Heartland Food Warehouse

National Labor Relations Board - Board Decisions

Jun 29, 1981

256 N.L.R.B. 940 (N.L.R.B. 1981)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heartland Food Warehouse, Division of Purity Su-
preme Supermarkets and United Food & Com-
mercial Workers Union, Local 371, AFL-CIO.
Case 39-CA-9
June 29, 1981
DECISION AND ORDER
On October 9, 1980, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, both Respondent and the
General Counsel filed exceptions and supporting
briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, as modified and further explained herein,
and to adopt his recommended Order, as modified
herein. 3
The central issue presented by this proceeding is
whether Respondent discharged its employees
Kerry Carroll and John Barile because of their par-
ticipation in protected concerted activities, and
thereby in violation of Section 8(a)(1) and (3) of
the Act. In adopting the Administrative Law
Judge's conclusion that Respondent discriminatori-
ly discharged these employees, we rely upon the
following analysis which applies the test enunciated
in the Board's recent decision in Wright Line, a Di-
vision of Wright Line, Inc., 251 NLRB 1083 (1980).
The test in cases alleging violation of Section
8(a)(3) of the Act, where a lawful as well as an un-
lawful motive may exist for the discharge, requires
the General Counsel to make a prima facie showing
that the employees' protected activities were moti-
vating factors in Respondent's decision to dis-
charge them. If the General Counsel is successful,
the burden of proof is then shifted to Respondent
to show by a preponderance of the evidence that
the discharges would have occurred even in the
absence of the employees' protected activities.
With respect to the first part of that test, it is
clear that the General Counsel has successfully met
his burden of establishing a prima facie case of un-
lawful discrimination. The evidence establishes that
employees Carroll and Barile were leading union
I Respondent has requested oral argument The request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
s We shall modify the recommended Order and notice to include the
full reinstatement language traditionally used by the Board.
256 NLRB No. 145
adherents. They also were vocal critics of Re-
spondent's management policies, and this latter fact
was all too well known to Respondent. Thus, it
was Carroll and Barile who requested a meeting
between the store manager and the meat depart-
ment employees to discuss employee grievances,
and, when such a meeting was held on September
15, 1979, Carroll and Barile were the most outspo-
ken protagonists in attendance. This meeting
prompted still another meeting on October 4, 1979,
between Leo Brown, Respondent's vice president
for industrial relations, and the employees of the
meat department. At the second meeting, Brown
repeatedly emphasized that the employees did not
need a "third party" to speak for them, and, al-
though Brown did not at any time mention the
word "union," he admitted in his testimony that by
third party he meant a union.
The foregoing evidence establishes that Re-
spondent was both aware and concerned about em-
ployee discontent; that it recognized the distinct
possibility that the employees would attempt to
bring a union into the store if they had not, in fact,
done so already; and that Respondent, through
Brown, openly and specifically opposed such con-
certed activity, though avoiding the use of the
term "union" in so doing. While there is no evi-
dence that Respondent had specific knowledge of
the union activities of Carroll or Barile, 4 or for
that matter that union activities were actually
under way, it clearly recognized the potential for
such action, and, in view of the concerted activities
of both Carroll and Barile, Respondent could readi-
ly assume that they would be in the forefront of
any such effort. Accordingly, we find that Re-
spondent's knowledge of Carroll's and Barile's pro-
tected activities as leaders in the presentation of
employee grievances, and its fear that their activi-
ties might culminate in a union drive, were factors
in their selection for discharge. We therefore con-
clude that the General Counsel has met his burden
of proof under Wright Line.
We turn now to the reasons offered by Respond-
ent to rebut the General Counsel's case, it is appar-
ent that Respondent's focus is on demonstrating
that Carroll and Barile were laid off for purely
economic reasons. Respondent maintains that eco-
nomic reasons forced it to reduce by two the
number of meatcutters at its Vernon store. Accord-
ing to Respondent, Carroll and Barile were select-
4 We do not rely on the Administrative Law Judge's application of the
small-plant doctrine to show that Respondent had knowledge of the
union activities of Carroll and Barile. We also place no reliance on the
Administrative Law Judge's finding that Respondent learned of the union
acti ities of Carroll and Barile from a nonsupervisory employee who wsas
"sufficiently identified with" management
HEARTLAND FOOD WAREHOUSE 941
ed for discharge based upon ratings of their per-
formance and productivity, which placed them last
among the five Vernon meatcutters, and without
consideration of their expression of grievances or
their potential for union activity.
