Fernandes Super Markets, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1962

137 N.L.R.B. 954 (N.L.R.B. 1962)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 6 - Respondent filed with the Board a petition raising the issue of representation
of its employees which manifested an intention to withdraw from group bargaining.
The doctrine of equitable estoppel is universally recognized by the courts. In
Casey V . Galli, 94 U .S. 673 , 680, the Court stated:
Parties must take the consequences of the position they assume . They are
estopped to deny the reality of the state of things which they have made appear
to exist, and upon which others have been led to rely. Sound ethics require
that the apparent , in its effects and consequences , should be as if it were real,
and the law properly so regards it.
Had the Union taken the position during the negotiations that Respondent's name
should have been included on the May 24 list , it may be assumed that Respondent
might have conducted itself differently . The Union's failure to raise the issue during
negotiations can be construed only as assent to Respondent 's withdrawal from the
multiemployer unit and the doctrine of equitable estoppel applies.
On the basis of the facts , the record as a whole , and my observation of the de-
meanor of the witnesses , I am convinced that the Union and MADA bargained after
May 24 with the understanding that MADA represented only those employers named
on the May 24 list and the contract as executed on September 25 was binding only
on those employers listed therein . In accord with such mutual understanding it can-
not be held that Respondent is a de jure party . to the September 25 contract and its
refusal to comply with its terms a violation of Section 8 ( a)(5) of the Act. Cf.
Indiana Limestone Company , Inc., 136 NLRB 697. 1 shall therefore recommend
dismissal of the complaint in its entirety.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
Fernandes Super Markets , Inc. and Local 1325, Retail Clerks
International Association, AFL-CIO. Case No. 1-CA-3601.
June 28, 1962 -
DECISION AND ORDER
On March 20, 1962, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief. The General Counsel filed a brief in support of
the Intermediate Report.
The Board' has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and entire record in the
case, and for the reasons set forth below has decided to dismiss the com-
plaint in its entirety. Accordingly, the Board adopts the findings
1 Pursuant to the provisions of Section 3(b) of the National Laobr Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
( Members Leedom, Fanning , and Brown).
137 NLRB No . 1.19..
FERNANDES SUPER MARKETS, INC. 955
of the Trial Examiner only insofar as they are consistent with the
following :
The Trial Examiner found that Respondent violated Section
8(a) (3) and (1) of the Act by discharging Joseph Jesus on July 15,
1961. The Trial Examiner's bases for finding the violation were that
Respondent knew or suspected that Jesus was engaging in an effort
to organize the employees of the Respondent's New Bedford store,
and that it discharged him for these union activities rather than for
incompetence, unsatisfactory work, or deliberate disobedience of or-
ders. As indicated above, we do not adopt these unfair labor practice
findings of the Trial Examiner.
The critical facts upon which a finding of Respondent's knowledge
of union activity is predicated are not in substantial dispute. Our
disagreement with the Trial Examiner stems from the inferences to be
drawn from such evidence, and whether they supply the real reason
which motivated the discharge. The record establishes, as indicated
in the Intermediate Report, a singular lack of union animus. Thus,
it is undisputed that at the end of a security meeting on April 17,
1961, when Respondent's president, Joseph E. Fernandes, discovered
that the two union organizers were waiting in their parked automobile
outside, he had them invited into the store to partake of the refresh-
ments with the assembled employees and allowed them to circulate
among, and distribute union literature and talk to, the employees in-
side rather than stand outside in the inclement weather. He also
authorized the posting by the timeclock of an announcement of a union
meeting, and instructed his store managers to permit the union
organizers the freedom to circulate throughout the store and speak to
employees so long as they did not interfere with business.
Jesus joined the Union on June 6, 1961, and proceeded to solicit un-
ion membership from fellow employees at the store. He also accom-
panied Union Organizer Furtado to employees' homes. Both before
and after this date he occasionally (according to his testimony "possi-
bly 3 or 4 times") conversed with the union organizer in the store,
mainly at the lunch counter. This was also true with respect to other
employees whom Jesus testified he observed talking to Furtado at the
lunch counter on a number of occasions. Such lunch counter conversa-
tions were in the open and apparently were so common that even the
Respondent's president had occasion to chat with Furtado over a cup
of coffee.
In the setting in which they occurred, these in-store activities could
hardly have escaped the observation or notice of management. That
Respondent had knowledge of Jesus' union activities is further sup-
ported by the so-called "joke" Store Manager Palardy has picked up
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from employees z However, this knowledge does not, standing alone,
establish the illegal nature of Jesus' discharge.
Respondent asserts that it discharged Jesus "for failing to properly
perform his duties after receiving repeated instructions and warn-
ings." Respondent's Vice President Pires, then supervisor of the
frozen food, dairy, and produce departments at all stores , who dis-
charged Jesus, testified regarding the events leading to the discharge.
His testimony indicated that in late November 1960, at the request of
"Shorty" Fernandes, produce merchandiser, he talked to Jesus and
his immediate supervisor, produce manager at the New Bedford store,
Tony Medeiros, to try to create more harmony between the two. By
January 6, 1961, as reflected in Pires' written inspection reports, he
had come to the conclusion that Jesus needed further training. In
February, Pires warned Jesus that, if he could not cooperate with his
supervisor and it became necessary to separate them, Jesus would be
the one who would have to be transferred or discharged. By late
February, after further conferences with the supervisory officials hav-
ing contact with the situation involving Jesus, Pires decided that Jesus
was not doing the work competently. The first week of March, Jesus
was transferred to the main store at Norton where he received thor-
ough training and performed very well. Jesus requested, and was
transferred back to the New Bedford store on May 22, 1961, as sec-
ond man to a new produce manager. Within 3 weeks Pires received
from "Shorty" Fernandes reports of friction between Jesus and his
new supervisor, Teunnesson, because Jesus would not follow instruc-
tions. Pires talked to Jesus about working as a team . On June 22,
Teunnesson told Pires he could not work with Jesus because the latter
was uncooperative. Pires talked to Jesus again and warned him that
if his work did not improve, he would be dismissed. Jesus became
indignant and blamed the supervisor. On June 28, Pires called Jesus
into the office and repeated the warning, telling him that his work was
unsatisfactory, that he was not following orders, and that he was
creating friction and consequently low morale in the department.
