, it
is discredited. Boitnott had a more credible demeanor than
Hewitt. In addition, when, on cross-examination, Hewitt was
asked if he kept track of what was on the bulletin board, he
replied: ‘‘I would—may or may not have seen documents on
the bulletin board. I really didn’t watch them or read them
that much.’’ I believe that any of Respondent’s store man-
agers, especially in the context of an organizational cam-
paign, did watch the bulletin boards in their respective stores,
and they watched them closely. However, if Hewitt was as
derelict as he claimed, his testimony that he did not remem-
ber seeing the memorandum is even more meaningless.
I further credit Boitnott’s testimony that a stack of the
memoranda was maintained in the breakroom, and discredit
Hewitt’s testimony to the contrary.
Surveillance; November 30; Suffolk. Dixon testified that he
sat in the snackbar for about 30 to 45 minutes, and during
that time no employees came in. He further testified that
Store Manager Michael Sachs came into the snackbar twice;
Sachs sat at a booth for a few minutes looking at Dixon and
then got up and left. Nothing was said between the men.
This testimony was not denied.
(3) Interrogation
February 16; Warwick Blvd. Former employee Shelia
Bement testified that she became active in the organizational
campaign in December 1986, or January 1987. This activity
consisted of talking to other employees, during nonworking
time, about signing union authorization cards. Two or three
times a week she would meet with union representatives in
the store’s snackbar. This activity continued through the
spring of 1987.
Bement testified on direct examination that on February 16
she was called from her place of work in the video rental
department to the office of Store Manager Gerald Mingee.
Mingee introduced Bement to Robert Melody (who is alleged
to be an agent of Respondent’s within Sec. 2(13) of the Act).
Mingee told Bement that Melody was from the ‘‘home of-
fice’’ and stated that Melody was going to give Bement a
lie detector test. Then Mingee left the office.
Bement testified that before Melody gave her a polygraph
test, he asked her some questions. According to Bement:
He asked me questions of had I ever stolen anything
from the store; if I knew of anybody that had done that,
and if I knew of any thing that was called ‘‘the buddy
program.’’ I told him, ‘‘no.’’
. . . .
Then he asked me if I knew of anything—he re-
peated the questions again and then he asked me if I
knew of anything else going on in the store, and I
asked him what he meant, and he said, have I heard
anything about the Union, and I told him, ‘‘Yes, so has
everybody else in the store.’’
. . . .
He asked me if I had met with anybody and if I had
signed a union card, and I told him, ‘‘yes.’’
Bement testified that after the last question, Melody
hooked her up to the polygraph. Then he asked Bement sev-
eral questions about alleged thefts at the store. (Bement de-
nied any such knowledge to Melody, and there is no evi-
dence that Respondent ever suspected her of theft.)
Bement testified that the polygraph examination lasted
about 20 or 30 minutes. After the examination was over,
Melody asked her one more question:
He asked me if there was anything about the store
or my job that I could tell him that might help me out.
Bement testified that she told Melody, ‘‘no.’’
Bement testified that after the polygraph examination, but
before she left the office, she signed the following paper:
The examination now being over, I certify that I took
same voluntarily, was well treated, and remained of my
own free will, having been advised that I could leave
at any time. I was not asked any personal or private
questions unrelated to the investigation.
Bement testified that she signed the document without read-
ing it because, ‘‘I was in a hurry and I wanted to get out
of there. I was nervous.’’
On cross-examination Bement acknowledged that she
talked freely with other employees about her union sym-
pathies, but denied that she has mentioned them to any su-
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The transcript, p. 1769, L. 12, is accordingly corrected.
14 Credibility resolutions for this section are recited in the analysis.
15 Respondent denied that Wood was a supervisor within the meaning of the
Act. Fasciocco testified that Wood became night manager on February 7; be-
fore that she was front end supervisor, directly supervising baggers and cash-
iers. Wood testified that, as night manager, she was in charge of the entire
store (which had as many as 30 employees working on any given evening)
after about 5 p.m., at which time Fasciocco and Hilber usually left the store
for the day. As night manager, she had authority to direct, discipline, and
schedule employees, and to grant employees time off. None of this testimony
was rebutted by Respondent; no argument on the issue is made in Respond-
ent’s brief; and I find and conclude that, at all times material, Wood was a
supervisor within Sec. 2(11) of the Act, as alleged.
16 Franklin is not alleged to be a supervisor within Sec. 2(11) of the Act;
Knill is so alleged, but there is no probative evidence to support the allegation,
and the General Counsel does not argue the point in the brief. 17 Part-time employees, such as Carter, got unpaid breaks.
pervisor. She denied that Mingee told her that the investiga-
tion was about alleged thefts; she testified, ‘‘I was told it had
something to do with the store.’’
Melody was not called to testify.
Mingee testified on direct examination that he asked that
polygraph examinations be given at the store because, ‘‘I
was having problems with gross profits.’’13 He further testi-
fied that before the examinations he discussed with Melody
the areas of the store in which he was having problems.
Mingee was questioned about what was said between him
and Melody after the examinations. Mingee testified that
Melody told him that, after one employee had been exam-
ined, ‘‘the employee had told him [Melody] that he–-that she
wished that the Union people would leave her alone when
she was coming to work.’’ Mingee was asked to state what
employee had supposedly said this to Melody Mingee first
disclaimed memory; then he named Bement, but only after
blatant leading.
I credit Bement. There was nothing in her demeanor that
would tend to make her credibility suspect. She was not em-
ployed by Respondent at time of trial and had no apparent
reason to testify falsely. Finally, her account is not factually
denied because Respondent did not call Melody to testify
(and Respondent offered no reason for not doing so). Re-
spondent relies on the signed statement that Bement was not
asked personal or other questions unrelated to the investiga-
tion. Aside from the fact that Bement was subjected to a
pressure situation in that office, just what was ‘‘personal’’
and what was ‘‘unrelated to the investigation’’ was never de-
fined for Bement; she was told only that the investigation
‘‘had something to do with the store.’’
c. Alleged violative discharges and directly related
alleged 8(a)(1) violations
Warren Carter was employed by Respondent at its 21st
Street store in Norfolk from December 18, 1985, until he
was discharged on Friday, February 27, or Saturday, Feb-
ruary 28, depending on whose version is credited.14 During
his entire period of employment, he worked as a bagger. An-
gelo Fasciocco was the store manager at the time of the
events in question here, and Laura Hilber was head cashier;
subordinate to Hilber were Karen Wood, front-end supervisor
and, sometimes, night manager,15 and Rhonda Franklin and
Laurie Knill, front-end supervisors.16
Carter testified that, during his tenure, he was com-
plimented in his work by Hilber, and he was disciplined only
once—in January he got a written warning for being 20 min-
utes late to work.
Walter Kent Jr. was hired as a bagger at the 21st Street
store in December 1986, and was discharged on March 17,
1987. During this period he was a high school student and
generally worked nights and weekends. During his tenure
Kent received one written warning notice; this was for failing
to wear a tie on the job. Kent testified that, several times be-
fore his discharge, Hilber told him that he was doing a good
job. Hilber and Franklin testified that neither Carter nor Kent
was a good worker.
The complaint alleges that Carter and Kent were dis-
charged because of their union memberships, activities, or
desires. The complaint also alleges certain independent viola-
tions of Section 8(a)(1) of the Act as having occurred on
February 25, 1987; to wit, threatening employees with dis-
charge, conducting surveillance of their protected union ac-
tivities, and creating the impression of such surveillance, and
denying employees scheduled work breaks. These allegations
depend almost entirely on the testimony of Carter and Kent,
and the General Counsel contends that these alleged viola-
tions are directly relevant to the discharges of those employ-
ees; therefore, they are considered in this section of this deci-
sion.
(1) Events of February 25, 1987
Carter testified that on Wednesday, February 25, he was
scheduled to work from 3 to 9 p.m. He testified that
Fasciocco usually left for the day shortly after 3 p.m.; but
on February 25 Fasciocco came back to the store (at an un-
specified hour) and started walking around with a pen and
note pad in hand. He testified that he observed Fasciocco
watching union representatives who were in the store at that
time.
Carter testified that about 7 p.m. he asked Wood if he
could take a break.17 Wood said, ‘‘no.’’ About 8 p.m., he
asked again and:
she told me that ‘‘no,’’ she told me ‘‘no,’’ I couldn’t
take a break because Fasciocco didn’t want anybody in
the snack bar while the Union representatives were in
the store.
Carter also testified that Wood then asked him to work late
that night and he agreed and that he did work that night until
closing at midnight.
Carter testified that about 40 minutes after he asked the
second time, he asked Wood a third time for a break, and
Wood allowed him to go. He went to the snackbar where he
was approached by the union representatives whom he did
not name. Carter spent 10 minutes talking to the union rep-
resentatives in a booth. One of the union representatives gave
him a union authorization card, and Carter took it to the rest-
room and signed it. Further according to Carter:
And on my way out of the rest room I was met by
[a union representative], and I handed him the card, and
I turned around to go to work and I saw Mr. Fasciocco
standing about 10 to 20 feet away and he had a pen
and pad in his hand. So I just walked on by him and
continued to work.
923FARM FRESH, INC.
Carter was asked on direct examination if Fasciocco was
writing anything at the time, and Carter replied, ‘‘Yes. I saw
him marking something down but I wasn’t too sure what it
was.’’
Carter testified that after his break he relieved Kent who
went to the snackbar and joined the union representatives.
Carter further testified that about 5 or 10 minutes after he
got back to his work station at the front of the store,
Fasciocco came to the area and stood 5 to 10 feet away from
Carter. Carter testified:
and [Fasciocco] called Karen Wood from off the po-
dium and while I was bagging, I was going along bag-
ging the groceries, and I overheard him tell [Wood] that
she’s to keep an eye on the snack bar and keep a list
of names of everyone who [goes] back there and they
would be terminated.
Carter testified that he could hear Fasciocco ‘‘very clearly.’’
Kent testified that, on February 25, he worked from 5:30
p.m. to midnight. About 15 minutes after Kent arrived,
Fasciocco left the store, which according to Kent was
Fasciocco’s usual time for leaving the store for the day.
