Giant Open Air Market

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 945 (N.L.R.B. 1977)

GIANT OPEN AIR MARKET
Rosso and Mastracco, Inc. d/b/a Giant Open Air
Market and Retail Store Employees Union, Local
233, affiliated with Retail Clerks International
Association, AFL-CIO. Cases 5-CA-7596, 5-CA-
7713, and 5-CA-7713-2
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On February 3, 1977, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief and a
memorandum in response to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy,2 and to adopt his
recommended Order.
We disagree with our dissenting colleague's conclu-
sion that employee Diane Miller was discharged in
violation of the Act. To the contrary, we find that the
Administrative Law Judge correctly found that the
General Counsel failed to sustain his burden of
proving that she was unlawfully discharged.
On December 10, 1975,3 customer Pully informed
employee Susan Lane that Miller claimed that Lane
was "setting up" Miller to be fired. Lane then
discussed the matter with Restaurant Manager Lou
Dissell who told her to "let it ride" for the moment.
Later in December, Miller told the same story to a
number of fellow employees. The repetition of this
rumor culminated in a confrontation between Miller
and Lane on December 30, during which Lane
denied having any intention of trying to effect
Miller's discharge and Miller refused Lane's demand
that she reveal who had given her such information.4
An argument then ensued, during the course of
which Miller said Supervisor Dissell and Store
I The Respondent has excepted to certain credibility findings made by
the Administrative ILaw Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
In accordance with our decision in Florida Steel Corporation, 231
NL.RB 651 11977), we shall apply the current
7
-percent rate for periods prior
231 NLRB No. 157
Manager David Burns were "bedding down togeth-
er." Later that evening Lane telephoned Dissell at
home and told her of the meeting and Miller's
accusation concerning the relationship of Burns and
Dissell. The next morning, Dissell immediately
informed Burns of Lane's report.
That same morning, Burns prepared a series of
"writeups" preparatory to discharging Miller. He
detailed, inter alia, her spreading of accusations that
fellow employee Lane "was out to get me," her
excessive absenteeism during the month of Novem-
ber, and her defacing of company property by
placing a union bumper sticker on a dishwasher. 5
Miller was then called into Burns' office where both
Dissell and Lane were present. Lane repeated
Miller's charge concerning the Burns-Dissell rela-
tionship and Miller replied that it was common
knowledge throughout the store. Lane then left.
Miller was informed that she was discharged and was
given the writeups. Aware that she was able to make
comments in her defense on the writeups, she
nevertheless signed them without protest and then
left. Prior to leaving, Miller said she was being
discharged for her union activities and told Burns,
"I'll get you."
An employee cannot insulate himself or herself
from a discharge for cause simply because he or she
happens to engage in activity protected by the Act.
In Klate Holt Company, 161 NLRB 1606, 1612
(1966), the Board said:
The mere fact that an employer may desire to
terminate an employee because he engages in
unwelcome concerted activities does not, of itself,
establish the unlawfulness of a subsequent dis-
charge. If an employee provides an employer with
a sufficient cause for his dismissal by engaging in
conduct for which he would have been terminated
in any event, and the employer discharges him for
that reason, the circumstance that the employer
welcomed the opportunity to discharge does not
make it discriminatory and therefore unlawful.
See also Golden Nugget, Inc., 215 NLRB 50 (1974).
Thus, it is clear that employee misconduct which
would justify a discharge, absent any protected
activity, will also justify a discharge despite protected
activity.
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
All dates hereinafter are in 1975.
Darlene Smith, the alleged informant named by Miller at the hearing,
denied she made such a statement to Miller.
I Miller had put a union bumper sticker on a dishwasher in Respondent's
kitchen during the week prior to her discharge. Her denial of this conduct
was discredited by the Administrative Law Judge.
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There can be no doubt that Miller engaged in
conduct which would justify her discharge for cause.
She spread gossip and rumors which alienated
customers and her fellow employees. Her earlier
unfounded accusations about the theft of money by
an unnamed fellow employee caused practically all
the waitresses to complain to Dissell and Burns. She
harassed customers and employees with her state-
ments that the Company was out to get her. She
complained to customers and employees about Lane
allegedly setting her up for a discharge. Finally, her
inflammatory accusations regarding an alleged
Burns-Dissell affair precipitated her immediate
discharge.6
In short, Respondent and its supervisors had ample
reasons for Miller's discharge, absent any protected
activity. Notwithstanding the fact that Respondent at
one point threatened Miller with an unlawful
discharge, the Administrative Law Judge correctly
found that -- under all the circumstances herein -
the General Counsel failed in his burden of proving
that the assigned reasons for Miller's discharge were
pretextual and the real reasons were her union
activities. Accordingly, we shall adopt the Adminis-
trative Law Judge's dismissal of this allegation of the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Rosso and
Mastracco, Inc. d/b/a Giant Open Air Market,
Norfolk, Virginia, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
MEMBER JENKINS, dissenting in part:
Although I concur in my colleagues' adoption of
the Administrative Law Judge's Decision in all other
respects, I do not agree with their adoption of the
finding that Diane Miller was discharged for nondis-
criminatory reasons. On the contrary, the evidence
presented clearly established that Respondent dis-
charged Miller because of her union activity, and
that the asserted reasons therefor were merely
pretextual.
Miller, a waitress in the restaurant at Respondent's
Store 10, had been an active union adherent, and
6Miller's inflammatory accusations were the principal subject of
discussion at her discharge interview and she chose to meet this charge of
misconduct by flatly reiterating her accusations of personal immorality
against her supervisors. Under these circumstances, we find - unlike our
both Store Manager Burns and Restaurant Manager
Dissell testified that they had been aware of her
activist stance for some time prior to her discharge.
In particular, Respondent's knowledge of Miller's
union activities, as well as its manifest animus
against the organizing campaign and her part
therein, is highlighted by Dissell's threat made to
Miller on December 4, 1975, less than a month prior
to her actual discharge, that if any information came
back to her of Miller's continued union activities she
would find a way to fire Miller.
Similar threats had been made to Diane Riner and
Michael Ohge, also employed at Store 10, and these
employees were also subsequently either suspended
or discharged. In finding that these other employees
had been discriminated against in violation of
Section 8(a)(3) of the Act, the Administrative Law
Judge relied to a great extent on Respondent's union
animus and the multitude of independent 8(a)(1)
violations, including threats to these employees of
discipline or discharge. Since Respondent's asserted
justification for Miller's discharge is clearly pretextu-
al and no more persuasive than those rejected by the
Administrative Law Judge and my colleagues with
respect to the 8(a)(3) violations against Riner and
Ohge, it seems plain that Miller was similarly
discriminatorily discharged.