Jesus again blamed his supervisor, and Pires told him to go back to his
department and work with his supervisor. On his visit to the store on
July 1, Pires noted that Jesus was still creating a problem and decided
to confer with other officials to determine what disposition to make of
the matter. When he discharged Jesus, on July 15, Pires told him he
3 While a group were at supper at the Silver Range restaurant near the end of June,
Palardy made the "joking" comment to Jesus that "they will probably make you shop
steward if you do" join the Union Palardy asserts that he picked up this comment from
the "joke" among the employees in the store It is reasonable to assume that if he picked
this up he would also have picked up information relating to Jesus ' union advocacy among
the employees which involved not only speaking to some individual employees on the merits
of unionization , but openly commenting to fellow employees on the occasion of the baling
machine accident that, if there was a union in the store this never would have happened
The Trial Examiner erroneously related this accident to the unloading of heavy produce.
FERNANDES SUPER MARKETS, INC. 957
was through at Fernandes. Jesus asked why and Pires told him his
work had been unsatisfactory, that he failed to carry out the orders of
his supervisor, that he created friction and criticized his supervisor
openly, that he had been given training, that they had given up on him,
and that he was discharged effective that day.
This testimony by Pires is corroborated in substantial part by Jesus'
own testimony which establishes that when he was transferred to
Norton he was told by Pires that his transfer was because of his out-
side activities and because he was not putting out the work expected
but "they didn't want to fire" him. Jesus' testimony further discloses
that he received close supervision and extensive training at the Norton
store ; that he requested and was transferred back to the New Bedford
store in May on a trial basis as second man under Teunnesson; that he
was later called in by Pires and told that Teunnesson did not believe he
was doing his best; and finally, that in late June or during the first
week of July, he was called into the office and told by Pires that Teun-
nesson seemed to think he was not progressing. Jesus responded by
detailing his criticism of Teunnesson's work performance, whereupon
Pires told him to "go back and work together with the man." Jesus
admitted that Pires also told him that unless the quality of his work
improved, he would be discharged, and that when he was discharged
Pires told him, "Joe, we're going to have to let you go. Frank
(Teunnesson) seems to think you're not doing your best."
The Trial Examiner infers an antiunion motive for the discharge,
from certain incidents which occurred after the discharge, primarily
the supplying to Jesus of a letter of recommendation and as discussed
infra, the comment made 2 weeks later by Pires to Jesus relating to
unemployment compensation and directed toward his union adherence
and activity. The Trial Examiner finds in these incidents certain
inconsistencies with the asserted cause for the discharge.
On the Monday following his discharge, Respondent's Personnel
Director Feuer gave to Jesus the letter of recommendation, set forth
in the Intermediate Report, upon Jesus' representation that he might
be able to obtain employment at another chain with such a letter.
Jesus also obtained from Feuer a commitment that one of the super-
visors would not disclaim this recommendation if an inquiry was
made.' Instead of using the letter to apply immediately for a posi-
3 Inquiry and discussion concerning the well-being of his children was admittedly a part
of the conversation on the occasion when Jesus obtained the recommendation letter Jesus'
family problems and responsibilities, which centered around two very small children and
several major medical problems involving them, were well known to the various officers
and supervisors of Respondent, including personal knowledge thereof by the president who
extended a loan, without regard to established company rules therefor, to Jesus on the
occasion of a hospitalization of one of the children Respondent asserts that concern
for the welfare of Jesus' family influenced its actions not only with respect to the loan
but also with respect to his previous transfers and finally with respect to the letter of
recommendation.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion with the chain mentioned, Jesus appeared that evening with
Furtado at the New Bedford store where, according to Jesus' own
testimony, Furtado was talking to employees and telling them that
Respondent fired Jesus but gave him a recommendation, and where
admittedly Jesus himself talked to one employee about joining the
Union and said, "Look, I have a recommendation but it's not doing
me any good. I'm still out of a job."
Reports of this incident, perhaps exaggerated, reached Feuer who
asked Jesus to come in and see him. Jesus did so on July 21. Feuer
confronted Jesus with the reports of the commotion Jesus created in
the store with his letter of recommendation and told Jesus that he
had put Feuer "in bad" by such conduct. Jesus denied to Feuer that
he "waved" the recommendation around the store, but admitted that
he had not yet used it to apply for the position mentioned. This
conversation also involved certain additional holiday pay due Jesus
and arrangements for Jesus to liquidate his outstanding loan. Later
that day Feuer wrote to Jesus the letter of July 21, rather concisely
detailing Respondent's arrangements with him. Respondent there-
after decided to post a copy of this letter in the New Bedford store, as-
sertedly to clear up any question in the minds of those employees as
to whether Respondent had treated Jesus fairly.
When Respondent reported the discharge to the unemployment
compensation commission it gave the reason as deliberate disobedience
of the supervisor's orders, and this report prevented Jesus from re-
ceiving unemployment compensation' A week or so later, Jesus
reported to the commission and was advised that the previously ad-
verse ruling of the commission, which had been reconsidered on the
basis of the recommendation letter, was sustained. While he was
returning from the commission, Jesus saw and followed Pires into the
A.B. Lunch. There he complained to Pires that he had been denied
his unemployment payments because of this report by Respondent.
Pires replied, "Don't come crying to me; go see your buddy, Bob
Furtado. You said he is your union man."