About 7:30 p.m., Kent asked for permission to take a half-
hour break, and Wood granted it. He met Carter who told
him that there were union representatives in the snackbar and
that Kent should go there and sign a union authorization
card. Kent went to the snackbar where there were four union
representatives, including Hepner. Fasciocco was in the
snackbar; he had purchased a cola when Kent walked in.
Kent sat at a table next to the union representatives’ table
and conversed with them. Hepner gave Kent a union author-
ization card that Kent took to the restroom to sign. Kent re-
turned to the snackbar and gave the card to Hepner; Kent
testified that, when he did so, Fasciocco was about 3 feet
away; Fasciocco was facing in Kent’s direction and ‘‘steady
moving’’ by the table at which Kent and Hepner were seat-
ed. After delivering the card to Hepner, Kent left the snack-
bar.
Kent testified that about 13 minutes of his 30-minute
break had elapsed as he left the snackbar. He started walking
toward the front door, on his way to a nearby fast food store,
when he was paged by Wood. He went to the front where
Wood told him to clock back in and that she would let him
finish his break later. Kent did so, but there was only ‘‘a lit-
tle bagging’’ to be done, and he spent the next few minutes
standing around talking to Wood.
Kent further testified that during that evening he saw
Fasciocco:
He was just walking down [sic] the store, pacing up
and down. He was in the snack bar, out of the snack
bar. Do [sic] receiving, in receiving, out receiving.
Receiving is adjacent to the snackbar. Kent testified that,
while Fasciocco was walking around, he had a pad and pen-
cil in his hand. Kent testified that for an unspecified period
of time after he returned to work, he saw Fasciocco as
Fasciocco was walking around the store, and ‘‘he was either
writing or he was just looking towards the snack bar.’’
Hepner testified that on February 25 he and Union Rep-
resentatives Dixon, Andriuk, and Mike Trotter went to the
21st Street store around 6 or 6:30 p.m. and they stayed for
about 2 hours. Hepner testified that he spent that time in the
snackbar, and the Union secured authorization cards from
eight employees that night, including Kent and Carter.
Hepner testified that when Kent returned to the snackbar
table he slid his signed authorization card across to him. At
the time, Fasciocco was walking by, and:
He was within arm’s length. You know, it [sic] was
right beside it [the table]. He just come by, kind of
pause and did that, you know, and went on.
‘‘That’’ was a motion Hepner made as he testified; Hepner
craned his neck over the side of the witness box and looked
down.
Hepner further testified that during the evening, Fasciocco
came in and went out of the snackbar several times, and he
was carrying ‘‘a little pad and a pen.’’
The General Counsel called Daniel Robinson who was
employed as a produce clerk on February 25, but was not
employed by Respondent at the time of the hearing. Robin-
son testified that on February 25 he worked from noon to 8
p.m. During the evening, ‘‘about 5’’ union representatives
came to the store, walked around the store and then sat in
the snackbar.
Robinson testified that he saw Fasciocco in the store after
7:30 p.m. Robinson testified that this was unusual because
Fasciocco usually left the store between 5 and 6 p.m. Robin-
son was asked if there was anything unusual about
Fasciocco’s conduct while he was there at that hour, and
Robinson testified:
And he was in the produce department a lot. In the
produce and in the deli a lot. Which is unusual. And
then he was talking to me a lot, which is unusual, too.
Because he did not have too much to say to me. . . .
He asked were people harassing me and those were the
basis [sic] question. And then he was asking about my
work which was unusual, because he usually doesn’t
ask about my work . . . . Like I said, he was asking
me questions, plus he was looking around. . . . Well,
he was looking toward the snack bar.
Robinson testified that standing in the produce department
one can see the interior of the snackbar and can see the deli
area. Robinson testified that he did not know what time
Fasciocco left the store because Robinson left the store at 8
p.m.
Finally, on direct examination Robinson was asked if
Fasciocco had anything with him, and Robinson replied that
he did not recall.
On cross-examination Robinson testified that during that
evening one of the union representatives gave him ‘‘one of
those little cards’’ while he was working, and that he saw
union representatives giving cards to six or eight other em-
ployees, all but one or two of whom were working.
Fasciocco testified that he worked late on February 25. He
testified that Wood called on a house telephone and told him
that there were four union representatives in the store. He
walked around the store for a bit, and he saw a union rep-
resentative giving literature to an employee who was work-
ing. He went to the snackbar and bought a cola.
Fasciocco denied walking around that evening with a pad
and pencil; denied ‘‘observing’’ the union representatives;
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
denied telling Wood that she should keep a list of all em-
ployees who went to the snackbar; denied telling Wood not
to let employees go to the snackbar; and denied telling Wood
that those employees who did go to the snackbar would be
terminated.
On direct examination Fasciocco was asked:
Q. What conversation did you have [with Wood]?
A. Just that business would be as usual. It was a
busy night, and just do what you normally do.
Q. Did you say anything else [sic] to her about em-
ployee break[s]?
A. Just the normal comments that I have always
made, which is baggers bagging, cashiers cashing,
which is what I always say the last three years when
I have been in the store.
Fasciocco denied seeing either Carter or Kent with the union
representative on February 25, and he denied knowing that
either had signed union authorization cards at the time of
their discharges.
On cross-examination Fasciocco was asked if the union
representatives were still in the store when he left that
evening Fasciocco replied:
I believed that they had left. But I wasn’t sure. They
had told me that there were three or four people in
there at the time. Like I said, I only remember two of
them, and when they left, I stayed for a few minutes
longer about 15, 20 minutes; talked with Ms. Wood and
just went about—told her about business that night, that
that was going to be a busy night in the store and just
make sure the cashiers and baggers stay up front and
do their job.
Fasciocco testified that, while he usually left the store at
close to 6 p.m., on February 25, he left at ‘‘around 6:30, 7
o’clock.’’ On cross-examination he was asked by the General
Counsel and testified:
Q. What were you doing that kept you in the store
that extra time?
A. At that time, I was walking around the store at
the time making sure regular business [sic] and to make
sure that nobody would do anything that would cause
any kind of violation.
Q. Make sure the Union organizers didn’t cause any
violation?
A. Mainly ourselves rather than Union organizers.
Q. Okay. That supervisors didn’t do anything that
caused a violation?
A. That’s correct, sir. Yes, sir.
Q. So, in order to make sure that no supervisors did
that, you needed to observe what the organizers were
doing in the snack bar; correct?
A. Never did I observe them. I walked through the
snack bar on one occasion and got a Coke and walked
around the store consistently like manager responsibil-
ities are.
None of the supervisors whom Fasciocco was supposedly
watching over (to make sure that they did not violate em-
ployee rights) was called to corroborate Fasciocco.
(2) Discharge of Carter
Carter testified that he was scheduled to work Friday, Feb-
ruary 27, but, before he could report, he was involved in an
automobile accident. After he called a tow truck, he called
the store and got Hilber who told him:
well, you’re already an hour late and if you don’t get
here in an hour, you’ll be terminated.
Carter arrived at work about 7 p.m., 3 hours late. He was
met by Assistant Store Manager Allen Adcock. Carter told
Adcock that he had been involved in an accident. Adcock
told Carter that Hilber had said that Carter ‘‘just wasn’t com-
ing in.’’ Adcock told Carter to come in the next morning and
talk to Store Manager Fasciocco.
The next morning Carter did go to see Fasciocco at the
store’s office. Fasciocco, after hearing pleas and protestations
from Carter left the office. Fasciocco returned after a few
minute; he told Carter that Hilber and the other supervisors
had said that he had been tardy, insubordinate, and had wan-
dered off the job. Carter protested that he had been a good
worker, had only been written up once, and that he could not
help being late because of the accident. Fasciocco replied
that he would have to let Hilber’s decision stand.
Carter’s personnel file contains an ‘‘Employee Status Re-
port’’ that lists as the reason for termination: ‘‘Come in late,
excessively.’’ The report is signed by Fasciocco who dated
the termination as ‘‘2–15–87.’’
Respondent contends that Carter was discharged because
another employee, with whom Carter had traded shifts, did
not appear for work for the morning shift of Saturday, Feb-
ruary 28. Respondent contends that the facts are that Carter
was scheduled to work a shift that began during the morning
of February 28; that on February 27 Carter asked for, and
received, permission to switch shifts with another employee
for February 28; that the other employee failed to appear for
the Saturday morning shift; and that, under a strict liability
rule involving such approved shift-switches, Carter was dis-
charged.
The rule pursuant to which Carter was discharged, under
Respondent’s theory of defense, was never promulgated in
written form. Front End Supervisor Rhonda Franklin and
Head Cashier Laura Hilber testified that in October 1986,
shortly after Hilber came to the store as head cashier, Hilber
conducted a meeting of cashiers and baggers. At that meeting
Hilber announced a rule that employees would be terminated
for one ‘‘no-show.’’ (This rule will be called the ‘‘one ‘no-
show’ rule.’’) Hilber and Franklin further testified that at the
meeting Hilber told the gathered employees that they were
responsible if they swapped shifts and their replacements did
not show up; if the person with whom they swapped shifts
did not show up, they, the employees originally scheduled,
were responsible and would be discharged. (This second rule
will be called the ‘‘absolute liability for shift replacements’’
rule.) Franklin and Hilber testified that they could not re-
member if Carter or Kent were present when this meeting
was conducted.
Franklin testified she had been given authority to approve
employees’ swapping shifts by Hilber. Franklin testified that,
‘‘on a Friday,’’ Carter asked her if he could swap with an-
other employee, whose name Franklin could not remember,
for Carter’s scheduled Saturday morning shift because Carter
925FARM FRESH, INC.
wanted to go to North Carolina on Saturday. Franklin testi-
fied:
I told him at that time that he could swap the shift, but
if the person he swapped with did not show up, then
he was to be there to work the shift.
Franklin testified that no one appeared for Carter’s Saturday
shift, which was scheduled from 10 a.m. to 6 p.m. Franklin
testified that after the shift was over she called Hilber and:
I told her that I had okayed for Warren Carter to swap
the shift and he did not show up; that that person that
he swapped with did not show up and that he [Carter]
didn’t show up.