As noted above, it is uncontroverted that Miller
was active on behalf of the Union while she was
employed at Store 10. It is also uncontroverted that
prior to the day of her discharge she had received no
"writeups," despite the fact that Respondent general-
ly required an employee to be written up three times
prior to discharge. She had, however, been verbally
warned that if she continued her support for the
Union a way would be found to discharge her.
Nevertheless, she continued to aid the Union in its
organizational efforts, and on December 31 the way
to discharge her was "found," and she was terminat-
ed.
On December 31, Store Manager Burns, in his
words, decided to "package" nondiscriminatory
reasons for her discharge, prepared four writeups,
called her into his office, and without even giving her
the opportunity to defend herself announced that she
was discharged.
However, it is not alone the inferences to be drawn
from this sequence of events that convinces me that
the writeups issued her were merely a pretextual
basis for her discharge. The writeups themselves are
internally suspect. The first one was based on
absences which were not only excused but which had
dissenting colleague - that Respondent's failure to encompass this final act
of misconduct within her written writeups is totally without significance in
evaluating the justification for Miller's termination.
946
GIANT OPEN AIR MARKET
occurred well over a month prior to her discharge.
Miller was not orally reprimanded at the time and,
despite the fact that Burns was aware of the absences
shortly after they occurred, no reason was given for
the delay in the issuance of the writeup. Two other
writeups involved complaints Miller had expressed to
fellow employees and customers indicating that she
thought another employee was trying to get her fired
or that Respondent was out to get her. At the
hearing, Miller denied that any of these complaints
had occurred while she was at work and denied that
she had ever been previously warned regarding what
she considered to be a personal problem with
another employee. Finally, the fourth writeup con-
cerned an incident in which she allegedly put a union
bumper sticker on a piece of equipment in the
kitchen of Respondent's restaurant on December 29,
1975. Miller denied that she had put up a bumper
sticker and testified that another employee had not
been disciplined for a similar act. In any case,
Respondent did not afford Miller the opportunity to
defend herself prior to her summary dismissal.
In view of the relatively minor nature of these
reprimands, the sudden nature of their issuance, the
absence of prior warning, and Miller's inability to
contest them, I conclude Respondent was merely
fulfilling the prediction it had made on December 4,
1975, when she was unlawfully threatened with
discharge for continued union activity.' Consistent
with and in addition to this finding, I view the
writeup for the bumper sticker incident, even if not
pretextual, to have been at least partially discrimina-
torily motivated, as it is probative of the fulfillment
of a condition placed on Respondent's threat to
Miller, i.e., that it first learn of her continued union
activity before she would be discharged.
Accordingly, I would find that Respondent's
discharge of Miller violated Section 8(a)(3) of the
Act.
? For this reason I would also find without basis the argument suggested
by Dissell at the hearing that Miller was discharged as a result of personal
comments she had made concerning Supervisors Dissell and Burns.
Although the majority has chosen to cite these comments as conduct
which would justify Miller's discharge, neither these comments nor other
instances of possible improprieties which were not covered by the writeups
may be properly utilized as a basis forjustifying her discharge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
an employee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of your own choosing
To act together with other employees to
bargain collectively or for other mutual aid
or protection
If you wish, not to do any of these things.
WE WILL NOT unlawfully interrogate our
employees concerning their union activities or the
union activities of other employees.
WE WILL NOT threaten our employees with
store closures, discharge, or other reprisals in
order to discourage union activities.
WE WILL NOT maintain or enforce any policy or
rule prohibiting our employees from wearing
union pins or buttons while at work.
WE WILL NOT solicit employees to report the
union activities of other employees.
WE WILL NOT create the impression employees'
union activities are being spied upon.
WE WILL NOT suspend, discharge, or otherwise
discriminate against our employees because of
their membership in, or activities on behalf of,
Retail Store Employees Union, Local 233, affili-
ated with Retail Clerks International Association,
AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer Diane Riner immediate and full
reinstatement to her former job or, if her job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges previously enjoyed, and wE
WILL make whole Diane Riner, Michael Ohge,
Jeffrey Harris, and Raymond Jones for any loss
of earnings they may have suffered as a result of
the discrimination against them, with interest.
Rosso AND MASTRACCO,
INC. D/B/A GIANT OPEN
AIR MARKET
DECISION
STATE OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon
charges filed by Retail Store Employees Union, Local 233,
affiliated with Retail Clerks International Association,
AFL-CIO, herein called the Union, against Rossco and
Mastracco, Inc. d/b/a Giant Open Air Market, herein
called the Respondent, the General Counsel issued com-
plaints which were consolidated alleging violations of
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended, herein called the Act.' The Respondent
has denied the commission of any unfair labor practices.
Hearing was held before me on April 6, 7, 8, 20, and 21,
1976, at Norfolk, Virginia.2
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Virginia corporation, is engaged in
the retail sale of meat, produce, and related products at its
stores in the metropolitan area of Norfolk, Virginia. During
the 12-month period preceding the issuance of the
complaints, the Respondent had gross revenues exceeding
$500,000. During the same period, the Respondent pur-
chased and received in interstate commerce products and
supplies valued in excess of $50,000 from points located
outside the State of Virginia. Based on the foregoing, and
as admitted by the Respondent, I find that the Respondent
is engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
11i. THE UNFAIR LABOR PRACTICES
A. Background and Issues
The Respondent operates retail grocery stores in the
Tidewater, Virginia, area. Its retail grocery operation is
unorganized. The Union's organizing campaign began in
March 1975.3 It held meetings and union representatives
visited the stores and spoke to individual employees in the
restaurant area of stores during the employees' break
period.
The issues involved are whether the Respondent, in
violation of Section 8(a)(l) of the Act, engaged in unlawful
interrogation, threats of discharge and changes in working
conditions, created the impression of surveillance of the
employees' union activities, and offered benefits to an
employee if he would report back information concerning
union meetings; whether, in violation of Section 8(aX)(1)
and (3) of the Act, the Respondent unlawfully reprimanded
and suspended Jeffrey Harris and Raymond Arthur Jones,
Jr., for wearing union buttons, and whether it suspended
Michael Ohge, suspended and thereafter discharged Diane
' The charges and first amended charge in Case 5-CA-7596 were filed
on October 20 and 28, 1975, respectively. The charges in Cases 5-CA-7713
and 5-CA-7713-2 were filed on January 13 and 23, 1976. respectively.
