Grass Valley Grocery Outlet

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1449 (N.L.R.B. 2000)

GRASS VALLEY GROCERY OUTLET 1449
Canned Foods, Inc., d/b/a Grass Valley Grocery Out-
let and United Food and Commercial Workers
Union, Local 588, United Food & Commercial
Workers International Union, AFL–CIO.

Thomas A. Alvernaz and Deborah Alvernaz, a/k/a
Deborah Johnston, A California Partnership,
d/b/a Grass Valley Grocery Outlet and David G.
Cubitt and Brenda Cubitt, a California Part-
nership, d/b/a Grass Valley Grocery Outlet
and United Food & Commercial Workers 588,
Northern California, United Food & Commer-
cial Workers International Union, AFL–CIO,
Petitioner. Cases 20–CA–26685, 20–CA–26812,
and 20–RC–17087
December 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On December 31, 1998, Administrative Law Judge
Burton Litvack issued the attached decision. The Gen-
eral Counsel, Respondent Canned Foods, Inc., and Re-
spondent David and Brenda Cubitt filed exceptions and
supporting briefs. Respondent Canned Foods, Inc., Re-
spondent David and Brenda Cubitt, and Respondent
Thomas and Deborah Alvernaz filed answering briefs to
the General Counsel’s exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
1. The judge found that Respondent Canned Foods and
Respondent David and Brenda Cubitt (the Cubitts) con-
stituted a single-employer of employees who worked at a
grocery outlet store in Grass Valley, California. We find
merit in Canned Foods’ exception to this finding.2
The judge examined the four factors that the Board has
traditionally considered when deciding a single-employer
issue: interrelationship of operations, common manage-
ment, centralized control of labor relations, and common
ownership or financial control. The judge also noted
correctly that no single criterion is controlling, but that
the first three, particularly centralized control of labor
relations, are more critical than common ownership or
financial control. In general, single-employer status is
marked by the absence of an “arm’s-length” relationship
between two or more unintegrated entities. Hahn Mo-
tors, 283 NLRB 901 (1987).

1 The General Counsel filed a motion to strike three exhibits at-
tached to the answering brief of Respondent Canned Foods, Inc., on
grounds that the exhibits are outside the record. The Respondent
Canned Foods filed an opposition to the General Counsel’s motion.
The exhibits attached to the answering brief were not considered in
deciding the issues presented here. We therefore find it unnecessary to
pass on the General Counsel’s motion.
2 The judge found that Canned Foods and the Alvernazes, who oper-
ated the grocery outlet prior to the Cubitts, also constituted a single-
employer. In light of his finding, with which we agree, that the unfair
labor practice allegations against the Alvernazes are time-barred by
Sec. 10(b), we find it unnecessary to pass on the judge’s finding that
Canned Foods and the Alvernazes were a single-employer.
The judge found, and we agree, that evidence relevant
to the factors of interrelationship of operations and com-
mon management does not indicate a single-employer
relationship between Canned Foods and the Cubitts. He
nevertheless based his single-employer finding on the
presence of the other two factors: centralized control of
labor relations, and common ownership or financial con-
trol. Contrary to the judge, we find that there is insuffi-
cient evidence of a single-employer relationship based on
these factors.
As previously noted, the Board has long held that the
most important factor in deciding whether a single-
employer relationship exists is the control which one
party may or may not exercise with respect to another’s
labor relations. Gerace Construction, Inc., 193 NLRB
645 (1971). The relevant evidence shows that the Re-
spondent Cubitts determined the number of employees
and job classifications with which to staff the grocery
outlet, decided which employees to hire, supervised and
assigned their work, set their wages, bonuses, hours of
work, and vacation and holiday benefits, provided em-
ployees with health insurance and a profit sharing plan,
maintained workers compensation insurance on their
behalf, and carried out all decisions regarding employee
discipline and discharge. There is no evidence that Re-
spondent Canned Foods involved itself in any of these
matters. To the contrary, David Cubitt testified suc-
cinctly and without contradiction that “Canned Foods
does not have anything to do with my employees.” This
evidence, as well as the absence of evidence that em-
ployees worked interchangeably at both Respondents3 or
that there were any management personnel common to
both Respondents who could affect their labor relations,4
strongly suggests that the two entities are not a single-
employer.
Nevertheless, the judge concluded that “an inference”
was warranted that the Respondents were a single-
employer, because Canned Foods “possess[ed] and exer-
cis[ed] a high degree of ‘clout’ in dealing with union-
3 See, e.g., NLRB v. Al Bryant, Inc., 711 F.2d 543, 552 (3d Cir.
1983).
4 Blumenfeld Theatres, 240 NLRB 206 (1979).
332 NLRB No. 160
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1450
related matters at the grocery outlets.” As support for
this conclusion, the judge noted that (1) the same attor-
neys represented both Respondents at various stages of
this proceeding, (2) grocery outlet operators were under
instructions to contact Canned Foods at the first sign of
union activity, and (3) Canned Foods provided outlet
operators, for distribution to employees, employee orien-
tation manuals covering many details of labor relations.
We find these factors insufficient to prove common labor
relations control here.
With respect to Canned Foods’ provision of employee
manuals, the record shows that Canned Foods did not
require labor relations at the grocery outlets to be con-
ducted in accordance with the manual and that the Cu-
bitts, in fact, did not abide by the manual. As to the for-
mer point, although there was testimony by Deborah
Alvernaz that she and her husband used the manual dur-
ing their tenure as operators of the store, she explained
that she only requested copies from Canned Foods but
was not obliged to use the manuals. In any event, the
relationship at issue here is the one between Canned
Foods and the Cubitts, not the preceding relationship
between Canned Foods and the Alvernazes. The uncon-
tradicted testimony of David Cubitt was that he did not
distribute the manual to his employees or otherwise ap-
ply the policies set forth in the manuals. In light of this
evidence, there is no basis for finding that, through use of
its employee manuals, Canned Foods controlled or even
shared responsibility for the labor relations policies of
the Cubitts’ Grass Valley outlet operations.
Nor can single-employer status be inferred from the
fact that Canned Foods issued instructions that it be noti-
fied in the event that union activity was observed at an
outlet store. The only supporting evidence in this regard
was the testimony of Gerald Davenport who, while a
“trainee” operator under the tutelage of the Alvernazes,
was told by a Canned Foods official that there was “un-
ion trouble” at an outlet where he was to be assigned and
that “if anything were to happen” there he was to call
Canned Foods and “they’d take care of it.” Consistent
with this instruction, Deborah Alvernaz telephoned
Canned Foods in November 1994, with news that the
Union was trying to organize the Grass Valley outlet
employees.
Even assuming that this evidence demonstrates a sin-
gle-employer relationship, it does so only for Canned
Foods and the Alvernazes. As noted, the relevant rela-
tionship here is the one between Canned Foods and the
Cubitts. The record is silent as to whether the Cubitts,
like the Alvernazes, had directions to transfer union-
related matters to Canned Foods for resolution.
Finally, we reject the judge’s conclusion that a single-
employer relationship can be inferred from the fact that
Canned Foods and the Cubitts were, at times, represented
by common legal counsel. Specifically, the judge
pointed to the fact that Attorney Robert Tiernan repre-
sented the Cubitts during most of the instant proceeding,
while simultaneously representing Canned Foods in vari-
ous other unrelated labor matters, and that the same law
firm represented the Cubitts during pretrial investigation
in this case and Canned Foods during the hearing. Con-
trary to the judge, these facts do not prove centralized
control of labor relations, and the cases he relied upon do
not support his conclusion. In Pathology Institute, 320
NLRB 1050, 1061 (1996), the retention of the same law
firm by a holding company and one of its subsidiaries
was cited by the judge there as one of a “series” of fac-
tors showing an interrelationship of operations between
the two entities. In concluding that the two entities were
a single-employer, neither the judge nor the Board on
review referred to the employment of common legal
counsel as evidence of centralized control of labor rela-
tions. In Blumenfeld Theatres, 240 NLRB 206 fn. 2
(1979), the Board referred to a common attorney for two
entities ultimately found to be a single-employer, but it
did not rely on this fact in finding centralized control of
labor relations. Rather, the Board relied on the common
employment of a partner in both entities, Nathan Blu-
menfeld, who testified that he “handle[d] all the labor
relations for [both entities].”
In sum, given that central control of labor relations is
the “critical” factor in finding single-employer status,5
we decline to make that finding on the basis of the un-
substantiated inferences drawn by the judge.
“[C]ommon control must be actual or active, as distin-
guished from potential control.”6 As the judge here ac-
knowledged, there is “scant record evidence” meeting
this standard.
Therefore, having found that the labor relations of the
Cubitts are not centrally controlled by Canned Foods, the
judge’s finding of common ownership or financial con-
trol remains as the lone factor supporting the conclusion
that Canned Foods and the Cubitts are a single-employer.
We need not pass on this finding. Even if we were to
agree with the judge, this factor alone is not sufficient to
establish that both Respondents operate as a single em-
ploying enterprise. Dow Chemical Co., 326 NLRB 288
23 (1998). Consequently, we find that the Respondent
Canned Foods is not a single-employer of the employees
who worked at the grocery outlet operated by the Re-

5 Western Union Corp., 224 NLRB 274, 276 (1976).
6 Id.
GRASS VALLEY GROCERY OUTLET 1451
spondent Cubitts and is therefore not liable for any unfair
labor practices found to have been committed.
2. The Respondent, David and Brenda Cubitt,7 excepts
to the judge’s finding that it violated Section 8(a)(1)
prior to the representation election by telling employees
that it would withhold a wage increase because of the
election, and that it violated Section 8(a)(3) by actually
withholding the wage increase until after the election.
The Respondent challenges the judge’s findings that the
raises had been previously announced to or were ex-
pected by employees, and that its posted notice to em-
ployees blamed the Union for the employees’ failure to
receive the raises.
We affirm the judge’s conclusion that the Respondent
acted unlawfully, but we do so on different grounds than
those stated in his decision. As the judge correctly noted,
Board law requires that an employer in the midst of a
union organizing drive proceed with a wage increase as if
no organizing campaign were in progress. “An excep-
tion to this rule, however, is that an employer may post-
pone such a wage or benefit adjustment so long as it
‘[makes] clear’ to employees that the adjustment would
occur whether or not they select a union and that the
‘sole purpose’ of the adjustment is to avoid the appear-
ance of influencing the election’s outcome.”8
The record here indicates that in a meeting with sev-
eral employees prior to the election, David Cubitt ex-
plained “that he had checks made with all [their] raises
on it [but] that he could not give [them] the checks be-
cause it might appear to be a bribe because it was before
the vote.”9 Shortly thereafter, Cubitt posted a notice to
all employees that stated: “I REGRET THAT I WILL
NOT BE ABLE TO GIVE THE RAISES I FEEL MY
CREW DESERVES!!!!!! I APOLOGIZE FOR THE
MISUNDERSTANDING.”
Contrary to the judge, Cubitt did not blame the Union
for the failure to give the raises at the originally planned
time. On the other hand, Cubitt failed to communicate
that the planned wage increases were merely being post-
poned until after the election, when their implementation
could no longer be viewed as a bribe. Instead, the mes-

7 All subsequent references to “Respondent” are to the Cubitts,
unless otherwise stated.
8 Atlantic Forest Products, 282 NLRB 855, 858 (1987), citing
Uarco, Inc., 169 NLRB 1153, 1154 (1968). Contrary to our dissenting
colleague’s contention, a postponement of a wage increase during an
organizing campaign is lawful only if the employer satisfies the Uarco
conditions. Here, as explained below, the Respondent did not meet
those conditions.
9 The record does not show that the employees had any prior aware-
ness or expectation that the Respondent planned to increase their
wages. The Respondent clearly had such plans, however, and the vice
in its conduct stems from its announcement that it was not going ahead
with its plan.
sage sent to employees in the preelection notice posted
by the Respondent was that the wage increases would not
be given, i.e., they were being cancelled altogether. The
cancellation of a planned wage increase because of a
representation election is clearly unlawful and distin-
guishes this case from those like Uarco, on which the
Respondent relies, where the planned wage increase was
merely postponed. Under these circumstances, employ-
ees would reasonably tend to believe that they had lost a
planned benefit as the result of protected organizational
activities. We therefore find that the Respondent vio-
lated Section 8(a)(1) and (3) by its preelection an-
nouncements to employees about the wage increase and,
based on the announcements, by its withholding of the
increases.10
3. The judge found that the Respondent unlawfully
rewarded Rebecca Vandergrift, David Mallette, and John
Slaughter for their opposition to the Union by granting
them higher pay raises and more overtime opportunities
than other employees not known to be opposed to the
Union, and by allowing Vandergrift to take unpaid vaca-
tion time while denying that privilege to others. We find
merit in the Respondent’s exception to this finding.
Contrary to the judge, there is an insufficient basis for
inferring that the three beneficiaries of alleged discrimi-
natory action were “opposed” to the Union and were
“leaders” of others similarly opposed to the Union, or
that the Respondent regarded them as such. In this re-
gard, the judge relied on credible testimony that an em-
ployee overheard Vandergrift tell Brenda Cubitt that
Vandergrift was upset that the Cubitts were not retaining
an employee who was her best friend and that Vander-
grift “was letting them [the Cubitts] know that she was
for the Union. But . . . she didn’t like the way the Union
was handling things and she was very upset over the
whole situation.” Based on this testimony, Vandergrift’s
admission that she became “disillusioned” with the Un-
ion, and her testimony that similarly disillusioned co-
workers Mallette and Slaughter had joined her in a gath-
ering where the Union’s campaign was discussed, the
judge found that the three former prounion employees
became the leaders of the opposition. He further found
that the Respondent rewarded them after the election for
this change of heart. We find that the evidence fails to
show either that these employees turned to open opposi-
tion of the Union, or that the Respondent knew or had
reason to believe that they had done so.
It is undisputed that Vandergrift was responsible for
having initially contacted the Union for assistance in
10 The fact that the Respondent did give wage increases after the
election does not affect our finding that it unlawfully led employees to
believe raises had been cancelled prior to the election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1452
organizing the Respondent’s employees, and that she
assumed the role of an in-plant organizer by soliciting
employees to sign union authorization cards. Although
she did later become, in her words, “disillusioned” with
the Union, she never openly turned against it. She made
this clear in response to several of the General Counsel’s
leading questions which assumed that she had “changed
[her] mind . . . and went against the Union.” In reply,
Vandergrift recounted her earlier testimony in which she
“stated [that] the last time I was here, I never said I was
against the Union. I never turned against the Union. I
was disillusioned. I was confused and I didn’t know
where we were going up until the end.” It was for this
reason that she kept “going to [union] meetings pretty
much up until the vote . . . [because she] was still inter-
ested in what the Union had to say.” Vandergrift also
testified, without contradiction, that after her reported
statement to Brenda Cubitt in response to the failure to
hire Vandergrift’s friend, Vandergrift refused Brenda
Cubitt’s unlawful entreaty to sign an informational notice
disavowing employee support for preelection picketing
that the Cubitts believed was Union-sponsored. Finally,
although admittedly “disillusioned” with the Union,
Vandergrift testified that she never “encourage[d] em-
ployees not to vote for the Union.”
In light of this evidence, we find that the record falls
far short of showing that Vandergrift ever opposed the
union, much less that she became one of the “leaders” of
an opposition faction. Furthermore, we find that the
judge has misconstrued the evidence relating to a
preelection gathering attended by Vandergrift, Mallette,
and Slaughter. Vandergrift was the only witness to tes-
tify about this gathering, which took place at Mallette’s
house. She protested the General Counsel’s insistent
attempts to portray this gathering as a formal antiunion
meeting. Only one other employee was there. Vander-
grift stated that it was simply a “get-together” among the
three of them, similar to past get-togethers “which we do
a lot. We socialize.” Furthermore, there is no evidence
that the Cubitts knew anything about this “get-together.”
Under these circumstances, we find that there is no ba-
sis for finding either that Vandergrift, Mallette, and
Slaughter became opponents of the Union, or that the
Cubitts had any reason to regard them as such. Conse-
quently, the General Counsel has failed to make the req-
uisite initial showing of antiunion motivation for any
discriminatory postelection benefits enjoyed by these
three employees. We therefore reverse the judge and
dismiss the allegations of 8(a)(3) violations in this re-
gard.
4. The judge found that the Respondent’s several un-
fair labor practices were of a nature that precluded the
possibility of a fair rerun election. Instead, he recom-
mended issuance of a remedial bargaining order pursuant
to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
We disagree and conclude that, under all the circum-
stances, a Gissel bargaining order is not warranted in this
case.
We have reversed the judge and found that the Re-
spondent did not engage in unlawful postelection dis-
crimination favoring employees who opposed the Union.
The remaining unfair labor practice findings that we af-
firm involve interrogating a single unit employee as to
whether she supported the Union, soliciting employees to
sign an informational notice to customers disavowing
employee involvement in picketing that the Respondent
believed to be union-sponsored, harassing picketers, tell-
ing employees that the Respondent would not be able to
give a planned wage increase because of the election, and
withholding that wage increase. None of these unfair
labor practices are “hallmark violations” which the Board
finds especially significant in evaluating the long-term
effects of employer misconduct on employee free choice.
See Garvey Marine, Inc., 328 NLRB 991 (1999), and
General Fabricators Corp., 328 NLRB 1114, fn. 7
(1999).11
Based on the foregoing, we cannot conclude that “the
possibility of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the use of tra-
ditional remedies, though present, is slight and that em-
ployee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order.”
Gissel, 395 U.S. at 614–615. We shall therefore use the
Board’s traditional remedies for the Respondent’s unfair
labor practices.12 We leave the question concerning the
Union’s representation of the Respondent’s unit employ-
ees to be resolved by the preferred method of a second
Board election.13

11 Although he agrees with his colleagues that a bargaining order is
not warranted in this case, Member Hurtgen notes that he dissented
from the issuance of bargaining orders in Garvey Marine, Inc., and
General Fabricators. In Garvey Marine, Inc., he found that there were
no “extraordinary circumstances” warranting a bargaining order.
Rather, the traditional remedies for the 8(a)(1) and 8(a)(3) violations
found in that case would have sufficed to permit a fair election to be
held. In General Fabricators Corp., he reserved judgment on the ne-
cessity of a bargaining order until the results of the pending representa-
tion case were determined.
12 Consistent with our finding that a Gissel bargaining order is not
warranted here, we reverse the judge’s finding that the Respondent
violated Sec. 8(a)(5) when it unilaterally implemented a retirement plan
for unit employees on January 27, 1997, “because at that time the Re-
spondent was not obligated to bargain with the Union.” Fiber Glass
Systems, 278 NLRB 1255, 1256 (1986). See also Beverly California
Corp., 326 NLRB 232 fn. 17 (1998).
13 The initial tally of ballots in the election showed 6 votes for and 8
against the Union, with 13 determinative challenged ballots. In a post-
GRASS VALLEY GROCERY OUTLET 1453
ORDER
The National Labor Relations Board orders that the
Respondent, David G. Cubitt and Brenda Cubitt, a Cali-
fornia Partnership, d/b/a Grass Valley Grocery Outlet,
Grass Valley, California, shall
1. Cease and desist from
(a) Harassing individuals, who are employees within
the meaning of the Act and who are engaged in picketing
outside the grocery outlet in Grass Valley.
(b) Interrogating employees as to their union sympa-
thies.
(c) Soliciting its employees to sign an antiunion peti-
tion.
(d) Informing its employees that they would not be re-
ceiving a planned wage increase because a representation
election was pending before the Board.
(e) Withholding a planned wage increase from its em-
ployees because a representation election was pending
before the Board.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions designed to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its grocery outlet in Grass Valley, California, copies of
the attached notice marked “Appendix.”14 Copies of the
notice, on forms provided by the Regional Director of
Region 20, after being signed by the Respondent’s au-

t basis.
election proceeding, the Regional Director sustained the challenges to
seven of these ballots. The parties agreed during the hearing before the
judge that the challenged ballot of voter Tim Bascom should not be
counted. In light of our agreement with the judge’s findings that Deb-
orah Tahir and Marilyn Reider were not unlawfully discharged and that
Sharlene Sutton voluntarily quit her employment before the election,
the challenges to their ballots must also be sustained. Therefore, the
two remaining challenged ballots which have not been resolved, those
cast by Joan Cramer and Peggy Arnold, are no longer determinative of
the election results.
Having decided that a Gissel bargaining order was necessary, the
judge did not rule on objections or challenges in the election in Case
20–RC–17087. The Union’s objections parallel certain unfair labor
practice allegations with respect to events occurring during the critical
preelection period. With respect to those allegations, we have affirmed
the judge’s findings that the Respondent violated Sec. 8(a)(1) by har-
assing picketers, by interrogating an employee, and by soliciting
employees to sign an antiunion petition. Conduct violative of Sec.
8(a)(1) is a fortiori conduct which interferes with employee free choice
in an election. See Dal-Tex Optical Co., 137 NLRB 1782 (1962). We
therefore sustain the Union’s objections to this misconduct, and we
shall set aside the election on tha
14 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
thorized representative, shall be posted by the Respon-
dent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 6, 1995.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent has taken to
comply.
It is further ordered that the amended consolidated
complaint is dismissed as to alleged violations of the Act
not found in this decision.
IT IS FURTHER ORDERED that the proceeding in
Case 20–RC–17087 be severed and remanded to the Re-
gional Director for Region 20 for further action consis-
tent with this decision.

MEMBER HURTGEN, dissenting in part.
I agree with my colleagues that the Respondent’s an-
nouncement regarding wage increases violated the Act.
The Respondent explained to employees that a wage in-
crease could be perceived as a bribe related to the elec-
tion. The announcement was unlawful because it led
employees to believe that the planned wage increase was
being cancelled (rather than postponed) because of the
pending election. However, it does not follow that the
failure to grant the increase was itself unlawful. In this
regard, my colleagues say that the failure to give the
wage increase was unlawful because it was “based on the
announcement.” This is a classic nonsequitur. The an-
nouncement was unlawful because it was perceived as a
cancellation rather than a postponement. But, the action
that was taken was in fact a postponement (the wage in-
creases were given after the election). Thus, it does not
follow that the illegality of the announcement leads in-
exorably to illegality of the action.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOA D R
An Agency of the United Government

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1454
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by the terms of this notice.

WE WILL NOT harass individuals, who are employees
within the meaning of the Act and who are engaged in
picketing outside its grocery outlet in Grass Valley.
WE WILL NOT interrogate our employees with regard
to their support for United Food & Commercial Workers
Union, Local 588, United Food & Commercial Workers
International Union, AFL–CIO.
WE WILL NOT solicit our employees to sign an anti-
union petition.
WE WILL NOT inform our employees that they will
not receive a planned wage increase because a represen-
tation election is pending before the National Labor
Relations Board.
WE WILL NOT withhold a planned wage increase
from our employees because a representation election is
pending before the National Labor Relations Board.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
DAVID G. CUBITT AND BRENDA CUBITT,
A CALIFORNIA PARTNERSHIP, D/B/A GV
GROCERY OUTLET
Marilyn O’Rourke, Esq., for the Acting General Counsel.
Carolyn King, Esq. and Dannie B. Fogleman, Esq. (Ford &
Harrison), of Atlanta, Georgia, for Respondent, Canned
Foods, Inc.
Kevin R. Iams, Esq. (Weintraub, Genshlea & Sproul), of Sac-
ramento, California, for Respondent, Thomas A. Alvernaz
and Deb Johnston.
Robert Tiernan, Esq. (Tiernan & Associates), of Lake Oswego,
Oregon, for Respondent, David G. Cubitt and Brenda Cu-
bitt.
Mike Moore, of Roseville, California, for Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Original,
first amended, second amended, and third amended unfair labor
practice charges in Case 20–CA–26685 were filed by United Food
& Commercial Workers Union, Local 588, United Food & Com-
mercial Workers International Union, AFL–CIO (the Union), on
April 20 and May 1, 1995, November 18, 1996, and March 10,
1997, respectively, and original, first amended, and second
amended unfair labor practice charges in Case 20–CA–26812
were filed by the Union on June 26, 1995, November 18, 1996,
and March 10, 1997, respectively. Based upon said unfair labor
practice charges, on March 17, 1997, the Regional Director of
Region 20 of the National Labor Relations Board, herein called
the Board, issued an amended consolidated complaint, alleging
that Canned Foods, Inc. d/b/a Grass Valley Grocery Outlet, herein
called Respondent Canned Foods, engaged in, and is engaging in,
acts and conduct violative of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act).1 In addition, on January
30, 1997, the Regional Director of Region 20 of the Board issued
a supplemental decision concerning objections and challenges in
Case 20–RC–17087, consolidating certain of the challenges and
objections for hearing with the aforementioned unfair labor prac-
tice allegations. Pursuant to a notice of hearing, the above con-
solidated matters came to trial before me in San Francisco and
Sacramento, California, on April 7, September 23, November 3
through 6, 12, and 13, and 17 through 19, and December 1, 2, 9,
and 10, 1997. At the hearing, all parties, including counsel for the
Acting General Counsel, the representative of the Union, counsel
for Respondent Canned Foods, counsel for Thomas A. Alvernaz
and Deborah Johnston-Kindel (Respondent Alvernazes), and
counsel for David G. and Brenda Cubitt (Respondent Cubitts),
were afforded the opportunity to examine and to cross-examine
witnesses, to offer into the record all relevant evidence, to argue
their legal positions orally, and to file posthearing briefs. Said
documents were filed by counsel for the Acting General
Counsel, the Union’s representative, counsel for Respondent
Canned Foods, counsel for Respondent Alvernazes,2 and counsel
for Respondent Cubitts. Accordingly, based upon the entire re-
cord herein, including the posthearing briefs and my observation
of the demeanor, while testifying, of each of the several witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent Canned Foods, a cor-
poration with an office and place of business in Berkeley, Califor-
nia, has been engaged in the business of purchasing, warehousing,
consigning, and selling, at retail, of grocery-related products
through various entities, known as grocery outlets, located in the
western United States, including a grocery outlet located in Grass
Valley, California (the Grass Valley outlet). Further, at all times
material herein until on or about April 17, 1995, the Grass Valley
outlet was operated by Respondent Alvernazes, and, at all times
material herein since on or about April 18, 1995, the Grass Valley
outlet has been operated by Respondent Cubitts. Annually, retail
sales of Respondent Canned Foods’ grocery-related products at
the Grass Valley grocery outlet have been in excess of $2 million,
and Respondent Canned Foods purchases and receives goods and
products, valued in excess of $1500, which originated outside the
state of California and which are sold, at retail, through the Grass
Valley grocery outlet. Respondent Alvernazes and Respondent
Cubitts each admit that, at all times material herein, they have
been an employer within the meaning of Section 2(2), (6), and (7)
of the Act.

1 During the course of the hearing, counsel for the Acting General
Counsel moved to amend the amended consolidated complaint in sev-
eral respects—to add the filing dates of amended unfair labor practice
charges and to add alternative majority status and refusals of recogni-
tion dates. Said motions were granted.
2 At some point, prior to April 1995, Thomas and Deborah became
divorced.
GRASS VALLEY GROCERY OUTLET 1455
II. LABOR ORGANIZATION
Respondent Alvernazes and Respondent Cubitts each admit
that the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE MOTION TO DISMISS
These matters came to trial before the below-named adminis-
trative law judge in Sacramento, California, on April 7, 1997.
Shortly after the commencement of the hearing, counsel for
Respondent Canned Foods, counsel for the Respondent Alver-
nazes, and counsel for the Respondent Cubitts jointly moved
that various paragraphs of the amended consolidated complaint
in Cases 20–CA–26685 and 20–CA–26812 be dismissed inas-
much as said paragraphs were based upon amended unfair labor
practice charges, in each case, which allege, as unfair labor
practices, acts and conduct which occurred beyond the 6-month
statute of limitations period, set forth in Section 10(b) of the
Act, and as said amended unfair labor practice allegations were
not sufficiently closely related to the allegations of timely filed
original unfair labor practice charges, in each case, so as to toll
the aforementioned statute of limitations. Counsel for the Act-
ing General Counsel argued that the decisions of the Board,
upon which each Respondent relied for support, were inappo-
site and that, in any event, the amended unfair labor practice
charges were, in fact, closely related to the allegations of the
original charges and, therefore, not time-barred under Section
10(b) of the Act. On May 18, 1997, the undersigned adminis-
trative law judge issued an order, granting the joint motion to
dismiss paragraphs 9(a) through (f), 10, 11, 17(b), and 17(c) of
the amended consolidated complaint but denying the joint mo-
tion to dismiss paragraphs 12, 13(a), 13(d), 13(e), 14, and 17(a)
of the amended consolidated complaint. Thereafter, on August
28, 1997, the Board granted an appeal by counsel for the Acting
General Counsel, reversing the undersigned administrative law
judge and directing that I “. . . permit the parties to present
evidence at the hearing regarding the merits of [the above]
allegations and whether they are closely related to the original
timely charge allegations . . . .”3 Subsequently, on the last day
of the hearing in the above-captioned matters and after the par-
ties had each presented evidence on the allegations of para-
graphs 9(a) through (f), 10, and 11 of the amended consolidated
complaint, counsel for the Respondents jointly reiterated their
motion to dismiss the above paragraphs and, also, jointly
moved to dismiss those portions of paragraphs 7 and 16(a) and
16(b), which concern Respondent Alvernazes.
A. The Facts
On February 28, 1995, the Union, filed a representation petition
in Case 20–RC–17087, seeking to represent certain employees of
Grass Valley Grocery Outlet,4 a grocery store located in Grass
Valley, California. Thereafter, during the subsequent representa-

3 The Board denied counsel for the Acting General Counsel’s appeal
of the undersigned administrative law judge’s dismissal of pars. 17(b)
and 17(c).
4 There is no dispute that the appropriate unit herein consists of all
full-time and regular part-time employees, employed at the grocery
outlet in Grass Valley; excluding guards and supervisors as defined in
the Act.
tion case hearing, Thomas A. Alvernaz testified that Grass Valley
Grocery Outlet sells closeout groceries and nonfood items, that the
business was a partnership in which he and his ex-wife Deborah,
who, since their divorce, has assumed her maiden name Johnston,
each owned a 50 percent interest, that their interest in the business
consisted of ownership of the store’s fixtures and equipment, that
the store’s inventory is owned by Respondent Canned Foods, that
he and his wife had contracted to sell the business to David G. and
Brenda Cubitt, and that the sale was scheduled to be consummated
on April 17. On April 14, the Acting Regional Director of Region
20 of the Board issued a decision and direction of election, con-
cluding that, inasmuch as the sales price of the business, a critical
term of the sales transaction, had not yet been determined and as
there was no record evidence that Deborah Alvernaz had con-
sented to the sale, the sale of the business, at that time, was specu-
lative in nature.
Six days later, on April 20, the Union filed the original unfair
labor practice charge in Case 20–CA–26685, alleging that the
employer (the Respondent Alvernazes, the Respondent Cubitts,
and Respondent Canned Foods) had engaged in conduct viola-
tive of Section 8(a)(1) and (3) of the Act. The unfair labor
practice charge states, “On or about April 14, 1995, the above-
named Employers terminated the employees of Grass Valley
Grocery Outlet. Since on or about April 15, 1995, the above-
named Employers have refused to hire Marilyn Reider and
Deborah Tahir because of their support of [the Union].” On
May 1, the Union filed a first amended unfair labor practice
charge in Case 20–CA–26685, amending the alleged violation
of Section 8(a)(1) and (3) of the Act as follows— “On or about
April 14, 1995 the above-named Employers terminated the em-
ployees of Grass Valley Grocery Outlet because of [the Union].
Since on or about April 15, 1995 the above-named Employers
have refused to hire Marilyn Reider, Deborah Tahir, Jerry Young,
and Jonathan Wooldridge because of their support of [the Un-
ion].”
While the investigation of the Union’s original and first
amended unfair labor practice charges in Case 20–CA–26685
continued,5 on May 5, the aforementioned Acting Regional Direc-
tor issued an order to show cause in the above-captioned represen-
tation matter in which he noted that the labor relations representa-
tive of “both the predecessor and successor” had provided him
with a copy of the sales agreement, in which the purchase price
was set forth, and stated:

Thereafter, the Regional Director caused an administrative in-
vestigation to be conducted which revealed that all of the em-
ployees who were employed by [Alvernaz and Johnston]
were terminated as of midnight, April 18, 1995. On April 19,
1995, Grass Valley Grocery Outlet opened with [the Cubitts]
as the new owners, doing the same business, the retail sale of
closeout groceries and nonfood items with inventory owned
by . . . Canned Foods, Inc., at the same location . . . as prior to
the sale. The Cubitts, having previously met with the em-
ployees of the predecessor owners to discuss their purchase of
5 Apparently, in addition to evidence pertaining to acts specified in
the charges, the investigation also uncovered evidence of alleged viola-
tions of Sec. 8(a)(1) of the Act during November 1994, and at other
times during the fall of that year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1456
the business, received applications for employment from these
employees, conducted interviews with them, and offered em-
ployment to 20 of the 26 predecessor employees. The major-
ity of these employees accepted the employment offers.