While this last remark has a clear ring of union animus exist-
ing at the time it was uttered, it does not necessarily establish that this
was the true predischarge attitude of Respondent. The Trial Ex-
4 Respondent did not give "deliberate disobedience" as the reason for discharge either
to Jesus or to the Board. It attempted to reconcile its report to the unemplyoment com-
pensation commission with the reason given the Board in the following manner* Jesus
did not follow the orders, or work performance instructions, laid out by his supervisor.
This was not because of incompetence , for he had received intensive training at the
Respondent 's mother store and had proved his ability. Therefore, it was a deliberate re-
fusal to perform in the manner instructed and consequently a deliberate disobedience of
orders.
Although this is obviously a rather strained attempt at reconciliation of the differing
reasons for discharge given two governmental agencies, we are concerned only with whether
these were not the true reasons but were a cover for a real reason which is unlawful. In-
consistencies in multiple reasons given for a discharge constitute only a factor in deter-
mining motive.
FERNANDES SUPER MARKETS, INC. 959
aminer has found in the variation between the reason for discharge
reported to the unemployment compensation commission and that
given Jesus at the time and asserted in this proceeding an incon-
sistency warranting an inference unfavorable to Respondent. This,
together with the contradictory implication growing out of a dis-
charge for unsatisfactory work performance followed by a letter of
recommendation, constituted, in the Trial Examiner's view, proof that
Jesus was not discharged for the reason given. Adding to this Re-
spondent's predischarge knowledge of the employee's union activity
and a postdischarge demonstration of union animus, the Trial
Examiner inferred the preexistence of this attitude. This supplied
the illegal motivation leading to his conclusion that Jesus was dis-
charged, not for his derelictions of duties, but for his union activities.
We are not persuaded that a preponderance of all the relevant evi-
dence, and the inferences to be drawn therefrom, establishes the exist-
ence of such animus on the part of Respondent before the discharge
occurred. With an employment history, beginning before the Union
appeared upon the scene and one which was continuous and relevant in
point of time to the discharge, consisting of reprimands, transfers,
special training, several admitted warnings, and finally discharge, all
involving his performance of duty, it is difficult to infer that Jesus
was, in fact, discharged for union activity, even though with such a
record he was given a letter of recommendation. It may well be that
Respondent, in giving this letter, was motivated, as it says it was, by
concern for his family situation and the welfare of the children
involved.
Moreover, the use made by Jesus of the recommendation letter after
his discharge--conduct which Respondent regarded as having the
effect of blemishing its image for fairness and justice with the em-
ployees at the New Bedford store-may well have provoked Respond-
ent into pursuing the course it did with respect to the unemployment
compensation report as well as into posting the July 21 letter. In
view of the Respondent's established open-door approach to union
organization and the lack of any demonstrated union animus prior
to the discharge, we cannot say in these circumstances that the remark
by Pires more than 2 weeks thereafter necessarily reflects the attitude
held by Respondent before the discharge and supplies the real moti-
vation. Accordingly, we cannot accept as warranted the inferences
made by the Trial Examiner.
In view of the foregoing, we find that Respondent's illegal motiva-
tion in his discharge of Jesus has not been established.' We shall,
accordingly, dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
5 See National Broach and Machine Company , 132 NLRB 1674.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on October 6, 1961 , by Local 1325, Retail Clerks Inter-
national Association , AFL-CIO, hereinafter called the Union or Charging Party,
the General Counsel of the National Labor Relations Board, hereinafter called the
General Counsel I and the Board , respectively , by the Regional Director for the First
Region ( Boston, Massachusetts ), issued his complaint dated November 16, 1961,
against Fernandes Super Markets, Inc., herein called the Respondent . The com-
plaint alleged that Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and ( 3) of the
Labor Management Relations Act, 1947, as amended, herein called the Act. Copies
of the charge , the complaint, and notice of hearing thereon , were duly served upon
Respondent and the Union.
Respondent duly filed its answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practices.
Pursuant to notice , a hearing thereon was held at New Bedford , Massachusetts,
from December 18 to 21, 1961 , inclusive , before Trial Examiner Thomas S. Wilson.
All parties appeared at the hearing , were represented by counsel, and were afforded
full opportunity to be heard, to produce , to examine and cross -examine witnesses,
to introduce evidence material and pertinent to the issues, and were advised of their
right to argue orally upon the record and to file briefs and proposed findings and
conclusions or both. Oral argument was waived . Briefs were received from Re-
spondent and General Counsel on February 5, 1962.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Fernandes Super Markets, Inc., is, and has been at all times material herein, a
corporation duly organized under and existing by virtue of the laws of the Common-
wealth of Massachusetts. At all times herein mentioned, Respondent has maintained
its principal office and place of business at West Main Street, in the town of Norton,
county of Bristol, and Commonwealth of Massachusetts, herein called the head-
quarters store, and operates various other retail stores in southeastern Massachusetts
including one located at New Bedford, Massachusetts, and is now and continuously
has been engaged at said retail stores, in the sale and distribution of food, grocery
products, and related items. Respondent in the course and conduct of its business
causes, and continuously has caused, at all times herein mentioned, large quantities
of groceries, foodstuffs, and related products used by it in its businesses to be pur-
chased and transported in interstate commerce from and through various States of
the United States other than the Commonwealth of Massachusetts. Respondent
sells and distributes groceries, food products, and related items, the gross value of
which exceeds $500,000 annually.
The complaint alleged, the answer admitted, and the Trial Examiner finds that
the Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1325, Retail Clerks International Association , AFL-CIO, is a labor or-
ganization admitting to membership employees of Respondent.
IH. THE UNFAIR LABOR PRACTICES
A. The facts
Respondent opened its store in New Bedford about November 1, 1960. Produce
Merchandiser Anthony Pires and New Bedford Store Manager Edward Palardy
interviewed and selected the staff of the new store. Joseph Jesus was hired by them
at a rate of $1.75 per hour as the second man in the produce department subject,
of course, to Respondent's 30-day trial period? The New Bedford produce manager
was one Tony Medeiros.