She further testified that her Saturday call to Hilber about
Carter and his shift replacement could have been as late as
7 or 8 p.m. She testified that she did not ask Hilber to dis-
charge Carter; she was not asked what Hilber replied when
she reported to Hilber that neither Carter nor his shift re-
placement had appeared for the Saturday morning shift.
On cross-examination Franklin testified that, under the
strict liability policy regarding shift-swappers, the employee
who agreed to show for a shift, but did not, was not pun-
ished. Franklin was asked why, and she testified:
Because of—they weren’t—actually it wasn’t their
scheduled shift. They were doing a favor for another
employee.
Franklin further testified that she could not remember which
employee it was that Carter had asked for, and received, per-
mission to swap with, but she was sure that the shift replace-
ment would have been working there at the time.
Hilber testified that on Saturday, February 28, after ‘‘the
shift had come and gone,’’ she received a telephone call
from Carter. Carter told her that he was having car trouble
out of town and ‘‘would not be able to make it in.’’ Hilber
testified that she told Carter that ‘‘he had already missed his
shift and that he had been terminated as a result.’’ Hilber
was examined further about her conversation with Carter and
testified:
[Carter] told me that he was supposed to be there in the
afternoon and I said, ‘‘no; you were scheduled for in
the morning.’’ . . . He said that he had switched, and
I told him I was unaware of that. . . . I told him that
even though he had switched shifts he was still respon-
sible to make sure that whoever he traded with was
there and whoever he had traded with did not show up.
There was no one to cover that shift. So he was termi-
nated, yes.
Hilber testified that Franklin told her about the shift-swap-
ping, and the failure of Carter’s coswapper to appear, the day
after Carter had failed to appear and was fired by her (which
would have been Sunday, March 1, or possibly Monday,
March 2). Hilber testified that Franklin had no authority to
allow employees to swap schedules after Hilber had made
out the schedule, and that she told Franklin so in the con-
versation following Carter’s discharge.
Hilber was asked on cross-examination what had become
of the employee with whom Carter has switched shifts;
Hilber testified that she investigated the matter at the time,
but she could not remember the name of Carter’s shift re-
placement, and that she believed, ‘‘that person had already
quit early in the week that Carter allegedly had switched
shifts with.’’
Hilber was asked if, in the call in which Carter stated that
he had a replacement for his missed shift, Carter had said
that he knew nothing of the absolute liability for replace-
ments rule, would it have made a difference. Hilber replied
that it vould not have.
Hilber denied any knowledge that Carter supported the
Union or had signed a union authorization card at the time
of his discharge.
Adcock was called by Respondent. He was asked on direct
examination and testified:
Q. Did you ever have occasion to tell Mr. Carter not
to report to work?
A. I believe I did.
Q. Do you recall when that was?
A. February 28.
Q. Of what year?
A. ’87, which was a Saturday night.
JUDGE EVANS: We can’t hear you, sir.
THE WITNESS: February 28, a Saturday night of
1987.
By [Respondent’s counsel]:
Q. And why did you tell him not to report to work?
A. Because the—I was working that night in charge
of the store, and the head cashier, which was Laurie
Hilber which is in charge of the cashiers and baggers,
told me to, that he probably would be coming in at five
to work, and told me to tell him not to punch [in], that
he needed to see herself or the store manager, Mr.
Fasciocco.
On cross-examination Adcock added that Hilber told him
that Carter would probably be terminated, but she did not say
why.
Fasciocco disclaimed any direct knowledge of Carter’s dis-
charge. He testified that Hilber had told him that she had dis-
charged Carter because he had failed to show up for work;
Fasciocco stated that Hilber mentioned that Carter had traded
shifts; Fasciocco believed that Hilber had stated that Carter
had failed to show up for the shift for which he had traded,
not that his replacement had failed to appear. Fasciocco testi-
fied that after Carter appealed for reinstatement, he consulted
with Hilber; he saw no reason to reverse Hilber’s decision
to discharge Carter, and he let the decision stand.
Fasciocco was asked on cross-examination about the strict
liability rule:
Q. Now is there a rule about trading shifts at the
company that requires that if you trade shifts you’re lia-
ble still to perform the shift that you didn’t—if you
traded?
A. There isn’t a company policy per se. But every-
body is aware of the fact that—and they are told at the
time when they trade shifts that they are responsible for
the other shift, yes, that they’re traded with, and War-
ren Carter was aware of it, and he knew it.
Q. And so in addition to just not showing up, he was
also fired pursuant to this policy that if you trade shifts,
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
then the person who you trade with doesn’t show up,
you’re still liable?
A. I can only tell you that he was fired for not show-
ing up for work sir.
Later in the hearing, Fasciocco was asked on cross-examina-
tion and testified:
Q. Let’s see, the reason that Warren Carter got fired
was because he did not show up for work?
A. Yes, sir.
Q. And was that because his car had been broken or
something?
A. That is what he stated, yes, sir.
Q. And is the fact that an employee’s car is broken,
is that legitimate reason to miss work?
A. I think there are other reasons involved in this sit-
uation here.
Q. What other reasons?
A. No phone call. No comments, no nothing.
Q. Warren Carter did not call to say he wasn’t com-
ing?
A. As far as I knew.
Q. If he had called to say he was coming, then he
wouldn’t have been discharged?
Q. That situation would have been taken [sic], yes.
We would have thought about it.
Q. And not have discharged him?
A. Maybe not.
Carter denied that he ever asked to trade shifts with any
other employee, and he denied that he told Hilber that he had
done so when he called to report that he had been in an acci-
dent.
The General Counsel contends that the policy of strict li-
ability for shift replacements did not exist. The General
Counsel contends that Respondent has raised the issue as
something of a ‘‘red-herring’’ because Carter was told he
was discharged for his late appearance on Friday, February
27, and that Respondent knew that a discharge for such rea-
son, under the ‘‘one no-show’’ rule or otherwise, would not
withstand scrutiny.
Respondent’s rule regarding a single failure to appear for
work is an element in both the cases of Carter and Kent.
Respondent introduced into evidence a handwritten notice
that states:
No Shows Will
be Terminated
Laura
Hilber and Franklin testified that Hilber posted this notice,
in places sure to be seen by baggers and cashiers, after the
October 1986 meeting in which Hilber announced the policy.
Carter denied ever having seen the notice. Other documenta-
tion of the ‘‘one no-show’’ rule is contained on all warning
notices that Respondent issues to employees. The warning
notice received by Carter in January (for being late) states:
Three write-ups will result in termination. One no-show
will result in termination.
Hilber and Franklin were examined about the ‘‘one no-
show’’ policy at length. Hilber was asked and testified:
Q. Now after–-let me ask you this are there any ex-
ceptions to the no-show policy?
A. No.
Q. Every time an employee does not show up for his
shift, under your supervision, he is discharged; correct?
A. No.
Q. Why not?
A. The no-show policy refers to a person not calling
in, not giving me some sort of notice or reason as to
why they’re not showing up.
. . . .
JUDGE EVANS: . . . When a person does not show
up and hasn’t called in, is that person fired?
THE WITNESS: Yes, unless it’s something that was
beyond their control such as they were in an accident
and they were in a hospital and they–-you know,
there’s always circumstances that would be beyond
somebody’s control.
JUDGE EVANS: Did Carter tell you that he had been
in an accident?
THE WITNESS: He told me he had car trouble.
. . . .
JUDGE EVANS: All right. If a person called you and
said he had a flat . . . would he be discharged for not
showing up for his shift?
THE WITNESS: If they had called me prior to their
shift or some time close to their shift beginning, no
. . . I would not discharge them.
When Franklin was being cross-examined about the policy
for strict liability of employees if their shift replacements
failed to appear, she was also asked about the ‘‘one no-
show’’ rule. Franklin acknowledged that the employee who
had agreed to swap and failed to appear, and was not pun-
ished was, in that circumstance, a ‘‘no-show.’’
Karen Wood was also examined about the ‘‘one no-show’’
rule. She testified firmly that Carter was there when Hilber
announced the rule, but she, like Hilber and Franklin, could
not remember if Kent was there. Wood testified that there
was a rule of absolute liability if a shift replacement did not
show up; but she did not testify that the rule was announced
in the same meeting that Hilber announced the ‘‘one no-
show’’ rule. Wood testified that the ‘‘one no-show’’ rule was
a storewide rule.
The weekly time schedule and Carter’s time records were
placed in evidence by the General Counsel. The weekly work
schedule reflects that Carter was scheduled to work:
Wednesday, February 25—3 to 9 p.m.
Thursday, February 26—off
Friday, February 27—4 to 11 p.m.
Saturday, February 28—10 a.m. to 6 p.m.
The record of employee hours worked reflects that on the
following dates Carter worked the hours set opposite:
Wednesday, February 25—3 to 9:07 p.m.
Thursday, February 26—none
Friday, February 27—none
Saturday, February 28—none
927FARM FRESH, INC.
18 The copy received was in pencil; Hilber testified that a photocopy of this
would actually have been posted, obviously, so that unauthorized alterations
could not have been made.
On cross-examination Hilber was asked and testified:
Q. Now, it’s your testimony, is it not, that you fired
[Carter] for not coming to work on Saturday the 28th;
correct?
A. Correct.
Q. What happened on Friday the 27th of February
with Warren Carter?
A. I don’t know.
Q. He didn’t call you on that Friday, did he, and tell
you his car broke, did he?
A. I don’t recall what the reason is that he didn’t
work.
Hilber acknowledged that she would remember if Carter had
called 2 days in a row and claimed automobile problems
were keeping him from coming to work.
The General Counsel also introduced evidence that some
employees had been considered no-shows at the store; none
of these were under Hilber’s supervision; however,
Fasciocco, like Wood and Franklin, testified that the ‘‘no-
show’’ rule was storewide.
(3) Discharge of Kent
Just before midnight, Sunday, March 29, a day on which
Kent was not scheduled to work, Kent called the store be-
cause he wanted to know what his next day at work was. He
was put through to the countdown room, a room where cash-
iers tally their tills at shift changes. The telephone was an-
swered by Laurie Knill. Knill worked as a front-end super-
visor, but some of her duties took her to the countdown
room where the work schedules were posted.