Based upon the foregoing, the Acting Regional Director con-
cluded that the Cubitts were a successor employer to the Alver-
nazes and that the unit of employees, employed by the Cubitts,
was the same unit of employees as was described in his deci-
sion and direction of election. There was no response to the
order to show cause, and, on June 12, the Regional Director
conducted the representation election in the above-captioned
matter, with the tally of ballots showing that six votes were cast
in favor of the Union and eight votes were cast against the Un-
ion.6
On June 26, the Union filed the unfair labor practice charge in
Case 20–CA–26812, alleging that the employer (the Respondent
Cubitts and Respondent Canned Foods) engaged in conduct viola-
tive of Section 8(a)(1) of the Act. The Union contended that “on
or about May 6, 1995, the above-named Employers, through their
agent Robert Tiernan, violated Section 8(a)(1) of the Act by as-
saulting union representative Michael Moore in the presence of
employees who were engaging in protected, concerted and union
activities.” While the investigation of this second unfair labor
practice charge was in progress, the Acting Regional Director
dismissed the original and amended unfair labor practice charges
in Case 20–CA–26685. Thus, in a letter, dated July 27, he wrote:

Contrary to the allegations of the charge the evidence did not
establish that Canned Foods, Inc. is a joint Employer with
Grass Valley Grocery Outlet. While the evidence discloses
that Canned Foods, Inc. sells food products to the Grass Val-
ley Grocery Outlet on a consignment basis, there is no evi-
dence that the two businesses have common officers, owner-
ship, directors, management, or supervision. There is no evi-
dence to support a finding that Canned Foods, Inc. is involved
in the day-to-day operations of Grass Valley Grocery Outlet
or in the hiring, discipline, termination, and/or direction of
work of its employees. In addition, the evidence reflects that
the Grass Valley Grocery Outlet purchases its own equipment
and fixtures, pays the freight costs for the foodstuffs it pur-
chases from Canned Foods, Inc., and separately leases the
building housing the market operations from a third party. I
am, therefore, refusing to issue complaint as to this allegation.
With respect to the allegation that the purchasers of Grass
Valley Grocery Outlet, the Cubitts, violated Section 8(a)(3) of
the Act by refusing to employ. . . . Deborah Tahir and Marilyn
Reider, there is no evidence that either employer knew of their
union activities or harbored any animus towards them because
of a belief that they had done so. Finally, while there is rea-
son to believe that the predecessor employer and/or its agents
had committed numerous violations of Section 8(a)(1) of the
Act, there is no evidence that the successor had notice of these
violations. Indeed, the evidence demonstrates that the sale of
the business was consummated prior to the filing of the in-
stant unfair labor practice charges. In these circumstances it is

6 On June 19, the Union timely filed objections to the conduct of the
election.
concluded that it would not effectuate the purposes of the Act
to issue a complaint against the predecessor, who no longer
operates the business. I am, therefore, refusing to issue a
complaint in this matter.7

Subsequently, the Union appealed the Acting Regional Direc-
tor’s dismissal of Case 20–CA–26685 to the General Counsel’s
office of appeals.
Thereafter, on November 18, 1996, a second amended unfair
labor practice charge was filed in Case 20–CA–26685 and an
amended unfair labor practice charge was filed in Case 20–CA–
26812.8 Each case was amended in the same manner. Thus, in
each, the name of the employer was amended to read, “Thomas A.
Alvernaz and Debra Alvernaz (aka Debra Johnston), d/b/a Grass
Valley Grocery Outlet, David Cubitt and Brenda E. Cubitt, d/b/a
Grass Valley Grocery Outlet, and Canned Foods, Inc., A
SINGLE-EMPLOYER.” In addition, each alleged that said em-
ployer engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act. Finally, each asserted that
the employer engaged in several more unfair labor practices:

The Employers have also unlawfully interrogated employees,
had the police apprehend union officials in the presence of
employees, threatened employees, asked employees to spy on
other employees, told employees it would be futile to vote for
the Union, solicited grievances from employees, harassed and
threatened pickets, withheld employees’ paychecks and raises,
promised and granted wage increases and/or other benefits to
some employees if they opposed the Union, solicited employ-
ees to sign petitions disavowing support for union activities,
and changed Sharlene Sutton’s work hours, gave her more
onerous duties, and constructively discharged her because of
her union activities. The Employers have refused the Union’s
request to recognize and bargain with it. The Union requests
a Gissel bargaining order. By the above and other acts, the
above-named employer has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act.9

Eight days later, on November 26, 1996, with regard to Case
20–CA–26685, the Regional Director for Region 20 informed
each Respondent that it had engaged in a “follow-up” investiga-
tion of the charges and that “with the exception of the allega-
tions concerning Young and Wooldridge, I have reconsidered
these matters, and I am hereby revoking the dismissal . . . in all
7 Likewise, the allegations, pertaining to employees Young and
Wooldridge, were dismissed.
8 The record evidence is that, during the period between July 27,
1985 and November 18, 1996, Region 20 was continuing its investiga-
tion of both the unfair labor practice allegations in the above-captioned
matters and what, if any, relationship existed between Respondent
Canned Foods, the Respondent Alvernazes, and the Respondent Cu-
bitts. In particular, I note that, on August 30, 1995, an investigatory
subpoena was issued to Respondent Canned Foods, seeking documents
concerning the relationship, if any, between the three respondents.
Moreover, Robert Tiernan, counsel for the Respondent Cubitts was
asked to respond to various questions concerning his work on behalf of
the Alvernazes and the Cubitts during 1994 and 1995.
5 Neither amendment sets forth dates for any of the new alleged un-
fair labor practices.
GRASS VALLEY GROCERY OUTLET 1457
other respects.” The Regional Director did not state any rea-
sons for his revocation of the Region’s prior dismissal of the
charges.
Based upon the above-described original and amended unfair
labor practice charges, on January 13, 1997, the Regional Director
issued a consolidated complaint, alleging that Respondent Canned
Foods and Grass Valley Grocery Outlet, acting as a single-
employer, had engaged in, and were engaging in, acts and conduct
violative of Section 8(a)(1), (3), and (5) of the Act. Subsequently,
on March 10, 1997, the Union filed a third amended charge in
Case 20–CA–26685 and a second amended charge in Case 20–
CA–26812, identically amending each by adding “and have made
unilateral changes” after the word “it” in the next to the last sen-
tence of the second paragraph. Thereafter, on March 17, 1996,
based upon said amendments, the Regional Director issued the
instant amended consolidated complaint.6 The amended consoli-
dated complaint allegations, which, the Respondents jointly con-
tend, are time-barred, pursuant to Section 10(b) of the Act and
none of which are based upon conduct specified in the original
unfair labor practice charges in the above-captioned matters, in-
clude the majority status allegations of paragraph 7, which per-
tains to the period in which the Respondent Alvernazes operated
the grocery outlet in Grass Valley, the allegations of paragraph 9
(8(a)(1) violative acts and conduct, attributed to an unnamed
agent, on November 21, 1994, and at other times in the fall of
1994), the allegations of paragraph 10 (8(a)(1) conduct, attributed
to the Respondent Alvernazes, on Nov. 12, 1994), the allegations
of paragraph 11 (8(a)(1) violative conduct, attributed to Deborah
Alvernaz, on Dec. 7, 1994), and the recognition request and re-
fusal to recognize provisions of paragraphs 16(a) and 16(b) as
each pertains to the time period during which the Respondent
Alvernazes operated the grocery outlet in Grass Valley.
B. Legal Analysis
There is no dispute as to the applicable legal principles in-
volved herein. The three Respondents contend that the second
amended unfair labor practice charges in Case 20–CA–26685 and
the first amended unfair labor practice charges in Case 20–CA–
26812, upon which the challenged amended consolidated com-
plaint allegations are based, are time-barred by the 6-month statute
of limitations in Section 10(b) of the Act and, therefore, can not
serve as the basis for the said allegations. In this regard, Section
10(b) of the Act provides, in pertinent part, “that no complaint
shall issue based upon any unfair labor practice occurring more
than 6 months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such
charge is made.”7 Further, in NLRB v. Fant Milling Co., 360 U.S.

6 The amended consolidated complaint alleges single-employer
status between Respondent Canned Foods and an entity, Grass Valley
Grocery Outlet. The Respondent Alvernazes are alleged as being the
operators of the entity until April 17, 1995, and the Respondent Cubitts
are alleged as being the operators since April 18, 1995. No ownership
interest is alleged for either, and there is no allegation that the Alver-
nazes had anything to do with the operation of the entity since April 18.
7 Sec. 10(b) appears to have been intended to deter litigation over
matters about which evidence may have been destroyed, witnesses may
be unavailable, and recollections may have become unreliable. NLRB
v. MacMillan Ring-Free Oil Co., 394 F.2d 26, 32 (9th Cir. 1968).
301 (1959), the Supreme Court held that, rather than being meas-
ured by the standards applicable to a pleading in a private lawsuit,
an unfair labor practice charge is merely the initiatory document,
necessary to activate the Board’s investigatory processes.8 The
responsibility for making the investigation and for framing the
allegations of a subsequent complaint is that of the General Coun-
sel, and, once an unfair labor practice charge has been filed, he is
permitted to undertake a complete and unfettered inquiry, one
which is not limited to the specific matters alleged in the charge.
Id. at 307. In particular, the Court held that “the Board is not
precluded from `dealing adequately with unfair labor practices
which are related to those alleged in the charge and which grow
out of them while the proceeding is pending before the Board.’”
Id. at 309.
With regard to the issues at hand, both the courts and the Board
have reconciled the Act’s statute of limitations with the dictates of
Fant Milling Co. in determining the timeliness of amendments to
unfair labor practice charges. Thus, the courts have found
amended unfair labor practices, which involve the same course of
conduct as alleged in the original charge and are within the same
timeframe, to be timely filed. Rock Hill Telephone Co. v. NLRB,
605 F.2d 140, 142 (4th Cir. 1979); Central Power & Light Co. v.
NLRB, 425 F.2d 1318, 1321 (5th Cir. 1970). Likewise, in Pank-
ratz Forest Industries, 269 NLRB 33 (1984), in which it con-
cluded that an amended unfair labor practice charge, which had
been filed more than 6 months after the incident at issue, could
properly allege a violation of Section 8(a)(1) and (3) of the Act
although the original charge had alleged only a violation of Sec-
tion 8(a)(1) and (5) of the Act, the Board held:

It is well settled that the timely filing of a charge tolls the time
limitations of Section 10(b) as to matters subsequently alleged
in an amended charge which are similar to, and arise out of
the same course of conduct as those alleged in the timely filed
charge. Amended charges containing such allegations, if filed
outside the 6-month 10(b) period, are deemed, for 10(b) pur-
poses, to relate back to the original charge. This practice is
wholly consistent with the statutory scheme, which estab-
lishes the charge merely as a vehicle for setting in motion the
Board’s investigatory machinery and, additionally, affords the
Board leeway to issue a complaint on grounds other than
those specifically set forth in the charge.

Id. at 36–37. Subsequently, in Rocky Mountain Hospital, 289
NLRB 1347, 1359 fn. 22 (1988), the Board utilized the same
rationale in finding that an allegation of an otherwise time-
barred amended unfair labor practice charge (an overly broad
no solicitation-no distribution rule) did not arise out of the same
course of conduct (bad-faith bargaining) alleged in the original
charge so as to relate to it and toll the statute of limitations.
In Redd-I, Inc., supra, the Board determined that amendments
to a complaint were not time-barred under Section 10(b) of the
8 In Redd-I, Inc., 290 NLRB 1115, 1117 fn. 2 (1988), the Board
noted, “It is well settled that it is the complaint, not the charge, that is
supposed to give notice to a respondent of the specific claims made
against it. . . . The ‘charge’ has a lesser function. It is not designed to
give notice to the person complained of or to limit the hearing or to
limit the scope of the final order. It serves in the function of drawing
the Board’s attention to a cause for economic disturbance.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1458
Act as the allegations appeared to be “closely related” to the alle-
gations of the unfair labor practice charge, upon which they were
based. In reaching its conclusion, the Board set forth the follow-
ing test:

First, we shall look at whether the otherwise untimely allega-
tions are of the same class as the violations alleged in the
pending timely charge. This means that the allegations must
all involve the same legal theory and usually the same section
of the Act. . . . Second, we shall look at whether the otherwise
untimely allegations arise from the same factual situation or
sequence of events as the allegations in the pending timely
charge. This means that the allegations must involve similar
conduct, usually during the same time period with a similar
object. . . . Finally, we may look at whether a respondent
would raise the same or similar defenses to both allegations,
and thus whether a reasonable respondent would have pre-
served similar evidence and prepared a similar case in defend-
ing against the otherwise untimely allegations as it would in
defending against the allegations in the timely pending
charge.

Id. at 1118. While Redd-I involved an amendment to a com-
plaint, which, as stated above, may be more legally significant
than an unfair labor practice charge, in subsequent decisions,
the Board has made it clear that the identical test should be
utilized in determining whether an otherwise time-barred
amended unfair labor practice charge relates back, or is suffi-
ciently closely related, to the allegations of a timely original
charge so as to toll the Act’s 6-month statute of limitations and
to support a complaint allegation. Citywide Service Corp., 317
NLRB 861, 862 (1995); Kaumagraph Corp., 316 NLRB 793,
795 (1995); W. H. Froh, Inc., 310 NLRB 384, 387 (1993);
Nephi Rubber Products Corp., 303 NLRB 151, 155–156
(1991).
Turning to paragraphs 9(a) through (f), 10, and 11 of the instant
amended consolidated complaint, which pertain to incidents, al-
legedly occurring in November and December 1994, at the outset,
as the original unfair labor practice charge in Case 20–CA–26812
was not filed until June 26, 1995, only the unfair labor practice
charge in Case 20–CA–26685 was timely filed as to alleged unfair
labor practices committed during the previous fall, and only it or
an amendment can be the underlying basis for said allegations.
Utilizing the three factors of the above-described Redd-I test,
counsel for the Respondent Alvernazes argues that the alleged
8(a)(1) violations of the second amended unfair labor practice
charge, in Case 20–CA–26685, are not, in any way, closely related
to the section 8(a)(1) and (3) allegations of the original unfair
labor practice charge and, thus, can not be a basis for the above
amended consolidated complaint allegations. In this regard, he
initially argues that the focus of the original unfair labor practice
charge in Case 20–CA–26685 was on the failure of the Respon-
dent Cubitts to hire employees Tahir and Reider on April 18,
1995, a violation of Section 8(a)(1) and (3) of the Act, and that the
alleged acts and conduct, occurring during the previous fall,
committed by different individuals, were of a different class of
alleged violations of the Act—violations of Section 8(a)(1) of the
Act. Next, he argues that, as the Respondent Cubitts purchased
the business from the Respondent Alvernazes and then failed and
refused to hire Tahir and Reider, the acts and conduct of the Re-
spondent Alvernazes did not involve the same sequence of events
as alleged in the original unfair labor practice charge. Further,
counsel argues that different defenses are required for the
amended charge allegations and that no reasonable respondent
would have foreseen the need to preserve the evidence necessary
to defend against the 8(a)(1) violation allegations of the amended
consolidated complaint. Finally, counsel contends that, in order to
demonstrate an on going campaign to defeat the Union, counsel
for the Acting General Counsel must establish a single-employer
relationship between the Respondent Alvernazes, the Respondent
Cubitts, and Respondent Canned Foods and that such involves a
different legal theory and defenses than required by the original
unfair labor practice charge.9 Taking a contrary view, relying, in
particular, upon Marriott Corp., 310 NLRB 1152 (1993), and
Southwest Distributing Co., 301 NLRB 954 (1991), counsel for
the Acting General Counsel asserts that otherwise time-barred
allegations of violations of Section 8(a)(1) of the Act have been
found to be closely related to a timely unfair labor practice charge,
alleging only a violation of Section 8(a)(1) and (3) of the Act,
when they are part of an employer’s obvious scheme to aggres-
sively undermine its employees’ support for a labor organization
and to rid itself of supporters of the labor organization and, there-
fore, may be said to have arisen from the same fact matrix and
sequence of events. As to this, counsel argues that the evidence
offered during the hearing, regarding the incidents underlying
paragraphs 9(a) through (f), 10, and 11 of the amended consoli-
dated complaint, establish such a campaign to undermine the Un-
ion herein.
I find merit in the position of the three Respondents, as ar-
gued by counsel for the Respondent Alvernazes, that, as the
second amended charge in Case 20–CA–26685 was filed more
than 6 months after the alleged unlawful acts and conduct and
as said allegations are not “closely related” to the allegations of
the timely original charge, the allegations of these three para-
graphs are time-barred pursuant to Section 10(b) of the Act.
While counsel for the Acting General Counsel is, of course,
correct that, in the abstract, otherwise time-barred 8(a)(1) viola-
tion allegations in an amended charge may be closely related to
a timely discriminatory discharge unfair labor practice charge if
the former allegations are part of a campaign to undermine or
defeat a Union, my difficulty with her position herein lies not
so much with the theory of the 8(a)(1) allegations themselves
but when, as they must, such are considered in conjunction with
the single-employer allegation of the amended unfair labor
practice charge.10 Thus, utilizing the Redd-I, supra, test, I be-

9 At the hearing, counsel for the Respondent Alvernazes and counsel
for the Respondent Cubitts offered evidence that the relationship be-
tween them was a predecessor/successor relationship.
10 While the original unfair labor practice charge in Case 20–CA–
26685 did refer to the Respondent Alvernazes, the Respondent Cubitts,
and Respondent Canned Foods as “the employer,” single-employer
status was not specifically alleged, and it is clear, as reflected in the
Acting Regional Director’s April 14, 1995 decision and direction of
election, his May 5, 1995 order to show cause in the representation
case, and his July 27, 1995 dismissal letter in the unfair labor practice
matter, that he viewed the Respondent Cubitts as the legal successor to
the Respondent Alvernazes as the owner of the Grass Valley Grocery
GRASS VALLEY GROCERY OUTLET 1459
lieve that entirely different legal theories, pertaining to liability,
are involved in determining whether a violation of Section
8(a)(1) and (3) of the Act occurred when the Respondent Cu-
bitts discharged and/or failed to offer employment to Tahir and
to Reider in April 1995, and in establishing whether the Re-
spondent Cubitts and Respondent Canned Foods also were
responsible for any interrogations, threats, and other conduct,
violative of Section 8(a)(1) of the Act, which were committed
by the Respondent Alvernazes and their agent during the fall of
1994. If counsel for the Acting General Counsel establishes
each of the required elements necessary to prove that the Re-
spondent Cubitts unlawfully discharged and/or refused to hire
Tahir and Reider,11 the responsibility of the Respondent Cu-
bitts, either alone or as part of a single-employer entity, is not at
issue. In contrast, as stated above, merely proving the elements
necessary to establish violations of Section 8(a)(1) of the Act
during the fall of 1994 would be insufficient to hold Respon-
dent Cubitts and/or Respondent Canned Foods responsible for
said acts. Rather, according to the theory of the amended con-
solidated complaint, establishing single-employer status, in-
cluding the Respondent Alvernazes, is an absolute prerequisite
to finding the Respondent Cubitts and Respondent Canned
Foods responsible for what allegedly occurred in November
and December 1994.12 Put another way, while the unfair labor

Outlet and did not believe that Respondent Canned Foods was a joint
employer with the Grass Valley Grocery Outlet. Further, the Acting
Regional Director noted that there was no evidence that the successor,
the Respondent Cubitts, had any notice of any unfair labor practices,
which may have been committed by the predecessor employer, the
Respondent Alvernazes. Counsel for the Acting General Counsel is
undoubtedly correct that the General Counsel may not be precluded
from adopting a different legal position as herein; however, the point
remains that single-employer status was formally raised for the first
time in the second amended charge, and whether the Respondent Cu-
bitts and Respondent Canned Foods may be found responsible for any
violations of Sec. 8(a)(1) of the Act, committed by Respondent Alver-
nazes, is wholly dependent upon a finding of single-employer status
between said entities.
11 The manner, in which par. 13(b) has been plead, makes it clear
that counsel for the Acting General Counsel was acutely aware of her
difficult legal position. Thus, if the Alvernazes, the Cubitts, and
Canned Food are found to constitute a single-employer, what occurred
would be a discharge. However, if only the Cubitts or the Cubitts and
Canned Foods are responsible, what occurred would be a refusal to
hire.
12 In my original ruling on the Respondents’ motion to dismiss and
in remarks on the last day of the hearing, I explicated my rationale for
believing that the 8(a)(1) allegations of the second amended charge
were not closely related to the timely filed original charge so as to toll
the 10(b) statute of limitations. Specifically, I requested that counsel
for the Acting General Counsel address my concerns, with case cita-
tions, in her posthearing brief. However, her only reference to my
statements is her comment that “The Judge’s rationale . . . [fails] to
recognize the crucial fact that if single-employer status is proven, all
entities of Respondent are one and the same. . . . Respondent is charged
with knowledge of and responsible for all conduct which took place
during the Alvernazes’ operation of the store.” This is precisely my
point. Whatever my findings herein on single-employer status, at the
time of the filing of the second amended charge herein, the issue had
never before been raised much less proven and was, therefore, en-
meshed with the unfair labor practice issues themselves.
practice and single-employer issues may involve separate and
distinct legal theories, they are inextricably intertwined in the
pleading. Moreover, while there is much record evidence
herein regarding the alleged Section 8(a)(1) violations and the
alleged unlawful discharges of and/or refusals to rehire Tahir
and Reider, given the nearly 5 month interval between the last
of the former and the latter and the change of operators, one
may legitimately question whether the foregoing involve the
same sequence of events. Finally, as I perceive that the timely
filed Section 8(a)(3) discharge and/or refusals to hire issues and
the amended independent Section 8(a)(1) violation allegations
involve different legal issues, it follows that distinct defenses
are applicable to each. Whether the Respondent Cubitts and
Respondent Canned Foods can be held responsible for the latter
acts and whether all of the foregoing acts and conduct were
facets of a campaign to defeat the Union are dependent upon a
finding of a single-employer relationship between the three
Respondents, and, as an aspect of their defenses herein, the
three Respondents contend that a predecessor/successor rela-
tionship existed between the Respondent Alvernazes and the
Respondent Cubitts. In this regard, as noted by the Acting
Regional Director, the matter of the Respondent Cubitt’s
knowledge of the alleged unfair labor practices, which occurred
five months before they became the operators of the store, is a
significant issue. Based upon the foregoing, I do not believe
that the otherwise time-barred second amended charge in Case
20–CA–26685, upon which the Section 8(a)(1) of the Act vio-
lation allegations of paragraphs 9(a) through (f), 10, and 11 of
the amended consolidated complaint are based, is sufficiently
closely related to the timely filed original unfair labor practice
charge so as to toll the Section 10(b) of the Act’s statute of
limitations and, therefore, shall grant the three Respondents’
joint motion to dismiss said paragraphs of the amended con-
solidated complaint.13
With regard to the Respondents’ joint motion to dismiss
those portions of paragraphs 16(a) and 16(b) of the amended
consolidated complaint, which pertain to the Respondent Al-
vernazes, I note that the Board upheld my May 19, 1997 dis-
missal of paragraphs 17(b) and 17(c). Therein, I stated:

paragraphs 17(b) and (c), of the amended consolidated com-
plaint, which allege that Respondent’ acts and conduct, speci-
fied in paragraph 12(e), as well as unspecified acts and con-
duct since November 1994, constitute unlawful unilateral
changes, are facially time-barred. While counsel for the Gen-
eral Counsel states that these alleged unfair labor practices are
merely “. . . derivative violations relating to the Gissel remedy
sought . . . ,” making it is unnecessary to undertake a Redd-I,
supra, “closely related” type analysis, clearly, the amended
unfair labor practice charges in November 1996 and March
1997, in both of the instant unfair labor practice matters, upon
which these amended consolidated complaint provisions are
13 I also note that the alleged violations of Sec. 8(a)(1) of the Act,
which were committed by the Respondent Alvernazes, were known to
the Acting Regional Director of Region 20 as of July 27, 1995, the date
of his dismissal letter in Case 20–CA–26685. Presumably, then, the
Union was aware of such, or should have been aware of such, prior to
that date.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1460
based, were not timely filed as to these issues, and counsel
cited no case in support of her argument. Therefore, para-
graphs 17(b) and (c) are, indeed, time-barred unless closely
related to the original unfair labor practice charge in Case 20–
CA–26685,14 and, in agreement with Respondents, I believe
that they are not. Thus, not only are the allegations based
upon different sections of the Act but also different defenses
will be asserted,15 utterly different legal theories are involved,
and it can not be asserted that the acts and conduct, underlying
the Section 8(a)(1) and (5) allegations, have anything to do
with Respondents’ asserted unlawful campaign to dissuade its
employees from supporting the Union. While, in Overnight
Transportation Co., 296 NLRB 669 (1989), the Board did
find that amended complaint Section 8(a)(1) allegations were
closely related to 8(a)(5) allegations in a timely unfair labor
practice charge, the Board viewed them as arising out of the
same sequence of events in that the employer’s “alleged bad
faith at the bargaining table was a continuation and manifesta-
tion of its alleged coercive statements and interrogations.”

The same analysis applies to those portions of paragraphs 16(a)
and 16(b), which concern the Respondent Alvernazes, and I
shall recommend dismissal of said paragraphs of the amended
consolidated complaint.16
IV. THE ISSUES
Initially, of course, the amended consolidated complaint alleges
that Respondent Canned Foods and the Grass Valley Grocery
Outlet, whose operators were, until on or about April 17, 1995, the
Respondent Alvernazes and have been, since on or about April 18,
1995, the Respondent Cubitts, constitute a single-employer. With
regard to Respondent Canned Foods and the Grass Valley Gro-
cery Outlet as a single-employer, the amended consolidated com-
plaint alleges that, acting through the Respondent Cubitts, Re-
spondent Canned Foods and the Grass Valley Grocery Outlet
refused to hire Marilyn Reider and Deborah Tahir and assigned
more onerous duties to, changed the work schedule of, and caused
Sharlene Sutton to voluntarily quit in violation of Section 8(a)(1)
and (3) of the Act. Further, the amended consolidated complaint
alleges that, acting through the Respondent Cubitts, Respondent
Canned Foods and the Grass Valley Grocery Outlet unilaterally
granted to its employees, who opposed the Union, raises, addi-
tional vacation time, manager awards, cash awards, and the oppor-
tunity to work overtime in violation of Section 8(a)(1) and (3) of
the Act; threatened its employees with discharge, threatened to
call the police on its employees and generally harassed them, and
interrogated its employees in violation of Section 8(a)(1) of the
Act; forcibly shoved a Union representative in violation of Section
8(a)(1) of the Act; and solicited its employees to sign a petition

14 As with the above-discussed 8(a)(1) and (3) violation allegations,
the 8(a)(1) and (5) violation allegations of the amended charges in Case
20–CA–26812 are, in no way, closely related to the single, isolated
incident, which is the subject of the original charge.
15 Respondents contend that the Union waived its right to file an un-
fair labor practice charge over the alleged unlawful unilateral changes--
a defense not available in the refusal to hire allegation.
16 Inasmuch as this paragraph pertains to the bargaining order rem-
edy, which is sought by counsel for the General Counsel, I shall deny
the motion to dismiss portions of paragraph 7.
denouncing employees’ union activities in violation of Section
8(a)(1) of the Act. The amended consolidated complaint alleges
that the Union attained majority status amongst an appropriate unit
of Respondent Canned Foods’ and the Grass Valley Grocery Out-
let’s employees on or about November 1, 1994, or alternatively,
on or about April 20, 1995, and counsel for the Acting General
Counsel requests a bargaining order as the appropriate remedy for
the above-described unlawful acts and conduct, which are attrib-
uted to Respondent Canned Foods and the Grass Valley Grocery
Outlet. In accord with said request, the amended consolidated
complaint asserts that, acting through the Respondent Cubitts,
Respondent Canned Foods’ and the Grass Valley Grocery Outlet’s
above-described unilateral acts and conduct and their implementa-
tion of a retirement plan for the employees were violative of Sec-
tion 8(a)(1) and (5) of the Act. Respondent Canned Foods, the
Respondent Alvernazes and the Respondent Cubitts deny they
comprise a single-employer and deny the commission of any of
the alleged unfair labor practices.17
With regard to Case 20–RC–17087, besides the merits of ob-
jections to the conduct of a representation election, which was
held on June 12, 1995, and which closely parallel the allega-
tions of the amended consolidated complaint, challenges to the
ballots of two individuals, Joan Cramer and Peggy Arnold,
were contested during the instant hearing. Concerning Cramer,
the Union contends that she was not an eligible voter inasmuch
as she voluntarily terminated her employment prior to the day
of the election; while the Respondent Cubitts contends that she
was an employee as of the date of the election but was on a
medical leave of absence. As to Peggy Arnold, the Union con-
tends that she was not an eligible voter as she was, and remains,
a supervisor within the meaning of the Act. The Respondent
Cubitts deny that she was a statutory supervisor.
V. THE SINGLE-EMPLOYER ISSUE
A. Overview
The consolidated amended complaint alleges that Respondent
Canned Foods and the Grass Valley Grocery Outlet constitute a
single-employer. Under the Board’s rulings, a single-employer
relationship exists whenever “nominally separate entities are actu-
ally part of a single-integrated enterprise so that, for all purposes
. . . there is, in fact, only a `single-employer.’” Geo V. Hamilton,
Inc., 289 NLRB 1335, fn. 2 (1988). In other words, there is the
absence of the “arms length relationship found among uninte-
grated companies.” Operating Engineers Local 627 v. NLRB, 518
F.2d 1040, 1045–1046 (D.C. Cir. 1975), affd. on this issue sub
nom. South Prairie Construction Co. v. Operating Engineers
Local 627, 425 U.S. 800 (1976). In assessing whether or not a
single-employer relationship exists, the Board’s normal inquiry
focuses on four aspects of the relationship between ostensibly
separate entities: interrelationship of their operations, common
management, centralized control of their labor relations, and
17 As I have dismissed the allegations of the amended consolidated
complaint, which specifically pertain to them, the liability of the Re-
spondent Cubitts for any unfair labor practices, which may have been
committed by the Respondent Cubitts herein, depends upon the exis-
tence of a single-employer relationship between Respondent Canned
Foods, the Respondent Cubitts, and the Respondent Alvernazes.
GRASS VALLEY GROCERY OUTLET 1461
whether there is common ownership or financial control. Televi-
sion Artists AFTRA Local 1264 v. Broadcast Service of Mobile,
380 U.S. 255, 256–257 (1965); Cal Spas, 322 NLRB 41, 45 fn. 5
(1996); Pathology Institute, 320 NLRB 1050, 1054 (1996).
“None of these factors, alone, is controlling, nor need all of them
be present, as single-employer status ultimately depends on all the
circumstances of the case.” Richmond Convalescent Hospital,
313 NLRB 1247, 1249 (1994); Hydrolines, Inc., 305 NLRB 416,
417 (1991). Nevertheless, “the Board has determined that the first
three factors are of particular importance, especially the central-
ized control of labor relations, which factor is “considered critical
to a single-employer finding.” Richmond Convalescent Hospital,
supra; Alabama Metal Products, 280 NLRB 1090 fn. 1 (1986);
Western Union Corp., 224 NLRB 274, 277 (1976), affd. sub nom.
Telegraph Workers v. NLRB, 571 F.2d 665 (D.C. Cir. 1978), cert.
denied 439 U.S. 827 (1978).18 Finally, the fundamental purpose
for the inquiry is to determine “whether there exists overall control
of critical matters at the policy level.” Good Life Beverage Co.,
312 NLRB 1060, 1072 (1993).
At the outset, the record establishes that Respondent Canned
Foods, which was founded by James Read, is a family-owned
corporation operated by Read’s sons, Peter and Steven; that its
corporate offices are located in Berkeley, California; that it is
engaged in the business of providing consignment services to
national suppliers of canned foods and other grocery-related
products by purchasing and selling the manufacturers’ off qual-
ity products, close-outs, aged products, discontinued merchan-
dise, and products which “for one reason or another do not
meet the quality or packaging specifications of the manufac-
turer;”19 that these products are sold at reduced prices,20 to the
public through a network of retail consignment stores, known
as grocery outlets;21 and that Respondent Canned Foods cur-
rently has approximately 109 grocery outlets located in the
western United States. The record further establishes that an
entity, known as the Grass Valley Grocery Outlet, does not