'This term specifically includes the attorney appearing for the General Counsel at the
hearing
2 At the New Bedford store, the produce department, as was customary in Respondent's
stores, was run by a produce manager and a second man plus whatever part-time help wag
FERNANDES SUPER MARKETS, INC. 961
Although acknowledging that the first month of operations of a newly opened
store was always a period of many trials and tribulations, Pires testified at the instant
hearing that he had "given up" on Jesus "as early as the latter part of November"
and prior to the 30-day trial period. Despite this alleged determination by Pires,
the employment of Jesus continued thereafter and he became the permanent No. 2
man in the produce department at New Bedford. However, according to Pires, he,
Pires, continually received unfavorable reports on Jesus from Palardy, Medeiros,
"Shorty" Fernandes, Respondent's assistant merchandiser, and others.
Pires himself, as was customary, made weekly visits to the New Bedford store
and, after January 1, 1961, filed written reports with Respondent as to the condition
of those stores and their departments. On one of Pires' weekly reports on the New
Bedford store in January he noted that Jesus needed more training. On his report
of his visit to the New Bedford store dated February 25, 1961, Pires for the only
time to the date of the hearing rated the produce department as "Excellent." How-
ever, the following week about March 2 he transferred Jesus to the headquarters store
at Norton, replacing him at New Bedford by an employee named Texeiras.3 It is un-
denied that, when informed of the transfer of Jesus, Medeiros was angered by the
transfer.
Pires explained that he had wanted to discharge Jesus at that time because of the
unfavorable reports regarding Jesus which he had received. Respondent's brief
describes these reports as follows:
It was observed that Jesus was not keeping up the department. The prolonged
conversations with customers, salesmen and numerous phone calls continued.
. Jesus demonstrated a lack of effort on the Manager's day off (Tuesdays]
and a failure to follow orders in throwing out good produce with the bad... .
Jesus, although he said he was sorry and stated he would try to do better, con-
tinuously blamed the produce manager Medeiros.
But Pires consulted Respondent President and General Manager Joseph E.
Fernandes who suggested that Jesus be given some training at the Norton store.
Fernandes testified that he made this suggestion out of sympathy for the medical prob-
lems Jesus was having with his two young daughters.
Anyhow the result was that Jesus was transferred to Norton.
In March 1961 the Union began a campaign to organize the employees of Re-
spondent's stores including the New Bedford store. As a part of this campaign on
April 17,4 Business Agent Gilbert Howarth and Bob Furtado whose position as head
cashier at the New Bedford store had been terminated by Respondent shortly before
under circumstances not disclosed in the present record, planned to pass leaflets to
the employees of the store as they left a store security meeting that evening which
was being attended by Respondent President Joseph E. Fernandes and Pires among
others. Noting the presence of these union organizers outside the meeting on this
nasty rainy evening, President Fernandes had them invited into the meeting by
Palardy, permitted them to distribute their literature, and offered them the op-
portunity to speak to the assembled employees which was declined. Thus there can
be no question but that, as Respondent admits, Respondent knew as early as April 17
of the existence of the union organizational campaign as well as the identity of these
two union organizers.
Jesus remained at Norton as second man in the produce department under the
watchful eye of "Guido" Fernandes, produce manager, for a period of about 9
weeks. Jesus' record at Norton was satisfactory to all, being only described as "very
satisfactory." In fact "Shortly" Fernandes complimented Jesus on his work by
saying that, if he kept up the good work, he might become a store manager. After
his second week at Norton Jesus did the ordering for the department.
Personnel Manager Feuer thought Jesus to be the type of employee Respondent
desired because Jesus was one of the three employees from the Norton store elected
to a store organization known as FEMBA (Fernandes Employees Mutual Benefit As-
sociation) where Jesus became chairman of the athletic committee and organized a
baseball team.
needed The produce manager's day off was on Tuesdays The second man was oft on
Saturdays
8 Pires himself called attention to the "apparent inconsistency" in having transferred
Jesus within a week of having rated the produce department at New Bedford as "Ex-
cellent " His explanation of this contradiction was that he was attempting to encourage
the produce employees
4 All dates are in the year 1961 except as specifically noted herein
649856-63-vol . 137-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After having been at Norton several weeks, Jesus asked Pires if he thought Jesus
could transfer back to the New Bedford store. Pires told Jesus that "apparently you
are doing very well" and he would think about the transfer. At the hearing Pires ap-
peared to have resented the inquiry made by Jesus.
On May 1 Respondent hired a man named Frank Teunneson who was said to
have been an experienced produce man from a couple of other chains.
In May Jesus had one conversation with Howarth and Furtado about the Union at
his home in New Bedford. Jesus would only say that he would think about the Union.
He did speak to one employee at the Norton store about the Union. There is no
evidence that the Respondent knew of either of these events. He also handed
a piece of union literature received by him through the mail to one of the Norton
supervisors who asked for it.
On or about May 22, Burgess, produce merchandiser, and "Shorty" Fernandes,
his assistant, transferred Jesus back to New Bedford to be the second man in the
produce department there under the managership of newly hired Frank Teunneson
with instructions to help Teunneson with the ordering and to show him the opera-
tions in the backroom for the reason that Teunneson had been with Respondent only
since May 1 and, therefore, did not know Respondent's method of operations
According to the testimony of Palardy, Teunneson spoke to him the very first day
that Teunneson and Jesus took over the produce department at New Bedford so that
Palardy had the two of them in his office and explained to them that Teunneson
was the manager of the department, thus apparently countermanding the orders of
Burgess and "Shorty" Fernandes.5
On June 6 Jesus signed a card authorizing the Union to bargain on his behalf and
began talking to various employees around the New Bedford store about the Union.
It is also undenied that on at least one occasion Palardy saw Jesus talking to
Organizers Furtado and Howarth during a coffee break period at the snackbar in
the store. Palardy's testimony indicated that he had become very conscious of the
fact whenever either Furtado or Howarth was in the store and also interested with
whom either talked. Apparently this was so throughout the store as even the counter-
girl made note of the fact that Jesus had spent at least one break period talking to
Furtado at the snackbar.
