Jumbo Produce, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1989

294 N.L.R.B. 998 (N.L.R.B. 1989)

998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jumbo Produce , Inc. and Drivers, Chauffeurs,
Warehousemen & Helpers Local Union No. 639
and Warehouse Employees Local 730 a/w Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO.' Cases 5-CA-17672 and 5-RC-12559
June 13, 1989
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On September 8, 1987, Administrative Law
Judge Lowell Goerlich issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief, and the General Counsel and the
Charging Party filed cross-exceptions and support-
ing briefs. The General Counsel also filed an an-
swering brief in response to the Respondent's ex-
ceptions.
The National Labor Relations Board has delegat-
ed 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, fmdings,2 rec-
ommendations , and conclusions only to the extent
consistent with this Decision and Order.
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
We find it unnecessary to pass on the judge's dismissal of the allegation
that Supervisor Piccioni.violated Sec. 8 (aXl) by asking employee Evans
what he thought about the Union. The finding of the violation would, in
any event, be cumulative and would not affect the remedy . We find it
unnecessary to rely on the judge's finding that the Respondent 's agent
Isaac Gendelman unlawfully interrogated employee Etienne, and we
predicate the interrogation portion of the cease-and-desist order solely on
the interrogation of employee Genaro Menbreno by Warehouse Manager
Jack Smith, discussed infra.
In finding that the packing department employees were laid off and
discharged in violation of Sec . 8(aX3), we disavow the judge's specula-
tion that the Respondent would suspect that other employees had come
under Menbreno's persuasion and thus favored the Union merely because
they, like Menbreno, were Hispanic . We find it unnecessary to pass on
the judge 's finding that the Respondent's conduct in regard to these lay-
offs was inherently destructive in view of the judge's other findings that
fully support the conclusion that the layoffs were motivated by antiunion
discrimination.
Finally, we note that the judge inadvertently misstated the dates of
some events . The date of Michael Herman 's letter to the employees is
December 4, 1985, JD slip op. at 4; Stanley Broadus' warning is dated
November 16, 1985, JD slip op. at 4; the packing department employees'
dismissal occurred November 8, 1985 , JD slip op. at 9; the date of Men-
breno's signing the union authorization card is October 6, 1985, JD slip
op. at 13.
a We agree with the judge that if a majority of valid ballots has not
been cast for the Union, a new election is appropriate here under Dal-Tex
1. The General Counsel has excepted to the
judge's dismissal of the allegation concerning Elsie
Rivas' agency status, his exclusion of testimony re-
lated to 8(a)(1) conduct allegedly committed by
Rivas, and his dismissal of the 8(a)(1) allegations in-
volving Rivas. The General Counsel, citing Plumb-
ers Local 195 (Stone & Webster), 237 NLRB 931
(1978), argues that the judge's dismissal is proce-
durally incorrect because he did not issue a written
decision explaining his rationale for the dismissal.
During the hearing the General Counsel attempted
to introduce evidence concerning Elsie Rivas'
agency status and certain statements she allegedly
made to the employees. The Respondent' s counsel
objected and the General Counsel .made a proffer
of evidence. In sustaining the • Respondent's objec-
tion the judge found that the evidence did not es-
tablish that Rivas was an agent of the Respondent
and he therefore excluded further evidence regard-
ing her communication with the employees. The
General Counsel and the Charging Party made a
special appeal to the Board concerning this issue.
The Board denied the appeal without prejudice and
allowed the parties to renew their contentions
through an appropriate exception. After reviewing
the record evidence, we agree with the judge in
finding that Rivas is not an agent of the Respond-
ent.
With regard to the General Counsel's contention
that the judge erred procedurally, we note that in
Plumbers Local 195, supra, the judge orally granted
the Respondent's motion for summary dismissal
stating only that the General Counsel had failed to
establish a prima facie case. In contrast, the judge
here states on the record his reasons for fmding
Optical Ca, 137 NLRB 1782 (1962), because of the 8(aXl) violations
during the critical period.