18 With regard to centralized control of labor relations, in Speedee 7-
Eleven, 170 NLRB 1332, 1334 (1968), the Board noted that “it is im-
material whether this control be actually exercised so long as it may
potentially be exercised by virtue of the agreement under which the
parties operate.” Further, on this point, quoting from Royal Typewriter
Co. v. NLRB, 533 F.2d 1030, 1043 (8th Cir. 1976), in Pathology Insti-
tute, supra at 1063, the administrative law judge, whose decision, as to
single-employer status, was adopted by the Board, wrote, “`In assessing
the appropriateness of single-employer treatment, the fact that day-to-
day labor matters are handled at the local level is not controlling,’ be-
cause the `more critical test is whether the controlling company pos-
sessed the present and apparent means to exercise its clout in matters of
labor negotiations by its divisions or subsidiaries.’”
19 These products include canned foods, frozen foods, deli and pro-
duce items, household items, and health and beauty aides.
20 David Cubitt explained that, as “the manufacturer wants to get rid
of it,” Respondent Canned Foods obtains its grocery items at a reduced
cost from manufacturers. The products are further discounted by Re-
spondent Canned Foods and sold at 25 to 40 percent below their normal
cost. The products and prices are not advertised except within the
individual grocery outlets.
21 The Respondent Canned Foods’ distinctive logo sign, a multi-
hued rainbow and the words, grocery outlet, is prominently displayed at
the front of each grocery outlet, including the facility in Grass Valley.
exist. Thus, the name, Grass Valley Grocery Outlet, is the ficti-
tious name, under which the Respondent Alvernazes did busi-
ness while they operated the grocery outlet in Grass Valley,
and, when the Cubitts became the operators of the business,
they also registered a fictitious name with the State of Califor-
nia, under which they have done business—GV Grocery Outlet.
The building itself is an old Safeway building, which Respon-
dent Canned Foods leases from the building’s owner and which
bears a multi colored rainbow sign, which is common to other
of Respondent Canned Foods’ grocery outlet stores and which
reads “Grocery Outlet.” Almost all of Respondent Canned
Foods’ grocery outlets, including the grocery outlet in Grass
Valley, are managed by persons, known as operators,22 and
there is no dispute that these individuals invariably are married
couples or have some other familial relationship23 and that,
upon accepting Respondent Canned Foods’ offer to become
operators of a grocery outlet, the new operators enter into a
lengthy store operator agreement with the former.24
As to the operators herein involved, Deborah and Thomas
Alvernaz were married while both worked for the former’s
parents, who were the operators of a Respondent Canned Foods
grocery outlet in Chula Vista, California. In 1986, Deborah’s
22 Apparently Respondent Canned Foods itself owns and manages
the three facilities at which its employees are represented by a labor
organization.
23 This seems to be a Respondent Canned Foods requirement for
grocery outlet operators. Thus, when questioned on the subject, Rita
Jeannie Calkins, a director for Respondent Canned Foods responsible
for personnel development, admitted that, if not married, operators have
some family relationship.
24 The respective store operator agreements, into which the Respon-
dent Alvernazes and the Respondent Cubitts entered into with Respon-
dent Canned Foods for operation of the latter’s grocery outlet in Grass
Valley, are virtually identical. Said agreements obligate the Respon-
dent Alvernazes and the Respondent Cubitts to devote their “full time
to operating” the grocery outlet in Grass Valley. Further, each agreed
“not to transfer, assign, sell, mortgage, or convey Operator’s rights
hereunder without the written consent of [Respondent Canned Foods],”
and neither agreement gives the Respondent Alvernazes or the Respon-
dent Cubitts ownership of a grocery outlet or the right to sell the
Canned Foods’ products. Rather, according to Deborah Johnston-
Kindel and David Cubitt, what ownership interest an operator possesses
is in the grocery outlet’s fixtures, including refrigeration units, and
equipment, including shopping carts, cash registers, and the like, mate-
rials which the operator must purchase to operate a grocery market.
These items are purchased by the new operator either from the prede-
cessor operator or outside vendors, with the new operator bearing the
cost of the said items out of its own funds or through financing by
Respondent Canned Foods and Wells Fargo Bank, which financing is
arranged by Respondent Canned Foods in a manner discussed infra.
Moreover, as will also be fully discussed infra, the store operator
agreements mandate that “the employees at the Store shall be the Op-
erator’s employees and not those of [Respondent Canned Foods].”
Significantly, the Respondent Alvernazes’ and the Respondent Cubitt’s
respective store operator agreements give Respondent Canned Foods
the right to terminate, with or without fault, with 60 days’ notice or
immediately, without notice, in the case of the operator’s default. For
both the Respondent Alvernazes and the Respondent Cubitts, an aspect
of default is defined as vaguely as “circumstances within Operator’s
control . . . which in [Respondent Canned Foods’] judgment create
antagonism between [the former] and Operator .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1462
parents became the operators of the Respondent Canned Foods
grocery outlet in San Pablo, California, and the Respondent
Alvernazes followed her parents and continued working for
them. Then, in 1990, Respondent Canned Foods gave the Re-
spondent Alvernazes the opportunity to become operators of a
new grocery outlet in Grass Valley, and they accepted,25 even-
tually doing business under the fictitious name, Grass Valley
Grocery Outlet. The Respondent Cubitts, a married couple,
were residents of Yuca Valley, California, where David Cubitt
owned a clothing store and worked as the assistant manager at
Respondent Canned Foods’ grocery outlet in that city. Aware
that the grocery outlet’s operators, a married couple, desired to
move and to operate a grocery outlet elsewhere, Cubitt in-
formed Respondent Canned Foods that his and his wife were
interested in having their own store. Thereafter, they were
solicited by Respondent Canned Foods regarding becoming the
operators of the Yuca Valley grocery outlet; the Respondent
Cubitts agreed and eventually purchased the facility’s fixtures
and equipment from the former owners for in excess of
$160,000, using their own funds and loans from Wells Fargo
Bank and from Respondent Canned Foods. According to Deb-
orah Johnston-Kindel, her marriage to Thomas Alvernaz ended
in divorce, and they informed Respondent Canned Foods that
“we were selling the store and [the former] took care of it.”26
Respondent Canned Foods did so by soliciting the Respondent
Cubitts to move to Grass Valley and be the operators of its
grocery outlet in that city. After visiting Grass Valley and in-
specting the facility, the Cubitts accepted, negotiated the pur-
chase price of the grocery outlet’s fixtures and equipment with
the Respondent Alvernazes, and entered into a store operator
agreement, becoming the operators of Respondent Canned
Foods’ grocery outlet in Grass Valley. Since April 18, 1995, as
did the Respondent Alvernazes, the Respondent Cubitts have
operated the business under a fictitious name—GV Grocery
Outlet.27

25 According to Deborah Johnston-Kindel, in order to finance the
purchase of the fixtures and equipment, which are necessary for the
operation of a grocery outlet, she and her husband made a down pay-
ment of $10,000 and secured loans for the remainder of the fixtures and
equipment cost from Respondent Canned Foods and Wells Fargo Bank.
26 Whether the Respondent Alvernazes voluntarily sold their opera-
tor’s interest in the Grass Valley grocery outlet or were forced to do so
by Respondent Canned Foods is a matter of dispute. While such was
denied by Deborah Johnston-Kindel, Marilyn Reider testified that, with
tears in her eyes, Johnston-Kindel informed employees that it was “a
big surprise to her” that she and her husband had to move. Further,
former employee, Carma Lawson, testified that Johnston-Kindel in-
formed her that Respondent Canned Foods had placed the Respondent
Alvernazes on probation due to their divorce and that Robert Tiernan,
who was the Respondent Alvernaz’ attorney during 1994, told her that,
while the Respondent Alvernaz’ probation had ended, Respondent
Canned Foods had decided “to bring in new operators to the store.”
Neither Tiernan nor Johnston-Kindel denied Lawson’s testimony.
27 David Cubitt conceded that, if Respondent Canned Foods termi-
nated the operator agreement and withdrew its product, he would no
longer be able to do business at the grocery outlet location. However,
he testified that, inasmuch as he and his wife own the interior fixtures
and equipment, they rightfully could open another grocery market,
utilizing the fictitious business name, GV Grocery Outlet.
Counsel for the Acting General Counsel argues that a single-
employer relationship exists herein and that such encompasses
Respondent Canned Foods and the Grass Valley Grocery Out-
let. In so arguing, counsel dismisses any such relationship
between Respondent Canned Foods and the Respondent Alver-
nazes or the Respondent Cubitts as “there is in actuality no true
ownership of the store by the operators.” However, contrary to
counsel, there is no record evidence that an entity, known as the
Grass Valley Grocery Outlet, actually exists; rather, as stated
above, such was the fictitious name under which the Respon-
dent Alvernazes did business in Grass Valley, California, while
working as the operators of the grocery outlet store in that city.
Moreover, in my view, rather than ownership,28 the central
issue, regarding the Respondent Alvernazes and the Respon-
dent Cubitts, is whether, as operators, they fall within the defi-
nition of an employer within the meaning of Section 2(2) of the
Act. Further, counsel for the Acting General Counsel failed to
posit an alternate theory—that, notwithstanding the terms of
their respective store operator agreements, the successive op-
erators of the grocery outlet in Grass Valley, the Alvernazes
and the Cubitts, are agents or employees of Respondent Canned
Foods, and, therefore, the latter is the true employing entity of
the bargaining unit employees, who are working at the grocery
outlet. Accordingly, my legal analysis shall be confined to
what is alleged in the amended consolidated complaint and
argued by counsel for the Acting General Counsel—the exis-
tence of single-employer status comprising Respondent Canned
Foods and some other employing entity. In my view, given
their store operator agreements, as the respective relationships
between the Respondent Alvernazes and the Respondent Cu-
bitts and Respondent Canned Foods appear to be identical, if
single-employers exist in these factual circumstances, they
must encompass Respondent Canned Foods and the Respon-
dent Alvernazes on one hand and Respondent Canned Foods
and Respondent Cubitts on the other.29 In arguing against a
finding of single-employer status, counsel for Respondent
Canned Foods likewise concentrates upon these relationships
and argues that the Respondent Alvernazes and Respondent
Canned Foods and the Respondent Cubitts and Respondent
Canned Foods always acted independent of each other and not
28 I do not believe that the Respondent Alvernazes or the Respondent
Cubitts are sole proprietors of a business. The fourth edition of Black’s
Law Dictionary defines a proprietor as “one who has the legal right or
exclusive title to anything. In many instances it is synonymous with
ownership.” Herein, other than ownership interest in the store fixtures
and equipment, neither the Respondent Alvernazes nor the Respondent
Cubitts own the grocery outlet store, the right to sell Respondent
Canned Foods’ consigned merchandise, or the merchandise itself, and
neither may convey its rights as the operators of the grocery outlet to
any other entity without the written assent of Respondent Canned
Foods. In these circumstances, it can not be said that either the Re-
spondent Alvernazes or the Respondent Cubitts actually owned the
business performed at the grocery outlet in Grass Valley.
29 I do not believe, nor is there any record evidence supporting such
a contention, that Respondent Canned Foods, the Respondent Alver-
nazes, and the Respondent Cubitts together constitute a single-
employer.
GRASS VALLEY GROCERY OUTLET 1463
in an integrated manner suggestive of a single-employer rela-
tionship.30
As previously stated, it seems clear to the undersigned that a
prerequisite to finding a single-employer relationship is a finding
that each nominally separate entity is an employer within the
meaning of the Act. While the term “employer” is among those
set forth in the “Definitions” subsection of the Act, Section 2(2)
contains no test or specifications for determining whether an entity
falls within the above section’s provisions. As noted by the Su-
preme Court, in NLRB v. E.C. Atkins & Co., 331 U.S. 398, 403
(1947), this omission was a deliberate choice of Congress “so the
Board, in performing its delegated functions of defining and ap-
plying . . . terms . . . [might] bring to its task an appreciation of
economic realities as well as a recognition of the aims which
Congress sought to achieve by [the Act].” The Board has per-
formed this delegated function, and, in Roane-Anderson Co., 95
NLRB 1501, 1503 (1951), set forth the following test for an em-
ploying entity under the Act:

The decisive elements in establishing an employer-employee
relationship are complete control over the hire, discharge, dis-
cipline, and promotion of employees, rates of pay, supervi-
sion, and determination of policy matters.

Indeed, the control need not even be absolute nor exclusive, for
control over significant aspects of the employment relationship,
sufficient to enable the possessor to bargain effectively con-
cerning these matters, suffices to establish an employment rela-
tionship and, therefore, employer status under Section 2(2) of
the Act. Sun Maid Growers of California, 239 NLRB 346
(1978). Put another way, an entity is an employer, within the
meaning of Section 2(2), if it possesses or “retains sufficient
control over the employment conditions of its employees to
enable it to bargain with a labor organization as the representa-
tive of its employees.” Open Taxi Lot Operation, 240 NLRB
808, 809 (1979). Herein, inasmuch as it engages in collective-
bargaining with another affiliated local union of the United
Food & Commercial Workers International Union for agree-
ments, covering employees at three grocery outlets, which it
operates, Respondent Canned Foods clearly is an employer
within the meaning of Section 2(2) of the Act. Moreover,
based upon the language of their respective store operator
agreements, as the Respondent Alvernazes were and the Re-
spondent Cubitts are responsible for the hiring, training, super-
vision, direction, discipline, compensation (wages and bene-
fits), and termination of the bargaining unit employees at the
grocery outlet in Grass Valley, both operators clearly were, and

30 Counsel for Respondent Canned Foods argues that “the critical—
and undeniable—fact is that the [Respondent Cubitts] have their own
business.” While, as discussed below, they do pay all the operating
expenses, property taxes on the fixtures, liability insurance and insur-
ance covering the fixtures and while they certainly operate a business,
the Respondent Cubitts actually own nothing but the fixtures and the
equipment. They do not own the grocery outlet in Grass Valley nor do
they own the right to act as operators. As David Cubitt admitted, if
Respondent Canned Foods terminated the store operator agreement and
withheld any more product, he and his wife would have to remove the
fixtures and equipment from the grocery outlet building and would
have no business to operate.
are, able to engage in collective bargaining with a labor organi-
zation, which represents said employees.31 In these circum-
stances, both operators must be considered employers within
the meaning of Section 2(2). Therefore, my analysis of the
factors, determinative of a single-employer, shall concentrate
upon the relationships between Respondent Canned Foods and
the Respondent Alvernazes and between Respondent Canned
Foods and the Respondent Cubitts.
B. The Interrelationship of Operations
The record reveals, and there is no dispute that Respondent
Canned Foods owns the grocery-related products, which are con-
signed for sale through its grocery outlets, including the Grass
Valley outlet. More particularly, at said facility, the Respondent
Cubitts, as did the Respondent Alvernazes prior to them, must
obtain all of their merchandise from Respondent Canned Foods
and can only sell items supplied by the latter.32 In this regard,
according to the respective store operator agreements, which the
Respondent Alvernazes and the Respondent Cubitts executed
before becoming operators of the grocery outlet in Grass Valley,
the Respondent Alvernazes were and the Respondent Cubitts are
obligated to adhere to “the required sales methods and distribution
procedures used in [Respondent Canned Foods’] stores.” Further,
“the character, quantity, storage, display, price, and merchandising
of Merchandise shall be as determined by [Respondent Canned
Foods] . . . ” and operators are expected to adhere to Respondent
Canned Foods’ marketing programs. Additionally, operators,
including the Respondent Alvernazes and the Respondent Cubitts,
are required to transmit daily sales reports to Respondent Canned
Foods in a format, which is required by the latter, and on a daily
basis, are required to transmit 87.5 percent of the nonalcohol and
85 percent of the alcohol sales proceeds to Respondent Canned
Foods in the manner established by the latter. These sales pro-
ceeds transmittals are made on a daily basis from the operators’
business bank accounts, and each operator must arrange for the
means of a daily dispersal of funds to Respondent Canned Foods.
Finally, according to David Cubitt, Respondent Canned Foods’
products come to the grocery outlets “on consignment and I pay
[the latter] when I sell it.”
Cubitt testified that he orders grocery-related items from a
Respondent Canned Foods order guide approximately three
times a week, with deliveries made to the grocery outlet in
Grass Valley twice a week. On this point, Deborah Johnston-
Kindel testified that Respondent Canned Foods establishes a
maximum amount of each item. Also, while it appears that
operators are able to order products in any mix and that the
product mix is determined by consumer demand, Cubitt and
31 I note, in this regard, that, inasmuch as the Union demanded that
the Respondent Alvernazes and, later, the Respondent Cubitts recog-
nize and bargain with it on behalf of the grocery outlet’s employees, the
former obviously believed that the Respondent Alvernazes and the
Respondent Cubitts employed said employees and were able to engage
in collective bargaining.
32 David Cubitt and Deborah Johnston-Kindel each testified that they
can obtain items, such as ice,bread, chips, and crackers, from outside
vendors. However, it is Respondent Canned Foods, which contracts for
the products of the outside vendor, not the store operators, and which
pays for the product and then bills the operators.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1464
Johnston-Kindel each testified that items, which had not been
ordered, appear on delivery trucks and that Respondent Canned
Foods forces the operators to accept these items and expects the
operators to sell them. With regard to the pricing the merchan-
dise for sale at the grocery outlet, Johnston-Kindel and David
Cubitt contradicted each other as to adhering to Respondent
Canned Foods’ pricing requirements. The latter stated that all
prices were “suggested” prices by Respondent Canned Foods;
while Johnston-Kindel testified that operators were required to
adhere to the former’s prices and could only change prices with
the permission of Respondent Canned Foods. Further, Respon-
dent Canned Foods allocates some products among its grocery
outlets. According to David Cubitt, an allocated product “. . . is
a product that everybody wants and there is not enough to go
around. So, they allocate it so you can only get a certain
amount of it.” Also, while merchandise may be transferred
from one grocery outlet to another with such product transfers
initiated by the outlet operators, they are required to complete
transfer forms in order to enable Respondent Canned Foods to
maintain control of its product inventory. Further, according to
the respective store operator agreements of the Respondent
Alvernazes and the Respondent Cubitts, operators are required
to “. . . maintain controls and keep timely and accurate records
of all sales, returns, inventories, and other information required
by [Respondent Canned Foods],” and Respondent Canned
Foods retains “. . . the right to review, inspect, audit and copy
Operator’s records at any reasonable time.” Inventories may be
conducted at any time, but usually are done on a quarterly ba-
sis, with Respondent Canned Foods bearing the cost. Besides
inspections and audits, Respondent Canned Foods requires that
its outlet operators keep track of inventory, utilizing systems
designed by it. Thus, operators are required to maintain forms,
such as “pinks” and “yellows.” The former are used by opera-
tors to report unsalable merchandise and to advise Respondent
Canned Foods what the operator has done with the product;
while the latter are used by Respondent Canned Foods to advise
operators when products require special handling or need in-
spection.
Finally, with regard to interrelation of operations, I note that
Respondent operates separate training programs for potential op-
erators, called operator enhancement, and managerial personnel,
called key person development, which are collectively known as
Canned Foods University (CFU). The record establishes that,
during the training sessions, those, who attend, are given training
manuals, filled with various documents relating to position re-
quirements, inventory management and control, merchandising,
store operations, employee relations, and other matters, and that
the manual documents are used as teaching tools. There is no
question that, as Calkins testified, the enclosed documents, which
relate to inventory tracking procedures, such as copies of the so-
called “pinks” and “yellows,” are utilized by grocery outlet opera-
tors in the day-to-day operation of their outlets; however, David
Cubitt was uncontroverted that he and his wife treated other CFU
handouts “just like a booklet that I got in high school. I read it. I
did it. I took the exam and did the class, and I put it away. It was
no more than an educational tool.” 33 Specifically, he denied that
he and his wife utilize CFU manual forms, pertaining to cash
registers and money handling (“We have our own policies and
procedures [regarding cash registers”]); follow CFU manual rec-
ommendations on security (“I put in my own security system. . . . I
did not go over this at all”) or using the CFU manual employee
relations documents or CFU manual employee application or exit
interview forms; or adhere to the Respondent Canned Foods drug
screening program. Other than the foregoing, there is no record
evidence, and no contention, that Respondent Canned Foods and
its grocery outlet operators, including the Respondent Alvernazes
and the Respondent Cubitts, share employees, offices, equipment,
or facilities or have centralized payrolls.
In agreement with counsel for the Acting General Counsel,
analysis of the foregoing discloses a high degree of operational
integration between Respondent Canned Foods and the grocery
outlet’s operators with regard to the quantities, transport, care,
merchandising, control, display, pricing, and sale of the Respon-
dent Canned Foods’ products, which are consigned for sale at the
grocery outlet in Grass Valley. However, most, if not all, of the
above-described operational integration results from the facts that
Respondent Canned Foods owns the products, which are con-
signed for sale at the grocery outlet in Grass Valley, and that the
Respondent Alvernazes and the Respondent Cubitts must sell only
items supplied by Respondent Canned Foods. While, of course,
as witnesses testified, the relationship between Respondent
Canned Foods and the grocery outlet operators is not that of a
franchisor-franchisee, I agree with counsel for Respondent
Canned Foods that the latter model, such as described by the
Board in Teamsters Local 456 (Carvel Corp.), 273 NLRB 516
(1984), Love’s Barbeque Restaurant No. 62, 245 NLRB 78, 91–
94 (1979), and Speedee 7-Eleven, supra, is the closest in degree to
the relationship herein.34 In this regard, I note that the Board
holds “that franchisees who purchase their stock in trade . . . from
their franchisor’s suppliers will not, merely by virtue of their
commitments in that connection, be considered functionally inte-
grated with their franchisor.” Parklane Hosiery Co., 203 NLRB
597, 613 (1973).35 Moreover, assuming arguendo, that the func-

33 Rita Jeannie Calkins echoed Cubitt on this point, saying the man-
ual forms “are in the manual for teaching purposes as samples or exam-
ples. This is a template, this is a start. And then, you go from there.
. . . [The operators] can use them or not.”
34 I recognize that in the franchisor-franchisee relationship, which
the Board does not consider to be a single-employer relationship when
the franchisor has and exercises no control over the franchisee’s labor
relations practices, the franchisee normally pays a fee to the franchisor
and, arguably, owns his franchise. While such is not present herein and
the operator can not be said to “own” the grocery outlet, which he
operates, in numerous other respects, including source of products,
financial arrangements, and compliance with practices and policies,
there do not appear to be many operational differences between the
relationships.
35 In Teamsters Local 456 (Carvel Corp), supra, which involved a
labor dispute between a labor organization and a licensor and an al-
leged violation of Sec. 8(b)(4)(ii)(B) of the Act, the issue before the
Board was whether the licensor’s various licensees were neutral parties
to the labor dispute. In its analysis the Board noted that the licensee
was “heavily dependent” upon the licensor, placing total reliance upon
the latter, which was the exclusive supplier, for its product. The Board
GRASS VALLEY GROCERY OUTLET 1465
tional integration herein exceeds what might be expected from
“truly separate enterprises,” this factor36 “is but one of four as-
pects scrutinized to ascertain if a single-employer relationship
exists,” and “it will not alone confer single-employer status absent
overlap in at least some of the other aspects analyzed.” Pathology
Institute, supra at 1061.
C. Common Management
With regard to management of the grocery outlet, while Re-
spondent Canned Foods requires that the grocery outlets be open
for business 7 days a week and a minimum number of hours per
day and the operator agreements specify the holidays on which the
Grass Valley grocery outlet may be closed, it is left to the opera-
tors to determine the daily opening and closing hours for an outlet.
Further, David Cubitt testified that he and his wife are responsible
for paying the freight charges on all of Respondent Canned Foods’
deliveries to the grocery outlet and that, inasmuch as manufacturer
labeling requirements come with the various grocery items, he and
his wife are required to display and sign the product in accord with
the manufacturers’ wishes and not those of Respondent Canned
Foods. Cubitt added that, while the store operator agreement
mandates that he and his wife “maintain the Store in a fashion
which is satisfactory to [Respondent Canned Foods],” they deter-
mine the “set up” of the outlet;37 that he and his wife are responsi-
ble for withholding taxes from their employees’ wages, maintain-
ing unemployment compensation insurance for their employees,
and paying sales taxes, on all the consigned goods sold at the
grocery outlet, and property taxes, on all their personal property
within the store, out of their own funds; that he and his wife utilize
an accounting firm, which they selected, to perform all accounting
functions, including the payroll, and pay for its services out of
their own funds; that he and his wife are responsible for paying the
cost of all utilities, including water, electric, and trash removal;
and that he and his wife select and pay for the uniforms, which are
worn by their employees. In fact, according to Cubitt, “there is

stated, in this regard, that “it is in the area of integration of operations
and economic interdependence where the licensee is linked most
closely to the [licensor]. Such mutual interdependence, necessary for
the economic survival of both parties is characteristic of franchise
operations. However, the level of . . . functional integration here does
not lead to the conclusion that the licensee has . . . lost its neutral status
. . . .” Id. at 519–520.
36 I note that the payment procedures, described by the Board in
Speedee 7-Eleven, supra, are not dissimilar to that which exist herein.
Thus, in Speedee 7-Eleven, on a daily basis, the franchisee was required
to deposit all cash proceeds into the franchisor’s bank account, and the
franchisor received 55 percent of the adjusted gross profits of the fran-
chisee. Id. at 1332. Moreover, as herein, in Carvel Corp., supra, there
were restrictions upon the licensee’s right to sell his business.
37 Cubitt further testified, “If you go into a Grocery Outlet store
anywhere, none of them are set up the same because . . . merchandising
is up to the person. As far as Canned Foods saying how you display it
on the shelves . . . that is mostly up to the operator.” He added that,
while Respondent Canned Foods does have “minimum” requirements
for merchandising, “it depends on the person, it depends on the store,
how high you put the store. Some stores don’t have shelving. Some
stores are on the floor.”
not one thing that [Respondent Canned Foods] pay[s] for” in the
operation of the business.38
On this latter point, Deborah Johnston-Kindel echoed Cubitt,
testifying that she and her former husband paid all their operating
expenses from their business bank account and were never reim-
bursed for any losses. Also, Cubitt noted that representatives of
Respondent Canned Foods have visited the grocery outlet “no
more than six times in the entire two years and nine months” he
and his wife have operated their outlet.39 As to insurance, while
Respondent Canned Foods pays for the cost of property insurance
over the building, fire and damage insurance coverage for the
merchandise and property insurance coverage on any frozen food
equipment, which is jointly owned with an operator,40 in a grocery
outlet, David Cubitt testified that, in accord with their operator
agreement, he and his wife pay for insurance coverage on the
facility’s fixtures and for property liability insurance. Further, the
Respondent Cubitts have their own Federal tax identification
number and their own unemployment compensation insurance
account.
There is no record evidence that Respondent Canned Foods’
representatives have any role in day-to-day operation of the
grocery outlet store in Grass Valley, California. However,
there is substantial record evidence that Respondent Canned
Foods plays the dominant role in the selection of operators for
its grocery outlet stores, including the Grass Valley facility.
Initially, it is clear that Respondent Canned Foods prefers, and
normally selects, only married couples as its operators. Thus,
Jeannie Calkins conceded that, “for the most part,” the grocery
outlet operators are married couples, and, according to Jonathan
Wooldridge, who worked for the Respondent Alvernazes as a
manager during their tenure as the operators of the grocery
outlet in Grass Valley, while attending CFU, he was informed
by Calkins “that [Respondent Canned Foods] preferred . . . .
married couples” as managers. Next, the record evidence is
that Respondent Canned Foods maintains a training program
for prospective operators, what it terms “cross pollination,” and
monitors their progress. Cross pollination is defined as the
“temporary exchange of store personnel for the purpose of in-
38 In particular, Cubitt testified that, upon becoming the operators of
the grocery outlet in Grass Valley, he and his wife inspected the light
fixtures inside the facility and “contracted with a lighting company and
changed out all [the] neon tubes . . . at a cost of $21,000,” which sum
was paid out of their personal funds.
39 Johnston-Kindel testified that Respondent Canned Foods represen-
tatives would visit the grocery outlet in Grass Valley “about once a
month . . . to make sure the place looked like a Canned Foods store, in
their image.”
avid Cubitt testified that these visits to the grocery outlet in Grass
Valley are by Respondent Canned Foods’ district operations managers,
who travel to the outlets and discuss “the way the product is handled
and how it is displayed and how it is stacked.” Cubitt added that, if the
grocery outlet is not being operated in compliance with Respondent
Canned Foods’ “minimum standards,” the district manager and the
operator “discuss why you do it this was and he would discuss why he
did it that way, or why he suggest you do it that way. And you would
come to an agreement. . . . But, as far a cut and dry, no.”
40 There is no dispute that Respondent Canned Foods and the Re-
spondent Cubitts jointly own some of the refrigeration equipment in the
grocery outlet in Grass Valley.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1466
dividual training and exposure to new ideas.” In practice, what
the term means, what the training program for prospective op-
erators entails, and what Respondent Canned Foods requires, is
the movement of married couples from grocery outlet to gro-
cery outlet in order to gain experience in various positions be-
fore consideration of them for operator positions. Thus, Gerald
Davenport was an employee at the grocery outlet in Grass Val-
ley for the Respondent Alvernazes, and, after he expressed
interest in becoming an operator, the Alvernazes hired his wife.
According to Davenport, Thomas Alvernaz kept them informed
about Respondent Canned Foods’ interest in their progress;
they were required to complete various forms for Canned
Foods; after a while, Jeannie Calkins informed them that they
would have to accept transfer to the Vacaville, California gro-
cery outlet in order to continue their training; and, after trans-
ferring to Vacaville, he and his wife were required to complete
an evaluation questionnaire. Jeannie Calkins described Re-
spondent Canned Foods’ continued monitoring of operator
candidates—“It is monitoring their training that they under-
stand every aspect of running the grocery outlet and our rela-
tionship. . . . I monitor their training, but I don’t advance them.”
She added, “I talk to the operators about their evaluations of
these people.”
The record reveals that the operators themselves play virtu-
ally no role in the operator selection process. Thus, Deborah
Johnston-Kindel testified that, in 1990, representatives of Re-
spondent Canned Foods informed her former husband and her
that the company was opening a grocery outlet in Grass Valley
and asked if they wanted to become the operators of that facil-
ity. Johnston-Kindel further testified that, five years later and
after she and her former husband became divorced, although
not required by Respondent Canned Foods, they decided to
resign as operators of the grocery outlet and that Respondent
Canned Foods ultimately “took care of it.”41 In this regard,
according to Jonathan Wooldridge, Thomas Alvernaz told him

