Jewel Companies, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1356 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jewel Companies, Inc., Star Market Co. Division and
Dickran Keosaian. Case I-CA 14296
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 29, 1979, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a support brief, and Respondent filed cross-
exceptions and a brief in support thereof and in sup-
port of other aspects of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
I In sec. II, A, of his Decision, the Administrative Law Judge inadver-
tently states that the Charging Party notified Respondent that he had re-
quested a charter to "join" the Star Market Employees Federal Credit
Union. whereas the record establishes that the Charging Party advised Re-
spondent that he had requested a charter to "form" such a credit union.
2 We agree with the Administrative Law Judge that, under the circum-
stances of this case, Respondent's discharge of the Charging Party did not
violate Sec. 8(a)(1) of the Act. In doing so, we rely wholly on his finding that
the credit union which the Charging Party was attempting to establish was
not within the scope of the employment relationship existing between Re-
spondent and its employees, and that, therefore, his conduct in that regard
was not protected by Sec. 7 of the Act. In so finding, we reject any suggestion
in the Administrative Law Judge's Decision that the Board in G & W Elec-
lric Specialty Company, 154 NLRB 1136 (1965) (Member Jenkins dissenting
in part), found the credit union therein to be a condition of employment, To
the contrary, the Board in G & W Electric at 1137, expressly stated: "[Wle
find it unnecessary to, and therefore do not, adopt the Trial Examiner's
suggestion that a credit union involves a term or condition of employment of
a kind subject to mandatory bargaining under the provisions of Sections 8(d)
and 9(a) of the Act." The Board limited its Decision to the facts of that case
and found only that the credit union there involved was, under the circum-
stances, indirectly related to the employment relationship, and as a conse-
quence the employee's activity in questioning its operation was within the
scope of protection afforded by the "mutual aid and protection" clause of
Sec. 7 of the Act.
We also find it unnecessary to pass on the Administrative Law Judge's
comments which suggest that a credit union may become a condition of
employment as a result of possible action on the part of an employer in
support of the establishment or eventual operation of such a credit union.
In any event, Member Jenkins. who dissented in G & W Electric on the
ground that the credit union therein was not within the employment rela-
tionship, and thus employee activity in regard thereto was not protected.
finds it unnecessary to distinguish G & W Electric, in view of that dissenting
position.
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
S'IATEMENI O ITHE CASE
PETER E. DONNELLY, Administrative Law Judge: The
original charge herein was filed by Dickran Keosaian on
April 3, 1978.' An amended charge was filed on May 10.
The complaint herein was issued against Jewel Companies,
Inc., Star Market Co. Division. herein called Employer or
Respondent, by the General Counsel of the National Labor
Relations Board on May 15. Pursuant to a motion by Re-
spondent and order of the Administrative Law Judge, coun-
sel for the General Counsel on July 19 issued a more de-
tailed statement of the nature of Keosaian's alleged
protected, concerted activities, and the dates and places of
that activity. In substance, the complaint alleges that Keo-
saian was discharged because he engaged in the protected,
concerted activity of attempting to establish a credit union
for the employees of the Star Market Co. Division of Jewel
Companies, Inc., herein called the Star Market.2 An answer
thereto was timely filed by Respondent. Pursuant to notice.
a hearing was held before the Administrative Law Judge on
October 26. 1978. in Boston, Massachusetts. Briefs were
filed by the General Counsel and Respondent which have
been duly considered.
FINDINGS OF FA(CT
I. EMPLOYER'S BUSINESS
The Employer is a New York corporation, maintaining
its principal office and place of business in Cambridge,
Massachusetts, where it is engaged at various stores in Mas-
sachusetts and other States in the sale and distribution of
food and related products. The Employer, in the course and
conduct of its business, has gross annual sales in excess of
$50,000 and annually receives, at Massachusetts locations,
goods valued in excess of $50.000 directly from locations
outside the Commonwealth of Massachusetts. The com-
plaint alleges, the answer admits, and I find, that the Em-
ployer is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1. AI .E(EI) UNFAIR L.ABOR PRA(CI('I S
A. actrs
Dickran Keosaian, was employed by Respondent as a
receiver in the Dorchester, Massachusetts, store. Keosaian
was employed by Star Market either full- or part-time since
1956.
i All dates refer to 1978. unless otherwise indicated.