Complaints were issued on March 10, 1976.
2 The complaints were amended at the hearing. The General Counsel's
motion made at the commencement of the hearing to delete from the
complaint in Case 5-CA-7596 subpars. 5(f) and (g) and a portion of 5(d)
was granted. At the close of the General Counsel's case-in-chief the
Respondent's motion to dismiss subpars. 5(m) through (q) was granted. No
testimony was adduced in support of these allegations.
Riner, and discharged Diane Miller because of their union
activities.
B. Independent Acts of Interference, Restraint, and
Coercion
1. Francesco Lezzi, a cashier at Store 1, testified
concerning a conversation with Store Comanager Gerald
Locher on September 17. That evening, Lezzi accompanied
his brother, Roberto, to Locher's home in order that
Roberto might repair some stereo equipment for Locher's
musical instruments. 4 Roberto is also an employee of the
Respondent in the maintenance department. Francesco
Lezzi testified that, while Roberto was repairing the
equipment, Locher and he discussed Lezzi's interest in
participating in a management training program. In the
course of the conversation Lezzi brought up the Union and
told Locher of his support for it. Lezzi credibly testified
Locher stated that at a recent meeting of store managers
they were told that the Respondent would close its doors if
the Union came in. Locher also told him F. M. Frias,
Respondent's executive vice president and general manag-
er, told the managers they had the most to lose if the Union
came in and they should get rid of the union supporters.
Locher also told him to be careful - that Store Manager
Johnson was "after him." Roberto Lezzi, also still em-
ployed by the Respondent, testified he did not pay much
attention to the conversation, being absorbed in repairing
the equipment, but he did hear Locher say that the
managers were told the Respondent would close its doors if
the Union came in. Locher denied that the subject of the
Union was even discussed on that occasion. He stated that,
about 2 weeks later, the Union was discussed with
Francesco in the presence of another employee, Cullers, at
a restaurant but none of the statements attributed to him
by Francesco was made even at that time.5 I find
Francesco Lezzi's testimony, corroborated in part by his
brother, Roberto, more credible and find that on Septem-
ber 17 Locher told him the store managers had been told
the Respondent would close its doors if the Union came in
and that they should get rid of the employees who
supported the Union. Locher also conveyed the impression
that Store Manager Johnson was looking to discharge
Lezzi. I find such conduct violative of Section 8(a)( ) of the
Act.
2. Michael Ohge, 6 a cashier at Store 10, testified that on
July 25, during his lunch break, two union representatives
sat down with him in the restaurant section of the store.
Assistant Store Manager Cox was sitting nearby. Less than
an hour later he was called into the office by Store
Manager Burns. Ohge credibly testified Burns asked him
how deeply he was involved with the Union. Ohge
admitted his support for the Union. Burns warned him he
was treading on thin ice and should go elsewhere if he did
3 All dates mentioned hereinafter refer to 1975 unless otherwise
indicated.
4 Locher also played with a band.
5 He was corroborated in part by Cullers. Francesco testified there was a
further discussion about the Union at the restaurant but attributed Locher's
threats to the first meeting on September 17.
' Erroneously spelled Oghe in the transcript.
948
GIANT OPEN AIR MARKET
not like his job. Burns said Ohge was guilty of insubordina-
tion and he would not tolerate causing dissension in the
store. Burns cautioned Ohge that if he opened his mouth
about the Union he would be sent home. Burns asked him
who the members of the organizing committee were and
asked how the Union obtained the names and addresses of
the employees. Burns then went on to say Ohge was a
marginal employee and only the good employees were
going to get the preferred working hours whereas marginal
employees would have to start working the late hours.7
Burns then criticized Ohge for making unfavorable re-
marks about Assistant Manager Grimes, 8 for not suffi-
ciently smiling at customers, and for complaining to
customers about working conditions. Grimes then brought
in the work schedule and Burns said that for the time being
the schedule would not be changed but Ohge's work would
be watched. Burns then prepared a written reprimand.9
Burns denied making the remarks attributed to him
regarding Ohge's involvement with the Union or question-
ing him about the Union. Burns testified he knew Ohge
was involved with the Union and told Ohge the conversa-
tion had nothing to do with the Union. Burns said he spoke
to Ohge because two customers had earlier in the day told
him Ohge had complained about his working conditions at
the store. Burns said Ohge had also complained to other
employees about Grimes' competency. I was not impressed
with Burns' account of the conversation and credit Ohge's
version. Accordingly, I find that on July 25 Store Manager
Burns interrogated Ohge as to his and other employees'
activities on behalf of the Union and threatened him with
disciplinary action and a change in the working schedule
because of his participation in activities on behalf of the
Union. I find such conduct violative of Section 8(a)(1) of
the Act.
3. Raymond Jones, a stock clerk in Store 4, testified
that in the latter part of July he was called into the office
by Store Manager Douglas Parker. Jones credibly testified
Parker asked him if he was aware of union activities going
on and asked him if he was involved and had attended
union meetings. Jones admitted his involvement. Parker
then told him he would arrange an appointment for Jones
to talk to a personnel counselor of the Company and then
he could compare the benefits. Parker mentioned a union
meeting was to be held the following Monday night at the
Holiday Inn and asked Jones if he planned to attend. Jones
said he planned to attend and Parker told him he would
speak to him afterwards. The day after the union meeting
which Jones did attend he was again called to the office.
Grocery Manager Kennedy was present with Parker.
Parker asked Jones how many were at the meeting and
asked how many employees from Store 4 attended. Jones
told him three employees from the store were there. Parker
acknowledged he knew there were three present and that
"I've got my connections just like you." Although asked to
name the other two, Jones refused. Parker said he knew the
identity of only one of the other two who attended but
refused to name him. After this discussion, Jones told the
other two employees of his meeting with Parker.' 0 Berman
I Ohge attended school and was a regular part-time employee at the
store.
- At this point Grimes was called in.
told Jones he had already spoken to Parker. In early
August, Kennedy approached Jones and told him to be
careful if he was to be involved with the Union because the
Respondent could find a reason to discharge him.