Knill did not testify, but Kent testified that Knill told him
that his next day at work was Tuesday, March 31. Kent ap-
peared for work that day, not having appeared for work on
Monday, March 30. In his March 31 arrival, he was greeted
by Hilber who informed him that he did not have a job with
Respondent anymore because he had not appeared for work
on Monday, March 30. According to Kent:
I asked her, ‘‘Why? I thought I was suppose[d] to
work on Tuesday.’’ And she said, ‘‘You just no longer
have a job here.’’ And I didn’t say anything else to her.
. . . I turned in my smock, and I walked out the door.
During the following week, Kent’s father, Walter Kent Sr.,
visited and called Fasciocco and Hilber, appealing to them
that his son be reinstated. Kent Sr. told Fasciocco that he
thought his son was discharged because he had signed a
union authorization card; Fasciocco denied it.
Fasciocco and Hilber testified that they reviewed the mat-
ter but decided that Kent should not be reinstated because
Kent had actually been scheduled to work on Monday, and
he had failed to appear; therefore, Kent had violated Re-
spondent’s rule that one no-show was grounds for discharge.
To the General Counsel’s argument that Kent had received
from Knill the information that he was not supposed to be
at work on Monday, Respondent answers that employees
were responsible for determining, accurately, what their
schedules were, and telephone calls to get schedules were
discouraged. Respondent argues that, assuming Kent’s testi-
mony to be true, Knill was not a supervisor, so this was just
a case of one employee misinforming another employee
about his schedule.
A copy of the schedule for the week of March 29/April
4 was received in evidence as the General Counsel’s Exhibit
23. It shows that Carter was, in fact, scheduled to work from
5 to 11 p.m. on March 30.18
The General Counsel introduced credible evidence that
employees did call in and get their schedules from super-
visors and other employees. The General Counsel adduced
other evidence that three other employees in the preceding
year had missed a day of work and had not been fired; how-
ever, none worked under Hilber.
2. Analysis and conclusions
a. Alleged postsettlement 8(a)(1) violations
(1) Denials of access and threats of arrest to
nonemployee organizers
The General Counsel argues that each time Respondent
excluded, or threatened to exclude, the union representatives
from its snackbars, Respondent violated Section 8(a)(1) of
the Act. In so arguing, the General Counsel relies heavily on
Montgomery Ward Co., 288 NLRB 126, 127 (1988). That
case, in relevant part, holds:
6. The Respondent violated Section 8(a)(1) by
ejecting Lois Johnson, a nonemployee organizer, from
its buffeteria. The Respondent operates its buffeteria for
use by the general public as well as by employees for
meals and breaks. At the time she was ejected, Johnson
was meeting with off-duty employees while eating at
the Respondent’s buffeteria. Thus, she was clearly
using the buffeteria in a manner consistent with its pur-
pose. The Board and the courts have traditionally held
that solicitation in restaurants cannot be prohibited
when, as in this case, the conduct of the nonemployee
organizer is consistent with the conduct of other patrons
of the restaurant. Dunes Hotel & Country Club, 284
NLRB 871 (1987); Harold’s Club, 267 NLRB 1167
(1983), enfd. 758 F.2d 1322 (9th Cir. 1985); Ameron
Automotive, 265 NLRB 511 (1982); Montgomery Ward
& Co., 263 NLRB 233 (1982), enfd. as modified 728
F.2d 389 (6th Cir. 1984); Montgomery Ward & Co.,
256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir.
1982); Marshall Field & Co., 98 NLRB 88 (1952),
enfd. as modified 200 F.2d 375 (7th Cir. 1952). To
hold otherwise would license a property owner to pro-
hibit a union organizer from utilizing its restaurant sole-
ly because the organizer was discussing organizational
activities with off-duty employees (who are there in the
capacity of restaurant patrons). Such a prohibition,
which discriminates on the exclusive basis of the
union’s organizational activity, flies in the face of the
Supreme Court’s admonition against discrimination on
this basis when determining the propriety of access re-
strictions. NLRB v. Babcock Wilcox, 351 U.S. 105, 112
(1956). Even assuming the Respondent could have law-
fully prevented Johnson from soliciting in the selling
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
area, it could not prevent her from using its public res-
taurant in an orderly way, not disruptive of its business,
even though she had earlier made appointments with
employees on the sales floor. [Footnote omitted.]
Therefore, the issue becomes: were the union representa-
tives conducting themselves ‘‘in an orderly way, not disrup-
tive of [Respondent’s] business?’’ Guidance is found in a re-
view of the cases cited by the Board.
In the Montgomery Ward, 263 NLRB 233 (1982) case,
Union Representatives Wright and Tillet had gone to the em-
ployer’s snackbar, purchased beverages, seated themselves,
and spoke to employees who approached them. One em-
ployee at an adjacent table asked a question, and Wright slid
his chair to the employee’s table to answer it. They were or-
dered out by a supervisor. The Board found a violation of
Section 8(a)(1) of the Act. The Board reasoned above at 233:
On these facts, we conclude that the union represent-
atives were not attempting to use the public snackbar
in a manner inconsistent with its purpose. We do not
consider Wright’s move to the table adjacent to his, in
response to a question by an employee seated there, to
constitute the sort of circulating ‘‘from table to table’’
which an employer may lawfully prohibit.1 His conduct
was in no sense ‘‘table hopping’’ or solicitation of em-
ployees table by table, and was not inappropriate in a
public restaurant.
1 See Montgomery Ward & Company, Inc., 256 NLRB 800 (1981);
Marshall Field & Company, 98 NLRB 88 (1952).
In Harold’s Club, the Board based its finding of a violation
on the fact that the ejected union representative ‘‘did not
move from table to table or interfere with on-duty employees
in the vicinity.’’ In Montgomery Ward, 256 NLRB 800, 801,
the Board noted that the unlawfully ejected union representa-
tives were conducting prearranged appointments and ‘‘did
not move from table to table, try to distribute literature,
speak to employees who were not off duty, or in any other
way create a disturbance.’’ And in the seminal case of Mar-
shall Field, 98 NLRB 88, 94, the Board noted:
solicitation seriatim would basically alter those cir-
cumstances which differentiate the restaurant from the
selling floors. Moreover, it would be incompatible with
normal use of these facilities at the expense of Re-
spondent’s business.
(The remaining cases cited in the relied-on Montgomery
Ward, 288 NLRB 126 (1989), case, namely, Dunes Hotel
and Ameron Automotive, above, deal only with the facial va-
lidity of nonemployee solicitation/distribution rules, and not
specific conduct of organizers.)
The quoted passages make it clear that employers who op-
erate restaurants that are patronized by both the public and
its employees need not suffer the spectacle of union orga-
nizers, or anyone else, chasing employees around the res-
taurant, or ‘‘hopping’’ from table to table, to engage in
uninvited . solicitations or distributions.
In this case, the organizers made no claim of previously
arranged appointments; and they freely admitted circulating
from table to table and handing out unrequested literature
such as authorization cards. This technique of organization
must be borne in mind as the specific acts of alleged inter-
ference by Respondent are analyzed.
January 29; Wards Corner; Paragraph 6. Dixon, in effect,
admitted ‘‘table hopping in that he admitted leaving his seat
and going over to a table where two employees were, hand-
ing them authorization cards, and asking them if he could
talk to them about the Union. However, there is no evidence
that Poyner witnessed this. Poyner testified that he saw an
unnamed, on-duty employee standing at Dixon’s table when
he approached Dixon and asked if Dixon had a right to do
what he was doing.
Poyner did not explain why he considered the employee
to have been on duty, and I do not credit his bare assertion
that the employee, whom he did not (or could not) name,
was on duty against Dixon’s identification of the apparent
employee in question (Tynes) and his assertion that, while
Tynes was a snackbar employee, she was on her break at the
time. Therefore, even though the union representatives freely
engaged in ‘‘table hopping,’’ and Dixon had done it (appar-
ently immediately) before Poyner entered the snackbar,
Poyner did not witness it, and did not rely on it when he
ejected Dixon.
In summary, Dixon was not ‘‘table hopping’’ or engaging
in other unprotected conduct at the time he was ejected by
Poyner. Like Lois Johnson in the Montgomery Ward case,
Dixon was conducting himself consistent with the normal use
of the restaurant. Moreover, assuming the veracity of
Poyner’s testimony that Dixon had previously solicited an
employee on the sales floor, Respondent could lawfully have
prevented only that type of activity. Poyner was not, how-
ever, licensed to interrupt Dixon after the union representa-
tive had gone to the snackbar and had begun conducting
himself generally within a pattern of conduct typical of retail
customers.
Accordingly, I find and conclude that, by Poyner’s order-
ing Dixon to leave upon threat of arrest on January 29, Re-
spondent violated Section 8(a)(1) of the Act.
January 29; 21st Street; Paragraph 6. Dixon was ‘‘table-
hopping’’ at the time he was approached by officer Walker;
that is, he had gotten up from his table, gone to the back
of the snackbar, and was attempting to solicit employees
there when Walker and Adcock came up behind him. This
‘‘table hopping,’’ as discussed above, was unprotected activ-
ity, and Respondent had a right to eject Dixon (if not
Hepner) at that point.
Moreover, I find that, although Walker did make a threat
of arrest, Adcock and Walker immediately backed down
when shown, apparently for the first time, the settlement
agreement that spelled out the right of the union representa-
tives to solicit nonworking employees in the snackbar.
Adcock told them to ‘‘carry on’’ when he went to check (by
telephone) with Fasciocco; and Walker simply sat down and
chatted with employees. In other words, Hepner stood
Adcock and Walker down; he told them emphatically that he
and Dixon had a right to do what they were doing, and he
told them (emphatically, I believe) that no one was going to
jail that night. Then Hepner and Dixon sat down and did not
leave the snackbar until they decided to do so on their own.
Therefore, to any employee who observed the exchange, it
would have appeared that Adcock backed down (even with-
out the express apology claimed by Adcock).
929FARM FRESH, INC.
19 Distinguishing customers from employees was apparently not as simple
as one might think. Dixon testified on cross-examination that one of the pur-
poses of his frequent aisle-walks was ‘‘to see if there were any new employees
that we hadn’t noticed before—identify them when they came to the snack
bar.’’