2 Star Market was purchased b Jewel Companies, Inc., in the early
1960's.
245 NLRB No. 176
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JEWEL COMPANIES, INC.
In prior years Keosaian had taken it upon himself, on an
informal basis, to collect and bank monies from store em-
ployees and return it to them with interest each year at
Christmas time. This practice was discontinued after
Christmas 1976, when Keosaian took a leave of absence in
order to take the Massachusetts bar examination.3 During
1976, and again after his return from the leave of absence in
1977, Keosaian discussed with various employees the pros-
pect of starting a credit union for Star Market employees.
Those with whom he spoke expressed approval of the con-
cept, and on March 5 he placed a telephone call to William
B. Convington, regional director for region I of the Na-
tional Credit Union Administration. Keosaian told Coving-
ton that he wanted to start a credit union. By letter dated
March 9, Covington sent Keosaian literature concerning
the formation and operation of a Federal Credit Union.
On March 21 Keosaian sent a letter to James Henson,
president of Star Market, advising him that he had filed a
formal application "requesting a charter to join the Star
Market Employees Federal Credit Union." (G.C. Exh. 3).
The letter requested a meeting with Henson, and enclosed
some 65 announcements with a request that they be distrib-
uted to employees at each store (G.C. Exh. 4). On the fol-
lowing day he told Robert Charbonnier, manager of the
Dorchester store, about his letter to Henson and gave him
two of the announcements. Charbonnier asked Keosaian
not to post them until Henson had responded.' During the
period from March 5 until he was discharged on March 31,
Keosaian distributed announcements to several employees
and spoke to them concerning the nature of a credit union
and its advantages. The employees responded affirmatively
to the establishment of a credit union.
On Friday, March 24, 1978, Keosaian attempted to tele-
phone Henson but was told by his secretary that he was
out. Keosaian left a message asking Henson's approval of a
credit union and requesting the use of a lunchroom in the
administrative company office for a meeting.
Later on March 24 Keosaian received a telephone call at
the Dorchester store from Katherine Nicholson, Star Mar-
ket's vice president for human resources, who advised him
that she was handling the credit union matter for Henson.
Nicholson told him that Respondent was also interested in
a credit union and had been working on it for some time. A
meeting between Nicholson and Keosaian was arranged for
late afternoon on the following Friday, March 31. After
talking to Nicholson on March 24, Keosaian spoke to Char-
bonnier explaining the concept of a credit union to him and
telling him that Respondent also favored a credit union and
that who would be running it was "up in the air." He also
told Charbonnier of his appointment on March 31 with
Nicholson. Still later on March 24. Keosaian received a
telephone call from his nephew, David Missirian, also a
Star Market employee. Missirian told him that he had seen
a notice concerning a credit union posted by Star Market;
that the notice concerned the establishment of a credit
union; and that Freedom Federal Savings Bank was in-
Keosaian was admitted to the Massachusetts bar on June 7. 1977.
'Henson never responded to this letter or to any' of the subsequent tele-
phone calls made by Keosaian.
volved.' Missirian testified that he told Keosaian that "it
was like a race, that they were trying to heat us out, get a
credit union started before ours was started." At this point
Keosaian felt that Star Market was deceiving him; attempt-
ing to pull a "fast one" on him.
On the following day, Saturday, March 25, Keosaian
telephoned a Mr. Fuczrile of the NCUA, who had been
advising him concerning the establishment of a credit
union, and asked him if the Company could do this. Fu-
czrile advised him not to worry because Freedom Federal
was a bank and could not operate a credit union.
