Giant Food, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1308 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Giant Food, Inc. and Federation of Special Police
and Law Enforcement Officers. Cases 5-CA-
10549, 5-CA-10959, and 5-RC-10677
September 30, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PNEI.I.O
On June 26, 1980, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the Union filed
a request to post the attached notice in each of Re-
spondent's 90 stores.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Giant Food, Inc., Washington, D.C., its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(f):
"(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
By way f clarificatlion we construe the requirement in the recom-
mended Order that the notice be posted at Respondent's operations in
Maryland, Virginia, and he District of Columbia as requiring that the
notices be posted at each of its locations at which unit employees work.
2 Respondent has excepted o certain credibility findings made by the
Administrative Law Judge It is the Board's established policy nol to
overrule an administralive law judge's resolulions with respect to credi-
bilily unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Staidard Dry Wall Products,
Inc., 91 NLRB 544 (195(01 enfd. 188 F 2d 362 (3d Cir. 1951) We have
carefully examined the record arid find o basis for reversing his findings
' In par. (c) (of his recommnlended Order, the Admiirstratisve Law
Judge uses the broad cease-anld-desist language, "in any other manner"
However, we have considered this case i light of the standards set forth
in licAnLmont Fndv. lc, 242 NI.RH 1357 (1979), and have concluded that
a broad remedial rder is appropriate inasmuch as it has not been shown
that Respondent has a proclivity to violate the Act ior has engaged in
such egregious or widespread miscillduct as t denllstrate general
disregard for the enmployces fndamentall statutory rights. Accordingly
we shall nmodify the reconmended ()rder so as to use Ihe nlarrow illjunc-
tive language. "in any like or related llllnier
252 NLRB No. 182
ercise of rights guaranteed under Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERLI) that the election con-
ducted in Case 5-RC-10677 be, and it hereby is,
set aside and that a new election be conducted as
set forth in the direction below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WI: WILl. NOT discourage employees from
joining, supporting, or engaging in activities
on behalf of Federation of Special Police and
Law Enforcement Officers, or any other labor
organization.
WE WILL NOT threaten to discharge, or to
cause, employees to lose their employment, or
engage in other reprisals against employees be-
cause they engage in union activities.
WE WILl. NOT threaten employees with loss
of employment benefits because they engage in
union activities.
WI: WILL NOT coercively question employ-
ees concerning their union activities.
WE WILL NOT direct employees to use force
against union representatives who enter com-
pany stores, in order to discourage support of,
activities on behalf of, or membership in a
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the National Labor Rela-
tions Act.
WE WILL offer Calelah J. Lattisaw immedi-
ate and full reinstatement to his former job or,
if that job no exists, to a substantially equiv-
alent job, without prejudice to his seniority,
working conditions, or other rights and privi-
leges previously enjoyed, and WE WILL make
him whole for any loss of pay or benefits suf-
fered as a result of the discrimination against
him plus interest.
GIANT FOOD), INC.
1308X
GIANT F))D, INC,
DECISION
SI ArIMENI 0:1 Hl.l CASE
SIDNEY J. BARHAN, Administrative Law Judge: This
matter was heard before me in Washington, D.C.. on Oc-
tober 15, 16, 29, 30, and November 11, 1979, upon a
complaint in Case 5-CA-10549, issued on May 30, 1979
(based on a charge filed on February 23, 1979, by the
above-named Charging Party-herein called the Union),
and a complaint in Case 5-CA-10959, issued on July 17,
1979 (based on a charge filed by the Union on May 15,
1979), consolidated by orders issued by the Regional Di-
rector for Region 5 on May 31, 1979, and July 19, 1979,
for hearing with objections to an election conducted by
the National Labor Relations Board (herein called the
Board) in Case 5-RC-10677.
The complaints allege that Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act, as
amended (herein called the Act), (a) by threatening its
employees with dismissal from employment, wage reduc-
tion, and loss of benefits because of their activities on
behalf of, or support of the Union, (b) by directing em-
ployees to assault agents of the Union who visited Re-
spondent's stores, (c) by creating an impression of sur-
veillance of the employees' union activities,' and (d) by
interrogating employees concerning their union activities
and sympathies, and violated Section 8(a)(3) and (1) of
the Act by terminating employee Calelah J. Lattisaw.
The answer to the complaint denies the unfair labor
practices alleged, but admits allegations of the complaint
justifying assertion of jurisdiction under the Board's pre-
sent standards (Respondent, engaged in the retail sale of
groceries in the District of Columbia, Virginia, and
Maryland, during a recent annual period, received gross
revenues in excess of $500,000, and during the same
period purchased and received in interstate commerce
goods and materials valued in excess of $50,000), and to
support a finding that the Union is a labor organization
within the meaning of the Act.
Upon the entire record in this case, from observation
of the witnesses and their demeanor, and after consider-
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE SUPERVISORY ISSUE
This proceeding involves the security force employed
by Respondent to protect its property, referred to in the
record as the Loss Prevention Department. John B.
Kelly is director of that department. Under him are three
zone superintendents, Robert J. Hartman, Daniel Denni-
son, and John Muzzi. Another supervisor involved in
this proceeding, though not alleged to have engaged in
any unfair labor practices, is Superintendent Curtis
Prince. Respondent agrees that they are supervisors
within the meaning of the Act. Respondent also agrees
that the following persons are agents and statutory su-
pervisors of Respondent: Gary Brown, Charles Iski,
' General Counsel produced ni eCiderne In Suppirt of his llegation,
and in her brief asks that this be dismissed
Donald Inks, Alvin D. Wolper, Lieutenant June Walters,
and Vice President of Labor Relations Roger Olson.