In these circumstances, it appears that an immediate rep-
utation was issued, and there could have been no coercive
impact on the witnessing employees. Accordingly, I find and
conclude that Respondent did not violate Section 8(a)(1) of
the Act by the conduct of Adcock and Walker on January
29.
February 19; Southside Plaza; Paragraph 6. The credi-
bility resolutions enumerated above preclude the finding of
any violation of Section 8(a)(1) of the Act. Ricky Davis had
the right to stop Frank Davis from distributing literature to
working employees such as Donati, and he pursued a peace-
ful method of doing so.
March 2 and 3; Midlothian Store; Paragraph 6. Even if
nonemployee Davis were credited, it shows that he simply
ignored Store Manager Green on both days. Moreover, Davis
did not claim that there were employee witnesses to the
March 2 incident, he did not deny handing a union authoriza-
tion card to employee Ginon White in the store aisle, and he
was led to claim that Green spoke loudly enough for employ-
ees to hear on March 3. There is no coercive element shown
by the credited testimony, and I find and conclude that the
General Counsel has failed to prove violations of Section
8(a)(1) of the Act on March 2 or 3.
May 12; Wickham Avenue Store, Paragraph 5. The credi-
bility resolutions on this issue preclude a finding of any vio-
lation of Section 8(a)(1) of the Act.
September 30; Main Street; Paragraph 5. Dixon testified
that he and Metille were sitting in the snackbar when a fe-
male employee walked by carrying her coat and apron across
her arm. Dixon did not dispute that she was, in fact, on the
clock; he testified that he and Metille just did not know it.
An employee in the interior of a store, coat and apron in
hand, is either on the way to work, or on the way out; but,
in either event, she is on working time, either having just
punched in or on the way to punch out. Therefore, Dixon
and Metille had no reasonable basis to assume that the em-
ployee was not on working time.
Moreover, the union representatives were simply flagging
down persons passing by and handing them unrequested lit-
erature. No one could argue that such conduct is within the
general sphere of conduct expected of restaurant customers.
Additionally, a specific problem with this tactic is that union
representatives who employ it have no better than a one-in-
three chance that each such solicitation will be protected.
The persons snared may be (1) employees who are not on
working time, but they may also be (2) employees who are,
in fact, on working time (as was the case herein), or (3) they
may be customers.19 This was the risk Metille assumed when
he told the woman ‘‘excuse me’’ and, without request, dis-
tributed to her a union authorization card. Although Metille
and Dixon were apparently willing to assume the risks inher-
ent in flagging down unknown passers-by, there is no valid
argument that Respondent was required to let them do so.
In summary, even assuming that they had no reason to be-
lieve that the employee in question was working, Metille and
Dixon were venturing outside the sphere of protected non-
employee activity when they employed the tactic of flagging
down persons passing their table for purposes of
solicitationsand unrequested distributions. This conduct is es-
sentially indistinguishable from the ‘‘table-hopping’’ tactic
that was held, in the above cases, to be unprotected. There-
fore, Respondent could lawfully interdict such activity, as
Sachs did.
Accordingly, I find and conclude that, by Sachs’ causing
the union representatives to be removed from the snackbar
on September 30, Respondent did not violate Section 8(a)(1)
of the Act.
February 22, 1988; Smithfield Store; Paragraph 6. Dixon
was not in the snackbar; he was in a selling/business area of
the store, the front end, near the timeclock, when he greeted
and shook hands with, and handed an authorization card to,
an employee who was attempting to punch in. This non-
employee conduct is obviously distinguishable from the
snackbar/restaurant cases relied on by the General Counsel.
A premise of such cases is that nonworking employees in
restaurant areas are there as customers and the union rep-
resentatives are in the restaurants as customers; their vol-
untary exchange cannot be interrupted by management on the
premise that the employer’s property is being used for pur-
poses inconsistent with those for which it was intended. Nei-
ther Dixon nor the employee was in the timeclock area of
the store as a customer, and Dixon’s conduct was not of the
nature expected of customers in that area of the store; cus-
tomers do not usually stand around the cashiering/office area
of a grocery store and greet, and handshake, others who hap-
pen by, be they employees or the general public.
Therefore, Gregory had the right, on behalf of Respondent,
to stop such conduct. Dixon refused to respect this right, and
he was told to leave. Dixon’s conduct was not protected, and
I therefore find and conclude that, by Gregory’s conduct of
February 22, 1988, Respondent did not violate Section
8(a)(1) of the Act.
(2) Surveillance and creation of the impression
of surveillance
Maintenance of a surveillance log at Oyster Point; Sep-
tember 1, 1986, and thereafter. James did not testify, and the
testimony of Hoadley is unrebutted. According to Hoadley’s
testimony, before the merger, James told all supervisors that
any time the union representatives came into the store the
names of the employees to whom they spoke were to be re-
corded. James told the supervisors that the purpose of the log
was ‘‘to keep up with the activity going on within the
store.’’ After Respondent assumed ownership of the store
(September 1986), James reaffirmed his instructions to the
supervisors and stated that Respondent’s zone manager, Pat-
terson, had emphasized that Respondent wanted ‘‘when there
was activity within the store to have this logged down into
the book. . . . Just whoever [Dixon] talked to, who he ap-
proached, what he may have done in the store.’’ The log was
kept under lock and key, and there is no evidence that any
employee saw it or saw any supervisor make any notation in
it.
The General Counsel argues that employees need not
know of conduct constituting surveillance for the employer’s
conduct to be held violative, and there are cases that hold
just that. However, each such case is premised on the conclu-
sion that a given surveillance was one in which the employer
had no right to engage. In this case, each act of surveillance
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The General Counsel recognizes Adams Super Markets in the brief, but
attempts to distinguish it on the basis of cases that include visible note taking
and acts of sustained surveillance of activity that was taking place outside an
employer’s store.
21 Briley acknowledged making such notes, and there is no allegation that
this was unlawful.
22 Kent, a bagger, got a written warning notice for not wearing a tie, and
the General Counsel does not contend that the notice was violative.
23 See also Adams Super Markets Corp., above.
memorialized in the Oyster Point log was of open and obvi-
ous activities on Respondent’s property involving non-
employee union representatives. This was not unlawful sur-
veillance. As stated by the Board in Chemtronics, Inc., 236
NLRB 178 (1978), quoting, in turn, Milco, Inc., 159 NLRB
812, 814 (1966):
[U]nion representatives and employees who choose to
engage in their union activities at the employer’s prem-
ises should have no cause to complain that management
observes them.
This indisputable logic was specifically applied to an essen-
tially similar retail sales and snackbar setting in Adams Super
Markets Corp., 274 NLRB 1334 (1985). In that case the
Board held that management had a right to follow non-
employee organizers (who were accompanied by bargaining
unit employees) around the subject grocery store, sit in an
adjacent snackbar booth and watch them, and then follow
and watch them as they left the store (again, accompanied
by bargaining unit employees).20
The General Counsel advances no argument of why Re-
spondent’s agents should have been barred from making dis-
crete notes of what they could lawfully observe.21 I therefore
reject the contention that the maintenance of the Oyster Point
log constituted a violation of Section 8(a)(1) of the Act, and
I shall recommend dismissal of this allegation of the com-
plaint.
Surveillance; February 3; West Mercury Blvd. Hepner and
Dixon were followed around the store and then watched
closely by Briley as they sat in the snackbar. The General
Counsel does not contend that Briley’s following the union
representatives around the store was unlawful, but does con-
tend that Briley had no right to watch Hepner and Dixon so
closely in the snackbar. Adams Supermarkets, above, pre-
cludes a finding of a violation in Respondent’s conduct in
this instance. Moreover, Hepner and Dixon were flagging
down employees, introducing themselves, and asking the em-
ployees to accept literature that the employees had not re-
quested. This, according to the principles of the above-cited
cases was unprotected conduct, and the Union cannot com-
plain that Briley watched it, even closely, in progress. Ac-
cordingly, I shall recommend dismissal of the allegation that
by Briley’s conduct of this date Respondent violated Section
8(a)(1) of the Act.
Surveillance; February 26; Kempsville Road. The union
representatives spoke to no employees that day, and there is
no argument by Respondent that they engaged in any unpro-
tected conduct. They, like any other customers, had a right
to sit in the snackbar without being surrounded by arms-
crossed, glaring (it is safe to assume) men.
The close presence of the four standing, arms-crossed,
agents of Respondent would necessarily have had a coercive
impact on any employee who might have wanted to commu-
nicate with the union representatives. Four of such agents,
standing close by, arms-crossed, would convey to employees
more than an impression than that supervisors were simply,
lawfully, watching what was going on in public (as was the
case of the supervisor who sat in the booth next to the orga-
nizers in Adams Super Markets and in the cases of many
other instances herein). The employees would have con-
cluded only that the managers were there to keep the orga-
nizers from talking to employees, and that the employees
should stay away.
Therefore, had management responsibility been shown, I
would conclude that, under the guise of lawful surveillance,
Respondent interfered with its employees’ right to commu-
nicate with nonemployee organizers by posting, or suffering
or permitting to be posted, its agents closely around the orga-
nizers who were lawfully conducting themselves as cus-
tomers in Respondent’s Kempsville Road snackbar on Feb-
ruary 26; and by such conduct, Respondent engaged in an act
of surveillance that violated Section 8(a)(1) of the Act.
However, no such agency, or management responsibility,
has been proved. The General Counsel contends that the four
men were proven to be department heads because they wore
ties22 and had name tags. However, all male employees were
required to wear ties, and Green’s testimony that even assist-
ant department heads wore the name tags was unrebutted.
Even assuming that the four unidentified men were depart-
ment heads, there was no stipulation, and no reason to con-
clude, that all department heads were supervisors within Sec-
tion 2(11) of the Act. Also, while a case of agency could
possibly have been made had the General Counsel shown
that the store manager or some other supervisor witnessed
the event, such proof is missing here. Of course, there is the
suspicion that no four persons could engage in such conduct
without management knowledge, much less sponsorship or
approval, but the suspicion is not evidence.
Due to the failure of proof in this regard, I am constrained
to conclude that the General Counsel has not proved a viola-
tion of Section 8(a)(1) of the Act by the conduct of the four
unidentified men.