When Keosaian came to work on Monday, March 27.
one of his credit union posters was stapled to the bulletin.
Charbonnnier removed it and gave it to Keosaian and told
him to keep it until he spoke to Nicholson on Friday,
March 31. Later in the day, on March 27, Keosaian called
Freedom Federal and was put in touch with an attorney
named Richard Perry with whom he had at least two con-
versations on that day. Keosaian identified himself as attor-
ney for the proposed credit union at Star Market and told
Perry that a notice had been put out by Star Market that in
some way tied in Freedom Federal and Star Market in
forming a credit union. Keosaian testified, "Then later that
morning at coffee break I called Freedom Federal Savings
to find out what the story was with that credit union. Did
they have a credit union with them? And what was the
story with this whatyoucallit-bulletin that said that they
were having a credit union with Federal." He also told
Perry that if there were any misrepresentations in the notice
he would take action to enjoin its publication and that the
credit union arrangement between Star Market and Free-
dom Federal constituted interference with an advantageous
relationship as to Keosaian. Perry said that he was unaware
of any notices, and both agreed to locate the notice to re-
view themselves for possible misrepresentations.
On March 29 Keosaian again called Henson. this time to
invite him to a meeting to be held that evening with Mr.
Fuczrile. Again Keosaian was told that Henson was not
there and Keosaian gave this information to Henson's sec-
retary for transmittal to Henson.
Shortly after his 10 o'clock break on Friday, March 31.
Charbonnier approached Keosaian and told him that Nich-
olson would not be able to see him that day as arranged
and that he was to go to the south area office, where he
understood he was to meet with Nicholson and either
George Boule, south area personnel manager, or Henry
Narcella, south area operations manager. When Keosaian
arrived at the south area office, only Boule and Narcella
were there. At this meeting Boule advised Keosaian that a
decision had been made to terminate him because he had
called Freedom Federal. Narcella testified that Boule told
him that he was being terminated "for his actions in jeopar-
dizing our relationship with Freedom Federal Savings and
his phone conversation." After a somewhat heated discus-
sion, Keosaian left the office and returned to the store, even
though he had been told by Boule and Narcella not to go
back to the store because as a terminated employee he
'The parties stipulated that a notice was posted on or about March 27
ads sing the employees of the establishment of a credit union for the emplo,-
ees by Star Market (G.C. Exh. 6. However. Missinan was unable to testif)
that this was the notice he saw posted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be trespassing. Keosaian was escorted from the store
premises by three policemen some time between 12:30 and
1:30 p.m.
Concerning the decision to discharge Keosaian, it ap-
pears that on March 30 a conference was held attended by
several management officials including Nicholson, Henson,
Narcella, and Jack Avedesian, group vice president for re-
tail store operations. According to Nicholson, Avedesian
described reports that he had received concerning the ac-
tivities of Keosaian in connection with the proposed credit
union, specifically the telephone calls made by Keosaian to
Perry which resulted in John Mugar, chairman of the board
of Star Market, calling Avedesian at home on the evening
of March 29 and relating to him the conversations between
Keosaian and Freedom Federal.6 Nicholson further testi-
fied that a concensus was reached at this meeting that Keo-
saian's conduct warranted his termination for "deliberate
misconduct" in communicating to Freedom Federal that a
credit union was being added to employee benefits before
Star Market could make it known to them in an "appropri-
ate business manner." Nicholson testified that the business
relationship between Star Market and Freedom Federal
was potentially damaged. It appears that the business rela-
tionship between Freedom Federal and Star Market in-
cludes a payroll savings plan and check cashing privileges
at several stores. It also appears that John Mugar, chairman
of the board of Star Market has been and may presently be
a director of Freedom Federal.
Nicholson also testified about Star Market's interest in
establishing a credit union for employees. She states that
after Star employees voiced an interest in establishing a
credit union, she conducted a study and in March of 1977
was advised that a credit union had company approval. At
a meeting of company officers on March 9, a proposed
credit union was approved. A company notice concerning a
credit union was posted on or about March 27, and it is
conceded that at this time Freedom Federal had not been
told about Respondent's plan to establish a credit union.