On another occasion in June Respondent had some small 15- or 16-year-old boys
unloading heavy produce at the store. Jesus told Teunneson that the boys were not
big enough to be handling that much produce. It so happened that one of these
boys was, in fact, injured rather seriously. After the accident Jesus remarked to a
a number of the employees gathered in the backroom that, if there had been a union in
the store, this accident would never have happened.
According to the testimony of Pires, about 2 weeks after Jesus had returned to
New Bedford, he, Pires, again began receiving reports from Palardy; Teunneson;
Burgess, produce buyer-merchandiser; "Shorty" Fernandes, assistant merchandiser;
Michael Murphy, supervisor of meat operations; and Joseph Fonseca, supervisor of
grocery, regarding Jesus. The substance of these reports, according to Pires, was
that: (1) there was friction between Teunneson and Jesus; (2) Jesus received tele-
phone calls at the store; (3) Jesus held long conversations with salesmen and cus-
tomers; (4) particularly on Tuesdays, Teunneson's day off, Jesus was very slow in
his work, sometimes not getting the ice table fixed until 10 or 11 a.m.; (5) Jesus was
passing cards around; 6 (6) Jesus was critical of Teunneson's work; and (7) Jesus
was not following Teunneson's instructions. These complaints were identical with
those Pires had allegedly received regarding Jesus during the November-March pe-
riod which caused him to transfer Jesus to Norton. On the other hand Pires admitted
that he found nothing to critize about Jesus' work from his own personal observation
during his weekly visits at the store.
On June 15 the Union planned a meeting of the Fernandes employees at Brockton,
Massachusetts. A leaflet advertising this meeting came to the desk of President
Fernandes who wrote in long band on the top thereof: "Permission is hereby granted
to post this notice on store bulletin boards" over his signature. Fernandes testified
as to this that "somebody must have asked permission to post it" but that he could
not recall who it was but did not believe that anybody from the Union had so re-
quested. The notice was posted at the New Bedford store.
E This meeting is not referred to in the affidavit which Palardy gave to a Board field
examiner investigating this case.
e At the hearing Palardy claimed that these cards referred to "Val-Deb Roofing Com-
pany" under which name Jesus repaired roofs Respondent produced an ex-employee wit-
ness who had received one such card from Jesus prior to leaving Respondent's employ in
March So far as the evidence showed Palardy never saw a card Jesus passed out, if any.
FERNANDES SUPER MARKETS, INC. 963
After having taken inventory on or about July 1 , Palardy , Department Managers
Al Sharp and Gilbert , and Secondmen Louro and Jesus had dinner together at the
Silver Range Restaurant as had become customary after taking such inventory.
According to the testimony of Palardy , "somebody" brought up "jokingly " the fact
that Furtado had been talking to Jesus and somebody else made the crack that
"if the Union got in, Joe [Jesus ] would be the shop steward." Everybody laughed.
According to the testimony of Jesus, Palardy was the individual who made this
last statement. Although the Trial Examiner is inclined to credit Jesus in this
conflict, he does not believe that the conflict need be resolved due to the fact that
Palardy admitted that the fact that Jesus would become shop steward if the Union
got in had become "a joke" around the store.
Despite Palardy 's admission that there was talk in the store-though , in Palardy's
words, "not excessive talk"-about Jesus becoming the union shop steward , he still
testified that he had "no knowledge " that Jesus was assisting the Union . In view
of Palardy 's consciousness of the presence of Furtado in the store and those with
whom he talked , the Trial Examiner cannot credit this denial.?
By July 4 Pires had again convinced himself from "reports" received that Jesus
should be discharged for exactly the same causes as had led to his transfer to
Norton . On or about July 8 he spoke to Joseph E. Fernandes who this time concurred
in the decision.
On Saturday , July 15 , Pires was at the New Bedford store, had Palardy summon
Jesus to the store on his off day, and discharged him. During this conversation
Jesus inquired if he could collect unemployment compensation and get a letter of
recommendation from Respondent. It is uncontradicted that Pires answered both
questions in the affirmative and told Jesus to get his letter of recommendation from
Personnel Manager Feuer on Monday, July 17.
On Monday, July 17 , Jesus went to Norton where he asked Personnel Director
Feuer for this letter of recommendation . Earlier that day Pires had conferred with
Feuer telling him that Jesus had been discharged but would be in the store that day
to see Feuer . Feuer thereupon dictated and signed the following letter of recom-
mendation which he gave to Jesus:
To Whom It May Concern:
JULY 17, 1961.
Joseph Jesus worked in the produce department of the Norton and New
Bedford stores from November of 1960 until July 1961 . He worked as second
man to the produce manager , I knew him personally while he worked in the
produce department of the Norton store and found him to be a good worker,
cooperative, and well liked by other employees.
He was a store representative , elected by the employees of the store.
Sincerely,
FERNANDES SUPER MARKETS, INC.,
(S) W. W. Feuer,
W. W. FEUER,
Personnel Manager.
When Jesus suggested to Feuer that "Shorty" Fernandes might disclaim this recom-
mendation if inquiry about Jesus was made by another chain , Feuer assured Jesus
that he would take care of that . During this same conversation Jesus and Feuer
talked over the question of how Jesus was to pay the unpaid balance on a $300 loan
which President Fernandes had authorized for Jesus while at the Norton store
because of heavy medical bills caused by the illness of Jesus ' two daughters.
That evening Jesus and Furtado stopped in at the New Bedford snackbar where
they showed this letter of recommendation to some of the employees.8
In other regards also the Trial Examiner found Palardy to be an unreliable witness
prone to talk in broad generalizations without giving the factual basis therefor , who rather
grossly exaggerated and who was not averse to testifying to "facts" which he himself had
not witnessed.