Jeffrey Harris, also a stock clerk at Store 4, credibly
testified that on about July 29 he went to Parker's office.
Kennedy was also present but did not say anything. Parker
told him he heard Harris had attended a union meeting the
night before but did not say how this information came to
him. Harris admitted his presence at the meeting. Parker
then told him anything that was said was not meant to be a
threat. Parker then discussed the company benefits and
told Harris he would make an appointment for Harris to
meet with the store counselor who would explain the
Company's policies and benefits. About 10 or 15 minutes
after their meeting, Kennedy approached him in the aisle
where Harris was stocking the shelves. Kennedy told him
he shouldn't be involved with the Union because he might
get fired. Parker admitted speaking to Jones and Harris. He
testified that Berman had volunteered to him that he had
been to a union meeting and that Harris and Jones had
also been there. Harris and Jones impressed me as being
more credible witnesses than Parker or Kennedy whom I
discredit. Apart from my observation of their demeanor,
Parker and Kennedy appeared to attempt to legitimatize
the unlawful statements attributed to Parker. Kennedy also
denied telling Harris or Jones they could get fired for being
involved in union activities. Having credited the testimony
of Harris and Jones, I find that, in the latter part of July,
Parker unlawfully interrogated them about their and other
employees' union activities. I also find that Kennedy
unlawfully threatened Harris and Jones with discharge if
they supported the Union. I further find that Parker
unlawfully created the impression of surveillance of the
union activities of the employees by stating he was aware
of the identity of employees who attended the Union and
saying he had his "connections." His statements are not
legitimatized by the fact that an employee, Berman, may
have volunteered this information to him as Parker
testified. In this connection, it is noted that Parker did not
say how the information came to him. Although this latter
conduct was not specifically alleged in the complaint as it
refers to Parker, it was fully litigated and I deem it proper
to make findings as to this conduct regardless of whether it
was specifically pleaded. In this connection, it should be
noted that these statements were part of the same
conversation to which the allegation is directed.
4. The General Counsel alleged in paragraph 5(1) of the
complaint in Case 5-CA-7596 that Ann Mitchell in May
and Lou Dissell in July and December engaged in unlawful
threats of discharge for union activities. No testimony was
adduced concerning conduct of Mitchell or of Dissell in
July and these allegations are dismissed. Diane Miller
testified concerning Dissell's conduct in December. Miller
was a waitress in the restaurant in Store 10 until her
discharge on December 31, working under the supervision
of Restaurant Manager Dissell. She had been an active
union adherent. She testified that on December 4 she was
9 Resp. Exh. 3.
io Eddie Berman and Jeffrey Harris. Berman was not called as a witness.
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called to the store by Dissell. At first Dissell spoke to her
about some matters more fully discussed in the section of
this Decision concerning her discharge. Dissell then said
she had been observed leaving the store with a union
representative and said Miller would have to be on one side
or the other and if Miller still favored the Union she need
not bother coming in the next day. When Miller said she
wanted to continue working, Dissell told her that if any
information came back to her of Miller's union activities a
way would be found to discharge her. Dissell said if this
conversation was reported she would deny it. Dissell
admitted having the conversation but that it concerned
other matters discussed infra and that no mention was
made of the Union. I credit Miller's version and find
Dissell threatened Miller with discharge if she supported
the Union and the Respondent thereby violated Section
8(a)(1) of the Act.
5. The General Counsel alleged that Store Counselor
Doris Jenkins created the impression of surveillance of the
union activities of employees by telling employees she was
aware they had attended union meetings and interrogated
them as to why they attended such meetings. Store
counselors are admitted by the Respondent to be supervi-
sors and its agents. They visit the stores assigned to them
on a regular basis and explain to the employees the
Company's policies, procedures, and benefits and inquire
of the employees if they had any problems that have not
been resolved with the store management. Schedules are
posted at each store each month notifying employees when
the counselor would be visiting particular stores. Employ-
ees Barbara Bray, Theresa Humphreys, and George Smith,
all employed at Store 10, all testified they were each
interviewed by Jenkins in September. They testified that
Jenkins said to them she understood or knew they had
attended a union meeting." Jenkins then discussed the
Company's benefits with each of the employees. Smith
credibly testified Jenkins asked him why he had gone to the
meeting and what went on there. Bray credibly testified
Jenkins also asked her what she thought of the Union.
Jenkins admitted telling the employees in the individual
interviews she understood or heard they had attended a
union meeting. She testified that this comment was merely
"an opening statement because I was very interested in all
of the employees and it worried me that there was
something that we were not doing that I could do." She was
unable to state how she received the information that they
had attended union meetings. In any event she did not tell
the employees how this information came to her. I find
that, by telling Bray, Humphreys, and Smith she knew they
had attended a union meeting, such conduct unlawfully
created the impression of surveillance of the union
activities of employees. I further find that Jenkins unlaw-
fully interrogated Bray and Smith concerning their sympa-
thies towards the Union.
6. In about August, Reginald Cofield, a cashier at Store
i, asked Store Manager Sidney Johnson about a wage
increase he believed due him. Johnson told him he would
check into it and to see him the following Friday. Cofield
" They had attended a union meeting a few days before the interview.
12 Both Cofield and Johnson are black and testimony revealed that the
store is in a predominantly black area.
returned on Friday and Johnson told him an error had
been made and he would receive the increase. Cofield
credibly testified Johnson then asked him if he was loyal to
the Company and said he had heard Cofield had been to
union meetings. Johnson asked if Cofield had made up his
mind and Cofield replied he had not. Johnson then said, if
the Union gets in, the prices would go up, the poor black
people in the area would not be able to afford higher prices
resulting in a loss of business, and employees would be laid
off.12 Johnson discussed the Respondent's benefits to
employees and encouraged Cofield to go to more union
meetings to learn more about the Union. Johnson told him
he would pay him his regular wages for the time spent at
the meetings and asked Cofield to report back to him what
went on at the meetings and who attended. Cofield said he
would think about it. Thereafter Cofield did not attend any
more union meetings nor did he have any further
discussions with Johnson. Johnson admitted meeting with
Cofield and the subject of the Union and meetings were
discussed. He did not impress me as a forthright and
reliable witness but one more concerned with presenting a
sanitized version of the discussion with Cofield. According-
ly, I find that in August Johnson unlawfully created the
impression of surveillance of the union activities of
employees, threatened employees with layoff if the Union
were selected as the bargaining representative, and solic-
ited an employee to report to him the union activities of the
employees. By the above conduct, the Respondent violated
Section 8(a)(l) of the Act.