41 Counsel for the Acting General Counsel asserts that the Respon-
dent Alvernaz’ departure from the facility was “initiated and orches-
trated” by Respondent Canned Foods. In support, alleged discrimina-
tee, Marilyn Reider, testified that, in January 1995, the Alvernazes
spoke to small groups of employees, informing them that new “owners”
would be coming but that they did not know who and that it was “a big
surprise . . . they were having to move so soon.” Carma Lawson, who
worked at the grocery outlet from November 1993 through June 1996,
testified that, in early 1995, the Alvernazes told her and other employ-
ees that they were becoming divorced and that, as Respondent Canned
Foods wanted the operators to be married, they were “on a probation
period.” She further testified that attorney Robert Tiernan subsequently
told her that the Alvernaz’ probation period had ended but that Respon-
dent Canned Foods had decided “to bring in new operators to the
store.” That Respondent Canned Foods had forced the Respondent
Alvernazes to leave the grocery outlet in Grass Valley was specifically
denied by Deborah Johnston-Kindel, and she also denied telling any
employee either that their leaving was unexpected or that they had been
placed on probation by Respondent Canned Foods. Her testimony was
corroborated by Jonathan Wooldridge, who worked at the store during
the Respondent Alvernaz’ entire tenure as operators and was a manager
in April 1995. He testified that Thomas Alvernaz told him that he and
his wife were leaving “because [they] were going to divorce.” For
reasons discussed infra, I place no reliance upon Lawson’s testimony
on this point.
that “. . . he was waiting for another couple to be chosen by
Canned Foods to take over the store,” and Johnston-Kindel
admitted that she was not aware that the Respondent Cubitts
would be the new operators of the grocery outlet until informed
of such by Respondent Canned Foods. David Cubitt testified
that he and his wife were happy in Yuca Valley and not inter-
ested in moving but that, in February, Mike Huppert, the head
of the operations department for Respondent Canned Foods,
telephoned and asked if the Cubitts would be interested in mov-
ing to Grass Valley and becoming operators of the grocery
outlet there. They had never heard of Grass Valley, and Hup-
pert invited them to go to Grass Valley and inspect the outlet
and the area. Huppert added that he was considering two other
married couples for the Grass Valley grocery outlet. After
visiting Grass Valley, the Cubitts telephoned Huppert and ex-
pressed interest in moving to Grass Valley. A week or two
later, Huppert called back, said, after speaking to the two other
candidates, he was offering the Grass Valley location to the
Cubitts, and gave them just 2 days to decide. As with the Re-
spondent Alvernazes, the Respondent Cubitts played no role in
selecting the married couple, who became the new operators in
Yuca Valley. Thus, David Cubitt admitted that Respondent
Canned Foods located the new operators of the Yuca Valley
grocery outlet without any assistance from the Respondent
Cubitts.42
In summation, as is not the case in most of the single-employer
cases, upon which counsel for the Acting General Counsel relies,
there is no record evidence of any stockholder, director, or mana-
gerial overlap in the operation of Respondent Canned Foods and
of its grocery outlets, including the grocery outlet in Grass Valley.
Simply stated, the Respondent Alvernazes were and the Respon-
dent Cubitts are the highest level of management at the grocery
outlet in Grass Valley. Moreover, while it is true that single-
employer determinations focus upon “control of critical matters at
the policy level” and that operators must manage their grocery
outlets in a manner, which is satisfactory to Respondent Canned
Foods, the record evidence herein is that the Respondent Cubitts,
as were the Respondent Alvernazes before them, on a daily basis,
are allowed to operate the grocery outlet in Grass Valley with
significant autonomy and that there is no active or actual control
by Respondent Canned Foods over the daily management of the
business. Thus, the Respondent Alvernazes and the Respondent
Cubitts determine what products to order from Respondent
Canned Foods and the merchandising of the product, set up the
store as they wish, establish the hours during which the grocery
outlet is open each day, pay property taxes on the grocery outlet’s
fixtures, pay the cost of utilities, liability insurance, and insurance
on the fixtures, have Federal and state tax identification numbers,
and decide on staffing levels and job classifications. Finally,
while the record evidence is clear that Respondent Canned Foods

42 Counsel for the Acting General Counsel asserts that common
management of the Respondent Canned Foods’ grocery outlets is di-
rected by Mike Huppert and the company’s operations department.
Indeed, while there is, of course, considerable evidence that Respon-
dent Canned Foods controls the selection process for operators, there is
no record evidence to establish that the Respondent Canned Foods
operations department controls the day-to-day management of the
grocery outlets.
GRASS VALLEY GROCERY OUTLET 1467
does, in fact, determine the types of individuals who become the
operators of the grocery outlets, establish and supervise the train-
ing program for prospective operators, and effectively control the
selection of operators for new grocery outlets or for existing stores
at which operators have terminated their store operator agree-
ments, I do not believe that such negates the relative autonomy,
with which the operators manage their grocery outlets on a daily
basis.
D. Centralized Control of Labor Relations
Two identical provisions of the respective store operator
agreements, entered into by the Respondent Alvernazes and the
Respondent Cubitts, are pertinent to this aspect of an alleged
single-employer relationship. Section 5(b) of the agreements
provides that the “Operator shall maintain a properly trained
sales force and other employee personnel sufficient in number
to provide efficient, knowledgeable and friendly service to
customers,” and Section 6(a) of the agreements provides:

Employees at the Store shall be Operator’s employees and not
employees of [Respondent Canned Foods]. Operator shall
have the sole, exclusive and complete responsibility for the
hiring, training, supervision, direction, discipline, compensa-
tion (including wages, salaries, and employee benefits) and
termination of all Store employees. Operator has the exclu-
sive right to determine its employee policies and practices.
[Respondent Canned Foods] has no authority to direct or rec-
ommend particular personnel decisions or actions to be made
or taken by Operator.

In these regards, David Cubitt testified, without contradiction,
that, without input from or reporting to Respondent Canned
Foods, he and his wife hire and fire employees; that the former
does not require his wife and him to employ a specific number
of employees or to have particular job classifications for em-
ployees; that Respondent Canned Foods does not mandate what
employment benefits for the grocery outlet’s employees, and he
and his wife decide what benefits, including bonus programs, to
provide without informing the former;43 that he and his wife
assign work to the store employees without reporting to Re-
spondent Canned Foods; and that he and his wife determine the
wage rates of their employees and pay all withholding and pay-
roll taxes on their employees and maintain their own workers’
compensation insurance policy. With regard to health insur-
ance, Brenda Cubitt testified that the Respondent Cubitts’ deci-
sion to implement the same health insurance plan, which had
previously been offered by the Respondent Alvernazes, was
made after consultation with their own insurance agent and was
based upon the lack of a cutoff of benefits.
Conceding the foregoing, counsel for the Acting General Coun-
sel nevertheless argues that Respondent Canned Foods and its
grocery outlets share both a common labor relations policy and
officials. As to the latter, the record evidence is that Robert Tier-
nan acts as a labor relations attorney for Respondent Canned
Foods, representing it in collective bargaining and arbitrations,
and that, independent of his relationship with Respondent Canned

43 Cubitt testified that he and his wife provide four paid holidays,
paid vacations, a bonus profit sharing plan, and dental and medical
insurance for the grocery outlet’s employees.
Foods, Tiernan also acts as the labor relations attorney for the
operators of approximately 50 grocery outlets “. . . just to answer
day to day problems or questions . . . .”44 For the latter, Tiernan
asks the operators to execute retainers, hiring him for a fee of
$500 per year. Among the grocery outlet operators, who retained
Tiernan over the years, were the Respondent Alvernazes. Deb-
orah Johnston-Kindel testified that she had been acquainted with
Tiernan for a “few years,” first becoming aware of him “through
one of the other operators, and there is no dispute that he repre-
sented the Respondent Alvernazes during the Union’s activities at
the grocery outlet in Grass Valley during 1994.45 In addition to
the Respondent Alvernazes, Tiernan had been retained by the
Respondent Cubitts for a number of years in Yuca Valley and, of
course, is their attorney in the instant matters. According to David
Cubitt, “I paid him a retainer in Yuca Valley of $500. I also
picked up his retainer when I took over the Grass Valley store,”
paying the remainder of his contract for 1995. Finally, with re-
gard to legal representation, there is no dispute that the law firm,
Ford & Harrison, which represents Respondent Canned Foods in
these proceedings, also represented the Respondent Cubitts during
the Board’s initial investigation in Case 20–CA–26685, for which
services David Cubitt did not pay the law firm’s fee and does not
know who did, and the operators of the grocery outlet in Indio,
California.
Counsel for the Acting General Counsel’s assertions, regarding
a common labor relations policy, concern immediate telephone
calls to Respondent Canned Foods at the first sign of union activ-
ity at a grocery outlet and the operators’ response to such. As to
this, Gerald Davenport testified that, prior to transferring to the
grocery outlet in Vacaville, he and his wife spoke to Jeannie Cal-
kins, who told him “that they were having a bit of a union trouble
there, and if anything were to happen, she gave us a number to call
and they’d take care of it.” Calkins added, “So keep your eye out
and if I . . . see anything to give her a call . . . and they’ll handle
it.” Davenport added that Calkins then gave him a business card
with a telephone number. While Calkins specifically denied Dav-
enport’s testimony, she admitted giving business cards to prospec-
tive operators,46 and Deborah Johnston-Kindel admitted telephon-
ing Respondent Canned Foods’ operations department after Union
officials visited the grocery outlet in Grass Valley in November
1994 and demanded recognition. However, there is no record
evidence as to any advice or instructions given to Johnston-Kindel
by representatives of Respondent Canned Foods.47
44 Tiernan testified that he represented his first grocery outlet in 1989
and that, by 1995, the number had risen to approximately 50. His rep-
resentation of the operators of grocery outlets was accomplished by
means of solicitation letters. According to Tiernan, independent of and
subsequent to his representation of the operators, he met Mike Huppert
of Respondent Canned Foods at a “seminar” and, as a result, was hired
to represent the latter in labor relations matters.
45 Tiernan charged the Respondent Alvernazes an additional $7500
to represent them during the Union’s organizing campaign.
46 Calkins denied having anything to do with union-related matters.
47 According to David Cubitt, at the time he was informed of the
open operator position at the grocery outlet in Grass Valley, he was
informed by Mike Huppert of the existence of a Union organizing
campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1468
As proof of a common labor relations policy, counsel for the
Acting General Counsel asserts that the operators of the grocery
outlets seem to respond to the presence of organizers for the Un-
ion, who enter a store, in the same manner. Thus, Thomas Pate,
who was an organizer for the Union in 1994 and 1995 and is cur-
rently a business representative, testified that, on two occasions
during November 1994, he and another Union organizer, John
Heise, were inside the grocery outlet in Grass Valley; that, on each
occasion, Deborah Alvernaz approached and, while yelling, de-
manded that they leave the facility; and that, during the second
incident, Johnston-Kindel threatened that she would call the police
if they did not leave. Pate further testified that, also in 1994, he
entered grocery outlet stores in two other California cities, Rancho
Cordova and North Lake Tahoe, and that, on each occasion after
making his presence known to the operator, he was met with the
identical response—the operator demanded that he leave the store.
However, it does not appear that such is the universal response to
the presence of Union agents inside a grocery outlet. Thus, prior
to their two confrontations with Deborah Alvernaz, Pate and Heise
had visited the grocery outlet in Grass Valley, came to the office,
and, during a seemingly cordial conversation with Thomas Alver-
naz, delivered a recognition demand letter to him. Likewise, Pate
and Michael Moore, a special representative for the Union, visited
the facility after the Respondent Cubitts became the operators and
presented a recognition demand letter to David Cubitt; there is no
record evidence that Cubitt was anything but cordial to the Union
agents. Further, while Pate testified that, besides the California
grocery outlets in Rancho Cordova and North Lake Tahoe, he
visited Respondent Canned Foods facilities in Woodland and
North Highlands, he made no assertion of being ordered to leave
the store. Finally, there is no specific record evidence that the
grocery outlet operators’ response to the presence of Union agents
inside the facilities has been orchestrated by Respondent Canned
Foods; rather such may well have resulted from consultations
amongst the operators. In this regard, David Cubitt testified that,
when agents of the Union visit, grocery outlet operators inform
other operators in the area.48

48 In her posthearing brief, counsel for the Acting General Counsel
refers to an amendment to their store operator agreement, which the
Respondent Cubitts executed on April 18, 1995. One of the provisions
of said amendment reads as follows:
Operator shall maintain physical control of the store and be re-
sponsible for its safe and efficient operation during the term of
this Agreement. Operator shall have the right and the duty to ex-
clude from the Store trespassers, solicitors, vagrants and other un-
authorized persons or objects. Operator shall follow all applica-
ble legal requirements and procedures in excluding persons or ob-
jects from the Store.
In this regard, Union Agent, Moore, testified that he observed a sign,
which prohibited soliciting and trespassing, posted outside of the gro-
cery outlet in Grass Valley during and after the time of the organizing
campaign. Counsel contends that such was “clearly intended to require
the ejection of union representatives.” While I agree that the vague
language of the amendment might apply to agents of the Union, it is
also true that the language would prohibit soliciting by any other group,
including charitable organizations, and there is no record evidence that
the amendment language and the posted sign were only applied to
agents of the Union.
As further evidence of a common labor relations policy, cover-
ing Respondent Canned Foods and its grocery outlets, counsel for
the Acting General Counsel points to the testimony of Jonathan
Wooldridge, who attended a key person development class at
CFU, that among the topics discussed were past union problems.
However, beyond stating that the topic was mentioned, he could
not recall any details. Counsel also points to record evidence that,
among the topics discussed at the key person development and
operator training sessions at CFU is one involving “union aware-
ness;” however, there is no record evidence as to what is dis-
cussed. Also, Respondent Canned Foods publishes an employee
orientation manual, which deals with all aspects of the grocery
outlet employees’ terms and conditions of employment. While
the document apparently is made available to grocery outlet
operators and while the Respondent Alvernazes distributed it to
Grass Valley grocery outlet employees, there is no requirement
that such be done, and the record evidence is that the Respondent
Cubitts did not adhere to it.
In drawing conclusions with regard to centralized control of la-
bor relations, there is no question that, on a day-to-day basis, pur-
suant to their respective store operator agreements, the Respon-
dent Cubitts, as did the Respondent Alvernazes before them, ef-
fectively are in charge of the hiring, firing, discipline, supervision,
and direction of the bargaining unit employees, employed at the
grocery outlet in Grass Valley. Moreover, the Respondent Cu-
bitts, as were the Respondent Alvernazes before them, are respon-
sible for establishing rates of pay and monetary benefits, granting
vacations and time off, and determining job classifications and
staffing levels for the employees at the grocery outlet. Neverthe-
less, as the Board pointed out in Pathology Institute, supra, at
1064, the existence of centralized control over labor relations does
not require “micromanagement of each entity’s labor relations by
the same individual . . . it is only necessary to conclude that there
had been an ability by one entity to exercise `clout’ over labor
relations of others.” In agreement with counsel for the Acting
General Counsel, I believe that, while there is scant record evi-
dence of conversations with or instructions from representatives of
Respondent Canned Foods regarding labor relations or unions, the
record warrants an inference that the managers of Respondent
Canned Foods’ operations department not only possess and exer-
cise a high degree of “clout” in dealing with union-related matters
at the grocery outlets but also that the extent of such influence
may well predominate over a grocery outlet operator’s nominal
contractual authority over labor relations. In this regard, I note
that the same attorneys, Robert Tiernan and the Ford & Harrison
law firm, represent both Respondent Canned Foods and store
operators in labor relations matters and that such is a significant
indicia of interrelationship of operations and of centralized control
of labor relations. Pathology Institute, supra at 1061; Blumenfeld
Theaters Circuit, 240 NLRB 206 fn. 2 (1979). While, as Tier-
nan’s representation of numerous grocery outlet operators and of
Respondent Canned Foods for labor relations matters may be
coincidental, when considered in conjunction with Ford & Harri-
son’s representation of the operators of the Indio grocery outlet, of
the Respondent Cubitts during the pretrial investigation and of
Respondent Canned Foods during the trial, it strains credulity to
believe that the corporate entity, Respondent Canned Foods
played no role in both Tiernan’s and the law firm’s representation
GRASS VALLEY GROCERY OUTLET 1469
of its grocery outlet operators for union-related matters. In this
regard, I note that David Cubitt claimed ignorance as to the source
of the payment for legal expenses, owed to Ford & Harrison, and I
doubt the latter represented the Respondent Cubitts on a pro bono
basis. Further, Respondent Canned Foods does not utilize store
operators to manage the three grocery outlets in the San Francisco
Bay area, at which an affiliate of the Food & Commercial Work-
ers International Union represents the three facilities’ employees;
rather Respondent Canned Foods retains responsibility for manag-
ing those grocery outlets and for bargaining with the labor organi-
zation involved. Moreover, I credit and rely upon the testimony of
Gerald Davenport, who impressed me as being an honest and
forthright witness, that, while he and his wife were in training for
to become operators of a grocery outlet, Jeannie Calkins49 in-
structed him to telephone at the first indication of union-related
problems. As to this, I note that the Respondent Alvernazes tele-
phoned representatives of Respondent Canned Foods immediately
after the Union demanded recognition from them. Finally, on this
point, there is no dispute that Respondent Canned Foods itself
publishes and makes available for its operators for distribution to
new employees, an employee orientation manual, which deals
with all aspects of labor relations. While the Respondent Cubitts
did not distribute the document to new employees, the Respondent
Alvernazes did. Based upon the foregoing and the record as a
whole, I believe that Respondent Canned Foods clearly possesses
the “ability” to exercise “clout” over the Respondent Cubitts’ and
the Respondent Alvernazes’ labor relations policies and practices,
relating to union-related problems, and that, therefore, counsel for
the Acting General Counsel has established the prerequisite com-
mon labor relations policy, required for the existence of a single-
employer relationship.
E. Common Ownership or Financial Control
Counsel for the Acting General Counsel argues that the grocery
outlet in Grass Valley is under the complete financial control of
Respondent Canned Foods, and there appears to be significant
record evidence is support of this assertion. At the outset, I note
that both the Respondent Alvernazes and the Respondent Cubitts
entered into virtually identical store operator agreements and that
the Respondent Cubitts have never sought to modify their store
operator agreement. Further, pursuant to its terms, Respondent
Canned Foods may terminate the Respondent Cubitts’ store opera-
tor agreement, by providing written notice within 60 days, with or
without cause or immediately if “circumstances,” within the con-
trol of the Respondent Cubitts, “create antagonism” between them
and it, and their store operator agreement prohibits anyone but the
Respondent Cubitts from owning any “interest” in the operator
position.
There is no dispute that Respondent Canned Foods owns the
grocery-related products, which are sold at the grocery outlets,
including the store in Grass Valley, and that said products are
shipped to the grocery outlets on a consignment basis. Review of
the store operator agreements, into which the Respondent Alver-
nazes and the Respondent Cubitts entered, discloses that neither

49 Comparing them as witnesses, I found Davenport to have been
more credible than Calkins and do not credit her denial of not being
involved in union-related matters. Moreover, she corroborated Daven-
port as to giving him a business card.
possesses an ownership interest in a Canned Foods’ grocery outlet
or a right to sell Canned Foods’ consigned grocery and non-
grocery products. Rather, as stated above, when becoming the
operators of a new grocery outlet or an existing facility, what the
new operators, usually a married couple, purchase are the fixtures
and equipment, necessary to operate the store, and such is the
extent of their ownership interest in the business of operating a
grocery outlet store. According to David Cubitt, in paying for
these items, the new operators pay “only what you can afford at
that time” and finance the remainder of the purchase prices
through loans from Respondent Canned Foods and from Wells
Fargo Bank, the latter of which is arranged by Respondent Canned
Foods. In this regard, the Respondent Alvernazes spent approxi-
mately $10,000 of their own funds to purchase a percentage of the
consigned store grocery and nongrocery inventory from Respon-
dent Canned Foods and financed the cost of the equipment and
fixtures, which were necessary for the operation of the grocery
outlet in Grass Valley, with loans from Wells Fargo Bank and
Respondent Canned Foods.50 Also, the Respondent Cubitts paid
approximately $224,000 to the Respondent Alvernazes for the
grocery outlet’s fixtures and equipment, paying $50,000 out-of-
pocket51 and financing the remainder with a loan from Respon-
dent Canned Foods and an existing loan from Wells Fargo Bank.
While the Respondent Alvernazes and the Respondent Cubitts
utilized their own funds to help purchase the Grass Valley grocery
outlet “business,” it is clear that prospective new operators need to
expend little, if any, of their own funds to pay for their grocery
outlet’s equipment and fixtures and, in fact, may borrow virtually
the entire purchase price from Respondent Canned Foods and
Wells Fargo Bank. Thus, Gerald Davenport testified that Jeannie
Calkins told him that “there was . . . no cash involved . . . ,” and
David and Brenda Cubitt’s daughter and son-in-law, Lori and Tim
Bascom, who worked for the Respondent Cubitts in Yuca Valley
and Grass Valley, became the operators of a new grocery outlet in
Lodi, California, and borrowed almost the entire cost of their store
fixtures and equipment from Respondent Canned Foods. With
regard to the amount borrowed from the latter, the record evidence
is that the operators are required to sign an interest-bearing prom-
issory note but are not required to have any collateral for the loan.
On this point, David Cubitt stated, “I think the collateral for my
loan was my signature,” and the terms of the Respondent Cubitt’s
promissory note disclose no collateral requirement. Also, regard-
ing the loan from Respondent Canned Foods, Cubitt stated that the
first year is “non-interest bearing.”
The significant extent of Respondent Canned Foods in-
volvement in the financial affairs of the operators is best illus-
trated by the so-called sale of a grocery outlet from one opera-
tor to another. In this regard, I note that, at the time the Re-
spondent Cubitts became operators of the grocery outlet in
Grass Valley, Respondent Canned Foods apparently repre-
sented the former and the Respondent Alvernazes, prepared all
50 The loan from Respondent Canned Foods was to pay for the re-
frigeration equipment.
51 It is unclear whether the amount paid out-of-pocket by the Re-
spondent Cubitts represented payment to Respondent Canned Foods for
a percentage of the grocery outlet’s merchandise inventory, partial
payment to the Respondent Alvernazes for the store equipment and
fixtures, or both.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1470
of the documents52 for the transaction between the Alvernazes
and the Cubitts, and set the depreciation percentage applied to
the price of the business equipment and store fixtures. As to
the prices established for the said equipment and fixtures, while
Deborah Johnston-Kindel testified that she, her former hus-
band, and their accountant determined the worth of the forego-
ing and that they did not negotiate the prices with the Respon-
dent Cubitts, David Cubitt again contradicted her, stating that
there were negotiations between himself and Thomas Alvernaz,
that “if Tom said he wanted x amount of dollars for that, we
would discuss how much he was going to get for it,” and that
he did persuade Thomas Alvernaz to change the price of some
items. In any event, what is certain is that the Respondent Al-
vernazes did not realize a profit from the transaction. Thus,
Deborah Johnston-Kindel admitted that the amount of money
she and her husband received represented the difference be-
tween what they owed to Respondent Canned Foods and to Wells
Fargo Bank and the worth of the equipment and fixtures at the
time of the transaction.
With regard to the compensation received by the Respondent
Alvernazes and the Respondent Cubitts as the operators of the
grocery outlet in Grass Valley, their respective store operator
agreements provide that, on a daily basis, the operators retain 12.5
percent of the alcohol and 15 percent of the nonalcohol net sales
proceeds as “commission.” Apparently, the operators must meet
their operating expenses out of their retained daily net sales pro-
ceeds, and the percentages are not affected by labor costs. More-
over, while the daily percentages are fixed by Respondent Canned
Foods and are “invariable,” the amount of possible commission
for the operator is directly related to the grocery outlet’s sales;
therefore, it is apparent that the harder operators work to increase
sales, the greater their resulting daily net sales commissions. In
addition to the proceeds retained from sales, the operators receive
“a bonus commission,” based upon calculations involving a quar-
terly inventory of the grocery outlet’s merchandise and the gro-
cery outlet’s net sales proceeds for nonalcohol-related merchan-
dise for the relevant time period, from Respondent Canned Foods.
Deborah Johnston-Kindel testified that the quarterly bonus repre-
sented “a check for selling—if . . . you were not missing product
through the inventories, you got a part of an amount back . . . there
was a percentage based on the calculation of the amount of money
we got. It was a . . . percentage of sales.” She added that bonus
payments for her husband and her ranged from $10,000 to
$50,000. Likewise, David Cubitt testified that these quarterly
bonus payments to his wife and him represent the “profit from my
store;” that the “.bonus fluctuates on the amount of sales only and
whatever the gross might be for that time period, whether I lost
inventory or whether my inventory came out right;” and that the
quarterly bonus payments to his wife and him have ranged from
$12,000 to $60,000. Finally, Respondent filed Form 1099 docu-
ments with the Internal Revenue Service in 1995 and 1996, show-

52 The main sale document is not even labeled a contract for the sale
of materials. Rather, it is termed bears the strange title, “operator
change.”
ing “miscellaneous income” payments to the Respondent Cubitts
for those years.53
Counsel for the Acting General Counsel points to the mandated
bank accounts and security deposit as further indicative of Re-
spondent Canned Foods’ financial control over the grocery outlet
operators. Thus, there is no dispute that operators, including the
Respondent Alvernazes and the Respondent Cubitts, are required
to maintain business bank accounts into which they must deposit
their grocery outlet’s daily nonalcohol and alcohol-related sales
proceeds and from which Respondent Canned Foods withdraws
its mandated percentage amounts. Further, pursuant to their re-
spective store operator agreements, Respondent Alvernazes and
Respondent Cubitts granted Respondent Canned Foods security
interests in the fixtures and equipment, which each owned and
used in the grocery outlet in Grass Valley, and in savings accounts
at a Wells Fargo Bank branch, located in San Francisco, Califor-
nia, which each was required to open and maintain. The Respon-
dent Alvernazes and the Respondent Cubitts each was required to
deposit $5000 into its Wells Fargo Bank savings accounts upon
entering into its store operator agreement and to make additional
deposits into said account from time to time until the amount on
deposit equals 25 percent of the retail value of the grocery outlet’s
merchandise inventory. However, notwithstanding the wording of
the respective store operator agreements, asked when he must
deposit enough money to reach the 25 percent security deposit
amount, David Cubitt responded, “as soon as I have [Respondent
Canned Foods] paid off, I pay on Wells Fargo and my security
deposit at the same time.” Finally, with regard to the Wells Fargo
Bank savings accounts, an operator is not permitted to withdraw
from said savings account without the prior written authorization
of an officer of Respondent Canned Foods.
Neither Respondent Canned Foods, the Respondent Alver-
nazes, nor the Respondent Cubitts possesses any ownership inter-
est in the building in which the grocery outlet in Grass Valley is
located. The record establishes that the building is owned by
Safeway, which leases the building to Respondent Canned Foods.
Further, while the Respondent Alvernazes were not and the Re-
spondent Cubitts are not sublessees to Respondent Canned Foods,
the latter charges them for the cost of its leasehold. Thus, accord-
ing to Deborah Johnston-Kindel, a “percentage lease” is paid to
Respondent Canned Foods, with the latter withdrawing 2.5 per-
cent of gross sales receipts from the operator’s business account to
cover the cost of the lease.
The Board has held that a clear indication of common owner-
ship or financial control is operation of the two nominally separate
entities on less than an ordinary “arm’s-length” basis. Gold Coast
Produce, 319 NLRB 202, 206 (1995); AAA Fire Sprinkler, Inc.,
322 NLRB 69, 86 (1996). Herein, the record establishes that,
upon entering into their store operator agreements, grocery outlet
operators need expand little or none of their own funds to pur-
chase the requisite equipment and fixtures to operate their grocery
outlet. Thus, I credit Gerald Davenport, who testified that Jeannie
Calkins told him a new operator need not put down any money in
order to become an operator, and, apparently, Tim and Lori Bas-
com, the daughter and son-in-law of the Cubitts, used little of their
53 There is no record evidence that Respondent Canned Foods with-
holds taxes from these bonus payments.
GRASS VALLEY GROCERY OUTLET 1471
own funds upon becoming operators of the Lodi, California gro-
cery outlet. No outlay of funds upon the establishment of the
second entity is an indicia of a single-employer relationship. AAA
Fire Sprinkler, supra at 85. Moreover, while the cost of a grocery
outlet’s fixtures and equipment seems to be almost entirely fi-
nanced by loans from Respondent Canned Foods and Wells Fargo
Bank, the former loan need not be secured by any collateral. Not
only did David Cubitt admit that the collateral for his loan from
Respondent Canned Foods for the grocery outlet in Grass Valley
was his signature but also there is no collateral requirement stated
in the promissory note. Such is a significant factor in finding a
less than arm’s-length business transaction. Pathology Institute,
supra, at 1060; Gold Coast Produce, supra at 206. In addition,
while Respondent Canned Foods is the lessee of the building,
which houses the grocery outlet in Grass Valley, and while the
Respondent Alvernazes and the Respondent Cubitts are required
to pay the former for the use of the building,54 there is no written
sublease agreement and the cost to the operators is a nonvariable
2.5 percent of gross sales. The lack of a written lease agreement
and making the cost of rental payments dependent upon the gross
volume of sales have been held to be indicia of less than an arm’s-
length transaction. NLRB v. Al Bryant, Inc., 711 F.2d 543, 551
(3d Cir. 1983); Pathology Institute, supra at 1061; G. Zaffino &
Sons, 289 NLRB 571, 577 (1988). Further, the sale of the busi-
ness transaction between the Respondent Alvernazes and the Re-
spondent Cubitts is indicative of the less than an arm’s-length
relationship between Respondent Canned Foods and the operators
of the grocery outlet in Grass Valley. In this regard, not only did
the Respondent Alvernazes realize no profit from the transaction
but also Respondent Canned Food apparently was the representa-
tive for each party, drafted all the paperwork, and established the
depreciation percentage for all of the equipment and fixtures.
Finally, with regard to the extent of Respondent Canned Foods’
financial control over the Respondent Alvernazes and the Re-
spondent Cubitts, I note that the latters’ respective store operator
agreements permit the former to terminate the said agreements
and take over operation of the grocery outlet in Grass Valley, with
written notice, “with or without cause” and immediately, without
notice, if “circumstances,” within the control of the operator, cre-
ate “antagonism’ between the operator and Respondent Canned
Foods. I agree with counsel for the General Counsel that, in light
of the foregoing, these latter provisions demonstrate the extent of
financial control held over the Respondent Alvernazes and the
Respondent Cubitts by Respondent Canned Foods so as to exem-
plify single-employer relationships.
Based upon the foregoing, especially considering the “clout”
held over the operators’ ability to effectuate labor relations policy,
complicated by union-related matters, by Respondent Canned
Foods and the extent of the financial control exercised over the
operators by the former, I find that, at all times material herein,
while, nominally separate entities, Respondent Canned Foods and
the Respondent Alvernazes were and Respondent Canned Foods
and the Respondent Cubitts are integrated business enterprises to