In addition, the General Counsel contends and Re-
spondent disputes that Lieutenant Damian Hayes is a su-
pervisor within the meaning of the Act.
Damian Hayes
Damian Hayes, who was a Lieutenant in Respondent's
security force during the period material herein, was pro-
moted to that position from the rank of plain clothes de-
tective. He reported directly to Charles Iski, referred to
as the night superintendent, and was also responsible to
Iski's superior, John Muzzi. According to the testimony
of Muzzi and Iski, which impressed me as being less than
candid on the question of Hayes' duties and authority,
Hayes does not have the authority to hire or fire, to rec-
ommend hiring or discharge, to recommend wage in-
creases, or to discipline Respondent's guards. However,
it is admitted that one of Hayes' primary duties was to
go from store to store in his area and check on the ap-
pearance and conduct of the guards. It is stated that he
reports problems which he encounters to Iski, who, on
the basis of such reports, reprimands the offending
guard, as shown by an incident in the record involving
guard Curtis Morris. The record also shows, as known
to Iski, that Hayes also reprimanded Morris for his con-
duct on this occasion.2 Though it is asserted that Hayes
does not schedule or assign guards to the stores, it is ad-
mitted that he may do so at Iski's direction. In one in-
stance, in which Hayes reported that a guard, Smith, had
falsified his timecard, it is clear that it was Hayes who
told Smith, after consultation with Iski, that Smith was
suspended and should leave work. a
According to Muzzi. the guards in the stores at night
would normally report problems to Iski, if they could
find him, but if Iski was not available, the guards would
report their problems to Hayes, because Hayes "would
be the next step down from Iski." Muzzi says the origi-
nal idea in promoting Hayes to Lieutenant was to have
him check on the guards, but because of a shortage of
guards at the time, he was largely used to fill in for miss-
ing guards at night.
Curtis Morris, who was hired by Muzzi in December
1978, states (and Muzzi denies) that Muzzi told him that
Hayes would be his supervisor. Morris further testified,
without essential contradiction, that, as directed, he re-
ported to Hayes for assignment on his first night at
work; that normally at the end of his workweek, he gave
his timecard to Hayes, who initialed it and sent it to Re-
spondent's offices; that he likewise submitted his voucher
for reimbursement for mileage to Hayes who also ini-
tialed that document before sending it on; that he re-
ceived his paycheck from Hayes; that from his observa-
tion Hayes was responsible for assigning work schedules
I rilially. ,ski, referring to Hayes as the "night captain," stated that
Hayes not only reported hat Morris had engaged in prohibited conductr.
but that Haycs also "told hin [Morrisl so " Later, Iski asserted that only
Iski, and riot Hayes. spoke to Mi)rris about his conduct Morris testified
that hie was reprimanded hb Iayves as well as ski.
:t his finding is derived from ski's testimon), which ended to he ea-
slie. acillalilng and crlritadl tor. on the ssue, and from Resp Exh. 6
1309
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
to the guards, and, in fact, assigned Morris to stores at
which he worked; that he was told to call Hayes if he
was going to be absent from work, and from his observa-
tion (apparently limited to occasions when Hayes hap-
pened to be in the store where Morris was working),
Hayes did not do guard work, but spent his time in the
manager's office talking on the telephone. (Hayes states
that he uses a telephone outside the manager's office.)
The record is convincing that Hayes, during the time
material herein, had and exercised authority, using his in-
dependent judgment, to responsibly assign, direct, and
discipline employees, and therefore was a supervisor
within the meaning of Section 2(11) of the Act. I further
find that Respondent during this same period put Hayes
in a position of such responsibility, identifying him with
Respondent's management, that the employees involved
would reasonably understand that he spoke for manage-
ment in regard to management's labor relations policies.
See S & M Grocers, Inc.: S. Cook Enterprises, Ltd., and
Cook's Supermarkets, 236 NLRB 1594, 1599 (1978), and
cases cited.
11. Al.l l GEI) UNFAIR ABOR PRACrTICES
A. Preliminary
The Union's campaign to organize Respondent's secu-
rity force was initiated in October 1978 (all dates herein
are in 1978, except where otherwise noted), by one of its
guards, Robert Woodard, who is no longer employed by
Respondent. The Union filed a petition for certification
on November 20. A secret-ballot election was conducted
by the Board, by mail, between February 7 and March 2,
1979, pursuant to a Decision and Direction of Election
issued on January 23, 1979, by the Regional Director. A
majority of the ballots cast were against representation,
and the Union filed timely objections to the election.
B. Alleged Threats of Reprisal, Interrogation ofj
Employees
1. Donald A. Inks
(1) Robert Woodard testified that in early November
1978, when, after a request by Supervisor Inks, he re-
fused to sign a memorandum which alleged that he was
"continuously" absent from work without excuse,4 Inks
told him, "If you are involved in any part of the Union,
or have anything to do with it, I will make it so hard for
you, you will never get a job." Woodard says that when
he persisted in refusing to sign, Inks "stormed out the
door."