However , although we agree that Vice President Herman's institution
of an "open door" policy in response to the union campaign was viola-
tive of Sec 8(a)(1), we find it to be an unlawful grant of benefit rather
than a solicitation of grievances . See Gull, Inc., 279 NLRB 931 fn. 1
(1986). -
In adopting the judge 's conclusion that Eugene Piccioni was a supervi-
sor, we note that Bowne of Houston, 280 NLRB 1222 (1986), on which
the Respondent chiefly relies , is distinguishable . Womack, the individual
whose status was at issue in Bowne, was a classic leadman-an experi-
enced typesetter who could use his skills in the craft to give some in-
structions to other employees , but who, with respect to core supervisory
decisions , served as little more than a transmitter of instructions from his
supervisor, who was on the premises and available for consultation
during Womack's shift. Piccioni, by contrast, had little or no prior ware-
house experience when he was transferred in to take charge of the night
crew; and there were no other managers on the premises during the shift
in which Piccioni directed the crew. Piccioni testified that he would con-
sult his superiors during his shift only in an "extreme emergency." Most
significantly , unlike the situation in Bowne, the credible evidence in this
case shows that Piccioni had authority effectively to recommend discipli-
nary warnings, evidenced by, inter alia, two written warnings, signed by
Piccroni as "manager" and given to employee Robert Perry, and involv-
ing incidents that were never discussed with Perry by any other manage-
ment official.
294 NLRB No. 75
JUMBO PRODUCE
Rivas not to be an agent of the Respondent.4 In a
lengthy discussion of the issue during the hearing,
the judge allowed counsel for the General Counsel
to present his factual, and legal arguments as to
why Rivas should be found to be an agent. (Tr.
283-310.) After considering the arguments and the
Respondent's rebuttal, the judge found that the
proffered evidence indicated that Rivas acted
solely as an interpreter and unit employee, and was
not an agent of the Respondent. He further found
that it was not reasonable for the employees to
conclude that Rivas was an agent of the Respond-
ent, but rather that they would conclude that she
was only acting as an interpreter. He additionally
found that other statements that were made by
Rivas and that may have been threatening were not
violations of the Act because Rivas' was not an
agent. The judge concluded that an employee has
the right to make antiunion statements during an
election campaign, which do not bind an employer,
unless the employee is an agent. We agree with the
judge's analysis of the proffered evidence.
2. Approximately a week before the packing de-
partment was closed on November 8, 1985, Jack
Smith, the Respondent's warehouse manager, con-
fronted employee Menbreno as he was leaving
work. Smith asked him where he was going. Men-
breno replied that he was going to look for a car
for his friend. Smith stated that he did not believe
him and accused him of going to a union meeting.
Menbreno denied he was going to a union meeting,
but Smith again accused him of going to a union
meeting. At that point Menbreno turned around
and reported back to work, but Smith sent him
home.
The judge summarily dismissed the allegation
that Smith created an impression of surveillance,
stating that the facts do not support the claim. The
General Counsel in her cross-exceptions contends
that Smith's repeated and unprovoked accusations
could only lead Menbreno, who was not an open
union supporter, to believe that his union activities
were under surveillance and that Smith's actions so
coerced Menbreno that he turned around and re-
ported back to work.
We agree with the General Counsel that a viola-
tion occurred, but we find it to be an unlawful in-
terrogation as well as creating an impression of sur-
veillance . See, e .g., Pony Express Courier Corp., 283
NLRB 868 (1987).
Smith's accusations reasonably tended to threat-
.en or coerce Menbreno and to force him to dis-
close any union activity. Further, Menbreno could
999
reasonably assume from Smith's accusations that
the Respondent had placed his union activities,
which were not open, under surveillance. Accord-
ingly, we find Smith's remarks to Menbreno both
constituted an interrogation regarding Menbreno's
union activities and created the impression of sur-
veillance of union activities, in violation of Section
8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Jumbo Produce , Inc., Landover, Mary-
land, its officers , agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(c).