54 There is no record evidence of the terms of Respondent Canned
Foods’ lease agreement with the owner of the building, and, of course,
there is no record evidence that what the operators pay to Respondent
Canned Foods equals or exceeds the lease payment.
such an extent that the former entities constituted and the latter
entities constitute a single-employer relationship. With regard to
my conclusions, I have closely examined those cases, cited by
counsel for Respondent Canned Foods, and find each to be inap-
posite. Thus, not one concerns an entity, which has the apparent
ability to dictate union-related labor relations matters to the extent
held by Respondent Canned Foods, and none involve the extent of
financial control over the second entity as held and exercised by
Respondent Canned Foods. However, inasmuch as each appears
to have been part of a single-integrated enterprise with Respon-
dent Canned Foods and as there is no evidence of such a relation-
ship between them, I further find that no such single-employer
relationship existed between the Respondent Alvernazes and the
Respondent Cubitts. Further, there is no record evidence or alle-
gation of any joint employer or alter ego relationship between the
two entities.55 Accordingly, I shall recommend dismissal of all
allegations of the amended consolidated complaint as to the Re-
spondent Alvernazes.56
VI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that Respondent Canned Foods opened
its grocery outlet in Grass Valley57 in or about 1990 with the Re-
spondent Alvernazes as the operators and that, in the fall of 1994,
there were approximately 28 employees, performing work as
department managers, checkers, courtesy clerks, and other typical
grocery market job classifications. The Union’s organizing cam-
paign amongst the employees, who worked at the grocery outlet,
commenced in October 1994, when an employee, Rebecca Van-
dergrift, approached alleged discriminatee, Deborah Tahir, regard-
ing the employees’ perceived need for union representation.58
Vandergrift had a business card of a representative of the Union,
John Heise, and the women telephoned and arranged a meeting
with him. Heise met Vandergrift and Tahir at a pizza restaurant in
Grass Valley, and Heise gave them authorization cards, which
were to be distributed to other employees. After this initial meet-
ing, Vandergrift and Tahir distributed and collected signed au-
thorization cards from employees, including one from alleged
discriminatee, Marilyn Reider,59 usually “before and after work”
in the facility’s parking lot,60 and Heise and an organizer, Tom
55 Whether, in fact, the transfer of the materials and fixtures, used in
the grocery outlet in Grass Valley, to the Respondent Cubitts from the
Respondent Alvernazes constituted an actual sale is not at issue herein.
56 Hereinafter, I shall treat Respondent Canned Foods and the Re-
spondent Cubitts as a single entity and refer to such as Respondent.
57 The store is located in a shopping center, with a public parking lot
in front of it and a sidewalk between the entrance to the store and the
parking lot. The store has three doorway entrances from the sidewalk
and large windows between the doors. Viewing the store from the
parking lot, the right hand door is for the public to enter. The middle
doorway is a set of double doors, used for exiting the store. The left
side door is marked with a “Do Not Enter” sign and is only supposed to
be used by the employees.
58 The two women were the co-managers of the health and beauty
aids department of the grocery outlet.
59 Reider was in charge of ordering foods for and stocking the deli
foods section of the grocery outlet, and she trained checkers.
60 Vandergrift distributed and collected, at least, eight authorization
cards, and Tahir distributed and collected, at least, four signed cards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1472
Pate, held approximately 10 meetings with employees at pizza
restaurants in Grass Valley and at an employee’s house during
which they distributed and collected more authorization cards and
discussed the advantages of representation by the Union. After
collecting 19 signed authorization cards from employees, on No-
vember 13, Heise and Pate went to the grocery outlet, met with
Thomas Alvernaz, and gave him a letter, in which the Union de-
manded recognition as the employees’ bargaining representative
and the start of negotiations for a collective-bargaining agreement.
By a letter to the Union, dated November 16, on behalf of the
Respondent Alvernazes, attorney Tiernan informed the Union that
his clients had “no intention of voluntarily recognizing” it. There-
after, on February 28, 1995, the Union filed the representation
petition in Case 20–RC–17087, seeking to represent the entire
employee complement working at the grocery outlet, excluding
the clerical employees and supervisors.
Marilyn Reider and Jonathan Wooldridge each testified that,
in or about January 1995, the Alvernazes began informing the
grocery outlet’s employees that they would be selling the busi-
ness and “new owners” would be taking it over. In fact, Re-
spondent Canned Foods offered the operator position at the
grocery outlet in Grass Valley to the Respondent Cubitts, and,
in mid-March, prior to the operator change but with the consent
and cooperation of the Alvernazes, David Cubitt and Lori, and
Tim Bascom, his daughter and son-in-law, traveled to Grass
Valley, spent two weeks at the grocery outlet, familiarized
themselves with the operation of the store, and became ac-
quainted with many of the employees. Meanwhile, in a letter,
dated March 29, 1995, to Region 20, attorney Tiernan submit-
ted a motion that the previously scheduled representation case
hearing, in Case 20–RC–17087, be postponed as the Alver-
nazes were in the process of “selling” their store to the Respon-
dent Cubitts. Nevertheless, the hearing was held, as scheduled,
on March 31, and, notwithstanding that attorney Tiernan con-
tended that the representation petition should be dismissed
because of the imminent sale of the business, in his April 14,
1995 decision and direction of election, the Acting Regional
Director concluded that the sale was then merely speculative
but also that, should the sale be consummated, the petition
would be subject to dismissal. Thereafter, upon the execution of
all the necessary documents and the payment to the Alvernazes
of $224,000, on April 18, the Respondent Cubitts became the
operators of the grocery outlet in Grass Valley. As to the on-
going activity in support of the Union and the pending election,
David Cubitt testified that, “I knew nothing about an election. I
knew the Union was on the scene” and that he did not learn
about the election until “about a month and a half after” he and
his wife began operating the grocery outlet.61
On a Sunday evening in mid-April, approximately a week be-
fore the Respondent Cubitts succeeded the Alvernazes as the op-
erators of the grocery outlet, David and Brenda Cubitt and the

61 On April 26, attorney Tiernan wrote to Region 20 that he had
been retained by the Respondent Cubitts and that the sale had been
consummated, and he requested dismissal of the representation case
petition. On May 5, the Acting Regional Director issued an order to
show cause why the correct name of the Employer in the representation
matter should not be the Respondent Cubitts as the successor to the
Alvernazes.
Bascoms met with the entire employee complement at a pizza
restaurant in Grass Valley. According to alleged discriminatee
Tahir, the Cubitts asked each employee to identify himself or
herself and to state his or her current job, and “they handed out
applications and told everybody there was a paper stating when
[employment interviews were scheduled].” Tahir recalled both
Cubitts stating, “that there was nothing going to be happening to
the jobs. Everyone was going to get their old position they were
in” and recalled David Cubitt saying “he had an excellent crew in
Yuca Valley and if he could, he would bring them all up here.”
With regard to the employment applications, alleged discriminatee
Reider, who, besides signing an authorization card, attended sev-
eral Union meetings with other employees, stated that both Cubitts
said “it was because [the Alvernazes] were taking all their papers.
They needed it for their personnel file.” Finally, alleged discrimi-
natee, Sharlene Sutton, who worked at the grocery outlet as a
“bagger,trasher” and assertedly as the “freezer person” for the
Respondent Cubitts,” testified that she attended an employees
meeting with the Cubitts at a pizza restaurant and recalled that
David Cubitt said, “that nobody would be fired and none of us had
anything to worry about.”
As was their stated intention, the Respondent Cubitts held in-
terview meetings with all of the employees, who worked at the
grocery outlet, during the time period between the above pizza
restaurant meeting and April 18. Tahir testified that she met with
the Cubitts and Lori Bascom in the health and beauty aids room
on April 14, and “Lori did a lot of the talking. I handed my appli-
cation along with my resume and letter of recommendation. . . .
There were a lot of questions asked like are you happy here, are
you wanting better wages, better benefits, vacation pay. . . . I said
of course.” Also, according to Tahir, “there were no indications
that I didn’t have a job,” and the Cubitts said “that the schedule
would be posted by the time clock” and that “they would let you
know within a week or something” about a job when they take
over the store. Alleged discriminatee Reider testified that she met
with the Cubitts and the Bascoms in the health and beauty aids
room on April 15 in the morning. “I was asked various questions
about the safety and the policy of the store, and what I thought that
I deserved a raise for all the responsibilities I had.” Reider replied
that she was only earning $5.25 an hour as the head of the deli and
training checkers, and “I told them I was happy with the safety
procedures. [David Cubitt] said is there anything else you would
like to happen. I said I think we are all deserving raises because
none of us have had a raise.” Alleged discriminatee, Sharlene
Sutton, testified that her interview was also in the health and
beauty aids room and that she was interviewed by the Cubitts and
their daughter. “They asked me if I liked my hours, my days off.
They asked me what my job was. . . . I brought up that the Alver-
nazes had offered to train me to be cashier and they never got
around to doing that. They said I would be the next cashier.”62
Also, according to Sutton, they discussed her work schedule; “[the
Cubitts] just asked if I liked it and I said I would like to keep it
that way. . . . They said it was fine.” Another employee, Carma
Lawson, who worked at the grocery outlet from November 1993
62 Brenda Cubitt conceded that Sutton did mention her desire to be-
come a cashier but denied that she or her husband said they would
move her to that position— “We did not promise her anything.”
GRASS VALLEY GROCERY OUTLET 1473
until June 1996, as the person in charge of the “hard line” depart-
ment, the area of the store in which products such as clothing and
hardware items are sold, testified that she was interviewed by the
Cubitts and their daughter and that David Cubitt told her “that
[Respondent Canned Foods] was bringing them in as the new
operators and they wanted their employees to be happy. . . . They
were there to change things and make them better.” David Cu-
bitt’s version of the employment interviews was corroborative of
the foregoing accounts. He recalled that his wife, his daughter,
and him sat at a table, had the grocery outlet employees fill out job
application forms, and “we asked them what their experience was.
You know, what duties they had at the time and what they did for
the Alvernazes.” He added that he and his wife used a written list
of questions in speaking to the grocery outlet employees.
There is no dispute that the last day of work for both Deborah
Tahir and Marilyn Reider at the grocery outlet was April 18, the
day on which the Respondent Cubitts assumed operation of the
facility.63 Each was on the assignment schedule for that day and
reported for work in the morning.64 Reider, whose activities in
support of the Union included signing an authorization card and
attending two or three meetings with Union representatives, testi-
fied that, at approximately 1 p.m. shortly after her lunchbreak,
David Cubitt called her to report to the office. She did and found
Cubitt and his daughter Lori waiting for her. “They asked me to
sit down and Mr. Cubitt said they made a decision. That they
were going to let four people go because there were four of them
coming in and I was one of them. I was really startled. I said is
there any reason . . . he said that [Tim Bascom] was going to be
taking my position in the deli. I said was there any reason why I
couldn’t go back to checking. He said you don’t seem to under-
stand we don’t want you here. You can get up and leave now. . . .
He said Tom and him would not fight any unemployment.”65
Thereupon, Reider gathered her belongings and left the facil-
ity.Tahir, who, as stated above, along with Rebecca Vandergrift,
was one of the initiators of the organizing campaign for the Union
and one of the leading union adherents,66 testified that she per-
formed her job duties until approximately 1:30 p.m. when “I [was]

63 As there was no such allegation in the amended consolidated
complaint, I shall make no findings as to whether David and Brenda
Cubitt were successors to the Alvernazes as operators of the grocery
outlet in Grass Valley. Nevertheless, in its investigation of the instant
representation matter and in its July 1995 dismissal of the unfair labor
practice charge in Case 20–CA–26685, the Acting Regional Director of
Region 21 believed such to be the case, and the record evidence herein
would probably warrant the drawing of such a conclusion. In this re-
gard, I note that there was no hiatus between the Alvernazes’ and the
Respondent Cubitts’ operation of the grocery outlet, that approximately
24 of the Alvernazes’ employees were hired by the Respondent Cubitts,
and that the employees worked in the same job classifications and
performed the same jobs for the Respondent Cubitts as they did for the
Alvernazes.
64 Apparently, the Respondent Cubitts were utilizing the Alvernazes’
work schedule for that week, and both women were scheduled for work
on April 18.
65 Reider conceded that, in her pre-trial affidavit version of the con-
versation, she failed to mention Cubitt saying “we don’t want you
here.”
66 Asked if anyone from the grocery outlet was aware of her Union
activities, Tahir replied, “No, not to my knowledge.”
called into the office by David Cubitt where he and Lori were
waiting.” According to Tahir, “I told Dave I was next because I
knew there were two other employees that had been terminated.
He proceeded to tell me that there was no longer a position for me.
. . . that Lori could do my job. . . . I said what do you mean there
was not a position for me. I had been there three and a half
years.” Cubitt had no response other than “he would have to let
me go” and “that Tim would escort me out.”67 As had Reider,
Tahir then left the store.68 While not denying the testimony of
either Tahir and Reider, David Cubitt did state that “I did not ter-
minate them. I told them that they were not employed by the
Cubitts. . . . I told them that they would not have a job tomorrow
when I took over the store.”69 Asked why the two alleged dis-
criminatees were told to leave in the middle of the day, he replied,
“because Tom and I did not want to have a scene in the store.”
The amended consolidated complaint and counsel for the Act-
ing General Counsel argue that the refusals to hire both Reider and
Tahir were violative of Section 8(a)(1) and (3) of the Act. An
essential element of the General Counsel’s burden of proof is
establishing that Respondent possessed knowledge of, or sus-
pected, each alleged discriminatee’s involvement in the Union
organizing drive, and, in this regard, counsel for the Acting Gen-
eral Counsel’s focus, at the hearing, was upon the activities and
knowledge of attorney Robert Tiernan, who represented both the
Alvernazes and the Respondent Cubitts, without interruption,
during the Union’s organizing campaign. She offered the testi-
mony of 7-year grocery outlet employee, Ysidra Hundevadt, who
testified that, one day in the fall of 1994 after a visit to the store by
representatives of the Union, she had a conversation in the office
with Tiernan and the Alvernazes. “We talked about a piece of
paper [Tiernan] had that had all the employees’ names on it. That
it said yes, no, or maybe. And if I would mark off who I thought
was for or against or maybe for the Union.” Hundevadt asked if
she was supposed to fill in the entire paper, and Tiernan told her
she did not have to do so in front of the Alvernazes70 and him and
suggested she return it before a scheduled safety meeting that
night.71 Further, counsel points out that, while there is no record
67 During cross-examination, Tahir admitted that her pre-trial affida-
vit version of the conversation was correct— “David Cubitt said there
was too much management and no longer a position for me . . . . He
said he looked over my application and . . . he thought Lori Cubitt
could do my job.”
68 Gerald Young and Jonathan Wooldridge had also not been hired
by the Respondent Cubitts.
69 As such is consistent with her single-employer theory, counsel for
the Acting General Counsel argues that Tahir and Reider were termi-
nated. However, inasmuch as I believe that Respondent Canned Foods
and the Respondent Alvernazes and the Respondent Cubitts constitute
separate single-employer entities and as the Respondent Cubitts were
probably successors to the Respondent Alvernazes, it is reasonable to
conclude that the alleged unlawful acts of discrimination against the
alleged discriminatees were refusals to hire, and I shall characterize
them as such herein.
70 Hundevadt admitted that neither of the Alvernazes ever indicated
to her that they were aware of the identities of any of the union adher-
ents amongst the employees at the grocery outlet.
71 Hundevadt added that she completed the paper, placing a check
mark in the maybe box by each name.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1474
evidence that Tiernan actually discovered the identities of the
leading Union adherents or the Union sympathies of any employ-
ees, there appears to have been capacious opportunity for the Re-
spondent Cubitts to have discussed their employment decisions
with Tiernan at the time they became the operators of the grocery
outlet, and Tiernan’s retainer was for advice on matters such as
hiring and firing employees. As to this, Brenda Cubitt admitted
that Tiernan was present, on the Cubitt’s behalf, in the store on
April 17, 18, and 19, and David Cubitt admitted that, when he
decided not to employ Reider and Tahir, “I talked to [Tiernan]
every day at that time.” Although Tiernan himself failed to deny
Hundevadt’s testimony, David Cubitt generally denied any
knowledge of the grocery outlet’s employees’ activities in support
of the Union while working for the Alvernazes72 and specifically
denied any knowledge of Tahir’s status as an initiator of the Un-
ion’s organizing efforts.73
With regard to Respondent’s defenses to the allegations that the
Respondent Cubitts discharged or refused to hire both Tahir and
Reider in violation of Section 8(a)(1) and (3) of the Act, David
Cubitt testified that, when Respondent Canned Foods offered his
wife and him the opportunity to operate the grocery outlet in Grass
Valley, they invited their daughter and son-in-law to work with
them, and “I had specific jobs in mind for us. . . . My son-in-law
had trained in Yuca Valley to be my deli manager. My daughter
was going to be my store manager. . . . My wife . . . did all my
books and record keeping. I, in Yuca Valley, was in charge of the
wine department. . . . I made myself the wine man.”74 Then, Cu-

It is alleged that the Alvernazes themselves attempted to ascertain
the identities of the Union adherents amongst their employees. Carma
Lawson testified that, in November 1994, “they called me into the
office to . . . speak with them . . .” and “Deborah asked me if I knew
anyone who was passing around cards for the employees to sign to join
the Union . . . . I told her I did not. She asked me to keep my ears open
and get back with her. . . . I told her I would.” Likewise, Jonathan
Wooldridge testified that, on one occasion, Thomas Alvernaz called
him into the office, “and he asked me if I had heard anything from
anyone” about the Union.” Wooldridge said, no. Thomas Alvernaz did
not testify and, thus, failed to deny Wooldridge’s testimony; Deborah
Johnston-Kindel failed to deny any such interrogation of Lawson.
There is no evidence that the Alvernazes ever ascertained who,
amongst their employee complement, were Union adherents, and, as
mentioned above, according to Ysidra Hundevadt, they never indicated
possessing such knowledge to her. Further, there is no record evidence
that, if they had such knowledge or suspicions, the Alvernazes confided
such to Tiernan.
72 Cubitt testified, without contradiction, that he never discussed the
employees’ union activities with the Alvernazes and that he was not
permitted to view the Alvernazes’ personnel files. Employee Hun-
devadt testified that the Alvernazes took all their personnel files when
they left the store.
73 While counsel for the Respondent Cubitts asserts in his posthear-
ing brief that Ysidra Hundevadt testified that the Cubitts never indi-
cated that they had knowledge of the identities of the Union adherents,
review of the record indicates that Hundevadt never so testified. What
did occur is that, during his cross-examination of the witness, counsel
mentioned such a statement in her pre-trial affidavit but then, in the
same question, asked about another subject; Hundevadt’s affirmative
response was to the latter question.
74 Counsel for the Acting General Counsel points out that six grocery
outlet employees quit in April and May, and among them were Jeff and
Janice Kimerling, who were second in command while the Alvernazes
bitt testified, after “. . . [spending] two weeks in the [grocery out-
let] checking out the things in the store and [observing] the help”
and after interviewing all of the Alvernaz’ employees, he and his
wife were able to reach some conclusions about the facility and
about which of the Alvernaz’ employees they would not hire.
David Cubitt testified that, based upon his observations, the deli
department, in which Reider was the manager, was the “poorest”
of the grocery outlet’s departments,75 and the wine department, in
which Jonathan Wooldridge was the manager, was “the next
poorest.” Therefore, as the Cubitts’ intent had been to make Tim
Bascom the deli manager and David Cubitt the wine manager,
they decided not to offer employment to either Reider and or
Wooldridge.76 Cubitt also believed that “there was no need for
two managers in [health and beauty aids],” adding that no other
department had such an arrangement and that he did not have “the
foggiest idea” why the Alvernazes had comanagers over health
and beauty aids. Further, observing for 2 weeks convinced Cubitt
“that I could do with one less person,” and he decided to keep
Vandergrift as “in my opinion, Rebecca interviewed a lot better
and she did a little better job.” Finally, asked why he and his wife
did not consider either alleged discriminatee for another position
in the facility, Cubitt responded that such was not considered
“because if you take [people] and demote them and cut their pay
and change their title, it is not good for business.”77
Also, on April 18, two other incidents allegedly occurred
shortly after Tahir and Reider each left the grocery outlet. First,
according to Ysidra Hundevadt, she overheard part of a conversa-
tion between Brenda Cubitt, Lori Bascom, and Rebecca Vander-
grift in the office. “Rebecca was very upset because her best
friend had just been let go and . . . she was letting them know that
she was for the Union. But . . . she didn’t like the way the Union
was handling things and she was very upset over the whole situa-

were the operators of the grocery outlet in Grass Valley. She argues
that, rather than anyone else, the Bascoms were at the store to replace
the Kimerlings. However, as counsel for the Respondent Cubitt points
out, the Kimerlings did not cease their employment at the grocery outlet
until on or about May 6. David Brake, who had been the store manager
for the Respondent Cubitts in Yuca Valley requested that the Cubitts
hire him at the grocery outlet in Grass Valley. They agreed, and he
began working for the Respondent Cubitts in Grass Valley on May 3,
being paid a management salary of $900 per pay period. It is reason-
able to believe that he was to be the replacement for the Kimerlings.
75 Cubitt testified that “the variety . . . was poor, the merchandising
was poor, how it was displayed in the case was poor.” He added that,
in April, deli sales comprised only 3.5 percent of gross sales; while, in
Yuca Valley, said department had accounted for 10 percent of gross
sales.
76 David Cubitt testified that, when he informed Reider that Bascom
was going to be the manager of the deli department, she became “very
unhappy.”
77 In her posthearing brief, counsel for the Acting General Counsel
spends considerable time pointing out that Tahir and Reider had been
good employees each with an excellent employment record and that
others, who were employed by the Cubitts, had worse employment
records. At the hearing, I expressed doubt as to the relevancy of such
evidence. I have considered the record evidence, and, inasmuch as
Respondent contends only that it would not have been efficacious for
business purposes to employ demoted managers and not that either
alleged discriminatee was a bad employee, I find evidence as to the
other grocery outlet employees’ employment records to be irrelevant.
GRASS VALLEY GROCERY OUTLET 1475
tion.”78 Vandergrift, who, along with Tahir, initiated the Union
organizing campaign but who admitted having become “disillu-
sioned” with the Union prior to Tahir’s dismissal,79 confirmed that
she “got upset” over what occurred to the former and that she
immediately went to the office. “Dave and Brenda were in there.
They said they did not need two managers in one department. The
way Debbie and I were running it, we had split the responsibili-
ties.” Vandergrift specifically denied telling the Cubitts that she
was for the Union but would give them a chance. The second
alleged incident that day, the subject of paragraph 9(g) of the
amended consolidated complaint, involved Carma Lawson. She
testified that Robert Tiernan, who was in the grocery outlet that
day, approached her, and “he asked me if I understood what hap-
pened today. I said . . . people got fired. He asked me if I under-
stood why” and “said that he was going around talking to the
employees to let them know everything was going to be okay.
The reason they were let go was because there were too many
chiefs and [not] enough Indians.” Tiernan added that “there were
other reasons but the could not discuss them.” Tiernan failed to
deny the foregoing testimony.
On April 20, 2 days after Respondent’s refusals to hire Reider
and Tahir, the Union held a meeting for the employees, who were
working for Respondent at the grocery outlet in Grass Valley, at a
pizza restaurant in that city. The Union’s agents, Thomas Pate
and Mike Moore, conducted the meeting, and approximately 14
employees attended.80 According to Pate, he informed the em-
ployees that, because “there had been an ownership change” and
the Union wanted recognition “from the new owner,” new signed
authorization cards would have to be collected. Thereupon he and
Moore collected an executed authorization card from each of the
employees.81 Later that week, on or about April 24, Pate and
Moore went to the grocery outlet, approached David Cubitt, and
handed him a letter, in which the Union demanded recognition as
the majority representative of the Respondent Cubitt’s employees
and bargaining. The conversation was polite, with Cubitt saying
he would not recognize or bargain with the Union.
The record reveals that, within 2 weeks of the Respondent Cu-
bitts’ refusal to hire alleged discriminatees Tahir and Reider and
Gerald Young and Jonathan Wooldridge, the four former employ-
ees and their friends and relatives began picketing on the sidewalk

78 Hundevadt described Vandergrift as crying while speaking to the
Cubitts.
79 Vandergrift stated that this began in January 1995 when phone
calls from Tahir and her to the Union were not being returned. “We did
not feel they were looking out for us. . . . We both felt the same way.
We wanted to distance ourselves from the Union. The Union was
involved with [a] strike. When that was resolved, we started hearing
from them again. My feeling was already completely changed. Debbie
was not sure.”
80 Rebecca Vandergrift, who professed disenchantment with the
Union, attended the meeting.
81 The employees, who signed authorization cards were Sharlene
Sutton, Scott Ashley, Diane Bartlett, Ysidra Hundevadt, Carma Law-
son, Margaret Leatherman, David Mallette, Tim Mercado, Eric Paul,
John Slaughter, Cheryl Sullivan, Sandra Tate, Rebecca Vandergrift, and
Dorothy Van Buskirk. Brenda Cubitt admitted that the employee com-
plement, at the time, numbered 24.
in front of the grocery outlet.82 They carried placards, protesting
what happened to the former employees as unfair83 and their re-
placement by workers from outside Grass Valley, and distributed
leaflets, stating that the new operators of the grocery outlet were
unfair, to patrons of the grocery outlet and bypassers. The record
further establishes that the Cubitts themselves protested the picket-
ing by distributing leaflets, explaining their reasons for refusing to
hire the former employees, to customers as they entered the store.
In addition, according to Darla Hernandez, Tahir’s sister, on the
second day of the picketing, the Cubitts approached her, and “they
asked me why I was there. I told them I was there on my sister’s
behalf, and she told me to get a real job. He also asked me where
I worked.”
Paragraph 9(h) of the amended consolidated complaint alleges
that attorney Robert Tiernan, while acting on behalf of Respon-
dent, engaged in conduct, violative of Section 8(a)(1) of the Act,
by harassing the picketers. Apparently, the crux of this allegation
concerns alleged incidents, which occurred on May 6. Union
agent, Mike Moore, testified that, on said date in the early after-
noon, he received a telephone call from one of the picketers at the
grocery outlet, who told him “that they needed a Union represen-
tative up there immediately” because the company attorney
“would not leave them alone.” Thereupon, according to Moore,
he drove to Grass Valley, parked in the parking lot in front of the
grocery outlet “shortly before 2:00 p.m.” and sat in the car in order
to observe what, if anything, occurred. Moore further testified
that he sat in his car for 10 to 15 minutes and observed attorney
Tiernan, whom he recognized, continually “going up to the pick-
eters, who were walking on the sidewalk between the grocery
outlet and the parking lot. I could not hear what was being said.
There would seem to be an argument. They would move, he’d
follow them. And it was basically what I was told. . . . he kept
following them around and hassling them.” Eventually, Moore
testified, he left his car, approached Tiernan, and confronted him
“in front of the store” by some pallets. Moore asked Tiernan to
identify himself, but the attorney refused. Tiernan then asked
Moore to identify himself, and Moore said he was a representative
of the Union. Tiernan uttered a snide remark and walked back
over to the picketers. Hearing a picketer say she did not want to
speak to Tiernan, Moore asked the pickets if Tiernan was “harass-
ing” them. Another picketer said the man’s name was Bob Tier-
nan, and Moore twice requested that Tiernan leave the picketers
alone and said he could not legally do what he was doing. Tiernan
ignored Moore and continued attempting to start conversation
with the picketers. Once, according to Moore, Tiernan said to a
picketer, “if you keep picketing bad things will happen here.”84
At this point, Moore, who felt “frustrated” because Tiernan was
82 There is no record evidence that the Union instigated the picketing
or that the picketing was undertaken on behalf of the Union. However,
as will be discussed infra, there is no question that the Union supported
the picketing.
83 One such placard was hand printed and read, “PLEASE DON’T
SHOP HERE THIS NEW OWNER IS UNFAIR.”
84 Moore’s account of what occurred before he went into the store
was corroborated by alleged discriminatee Tahir, who testified that
Tiernan “was following some of the picketers around” that day. She
added that Tiernan was “harassing people, telling people to leave, fol-
lowing my daughter around.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1476
ignoring his concerns and would not discontinue following the
picketers, decided go inside the grocery outlet and speak to David
Cubitt, who was in charge of the store and presumably could con-
trol Cubitt, and left the picketers and walked inside the store. An
alleged shoving incident, which occurred inside the store, is the
subject of a separate alleged unfair labor practice allegation and
shall be discussed infra. There is no record evidence that any of
the Respondent Cubitts’ employees were outside observing Tier-
nan’s conduct or that what occurred at the scene of the picketing
was observed by any employees inside the store.
Union Agent Moore testified that, after the alleged shoving in-
cident, he “deployed” the picketers on the sidewalk area and that,
after a few minutes, Tiernan came back outside and resumed en-
gaging in the same behavior as before the alleged shoving inci-
dent. According to Moore, he attempted to move the picketers
away from Tiernan, but the latter continued to harass the picketers.
Shortly thereafter, Moore testified, David Cubitt walked outside
and “was following Bob around. At some point, Moore went to
his car, returned with a video camera and commenced taping
Tiernan’s activities; upon observing Moore, Tiernan “ceased his
activities and left the picketline.” During his testimony, while
denying that Tiernan was acting pursuant to his instructions,
David Cubitt85 admitted that Tiernan had been outside prior to the
alleged shoving incident but insisted that the Respondent Cubitt’s
attorney “was out there trying to be friendly. . . . He was out there
trying to make conversation.” Also, Cubitt admitted going outside
after the alleged shoving incident and following Tiernan as the
latter was attempting to speak to the picketers. For his part, Tier-
nan conceded that he spoke to the picketers on occasion but that
“the only thing I would ever say to [them] is hello, how are you
. . . I never talked about what they were doing.”86 However, not-
withstanding the testimony of Cubitt and Tiernan, Moore’s video-
tape of the incident shows Tiernan following a picketer, Vikie
Young, and the women attempting to move away from him. Fur-
ther, Moore can be heard on the tape, asking Young if she wants
to speak to Moore. She replied, “No, I don’t want to talk to him.”
Also, Tiernan can be heard telling Young to “picket in the right
area.” Finally, with regard to what allegedly occurred during the
above portion of the harassment incident, while there is no record
evidence that any employees observed what occurred,87 I note that
Union agents, Moore and Pate met with the individuals, who
worked at the grocery outlet, on the following Monday and that,
according to Rebecca Vandergrift, what occurred on Saturday was
discussed.
Paragraph 9(i) of the amended consolidated complaint concerns
the alleged shoving incident, which occurred in the midst of attor-
ney Bob Tiernan’s alleged harassment of the picketers on May 6.
In this regard, as stated above, Union Agent Mike Moore became
“frustrated” over not being able to convince Attorney Tiernan to