Surveillance; February 26; Merrimac Trail. Andriuk ad-
mitted coming to the store provisioned with literature to dis-
tribute. Although she denied that she distributed literature to
any employees until after she sat down with them, she did
not claim to have appointments with any employees.
I believe, and find, that Andriuk came to the cafeteria to
‘‘approach’’ (Dixon’s word) employees, and that she and
Dixon intended to do so by table-hopping or flagging, be-
cause they had no appointments with any employees and this
was the usual method of operation of the Union in this cam-
paign. Although there is no evidence that they used the lit-
erature for table-hopping or flagging on this occasion, there
is credible testimony, by Sheedy, that the union representa-
tives passed out the literature to persons at all tables, includ-
ing one at which a customer was seated.
This conduct was no more protected than table-hopping or
flagging, and the union representatives cannot here complain
that Sheedy kept them under surveillance after they did it.23
Accordingly, I shall recommend that this surveillance allega-
tion be dismissed.
Surveillance; March 2; Merrimac Trail. The first thing to
be noticed about Dixon’s testimony is that he nowhere states
that Sheedy watched him, or even looked his way, while
931FARM FRESH, INC.
24 Id.
25 Id.
26 Id.
27 Southwire Co., 282 NLRB 916 (1987).
Dixon was in the snackbar. Assuming that Sheedy did so, it
is to be noted that there Dixon had patrolled the store, buy-
ing nothing, and introducing himself to employees and in-
forming them that he would be around. This is not a course
of conduct consistent with that of retail customers. Sheedy
would have had no more reason to believe that Dixon was
going to conduct himself any more properly in the snackbar
than Sheedy had witnessed on the selling floor. Moreover,
Sheedy would not have been unreasonable to conclude that
Dixon was there for more than protected solicitations by Dix-
on’s admitted nursing of a single cup of coffee for 2-1/2
hours.
In these circumstances, I find and conclude that, by
Sheedy’s conduct of March 2, Respondent did not violate
Section 8(a)(1) of the Act.24
Surveillance; March 18; Merrimac Trail. When Andriuk
and Dixon went to the snackbar at lunchtime, they assumed
the risk that supervisors would be there, as they had a right
to eat lunch. Andriuk acknowledged that, about 12:15 p.m.,
Sheedy and Gilbert did, in fact, order meals. Sheedy and Gil-
bert undoubtedly watched what was going on before them
before they started eating, as they ate, and after they ate. The
General Counsel apparently contends that, while the super-
visors may have a right to eat lunch like anybody else, they
should not have paused before eating, or lingered afterwards.
However, if the Union is going to claim the right to nurse
a cup of coffee for 2 hours or so, as it does herein, it is ill-
positioned to complain if supervisors pause a bit before, dur-
ing, or after they eat their lunches in the same places.
I find no violation of Section 8(a)(1) of the Act, and shall
recommend dismissal of this allegation.25
Surveillance and attempted confiscation of union lit-
erature; April 2; Merrimac Trail. My credibility resolutions
above preclude a finding of a violation of Section 8(a)(1) of
the Act in any attempted confiscation of literature.
Moreover, no violation of the Act occurred when Sheedy
and Gilbert, for whatever reason, followed Dixon into the
restroom. It is undisputed that no employees were in the rest-
room when Sheedy and Gilbert entered; nor is there any evi-
dence that Sheedy and Gilbert even believed that there were
any employees in the restroom. Therefore, it is clear that
they were not there for purposes of surveillance; and there
is no reason to believe that any employee witnessed anything
that would have a coercive impact on employees.
Accordingly, I shall recommend dismissal of this allega-
tion of the complaint.
Surveillance and creation of the impression of surveillance
by posting of a notice; spring of 1987; West Mercury Blvd.
The General Counsel contends that the memorandum of
April 10, 1986, which was posted in the spring of 1987 at
the smaller of Respondent’s two Mercury Blvd. stores, con-
tains an unlawful instruction to employees to spy and report
on other employees. The memorandum, quoted above, con-
tains no such instruction. It is addressed to managers only,
and it asks the employees to do nothing; nor does it ask or
instruct supervisors to do anything unlawful.
The General Counsel contends that the posting of the
memorandum would convey to employees the impression
that ‘‘all’’ of their union activities are being kept under sur-
veillance. This is not so; only the actions of nonemployee or-
ganizers trigger operation of the memorandum, and then only
when the actions are on the premises. Activities of organizers
elsewhere, and activities of employees, by themselves, any-
where, are not touched by the memorandum.
In essence, therefore, the General Counsel is contending
that, while an employer may instruct its supervisors to en-
gage in lawful surveillance (as was done here), it may not
tell its employees that it has done so. There is no logic or
authority for such a proposition, and, accordingly, I shall rec-
ommend that this allegation of the complaint be dismissed.
Surveillance; November 30; Suffolk. Dixon testified that he
sat in the snackbar for 30 to 45 minutes. No one came in
except Store Manager Sachs, who came in twice. Sachs sat
down and looked at Dixon both times. Nothing was said.
Dixon did not testify that he purchased anything before
sitting down. Therefore, the General Counsel has failed to
show that Dixon was there as a customer and, on the above-
cited cases, he could have been ordered from the store. Sachs
did not order Dixon from the store; Sachs did nothing.
So, what we have here is a picture of Dixon sitting at a
table, without having purchased any coffee to nurse for
hours-on-end as he so often did, and Sachs looking at Dixon
and Dixon looking at Sachs, with no employees around, and
no one saying anything. In this picture there are no union ac-
tivities to surveil, and there are no employees around to be
impressed with the notion that Respondent is conducting sur-
veillance.
There is no violation established in these circumstances,
and I shall recommend dismissal of the allegation.26
(3) Interrogation
I credited Bement’s testimony that polygraph operator
Melody asked her, before hooking her up to the polygraph
machine, if she had heard anything about what was ‘‘going
on’’ in the store, and, specifically, if she had heard anything
about the Union, and if she had met with anyone from the
Union, and if she had signed an authorization card.
Although Bement had met with the Union at the store’s
snackbar, and was not reticent about her sympathies for the
Union, this is hardly the case of an open and obvious sup-
porter being engaged in noncoercive discussions. The specter
of a polygraph examination is sobering to the point of caus-
ing fear. Although the interview took the form of an interro-
gation, it could hardly have been less than coercive in impact
than an explicit threat to job security. In sum, if an employer
wanted to scare an employee, a polygraph examination
would be an effective way of doing it.
Therefore, I find and conclude that the interrogation of
Bement was violative of Section 8(a)(1) of the Act.27
b. Discharges of Carter and Kent and directly related
alleged 8(a)(1) violations
(1) Events of February 25, 1987
Fasciocco’s testimony that he remained late at the store on
the night of February 25 to make sure that management per-
sonnel would not ‘‘do anything that would cause any kind
of violation’’ is one of the most preposterous lies that this
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 I do not believe Fasciocco’s testimony that, nightly, for 3 years, he told
front-end supervisors, like Wood, to keep ‘‘baggers bagging, cashiers cash-
ing.’’ Any conscientious supervisor, as Wood appeared to be, would have been
insulted if Fasciocco had said it once.
29 Two other alleged threats to discharge do appear in the presettlement
case. Employee Prentiss, with copious leading, testified to a veritable litany
of violations uttered by Respondent’s Arrowhead Center store manager, Har-
mon, in March 1986. Harmon testified and credibly denied all such allegations.
The other threat is alleged to have been made by Department Manager Kathy
Austin at a Richmond store, also in March 1986. Austin testified that she told
employee Cindy Castro that she could be fired for discussing the Union in
the store. Austin and Castro were close personal friends, and Austin clearly
made the statement as her own estimation of things. Although this may not
preclude a finding of a violation, it substantially erodes any argument that
Austin spoke knowingly, and authoritatively, of Respondent’s policy on the
issue.
(Hoadley’s threat to employees at the Oyster Point store, as quoted above,
was made before Respondent bought the store.)
30 See W. T. Grant Co., 195 NLRB 1000 (1972), in which visible note tak-
ing rendered unlawful surveillance of public activity on an employer’s prop-
erty.
31 No 8(a)(3) allegation is made in this regard.
administrative law judge has ever been required to sit and
listen to. Fasciocco was there to do exactly what he did:
watch the union representatives and anybody who ap-
proached them in the snackbar. I further find that, as he did
so, he carried with him a pen or pencil, and a writing pad,
as Carter, Kent, and Hepner testified. I further believe the
testimony of Kent and Carter that Fasciocco made notes
while in their vision.
I further believe true the testimony of Hepner and Kent
that Fasciocco walked deliberately by their table and stared
at the union authorization card that Kent signed that night.
I further believe to be true the testimony of former em-
ployee Robinson that Fasciocco spent a good part of his time
in the produce department, staring into the snackbar, while
the union representatives were attempting to solicit cards
from employees. I also believe Robinson’s testimony that
Fasciocco was still there when Robinson got off at 8 p.m.,
and that Fasciocco testified falsely when he stated that he left
that night at ‘‘around 6:30, 7 o’clock.’’
I believe Fasciocco’s testimony that he told Wood to ‘‘just
make sure the cashiers and baggers stay up front and do their
jobs.’’28 However, I do not believe that Fasciocco believed
that the union representatives were gone when he said it.
Robinson left at 8 p.m., and Fasciocco was still there, con-
ducting surveillance (or, if you believe him, making sure that
no supervisor committed any violations).
I do not believe Carter’s testimony that Fasciocco, in haec
verba, told Wood to keep cashiers and baggers out of the
snackbar while the union representatives were present. How-
ever, Fasciocco’s instruction to Wood, which was overheard
by Carter, to ‘‘just make sure the cashiers and baggers stay
up front and do their jobs,’’ given at the time that the union
representatives were still in the store, would have had the
same effect. Neither Wood nor Carter could have missed the
message: keep everybody at the front until they are gone.
Carter testified that he also heard Fasciocco tell Wood to
keep a list of all employees who went to the snackbar ‘‘and
they would be ‘terminated.’’’ I did not believe this testimony
when I heard it, and I do not believe it now. The premise
of Carter’s testimony in this regard is almost oxy-moronic:
Fasciocco would have been telling Wood not to let any one
go back to the snackbar while the union representatives were
there, but, if any employee did take a break in the snackbar
(contrary to the instructions which Wood would give them),
Wood should keep a list so that Respondent would not forget
who to terminate. Although violative threats are not always
expressed in logical form, they usually make more sense than
that.