8 In its brief Respondent refers to this event as a "disturbance " Actually there is no
evidence in this record other than that found above despite the fact that Palardy was
describing in detail the scene on that Monday evening in the store when it developed that
all Palardy knew of the matter was what he had heard from his grocery manager, AI
Sharp. In fact, the report Palardy had received was in error for the next day Palardy
accused Jesus of having referred to him, Palardy, as a "punk " This Jesus denied Re-
spondent called neither Sharp nor any other witness to describe the scene This reliance
upon "reports" without proof of the fact was characteristic of Respondent's case
throughout.
964 DECISIONS OF NATIONAL LABOR RELATIONS LOARD
Under date of July 21, 1961, Feuer wrote Jesus the following letter:
Mr. JOSEPH JESUS,
457 Brock Avenue,
New Bedford, Massachusetts.
DEAR JOE: In order to clarify our position regarding the outstanding loan
which you have with us we wish to tell you of our decision. When you were
transferred to New Bedford the weekly payment on your loan was not deducted
from your salary as it should have been. Since this was not entirely your fault
we will only deduct the regular weekly payment from your final weeks pay.
In all fairness you should have informed the bookkeeper that you had an out-
standing loan and the payments were not being deducted from your salary.
Seven weeks went by when no deductions were made and you had seven
opportunities to report this error.
We are sincerely concerned about your personal problem involving the health
of your children and do not want to penalize you or them in any way and have
therefore made every concession to make this transition easier for you. You
will receive 5 days Holiday pay less the usual deduction for your loan on
July 27. If you will come in to the New Bedford Store it will be there for you.
Also we have given you a letter of recommendation based on your work in the
Norton Produce Department which will help you get another position.
We are sure that you must agree with us in believing that you are being
treated fairly. We hope you re-pay our fair treatment by having the proper
attitude towards Fernandes Super Markets, and that you will fulfill your prom-
ise to repay your loan. I personally have placed a great deal of confidence in
you and believe that you will keep your promise as an honorable man. Mr.
Fernandes and all of your co-workers wish to join me in wishing you good luck.
Sincerely,
FERNANDES SUPER MARKETS, INC.,
(S) W. W. FEUER,
Personnel Director.
In order to put Respondent's side of the "story" before the employees at New
Bedford, General Manager Joseph E. Fernandes had the above letter posted in the
New Bedford store.
When Respondent reported this discharge of Jesus to the unemployment compen-
sation commission over the signature of Feuer, it gave the reason for the discharge
as: "Deliberate disobedience to the orders of the produce manager." 9 This pre-
vented Jesus from receiving unemployment compensation.
A week or so thereafter Jesus followed Pires into the A.B. Lunch where he
complained to Pires that he had been denied his unemployment compensation pay-
ments because of this report by Respondent. It is undenied that Pires answered:
"Don't come crying to me; go see your buddy Bob Furtado. You said he is your
union man."
B. Respondent's defense
Respondent defended on two grounds: (1) that it did not know that Jesus was
active in the Union; and (2) it discharged Jesus because of incompetence.
As to the defense of lack of knowledge, despite Palardy's testimony to the con-
trary, the Trial Examiner is convinced from the "joke" at the Silver Range Restaurant,
the fact that it was also a standing "joke" throughout the store and from Pires' un-
denied response to Jesus at the A.B. Lunch that both Palardy and Pires, as well as
Respondent, knew or suspected the activities on behalf of the Union by Jesus.
As to the second defense Respondent's brief states:
On the recommendation of Messrs. Palardy, Shorty Fernandes, and Burgess
and on the basis of his own knowledge Mr. Pires decided to discharge Jesus
[before July 4].
The following week he cleared the decision with President Fernandes. On
July 15, 1961, Mr. Pires discharged Jesus for unsatisfactory work, failure to
carry out orders of produce manager and friction caused by unfounded criticism
of Teunneson with other employees and with supervisors.
The previous page in Respondent's brief particularizes the above items as follows:
Things then went "sour." Jesus did not follow the program Teunneson
laid out for him on Tuesday, Teunneson's day off, particularly in filling the ice
trays. He talked excessively with customers and received many phone calls.
9 The produce manager referred to appears to have been Teunneson. Teunneson did
not testify.
FERNANDES SUPER MARKETS, INC. 965
On one occasion Jesus talked with a Del Monte salesman about personal matters
for 2 or 3 hours. Jesus also threw out good produce with the spoiled produce
so he would not have to repackage it. He was critical of Teunneson's per-
formance as a produce department manager. Mr. Jesus accused Teunneson of
permitting too much spoiled produce to remain on the stands, of not knowing
how to order produce, of not keeping the stands clean and of not doing an
overall good job. The gross profits of the department did not bear out these
statements.
,It is to be noted that the particulars relied upon by Respondent for discharging
Jesus in July were almost verbatim with the particulars Respondent relied upon for
transferring him to Norton in February. In fact Palardy testified to just one con-
versation with a Del Monte salesman which lasted 2 to 3 hours, according to Palardy,
yet it is impossible from the transcript to tell whether this conversation occurred in
the first period Jesus was at New Bedford or during the second period. Respondent's
brief uses it in both periods. As Palardy did not even pretend to hear the conversa-
tion, it is a matter of interesting conjecture as to how Respondent knew it was about
"personal matters." Furthermore, it is interesting that Palardy, who testified that
salesmen were not allowed in the store, permitted this conversation to continue
unchecked for 2 or 3 hours and without mentioning it thereafter to Jesus. This
would seem to indicate that either Palardy was a poor manager or he exaggerated
his testimony. This conversation was the only instance of "excessive talking" with
either customers or salesmen about which Palardy even attempted to give details.