We are forced to reject Respondent's explanation
for selecting Carroll and Barile for discharge as in-
compatible with its actions both prior to and fol-
lowing their termination. We note that, while Re-
spondent claims that economic reasons forced it to
lay off two meatcutters at its Vernon store, Re-
spondent immediately transferred a less experi-
enced meatcutter from its nearby Newington store
to replace one of the meatcutters discharged from
Vernon. As the Administrative Law Judge found,
Respondent's assertion that it transferred the less
experienced meatcutter because of its policy pro-
hibiting family members from working in the same
store is plainly makeweight argument, since Re-
spondent had often made exceptions to this policy.
We note also that, while Respondent contends that
it had economic problems in both its Vernon and
Newington stores, it made no attempt to rate the
meatcutters in Newington. At all times, Respond-
ent's focus was on its Vernon store, where concern
over employee unrest, concerted activity, and po-
tential union support had lead to a series of meet-
ings between employees and management officials,
and where Carroll and Barile were outspoken in
their voicing of employee grievances.
Although Respondent asserts, and the Adminis-
trative Law Judge found, that it had economic jus-
tification for reducing the number of meatcutters at
its Vernon store, Respondent has not shown that
absent Carroll and Barile's participation in protect-
ed activities these employees would have been the
ones discharged, rather than any of the other
Vernon meatcutters or the less experienced meat-
cutter transferred from Newington. We rely here
again on the transfer to Vernon of a less experi-
enced meatcutter. Further undermining Respond-
ent's defense is the fact that Respondent had previ-
ously pursued a policy of offering full-time employ-
ees transfers to other stores as an alternative to
layoff. Respondent did not follow this policy with
regard to Carroll and Barile, who were not offered
transfers to any of Respondent's other stores. See
Montgomery Ward & Co., Incorporated, 234 NLRB
13 (1978). The Administrative Law Judge was
therefore correct in finding that where, as here, the
respondent's stated motives for discharge are dis-
credited, it may be inferred that the true motive for
discharge is an unlawful one which respondent
seeks to disguise. See Shattuck Denn Mining Corpo-
ration (Iron King Branch) v. N.L.R.B., 362 F.2d 466
(9th Cir. 1966); First National Bank of Pueblo, 240
NLRB 184 (1979). We therefore conclude that Re-
spondent discharged Carroll and Barile because of
their protected concerted activities and affirm the
Administrative Law Judge's finding that Respond-
ent thus violated Section 8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Heartland Food Warehouse, Division of Purity Su-
preme Supermarkets, Vernon, Connecticut, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
I. Substitute the following for paragraph 2(a):
"(a) Offer John Barile and Kerry Carroll imme-
diate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them whole for any loss of earn-
ings they may have suffered as a result of the dis-
crimination against them in accordance with the
provisions in the section of this Decision entitled
"The Remedy."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT lay off or otherwise discrimi-
nate against our employees because they
engage in concerted activity protected by Sec-
tion 7 of the National Labor Relations Act or
engage in any activity on behalf of any labor
organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer John Barile and Kerry Car-
roll immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent position, without prej-
udice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings they
may have suffered as a result of the discrimi-
nation against them, with interest.
HEARTLAND FOOD WAREHOUSE, DI-
VISION OF PURITY SUPREME SUPER-
MARKETS
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me on May 27 and 28, 1980, at
Hartford, Connecticut, upon the General Counsel's com-
plaint which alleged that on November 3, 1979,' Re-
spondent terminated two employees in violation of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
as amended, 29 U.S.C §151, et seq. It is also alleged that
the Respondent engaged in certain activity violative of
Section 8(a)(1) of the Act.
The Respondent admitted laying off the two employ-
ees on the date alleged but contends that such was
prompted by economic concerns and not unlawfully mo-
tivated. The Respondent generally denied that it other-
wise engaged in any activity violative of the Act.