Nicholson also testified that as of March 27 no specific
credit union had been selected. This was not done until
early April when Respondent joined an existing credit
union, Suburban Credit Union.
B. Analysis and Recommendation
It is the position of the General Counsel that Keosaian
was discharged for having engaged in the protected, con-
certed activity of attempting to establish a credit union
among Respondent's employees. Respondent, on the other
hand, takes the position, inter alia, that such activity is not
protected activity under the Act, and further, even assum-
ing that such activity generally was deemed to be protected,
Keosaian was discharged for making telephone calls to Star
Market's bank. Freedom Federal, which jeopardized Re-
spondent's business relationship with Freedom Federal,
which activity is not protected.
It is my opinion that the telephone calls made by Keo-
saian to Freedom Federal were part, parcel, and incident to
' None of the participants at this meeting except Nicholson and Narcella
testified concerning the meeting. Perry did not testify.
the overall effort being made by Keosaian to establish a
credit union. The telephone calls were to ascertain whether
or not Respondent was taking any improper or illegal ac-
tion which could have the effect of undermining Keosaian's
efforts to secure a credit union for employees. Respondent's
contention that the telephone calls jeopardized Respon-
dent's business relationship with Freedom Federal are un-
persuasive. It is not likely that such activity by a single
employee would have the profound impact attributed to it
by Respondent, to cause Freedom Federal to take action
detrimental to the business relationship, particularly where
the benefits of the relationship are obviously reciprocal. It
also offends credulity to conclude that such a minor inci-
dent would motivate Respondent to summarily discharge,
without warning, an apparently satisfactory employee who
has contributed over 20 years of service to Respondent.
Respondent further contends that a factor in Keosaian's
discharge was that his telephone calls were a premature
disclosure of Respondent's plans to establish a credit union
which prevented Respondent from so advising Freedom
Federal in an appropriate business manner. However, this
could not have been a matter of great concern to Respon-
dent since it made this same disclosure by written posted
notice to all its employees before Keosaian called Freedom
Federal on March 27. In other words, Respondent's deci-
sion to institute a credit union was common knowledge by
the time Keosaian spoke to Freedom Federal on March 27.
Respondent also cites the threatening representation
made by Keosaian in the telephone calls as a factor in Keo-
saian's discharge, but, in examining the conversation, it ap-
pears that Keosaian and Perry, both attorneys, were only
discussing the extent to which any misrepresentation in the
Company notice was legally actionable. It was left that,
since neither had seen it, they would both review it to see if
it did contain any misrepresentations.
In summary, I conclude that Keosaian's telephone calls
on March 27 were part and parcel of his overall efforts to
establish a credit union and Respondent's attempts to iso-
late the telephone calls and single them out as the basis for
discharge is not persuasive. I am satisfied, based on this
record, that Keosaian was discharged as alleged by the
General Counsel for attempting to establish a credit union
for Respondent's employees.
Having disposed of that issue, the larger issue remains for
resolution. Was the activity for which Keosaian was dis-
charged, i.e., attempting to establish a credit union among
Respondent's employees, a protected, concerted activity? I
think it was not.
The Act provides that an employee has the right, inter
alia, to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any and all
such activities...."
In the instant case, Keosaian was attempting to establish
a credit union. Since the effort was in the organizational
phase, what final form it might have taken is conjectural,
but there is no reason to assume that the organization
would involve Respondent or that its participation would
be necessary to its operation. While it appears that repre-
sentatives of Respondent were apprised by Keosaian of his
intention and their assistance solicited, they were not in-
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JEWEL COMPANIES. INC.
vited to participate in its operation. As contemplated by
Keosaian, the credit union would be run by a slate of offi-
cers selected by the employees and managed by himself.