7. Audrey Stroud, an employee in Store 5, testified that
in early September a union representative sat down with
her while she was on her break in the restaurant section of
the store. She was observed by General Merchandise
Manager Faye Walters and Front End Supervisor Violet
Stone.' 3 After the union representative left they asked her
what he said to her and whether she was asked what her
salary was. Several days later Walters asked her what she
thought of the Union. Stroud responded she did not care
one way or the other. Stroud also testified that on
November 6 Walters said she thought Stroud was against
the Union. Stroud replied she now favored the Union.
Walters said she heard Stroud intended to have a union
meeting at her home.14 Stroud admitted this was her
intention and invited Walters to attend. Stone and Walters
denied questioning Stroud about her conversation with the
union representative in September. Walters' account of her
conversation with Stroud in November was not convincing.
I credit Stroud's account of her conversations in September
and in November. Accordingly, I find that Stone and
Walters unlawfully interrogated Stroud regarding her
union activities and the Respondent thereby violated
Section 8(a)(1) of the Act.
8. Diane Riner, employed at Store 10 in the health and
beauty aids department until her discharge in December,
credibly testified that in early September she was in an aisle
in the store with Gwendolyn Batten, the nonfoods
manager, when Batten identified some persons who had
come into the store as union organizers. Batten asked her
,a They were aware the person with Stroud was a union organizer.
l4 Stroud had become active in the campaign and was preparing to have
a union meeting at her home the following Monday.
950
GIANT OPEN AIR MARKET
what she had heard about the Union. Riner replied she
didn't know anything about it.'5 Batten spoke critically of
having a union represent the employees and then said, if
the Respondent discovered employees were involved with
the Union, it could find ways to discharge them. I discredit
Batten's denials that she ever questioned Riner about the
Union or threatened her as revealed by Riner's testimony.
Accordingly, I find that Batten engaged in unlawful
interrogation and threatened employees with discharge if
they supported the Union. Such conduct violated Section
8(a)(l) of the Act.
The General Counsel also alleged that in November,
Respondent, through George Marshall, assistant grocery
manager at Store 10, created the impression of surveillance
by telling Riner that Grocery Manager Widgeon instructed
him to observe the union activities of employees. The
support for this allegation is based upon Riner's testimony.
Marshall is Riner's next-door neighbor in a duplex and
they frequently visit each other socially. On November 29
Riner had a party at her place. Present were union
organizers and employees involved in the organizing
campaign. Marshall was also present at her invitation.
Riner testified that about I week later Marshall was at her
place and the subject of the Union came up. She testified
Marshall told her "Widgeon had asked him what went on
in my house, how often union organizers came to my house
and other Giant employees and he also informed me that
he had told Charlie (Widgeon) about my party but that he
could not remember if he told Charlie that any union
people were at my house." Marshall testified he did tell
Widgeon of Riner's party and that "a lot of union people"
were there. He denied that Widgeon questioned him about
the activities at Riner's house or that he made such
statements to Riner. It should be noted that neither
Marshall nor Widgeon was Riner's supervisor. I am
inclined to credit Riner's version of her conversation with
Marshall but nevertheless find that Marshall's statements
to Riner cannot be considered creating an impression of
surveillance violative of the Act, particularly when Mar-
shall, a supervisor himself, was invited by Riner to attend
the party and talked freely with the union representatives.
Accordingly, I shall dismiss this allegation.
C. The Suspension of Michael Ohge
Ohge has been employed as a cashier at Store 10 since
November 1973. He signed a union authorization card in
April and thereafter was active in the campaign, becoming
a member of the Union's organizing committee. As
described above, on July 25 he was unlawfully interrogated
and threatened by Store Manager Burns. At that time he
received a written reprimand stating that he was constantly
complaining about working conditions and complaining to
other employees about Comanager Grimes in the presence
m At the time Riner had not been approached by the Union.
:6 Resp. Exh. 3.
7 He was admittedly one of the faster cashiers and usually worked the
express line.
'I Gmitter was a policewoman and Ohge was aware she had a matter in
which Dissell was an interested party
l Frias lived nearby and frequently visited the store.
"' Jolly was the assistant manager Store Manager Burns was not in the
store at the time.
of customers and thus creating ill feeling among employees
and customers.' 6
The incident which led to his suspension occurred on
October 8. Ohge was the cashier on the express line.' 7 He
was checking out a customer, Carol Gmitter, whom he
knew as a regular customer at the store. Ohge told her
Restaurant Manager Dissell was in the hospital.' Their
conversation lasted no more than a minute or two. At the
time, Respondent's executive vice president and general
manager, Frias, was on this line, several customers back.' 9
After Gmitter's purchases were packaged, she stepped back
to the rear intending to get some more information from
Ohge. When she saw the line wasn't getting shorter, she
told Ohge she wanted to get some cigarettes and would be
right back. When she returned there were still customers on
the line. Ohge told her he would talk to her as soon as he
was through with the customers. Gmitter noted he was
busy and asked who the manager was. Ohge told her
Robert Jolly was in charge.20 She then said she would talk
to Jolly. At the time of the second conversation, Frias had
already gone through the line. In the meantime Frias
reported to Jolly that he noticed Ohge had violated
company rules - that he had been talking to a customer
on the line while waiting on another customer and had put
the money tendered by him in the register before making
change. 2' As they were talking they noticed Ohge and
Gmitter again conversing.22 After Frias left, Gmitter came
up and identified herself to Jolly as a policewoman and
asked where she could get in touch with Dissell. Jolly
refused to give her any information and she left. Shortly
thereafter, Ohge was called into the office. Jolly told him he
was suspended for 3 days for breaking two company rules
- placing money in the drawer before making change and
talking to a customer other than the one on whom he was
waiting. Ohge protested that he never heard of such a rule
about putting money in the drawer before making change
and also explained that all he said to Gmitter while he was
not waiting on her was that he would talk to her when he
finished waiting on the customers and told her who the
manager was. Jolly then showed him the written reprimand
he prepared, stating that Ohge was suspended for 3 days
for the two infractions. 23 Ohge returned to work after his
suspension and at the time of the hearing was still
employed there as a cashier.