85 Cubitt asserted he always treated the picketers “with kindness,”
taking them water on occasion.
86 Deborah Tahir testified that there was “no reason” for Tiernan to
be speaking to the picketers at all, let alone to say hello to people with
whom he was not acquainted.
87I shall grant counsel for the Acting General Counsel’s motion to
withdraw that portion of the relevant amended consolidated complaint
paragraph, alleging that Respondent threatened to call the police on the
picketers.
cease harassing the picketers and, at, by his own estimate, “about
2:30 in the afternoon, walked from the parking lot into the grocery
outlet store to speak to David Cubitt about controlling his attor-
ney. There is no dispute that, at the time, many customers were
waiting at the checkout stands and that the cashiers were busy
helping them. According to Moore, who entered the grocery out-
let through the door, marked “Do Not Enter,”88 he walked to the
area in front of the last checkstand, noticed Cubitt working “in one
of the center check stands. . . . And I [shouted] . . . ‘Can I have
your attention, David?’ . . . I pointed outside through the windows
at Tiernan who was still [next to the picketers], harassing them.
And I said ‘Alls I want to know is that man working? Do you
have any control over that individual?’ And Dave kind of froze
and looked at me. And some of the checkers . . . turned around
. . . . There was a lot of customers.” With Cubitt now staring at
him, Moore repeated his questions and threatened “to call the
police if he does not stop.” At this point, according to Moore,
Tiernan, who must have noticed through the windows that Moore
was inside the store (Moore was standing between the middle exit
doors and the left-side door), hurried into the store through the
right-side entrance door. “He came running in at me, very angry
look upon his face. And he had both hands out and struck me in
the chest . . . . I lost my balance. I went back on one of my legs
. . . made my balance, and then at that time he did the exact same
thing and struck me again in the chest . . . it felt like a fist. And at
that point, I was back near the door I’d come in.” Moore added, “I
was going backwards out the door. I was walking backwards and
. . . under the momentum of the last hit.” Moore quickly recov-
ered his balance and walked back to the picketers. He recalled
being inside the grocery outlet for no more than “just a couple of
minutes.”
Three witnesses offered testimony, ostensibly corroborating
Union agent Moore’s version of the alleged shoving incident.
Picketer Darla Hernandez testified that she was no more than six
feet away while Moore was standing “outside” the left-side door
of the grocery outlet and speaking to a man inside the store, who,
“everyone” said, was named “Bob” and was the lawyer for the
grocery outlet. The man asked Moore to identify himself. Moore
identified himself as a Union representative and asked Bob to
identify himself. Moore repeated his demand “several times.”
Bob said nothing other than to demand that Moore “remove him-
self from the store.” When Moore repeated his request for the
man to identify himself, Bob “pushed him, shoved him on his
shoulders, and told him to leave the store or he was going to call
the cops.” Moore “stumbled back. He didn’t fall.” Picketer,
Vikie Young, testified that, when Mike Moore arrived where the
picketers were standing, he was informed that the grocery outlet’s
lawyer had been outside talking to them. Thereupon, Moore
walked away the picketers toward the store and went into the store
through “the right door.”89 According to Young, the picketers
were not far from the right-side door90 and could overhear Moore,
88 Moore specifically denied that any sign, denying entry, was posted
on the left-side door and averred that “people go in and out of all doors,
all three of those doors in both directions. I’ve see that.” Also, he
stated that the door was open—”Its normally an entrance door.”
89 Young described the door as “one of those doors that stay open as
you walk through.”
90 Young placed herself to the left of the double exit doors.
GRASS VALLEY GROCERY OUTLET 1477
who was inside the store, “ask[ing] who the lawyer was. Bob
would not identify himself.” Then, Young testified, Moore turned
left and walked past the checkout stands to the other door—“the
door on the far left.”91 As he did so, Moore encountered the law-
yer “by the windows” and “they moved and proceeded to go in
front of the windows.” At this point, according to Young, “You
could see them talking, but you couldn’t hear . . . what they were
saying.” She continued, “Then when they got to the door on the
far left . . . you could see . . . them talking. . . . And then you saw
Bob push Mike out the door.” Elaborating, Young observed the
lawyer place his hands “on Mike’s chest,” and “Mike came out
the door. . . . backwards.” However, “he regained his balance”
and did not fall down.92 As to the push itself, Young saw one
push—“both hands on the chest.” During cross-examination, after
denying that Moore informed the picketers that he had been
shoved, Young was confronted with her pretrial affidavit in which
she stated that Moore told the picketers he had been pushed by the
attorney. Finally, as to whether Young’s view of what occurred
inside the store may have been impeded, analysis of Mike
Moore’s videotape of the picketing that day establishes that the
front windows of the grocery outlet were partially covered with
holiday decorations.
The most controversial of those witnesses, who ostensibly cor-
roborated Moore’s version of the alleged shoving incident, was
Dorothy Van Buskirk, who worked at the grocery outlet as a cash-
ier until August 18, 1997. She testified, on May 6, “I was at the
register taking care of customers. . . . At first, I didn’t see any-
thing. I heard voices asking if he would like to leave the store. I
turned around and Mike was being pushed out the door and asked
to leave the premises, that he wasn’t wanted.” According to Van
Buskirk, when she turned around, she observed attorney Tiernan
and Moore standing “in front of the double doors going out,” the
middle doorway and Tiernan’s hands on Moore’s chest; “[Tier-
nan] asked him to leave and . . . pushed him out the door.” Con-
tinuing, she denied that Moore fell over backwards; “he shook a
little bit—kind of wobbled to keep his balance, and he walked
out.” Respondent sought to undermine the reliability of Van
Buskirk’s testimony. Thus, David Cubitt testified that, after the
incident, he asked every employee, who worked that day if he or
she had witnessed the incident; Van Buskirk replied “that she
never saw a thing.”93 Brenda Cubitt testified that, on May 6, Van
Buskirk was scheduled to work in the freezer area from 6 a.m.
until 2:30 p.m., and the employees’ work schedule for the week of
April 30 through May 6 establishes that, rather than working as a
cashier, Van Buskirk was scheduled to work her entire eight hour
shift in the freezer on May 6. Testifying in rebuttal, Van Buskirk
stated that she “. . . just worked part of the day” at a checkstand—
“long enough for breaks or lunch,” perhaps a half an hour. On this
point, Brenda Cubitt conceded “Dottie could have been called” to
work at a checkstand. Further, Rebecca Vandergrift testified that

91 Young stated that the left side door was “usually” kept locked but
“because there was a protest going on out front, they had both doors
going for in and out.” She was not sure whether the left-side door
automatically opens or must be manually opened.
92 Young recalled that, as the lawyer pushed Moore back toward the
door, “the door opened.” She was unsure if Moore’s back hit the door
or it opened automatically.
93 Van Buskirk did not deny this testimony.
she attended a meeting, scheduled by the Union, on May 8—2
days after the alleged shoving incident.94 At the meeting, accord-
ing to the witness, “I asked [Van Buskirk] what had happened. . . .
She said I don’t know. . . . Dottie said she was working freezer at
the time and she was filling her cart . . . . By the time she got up,
she heard the commotion, and the commotion had already hap-
pened.”95 Testifying in rebuttal, Van Buskirk originally denied
having spoken to Vandergrift about the events of May 6; however,
after being informed of what Vandergrift testified Van Buskirk
told her, the latter changed her testimony, stating that she could
not recall speaking to Vandergrift about the alleged shoving inci-
dent.
Respondent concedes that an incident, involving Mike Moore,
did occur inside the grocery outlet on May 6, but denies that what
happened included attorney Tiernan shoving Moore. Robert Tier-
nan testified that, early in the afternoon, he was inside the store in
the candy section, which is located to the left of the left-side en-
trance, when “I heard shouting, identify yourself, identify your-
self. . . . I turned my head. I saw Mr. Moore coming in the em-
ployee door . . . . I was probably about 10–15 feet away from him,
where the coffee pot is. I immediately turned and went over to
him. I was walking towards him. . . . My hands were up. I was
saying just one thing, out, out, out. . . . My arms were going
straight up and my fingers were pointing out, and motioning out
the door.” According to Tiernan, Moore noticed him approaching
and asked “Who are you? I did not engage in any conversation
with Mr. Moore. I just continued to say out, out, out. Where I
met him, his feet were just about a [foot] on the rubber mat. . . . I
was about 18 inches apart from him, telling him to get out. . . . Mr.
Moore started to walk backwards. I walked with him backwards.
And about a foot or two inside the door, he turned around and
went out the door.” David Cubitt testified that, at the moment
Moore came inside the store on May 6, he was working at check-
stand 2, attorney Tiernan was in the candy section,96 and his wife
was upstairs in the office. According to Cubitt, Moore walked
into the store through the employee entrance,97 turned toward
Tiernan, and began shouting identify yourself, identify yourself.
He added that he first noticed Moore when the latter was 10 or 12
94 Vandergrift testified that she had not been scheduled for work on
May 6, but that, on said date, Tahir telephoned her and said something
had happened that day and Moore would tell them about it at the Union
meeting.
95 The freezer is located in the back of the facility.
96 Counsel for the Acting General Counsel argues that Cubitt admit-
ted “I am positive Bob Tiernan came in the store when [Moore] came
in the store” and that, therefore, this corroborates Moore that Tiernan
followed him into the grocery outlet. However, I am not as sanguine as
counsel as to the proper interpretation of Cubitt’s comment and believe
her view is questionable. Thus, in the transcript, the sentence is punc-
tuated with a question mark, and Cubitt did not say that Tiernan fol-
lowed Moore into the store.
97 According to Cubitt, the left-side or employee entrance door may
only be opened in and does not close automatically. A person must pull
the door shut, and the door was closed prior to Moore entering the
store. Cubitt also testified that, “on occasion,” customers have entered
the store through the employees’ door.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1478
feet inside the grocery outlet and shouting.98 As soon as Moore
began shouting, Cubitt and Tiernan began walking toward him,
“and we all met right there. Mr. Moore started to leave because
Bob was asking him to leave. Then, he said do not touch me and
the two of them stepped to the threshold.” Cubitt conceded that, at
one point, not getting any response from Tiernan, Moore turned to
him and asked if Tiernan was an employee. Tiernan was standing
“in front” of Moore, gesturing with his fingers, and Moore exited
the store backwards with both feet on the ground and without
losing his balance. Finally, asked if was possible that Moore
could have followed Tiernan into the store, Cubitt replied, “It
would have been impossible without me seeing him. Mr. Tiernan
was shopping for candy.” Brenda Cubitt testified that she was in
the upstairs office at the time of the incident, and “what got my
attention was Mr. Moore’s yelling identify yourself, identify your-
self. And I looked down. I had a perfect view of the front of the
checkstands. And I saw him yelling. Saw [Tiernan] going to-
wards him and Dave was somewhere in that vicinity, too. . . . I
saw [Tiernan] walking towards Mr. Moore and Mr. Moore back-
ing out. . . . I couldn’t see Mr. Moore actually leave the store be-
cause he was out of my range.” Further, Brenda Cubitt stated that
Moore was approximately four feet inside the store entrance when
she first saw him and denied that Moore ever walked in front of
the checkstands or was shoved by Tiernan in front of the check-
stands. During cross-examination, Mrs. Cubitt admitted that, as
Moore was backing out, she heard him yell “something like don’t
touch me.”
In addition to the Cubitts and Tiernan, three employees testified
with regard to the alleged shoving incident. Robin Sobecki, who
followed the Respondent Cubitts to Grass Valley from Yuca Val-
ley,99 who was the head cashier for the Cubitts in May 1995, and
who was stationed at checkstand 1 on May 6 between 2 and 3
p.m., testified that she was working, “and I heard a loud commo-
tion to my left. When I turned around . . . I saw both [Bob Tier-
nan] and Michael . . . Moore. I saw Mr. Moore’s back facing
towards the front of the store and [Tiernan’s] back was facing
towards the back of our store and [Tiernan was] talking to Mi-
chael, saying out; and Michael was yelling at [Tiernan] with his
finger in [Tiernan’s] face, saying identify yourself. And then . . .
Michael walked backwards as you were walking forwards and he
left the store.” Sobecki, who estimated she was 20 to 25 feet from
Tiernan and Moore, added that “there was a definite space be-
tween” Tiernan and Moore and denied seeing the lawyer touch
Moore and the latter stumble backwards—“I never physically
seen [Tiernan or Moore] touch each other.” During cross-
examination, Sobecki described Tiernan as having his arms “just
above shoulder level with his finger pointed out.” Also, she con-
ceded that departing customers may have hindered her view for
“moments, seconds” and that Moore told Tiernan not to touch
him—“he was yelling . . . don’t touch me.” Finally, Sobecki de-
nied continuing to work during the incident and stated that she did
not see David Cubitt anywhere in the vicinity of Tiernan and

98 Asked how Moore could have known Tiernan was the lawyer, Cu-
bitt testified that the attorney had been outside with the picketers 15
minutes before.
99 The record reveals that the Respondent Cubitts paid part of her
moving expenses.
Moore. Diane Bartlett, who is a cashier at the grocery outlet in
Grass Valley and was working at checkstand 5 on May 6 between
2 and 3 p.m., testified that, while working, “I heard somebody say
identify yourself. I heard that several times, and I turned and
looked up, and I saw Mr. Moore with his hands up and [Tiernan
and Moore] were like face to face right at the door. After that, he
said it a couple more times.” Bartlett added that the two men were
by the left-side door and that she saw Moore leave the store
through that door. Bartlett denied seeing Tiernan touch Moore
during the incident and did not see Moore stumble. As to how the
Union agent left the store, “Moore had backed up and was starting
to turn to go towards the parking lot. . . . He had taken a couple of
steps and it looked like he was turning at the time I went back to
what I was doing.” Finally, Bartlett could not be sure she would
have seen Tiernan hit Moore; she did not see Dave Cubitt in the
area; and the distance between Tiernan and Moore was “about a
foot.” The third employee, Pamela Bennett-Heib, who was work-
ing as a cashier at checkstand 3 between 2 and 3 p.m. on May 6,
testified that “. . . it caught my attention when [Tiernan] and Mr.
Moore were at the door, which was the employees’ entrance, and
he was yelling identify yourself and [Tiernan was] saying out.”
Bennett-Heib denied that Tiernan touched Moore or that the latter
stumbled backwards out the door. Rather, the incident ended
“with Mr. Moore backing out of the door. [The two men] were
about a foot apart.” The witness added that Tiernan held his hands
“at shoulder level” with his fingers pointed out. During cross-
examination, Bennett-Heib conceded she did not see the entire
incident, said she did not see Dave Cubitt during the incident, and,
while again saying she did not see Tiernan shove Moore, admitted
signing a sworn statement in which she stated she had seen Tier-
nan push Moore.100
Ysidra Hundevadt testified that, as the picketing continued
through May, both David and Brenda Cubitt became increasingly
upset and “angry” over what was occurring on the sidewalk out-
side the grocery outlet. “It was a very upsetting time,” and “I
100 As to her contradictory sworn statement, Bennett-Heib testified
that, “after thought, in retrospective, I can’t really tell for sure.” Under
further questioning, she conceded now being unsure as to what oc-
curred. Also, with regard to the witness’s memory, she averred that she
was able to recall the incident but could not recall giving a pretrial
affidavit to a Board agent.
During rebuttal, alleged discriminatee, Sharlene Sutton, testified
about an asserted conversation with Bennett-Heib. “I was working the
back of the store at the time. She came running back there real fast and
goes, you’ll never guess what just happened. . . . Bob, the attorney, just
hit the little guy from the Union. I go, you mean he slugged him. She
goes, no, he smacked him in the head. I go, wow. . . . She said they
have recalled the other cashiers into the office and are talking to them
now, and making them sign something.” According to Sutton, she
spoke to an employee named “Sandra” 20 minutes later, but the latter
wouldn’t comment about what occurred. Sutton conceded that, if San-
dra was not working that day, she could not have said anything. Sutton
then averred that she was not positive whether the second person to
whom she spoke was Sandra or Van Buskirk. The latter denied saying
anything to Sutton about the incident, and “Sandra” was not scheduled
for work on May 6. Bennett-Heib was not called as a witness to con-
firm or deny Sutton’s testimony.
Finally, as will be discussed infra, notwithstanding Brenda Cubitt’s
admission that she solicited employees to sign a petition regarding the
picketing, Bennett-Heib denied that Cubitt did so.
GRASS VALLEY GROCERY OUTLET 1479
heard [both Cubitts] say the picketing was hurting the store. A
couple of times, they asked if anybody wanted to go home be-
cause the business had gone down.” Also, according to Hun-
devadt, “I know Dave came up very angry a couple of times into
my office and would say, what’s going on, why are they doing
this?”101 Then, he would turn to Hundevadt and “. . . would ask
me are you with us or are you against us?” Moreover, there is no
dispute that, while the picketing was on-going, Respondent posted
at two locations in the grocery outlet and solicited employees to
sign what counsel for the Acting General Counsel characterizes as
“. . . a petition denouncing the employees’ union activities,” con-
duct, which is alleged in the amended consolidated complaint as
being violative of Section 8(a)(1) of the Act. This document,
General Counsel’s Exhibit 23, states, at the top, in large, bold
print, “WE ARE NOT ON STRIKE” and, at the bottom,

Thank you for your patronage. We want to be sure you know
that none of the people outside picketing are Grass Valley
grocery outlet employees. We are all happily employed and
are receiving competitive wages and benefits from our em-
ployer. This is a family owned and operated business and we
are all inside the store ready to serve you as always. Come
back and see us again soon and PLEASE BRING YOUR
FRIENDS.

Carma Lawson testified that, one day while the picketers were
outside the grocery outlet, “Brenda Cubitt came around and
was asking the employees to sign it.” She spoke to Lawson,
and “she said they were not there to cause any problems and if
we signed this, it would put everybody at ease. . . . I told her I
did not want to get involved. She told me it would help, so I
signed it.” Lawson added that she saw Brenda Cubitt soliciting
other employees to sign the document. Likewise, Ysidra Hun-
devadt testified that Brenda Cubitt asked her to place her signa-
ture on the document, explaining it was “just telling the public
we were not on strike.” Besides direct solicitations, David
Cubitt testified that his wife Brenda “posted [the document] on
the front door” and Pamela Bennett-Heib, who denied that
Brenda Cubitt solicited employees to sign the document, saw it
posted on a bulletin board near the timeclock. Mrs. Cubitt ad-
mitted soliciting employees to sign the document but explained
that she was merely attempting to inform customers that the
picketing was not as a result of a strike by the grocery outlet’s
employees and that she “did it in a hurry.” Finally, she con-
ceded not informing employees they were not required to sign
the document.
The final amended consolidated complaint allegation, stem-
ming from the picketing outside of the grocery outlet, concerns
employee, Sharlene Sutton, who signed authorization cards in
October 1994 and April 20, 1995, and the contention that, rather
than having voluntarily quit her employment at the grocery outlet,
she was constructively discharged by Respondent. As to this
allegation, Sutton, whose job as a bagger/trasher involved placing
customers’ groceries in bags, collecting empty food baskets, and
cleaning the merchandise shelves, testified that she desired to
show support for the picketers by carrying a placard and that she
had been told she could do so as long as she did it on her own time

101 Hundevadt did not perceive these comments as questions.
and not during working hours. On Friday, May 5, Sutton arrived
at the grocery outlet a half hour before the scheduled start of her
work shift, obtained a placard, and joined in the picketing. How-
ever, Brenda Cubitt noticed what she was doing, “came out and
said what are you doing . . . you can’t do that. I go, I was told I
could . . . She goes you can’t do that . . . it is illegal. I said I was
told I could do this as long as it was on my time.” Mrs. Cubitt
walked back inside the grocery outlet and, five minutes later, re-
turned, asking “. . . are you going to continue doing this or what?”
Sutton responded that she was going to picket until it was time to
report for work. “She goes, why are you doing this. We liked
you. I said . . . I am doing this because we need this. She goes,
you are suspended for five days.” About 10 minutes later, a cus-
tomer approached and asked Sutton what was happening. As
Sutton was explaining her predicament, David Cubitt came out of
the grocery outlet, “walked up and said don’t listen to her; she is
supposed to be working and not here doing this. I said that is a lie.
They just suspended me for picking up the sign on my time off of
work.”102 Alleged discriminatee, Marilyn Reider must have ob-
served what occurred, for she immediately informed Union agent
Pate about Sutton’s suspension. Shortly thereafter, according to
Sutton, Pate came to the grocery outlet and spoke to David Cubitt
about her suspension. After meeting with Cubitt, Pate instructed
Sutton to go home and to telephone Cubitt. “I called and Dave
said they were wrong, that they were sorry and I could come back
to work and they would pay me the two hours that I didn’t work.”
The next morning, May 6, Sutton reported for work and worked a
normal shift, starting at 11 a.m.103
According to Sutton, for the next 5 days, her work shift “stayed
the same. They were not as friendly, but they were not mean.”104
However, on a Thursday, the 6th day after her suspension, “I was
working on the bagging job and Dave came up and said some-
thing about doing the freezer. Dave was not very friendly. His
tone wasn’t nice. The freezer guy looked at me with raised eye-
brows . . . . I started doing what he told me to do. Brenda comes
out the back room and said I want you to get back there and clean
the break room now.”105 Sutton protested that David Cubitt had
instructed her to fill the freezer, but Brenda insisted that she clean
the break room. Sutton did as she was ordered,106 working five
minutes into her scheduled break when she heard a call for her to
do retrieve empty grocery carts. At this point, according to Sut-
ton, “I had a feeling that they were trying to get me. I got emo-
102 Brenda Cubitt conceded that the employees, who were working at
the time, must have become aware of the suspension of Sutton–we are a
tightly knit store. I’m sure people were aware of what happened.”
103 Sutton was paid for the 2 hours of work she missed that day.
Counsel for the Acting General Counsel does not allege the events
of this day as an unfair labor practice.
104 During cross-examination, Sutton characterized the Respondent
Cubitts as ignoring her.
105 Sutton characterized David Cubitt as being “not very friendly”
and “his tone wasn’t nice.” She viewed Brenda Cubitt as not being
polite to her.
106 Sutton maintained that she had never been asked to clean the
break room before.
Apparently, rather than protesting the cleaning work itself, Sutton’s
complaint goes to the Respondent Cubitts’ attitude—they “had an atti-
tude behind it that made me feel like they were after me.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1480
tionally upset and scared.”107 Peggy Arnold, “one of the manag-
ers,” saw her and asked if something was wrong. Sutton replied
that she was not feeling well and wanted to go home sick and that
“they wanted me to do this and this and I can’t do it; I don’t feel
well.” Arnold replied that it was alright for her to leave work, and
Sutton went home.108 Continuing to believe that “they were try-
ing to get rid of me,” Sutton telephoned a company, which had
offered her a higher-paying job in March or April, which offer she
had declined after speaking to Rebecca Vandergrift.
Sutton returned to work the next morning, a Friday, and noticed
her work schedule had been changed—”I was taken off the freezer
job which meant I didn’t have to work evenings. I was really
disappointed.”109 Instead, she was scheduled to work the trasher
job “full-time afternoons.”110 Sutton immediately went to find
Peggy Arnold and asked why that had happened. She said they
just want to try Diane out.” According to Sutton, no one had in-
formed her that her work schedule would be changed, and her
schedule had never been changed previously without someone
telling her. Next, Sutton testified, on the following Monday, May
15,111 she again telephoned the company, whose job offer she
previously had declined, and said she now would accept the offer.
Sutton explained, “I went for a job because I was frightened that I
was not going to have one.” Then, after accepting the new job, “I
called Dave up and told him that I would not be coming in that
Tuesday.”
During cross-examination, as to this last conversation, Sutton
conceded that, when she announced she would not be reporting
for work, Cubitt asked why. She replied that she was quitting, and
he acted shocked. Also, during cross-examination, Sutton con-
ceded that, while her typical daily work schedule had extended
into the evening shift, she had only worked for the Cubitts for a
short time, and “they were changing the store around.” Further,
Sutton stated that, during April, her job changed from that of
strictly a bagger/trasher—“There were certain days that I was the
freezer person,” but, when asked if she was a bagger/trasher work-

107 Sutton admitted that David Cubitt ordered her to clean the bath-
room the week before and that she did so without complaint—”I didn’t
look at it as being bad at all.”
108 Peggy Arnold, who testified on behalf of Respondent, stated that,
while she could not recall, she “might have” given Sutton permission to
go home “if she were very ill.”
109 During counsel for the Acting General Counsel’s direct examina-
tion, Sutton testified that, “on certain days,” her schedule had been 10
a.m. until 5 p.m.; with the change, it was back to 11a.m. to 7:30 p.m.
each day. Later, during cross-examination, Sutton changed her testi-
mony, stating that, when she first started with the Cubitts, her hours
were 11 a.m. until 7:30 p.m. and that these changed to “9:00 to 5:00 on
most days, on the weekend, I was still at 11:00 to 7:30.”
Examination of the Respondent Cubitts’ weekly work schedules, G
C Exh. 104, reveals that Sutton’s normal workday commenced at either
9 a.m. or 11 a.m., with most days starting at 9 a.m. There do not appear
to be any days on which she started work at 10 a.m.
110 Sutton claimed she was the “freezer person” for the Respondent
Cubitts. However, examination of GC Exh. 104, the weekly schedules
for the Respondent Cubitts, reveals that Sutton is always grouped at the
bottom of the schedule with the other bagger/trashers. On each sched-
ule, the freezer person appears to be an individual named “David.”
111 Sutton worked the next day, Saturday. She was off work on Sun-
day and Monday and quit her job on Tuesday.
ing for the Cubitts, she replied, “yes.” On these points, Sutton
said that the Respondent Cubitts had a full-time person, named
Dave, taking care of the freezer but that “they needed two people.”
With regard to Brenda Cubitt’s assignment to clean the break
room, Sutton conceded that the Respondent Cubitts did not em-
ploy a janitor during the day, that she cleaned the bathroom the
week before without objection, and that no particular employee
was assigned to clean the bathroom or break room.112 Finally,
during cross-examination, Sutton testified that, while cleaning the
break room, it was the head checker who called and asked to do a
grocery cart run, which was part of her job responsibilities. She
conceded that the person did not know that Brenda Cubitt had
asked her to clean the break room but did know it was her break
time.
With regard to Sharlene Sutton, Carma Lawson testified that,
prior to her picketing, Sutton “worked in the front in bagging and
carry out,” and “basically she would do her work and nobody
bothered her.” However, according to Lawson, after Sutton’s
picketing and suspension, she observed David Cubitt ask Sutton
such things as where had she been and say she wasn’t doing her
job. Also, rather than strictly doing bagging and carry out work,
Sutton “was doing clean-up of ‘spills, broken jars.’” With regard
to cleaning the break room, Lawson further testified that, while
Sutton was assigned to do this after she picketed, “everyone took
turns” cleaning it voluntarily, and “we just did it. No one told us
we had to do it.”113 As to cleaning spills, Lawson said “We did
have a janitor a few times, but not very often. It was whoever was
closest or a manager.” She denied finding this onerous work.
Finally, Lawson recalled seeing Sutton crying one time after
speaking to Dave Cubitt.
With regard her suspension of Sutton, Brenda Cubitt testified,
“It was one of those mornings with the pickets. I looked outside
and I saw Sharlene carrying a picket sign. . . . I really thought that
it was time for her to be on her shift. And I walked out there and I
said to her, Sharlene, you have to make a choice. Are you going
to picket or are you going to work. And she said these are my
friends. I’m going to picket. And I walked back in. . . . I went
back out and I told her that she was suspended for five days.”
Later, that day, according to the witness, after her husband spoke
to an “advisor,” who said they had made a “mistake” and were
wrong to suspend Sutton, she and her husband telephoned Sutton,
and both said they had made a mistake and apologized to her.
During cross-examination, Brenda Cubitt denied being unhappy
because Sutton had picketed—“I wasn’t angry. I was more hurt
when I saw out there picketing with the sign.” In fact, averred
Mrs. Cubitt, “I never get mad at people. . . . I don’t have that in
my personality.” On this point, her husband directly contradicted
Brenda Cubitt. Asked if his wife became really angry that Sutton
was picketing, David Cubitt replied, “Yes, my wife was upset.”114
Further, as to the precise reason she suspended Sutton, notwith-
standing her earlier testimony that such was a mistake prompted
112 She denied that these latter jobs were rotated amongst the em-
ployees.
113 According to Lawson, “We had no set janitor to do it,” and clean-
ing the break room did not cause her to become upset.
114 David Cubitt admitted that his wife told Sutton she was not al-
lowed to picket and continue to work at the grocery outlet.
GRASS VALLEY GROCERY OUTLET 1481
by her belief that Sutton should have been working, a fact which
she easily could have verified by checking the daily work sched-
ule, Brenda Cubitt later admitted to the undersigned the reason
was solely that Sutton was picketing.
As to Sharlene Sutton’s work assignments after being informed
that her suspension had been mistaken and was rescinded, Brenda
Cubitt testified that, in May 1995, the Respondent Cubitts em-
ployed “probably” five bagger/trashers, including Sutton, and that
“they bag groceries, they shag carts . . . they [arrange product on
the shelves]. . . . They clean spills, bathrooms, clean break rooms.
They help customers.” As to the cleaning work, Mrs. Cubitt
stated that she and her husband have never employed a janitor to
clean the building, and “when a spill happens, somebody takes
care of it. Every morning, we have the bathrooms gone over. It is
divided up.” Further, according to Mrs. Cubitt, “different people
at different times do the work;” no employees, including mer-
chandisers and bagger/trashers, are exempted from this work; and
Sutton was a bagger/trasher. Confirming Sutton’s testimony,
Brenda Cubitt stated that she and her husband did ask Sutton to
help in the freezer “because it needed doing and she wasn’t doing
anything else at the time. When baggers have free time . . . they
go help [elsewhere].” Mrs. Cubitt also conceded “probably” ask-
ing Sutton to clean the breakroom as “it is something I ask some-
body every day.” She further added that it would not have been
unusual to ask someone, who is cleaning the breakroom, to shag
grocery carts. “The person up front who is taking care of the front
end and sees the carts are low, they automatically call somebody.
The person is always doing something else. . . . that person leaves
what [he or she is] doing and goes gets carts.” Mrs. Cubitt spe-
cifically denied that, after the picketing incident, she treated Sut-
ton different than any other employee and stated that she was
“surprised” when the employee quit on May 15. She added that
Sutton gave no reason except that she had another job, which paid
more money. Finally, asked if Sutton seemed upset when she
quit, Mrs. Cubitt testified, “. . . I don’t remember her being upset.
She was kind of a nervous person.” On this point, Mrs. Cubitt
was contradicted by Peggy Arnold, who testified that Brenda
Cubitt informed her that Sutton had quit and was upset.
The amended consolidated complaint next alleges that Respon-
dent engaged in conduct, violative of Section 8(a)(1) of the Act,
by informing employees that they would not receive their pay-
checks and raises as scheduled because of the Union and would
not receive their raises until all the “`bullcrap’” stopped with the
Union, and that Respondent violated Section 8(a)(1) and (3) of the
Act by withholding employees’ paychecks and raises. In this
regard, Carma Lawson testified that the Respondent Cubitts nor-
mally distributed the employees’ paychecks “on Tuesday”115 but
that, on one Tuesday in April or May, David Cubitt called her,
Vandergrift, and two other employees into the grocery outlet’s
office and holding paychecks in his hand, “told us . . . he planned
to give us our checks but we would not be receiving them that
day. He had planned on giving us a raise, but he had spoken to
Bob Tiernan who told him that it would be considered a bribe.