Moreover, there is no evidence that Fasciocco, or any
other of Respondent’s supervisors, were disposed to dis-
charge any employee simply because they took a break in a
snackbar at the same time a union representative was there,
much less talking with a union representative in a snackbar,
sitting with one, or signing a union authorization card. But,
assuming that such a malicious disposition existed, I doubt
that Fasciocco would have announced it (‘‘very clearly,’’ as
Carter testified, or otherwise) in front of Carter or any other
employee. Fasciocco did not impress me with his veracity;
but he seemed smarter than to do that.
Finally, if such a malicious disposition did exist, evidence
thereof would have surfaced somewhere, sometime during
this multiyear organizational campaign, and it would have
appeared in the form of testimony by someone other than
one who just happened to be discharged immediately after
hearing it. That is, it just seems too incredible to me that,
of Respondent’s 6000 to 7500 employees, the only one to
hear such an undiluted threat to discharge was one who was,
in fact, discharged within 48 to 72 hours.29 Although theo-
retically Carter’s testimony that he heard Fasciocco tell
Wood that any employee who went back to the snackbar
while the union representatives were there would be termi-
nated.
I therefore find and conclude that Fasciocco followed em-
ployees and union representatives around the store with note
pad in hand, writing, in a fashion that would lead employees
to believe that their protected union activities were under sur-
veillance, and that by this conduct, Respondent violated Sec-
tion 8(a)(1) of the Act.30 I also believe that Fasciocco con-
ducted surveillance of employee activity when he walked by
the snackbar table occupied by Kent and Hepner and took a
good look at what Kent had signed, the union authorization
card, and I find and conclude that this action constituted an
independent violation of Section 8(a)(1) of the Act.
The complaint, paragraph 21, also alleges that, in violation
of Section 8(a)(1) of the Act,31 Fasciocco and Wood denied
employees their breaks on February 25. Although Fasciocco
told Wood to keep the baggers and cashiers at the front of
the store while the union representatives were in the store,
there is no evidence that Wood followed the instruction, ex-
cept in regard to Kent, and there only to a certain extent.
Assuming the truth of Carter’s testimony, it shows only
that his break was delayed, not denied, for a time while the
union representatives were in the snackbar. Even according
to Carter’s testimony, he was permitted to go to the snackbar
on February 25, and he got the permission while the union
representatives were still there.
However, I do not believe Carter’s testimony that Wood
would not let him take a break until 9 o’clock that evening.
Carter was certain that he relieved Kent; Kent testified that
he went on break at 7:30 p.m. The testimonies cannot be rec-
onciled.
Additionally, the week’s work schedule shows that Carter
was scheduled to work from 3 until 9 p.m. Carter testified
that he arrived at 3 p.m. and worked until about 9 p.m. when
933FARM FRESH, INC.
32 Fasciocco’s quoted testimony shows that he did not exactly know what
the absolute liability for replacements rule was, but he was absolutely sure that
‘‘Warren Carter was aware of it, and he knew it.’’
33 Adcock was clearly a part of a scheme of false testimony; he had hardly
taken the oath when he twice volunteered that the day that Carter had failed
to appear was a Saturday.
34 As discussed below, Carter testified that he told Hilber that he had been
involved in an accident, and Hilber and Fasciocco acknowledged that such was
a valid excuse for late appearances.
Wood asked him to work until closing at midnight; Carter
testified that he agreed and that he did work until closing at
midnight. However, Carter’s timecard shows that, while he
arrived at work at 3 p.m., and he punched out at 9:07 p.m.,
he did not punch back in that day. Of course, he would have
punched back in if he had punched out at 9:07 p.m. only for
a break. That is, the time records show that Carter took no
break at all on February 25. (The same records do show
when other employees took breaks that day.)
It is absolutely incredible that Carter would have worked
until midnight and not claimed 3 hour’s pay by not punching
out before he left for the day, and I do not credit his testi-
mony that he forgot. If he had worked from 3 p.m. to mid-
night, and did ’’forget’’ to punch out, he would have, at
least, demanded his rightful pay subsequently when he got
his final check. According to this record, he did no such
thing.
I believe that the time records accurately reflect the hours
that Carter worked that evening. I believe that, while the
union representatives were in the store, Carter heard
Fasciocco tell Wood to keep baggers and cashiers at the
front. Carter, either because he heard this, or because he did
not want to lose 30 minutes of pay, did not even ask for his
unpaid break. He punched out at 9:07 p.m. and went to the
snackbar where he signed the union authorization card; then
he left the store. This is why his time record shows no
punchin after 9:07 p.m., and no punchout near midnight.
Therefore, while it could be inferred that Carter did not at-
tempt to go on his break because he heard Fasciocco’s in-
struction to Wood, it is equally inferable that he did not take
his break to avoid losing one-half hour’s pay. In this cir-
cumstance, there is no proven violation of the Act.
Kent did, however, lose part of his break that night when
Wood called him back to the front to do little more than
stand around and talk. However, there is no evidence that
Kent knew why he was then called back to the front. There
is also no evidence that any other employee was denied any
part of a break because of Fasciocco’s instruction to Wood
to keep cashiers and baggers at the front, and there is no evi-
dence that any other employee knew at the time that Kent’s
break could have been shortened-by the instruction from
Fasciocco to Wood. Finally, because Kent was entitled only
to an unpaid break, loss of only part of this unpaid break
was, at most, only a de minimis violation, and will not sup-
port an order herein.
(2) The discharges
I am thoroughly convinced that Respondent’s stated reason
for the discharge of Carter is a complete sham.
1 agree with the General Counsel that Hilber, Franklin,
and Fasciocco concocted the ‘‘absolute liability for shift-re-
placements’’ rule and that they did so because Carter vio-
lated none other. The reasons I believe that the ‘‘rule’’ was
created post hoc are many:
a. Although there is no duty on Respondent to be
generally ‘‘fair,’’ the unfairness of any rule of absolute
liability for the appearance of shift replacements is so
blatant that it naturally renders its (disputed) existence
suspect.
b. Although Respondent has reduced other rules
(such as the ‘‘one no-show’’ rule) to writing, it did not
do so in regard to this one. There is no testimonial cor-
roboration either, except from the supervisors directly
involved; certainly there is no evidence, or even conten-
tion, that any employee, other the Carter, was ever dis-
charged under the absolute liability rule.32
c. Carter’s shift replacement was a no-show, but he,
according to this record was not disciplined. Hilber ac-
knowledged that that employee would have been a
‘‘no-show’’ why he would not have been disciplined
under the ‘‘one no-show rule’’ was not explained.
(Hilber testified that the shift replacement may have al-
ready quit; if that had been so, the question imme-
diately arises: why would Franklin have given permis-
sion to Carter to swap with an employee who, at least
by the time of the shift, was no loner employed?)
d. Neither Hilber nor Franklin could name the shift
replacement; the obvious reason is that he did not exist,
except in the scenario manufactured by Hilber and
Franklin.
e. Respondent’s records support Carter, not Hilber,
Franklin, Adcock,33 or Fasciocco. Carter testified that
he was scheduled to work on Friday, February 27; that
is what the records show. Carter testified that he arrived
late and that Adcock would not let him punch in; the
records show that he did not punch in on that date. If
Carter’s testimony that he called in on Friday and gave
a valid excuse34 were not true, then he would have to
have been a ‘‘no-show’’ under Respondent’s ‘‘one no-
show’’ rule. And if his testimony about the Friday tele-
phone call with Hilber had been untrue, Carter would
have been fired for missing his shift on Friday; he
would not have been given a chance to risk the Satur-
day nonappearance of his (phantom) shift replacement.
Hilber was given full opportunity to explain how Re-
spondent’s records could indicate that Carter was a
‘‘no-show’’ on February 27, but nothing was then done
about it (like firing him under the ‘‘one no-show’’
rule). However, Hilber could not explain, and Respond-
ent attempts no explanation in its extensive brief.
Assuming that the ‘‘absolute liability for shift replace-
ments’’ rule did exist, Carter was not fired for violating that
rule, or any other, on Saturday, February 28. Adcock testified
that Hilber told him: ‘‘[Carter] probably would be coming in
at five to work, and [she] told me to tell him not to punch
[in].’’ Hilber testified that, because neither Carter nor his re-
placement had appeared for Carter’s Saturday shift, she told
Carter that he was fired; she further testified that she did so
after the shift had ‘‘come and gone.’’ However, Respond-
ent’s records show that the shift Carter was originally sched-
uled to work was from 10 a.m. until 6 p.m. If Carter’s Satur-
day shift, from 10 a.m. to 6 p.m., had ‘‘come and gone’’
when Hilber fired him, Hilber would not have told Adcock
that Carter ‘‘probably would be coming in at five to work.’’
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 This would explain why Hilber could not explain why Respondent’s
records showed that Carter was scheduled to work on February 27. He did
not work on February 27, nothing was done about it, and he was still expected
to be there on February 28 or have a replacement for that date.
36 The one exception was offered through the testimony of grocery depart-
ment employee Robinson who testified that he just told his department head
that he had needed some time off. There is no evidence that Hilber, Fasciocco,
or any other of Respondent’s higher management knew of this; moreover, the
General Counsel’s reliance on this one instance is an argument that the excep-
tion makes the rule.
37 See Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (lst Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 395 (1983).
38 Raysel-Ide, Inc., 284 NLRB 879 (1987), citing Fabracan Corp., 259
NLRB 161, 171–172 (1981).
The only way to reconcile the testimonies and Respondent’s
records is that, while Adcock lied about when his conversa-
tion with Hilber occurred, he told the truth about what she
said; the conversation between Hilber and Adcock occurred
on Friday, the date Carter was to appear at 4 p.m., according
to Respondent’s own records. Therefore, Carter told the
truth; on Friday, February 27, Hilber told him that he would
be fired if he were not there within an hour; he was not there
within an hour, and Adcock would not let him punch in.