Upon the record as a whole, including my observation
of the witnesses, briefs, and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a Massachusetts corporation en-
gaged in the operation of retail grocery stores in several
New England States, including facilities at Vernon and
Newington, Connecticut. In the course and conduct of
its business, the Respondent annually derives gross rev-
enues in excess of $500,000 and annually receives at its
Vernon facility goods, products, and materials valued in
excess of $50,000 directly from points outside the State
of Connecticut. The Respondent admits, and I find, that
it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food & Commercial Workers Union, Local
371, AFL-CIO (herein the Union), is admitted to be, and
I find is, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
llt. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Fact as Found
The Respondent opened its Vernon store (a low-over-
head type supermarket) in October 1978. At that time
Kerry Carroll and John Barile were hired as meatcutters,
I All dates are in 1979 unless otherwise indicated.
neither having been previously employed by the Re-
spondent. However, both were experienced meatcutters.
Some of the Vernon staff transferred from the Respond-
ent's Newington store including the store manager,
Warren Boyle and the meat department manager, Russell
Dussault.
For 2 days after its opening, the Union picketed the
store. There was then no activity on behalf of the Union
until some employees, particularly Carroll and Barile,
began discussing it among themselves in August or Sep-
tember 1979. Following an initial meeting of just em-
ployees (Barile, Carroll, and one other), the business
agent for the Union was contacted and in late Septem-
ber, Barile and Carroll met with him and signed authori-
zation cards. They testified that they took authorization
cards back to the store and attempted to get other em-
ployees to sign them, but were unsuccessful even though
some of the others had indicated a willingness to do so.
Aside from some general discussion concerning the
Union or unionization to which Barile and Carroll testi-
fied, such was the extent of union activity in this matter.
In mid-September, at the request first of Barile and
then Carroll, Boyle agreed to meet with the meat depart-
ment employees in order to hear and air some grievances
they said they had. The meeting was held on September
15.2 At this meeting, Barile and Carroll voiced a number
of objections to the way Boyle was running the meat de-
partment including a grievance concerning overtime, a
supposed undercutting of Carroll with a customer, and
generally that Boyle had ceased being a good guy in a
"white hat." There is no question, even from the Re-
spondent's witnesses, that Barile and Carroll were the
outspoken protagonists at this meeting.
Both before and after the meeting, Boyle reported this
matter to the district manager, Edward (Ned) DeLuca,
who in turn asked Leo Brown, the Respondent's vice
president of industrial relations, to meet with employees
at the Vernon store. Brown arranged to meet with them
on October 4.
Brown testified that the meat departments of 14 of the
Respondent's 40 stores are unionized, down I from when
he took charge of industrial relations a number of years
ago. He also testified that when the meatcutters (now the
Union, after its merger with the retail clerks) begin an
organizational campaign, he "runs like a scared rabbit."
Both Barile and Carroll placed the time of this meeting in mid-Octo-
her; however, I am satisfied that the meeting took place on( or about Sep-
tember 15 I fund Boyle's testimnony to be more credible than that of
either Barile and Carroll. Further. Boyle's dating of the meeting is con-
sistent with the comilpan payroll records concerning the acations of
i)ussault and Boyle. Finalls. where credibility resolutions are required in
this matter. I am constrained not to credit Barile and Carroll. Generally
their demeanor was negative and their recitation of the events seemed
more self-serving than accurate. I note also that on the material issues
where their testimony differed from other witnesses theirs was not cor-
roborated, whereas the testimony of witnesses called by the Respondent
was, in some instances by individuals who appear to have little stake in
the outcome of this proceeding Barile and Carroll, of course. are princi-
pals and are the only ones who stand to gain from a favorable resolution
of the issues here. Thus, while I do conclude, infra, that Barile aid Car-
roll were laid off in i olation if the Act. I believe that much of their
testimorly was an attempt to support such a coinclusion aid whether in-
tention ally contrived or not, their testimony is niot, I believe. reliable
HEARTLAND FOOD WAREHOUSE 943
During the course of his meeting with employees,
Brown extolled the Company, its benefits, and told em-
ployees among other things that they did not need a
"third party" to speak for them-that the Company was
one big happy family. Brown credibly testified that at no
time during the course of this meeting did he say
"union," tell employees that he had heard they were at-
tempting to organize a union and that he wanted it
stopped, or make any of the other antiunion statements
attributed to him by Barile and Carroll. Brown's testimo-
ny is corroborated by all of the other witnesses who tes-
tified concerning this event except Barile and Carroll.
Barile and Carroll both testified that Brown opened
the meeting by stating that he had heard there was union
talk going around among employees, and that he wanted
it stopped. I find this testimony of Barile and Carroll is
not credible, is self-serving, and I specifically conclude
that Brown did not make the statements attributed to
him by Barile and Carroll. Further, I find that during the
course of his discussion with employees, Brown did not
mention the word "union" at all.