115 According to Ysidra Hundevadt, while paychecks normally are
distributed on Tuesdays, that is not the employees’ pay day. According
to the witness, the pay day is Wednesday, but “paychecks come in on
Tuesday and Dave is nice enough to hand them out to all of us.”
[Tiernan] told him that he would have to wait until all the bull
crap with the Union was over before we could get our raises.”
Lawson added that the paychecks were distributed the next day
with no raises included. Ysidra Hundevadt testified that she also
was present in the office on that occasion116 and testified that
Cubitt “had checks with all our raises on it and that he could not
give us the checks because it might appear to be as a bribe because
it was before the vote.” David Cubitt specifically denied ever
withholding paychecks from the employees, who worked at the
grocery outlet in Grass Valley in 1995, and in this regard, testified
that, after interviewing all of the Alvernazes’ employees and
learning that none had received pay increases for over a year, he
decided to implement an across-the-board raise in pay, which
would be effective with the employees’ paychecks to be distrib-
uted on May 17. Accordingly, Cubitt instructed his accountant to
prepare paychecks, reflecting a raise in pay for each bargaining
unit employee, and these arrived at the grocery outlet on Tuesday,
May 16. However, during the day, according to Cubitt, he “was
talking to [Bob Tiernan] over a different matter. I said I had given
everybody a pay raise. [He] told me that I could not give every-
body a raise.” Thereupon, “I called my accountant and told him
that I had to reissue the checks at the old pay rates. . . . They were
delivered on Wednesday, the regular pay day.” Cubitt further
testified that, when employees requested their paychecks on Tues-
day, “I told them that I made a mistake” and that he posted the
following notice, regarding the delay in distributing the pay-
checks”

TO ALL OUR FELLOW EMPLOYEES:
AS YOU KNOW I HAD MADE A DECISION TO
GIVE RAISES TO MOST EMPLOYEE’S. I HAVE
JUST BEEN INFORMED BY OUR COMPANY
ATTORNEY (BOB TIERNAN) THAT THE NATIONAL
LABOR RELATIONS BOARD PROHIBITS RAISES
WHILE AN ELECTION IS PENDING WITH THE
NATIONAL LABOR RELATIONS BOARD.
I REGRET THAT I WILL NOT BE ABLE TO GIVE
THE RAISES I FEEL BY CREW DESERVES!!!!!!! I
APOLOGIZE FOR THE MISUNDERSTANDING.
IF YOU HAVE ANY QUESTIONS PLEASE CALL
THE NATIONAL LABOR RELATIONS BOARD . . . .117

Paragraph 12(e) of the amended consolidated complaint alleges
that, during the spring and summer of 1995, Respondent unlaw-
fully “granted employees raises, additional vacation time, man-
ager awards, cash awards, and/or the opportunity to work over-
time because they opposed the Union.” In this regard, the record
establishes that, while, as set forth above, the Respondent Cubitts
gave no raises in pay to their employees prior to the representation
election, which was conducted by the Regional Director of Region
20 on June 12, they gave pay raises to most of said employees in
the pay period immediately following June 12. Thus, analysis of
the Respondent Cubitts’ payroll records discloses the following
116 Hundevadt testified that, in the office with Cubitt, were herself,
Lawson, Peggy Arnold, and Rebecca Vandergrift.
117 Given the opening sentence of the notice, I am convinced that the
Respondent Cubitts previously had informed employees that they
would be receiving raises in pay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1482
information with regard to hourly wage rates immediately before
and after the election:

hourly wage rates immediately before and after election

June 14, 1995 June 28, 1995
Alcano 5.25 5.75
Arnold 7.50 8.00
Bartlett 5.50 6.00
Bennett-Heib 5.50 6.00
Hundevadt 7.50 7.75
Lawson 5.75 6.25
Leatherman 5.00 5.50
Mallette 6.50 7.25
Mercado 5.00 5.25
Paul 5.25 5.40
Slaughter 6.00 6.75
Tate 5.00 5.50
Van Buskirk 5.25 5.75
Vandergrift 6.50 7.50

The three employees, who received the highest hourly raises
were Rebecca Vandergrift, who received a dollar per hour wage
increase, and John Slaughter and David Mallette, each of whom
received a 75 cents per hour wage increase. Counsel for the
Acting General Counsel argues that these high raises were re-
wards for the three employees’ opposition to the Union. In this
regard, while denying that, on the day the Respondent Cubitts
refused employment to her friend, Deborah Tahir, she informed
the Cubitts of her support for the Union and of her willingness
to give them a chance, Rebecca Vandergrift admitted that, to-
ward the end of the Union’s preelection campaign, she had
become opposed to the Union, and “I told [other employees]
that I was apprehensive and was not sure where it was going. I
had been very disillusioned with the Union and I made that
clear to everybody.” She added that Mallette and Slaughter,
each of whom had signed authorization cards for the Union,
also became disenchanted with the Union “well before the elec-
tion,” that the three of them were the leaders of those employ-
ees,118 who were adverse to representation by the Union, and
that the three held an antiunion meeting at Mallette’s house
prior to the election.
Counsel for the Acting General Counsel further argues that the
same pattern of reward and favoritism, by the Respondent Cubitts,
is present in the amounts of overtime hours, given to Rebecca
Vandergrift, David Mallette, and John Slaughter from early May
through late September 1995, the pre and postelection time period,
and in permitting Vandergrift to take a vacation in July. As to
overtime, she points out that, as compared to the other voting unit
employees, Vandergrift, Mallette, and Slaughter received signifi-
cantly more overtime hours during the above time period than
received by the other employees, working at the grocery outlet in
Grass Valley. In fact, analysis of the overtime hours worked by
the Respondent Cubitts’ employees during this time period119

118 Others included Diane Bartlett and Sandra Tate.
119 Carma Lawson testified that “usually, we did not get overtime”
but that she did ask the Cubitts in May or June about overtime work
and David and Brenda said “that we could not get overtime.” Never-
theless, according to Lawson, “some employees did” receive overtime.
establishes that Mallette worked in excess of 101 hours of over-
time, Slaughter worked 54 hours of overtime, and Vandergrift
worked 47 overtime hours, that Dorothy Van Buskirk was the
only other employee to work more overtime hours than did Van-
dergrift, and that Mallette, Slaughter, and Vandergrift received the
most overtime hours during the two pay periods immediately
before and after the representation election. With regard to the
Respondent Cubitts’ granting permission to Vandergrift to take
vacation, on April 18, the day they became the operators of the
grocery outlet in Grass Valley, the Respondent Cubitts distributed
a document, entitled “wages and benefits” to the employees. In
said document, the Cubitts stated that they were the employees’
“new employer” and announced that their vacation policy would
be “after 1 year, 1 week. After 2 years, 2 weeks vacation.” In this
regard, Carma Lawson testified that, during her employment in-
terview, David Cubitt told her “. . . that our starting date would be
April, when they took over” and that “I would have to wait a year”
before taking a vacation. Subsequently, Lawson further testified,
she asked the Cubitts if she could possibly take a vacation that
year, and “they told me it would not be possible to take my vaca-
tion until 1996.” Notwithstanding their explicit policy, according
to Lawson, Vandergrift, Mallette, and Slaughter were permitted to
take vacations in 1995.120 Lawson was certain that Vandergrift
was on vacation during the first two weeks of July as “I was doing
her job. Also, Dave Cubitt came up to Rebecca and handed her an
envelope. He told her he wanted her to have this before she left to
go on vacation. After Dave walked away, she told me that Dave
gave her vacation pay and she did not expect it.” While the Re-
spondent Cubitts’ payroll records for 1995 do not show any pay
periods during which Mallette and Slaughter were not credited
with having worked any hours, said documents do establish that,
during the 2-week payroll period ending July 28, 1995, Vander-
grift worked no hours and received a bonus payment of $250
during that time period. David Cubitt testified that “all employees
that had worked more than a year for the Alvernazes, after one
year, I gave them credit for that time served for the previous own-
ers.” Then, asked if any employees received a paid vacation in
1995, Cubitt said, “Not from me. They received vacation checks
from the Alvernazes. April 1996 would have been the first year
they started getting their vacation checks.” He added that no em-
ployee was entitled to paid vacation in 1995 “because we did not

During cross-examination, she denied working overtime in May and
June 1995, except for a limited amount in May in order to change the
products in the aisles. From her testimony, one might conclude that
only a favored few employees received overtime work after the Re-
spondent Cubitts became the operators of the grocery outlet in Grass
Valley. However, Lawson’s entire testimony in these regards was
contradicted by the Respondent Cubitts’ payroll records. Thus, these
establish that almost every employee worked some overtime during
every payroll period in May, June, July, August, and September 1995;
that Lawson herself worked in excess of 33 hours of overtime during
this time period; and that, in May and June, she earned overtime during
each pay period.
120 Vandergrift’s alleged vacation will be discussed infra. As to Mal-
lette and Slaughter, the Respondent Cubitts’ payroll records, Respon-
dent Cubitts’ Exhibit 3, establish that Mallette worked regular hours
during each payroll period of 1995 and that Slaughter worked regular
hours during each payroll period through October 4, 1995. As to the
latter, there is no record of his having worked beyond October 4.
GRASS VALLEY GROCERY OUTLET 1483
have the store in operation. The rule was you had to work for the
Cubitts for one year.” Asked, then, if any employee received
nonpaid time off in 1995, Cubitt replied that, “Rebecca received
time to go to Mexico with her husband.” 121 Further, while he
could not recall when he gave it to Vandergrift, David Cubitt
maintained that the $250, which was given to Vandergrift in July,
was a normal department manager’s quarterly bonus payment,122
which policy was announced in the above-described April 18
document, which was distributed to all employees.
There is no dispute that the Respondent Cubitts refused to
extend recognition to the Union as the majority representative
for purposes of collective bargaining of their employees. Para-
graph 17(a) of the amended consolidated complaint alleges that
Respondent engaged in conduct, violative of Section 8(a)(1)
and (5) of the Act, by implementing a retirement plan without
affording notice to or giving the Union an opportunity to bar-
gain. Likewise, there is no dispute as to the applicable facts
underlying this allegation. Thus, on January 27, 1997, the Re-
spondent Cubitts met with all of the employees, working at the
grocery outlet in Grass Valley, and announced implementation
of a retirement plan, for which some, but not all, of the employ-
ees would be immediately eligible. The record establishes that,
commencing in March 1997, employees began signing the nec-
essary documents in order to become eligible for the plan’s
benefits. David Cubitt conceded that he did not offer to bargain
with the Union prior to implementing the retirement plan.
B. Legal Analysis
Initially, I turn to the amended consolidated complaint allega-
tion that Respondent engaged in conduct, violative of Section
8(a)(1) and (3) of the Act, by failing and refusing to hire Marilyn
Reider and Deborah Tahir. In this regard, there is no dispute as to
the applicable Board law. Thus, I note, at the outset, that my de-
termination of the legality of Respondent’s conduct is governed
by the traditional precepts of Board law in alleged union animus
discharge cases, as modified by the Board’s decision in Wright
Line, 251 NLRB 1083 (1990), enfd. 662 F. 2d 899 (1st Cir. 1981),
cert. denied 453 U.S. 989 (1982), approved in Transportation
Management Corp., 462 U.S. 393 (1983). Thus, in order to prove
a prima facie violation of Section 8(a)(1) and (3) of the Act, the
General Counsel has the burden of establishing that the alleged
discriminatees engaged in union activities; that Respondent had
knowledge of such conduct; that Respondent’s actions were moti-
vated by union animus; and that the refusals to hire had the effect
of encouraging or discouraging membership in the Union.
WMRU-TV, 253 NLRB 697, 703 (1980). Further, the General
Counsel has the burden of proving the foregoing matters by a
preponderance of the evidence. Gonic Mfg. Co., 141 NLRB 201,

121 Cubitt placed this as occurring during the pay period ending May
31, 1995. In his posthearing brief, counsel for the Respondent Cubitts
conceded that Vandergrift took her two weeks off “between July 13
towards the end of July.” Further, in accord with Cubitt’s testimony,
based upon the payroll records, it does not appear that she was paid for
these 2 weeks.
122 In her posthearing brief, counsel for the Acting General Counsel
conceded that the envelope, which Lawson observed David Cubitt give
to Vandergrift, may have contained her quarterly department manager’s
bonus check.
209 (1963). However, while the above analysis is easily applied
in cases in which a respondent’s motivation is straightforward,
conceptual problems arise in cases in which the record evidence
discloses the presence of both a lawful and an unlawful cause for
the allegedly unlawful conduct. In order to resolve this ambiguity,
in Wright Line, supra, the Board established a causation test in all
Section 8(a)(1) and (3) cases involving employer motivation.
“First, we shall require that the General Counsel make a prima
facie showing sufficient to support the inference that protected
conduct was a `motivating factor’ in the employer’s decision.
Once this is established, the burden will shift to the employer to
demonstrate that the same action would have taken place even in
the absence of the protected conduct.” Id. at 1089. Three points
are relevant to the foregoing analytical approach. First, in con-
cluding that the General Counsel has established a prima facie
showing of unlawful animus, the Board will not “quantitatively
analyze the effect of the unlawful motive. The existence of such
is sufficient to make a discharge a violation of the Act.” Id. at
1089 fn. 4. Second, once the burden has shifted to the employer,
the crucial inquiry is not whether Respondent could have engaged
in the discharges and layoffs herein, but, rather, whether Respon-
dent would have done so in the absence of the alleged discrimina-
tees’ union activities and support. Structural Composites Indus-
tries, 304 NLRB 729 (1991); Filene’s Basement Store, 299 NLRB
183 (1990). Third, pretextual discharge cases should be viewed as
those in which “the defense of business justification is wholly
without merit,” (Wright Lne, supra at 1084 fn. 5) and the “burden
shifting” analysis of Wright Line need not be utilized. Arthur
Anderson & Co., 291 NLRB 39 (1989). Finally, in alleged hiring
discrimination cases, as involved herein, in order for counsel for
the Acting General Counsel to meet her burden of proof, it is nec-
essary that she establish the availability of jobs, which were de-
nied to the alleged discriminatees. Casey Electric, 313 NLRB 774
at 774 (1984).
Having closely scrutinized the record as a whole, I do not be-
lieve that counsel for the Acting General Counsel has met her
burden of proof that Respondent was unlawfully motivated in
refusing to offer employment to Deborah Tahir and to Marilyn
Reider. Thus, while it is undisputed that Deborah Tahir was one
of the two principal employee organizers of the campaign to gain
representation by the Union, meeting with union officials to plan
the organizing campaign and distributing to and collecting signed
authorization cards from her fellow employees in the parking lot
in front of the grocery outlet, and that Marilyn Reider signed an
authorization card and attended meetings, arranged and conducted
by agents of the Union, there is no record evidence that the Alver-
nazes were aware of Tahir’s active role in organizing the Union
campaign or of Reider’s limited role. Moreover, while there is
record evidence that attorney Robert Tiernan actively sought to
ascertain knowledge of the Union sympathies and activities of the
Alvernazes’ employees123 and that he was present at the grocery
123 I credit Ysidra Hundevadt’s uncontroverted testimony that Tier-
nan asked her to mark on a piece of paper her impressions of the Union
sympathies of each of the Alvernazes’ employees and note the uncon-
troverted testimony of Jonathan Wooldridge that Thomas Alvernaz
interrogated him on the same subject. Further, for reasons stated infra,
I am reluctant to credit Carma Lawson; however, given the activities of
her former husband and of their attorney, I believe it likely that Deb-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1484
outlet at the time the Respondent Cubitts refused employment to
Tahir, Reider, and two others and discussed employment deci-
sions with his clients, there is not a scintilla of record evidence,
establishing that Tiernan actually gained direct knowledge of or, at
least, suspected Tahir’s extensive involvement in the organizing
campaign for the Union or of Reider’s decidedly more limited
role124 or that he discussed his knowledge or suspicions with the
Respondent Cubitts. Acknowledging this deficiency in the record
evidence, counsel for the Acting General Counsel requests that I
draw inferences that “Tiernan’s and the Alvernazes’ repeated
attempts to find out which employees were involved in the union
activity eventually resulted in information being given to them”
and that Tiernan “without doubt conveyed” his knowledge to the
Respondent Cubitts and may have “recommended” the refusals to
hire the alleged discriminatees. Perhaps, if there existed direct
evidence of Tiernan’s knowledge or suspicions, I might draw the
inference that he shared such knowledge or suspicions with the
Respondent Cubitts or, if there was direct evidence that Tiernan
made recommendations or participated in the decisions not to
offer employment to Tahir or Reider, I might draw the inference
that he had direct knowledge of their involvement with the Union
or harbored suspicions as to both alleged discriminatees. What I
shall not do is pile inference upon inference, as suggested by
counsel, in order to conjure the nonexistent facts of suspicion and
knowledge.125
Moreover, I believe that the record as a whole does not estab-
lish that, on the day the Respondent Cubitts became the operators
of the grocery outlet, the day they refused employment to Reider
and to Tahir, the Respondent Cubitts harbored any unlawful ani-
mus. In support of her contention that there does exist record
evidence of unlawful animus, counsel for the Acting General
Counsel initially relies upon the numerous unfair labor practices,
which were allegedly committed by the Alvernazes. However, I
have concluded not only that litigation of said acts and conduct is
time-barred pursuant to Section 10(b) of the Act but also but also
that the Alvernazes and the Respondent Cubitts do not comprise a
single-employer entity and, thus, the latter are not bound by the
Alvernazes’ conduct. Counsel next points to the Respondent
Cubitts’ conduct prior to the election. As to this, while, as shall be
discussed infra, I agree that the Respondent Cubitts’ response to

orah Johnston-Kindel also interrogated employees about her employ-
ees’ union activities.
124 Hundevadt marked the “maybe” column next to each employees’
name, and there is no evidence he ascertained more knowledge from
any other source. Also, if the Alvernazes gained knowledge or har-
bored suspicions of specific employees’ involvement with the Union,
there is no evidence they shared such knowledge or suspicions with
Tiernan.
125 While Tahir’s and Reider’s versions of their employment inter-
views were uncontroverted, I do not place the degree of importance,
attributed to the questions by counsel for the Acting General Counsel.
Thus, contrary to counsel, I do not believe that the questions, posed to
the alleged discriminatees, were designed to enable the Respondent
Cubitts to discover union activists nor that Tahir’s or Reider’s answers
provided clues that they were union activists or adherents. Rather, the
types of questions that were asked begged for affirmative responses,
and I believe that, if asked, any honest employee would have replied in
the same way— that he or she desired better wages, benefits, or work-
ing conditions.
the picketing, which occurred in protest of their refusals to hire
Tahir, Reider, and two other former Alvernaz employees, and
their egregious acts of favoritism towards employees, who were
the primary opponents of Union representation, demonstrated
unlawful animus towards their employees, who supported the
Union, and the Union itself, I believe that such was engendered by
the picketing and did not exist at the time the Respondent Cubitts
decided not to hire Tahir or Reider. Finally, without regard to
whatever else attorney Tiernan may have said to Carma Lawson
after Tahir and Reider were denied employment by the Respon-
dent Cubitts on April 18, notwithstanding that she was uncontro-
verted, inasmuch as Lawson’s demeanor, while testifying, was
that of an oleaginous and mendacious witness,126 I do not believe
that the lawyer volunteered to her that there were other reasons for
the Respondent Cubitts’ actions, which he could not discuss.127
Accordingly, as I do not believe that counsel for the Acting Gen-
eral Counsel has met its prima facie burden of proof by establish-
ing that Respondent was unlawfully motivated in refusing to offer
employment to Tahir and to Reider,128 I shall recommend dis-
missal of the applicable paragraphs of the amended consolidated
complaint.129
Next, I turn to the allegation that, on behalf of Respondent, at-
torney Tiernan acted in violation of Section 8(a)(1) of the Act by
harassing the individuals, who were picketing in front of the gro-
cery outlet in protest of the Respondent Cubitts’ refusals to offer
employment to Tahir, Reider, and two others and note that there
exists a factual dispute as to what occurred during the afternoon of
May 6. Counsel for the Acting General Counsel contends that, on
126 I note that Lawson’s assertions that, except for one occasion, she
never worked overtime during May and June 1995, and that David
Mallette took a vacation in 1995 were utterly belied by the Respondent
Cubitts’ payroll records, which show that she regularly worked over-
time each pay period during May through September of that year and
that Mallette worked regular hours during each payroll period. These
demonstrable falsehoods as to the only portions of her testimony capa-
ble of objective measure leads to the inescapable conclusion that the
remainder of her testimony, for which the only measure of candor is
demeanor, is likewise unreliable. In these circumstances, and noting
her demeanor which was not that of a forthright witness, I shall only
rely upon the testimony of Lawson when corroborated by other, more
credible, witnesses or the record as a whole.
127 This appears to be the basis for the allegation in par. 9(g) of the
amended consolidated complaint. Accordingly, I shall recommend
dismissal of said paragraph.
128 As I believe that she was impeached on this point by her pre-trial
affidavit, I shall place no reliance upon Reider’s assertion that David
Cubitt said “we don’t want you here” after she protested the Respon-
dent Cubitts’ refusal to offer her employment.
129 Assuming arguendo that counsel for the Acting General Counsel
had established the existence of unlawful animus, I believe that Re-
spondent was able to establish that it would have refused employment
to the two alleged discriminatees notwithstanding said animus. Thus, I
credit David Cubitt that, prior to becoming the operators of the grocery
outlet, he and his wife had decided to make their son-in-law the deli
manager instead of Tahir and that, as there were too many managers
and as co-health and beauty aids managers were unnecessary, they
decided to retain the more impressive individual, Vandergrift. Further,
the Respondent Cubitts’ decision not to retain the two alleged discrimi-
natees in other positions were business decisions that should not be
subject to second guessing.
GRASS VALLEY GROCERY OUTLET 1485
the above date, the Respondent Cubitts’ attorney followed the
individuals, who were picketing on the public sidewalk in front of
the grocery outlet, as they marched and harassed them. In these
regards, as between Tiernan and Union agent, Mike Moore, who
was corroborated by Deborah Tahir and a videotape of a portion
of the incident, I credit the former that Tiernan did more than
merely walk alongside and greet the picketers and that he, in fact,
deliberately followed the picketers as they marched and made
objectionable comments, which caused picketers to demand that
he leave them alone. In short, I believe, and find, that Tiernan had
no valid purpose for being in the vicinity of the picketing and that
what he did was for the explicit purpose of harassing them. Re-
garding the legality of Tiernan’s actions, there can be no doubt
that the above picketing constituted conduct, privileged by Section
7 of the Act. Indio Grocery Outlet, 323 NLRB 1138 (1997);
United Supermarkets, 283 NLRB 814 (1987). Moreover, not-
withstanding that none of the picketers were employees of the
Respondent Cubitts, each, nonetheless, was an employee within
the meaning of Section 2(3) of the Act, which includes the work-
ing class in general and is not limited to the employees of a par-
ticular employer, and comments, such as Tiernan’s threats to them
that “bad things” would happen if they continued picketing, were
patently violative of Section 8(a)(1) of the Act. Consolidation
Coal Co., 266 NLRB 670, 673 (1983); Peddie Buildings, 203
NLRB 265 (1973). Inasmuch as Union agent Moore presumably
reported this incident to the bargaining unit employees at a union
meeting two days later, that no employee, who was working in-
side the grocery outlet, may have witnessed Tiernan’s acts and
conduct, is not a relevant consideration. Accordingly, I find that
Respondent engaged in conduct, violative of Section 8(a)(1) of the
Act by harassing the picketers in front of the grocery outlet.
The most contentious of the issues, raised during the instant
hearing was, of course, the alleged shoving incident, between
attorney Tiernan and Union agent Moore, on May 6. At the out-
set, resolving this alleged violation of Section 8(a)(1) of the Act is
fraught with problems, the most difficult of which is credibility.
Thus, rather than testifying honestly as to the best of his recollec-
tion, Tiernan and Moore each impressed me as testifying in a
manner calculated to buttress his party’s legal and factual posi-
tions during the trial, and attempting to rationalize the credibility
of one over the other on the basis of demeanor appears to be an
exercise in futility. Moreover, in considering the ostensibly cor-
roborative witnesses for each, one is confronted with additional
credibility problems. Thus, Moore testified that he entered the
store through the left-side doorway;130 that he shouted in order to
gain David Cubitt’s attention; that Tiernan then rushed into the
store and ran towards him, encountering him near the checkstand
closest to the left-side entrance; and that Tiernan twice placed his
hands on Moore’s chest and shoved him backwards, the last time
propelling him backwards out of the market through the left-side
doorway. However, of the three witnesses, who, Counsel for the
Acting General Counsel asserts, corroborated Moore’s testimony,
Vikie Young contradicted him, stating that Moore went into the

130 Moore was contradicted by photographic evidence and testimony
with regard to whether the left-side door had a “Do Not Enter” sign
posted on it. I reject his testimony that no such sign was posted on May
6.
market through the right side, or customer, entrance, walked past
the checkout stands toward the left-side door, and could be heard
shouting for the Respondent Cubitts’ lawyer to identify himself;
Darla Hernandez contradicted him, testifying that the entire inci-
dent occurred “outside” the left-side door; and Dorothy Van
Buskirk131 contradicted Moore, stating that Tiernan pushed him
out the middle doorway, the customer exit doors. Moreover, and
most significantly, while the three women did agree that Tiernan
pushed Moore, none corroborated the latter’s testimony that Tier-
nan shoved him twice. Moreover, while the witnesses (David
Cubitt, Diane Bartlett, Robin Sobecki, and Pamela Bennett-Heib),
who testified in arguable corroboration of Tiernan, were consistent
that Tiernan was inside the grocery outlet when Moore entered
through the left-side door; that Tiernan approached Moore, shout-
ing for the latter to get out of the store; that Tiernan never touched
Moore; and that Moore did not stumble backwards as he left
through the left-side door, I note that none of the three cashiers
were able to place David Cubitt in the vicinity of the incident, that,
given the facts that she followed the Respondent Cubitts from
Yuca Valley to Grass Valley and was given moving expenses
money by the Cubitts, Sobecki may have been biased in their
behalf, that Bartlett admitted she may have observed Tiernan
striking Moore, and that Bennett-Heib admitted, in an earlier
sworn statement, she saw Tiernan push Moore.
However, notwithstanding any doubts I have as to their credi-
bility, in comparison to those witnesses, who ostensibly corrobo-
rated Moore’s version of the incident, I believe that the witnesses,
who testified on behalf of Respondent and in support of Tiernan’s
version of events, exhibited the candor of more reliable witnesses.
In this regard, I note that, in direct contrast to the witnesses, who
testified on behalf of the General Counsel and who contradicted
Moore on important points, Respondent’s witnesses’ accounts
were consistent with that of Tiernan.132 Accordingly, I find that,
at approximately 2:30 in the afternoon of Saturday, May 6, Mike
Moore entered the grocery outlet through the left-side door and
began shouting for Tiernan to identify himself, that Tiernan, who
already was inside the building, approached Moore, pointing and
shouting for him to leave the store, that Tiernan eventually stood
no more than a foot from Moore, continuing to point and demand
that the union agent leave the store, and that Moore stepped back-
ward and left the store through the same doorway. Finally, while I
credit the corroborating witnesses and, therefore, Tiernan that the
latter did not forcibly push Moore out the door and that Moore did
not stumble out backwards, I also believe it likely that, as he came
close to the union agent, Tiernan probably did, in fact, touch
131 Given Brenda Cubitt’s testimony, it is entirely possible that Van
Buskirk did, in fact, work as a checker on Saturday, May 6. However,
whether or not she was working at the time of the incident, I think it
clear that either her recollection of events was in error or she dissem-
bled while testifying. In any event, I place no reliance upon her ac-
count.
132 While uncontroverted, Sharlene Sutton’s implausible testimony,
regarding comments allegedly made to her by Bennett-Heib shortly
after the incident, is not worthy of belief. Initially, no witness, not even
Moore, asserted that Tiernan “smashed [Moore] in the head.” More-
over, her assertion that she spoke to either “Sandra” or Van Buskirk 20
minutes later was contradicted by the latter and “Sandra” was off work
on May 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1486
Moore, although inadvertently, while gesturing for him to leave
the market. In this regard, I note that Respondent’s witnesses,
Sobecki and Brenda Cubitt, each heard Moore say to Tiernan
“`don’t touch me’” as he backed out the door, and, in agreement
with counsel for the Acting General Counsel, I do not think one
would spontaneously utter such a comment unless actually the
recipient of a battery to some degree. “An employer violates Sec-
tion 8(a)(1) of the Act by assaulting a union representative when it
does so in the presence of one or more employees under circum-
stances where onlookers would likely infer from the assault that
the employer would also retaliate in the same fashion against any
employee who supported the union.” Horton Automatics, 289
NLRB 405, 411 (1988); Batavia Nursing Inn, 275 NLRB 886
(1985). Herein, whether, as alleged, Tiernan actually pushed
Moore out of the grocery outlet or whether, as is more likely, he
inadvertently touched the Union agent while gesturing for him to
leave the store, I do not believe that any employee onlooker would
have inferred that the Respondent Cubitts would have retaliated in
the same manner against a supporter of the Union. Thus, by all
accounts, it was a busy Saturday afternoon. Many customers were
in the store; all employees were busy; and there is no dispute that
Moore’s actions interrupted normal business activities. In these
circumstances, unlike Horton Automatics and Batavia Nursing
Inn, wherein the employers themselves initiated the confrontations
and left little to doubt as to their motivation, there can be no doubt
that Moore deliberately provoked the May 6 incident, and that
employees would have perceived Tiernan’s reaction as aimed at
protecting the Respondent Cubitts’ business interests. Therefore, I
am unable to conclude that Respondent violated Section 8(a)(1) of
the Act and shall recommend dismissal of the applicable amended
consolidated complaint paragraph.
With regard to the two other picketing-related incidents, based
upon Ysidra Hundevadt’s uncontroverted and credible testimony,
I find that, while the picketing was on-going outside the grocery
outlet, on, at least, two occasions, David Cubitt came upstairs to
the office where Hundevadt was working and angrily asked
“what’s going on, why are they doing this” and “are you with us
or against us.” The amended consolidated complaint alleges the
foregoing as interrogation, violative of Section 8(a)(1) of the Act.
In defense, counsel for the Respondent Cubitts argues that there is
no record evidence that Hundevadt felt compelled to respond to
Cubitt’s questions, that the conduct occurred in her office, and that
the atmosphere was free of coercion. As to Cubitt’s comments,
“what’s going on, why are they doing this,” it appears that Cubitt
was merely expressing his growing frustration over the picketing,
and I see no reason not to accept Hundevadt’s own observation
that these comments were not really questions. However, the
same can not be said for his next question (“are you with us or
against us?”). Inasmuch as I believe that the Respondent Cubitts
considered the picketing to be a Union-sponsored or sanctioned
activity,133 Cubitt’s question appears to have been a calculated