"(c) Granting or promising to grant benefits to
its employees in order to inhibit them from exercis-
ing their rights under Section 7 of the Act."
2. Add the following as paragraph 1(d) and relet-
ter the remaining paragraph.
"(d) Creating in the minds of its employees the
impression that their union activities are the subject
of company surveillance."
3. Substitute the attached notice for that of the
administrative law judge.
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 5 shall, pursuant to the Board Rules and
Regulations, within 10 days from the date of this
Decision, Order, and Direction, open and count
the ballots cast by Genaro Menbreno, Edith Tobar,
Juan Carlos Toscana, Maria Conchita Ventura,
Virginia Cerritos, and Elsie Rivas, and cause to be
served on the parties a revised tally of ballots. In
the event that the'Union received a majority of the
votes cast according to the revised tally, the Re-
gional Director shall issue a certification of repre-
sentative. In the event that the Union did not re-
ceive a majority of the votes cast according to the
revised tally , it is further directed that the election
conducted on December 15, 1985, is set aside and
that a new election be conducted in accordance
with the following.
[Direction of Second Election omitted from pub-
lication.]
4 We note that Plumbers Local 195 is also distinguishable by the fact
that it involved the dismissal of an entire case Here , the judge only limit-
ed what evidence would be received on a single issue
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL notify the above-named employees that
we have removed from our files any reference to
their discharges and that the discharges will not be
used against them in any way.
JUMBO PRODUCE, INC.
The National Labor Relations Board has found
that we violated the National Labor Relations' Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage union or concerted ac-
tivities of our employees or discourage their mem-
bership in Drivers, Chauffeurs, Warehousemen &
Helpers Local Union No. 639 and Warehouse Em-
ployees Local 730 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO or any other labor
organization, by unlawfully and discriminatorily
laying off and discharging , any of you or discrimi-
nating against you in any manner in respect to your
hire or tenure of employment or any term or con-
dition of employment in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act.
WE WILL NOT interrogate our employees regard-
ing their union or concerted activities.
WE WILL NOT grant or promise to grant benefits
to our employees in order to inhibit them from ex-
ercising their rights under Section 7 of the Act.
WE WILL NOT create in our employees' minds
the impression that their union activities are the
subject of company surveillance.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Genaro Menbreno, Edith Tobar,
Juan Carlos Toscano, Maria Ventura, Ana Lavios,
and Dilma Salvador , who were unlawfully dis-
charged on November 8, 1985 , immediate and full
reinstatement to their former jobs or , if those jobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE
WILL make them whole for any loss of earnings
and other benefits resulting from their discharges,
less any net interim earnings , plus interest.
Eric Fine, Esq., for the General Counsel.
Edward J. Gutman, Esq. and Robert N. Herman, Esq., of
Baltimore , Maryland , for the Respondent.
Kathleen Murray, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
original charge filed by Drivers, Chauffeurs, Warehouse-
men & Helpers Local 639 and Warehouse Employees
Local 730 a/w International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America (the
Union) on 5 December 1985 was served by certified mail
on Jumbo Produce, Inc. (the Respondent ) on 6 Decem-
ber 1985 . A first amended charge, filed on 18 December
1985, was served on the Respondent on 23 December
1985. A complaint and notice of hearing was issued on
11 June 1986. Among other things it is alleged in the
complaint that the Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act).
On 13 December 1985 an election by secret ballot had
been held among the Respondent 's warehouse, employees
in Case 5-RC-12559. On 15 August 1986 the Acting Re-
gional Director issued a Report on Objections and Chal-
lenges, Order Consolidating Cases and Notice of Hearing
in Case 5-RC-12559 consolidating Case 5-RC-12559
with Case 5-CA-17672 " for the purpose of hearing,
ruling and decision by an Administrative Law Judge."
The Board on 12 November 1986 adopted the Acting
Regional Director's findings and recommendations
except as to the challenge to the ballot of Calixto Pineda.
The Respondent filed a timely answer denying that it
had engaged in the unfair labor practices alleged.