This is not to say, however, that Brown was not inter-
ested in attempting to stop what he may have conceived
as an embryonic union campaign when he agreed to
meet with employees. The meeting with employees re-
sulted from the apparently adverse meeting Boyle had
with the meat department some 2 weeks previously.
Brown testified that when he told employees they did
not need a "third party" he meant that they did not need
a union. While Brown did not use the word "union," he
did not have to. The employees knew full well what he
meant.
From its opening, the Vernon store did not do as well
as the Respondent had anticipated. Much of its overhead
is payroll and the Company closely monitors the payroll
against gross sales. The Company's adverse payroll/gross
volume situation resulted in a management decision to
lay off all of the part-time employees in the meat depart-
ment of the Vernon store in the spring of 1979. Never-
theless, according to the Respondent's generally credible
evidence, the situation did not substantially improve.
Thus, DeLuca wrote a memorandum to his superior on
August 8 wherein he stated that the Company was
"heavy 2 cutters" at the Vernon store and that even if
business increased significantly in the Fall they would
still be overstaffed. He recommended they wait another
month or so to determine whether to lay off anyone.
Then on September 6, DeLuca wrote another memo-
randum in which he stated that both the Vernon and
Newington stores had shown a slight improvement but
that the meat departments continued to be areas of con-
cern; and, in any event, both Newington and Vernon
would probably be overstaffed by two.
Finally, on October 29, DeLuca wrote a third memo-
randum to his superior recommending that two meatcut-
ters be laid off in the Vernon store and one be trans-
ferred from Newington which would have the net result
of reducing the meat department payroll in each store by
40 hours per week.
On November 3, Carroll and Barile were informed by
Boyle that they were being laid off, Boyle telling them
that there was little prospect for an improvement in the
Company's situation and thus the chances of recall were
minimal. Barile and Carroll testified that Boyle told them
that one of the criteria used by him in determining to lay
them off was their "attitude." Boyle denied this, a denial
which I credit. Boyle did testify, however, that both
Barile and Carroll were good meatcutters but that he
had determined to lay them off rather than any of the
other three in the department because it was his determi-
nation, as well as that of others who rated all of the
meatcutters, that Barile and Carroll were respectively
fourth and fifth (or vice versa) among the five.
With the layoff of Barile and Carroll, Carlo Nasuti
was transferred from the Newington store to Vernon.
The Company contends the reason it transferred Nasuti
was because he had recently married another employee
at the Newington store. Company policy prohibits two
members of an immediate family working at the same
store. The Company did not adequately explain. howev-
er, why it chose to lay off a competent meatcutter-
either Carroll or Barile-and keep Nasuti who was still
very much in the process of learning. He had been classi-
fied as a meatcutter only in August 1979 after having
passed a test he had flunked previously.
B. 4nalvsis and Concluding Findings
1. The layoffs of Barile and Carroll
An employer may layoff whomever it wishes and
whenever. Such is not unlawful under this Act unless
motivated by employees' union activity or to discrimi-
nate against employees because they engaged in concert-
ed activity protected by Section 7. Nor is it an unfair
labor practice for an employer to be irrational or incon-
sistent in the application of its employment policies.
However, where, as here, it is alleged that the employer
laid off employees with an unlawful motive, then all of
the surrounding circumstances are an appropriate area of
inquiry. Irrational and inconsistent acts of the employer
give rise to the legitimate inference that the motive is
other than that which the employer professes. That is,
experience has taught that companies do not in fact con-
duct their personnel relations in an irrational fashion. In
short, the Respondent's self-serving denials need not be
accepted at face value. Indeed if all the surrounding cir-
cumstances so suggest, they can be discredited from
which an inference can be drawn that the true motive
for selecting a given individual for layoff was that which
the employer sought to disguise, namely, an unlawful
one. Shattuck Denn Mining Corporation (Iron King
Branch) v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966).
Such, I conclude, is the situation here. I conclude that
notwithstanding the Respondent's demonstrated econom-
ic necessity for laying off one meatcutter at the Vernon
store, it determined to lay off two because Barile and
Carroll had engaged in protected concerted activity at a
minimum, and potentially were involved in an organiza-
tional campaign on behalf of the Union.