The Respondent contends Ohge was suspended because
of his violation of the two company rules and in light of the
reprimand given to him back in July. Jolly testified that he
was "taken aback" when Frias reported to him that Ohge
did not put the money tendered by the customer on the
ledge of the register prior to making change. Jolly testified
this was the practice that cashiers were directed to follow
and the cashiers were so instructed. He testified he had
never noticed a cashier "not following company policy
with regard to putting the money on top of the register
21 No contention was made that Frias was given incorrect change.
22 This was the second conversation when Gmitter returned to Ohge's
station.
23 Resp. Exh. 4. The form prepared by Jolly shows that Ohge was
disciplined on July 25 for a similar occurrence: but the) were not at all
related.
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to making change and then putting the bill into the
cash till before they close the drawer." But at another point
in his testimony he stated he had noticed cashiers placing
the money on a metal plate on the left side of the machine.
He said this latter practice was also an accepted practice.
Inconsistent testimony was offered by Store Manager
Burns who testified Jolly had told him he had warned Ohge
on a prior occasion to put money on the ledge of the
register. Burns also testified Jolly told him he had verbally
warned other employees for not putting money on the
ledge while making change. While it may be true that the
Respondent preferred the money tendered by a customer
be placed on the register ledge, this was not a policy which
was uniformly followed or enforced. Ohge credibly testified
that during the entire 2-year period he was cashier at the
store he followed a practice of calling out the denomination
of the bill tendered by the customer and the amount of the
purchase to be deducted as he held the money in his hand.
He then keyed in the register which showed the amount
due. He then called out the change due, placed the money
in the drawer, and took out the change. Charles Spivey and
Charlotte Inman, also cashiers at the same store for 2-1/2
and 1-1/2 years, respectively, both credibly testified they
followed the same practice as Ohge in recording sales and
making change and had not heard of a rule requiring the
money tendered by the customer to be placed on a ledge or
had they been instructed by a supervisor to do so. They
credibly testified they had never been told the practice they
followed was improper even though supervisors had
observed the manner in which they operated the register.
Both Burns and Jolly pictured Ohge as an employee
deficient in a number of respects, although admittedly one
of the faster cashiers. They testified Ohge constantly talked
either to other employees or to customers other than the
one he was waiting on while operating the register. Burns
testified Ohge was talked to about it "just about every
day." Jolly testified that he warned Ohge about talking to
other employees about 10 times and talking to other
customers about 3 times.24 I was not impressed with the
demeanor of Burns or Jolly. Their testimony seemed to be
a contrived effort to convey the impression that Ohge was a
poor employee who was constantly warned for violating
company rules. I find their testimony unreliable wherever it
conflicts with the testimony of the General Counsel's
witnesses. I find that, prior to the October 8 incident, Ohge
followed the practice of operating the register in the
manner as he described, that this was a practice commonly
followed by other cashiers at the store, and that such
practice, although known by Burns and Jolly, was not
criticized. I also find that Ohge had not previously been
criticized for improperly talking to customers or that he
chatted unduly or more than other cashiers with other
employees. I do not credit Frias' testimony that he had
never observed Ohge or any other cashier in Store 10
operating the register as described by Ohge, Spivey, Inman,
and Gmitter.2 5 Nor do I credit his testimony that he was
unaware Ohge was an active union adherent.
21 The written reprimand of July 25 did not address itself to these alleged
infractions but referred only to the content of remarks made by Ohge to
other employees concerning working conditions.
25 He testified he was in Store 10 about six times a week since the store
opened in 1973.
I am persuaded that the reasons advanced by the
Respondent for Ohge's written reprimands and 3-day
suspension were pretextual in nature. Ohge was known to
be an active union adherent and was unlawfully threatened
in July because of his union advocacy. He, nevertheless,
continued his active support and was on the Union's
organizing committee. In light of the Respondent's union
animus including the various independent 8(a)(1) viola-
tions found above, I find the written reprimands and the 3-
day suspension were illegally motivated and violative of
Section 8(a)(3) and (I) of the Act.
D. The Discharge of Diane Riner
Riner worked in Store 10 as a stock clerk in the health
and beauty aids department from December 1974 until her
suspension and discharge the following December. The
department had been leased and in June the Respondent
took it over. In early September, Riner was unlawfully
interrogated by the nonfoods manager, Batten. It was
shortly after this interrogation that Riner became active in
the Union.
Riner was the only full-time employee in her department.
Her duties were to order merchandise for the department,
price the merchandise, stock the shelves, wait on custom-
ers, and assist as a cashier in the pharmacy. In August
Bernice DeMoss began working in the nonfoods depart-
ment and worked in health and beauty aids on Riner's day
off, plus one additional day. On December 4, Riner
received a 3-day suspension by Store Manager Burns and
on December 9 he terminated her. As for the reasons for
such actions, Burns testified; "It was the culmination of all
her performance inadequacies, I think topped off with the
Company policy violation in regards to soliciting. But not
at all for any union involvements."
We now look at the record. On June 26, not long after
the Respondent took over the health and beauty aids
department, Riner received a written reprimand for
tardiness. On November 7, she received a second written
reprimand, this one from Jolly. This reprimand related to a
November 5 infraction. The Respondent had scheduled for
that afternoon its first big promotion sale in the depart-
ment since taking it over. Earlier in the day Jolly inquired
if all the sale merchandise was on the shelves and properly
priced. She acknowledged everything was ready.2 6 Some-
time later that afternoon a management trainee noted that
some sale merchandise was not on the shelves and a
number of items were improperly priced. He reported this
to Jolly. On November 7, Riner was called in by Jolly.
Although she protested that it was because DeMoss had
told her everything had been prepared for the sale that she
gave this assurance to Jolly. He responded she was the one
responsible for the department and gave her the written
reprimand.
On November 14, while DeMoss and Riner were
stocking the shelves and talking about other matters while
working, Riner brought up the subject of the Union. Riner
26 DeMoss had worked on Tuesday, November 4, in the department, it
being Riner's day off. Riner testified that when she came in at noon on
Wednesday DeMoss told her everything was ready for the sale. It was about
an hour after she came to work that Jolly made his inquiry.
952
GIANT OPEN AIR MARKET
asked her what she knew about the Union and said she had
union literature if DeMoss was interested in reading it.
Riner asked if DeMoss wanted to sign a union card.
DeMoss disclaimed any interest. On December 4 Batten
pointed out to DeMoss that two union representatives had
just come into the store. DeMoss at that time mentioned to
her that Riner had solicited her to sign a union card. Upon
Batten's inquiry, she said it was while they were working.