The case came on for hearing in Washington, D.C., on
16 and 17 December 1985 and 1 and 2 June 1987. All
parties were afforded a full opportunity to be heard, to
call, to examine and cross -examine witnesses , to argue
orally on the record, to submit proposed findings of fact
and conclusions , and to file briefs . All briefs have been
carefully considered
On the entire record' in this case and from my obser-
vation of the witnesses and their demeanor , I make the
following2
' There being no opposition thereto, the General Counsel's motion to
correct transcript is granted and the transcript is corrected accordingly
2 The facts found herein are based on the record as a whole and my
observation of the witnesses The credibility resolutions have been de-
rived from a review of the entire testimonial record and exhibits, with
due regard for the logic of probability , the demeanor of the witnesses,
and the teachings of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962)
As to those witnesses testifying in contradiction of the findings herein,
Continued
JUMBO PRODUCE
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
REASONS THEREFOR
I. THE BUSINESS OF THE RESPONDENT
At all times material herein, the Respondent, a District
of Columbia corporation, has operated a warehouse at its
principal place of business at Pennsy Drive, Landover,
Maryland (the Respondent's facility), and has been en-
gaged in the business of buying, receiving, storing, and
delivering produce for Jumbo Food Stores and Shoppers
Food Markets.
During the preceding 12 months, a representative
period, the Respondent, in the course and conduct of its
business operations described above, purchased and re-
ceived at its Landover, Maryland facility products,
goods, and materials valued in excess of $50,000 directly
form points located outside the State of Maryland. The
Respondent is now , and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material
herein , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A The Employment Status of Eugene Piccioni and
His Alleged 8(a)(1) Violations
The Union challenged Eugene (Gene) Piccioni's ballot
as a supervisor; the General Counsel claims that he vio-
lated Section 8(a)(1) of the Act. The Respondent asserts
that Piccioni is not a supervisor within the meaning of
the Act.
Piccioni referred to himself as a night-shift shipper in
the produce warehouse. The shift commenced at 12 mid-
night and continued until around 8:30 a.m. Nine or ten
employees worked on the same shift.3 The composite ef-
forts of these employees was to ready orders to be deliv-
ered to the Respondent's retail stores. Jack Smith, the
warehouse manager, was Piccioni's supervisor. Ordinari-
ly Smith was absent from the warehouse between the
hours of 12 midnight to 5 a.m. During the period of
Smith's absence, he referred to Piccioni as the "person in
charge." Smith also called Piccioni "the night shift boss"
"[h]e was in charge of the night crew."
Piccioni carried the keys to the warehouse and opened
its doors at 12 o'clock and closed them at 10 minutes
after 12. The doors then remained closed until 5 o'clock
when Smith arrived. After the doors were opened at 12
o'clock, Piccioni obtained the retail store orders which
were to be filled during the shift from a "table." He then
directed selectors to select the produce and other items
their testimonies have been discredited either as having been in conflict
with the testimonies of credible witnesses or because the testimonies were
in and of themselves incredible and unworthy of belief All testimony has
been reviewed and weighed in the light of the entire record No testimo-
ny has been pretermitted
3 Among these employees were a shipper , a receiver , "selectors. and
one man qualified to operate a forklift
1001
to fill the orders from the warehouse's inventory, such as
"[t]en cases of juice, ten celery and so on," In Piccioni's
words, "I'll check the orders as they came by, you
know, to be sure he put 30 lettuce and make sure he
didn't have cabbage and make sure he was getting the
proper merchandise." "Then they would be taken then
set up in a staging area to be shipped out to the stores."
Smith described Piccioni's work:
He gets the shipping papers from the shipping desk
and gets everything operational, functioning from
the warehouse. The lights are on; the boxes are in
good order, and so forth. And then he starts direct-
ing orders with the merchandise to the selectors.
Give me X amount of this, and X amount of that
and places them on pallets. The store number is
placed on the pallet and then it stays in a staging
area.