The Respondent attempted to prove that Barile and
Carroll were selected only after it was determined that
two employees from the Vernon store would have to be
laid off and that the selection process was so fair as to
944 DECISIONS OF NA FIONAI. l.ABOR REIATIO()NS H()ARI)
negate any inference of an unlawful motive. Thus, in the
week or so prior to the layoffs, a number of individuals
rated the five full-time meatcutters at the Vernon store,
rating Barile and Carroll fourth and fifth. However, this
asserted fairness is inconsistent with what in fact hap-
pened to the layoff of both Barile and Carroll and the
transfer to the Vernon store of Carlo Nasuti who was
neither as experienced nor as competent a meatcutter as
either Barile or Carroll.
While the Respondent's witnesses testified concerning
the policy that members of an immediate family are not
allowed to work at the same store, the Respondent does
allow exceptions. Beyond this, the policy does not ex-
plain why the Respondent would retain an employee of
lesser competence and experience. It is further noted that
the Respondent apparently determined to reduce the
payroll at both the Newington and the Vernon stores as
per DeLuca's memos, but did not rate any of the em-
ployees at the Newington store, either among themselves
or together with the Vernon meatcutters. The only con-
ceivable explanation for treating the Vernon employees
differently from those at Newington is that the Respond-
ent was attempting to make a record to justify its ulti-
mate selection. In short, a fair inference from the incon-
sistent manner with which the Respondent treated the
Newington and Vernon employees is, and I conclude,
that the Respondent had predetermined the layoff, pre-
cisely Barile and Carroll, and sought to disguise its
motive for doing so.
Both DeLuca and Brown testified that it is the Com-
pany's policy not to lay off permanent full-time employ-
ees. Indeed, the parties stipulated that in all the Respond-
ent's stores, the only layoffs of full-time meatcutters be-
tween January 1, 1978, and November 3, 1979, were
Barile and Carroll. Thus, where a reduction-in-force is
required at a particular store, the employee selected is
given an opportunity to transfer to another store. Neither
Barile nor Carroll was given such an opportunity and
thus were treated disparately from other employees of
the Respondent and in opposition to Respondent's stated
policy and practice. This departure was not explained.
But a reasonable inference is that the Respondent decid-
ed to sever the employment of Barile and Carroll.
In view of the inconsistency with which the Respond-
ent treated Barile and Carroll as against Nasuti as well as
employees generally, I conclude that the Respondent's
stated motive in selecting them for layoff was not solely
economic necessity.
Indeed, I conclude that Barile and Carroll were select-
ed for layoff because they had engaged in protected con-
certed activity in seeking and speaking at the September
meeting with Boyle, and to the extent the Respondent
knew of the fledgling union campaign, Barile and Carroll
were clearly the ones who figured to be the two activ-
ists. It does not require specific knowledge of their union
activity on the part of DeLuca and Boyle to conclude
that the reason these two were selected was because of
their potential for engaging in union activity and because
they had in fact engaged in protected concerted activity.
Though knowledge of the union activity is specifically
denied by all of the principals of the Respondent, I do
note that Dussault, the meat department head, must nec-
essarily have been aware of it. Though he testified he did
not confirm or deny such knowledge. Given the nature
of the operation and the small number of employees, I
conclude that Dussault had specific knowledge of the
union activity. Even though it appears from the record
that his duties do not make him a supervisor within the
meaning of Section 2(11) of the Act, he is sufficiently
identified with management of the Respondent's Vernon
store so as to conclude that his knowledge became at
least the supposition of higher management. This was not
denied though precise "knowledge" was.
Further, the timing of the layoffs of Barile and Carroll
in connection with the union activity as well as their
meeting with Boyle would suggest that these factors
played a predominant role in the Respondent's decision.
While I find from the record before me that the Re-
spondent did have economic justification for laying off
one meatcutter at the Vernon store, it chose to lay off
the two for unlawful reasons. Thus, this is not a case
where, absent the union activity, the same result would
have attained. Rather, in this matter, but for the concert-
ed activity of Barile and Carroll, one of them at least, if
not both, would not have been selected for layoff. And
even if I can conclude that one of them would have been
selected for layoff, from the state of this record it is un-
known which. I conclude that Barile and Carroll princi-
pally were laid off in violation of Section 8(a)(l) because
they had engaged in concerted activity protected by Sec-
tion 7 of the Act. In addition, I conclude that they were
suspected, at least, of beginning the organizational cam-
paign and that such was a factor in the determination to
lay them off. Accordingly, the layoffs were also violative
of Section 8(a)(3) of the Act.