Batten reported this to Burns. Burns was told the incident
had occurred in the latter part of November. Shortly
afterward Riner was summoned to the office and Burns
referred her to the company rule against soliciting while on
duty. Riner admitted having solicited DeMoss while
working and Burns said this was her third writeup and she
was suspended for 3 days. She signed the written repri-
mand. 27 On December 8, she called Burns who told her to
see him the following day. On December 9, when she came
to the store, Burns told her she was discharged. He
presented her with still another writeup which listed a
number of delinquencies. 28 She protested the legitimacy of
the reasons and offered explanation, to no avail. She was
terminated.
Burns testified he prepared both writeups on December 4
and discussed both with Riner on that day and again on
December 9. He testified he had not yet made up his mind
on December 4 to discharge her and wanted to reflect upon
it. It was on December 9 when she returned that he told her
he had made up his mind to discharge her. Burns said he
had inspected her department earlier that day and was
dissatisfied with the conditions there. Later he was
informed of the solicitation. He then prepared both
writeups, spoke to Riner, and suspended her for 3 days. He
said that, although he discussed with Riner all the
infractions on the other writeup (Resp. Exh. 2), he had not
yet decided upon the disciplinary action to take. He
testified as follows: "I suspended her for that (solicitation)
and after thinking about it, I told her to come back in three
working days. She came back on the fourth day and I told
her that in lieu [sic] of what I found in the department and
going in her file and pulling out three writeups, that I felt it
was time to discharge her." I am not persuaded that Burns
testified with complete candor and credit Riner that only
the solicitation was discussed on December 4 and she was
not shown Respondent's Exhibit 2. Rather, I believe it was
sometime after she was suspended that Burns prepared this
additional writeup and listed all the infractions.2 9 I have no
doubt that the Respondent did not consider Riner an
exemplary employee but am convinced that, but for the
report on her solicitation of DeMoss to sign a union card,
she would not have been suspended or terminated. I
cannot believe that had Riner been as poor an employee as
pictured by the Respondent she would not have received
either additional writeups or been discharged earlier.30
"? Resp. Exh. 1.
21 Resp. Exh. 2 - seven in number, generally based upon the condition
of the department and also upon complaints from the pharmacist.
2', I credit Riner's testimony and find, contrary to Burns. that he made no
inspection of her department earlier in the day on December 4 but only
came by and looked at the work schedule.
:"' Mason Pridgeon, the store pharmacist since it opened in 1973, called
h) the Respondent. testified that he complained to Burns almost every day
I am convinced that it was after Burns suspended Riner
for soliciting that he later decided to discharge her.
However, I do not believe that Burns' decision to discharge
her was motivated by her previous infractions. Rather, I
believe it was her solicitation that moved Burns, upon
reflection, to discharge her.31 The question then to be
decided was the decision prompted by the violation of the
no-solicitation rule. It was after the suspension that Burns
made his decision to discharge her and prepared the
additional writeup to present what would appear to be a
legitimate support for termination. I am convinced that but
for the solicitation Riner would not have been suspended
or discharged. The Respondent did have a rule against
solicitation. It is obviously clear the Respondent had no
objection to employees engaging in other than "shop talk"
while working. Neither Batten nor Burns made any inquiry
as to whether there was any disruption of work or the
length of the conversation. I do not credit Bums' testimony
that until he received the report froff Batten on December
4 he had no knowledge of her union activity. In this
connection it should be noted that Assistant Manager Jolly
testified he believed in late September she supported the
Union. And it was before her discharge that Assistant
Grocery Manager Marshall told Grocery Manager Wid-
geon of the party at her home on November 29 with union
organizers. I find that her activities were known to Burns at
the time she was disciplined on December 4. In light of the
Respondent's animus and independent 8(aXl) violations, I
find that it was not the violation of the no-solicitation rule,
per se, that motivated Burns to suspend and thereafter
discharge Riner, but that he seized upon this, later
buttressed by dredged up infractions, to rid the store of a
union adherent who not only supported the Union but also
had even entertained the union representatives and
supporters at her home. Accordingly, I find the suspension
of Riner on December 4 and her discharge on December 9
violative of Section 8(aX3) and (1) of the Act.
E. The Discharge of Diane Miller
Miller was employed by the Respondent as a waitress in
the restaurant at Store 10 from August to December 31,
1975, when she was discharged. On December 4, she was
called to the store by Restaurant Manager Dissell who told
Miller it had come to her attention Miller had been saying
an employee took money from a collection box. She told
Miller to discontinue accusing anyone unless she could
prove it.32 It was during this conversation that Dissell
unlawfully threatened Miller as described above.
On December 10, Susan Lane, also a waitress in the
restaurant, was told by a customer, Mrs. Pulley, that Miller
about Riner and suggested she be discharged. But yet the first writeup
referring to the pharmacist was the one on December 9.
at See his first quoted testimony above regarding his reasons.
12 A collection had been taken up for a hospitalized employee. Miller
had been given money by a union representative to add to the collection. A
shortage was later discovered. It had been reported to Dissell that Miller
had been going around saying an employee must have taken the money.
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been at her home the previous evening and told Mrs.
Pulley that Lane was planning to set up Miller to be fired.33
On December 30, Lane arranged to meet with Miller at the
store. She asked Miller where she had heard of this rumor
and denied any intention of getting Miller fired. They
argued back and forth and Miller refused to name the
informant.34 In the course of the discussion Miller said
Dissell and Burns were having an affair. That evening Lane
telephoned Dissell at her home and told Dissell of her
meeting with Miller and of Miller's accusation concerning
Burns and Dissell. 35 The next morning Dissell informed
Burns of the report received from Lane. Burns then
prepared a series of writeups preparatory to discharging
Miller and summoned her to the office.36 Burns testified he
prepared the writeups because he wanted to "package" all
the reasons for the discharge. Initially Lane was present at
the meeting and related Miller's accusation concerning
Burns and Drissell and left. Burns told Miller she was
discharged and they discussed the writeups. I do not credit
Miller's testimony that she did not place a union sticker on
the dishwasher.3s
Dissell and Burns testified they had been aware for some
time that Miller was a union activist. Dissell stated that had
Burns not discharged Miller when he did she, herself,
would have taken such action because of Miller's accusa-
tion directed to her morality. Based upon the record as a
whole, I find that the evidence does not preponderate in
favor of the General Counsel's allegation that Diane Miller
was discharged because of her activities on behalf of the
Union. Accordingly, this allegation will be dismissed.