Piccioni testified that "if there were an extreme emer-
gency" he would call Smith or Isaac Gendelman,4 vice
president in charge of produce, and "find out where to
go from there . . unless it was something I could handle
myself"5 (Emphasis added.)
Michael S. Herman, executive vice president, wrote
employees 4 December 1983, "We have new supervision
on the night crew, and we are getting a lot of work
done. 116 (G C. Exh. 28.)
Employee Barney Evans testified that when sick he
phoned Piccioni' and when he wanted time off he made
the request to Piccioni. Employee Robert Perry testified
that if he were coming in late for work he would call
Piccioni. According to employee Robert Perry, Piccioni
sent him home for being late.
Piccioni 's signature appeared on several warning no-
tices one of which was a warning notice directed to em-
ployee Perry. Perry's notice dated 28 July 1986 was
given to him by Piccioni, who discussed the content
with him. Perry received another notice dated 27 No-
vember 1985 which Piccioni also signed and discussed
with Perry.8 Other warnings signed by Piccioni were
given to Stanley Broadus, dated 13 December 1985,
Barney Evans, dated 18 April 1986 , and James Bell,
dated 5 May 1986.9
4 Sometimes spelled "Genderman" in the transcript
5 Things which Piccioni said he could handle himself were, "pretty
much checked the merchandise as it was being staged to go out , to make
sure they got the proper stuff, that type of thing, routinely carrying out
the orders Basically making sure the orders get filled and filled proper-
ly " Smith testified that Piccioni had the authority to change the items to
be selected from preestablished order sheets should there be a shortage of
a particular item Smith testified that Piccioni tells the employees
"[W]hat to get" and that he is the only employee present whom the night
crew "reports to "
6 M Herman testified that "new supervision" referred "probably" to
Piccioni "in a very generic form "
' Evans testified further that Piccioni told him to call Smith the next
morning
s Perry testified "Why did he chew me out, because I put an order in
the wrong place He said I put an order in the wrong place I thought I
had put it in the right place "
9 Broadus had "loaded a skid of grapes too high " "Unsatisfactory job
performance " (G C Exh 3), Evans was charged with being late too
many times , a 3-day suspension was given , and Bell was charged with
failing to arrive at work until 5 a in
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
None of- these warnings were discussed with the em-
ployee by any supervisor except Piccioni. In regard to
the Perry incident Piccioni testified that he told Smith
"we should write him up."
Additionally, Piccioni exercised independent judgment
in determining that an employee, Stanley Broadus, whom
he sent home was drunk. Smith admitted that Piccioni
had sent Emanuel Livingston home on one occasion for
a drinking problem.
Perry overheard Smith state that "Gene Piccioni was
a supervisor. He was in charge of the men." Michael
Herman testified, referring to the warehouse employees
and Piccioni in particular, "In any group of people some-
body has to be in charge."
According to Smith, Piccioni interviewed a job appli-
cant while Smith was on vacation. Piccioni is paid the
same wages as some of the other warehouse employees.
According to Smith, Piccioni has no authority to
excuse employees who had appeared for work. Accord-
ing to Piccioni, he possessed no authority to fire employ-
ees although he reported to Smith "if a person wasn't
performing his work correctly."
From the foregoing credited facts it is clear that Pic-
cioni, in the administration of his job, responsibly direct-
ed employees and exercised independent judgment. He
was the sole person in charge of the night shift. I find
that Piccioni was a supervisor within the meaning of the
Act. Cf. Redway Carriers, 274 NLRB 1359, 1372 (1985),
and Ajax Tool Works, 257 NLRB 825, 827 (1981).