133 Given the Union’s unfair labor practice charge over their refusal
to hire four of the Alvernazes’ employees, Union agent Pate’s interven-
tion after they suspended Sharlene Sutton because she joined the
picketing, Union agent Moore’s conduct on May 6, and their anger at
the picketing, I believe the record evidence warrants the inference that
the Respondent Cubitts believed the picketing in front of the grocery
outlet was sponsored by the Union.
one, designed to ascertain the perceived level of Hundevadt’s
support for the picketing, and inferentially, for the Union. Hun-
devadt certainly was not an open and avowed supporter of the
Union, and there simply existed to reason for Cubitt to interrogate
her other than to satisfy himself as to her support for the picketing
and for the Union. Accordingly, I find that, on behalf of Respon-
dent, David Cubitts’ interrogation of Hundevadt was violative of
Section 8(a)(1) of the Act. Cal Spas, 322 NLRB 41, 55 (1996).
The remaining picketing-related incident concerns the Respon-
dent Cubitts’ alleged solicitation of employees to sign a petition,
denouncing the employees’ activities in support of the Union.
The amended consolidated complaint alleges that said acts and
conduct were violative of Section 8(a)(1) of the Act. As to this,
there is no dispute that, while the picketing continued, Brenda
Cubitt solicited employees to sign a statement,134 which she
drafted and which stated, in part, “We want to be sure you know
that none of the people outside picketing are Grass Valley grocery
outlet employees. We are all happily employed and are receiving
competitive wages and benefits from our employer.” Mrs. Cubitt
admitted that she failed to inform employees that they were not
required to sign the petition, and the record reveals that the said
petition was also posted at two locations inside the grocery outlet.
Clearly, the plain meaning and, I believe, intended message of the
last quoted sentence of the document to the public and to each of
the Respondent Cubitts’ employees was that, by signing, an em-
ployee was indicating contentment with the status quo and was,
therefore, not advocating the need for representation by the Union.
Counsel for the Acting General Counsel argues that an employer’s
solicitations to employees to sign such petitions are, by their na-
ture, coercive and need not be accompanied by threats, induce-
ments, or other coercive acts. In defense, while citing no court or
Board cases in support, counsel for the Respondent Cubitts con-
tends that soliciting signatures for the petition was not unlawful as
the document was not designed to, and did not, solicit employee
sentiment either for or against the Union. While I am uncertain
that counsel for the Acting General Counsel’s sweeping generali-
zation is an accurate statement of the law,135 given what I perceive
as the unmistakably antiunion message of the petition, the appear-
ance that the Respondent Cubitts were promoting the petition, and
the certainty that Brenda Cubitt would be aware of which employ-
ees agreed to sign and which ones refused to sign the document,
her solicitations, on behalf of Respondent, were patently violative
of Section 8(a)(1) of the Act. Davies Medical Center, 303 NLRB
195, 200 (1991).
Next, I consider the allegation of the amended consolidated
complaint that the Respondent constructively discharged Sharlene
Sutton in violation of Section 8(a)(1) and (3) of the Act. With
regard to the General Counsel’s burden of proof in such a matter,
the seminal Board decision is Crystal Princeton Refining Co., 222
NLRB 1068 (1976), wherein the Board defined the two elements,
134 I rely upon the testimony of Ysidra Hundevadt, who impressed
me as being an honest witness and upon the admissions of Brenda
Cubitt.
135 Two of the decisions of the Board, upon which she relies, do not
support her legal argument. Thus, in Frank Leta Honda, 321 NLRB
482 (1996), the solicitation was accompanied by the promise of a wage
increase, and, in National Roof Systems, 305 NLRB 965 (1991), the
solicitation was accompanied by a threat of loss of employment.
GRASS VALLEY GROCERY OUTLET 1487
which must be proven in any case in which a constructive dis-
charge is alleged. “First, the burdens imposed upon the employee
must cause, and be intended to cause, a change in his working
conditions so difficult or unpleasant as to force him to resign.
Second, it must be shown that those burdens were imposed be-
cause of the employee’s union activities.” Id. at 1069. With re-
gard to the element of proof, in American Licorice Co., 299
NLRB 145, 148 (1990), the Board subsequently stated, “We do
not believe . . . that the Crystal Princeton test can be read so nar-
rowly as to apply only when an employer has changed an em-
ployee’s working conditions” and that “the test for intent is not
limited to whether the employer specifically intended to cause the
employee to quit, but includes whether, under the circumstances,
the employer reasonably should have foreseen that its action
would have that result.” Further, in David Electric Wallingford
Corp., 318 NLRB 375, 376 (1995), the Board noted that “The
Wright Line test applies to the second element of Crystal Prince-
ton.” However, a mere showing of unlawful motivation on the
part of the employer is not enough. “The unlawfully motivated
action on the part of the employer must create an employment
condition sufficiently ‘difficult or unpleasant’ to cause a reason-
able person to quit.” Lively Electric, Inc., 316 NLRB 471, 473 fn.
8 (1995).
Bearing the above legal principles in mind, there is no dis-
pute, and I find that on May 5, prior to the start of her work
shift, Sutton joined the picketing by the individuals, who were
refused employment by the Respondent Cubitts, their family
members, and their friends; that she walked the picketline, car-
rying a placard in support of the picketing; and that Brenda
Cubitt came outside, and after initially warning the alleged
discriminatee that she would not be allowed to picket and con-
tinue working at the grocery outlet, later suspended her for 5
days. As to the suspension, after initially averring that it was a
mistake based upon her presumption that Sutton should have
been working at the time, Mrs. Cubitt later admitted that Sut-
ton’s suspension was based solely on the fact that she joined the
picketing. Further, given the undisputed facts that Union Agent
Thomas Pate met with David Cubitt over Sutton’s suspension
and that Union Agent Mike Moore was with the picketers the
next day and my above findings that, faced with the picketing,
Brenda Cubitt unlawfully solicited employees to place their
signatures on an antiunion petition and Dave Cubitt unlawfully
interrogated Ysidra Hundevadt in order to ascertain her support
for the Union, the record warrants the inference that the Re-
spondent Cubitts believed that the picketing was a union-
related activity. Accordingly, based upon the above and the
record as a whole, I am convinced that the Respondent Cubitts
believed Sutton’s picketing demonstrated her support for the
Union; that the Respondent Cubitts were, therefore, unlawfully
motivated in suspending Sutton for 5 days; that, in reinstating
her, the Cubitts merely acted to avoid the legal consequences of
their arguably unlawful act; and that the level of their antiunion
animus never dissipated, affecting work related decisions in-
volving Sutton.
In these circumstances, the issue is a simple one—given the
unlawful animus, which the Respondent Cubitts continued to
harbor toward Sutton after her return to work, did they intention-
ally cause changes in the alleged discriminatee’s working condi-
tions “so difficult or unpleasant” so as to force her to quit, as she
did little over a week after her return to work. At the outset, in
this regard, I do not rely upon the testimony of Carma Lawson,
who, as I stated above, impressed me as being a disingenuous
witness.136 Further, as demonstrated by, what I view as, her fabri-
cated testimony regarding a purported conversation with Bennett-
Heib shortly after the Tiernan-Moore incident on May 6, Sutton
appeared to be eminently capable of dissembling over matters of
significance herein. Accordingly, notwithstanding any hostility
which the Cubitts may have exhibited, I view her testimony re-
garding her emotional state of mind during the period just before
she quit with great skepticism and place no reliance upon it.
The alleged unlawfully motivated “difficult or unpleasant”
changes in Sutton’s working conditions, by the Respondent Cu-
bitts, apparently take two forms. The first involves the assignment
of more onerous job duties 5 days after her return to work follow-
ing her suspension, and the Respondent Cubitts do not contest the
applicable facts. Briefly stated, while performing her normal
bagging duties, David Cubitt asked her to help in the freezer de-
partment. Then, while she was helping to fill the freezer, Brenda
Cubitt approached and asked her to clean the break room. Sutton
protested, but Mrs. Cubitt insisted that the alleged discriminatee
do as she ordered. Subsequently, as she cleaned the break room
and 5 minutes into her scheduled break, the head checker called
over the grocery outlet’s intercom system for Sutton to retrieve
some shopping carts. Emphasizing each Cubitt’s tone of voice,
Sutton asserted that these three assignments caused her to believe
the Respondent Cubitts “were trying to get me.”137 There is no
dispute as to these job assignments, and Counsel for the Acting
General Counsel characterizes them as “unreasonable demands”
on Sutton “. . . by ordering her to do many tasks at the same time
and ordering her to abandon tasks others had assigned to her.”
However, there is no record evidence that, when she asked Sutton
to clean the break room, Brenda Cubitt was aware her husband
had ordered Sutton to work in the freezer or that, when the head
checker requested that Sutton retrieve shopping carts, the person
was aware Sutton was working elsewhere in the grocery outlet on
assignment from Brenda Cubitt. Moreover, Sutton conceded that
no particular employee cleaned the break room and that she had
previously voluntarily cleaned the bathroom, and the record evi-
dence is that employees “took turns” at cleaning the break room.
Also, Mrs. Cubitt did not demand that Sutton finish the freezer job
and then clean the break room; Sutton was not required to com-
plete the freezer work. Further, retrieving shopping carts was a
routine part of Sutton’s job duties, and there is no record evidence
that she could not have taken her full break after retrieving the
shopping carts. Based upon the foregoing, and the record as a
whole, utilizing the standard, established by the Board in Lively

136 Specifically, Lawson asserted that she observed Sutton crying in-
side the grocery outlet the day after the picketing incident and that she
observed David Cubitt criticizing Sutton’s work and continually ques-
tioning her about where she had been and complaining about Sutton not
performing her job duties. Sutton herself failed to corroborate Lawson
on these points, and I find them not worthy of belief.
137 While I do not rely upon Sutton’s subjective feelings, I note that
the Cubitts’ tones of voice, in giving these work assignments to Sutton,
may well have been reflective of the unlawful animus, which they
harbored for Sutton.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1488
Electric, supra, I do not believe that the Cubitts’ above-described
unlawfully motivated, but not particularly onerous, work assign-
ments for Sutton alone created an employment condition suffi-
ciently “difficult or unpleasant” to cause a “reasonable person” to
quit.
The other asserted unlawfully motivated “difficult or unpleas-
ant” changes in Sharlene Sutton’s working conditions concern
what she described as changes in her work schedule and her job
duties the next day. However, Sutton’s assertions, as to the al-
leged changes, are patently at variance with the record evidence.
Thus, while Sutton maintained that she was removed from the
freezer job without notice, the Respondent Cubitts’ weekly work
schedules establish that a person named “David” was the freezer
person and that Sutton was always listed with the bagger/trashers.
Moreover, the said weekly schedules show only one other em-
ployee, who worked in the freezer—Van Buskirk. Perhaps realiz-
ing this flaw in her story, Sutton changed her testimony during
cross-examination, averring that she was the freezer person just on
“certain days.” In fact, according to the weekly work schedules,
there were no days in which Sutton was assigned to work in the
freezer by the Respondent Cubitts. Finally, during cross-
examination, Sutton conceded that her job always was as a bag-
ger/trasher for the Respondent Cubitts. Further, Sutton’s assertion
that her normal hours of work were changed, without notice, on
the work schedule for the next week was controverted by the
weekly work schedules, which establish that Sutton’s normal
hours of work always were scheduled to begin on either 9 a.m. or
11 a.m., and that her schedule for the following week, beginning
May 14, had her also starting some days at 9 a.m. and others at 11
a.m. There is no record evidence that Sutton was ever scheduled
to start a workday at 10 or 10:30 a.m. Based upon the foregoing,
and the record as a whole, given its utter variance with the record
evidence, I do not credit Sutton’s testimony, and I find that the
above-described alleged job and starting time changes in her
working conditions simply did not occur. Accordingly, inasmuch
as I have concluded that the unlawfully motivated changes in
Sutton’s working conditions, which were imposed on the Thurs-
day following her suspension, were not sufficiently difficult or
unpleasant so as to require a reasonable person to quit, I find that
the counsel for the Acting General Counsel has not met her bur-
den of proof, as described in Crystal Princeton, supra, to establish
that Sutton’s voluntary quit was, in reality, an unlawfully moti-
vated constructive discharge.138 Therefore, I shall recommend
dismissal of the allegation that Respondent constructively dis-
charged Sharlene Sutton.
Concerning the amended consolidated complaint allegations
that Respondent acted in violation of Section 8(a)(1) of the Act
when David Cubitt informed employees that they would not re-
ceive their paychecks because of the Union and acted in violation
of Section 8(a)(1) and (3) of the Act by withholding the employ-
ees’ paychecks and raises, the basic facts are not in dispute. Thus,
I find that, inasmuch as the Alvernazes’ former employees had not
received a wage increase for over a year, the Respondent Cubitts
decided to implement a wage increase for most of their employ-

138 I pass no judgement as to the actual reason underlying Sutton’s
decision to quit but note that she did accept a job offer from another
employer prior to quitting.
ees, effective with the paychecks which were to be distributed on
May 17, 1995; that the Respondent Cubitts previously had in-
formed employees of their wage increases; that, while the Re-
spondent Cubitts’ employees normal payday is on a Wednesday,
the paychecks usually arrive on the Tuesday and the Cubitts dis-
tribute the paychecks when they arrive at the grocery outlet; that
the paychecks, including the wage increases, arrived at the grocery
outlet on May 16; that, prior to distributing them, David Cubitt
spoke to attorney Tiernan, who advised Cubitt not to implement
the raises; and that, as a result, Cubitt decided to withhold the
raises and posted an employee notice, in which he stated that, as
the employees were aware, he and his wife had decided to give
raises to most of the employees but that “I have just been in-
formed by our company attorney . . . that the National Labor Rela-
tions Board prohibits raises while an election is pending before the
[Board]” and, therefore, “regret I will not be able to give the
raises.”139 I further find that Cubitt also instructed his accountant
to draft new paychecks, not including the raises, and that these
were distributed to the employees on Wednesday.
Board law is quite clear that, in the midst of a union organiz-
ing campaign, an employer must proceed with an expected
wage or benefit adjustment as if the organizing campaign had
not been in progress. America’s Best Quality Coatings Corp.,
313 NLRB 470, 484 (1993); Atlantic Forest Products, 282
NLRB 855, 858 (1987). The Board has, however, recognized
an exception to this rule—an employer may postpone the im-
plementation of such a wage or benefit adjustment if it makes
clear to its employees that the granting of the adjustment is not
dependent upon whether or not they select the union as their
bargaining representative and that the “sole purpose” of the
postponement is to avoid the appearance of influencing the
outcome of the pending election. Atlantic Forest Products,
supra. In so doing, however, an employer acts in violation of
Section 8(a)(1) of the Act if it attributes its failure to implement
the expected wage or benefits adjustment to the presence of the
union. Twin City Concrete, 317 NLRB 1313, 1318 (1995);
Atlantic Forest Products, supra. I believe that, in his posted
notice to the employees, by linking the withholding of the wage
increase to the pending election before the Board, the basis for
which was the representation election petition filed by the Un-
ion, David Cubitt, in fact, placed the onus for his and his wife’s
inability to implement the wage increases, which had been
expected by the employees, squarely upon the Union. Further,
Cubitt’s explanation clearly had the effect of undermining the
Union by creating the impression that, but for the pending elec-
tion, Respondent would have implemented the announced
raises. Accordingly, I find that David Cubitt’s written explana-
tion for the Respondent Cubitt’s decision to withhold imple-
139 Apparently, on Tuesday after the paychecks arrived at the grocery
outlet, Cubitt met with some of the employees, including Carma Law-
son and Ysidra Hundevadt, in his office. Relying upon the testimony of
Hundevadt, who was a candid and forthright witness, I find that, with
the stack of checks in plain sight, Cubitt told the employees that he had
checks, which contained raises for them, but that “he could not give us
the checks because it might appear to be as a bribe because it was be-
fore the vote.” I place no reliance upon the testimony of the less than
candid Lawson, specifically her assertion that Cubitt said the raise was
to be delayed until all the Union “bull crap” was over.
GRASS VALLEY GROCERY OUTLET 1489
mentation of the employees’ raises was violative of Section
8(a)(1) of the Act. Atlantic Forest Products, supra. Moreover,
as such was linked to the Union and as an employer must grant
expected benefits as it would if a union was not “in the pic-
ture,” the Respondent Cubitts’ actual withholding of the wage
increase was violative of Section 8(a)(1) and (3) of the Act.
Twin City Concrete, 317 NLRB 313, 318 (1995); Marshall
Durbin Poultry Co., 310 NLRB 68, 69 (1993).
Next, I turn to the amended consolidated complaint allegation
that employees, who turned against the Union prior to the election
were rewarded with more overtime, higher hourly wage increases
after the election, and vacations in violation of Section 8(a)(1) and
(3) of the Act. Initially, I find that, immediately after the Respon-
dent Cubitts’ refusal to hire Deborah Tahir, an upset Rebecca
Vandergrift, who instigated the Union’s organizing campaign,
spoke to Brenda Cubitt and her daughter, saying “She was letting
them know that she was for the Union” and “she didn’t like the
way the Union was handling things.”140 I further find that, as the
preelection campaign continued, Vandergrift became disen-
chanted with the Union and eventually became an opponent of
representation by the Union and informed other employees of her
new opinions; that employees, David Mallette and John Slaughter,
also were Union supporters, who changed their minds and became
opposed to the Union; and that, along with Vandergrift, Mallette
and Slaughter were the leaders of those employees, who were
opposed to representation by the Union. As to pay raises, I find
that the Respondent Cubitts gave the previously withheld wage
increases to most of its employees in the pay period following the
June 12, 1995 election and that employees Vandergrift, Slaughter,
and Mallette received the highest hourly increases. Concerning
overtime, I find that the Respondent Cubitts regularly assigned
overtime hours to their employees before and after the election;
that, during May through late September 1995, employee Mallette
worked in excess of 101 overtime hours, Slaughter worked 54
hours of overtime, and Vandergrift worked 47 overtime hours;
that only one other employee worked more overtime than did
Vandergrift; and that Mallette, Slaughter, and Vandergrift worked
the most overtime in the pay periods immediately preceding and
subsequent to the election. With regard to vacations, I find that, as
the employees’ “new employer,” the Respondent Cubitts’ stated
vacation policy was “after 1 year, 1 week” and “after 2 years, 2
weeks;” that, as David Cubitt stated, employees were not eligible
to take vacations until April 1996;141 that the Respondent Cubitts
permitted employee Vandergrift to take an unpaid142 2-week vaca-
tion in late July 1995; and that no other employee was permitted
to take any sort of vacation in said year.

140 As between Vandergrift and Hundevadt, the latter was the more
forthright witness, and, notwithstanding Vandergrift’s denial, I credit
Hundevadt that she overheard Vandergrift speaking to Brenda and Lori
Cubitt.
141 Given that David Cubitt corroborated her, in this instance only, I
credit Carma Lawson that the Cubitts told her it would not be possible
to take a vacation until April 1996.
142 Notwithstanding that the Respondent Cubitts’ payroll records es-
tablish that Vandergrift received a bonus check during the payroll pe-
riod, which ended on July 28, and during which she did not work any
hours, it appears that the check was for the regular quarterly bonus,
paid to all department managers.
I believe that, given the Respondent Cubitts’ adverse reac-
tion to the picketing, which began in early May, their suspen-
sion of Sharlene Sutton, their unlawful solicitation for an anti-
union petition, and their discriminatory withholding of the pay
raise from their employees in mid-May, during the preelection
period, David and Brenda Cubitt became increasingly oppug-
nant toward the Union and toward their employees, who sup-
ported the Union. Further, that the leading opponents of the
Union received the highest hourly raises after the election and
received the highest amount of overtime before and after the
election and that, a month after the election, one of said indi-
viduals was permitted to take a 2-week vacation with her hus-
band at a time when no employees were eligible for even 1
week of vacation appear to be, to the undersigned, rather im-
plausible coincidences. In these circumstances, the inferences
are warranted that the Respondent Cubitts became aware that
Vandergrift, Mallette, and Slaughter were the leading oppo-
nents of the Union amongst their employees and that, in the
above ways, the Respondent Cubitts rewarded the above three
employees for their opposition to the Union. The Board has
held that granting a raise in pay to an antiunion employee for
informing on his fellow employees is discriminatorily moti-
vated and has the effect of discouraging employee support for
the Union. Kenosha Auto Transport Corp., 302 NLRB 888,
895 fn. 3 (1991). Herein, I conclude that, by rewarding em-
ployees Vandergrift, Mallette, and Slaughter for their opposi-
tion to the Union, the Respondent Cubitts discouraged other
employees from supporting the Union and, thereby, engaged in
acts and conduct, blatantly violative of Section 8(a)(1) and (3)
of the Act.
VII. THE PROPRIETY OF A BARGAINING ORDER
REMEDY
The General Counsel seeks a bargaining order as the only ap-
propriate remedy for Respondent’s unfair labor practices herein.
The record establishes that, on April 20, 1995, the Union obtained
signed authorization cards from 14 of the 24 full-time and regular
part-time employees, who had been hired by the Respondent Cu-
bitts 2 days earlier when they became the operators of the grocery
outlet in Grass Valley. Neither counsel for the Respondent Cu-
bitts nor counsel for Respondent Canned Foods contest the valid-
ity of any of these authorization cards. Accordingly, based upon
the foregoing, and the record as a whole, I find that, as of April 24,
the day when representatives of the Union unsuccessfully sought
recognition from the Respondent Cubitts, the Union was the ma-
jority representative of Respondent’s bargaining unit employees.
In determining whether the 8(a)(1) and (3) violations in which
Respondent engaged are sufficiently egregious to warrant the
issuance of a bargaining order remedy, I am guided, of course, by
the test set forth in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). Therein, the Supreme Court described two types of situa-
tions where such an order would be appropriate: (1) “exceptional”
cases marked by “outrageous” and “pervasive” unfair labor prac-
tices and (2) “less extraordinary” cases marked by “less perva-
sive” conduct. Id. at 613–614. In the latter type cases, there must
be showings that the labor organization enjoyed majority status “at
some point” and that “the employer’s unlawful conduct has a
“tendency to undermine [the Union’s] majority strength and im-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1490
pede the election processes.” Id. at 614; Mel’s Battery, Inc., 267
NLRB 420 (1983). One of the factors the Board may consider in
cases where the unfair labor practice conduct is less flagrant is:

the extensiveness of [the] employer’s unfair conduct in terms
of [its] past effect on election conditions and the likelihood of
[the recurrence of said conduct] in the future. If the Board
finds that the possibility of erasing the effects of past practices
and of ensuring a fair election by the use of traditional reme-
dies . . . is slight, and that employee sentiment once ex-
pressed through cards would, on balance, be better protected
by a bargaining order, then such an order should issue.

Id. at 614–615.143 Upon consideration of all the evidence and
the record as a whole, I believe that the unfair labor practices,
committed by Respondent, were neither so outrageous nor per-
vasive as to fall within the first category, described in Gissel
Packing Co. Rather, these matters involve the second category
of unfair labor practices and require a finding specifically as to
whether the above-described acts and conduct were of the type
which indelibly impede the electoral process and warrant the
issuance of a bargaining order to protect employee sentiment as
more reliably expressed through the signed authorization cards.
On balance, while I have not found that Respondent engaged in
any of the so-called “hallmark” violations of the Act,144 I be-
lieve that, in the circumstances extant herein, a bargaining order
remedy is necessary as the possibility of erasing the effects of
Respondent’s serious unfair labor practices and of conducting a
fair election by the use of traditional remedies is slight.
In this regard, Respondent committed serious unfair labor
practices prior to and subsequent to the representation election,
which was held on June 12, 1995. Thus, I have found that,
prior to the representation election, in violation of Section
8(a)(1) and (3) of the Act, the Respondent Cubitts announced to
the entire employee complement their intent to withhold, and,
then, they, in fact, withheld an expected wage increase from
their bargaining unit employees, placing the blame for their
actions on the pending representation election, which had been
the result of the union’s election petition. I have also con-
cluded that, prior to the election, the Respondent Cubitts vio-
lated Section 8(a)(1) of the Act by interrogating an employee as
to her support for the picketing and, inferentially, for the Union
and by soliciting their employees to sign a statement, by which
they would pubically disavow their support for the Union.
Brenda Cubitt’s latter act was particularly coercive, for witness-
ing which employees signed and which refused to sign the
document enabled her to ascertain the employees’ union sym-
pathies. Moreover, I have concluded that, immediately prior to
and subsequent to the election, after previously having dis-
criminatorily withheld expected raises from the entire employee

143 The Court identified “still a third category of minor or less exten-
sive unfair labor practices, which, because of their minimal impact on
the election machinery, will not sustain a bargaining order.” Gissel
Packing Co., supra at 615. For the reasons expressed infra, I do not
believe Respondent’s unfair labor practices were of this less serious
variety.
144 These include threats of plant closure and job loss and actual,
unlawful layoffs and discharges of union supporters. Garney Morris,
Inc., 313 NLRB 101, 103 (1993).
complement, the Respondent Cubitts violated Section 8(a)(1)
and (3) of the Act by egregiously rewarding the three employ-
ees, who became the most ardent and vocal opponents of the
Union organizing effort, with the most overtime hours and the
highest hourly raises in pay and by permitting one of them to
take, albeit unpaid, a 2-week vacation at a time when no em-
ployees seemingly were eligible for, or permitted to have, a
vacation.
In my view, resort to the Board’s traditional remedies will not
effectively remedy Respondent’s unfair labor practices, which are
described in detail above. In particular, with regard to the an-
nouncement and the withholding of the wage increase, the Re-
spondent Cubitt’s bargaining unit employees could not have failed
to understand their employer’s unstated but indelible message—
that, but for the presence of the Union, they would have received
their anticipated raises, and I do not believe that the coercive effect
of the Cubitts’ unlawful conduct has been easily dissipated.
Groves Truck & Trailer, 281 NLRB 1194, 1196 (1986). Like-
wise, just as the foregoing conduct gave employees the impression
that, as long as the Union’s shadow remained, cast by the pending
representation election, they would not be given expected benefits,
by rewarding opponents of the Union with more overtime and
higher hourly wage increases and one of them with a 2-week va-
cation at a time when no employee was eligible for a vacation, the
Respondent Cubitts conveyed an equally untenable message to
proponents of the Union—that opposition to the Union was in
their pecuniary interest—and one, which they were not likely to
forget. While not free from doubt, I believe that the inherent mes-
sages and the coercive effect of these two unfair labor practices
will linger for a long time and that the traditional Board remedies,
cease and desist orders and language in a notice, will be forgotten
long before the Respondent Cubitts’ acts will be.145 Thus, these
and the Respondent Cubitts’ other unfair labor practices affected
the entire relatively small bargaining unit, which consists of ap-
proximately 24 individuals and which, in Brenda Cubitt’s words,
is “tightly knit.” Accordingly, with reasonable certainty, the con-
clusion is warranted that all bargaining unit employees became
aware of each aspect of the Respondent Cubitts’ unlawful acts and
conduct. Astro Printing Services, supra, at 1030. Further, the
Respondent Cubitts remain the operators of the grocery outlet in
Grass Valley, and there is no record evidence that they have ever
acted to minimize or mitigate the coercive effect of their perni-
cious conduct. On this latter point, while it is unfortunate that the
election occurred more than three years ago, given their coercive
effect, I do not believe that the passage of time alone has dissi-
pated the “chilling effect” of the Respondent Cubitts’ serious un-
fair labor practices on employee choice. F & R Meat Co., 296
145 That I do not believe that Respondent violated Sec. 8(a)(1) and
(3) of the Act by refusing to hire employees or by constructively dis-
charging employees and that Respondent did not commit any other of
the “hallmark” violations of the Act do not lessen the need for a bar-
gaining order remedy herein. Thus, notwithstanding the absence of
such violations of the Act, Respondent’s unlawful acts and conduct
were serious, and the possibility of erasing their effects and of conduct-
ing a fair election by the use of traditional remedies is slight. Astro
Printing Services, 300 NLRB 1028 (1990).
GRASS VALLEY GROCERY OUTLET 1491
NLRB 759 (1989).146 Based upon the foregoing, and the record
as a whole, I must conclude that, in the instant circumstances,
“employee sentiment once expressed through cards would, on
balance, would be better protected by a bargaining order . . . [than
a future election].” Gissel Packing Co., supra, at 614–615. There-
fore, I shall recommend that Respondent be ordered to recognize
and bargain with the Union as the majority representative of its
bargaining unit employees.147
Pursuant to Board law, I date Respondent’s bargaining obliga-
tion from the commencement of its unfair labor practices--on or
about May 6, 1995.148 Accordingly, as there is no dispute, and
Respondent admits, that, after announcing its existence on January
27, 1997, in or about March 1997, the Respondent Cubitts imple-
mented a retirement plan for bargaining unit employees without
notice to the Union or affording it an opportunity to bargain.
Clearly, Respondent’s unilateral implementation of such an em-
ployee benefit when it was under an obligation to bargain with the
Union was violative of Section 8(a)(1) and (5) of the Act, and I so
find. Beverly Enterprises, 310 NLRB 222 (1993).
CONCLUSIONS OF LAW
1. Respondent Canned Foods and the Respondent Cubitts (Re-
spondent) constitute a single, integrated business enterprise and
have been at all times, and are, a single-employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By harassing individuals, who are employees within the
meaning of the Act and who were picketing outside its grocery
outlet, Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act.
4. By interrogating an employee as to her Union sympathies,
Respondent engaged in acts and conduct violative of Section
8(a)(1) of the Act.
5. By soliciting its employees to sign an antiunion petition, Re-
spondent engaged in acts and conduct violative of Section 8(a)(1)
of the Act.
6. By informing its employees that they would not be receiving
an expected wage increase because a representation election,
based upon a petition filed by the Union, was pending before the
Board, Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) of the Act.

146 I believe that, if a rerun election were scheduled for some future
date, the Respondent Cubitts’ employees would remember their em-
ployer’s withholding of a wage increase from them because of the
Union and their rewards to those who opposed the Union and, notwith-
standing the words on a posted notice, that their employer might repeat
the misconduct in order to defeat the Union again.
While, of course, such should not be considered as a factor in my
decision as to the necessity for a bargaining order remedy, I note that
there is no record evidence of employee turnover since the election.
147 In these circumstances, I need not rule upon the objections or
challenged ballots in Case 20–RC–17087.
148 There is no record evidence of a formal bargaining demand and a
refusal after May 6; I, therefore, shall recommend dismissal of the
amended consolidated complaint paragraph alleging an unlawful re-
fusal to bargain by Respondent at the time of the Union’s initial de-
mand for bargaining—April 24, 1995.
7. By withholding an expected wage increase from its employ-
ees because a representation election, based upon a petition filed
by the Union, was pending before the Board, Respondent engaged
in acts and conduct violative of Section 8(a)(1) and (3) of the Act.
8. By rewarding employees, who were opposed to representa-
tion by the Union, higher hourly raises than other employees and
more overtime hours than other employees and permitting one
such opponent of the Union to have a vacation at a time when no
employees were entitled to vacation time, Respondent acted dis-
criminatorily toward employees, who supported the Union, and,
thereby, engaged in acts and conduct violative of Section 8(a)(1)
and (3) of the Act.
9. Since on or about April 24, 1995, the Union has been the ex-
clusive representative for purposes of collective bargaining of a
majority of the employees, working in the following appropriate
unit:
All full-time and regular part-time employees employed by Re-
spondent at its grocery outlet in Grass Valley, California; exclud-
ing guards and supervisors as defined in the Act.
10. By virtue of the unfair labor practices described in para-
graphs 3 through 8 above, Respondent has undermined the Un-
ion’s majority in the above-described appropriate unit and has
precluded any likelihood that a fair election can be held in the
future.
11. By unilaterally implementing a retirement plan for its em-
ployees in the above-described appropriate unit without notice to
or affording the Union an opportunity to bargain, Respondent
engaged in acts and conduct violative of Section 8(a)(1) and (5) of
the Act.
12. The unfair labor practices herein constitute unfair labor
practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
13. Unless set forth above, Respondent engaged in no other un-
fair labor practices.
REMEDY
I have found that Respondent engaged in serious unfair labor
practices within the meaning of Section 8(a)(1), (3), and (5) of the
Act. Accordingly, I shall recommend that Respondent be ordered
to cease and desist therefrom and to take certain affirmative ac-
tions necessary to effectuate the purposes and policies of the Act.
Specifically, with regard to the Respondent Cubitts’ implementa-
tion of a retirement plan for their bargaining unit employees in
March 1997, I shall recommend that, upon request, Respondent
revoke said retirement plan. I shall further recommend that Re-
spondent post a notice, setting forth its obligations herein.
[Recommended Order omitted from publication.]