The charge that Jesus did not follow the orders of Teunneson or Medeiros is
unproved because neither Teunneson nor Medeiros was called to testify so the record
is devoid of any orders, obeyed or disobeyed. The same thing is true as to the charge
of friction between Jesus and either Teunneson or Medeiros. In fact, in the case of
Medeiros, the testimony is undisputed that Medeiros was angry when he learned that
Jesus was being transferred to Norton which would tend to indicate a lack of friction.
The charge that "Jesus also threw out good produce with spoiled produce so he
would not have to repackage it" would seem to be refuted successfully by the same
logic as used in Respondent's brief to refute Jesus' alleged criticisms of Teunneson,
to wit, "The gross profits of the department did not bear out these statements." 10
Certainly if Jesus was throwing away good saleable produce as Palardy claimed, it
would show in those same gross profits."
As to the charge that Jesus criticized Medeiros and Teunneson, it is true that
Palardy, Pires, and Feuer all testified to such criticism. But, the testimony of these
same witnesses also shows that the criticism had been solicited by them or by
"Shorty" Fernandes. In fact, "Shorty" Fernandes had a truck remove from the New
Bedford store some materials which Teunneson had overordered.
The evidence to sustain these many charges against Jesus appears to be more
froth than substance.
The Trial Examiner is not here holding that Jesus was the perfect employee with-
out fault but he must call attention to the type of evidence on which Respondent has
relied to convince the trier of fact that Jesus was such an incompetent employee as to
warrant discharge.
Admitting that he had found nothing to criticize about Jesus during his own
personal observation, Pires testified that his decision to discharge Jesus for incompe-
tence was based only on the "reports" he had received from Burgess, Fonseca,
Murphy, "Shorty" Fernandes, Palardy, Medeiros, and Teunneson. Of these seven,
only Palardy testified, and his testimony regarding the alleged deficiencies of Jesus,
as noted heretofore, were so exaggerated and colored as to cause the trier of fact
to wonder' why. The other six were not called to testify and, therefore, did not
even purport to try to prove the facts upon which each of them allegedly based his
opinion that Jesus was incompetent, opinions upon which Pires claims to have acted.
Thus, the Trial Examiner is being asked to find that Respondent was justified in
discharging Jesus as an incompetent employee upon (1) the exaggerated and colored
testimony of Palardy, and (2) hearsay opinions of incompetence of seven unseen
individuals without even an expression of such opinion by them or an attempt by
them to prove the facts upon which each based this opinion. As a trier of fact, this
the Trial Examiner cannot do.
While Respondent in its brief maintains that it discharged Jesus "for his unsatis-
factory work," Respondent is on record with the unemployment compensation com-
mission as having discharged Jesus for "deliberate disobedience to the orders of the
10 See quote from Respondent's brief above
11 Respondent failed to produce or mention the weekly gross profits of the produce de-
partment during the hearing.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
produce manager [Teunneson]." This is different from unsatisfactory work or in-
competence . Yet, as Teunneson did not testify, as noted heretofore, neither the
order nor the disobedience, deliberate or not, was proved. This change of position
by Respondent does make it appear as though Respondent was shopping around for
some valid reason on which to justify its discharge of Jesus. Why so?
Pires' own testimony regarding these "reports," etc., he had received is also
suspicious. He was permitted to testify from his own personal diaries and from
reports of store conditions he made to the Respondent following his weekly visits
to the stores. Pires himself during his testimony pointed to the "apparent incon-
sistency" between his own reports and his claims against Jesus, when he pointed out
that he had ordered the transfer of Jesus to Norton immediately after having rated
the produce department at New Bedford as "Excellent," which incidently was the
only "Excellent" report the New Bedford produce department had ever received to
the date of the instant hearing. He also became very flustered when, after testifying
to certain conversations he had with Jesus on February 25 as indicated by both his
personal diary and his personal report, it was pointed out to him that February 25
happened to be a Saturday, Jesus' day off. Pires then became sure that for reasons
unknown he had incorrectly dated both his report and his daily diary.
Nor must it be forgotten that it is undenied on this record, although Pires testified
at length, that it was Pires himself at the very time he was discharging Jesus sup-
posedly for incompetence who told Jesus that Personnel Manager Feuer would give
him a letter of recommendation on Monday, July 17. Pires was definitely
inconsistent
Feuer pointed out that he omitted from this letter of recommendation any state-
ment that Respondent would rehire Jesus implying thereby that the letter of July 17
was a sort of "second rate recommendation" or worse. This seems almost to com-
pound Respondent's error. If Jesus was in fact incompetent, no recommendation
should have been forthcoming. If he was not, then he should have been entitled
to a bona fide recommendation. Respondent on the other hand would have us
believe the exact opposite.
Respondent's several changes of position as to the cause of the discharge, its
inability or unwillingness to prove the factual basis for the alleged opinions as to
the incompetence of Jesus, and its apparent willingness to rely upon unsubstantiated
opinion reports as against the admittedly excellent record of Jesus at Norton create
more suspicion as to the Respondent's motivation in discharging Jesus than proof
of his incompetence, unsatisfactory work, or deliberate disobedience of orders. In
fact this is a case where the trier of fact would be justified in drawing an unfavorable
inference against the Respondent for its failure to produce Burgess, Fonseca, Murphy,
"Shorty" Fernandes, Medeiros, and Teunneson. "Reports" to Pires by these seven
do not constitute proof of any dereliction by Jesus.
C. Final conclusions
We now come to the hardest part of this case. Was Jesus discharged because of his
union activities?
It is well settled that an employer may discharge an employee for any reason or for
no reason at all-so long as he is not discharged for engaging in union activities.
The several reasons given by Respondent for the discharge are unsatisfactory but,
while that may create suspicion, it does not prove that the discharge was caused by
the employee's union activities.