F. The Suspension of Jeffrey Harris and Raymond
Jones
Harris and Jones are stock clerks in Store 4 and, as
described above, were unlawfully interrogated by Store
Manager Parker and unlawfully threatened by Grocery
Manager Kennedy.
The Respondent's handbook states that no conspicuous
jewelry is to be worn. On January 16, 1976. Harris affixed a
union pin on his smock and Jones placed his pin on his
collar. That evening, Assistant Store Manager Lawrence
Wheeler observed them wearing the pins. First he called
Jones to the office and directed him to remove the pin as it
was against company policy. Jones argued the pin was not
distracting and he did not consider it as violating a
company rule. When Wheeler persisted in its removal,
Jones refused. Wheeler then signed a reprimand form
which he had prepared. Then Harris was called in by
Wheeler and, upon Harris' refusal to remove the pin, a
written reprimand was also completed by Wheeler. A few
minutes later they were again called into the office by
Wheeler and, upon their continued refusal to remove the
pins, they were suspended for 3 days. Upon their return
after the suspension, they ceased wearing the pins.
:':' Corroborated by Mrs. Debbie Pulley, the daughter-in-law, to the
extent that she was present when Miller made the accusations against Lane.
:' The alleged informant named by Miller at the hearing, Darlene Smith,
denied she ever made such statement to Miller.
:'5 Dissell was not at the store that day.
:6 G.C. Exhs. 2 - 5, covering several absences in November, complaining
to customers and employees, the incident relating to Lane, the Burns-Dissell
With respect to the Company's policy against wearing
conspicuous jewelry, Wheeler testified to his interpretation
of conspicuous jewelry as follows:
Conspicuous jewelry would be anything that does not
lend to a sober professional type air or appearance as
far as employees are concerned. We are running a
grocery store and we are appealing to everyday people.
We are not appealing to street customers or what have
you. When I say conspicuous jewelry, I am speaking of
outlandish, oversized earrings, gaudy makeup and
things of this nature. Anything that would draw
attention to the person other than giving a sober,
professional air.
Wheeler also testified that the size of the pin would be a
consideration. Much like an ordinary civic club pin, the
pins worn by Harris and Jones were smaller than a dime
and the only identifying legend were the initials "RCIA"
hardly discernible with the naked eye at a distance of more
that 2 feet.3 8 With respect to the wearing of the pins, there
is no evidence of any customer complaints, of any
diminution of business at the store, or of any animosity
among employees created by the wearing of the pins.
The law is clear that, absent special circumstances that
justify a prohibition, the wearing of a small membership
pin has been recognized as a protected activity.3 9 Apart
from the existence of the rule against wearing conspicuous
jewelry no special circumstances to justify the prohibition
against the wearing of the union pins has been presented.
Accordingly, I find that, by suspending Harris and Jones
for wearing union pins on their clothing at work, Respon-
dent violated Section 8(a)(3) and (I) 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 relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union
activities or the union activities of other employees, by
threatening the closing of the stores if the Union was
selected as the bargaining representative, by threatening
accusation, and placing a union bumper sticker on a dishwasher in the
kitchen.
37 This occurred earlier in the week of her discharge.
38 G. C. Exhs. 9 and 10.
39 Republic Aviation Corporation v. N.LR.B., 324 U.S. 793 (1945);
N.LR.B. v. Floridan Hotel of Tampa, Inc., 318 F.2d 545 (C.A. 5, 1963);
Eckerd's Market, Inc., 183 NLRB 337 (1970).
954
GIANT OPEN AIR MARKET
discharge of employees or changes in work schedules
because they favored the Union, by creating the impression
of surveillance of the union activities of the employees, by
soliciting employees to report the union activities of other
employees, and by maintaining and enforcing a policy or
rule prohibiting employees from wearing union buttons
while at work, the Respondent violated Section 8(a)(1) of
the Act.
4. By temporarily suspending Michael Ohge, Jeffrey
Harris, and Raymond Jones and by suspending and
discharging Diane Riner because of their support for the
Union, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Except for the foregoing, the Respondent has
committed no unfair labor practices under the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices. I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
As the Respondent unlawfully temporarily suspended
Michael Ohge, Jeffery Harris, and Raymond Jones, the
Respondent will be ordered to make them whole for any
loss of earnings they may have suffered in consequence of
their unlawful suspensions, by payment to each of them of
a sum of money equal to the amount they normally would
have earned during the period of their suspension, less their
net earnings during such period, plus interest at 6 percent
per annum. As it has been found that the Respondent
discriminatorily suspended and discharged Diane Riner, it
will be ordered to offer her full and immediate reinstate-
ment to her former position or, if her job no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or other rights and privileges and make her
whole for any loss of earnings she may have suffered in
consequence of her unlawful discharge, by payment to her
of a sum of money equal to the amount she normally would
have earned from that date of her suspension to the date of
the Respondent's offer of reinstatement, less her net
earnings during such period, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
'O In the event no exceptions are filed as provided 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 waived for all purposes.
ORDER40
The Respondent, Rosso and Mastracco, Inc. d/b/a
Giant Open Air Market, Norfolk, Virginia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employes with discharge or other
disciplinary action or that the stores will be closed in order
to discourage union activities or for supporting Retail Store
Employees Union, Local 233, Retail Clerks International
Union, or any other labor organization.
(b) Maintaining or enforcing any policy or rule prohibit-
ing its employees from wearing union buttons while at
work.
(c) Creating the impression of surveillance of the union
activities of its employees.
(d) Requesting its employees to report the union
activities of its employees.
(e) Interrogating its employees concerning their union
activities or the union activities of other employees.
(f) Suspending, discharging, or otherwise disciplining
employees because they engage in union activities.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Diane Riner immediate and full reinstatement
to her former position or, if her job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges and make whole
Diane Riner, Michael Ohge, Jeffery Harris, and Raymond
Jones for any loss of pay they may have suffered, in the
manner set forth in the section of this Decision 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, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its stores in the Tidewater, Virginia, area, and
at all other places, copies of the attached notice marked
"Appendix." 4 1 Copies of said notice, on forms provided by
the Regional Director for Region 5, after being duly signed
by the Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
'4 In the event that the Board's Order is enforced b) a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director of Region 5, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
956