Inks recalls taking the memo to Woodard, at the re-
quest of Iski, who was the night supervisor, explaining it
to Woodard, and then departing when Woodard refused
to sign it. Inks denies that the Union was mentioned
during this conversation, though he was aware of the
union activity at the time.
4 The copy of the memo in evidence shows that Woodard was accused
of being absent on at least 14 dates (there may be more; the exhibit is
poorly copied) The memo provided space for employee signature sho-
ing that he understood that such conduct would be disciplined in the
future.
(2) Around the end of October or November 1, ac-
cording to the testimony of Calelah Lattisaw, then one
of Respondent's guards, Supervisor Inks approached him
at work, and after first remarking on a problem Lattisaw
was having with his skin, then questioned him as to
whether he had seen any union officials around." Latti-
saw says that when he answered in the negative, Inks
asked Lattisaw how he was going to vote in the election,
to which Lattisaw gave a non committal answer. Latti-
saw asserts that Inks then told him that "all of the other
guards over at Landover . . . were going to vote 'no,'
and that it was best that I voted 'no' also"; that "if [Inks]
found out that I voted 'yes,' or that anyone else voted
'yes' that I would be fired." 6 Lattisaw indicated that
other things were said about the Union in this conversa-
tion, but this is all he remembers.
Inks recalls an occasion on which he spoke with Latti-
saw concerning his skin problem, but denies that the
Union was mentioned at the time.
(3) Lattisaw testified that he was directed by his super-
visor, Curtis Prince, to go to Respondent's main office at
Landover on Saturday, February 10, 1979, to have his
picture taken for a temporary ID card. Lattisaw asserts
that when he arrived at Landover, before he got to the
security office where Supervisors Walters and Iski pre-
pared his ID card, he heard Supervisor Inks telling Su-
pervisor Hartman that Respondent should get rid of all
the black guards, that this would prevent the Union from
coming in. Lattisaw believes the two men saw him and
then began laughing. 7
Inks testified that he normally does not work on Satur-
days, though he has on several occasions visited Respon-
dent's Jessup location on Saturday. Inks does not recall
whether he worked on Saturday, February 10, 1979. He
does "quite frequently" work at Landover. Inks was not
asked and did not deny the conversation attributed to
him by Lattisaw.
Hartman testified that he did not recall being at Lan-
dover on February 10, 1979, and said that it was not his
practice to work on Saturdays. He was not asked and
did not testify concerning the conversation Lattisaw says
he overheard.
Walters states that he was in the Loss Prevention
office that morning, processing materials for the guards'
ID cards. He testified that he does not believe that Su-
pervisor Hartman was in the office that morning.
Iski states that he was in the office assisting Walters
that morning, and that he did not see either Hartman or
Inks there.
With respect to the three incidents set forth above, I
credit Woodard and Lattisaw. I find their testimony con-
' Several witnesses testified, as detailed hereinafter, that Respondent
made clear to the guards that they were to report to management imme-
diately any union representatives seen in the stores, and that the guards
were to eject them from the stores, using physical force if necessary
Some witnesses state that they were told that guards would be fired if
seen in conversation with union representatives in the store
I understood Lattisaw in giving this testimony to mean that the
person voting "yes" would he fired, not that he would he fired if some-
one else Noted "yes."
' Anolher guard, Curtis Morris, testified that Supervisor Walters made
a somewhat similar remark to him, set forth hereinafter, when he was
hired
1310
GIANT FOOD, INC.
cerning these incidents convincing and consistent with
the record as a whole. As to item 3 above, as noted,
Lattisaw's testimony is not specifically denied, Inks and
Hartman saying that they did not recall being there. The
fact that Walters and Iski, who were in the security
office processing materials for identification cards, may
not have seen Inks or Hartman does not add a great deal,
in the circumstances. As to the other two incidents, I
have the impression that Inks does not have a clear rec-
ollection of the contents of those conversations.
The record makes clear that Respondent was unalter-
ably opposed to the unionization of its guard force, but
the testimony of Respondent's supervisors-as with Inks
here-is to the effect that they said nothing on the sub-
ject to the employees. I believe that the situation as de-
scribed by Woodard and Lattisaw above is more nearly
accurate.
2. Charles J. Iski
(1) Calelah Lattisaw says that in October, while he
was at work, Supervisor Iski asked if he had seen any
union representatives or union people in the store. Latti-
saw said that he had seen none. Iski said, in the event
that he did see them in the store, "he wanted me to
throw them out and call him right back." Lattisaw as-
serts that at various times Iski asked Lattisaw if he "had
seen any of the union reps. He told me that he did not
want to see anyone talking to the union reps, and it was
best . . . to throw them out of the store. He also told me
that if the Union won, that we could lose our benefits,
vacation pay, and possibly even our jobs . . . if the
Union came in he was going to leave [being] a supervi-
sor and go back to plain clothes detective . ... He told
me that it was best if I voted 'no' to the Union, and also
that his boss, Bob Kelly, just did not want the Union of-
ficials in there at all."
Iski denies telling Lattisaw that if the Union came in,
he would lose his benefits and "maybe his job," or that
Iski would go back to being a detective, or that he told
Lattisaw to throw union representatives out. However,
when asked if he ever had any conversation with Latti-
saw "concerning Union representatives visiting the store
while he was working," Iski answered that the "only
conversation" would have been when Lattisaw, "as a lot
of the guards did, they'd ask me if I heard anything
about the Union and whatever, and that would have
been the extent of the conversation there." Iski testified
that he would only tell the guards that he was not al-
lowed to discuss the matter, and that they should take
their questions to the Labor Board. Nevertheless, Iski ad-
mitted that he had, in fact, instructed the guards to call
him if union representatives tried to talk to them in the
stores "on our time"; that the guards did call him, and
that he thereupon sought to intercept the union represen-
tatives in the store, if he could.