That was a discharge on that date, and the entire theory of
a Saturday discharge is premised on false testimony.35
Nor can Respondent argue that Carter was fired pursuant
to the ‘‘one no-show’’ rule. Carter was not a ‘‘no-show.’’ He
was late when he called Hilber sometime before 5 p.m.; and
he was late, quite late, by 7 p.m. when he attempted to
punch in; but he was still not a ‘‘no-show’’; the shift had
4 hours to go. But even if he were considered such, the Gen-
eral Counsel has proved that the ‘‘one no-show’’ rule would
not have applied to Carter.
After first flatly testifying that there were no exceptions to
the ‘‘one no-show’’ rule, Hilber acknowledged that excep-
tions were made for employees who gave ‘‘some sort of no-
tice.’’ The notice would be acceptable if it entailed ‘‘some-
thing beyond their control such as they were in an accident’’
and if it were given ‘‘prior to their shift or some time close
to their shift beginning.’’ Fasciocco, himself, testified that if
Carter had called in, as Carter claimed, that would have been
taken into account and, ‘‘maybe,’’ Carter would not have
been fired.
Given these admissions, it becomes clear regarding why
the supervisors felt constrained to manufacture a totally dif-
ferent theory about why Carter was fired. Carter was, essen-
tially, fired on the spot when he told Hilber, on February 27,
that he would be late because of an automobile accident. Re-
spondent invoked the ‘‘excessive tardy’’ defense thereafter
until, at least, March 15, when Fasciocco filled out the em-
ployee status report listing that reason for discharge. Because
Carter had had only one other tardy report in his file, Re-
spondent’s supervisors obviously realized at some point that
the excessive tardiness defense would not withstand scrutiny.
Therefore the ‘‘absolute liability for replacements’’ rule was
created to attempt justification.
Although the General Counsel has demonstrated that the
defense on Carter was a sham, she has not done this in the
case of Kent. Wood acknowledged that an employee who
misreads his schedule might get a ‘‘break’’ from Hilber and
Kent was given none. However, Kent did not claim to Hilber
that he had misread his schedule, or that another employee,
like Knill, had misinformed him of the day he was next to
report to work. In fact, even according to his own account,
Kent said nothing when Hilber accused him of failure to ap-
pear for his scheduled shift. The General Counsel introduced
cases that could have been considered ‘‘no-shows’’ under the
rule as stated by Hilber and Fasciocco. However, in only one
case does the record show that the employee did not offer
an acknowledged excuse.36 Here, again, Kent offered no ex-
cuse for missing his scheduled shift.
However, assuming that the General Counsel proved lack
of merit to the defenses on both discharges, this does not end
the inquiry. The General Counsel must first prove a prima
facie case before the defense, or lack thereof, becomes an
issue.37 Here, the General Counsel has done this neither in
the case of Carter nor Kent.
Fasciocco’s surveillance of February 25 is enough to prove
knowledge, or at least a suspicion, of union sympathies, if
not membership, on the part of both Carter and Kent. But
the General Counsel must also show animus, or proof that
Respondent was motivated to discharge the alleged
discriminatees because of their known or suspected union ac-
tivities or sympathies.
The union activity shown here was the same degree and
kind that many, many others of Respondent’s employees had
demonstrated; they also met union representatives in Re-
spondent’s snackbars and, presumably, signed cards. In fact
as many as six others signed cards the same evening, accord-
ing to Hepner’s testimony. Those others, and others who
were known to have been active in soliciting cards them-
selves, suffered no alleged discrimination.
The General Counsel points to nothing that would cause
Respondent to single out Kent and Carter for the ultimate in
labor relations punishment—discharge. There is no reason to
conclude that Respondent thought Kent or Carter had been
or would be, any more active than others who had signed
cards for the Union. Therefore, while the General Counsel
has shown some known union activity on the parts of Kent
and Carter, the degree of that activity is, at best, minimal,
and there is no reason to conclude that Respondent regarded
that particular (minimal) activity with animus.
Moreover, while the General Counsel has shown that a
certain level of hostility toward unionization in general was
harbored by Respondent, there is no evidence that would
tend to show that Respondent had any predisposition to dis-
charge employees for union activity or membership. As
noted above, footnote 29, the only alleged threat to discharge
by one of Respondent’s supervisors was one spoken between
close friends and clearly was made as, and would have been
received as, a personal opinion. The other violations proved,
at least since the settlement agreement, were directed at out-
side union organizers, with the singular exception of the in-
terrogation of Bement. That is, there is no evidence ‘‘strong
enough to support a conclusion that Respondent was willing
to violate the law by discriminating against employees, in
order to keep the Union out.’’38
Therefore, while one can suspect that Kent was discharged
for reasons other than those stated by Respondent, and one
can be absolutely certain that the reasons stated for Carter’s
935FARM FRESH, INC.
39 I believe the real reason that Carter and Kent were discharged was be-
cause, independent of their union activities or membership, Hilber hated Carter
and did not like Kent very much; she considered them both lazy, and viewed
Carter’s tardiness and Kent’s absence to be vehicles to get rid of them; and
that is what she did. Had she told the truth on the matter, her employer would
have been saved a great deal of legal fees, and neither Fasciocco nor Adcock
would have been called on to support her with false testimony.
40 As stated by the Board in Deister Concentrator Co., 253 NLRB 358, 359
(1980):
In deciding whether or not to give effect to or rescind settlement agree-
ments, the Board has long held the issue ‘‘cannot be determined by a me-
chanical application of a priori rules, but must be determined by the exer-
cise of a sound judgment based on all the circumstances of each case.’’
The Ohio Calcium Company.4
llll
4 34 NLRB 917, 935 (1941); Rathburn Molding Corporation, 76 NLRB
1019, 1030 (1948). See also Superior Tool & Die Co., 132 NLRB 1373,
1397 (1961).
41 Ohio Calcium Co., above at 917.
42 In addition to the instances made the subject of allegations discussed
infra, note that even the General Counsel’s witness, Robinson, testified that,
on February 25, the union representatives were passing out ‘‘those little cards’’
to working employees.
discharge are false, a violation of the National Labor Rela-
tions Act simply has not been proven in either case.39
Accordingly, I shall recommend dismissal of the allega-
tions that Kent and Carter were discharged in violation of
Section 8(a)(3) and (1) of the Act.
C. Reinstatement of the Settlement Agreement
Respondent contends that it committed no unfair labor
practices after signing the settlement agreement of December
24, 1986, that it was an error for the Regional Director to
have set aside the agreement, and that the Board should not
consider any of Respondent’s presettlement conduct as a
basis for the finding of any violations of the Act.
I have found some instances of violative conduct; how-
ever, the Board has never held that proof of any
postsettlement violations will require the nullification of set-
tlements. On the contrary, as stated in Porto Mills, 149
NLRB 1454, 1470 (1964):
The Board has repeatedly held that ‘‘findings of unfair
labor practices can properly be made on the earlier con-
duct only where there is evidence of substantial unlaw-
ful conduct following the settlement agreement, for evi-
dence of isolated and minor incidents will not justify
the Board in going behind the settlement agreement.’’
Baltimore Luggage Company, 126 NLRB 1204, 1208.
See also Rice-Stix of Arkansas, Inc., 79 NLRB 1333,
1334, 1337; Jackson Manufacturing Company, 129
NLRB 460. Accord: Lincoln Bearing Co., et al. v.
NLRB, 309 F.2d 692, 695 (C.A. 6).
Of course, just what may qualify as ‘‘minor and isolated’’
necessarily depends on the context of each case.40
I have recommended dismissal of the two alleged viola-
tions of Section 8(a)(3) of the Act, the discharges of Kent
and Carter, and I have further recommended dismissal of all
but the following allegations of Section 8(a)(1) of the Act:
1. The January 29 ejection from the Wards Corner
store of Union Representative Dixon by Respondent’s
produce manager, Poyner.
2. The February 16 interrogation of employee
Bement by independent (lie detector) contractor Mel-
ody, at the presumed instance of Warwick Blvd. Store
Manager Mingee.
3. The February 25 surveillance and impression of
surveillance by Respondent’s 21st Street store manager,
Fasciocco.
Thus, the ultimate issue before the Board becomes: would it
effectuate the purposes of the Act to set aside the December
26, 1986 settlement agreement because of this conduct by
Respondent?41
Respondent has approximately 52 retail grocery stores in
the Richmond-Norfolk area, employing between 6000 and
7500 nonsupervisory employees at a time. Respondent has
several layers of management above the store manager level,
and there is no evidence that any higher level management
had anything to do with the violations found.
As well as there being 50 other store managers such as
Fasciocco and Mingee, there are hundreds of department
heads such as Poyner. None of those others have been found
to have committed postsettlement violations, and relatively
few others have even been accused of unlawful conduct dur-
ing the approximately 20 months that the campaign has been
conducted (with vigor) since the settlement was approved by
the Regional Director.
Although the interrogation of Bement was a serious viola-
tion of the Act, the conduct has not recurred in the approxi-
mately 1-1/2-year period from the incident to the close of the
hearing. Although the union representatives have made hun-
dreds of visits, lasting from minutes to hours, nursing coffee
to the point of loitering or caffeine overdose, strolling (and
sometimes strewing) the aisles, and sometimes soliciting
working employees,42 this record shows only one unlawful
ejection and one unlawful instance of surveillance in the 20
months of the postsettlement campaign.
Therefore, even if all three postsettlement violations were
to be considered serious, they are necessarily isolated; and
while the settlement agreement has not achieved perfect
compliance, it has been effective in safeguarding the statu-
tory rights of the employees. I accordingly conclude that it
would best effectuate the policies of the Act to reinstate the
settlement agreement of December 24, 1986, and I shall rec-
ommend that the Board do so in its Order.
CONCLUSIONS OF LAW
1. The Respondent, Farm Fresh, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union, United Food and Commercial Workers
Union, Local 400, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act by interrogating an em-
ployee, by threatening arrest of a union representative who
was lawfully conducting himself on Respondent’s premises,
and by conducting surveillance and creating the impression
of unlawful surveillance of union representatives and off
duty employees.
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The General Counsel has failed to prove any other of
the postsettlement violations alleged in the complaint.
6. The settlement agreement of December 24, 1986, in
Cases 5–CA–17940 and 5–CA–18407, is still in effect.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom.
[Recommended Order omitted from publication.]