Respondent here claims that it had no union animus. It is true that its president,
Joseph E. Fernandes, on April 17 had union organizers Howarth and Furtado invited
to the Respondent's security meeting, allowed them to distribute union literature, and
offered them the opportunity to speak to the assembled employees. It is true also
that prior to the union meeting at Brockton, Joseph E. Fernandes also authorized the
posting of a union announcement of that meeting in the New Bedford store. This
verges on the singular because Fernandes was sure that no request for permission to
have that bulletin posted had come from the Union. Fernandes also testified that
certain of Respondent 's key personnel were on the union mailing list so that Respond-
ent was receiving all of the union mailings. In addition Palardy testified that he
had been instructed by Fernandes at a Tuesday managers' meeting to permit Furtado
and Howarth the freedom of the store so long as they did not interfere with business.
Palardy, however, became acutely conscious of the presence of either of these orga-
nizers in his store, even as did the countergirl at the snackbar.
It is undenied that both Palardy and the countergirl noted a conversation between
Jesus and Furtado at the snackbar at the New Bedford store in June. With Palardy,
acquaintanceship with Furtado created suspicion . It was also known that in June
when the teenager was injured unloading produce, Jesus made the remark to a group
FERNANDES SUPER MARKETS, INC. 967
of employees that the injury would not have occurred if there had been a union in
the store.12 Then it is undenied that, as Palardy himself testified, it had become a
"joke" around the store that if the Union got in, Jesus would be its "shop steward."
Thus, even though Respondent may not have known that Jesus was soliciting em-
ployees to join the Union at New Bedford, there can be no doubt that Palardy, Re-
spondent, and the employees at New Bedford knew that Jesus was in fact active
enough in the union organizational campaign to be considered for its shop steward.
Oftentimes, as here, "jokes" convey a wealth of information. It is also to be noted
that within 3 days after Palardy, at least, heard this "joke" regarding the possibility
that Jesus would become shop steward, Pires had determined that Jesus must be
discharged.
Palardy denied having included mention of any union activity on the part of
Jesus in his reports of Jesus' shortcomings to Pires. There is, of course, no direct
proof to the contrary. However, the knowledge of Palardy, a supervisor, can be
imputed to Respondent.
But the fact of the matter is that Pires himself knew or suspected that Jesus was
engaged in union activities for it is undenied that he replied to the complaint made
by Jesus that Respondent had deprived him of his unemployment compensation by
answering: "Don't come crying to me; go see your buddy, Bob Furtado. You said
he is your union man."
If Pires discharged Jesus on July 15 because of his known or suspected activities
on behalf of the Union rather than for incompetence, unsatisfactory work, or de-
liberate disobedience of orders, then one of Pires "apparent inconsistencies" is ex-
plained, to wit, his agreement on July 15, while discharging Jesus, that Personnel
Manager Feuer could, and would, give Jesus a letter of recommendation dated
July 17. That explanation also accounts for the fact that Respondent found it
necessary on July 21 to post its letter of that date to Jesus on the bulletin board at
the New Bedford store and thus tell its side of the "story" to the employees at New
Bedford. That further explains why Feuer was able to assure Jesus that "Shorty"
Fernandes would not queer the letter of recommendation. No doubt Respondent
did not care if Jesus were to assist the Union to organize a rival chain.
Accordingly, the Trial Examiner is convinced, and therefore finds, that Respond-
ent discharged Joseph Jesus on July 15 because it knew or suspected that Jesus was
engaging in an effort to organize the employees of the Respondent's New Bedford
store in violation of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Joseph Jesus by discharging him on July 15, 1962, the
Trial Examiner will recommend that Respondent offer to him immediate and full
reinstatement to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole for any loss of
pay he may have suffered by reason of said discrimination against him by payment
to him of a sum of money equal to that which he would have earned as wages from
the date of the discrimination against him to the date of his reinstatement plus in-
terest thereon at 6 percent but less his net earnings during such period and in ac-
cordance with a formula set forth in F. W. Woolworth Company, 90 NLRB 289.
As discharging an employee in order to thwart union organizational efforts goes
to the very heart of the Act, the Trial Examiner senses an attitude of opposition to
the purpose of the Act in general, and hence deems it necessary to order that the
Respondent cease and desist from in any manner infringing upon the rights guar-
anteed its employees in Seciton 7 of the Act.
12 It is to be noted that the Respondent's brief cites the criticism of Teunneson by Jesus
for using "young boys to unload heavy crates" as proof of Jesus' critical attitude toward
Teunneson.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Local 1325, Retail Clerks International Association , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By discharging Joseph Jesus on July 15, 1961, thereby discriminating in regard
to his hire and tenure of employment and discouraging union activities among its
employees , Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Glaziers Glass Workers and Glass Warehouse Workers, Local
Union No. 1778, Brotherhood of Painters, Decorators and
Paperhangers of America , AFL-CIO and Local Union No. 18,
International Hod Carriers, Building and Common Laborers
Union of America , AFL-CIO and Pittsburgh Plate Glass Com-
pany. Case No. 23-CD-51. June 28, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Pittsburgh Plate Glass Company, herein called Pitts-
burgh or the Employer, against Glaziers Glass Workers and Glass
Warehouse Workers, Local Union No. 1778, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL-CIO, herein called
Local 1778 or the Respondent, alleging that the Respondent coerced
employers to change work assignments from one class of employees
to another. A duly scheduled hearing was held before Rodney L.
Reagan, hearing officer, on February 16, 1962. Local 1778 and the
Employer appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to adduce
evidence bearing upon the issues.' The rulings of the' hearing officer
made at the hearing are free from prejudicial error and are hereby
affirmed. Briefs filed by the parties have been considered.
Upon the entire record, the Board makes the following findings:
1. The Employer
Pittsburgh Plate Glass Company is a glass manufacturer and con-
tractor engaged in the sale and installation of glass in the State of
Texas. At Houston, Texas, it annually receives products from other
i Local Union No. 18, International Hod Carriers , Building and Common Laborers Union
of America , AFL-CIO, herein called Local 18, a party in interest , was served with the
,formal papers but did not appear or participate at the hearing.
137 NLRB No. 115.