The only way that Respondent would be involved, as far as
this record discloses, would be in the payment of wages.
from which some employees presumably would purchase
shares. This is a most indirect and diffuse involvement in
the operation of the proposed credit union. In my opinion,
if Keosaian's activity herein can be construed as protected,
there is almost no sort of employee activity, for whatever
purpose, which would not also be deemed protected. An
employee would be privileged, unilaterally, in this fashion
to engage in activity totally unrelated to the employment
relationship, and such activity would be immune from em-
ployer interference as concerted activity for the purpose of
"mutual aid or protection" of employees. The Act does not,
in my opinion, confer such an immunity on employees en-
gaged in activities unrelated to the employment relation-
ship.
In support of its conclusion in that the establishment of a
credit union is protected activity. the General Counsel relies
on G & W Electric Specialty Company. 154 NLRB 1136
(1965). In that case, a Board majority, member Jenkins dis-
senting, took great care to limit its decision to the "circum-
stances of this case." The case involved an employee who
was discharged for speaking to employees during the lunch
period about the way the credit union was being operated
and solicited signatures for a petition connected therewith.
The Board held that this was concerted activity for the mu-
tual aid or protection of employees and that the discharge
therefore violates Section 8(a)(1). The Board said. "How-
ever, we are convinced that the protection afforded by Sec-
tion 7 is not strictly confined to activities which are immedi-
ately related to the employment relationship or working
conditions, but extends to the type of indirectly related ac-
tivity involved herein." While the matter is not entirely free
of doubt, I am persuaded that there are substantive factual
distinctions in the instant case which distinguish it from the
G. & W. Electric case. In other words, on the facts of the
instant case, I cannot conclude that Keosaian's activity is
even indirectly related to the employment relationship or
working conditions. In G. & W. Electric, it was the conduct
of the employer itself which had made the credit union a
condition of employment. The trial examiner, whose rea-
soning the Board majority adopted, states:
Membership in the Credit Union qualifies as a condi-
tion of employment because it is an emolument of the
employment relationship. It arises out of the employ-
ment relationship in that employment by Respondent
is a sine qua non to membership in the Credit Union.
Moreover, despite Respondent's protestations of its
lack of interest in the Credit Union and of its desire not
to become involved in its operations, the fact remains
that Respondent's conduct has made the Credit Union
a condition of employment. Respondent has encour-
aged and assisted the Credit Union by: () giving the
employees its permission to organize the Credit UInion
and to use the company name; (2) permitting the
Credit Union to use its conference room to transact its
business; (3) making payroll deductions for the Credit
Union: and (4) publishing in its plant newspaper items
submitted by the Credit Union promoting membership
in the Credit Union. [Footnote omitted.]'
Without belaboring the point, it is obvious that none of
these enumerated factors is present in the instant case. and
so it cannot be said that Respondent has by a course of
action constituted the credit union a condition of employ-
ment. Perhaps, had the credit union sought by Keosaian
been established, it would, in time, have become such. But
this possibility was pure conjecture at the time that Keo-
saian was discharged since no one could know what form
the credit union would have taken. or indeed, whether or
not it would ever have been established.'
Accordingly, I conclude that Keosaian's activity in at-
tempting to establish a credit union was not protected, con-
certed activity within the meaning of the Act, and I shall
recommend that the complaint herein be dismissed.
CONC(l.USIONS OF LAW
1. Respondent has not engaged in any conduct violative
of the Act.
Upon the foregoing findings of fact and conclusions of
law. I hereb issue the following recommended:
ORDER9
The complaint is dismissed in its entirety.
It also should be noted that this credit union was originally organized
with assistance from employer officials and that the employer personnel
manager and plant manager served on the original board of directors.
' It appears that as a credit union, under NCLA regulations. a majornt
vote of employees favoring a credit union is prerequisite, and the record does
not disclose that such a vote was taken.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions, and Order, and all objections shall be deemed waived
for all purposes
1359