(2) Curtis Morris, who is no longer employed by Re-
spondent, was hired about December 8 by Superinten-
a Three exceptions would be Olson's speech opposing unionization,
Iski's assertion that when an employee asked him about the Union, he
would tell him to go talk to the Labor Board. and the accusation made
against Lattisaw that he harassed another employee with respect to the
Union. These will be considered hereinafter
dent Muzzi at a time when Respondent was in great
need of guards. After Muzzi advised Morris (according
to Morris' testimony) that Respondent would contract
out its guards service to avoid unionization, Muzzi sent
Morris to see Supervisors Walters and Iski at andover
for further processing. Morris asserts that he had a simi-
lar conversation with Walters, who, after asking if
Morris was interested in the Union, said that there was
"never going to be a union," that he would fire all the
black guards. (Morris states that he was taken aback by
this, because Walters is black himself.) Morris says that
Iski "just chimed in with Walters," and added, "Yes, we
can put contract security in all of our stores . . . just so
you know how we feel about the Union."
As discussed below, Muzzi denies the remarks about
the Union attributed to him by Morris. Iski denied
having any discussion about the Union with Morris on
the day Walters processed his papers at Landover,9 and
further denied hearing Walters ask any questions or give
any instructions to Morris about the Union on that occa-
sion. So far as I can ascertain, Walters did not testify
concerning this incident.
(3) In early December, shortly after he was hired,
Curtis Morris says Iski spoke to him at work, saying that
he, Iski, had heard that there was a union representative
in Morris' area, "and for me not to talk to anybody," and
"if I have to . . . order him out of the store the first
time, and if I have to, use physical force to get him out
of the store the next time.'0
(4) Robert Woodard stated that in October, avhen he
returned from vacation, Iski came to the store where
Woodard was working, assertedly to take his picture for
company records. During this conversation, Woodard
says Iski asked him if he had heard anything about the
Union; when Woodard said that he had, Iski asked what
Woodard thought of it; Woodard replied that he thought
it would be a good thing. Woodard says Iski then told
him to stop smoking a cigarette and drinking coffee be-
cause he was on duty. At the time, Woodard says, Iski
was smoking and drinking coffee.
Iski asserts that on this occasion Woodard was without
his hat, drinking coffee, and smoking a cigarette in view
of customers, and says that he told Woodard to put his
hat and his night stick on and put away his coffee and
cigarette. " Thereafter, Iski says he took Woodard out-
side the store where both had coffee and a cigarette. Iski
9 Indeed, Iski asserted that he did not even know about the union ac-
tivity until about Christmas. This is difficult to credit since the Union had
already, on November 20, filed a petition for certification
10 Shortly after Morris began work, another guard, Glenn Yuell, in-
formed Morris that Iski had instructed Yuell to explain Morris' duties,
and the procedures to be followed. Yuell questioned Morris about his in-
terest in unions, and told him that "if you want to keep your nose clean
and keep your job . . you won't even talk to any of them when they
come around." Iski agreed that he had instructed Yuell to explain Re-
spondent's "policy and whatever" to Morris on this occasion. Yuell did
not testify.
I I Woodard, on rebuttal, denies that Iski said anything to him about
his hat, and also states that he never carried a night stick as part of his
uniform Iski asserts that Woodard became upset at being reprimanded,
but, on cross-examination indicated that he could not recall what Woo-
dard said, describing his attitude n rather vague and general terms.
1311
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
states that at the time he was unaware of the union activ-
ity.
I have had occasion previously to note my lack of
confidence in the testimony of Muzzi and Iski. On the
basis of the impression made at the hearing and the
record as a whole, I credit Lattisaw, Morris, and Woo-
dard with respect to their testimony set forth above con-
cerning statements made by Iski, Muzzi, and Walters.
In the circumstances, Iski having delegated Yuell to
explain Respondent's policies and practices to Morris,
the latter was justified in understanding that Yuell spoke
for Respondent in making his antiunion remarks, also.
However, this matter was not alleged or fully litigated
and it is therefore not found to violate the Act.
3. John Muzzi
Curtis Morris testified that when he was interviewed
on December 8 for employment as a guard, he asked
Muzzi if there were a union for the guards at Respon-
dent's operations. He states that Muzzi replied that
"there was no guard union, there would not be any
guard union; if anyone was caught talking about a guard
union, they would be fired; . . . [that] he had contract
security in some of his stores in Virginia, and it would be
easy for him to get rid of all the guards and get contract
security in all the stores." Muzzi said he knew of an or-
ganizer that was "running around the different stores in
Maryland, Virginia, and D.C. trying to drum up union
business, but that he had his boys taking care of that and
that he was absolutely sure that he wouldn't get any
place."
Muzzi denied that during this employment interview
he made any references "to a union or a union cam-
paign," and asserts that "to his knowledge" Morris asked
no questions about a union. 12
Consistent with findings previously made, I credit
Morris as to this incident and discredit Muzzi to the
extent inconsistent with Morris' testimony.