2. The alleged 8(a)(1) violations
The General Counsel alleges that during the October 4
meeting which Brown held among employees, he created
the impression of surveillance, impliedly threatened em-
ployees, informed them that it would be futile for them
to select the Union as their bargaining representative,
and promulgated a rule prohibiting all union activity.
From the generally credible testimony of Brown, cor-
roborated to a substantial extent by other witnesses, I
conclude that he made none of the statements attributed
to him by Barile and Carroll on which finding such vio-
lations could be made. Specifically, I find that Brown
did not at any time mention the word "union" to em-
ployees. While the purpose of his meeting no doubt was
to inform employees that the Company could get along
very well without a third party (meaning union) and that
his meeting with employees was no doubt troubleshoot-
ing in nature, nevertheless such is permissible absent
threats or the like.
As noted above, I specifically do not credit the testi-
mony of Barile and Carroll concerning the substance of
this meeting, and accordingly I will recommend that
paragraph 8 of the complaint be dismissed.
It is further alleged that, in October, DeLuca solicited
employee complaints and grievances and promised in-
creased benefits. Both Barile and Carroll testified that
DeLuca talked to employees individually following the
HEARTl.AND ()()D WAREH()USE 945
meeting with Boyle. They testified he asked if they had
any complaints or problems because he had heard there
had been some.
While these individual discussions with employees
were undenied by DeLuca, I find nothing in them viola-
tive of the Act. Not even Barile or Carroll testified that
DeLuca made any statements to them indicating that his
discussions were any more than those permitted by man-
agement with employees when problems come to a man-
ager's attention. There was no mention of the Union, or
the organizational campaign, nor did Barile or Carroll
testify that DeLuca promised to solve grievances or
promised benefits. In short, I conclude that a manager
has the right to discuss problems that have come to his
attention with employees and that absent some factor
which would make these conversations intimidating or
otherwise interfere with employees' Section 7 rights, I
conclude that such is not unlawful. Accordingly, I will
recommend that paragraph 9 of the complaint be dis-
missed.
IV. THE EFFE:CTS O1: THE UNFAIR LAHOR PRACITICES
ON COMMERCE
The unfair labor practices found, occurring in connec-
tion with the Respondent's business, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
within the meaning of Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that the Respondent unlawfully laid off
John Barile and Kerry Carroll on November 3, 1979, I
shall recommend that it cease and desist from such activ-
ity and offer them reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions of employment and make them whole for any
wages or other benefits they may have lost as a result of
the discrimination against them in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 298 (1950), with interest as provided for in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 3
Upon the foregoing findings of fact, conclusions of
law, the entire record in this matter and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 4
The Respondent, Heartland Food Warehouse, Divi-
sion of Purity Supreme Supermarkets, Vernon, Connecti-
cut, its officers, agents, successors, and assigns, shall:
3 See, generally, Iis Plumbing & eating Coa, 13 NI.RB 716 (10 6 2)
4 In the event no exceptions are iled as provided in Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
1. Cease and desist from:
(a) Laying off or otherwise discriminating against em-
ployees because they engage in concerted activities pro-
tected by Section 7 of the Act or activity on behalf of
the Union or any other labor organization.
(b) 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. 5
2. Take the following affirmative action:
(a) Offer reinstatement to John Barile and Kerry Car-
roll to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions of employment and
make them whole for any losses they may have suffered
as a result of the discrimination against them in accord-
ance with the provisions of the remedy section above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Vernon, Connecticut, facility, copies of
the attached notice marked "Appendix." 6 Copies of the
notice, on forms provided by the Officer-in-Charge for
Subregion 39, after being duly signed by the Respond-
ent's authorized representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that copies of said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Officer-in-Charge for Subregion 39, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
3. The complaint in all respects not found herein is dis-
missed.
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102 48 of the Rules and Regulations, be adopted by he Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
s Although finding that the Respondent did in fact discriminate against
two employees in iolation of the Act, generally it does not appear from
this record that the Respondent has a proclivity to engage in unfair labor
practices Accordingly, the narrow injunctise order is appropriate lick-
mott Foodi, Inc. 242 NLRB 1357 I 1979).
1 In the ecent that this Order is enforced by a Judgment of the United
States Court of Appeals, the swords in the notice reading "Posted by
Order ,sf the National l.abor Relations Board" shall read "Poslted Pursu-
ant Ito a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.ahb