4. Other incidents
The General Counsel adduced further evidence to the
effect that: ()(a) Superintendent Robert J. Hartman, in
October at a meeting to solicit for the United Fund,
threatened that guards engaged in union activities would
be fired, that bringing the Union in would cause the em-
ployees to lose benefits, and that the guards were to
eject union representatives with force, and, (b) in an inci-
dent in November, Hartman was overheard saying that
Respondent had to get rid of Woodard "quick and quiet-
ly because of the union coming in."
(2) Superintendent Alvin D. Wolfer, in the latter part
of September or early October, in answer to a question
about the Union, told a guard that if the Union came in
his pay would be reduced.
(3) Supervisor June Walters, sometime in February
1979, at the metropolitan police station in the District of
i: Muzzi also denied Morris' testimony that he told Morris that Hayes
was to be his supervisor, or that he would start to1 work that night or that
Walters would fingerprint Morris at L.andover, but Muzzi agrees as
Morris asserted, that he sent Morris to Landover to be processed by Wal-
ters and Iski for ork These matters have been considered in assessing
credibility in this matter
Columbia, was heard to say to a District of Columbia
police officer that if the Union won the election, Respon-
dent would fire the guards and bring in a private security
agency.
(4) Lieutenant Damian B. Hayes warned Morris, when
the latter first came to work, against talking about the
Union with anyone who came in the store, saying that,
"If [Morris] really liked [his] job, [he] would stay away
from these people and order them out of the store, phys-
ically if [he] needed to."
(5) Roger Donovan Olson, vice president of labor rela-
tions for Respondent, said in a speech to employees in
February 1979 that the papers he held, which came from
the Union, showed that if the Union came in, the em-
ployees would lose their benefits; the employees could
lose their jobs; and, Respondent could hire a private
agency and the employees would be discharged. Olson
said that it had been Respondent's policy for a decade
that it did not want its guards to be unionized.
Each of the above instances was controverted. Some
of these instances involve incidents of considerable com-
plexity, the discussion of which would unduly lengthen
this decision inasmuch as, assuming they would be found,
they are cumulative of unfair labor practices already
found. I do credit Morris' testimony, however, with re-
spect to Hayes set forth in item 4 above. In the circum-
stances, I do not pass upon the validity of the testimony
referred to in paragraphs numbered ()(a) and (b), (2),
(3), and (5), and shall therefore recommend that they be
dismissed.
5. Conclusions
Based on the above and the record as a whole, I find
that Respondent engaged in the following conduct in
violation of Section 8(a)(l) of the Act.
(1) Telling employees that if they engaged in union ac-
tivities or supported the Union, or talked to union repre-
sentatives, Respondent would (a) make it difficult for
such employees to get another job, (b) fire the employ-
ees, and (c) contract out the work then being done by
Respondent's employees.
(2) Telling employees that (a) they should stay away
from the Union if they like their job, and that they
would lose employment benefits if they selected the
Union as their representative.
(3) Instructing the employees not only to refuse to talk
to union representatives, but to eject them from Respon-
dent's stores, using force if necessary. There can be no
quarrel with Respondent's instructions to employees not
to talk to the union representatives in the stores during
working time (though the evidence is not clear that the
instruction was uniformly so limited), but the added in-
struction to eject the representatives from the stores,
with permission from Respondent to use force, clearly
derives from Respondent's desire to demonstrate the ex-
treme to which it would go to defeat the Union and im-
press the employees with Respondent's power over their
employment.
(4) Interrogating employees, in a context of coercive
unfair labor practices concerning union activities and
support.
1312
GIANT FOOD. INC
C. The Termination of Calelah J. Lattisaw
1. The April 10 confrontation
Calelah Lattisaw was employed by Respondent as a
guard from July 31. 1978, until April 10, 1979. He
learned of the union organizing drive from Woodard in
September and signed an authorization card for the
Union on October 19. Curtis Prince, Lattisaw's supervi-
sor, in his testimony, did not indicate that he had any
problems with Lattisaw during his employment.
In early 1979, Lattisaw submitted an application for a
loan from Respondent. Though the application had been
approved by Prince, Lattisaw nevertheless experienced
some difficulty in getting the matter approved by man-
agement officials and made an appointment to see one of
the officials in the Loss Prevention Department on or
about April 5, 1979, concerning this. However, when
Lattisaw arrived for the appointment, he says that he in-
terrupted the official in a compromising situation in his
office. The official abruptly sent him away. Lattisaw
spoke of the incident at least to Woodard, and possibly
to Prince. In any event, Prince recalls hearing about the
incident from Woodard.
On April 10, 1979, Superintendent Hartman and Su-
pervisor Walters told Lattisaw at work that they wanted
to talk to him privately and took him to Hartman's car,
parked in the parking lot adjacent to the store, where
Lattisaw was directed to the rear seat, while Hartman
and Walters occupied the front seat. As the latter two
were getting in the car, Lattisaw says that he noted they
were armed, which made him nervous and upset.
Lattisaw testified that the following occurred: Hart-
man said that he had something of importance to discuss
with Lattisaw. First, Hartman asked if Lattisaw had been
at "the main office" on the previous Thursday (April 5).
Lattisaw, who testified that he wanted to avoid prob-
lems, denied that he had been there. Hartman next asked
if Lattisaw knew a guard employed by Respondent
named Mark Nebbels. Lattisaw, again untruthfully,
denied knowing Nebbels. Hartman and Walters accused
Lattisaw of lying, saying, as Lattisaw testified, that Neb-
bels had told them that Lattisaw had been trying to get
him "to come down and make statements to the Union
officials." '3 When Lattisaw denied this, he was again ac-
cused of lying.
At this point Walters digressed, asking if Lattisaw had
received his mail ballot in the representation election and
if he had voted. Lattisaw told Walters (untruthfully) that
he had not. Walters asked why he had not voted; Latti-
saw gave an evasive answer; and Walters replied that
Respondent could have used a "no" vote.
Hartman thereupon again asked Lattisaw if he did not
know Mark Nebbels, and when Lattisaw denied that he
knew Nebbels, Hartman stated that he knew Lattisaw
Ia Lattisaw asserts that the week before, Nebbels had told him that he
had been threatened by Kelly. Walters, Iski. and Inks, suho knew that he
had some contacl with the Union, that the) would fire him if they caught
him "talking to these people" Lattisaw states Nebbels said "that they
threatened him so bad . he had to go to the doctors H" told me
he was still on nerve medicine " LIattisas suggested to Nebbels several
times that he gie statements to the union officials about hat had oc-
curred.
was lying, that he had "just come from store 147, and I
have talked to Mark Nebbels. and he tells us that you
have been trying to get him to make some statements to
the Union officials." 4 When Lattisaw denied this again
Hartman asked why Nebbels would say what he did
Lattisaw replied that he "wouldn't know."
Hartman then reverted to the compromising incident
at the main office, asking why Lattisaw had told Super-
visor Curtis Prince about it. Lattisaw denied doing so.
Hartman then made some very unfavorable comments
about Prince's personal activities. Hartman told Lattisaw
that he intended "to get to the bottom" of this matter
and advised him that he "could be killed for making ac-
cusations about one of our supervisors, and especially the
one you made it about."
At the end of the discussion, Hartman told Lattisaw
that he had taped their talk, with "authorization" from
Director Kelly. Walters said, "By the way, Lattisaw, I
will be your boss next week. Curtis Prince will no longer
be your boss."' 5
It appears from the testimony of Hartman and Walters
that they were instructed by Director Kelly to interview
Lattisaw about his statement that he had seen one of the
security force officials engaging in an improper activity
at the main office, which Kelly apparently had learned
from Prince, and about complaints assertedly made by
Nebbels to Supervisor Iski that Lattisaw had been har-
assing him-according to Hartman to force Nebbels to
attend a union meeting. 16 Hartman testified that in this
interview he did not tell Lattisaw that he could get hurt
or killed for making statements that had been reported
about Respondent's security force official. Hartman
agrees (as does Walters) that they asked Lattisaw if he
had voted, but denies that Walters said Respondent
could use another "no" vote. Hartman further denies
that he made the derogatory remarks about Prince attrib-
uted to him by Lattisaw, but, instead, says Lattisaw
made similar remarks about Prince. 7 Other than this,
the testimony of Hartman and Walters is fairly consistent
with that of Lattisaw. Respondent retains the tape re-
cording of the interview (and a transcript of that record-
ing), but declined to place it in evidence."
"' Hartman at one point testified that he had not spoken to Nebbel,
previously Walters denied that he had seen Nebhhels on the "ame day"
Lattisaw as interviewed Both say they did at some point talk ilth
Nebbels
1' According to Walters' testimony, even prior to that date he was
Lattisas k's supervisor "at his store," but agrees that store was nescrthe-
less "under" Prince who was "superintendent of that district" The
record is clear that .attisaw had been given to understand. prior to April
10, that Prince was the supervisor to whom he reported As indicatrd
hereinafter, both Prince and Lattisau acted thereafter on much the same
hasis
6 L.altisaw denied harassing Nebbels Nebbels, who has since been dls,
charged, did not testify. The evidence is that the Union did not have anrs
meetings scheduled during the period involved However. the Union had
been seeking to have employees come forward with esidence to support
its objections to the election
1; Htartman indicates that some animosity existed betueen Princc and
L.atisal This is not hborne out byh the record as a wuhole
' Respondetit asserted, without any further explanationlll. that there
uere irrelesant matters on the recording that it did not wish to disclosc
Respondent refused my offer to excise such irreleNanl matters befre Ithe
transcript of the tape was placed in ces dence
131 3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge
After the confrontation with Hartman and Walters set
forth above, Lattisaw asserts that he felt unable to com-
plete his work that day. After making a report to his su-
pervisor, Prince, with respect to the interview with
Hartman and Walters, Lattisaw asked permission to take
off the remainder of the work day, which Prince grant-
ed. That evening Lattisaw became so upset that he
sought medical assistance at the emergency room of a
local hospital. The doctor advised that he should not
return to work for 2 weeks. According to Lattisaw, the
doctor also told him to avoid contact with Hartman and
Walters.
Lattisaw called Prince on April It and 12 to advise
him of his visit to the doctor and the doctor's orders not
to return to work for 2 weeks. Prince agreed, telling
Lattisaw to obtain a written statement from the doctor
when he was ready to come back. Lattisaw replied that
he had such statement. (Prince recalls "several conversa-
tions" with Lattisaw with respect to his absences from
work because of doctor's orders.)
On April 11, 1979, Walters called Lattisaw's home and
left a message that Lattisaw would be fired if he did not
report to Respondent's main office that day. (Walters re-
lates that he made two calls to Lattisaw that day, had
difficulty in getting Lattisaw to talk to him on the phone,
and was told that Lattisaw would call back. Walters' tes-
timony also indicates that he suspected that Lattisaw
might be upset as a result of the confrontation the prior
day.) That afternoon, Lattisaw sent Walters a Western
Union mailgram, which Western Union confirmed was
delivered on April 11 at 4:12 p.m., reading as follows:
SIR AS YOU KNOW I AM SICK AND OUT
PRESENTLY AND AM TOO SICK TO COME
INTO THE OFFICE AND I WILL RETURN
HOPEFULLY BY THE BEGINNING OF THE
WEEK AND WILL SEE YOU AT THAT TIME
THANK YOU VERY MUCH.' 9
Apparently during the week of April 15, 1979, Latti-
saw was released by his doctor to return to work. Latti-
saw called Prince and stated that he had a statement
from his doctor to return. Prince told Lattisaw to bring
it in the following week. However, on Saturday, April
21, Lattisaw received a letter from Director Kelly, dated
the previous day, reading as follows:
Dear Mr. Lattisaw:
This letter is to inform you of your termination
from employment with Giant Food Inc., effective
April 12, 1979.
You will receive all monies due you when all
Giant Food Inc. uniforms and equipment which you
have been issued is returned to the Main Office of
Loss Prevention, 6300 Sheriff Road, Landover,
Maryland. This transaction will be in keeping with
an agreement as evidenced by your signature on
i9 Walters testified that subsequent to his call to Lattisaw, Lattisaw
"didn't attempt to communicate with me in any way to say he was ill or
under a doctor's care." To the extent that this is a denial of receipt of the
mailgram on April II it is not credited
Record of Uniforms and Equipment Issued, form
8958, dated August 1, 1978.
Lattisaw spoke to Prince about this letter. Prince said
that he did not know anything about the letter and
would talk to Kelly about it. Later Prince told Lattisaw,
as the latter testified, that "they" would not tell him why
Lattisaw was terminated, and "the only thing he could
figure out, it was because of my union activities and the
sex incident." 20
Lattisaw thereafter went to the main office, with an at-
torney, to return his uniforms, as requested, and to find
out the reason for his termination. He was told that
Kelly was not there, and spoke with Hartman and Wal-
ters, who raised objections to meeting with him with his
attorney present. They finally relented. When Lattisaw
asked why he had been terminated, "they said that they
could not give me any reason right now; that [Lattisaw]
would have to wait until Bob Kelly came back from his
vacation." Lattisaw gave them his doctor's statement and
they made copies of it and returned the original to
him.2 ' Lattisaw has had no contact with Kelly since that
time.
Respondent presented no direct evidence as to the
reason Lattisaw was discharged, and, after stating that
Director Kelly was unavailable because testifying in an-
other proceeding, declined my offer to consider a reason-
able request for adjournment to provide an opportunity
for him to appear.
3. Conclusions
Respondent suggests that Lattisaw's "failure to comply
with the ongoing investigation of [his] statements that he
had seen one of Respondent's officials engaged in mis-
conduct and guard Nebbels' alleged accusations that
Lattisaw had been harassing him to support the Union
resulted in Kelly sending him a termination letter." (Br.,
p. 24) Respondent cites no support for this position and I
find none.
The facts indicate three possible reasons for Lattisaw's
termination: (I) because he had made statements deroga-
tory of a member of Respondent's management staff, or
(2) because he was allegedly harassing another employee
to support the Union, or (3) because he had been absent
on "sick leave" for over a week. As noted, Respondent
relies on none of these. The third possibility is easily dis-
carded. Lattisaw timely informed Respondent that he
was ill and under a doctor's care, and provided Respon-
dent with a statement from the doctor. In his testimony,
Supervisor Walters refers to Lattisaw as being on "sick
leave" during this period. There is no evidence of a com-
pany policy to discharge employees under the circum-
stances and I infer that there is none.
20 Prince testified that he played no part in Lattisaw's discharge. Hart-
man and Walters likewise asserted that they had not participated in the
decision to discharge him.
21 Walters asserted that the doctor's certificate "along with some kind
of union papers" turned up on his desk about a week after April II, but
he did not "know where it came from," but that it was not from Lattisaw
"in person" To the extent this conflicts with Lattisaw's testimony. I
credit Lattisaw.
1314
GIANT FOOD, INC.
With respect to the remaining two possibilities, Re-
spondent questioned Lattisaw about these in the confer-
ence on the last day that he worked. If the real reason
for terminating him were his accusations against Respon-
dent's official, I would have expected Respondent to
assert and support that reason. The fact that it did not do
so, convinces me that the cause of Lattisaw's termination
lies elsewhere, that is, in the fact that he was urging
guard Nebbels to aid and assist the Union in supporting
its objections to the election. There remains the question
whether Lattisaw went beyond urging Nebbels and was
"harassing" him. However, the only evidence in the
record-that of Lattisaw-is that he was not harassing
Nebbels, but urging him for his own best interests to take
his evidence to the Union. I see no reason not to accept
this, and I find Lattisaw did not harass Nebbels. In such
case, since Lattisaw was engaged in protected concerted
activities, the fact that Respondent may have had a
good-faith belief that he had engaged in misconduct in
connection therewith does not justify his discharge,
when, in fact, he had not engaged in such misconduct.
Burnup & Sims, Inc., 379 U.S. 21 (1964).22
Though Respondent argues that it would have had no
reason to discharge Lattisaw because the union campaign
was over and the Union had been decisively beaten, Re-
spondent obviously still had reason to be concerned
about the objections to the election then pending and,
the possibility of a new election.
On the basis of the above, and the record as a whole, I
find that Respondent discharged Calelah J. Lattisaw be-
cause of his assistance to and activities on behalf of the
Union and thereby violated Section 8(a)(3) and (1) of the
Act.
OBJECTIONS TO THE ELECTION
Based on the above, and the entire record, I find merit
in the Objections to conduct affecting the results of the
election numbered 2, 3, and 10, which were consolidated
for hearing with the allegations of the complaint in this
matter, which conduct was of a character that would
have substantial impact upon the employees' freedom of
choice and prevented a free and fair election. It is there-
fore recommended that the Board set aside the election
conducted by the Regional Director from February 7 to
March 2, 1979, and remand Case 5-RC-10677 to the Re-
gional Director for the conduct of a new election.
CONCLUSIONS OF LAW
i. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening employees with discharge, loss of
employment and loss of employment benefits, and threat-
22 I have also given consideration to the possibility that Respondent
might have discharged L.attisaw for lying to Walters and Hartman when
they questioned him about his having made derogatory statements about
the security official and whether he had spoken to Nebbels However.
since Respondent has never intimated such a reason. I have rejected it In
any event, there seems no reason why Respondent waited 10 days after
the confrontation with Lattisaw to fire him for such a reason It is ad-
mitted that the investigation progressed no further after that date
ening to make it difficult for employees to get other em-
ployment if they engaged in union activities, or joined or
assisted the Union, and by telling employees to eject rep-
resentatives of the Union from Respondent's stores using
force if necessary, and by coercively interrogating em-
ployees concerning activities on behalf of and support of
the Union, Respondent violated Section 8(a)(1) of the
Act.
4. By discharging Calelah J. Lattisaw because of his
activities on behalf and support of the Union, Respon-
dent violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, it will be recommend-
ed that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discriminated against
Calelah J. Lattisaw in violation of the Act, it will be rec-
ommended that Respondent offer Calelah J. Lattisaw im-
mediate and full reinstatement to his former position,
without prejudice to his seniority or other rights and
benefits, and make him whole for any loss of pay or
benefits which he may have suffered as a result of the
discrimination against him, by payment to him of a sum
of money equal to that he would have earned as wages
and other benefits from the date of his termination to the
date of his reinstatement, less his net earnings during
such period, and interest thereon, to be computed in the
manner prescribed in F. W Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).2:
In order to make effective for Respondent's employees
the guarantee of rights contained in Section 7 of the Act,
it will be recommended that the Respondent be ordered
to cease and desist from infringing in any manner on the
rights guaranteed in the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 2 4
The Respondent, Giant Food, Inc., Washington, D.C.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or support of, activi-
ties on behalf of Federation of Special Police and Law
23 See. generally, Iss Plumbing & Heating Co., 138 NLRB 716 (19621
The General Counsel argues that interest should be computed at 9 per-
cent per annum. To the extent that this would require modification of the
Board's policy set forth in Florida Steel supra, that argument is more ap-
propriately addressed to the Board.
4 In the event no exceptions are filed as prosided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions, and Order. and all objections thereto
shall be deemed waied for all purposes
1315
I)F LCISIONS ()OF NATI()NAL .AH(BOR RI.A IONS II()ARI)
Enforcement Officers, or any other labor organization.
by discriminating in regard to hire or tenure of employ-
ment of employees, or in regard to any term or condition
of employment.
(b) Threatening to discharge, or to cause employees to
lose employment, or to engage in other reprisal against
employees, because of their activities on behalf of, sup-
port of, or membership in a labor organization.
(c) Threatening employees with loss of employment
benefits because of their activities on behalf of, support
of, or membership in a labor organization.
(d) Directing employees to use force against union rep-
resentatives who enter Respondent's stores, in order to
discourage employee support of, activities on behalf of,
or membership in a labor organization.
(e) Coercively interrogating employees concerning ac-
tivities on behalf of, or employee support of, or member-
ship in a labor organization.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Calelah J. Lattisaw immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to privileges previously enjoyed, and make
him whole for any loss of earnings or benefits he may
have suffered by reason of the discrimination against
him, in accordance with the provisions set forth in the
section hereinabove entitled "The Remedy."
(b) Preserve and, upon 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 re-
cords necessary to facilitate the effectuation of the Order
herein.
(c) Post at its operations in Maryland, Virginia, and
the District of Columbia, copies of the attached notice
marked "Appendix." 25 Copies of the notice, on forms
provided by the Regional Director for Region 5, after
being duly signed by Respondent's authorized represen-
tative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees in the Loss Preven-
tion Department are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
The election conducted in Case 5-RC-10677 between
February 7 and March 2, 1979, is hereby set aside and
said case is remanded to the Regional Director for
Region 5 to conduct a new election when he deems that
the circumstances permit the free choice of a bargaining
representative.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to alleged violations of the Act
not found, hereinabove, in this Decision.
12 In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of thle National Labor Relations Board"
1316