B. Piccioni's Alleged 8(a)(1) Violations of the Act
The General Counsel offered evidence through Bertis
R. Etienne Jr. that during a conversation between Pic-
cioni and Etienne, Piccioni said, "[I]f you went forth
with the information that you knew, it would help you
out on the long run." Etienne also asserted that Piccioni
asked him if he would "come forth to go talk about the
union to the company with anything I knew of. That it
could help me out, more like brownie points, more or
less, with the company." Piccioni denied this testimony
Etienne also testified that later he received a phone
call from Piccioni who asked him "if Chico Menbreno
had been at any of the meetings." Etienne responded in
the affirmative. According to Etienne, Piccioni said that
he "really wasn't too much worried about that because
Elsie had talked to the Spanish people and told them that
if the union had come into the company, they would
probably lose their jobs over it." Piccioni added,
"[t]owards the end of the conversation, before he hung
up, he said, wait until next week, you will see some
changes." 10 Piccioni denied Etienne's testimony. I credit
Piccioni and discredit Etienne.
Etienne's demeanor was not compatible to the demean-
or of a truthful witness, for not only did he appear re-
sentful but also he was vindictive. Indeed, after he left
the Respondent's employment under a cloud of disappro-
bation, he altered his sworn testimony, given in an earlier
affidavit, thereby nailing the Respondent to a number of
unfair labor practices, one of which accommodated a
finding that the Respondent closed the packing depart-
ment to discourage union activities of its employees. I
am of the opinion that his testimony was substantially
machinated to advance the Union's position and to grati-
fy his own displeasure with the Respondent. I discredit
his reasons as to why he changed his affidavit. Where his
testimony is controverted, I deem his testimony unbeliev-
able.
That part of the complaint which refers to Piccioni's
unfair labor practices supported by Etienne's testimony is
dismissed.
Barney Evans testified that Piccioni asked him, "what
did I think about the union." Evans testified:
And I told him it was up to each individual to, you
know, what they suggested, they know And he
said, "right, Barney, you're right. But if I had to
vote for the union, I would vote against it because 1
was already in the union once." And he said, "The
union didn't do nothing for me, you know, but take
money out of your check each week or something
like that," you know. He stated that.
Then, he said if he had to vote, he would vote
against it . But then he said , it is up to you, Barney,
you do what you want to do, you know. He said it
like that. And we stopped talking because other
people were coming up.
Assuming, arguendo, that the above conversation oc-
curred, I do not consider that Piccioni' s remarks violated
Section 8(a)(1) of the Act. Hence, paragraph 9 of the
complaint is dismissed in its entirety.
C The Meeting among Etienne, L Herman, Smith,
and Isaac Gendelman
Etienne, 1 1 whom I have already found to be less than
a truthful witness, testified that "about five minutes"
after the conversation with Piccioni related above, Pic-
cioni returned and said that Smith would like to see him
in the office.12
Etienne went to the office and thus described what oc-
curred Smith , Irving Herman , and Gendelman were
present Etienne was asked if "I knew there was a union
being organized in the company and who did I think was
leading the organization going on." Etienne answered
that he had "no idea" "I told him that I heard of it
going on , but I didn't know who was leading it."
Etienne quotes Irving Herman as saying that "he
wouldn 't have a union come into the company and tell
him how to run his business. And he'd rather-he'd
rather close the bagging operation down than pay the
bagging people union wages because it was cheaper to
buy his stuff already bagged than bag it himself." Smith
told Etienne that he "would go far with this company if,
i 1 Etienne had been a truckdriver for the Respondent until he was sep-
10 If this sentence refers to the termination of the packing department arated from employment in February 1986 He had attended a "few"
on 8 November 1985 it was sheer speculation on Piccioni's part or a lie union meetings
on Etienne's part, since not even Smith, the warehouse manager, knew of 12 According to Etienne these events occurred in October or Novem-
the anticipated termination until it actually occurred ber 1985
JUMBO PRODUCE
you know, I'd cooperate with them." Etienne describes
the conclusion of the meeting, "[t]hey shook their head
and then they all shook my hand."
According to Etienne about a week later Smith and
Gendelman called him into the office again and again
asked him questions about the Union. Gendelman asked
Etienne who among the truckdrivers were present at the
union meetings. Etienne answered that all were present
except Willie Martin and Clarence Shepard. "And then
they went on to say that they knew William Perry was
one of the ones heading the organization." "They asked
about Mack Livingston, if he was along with Robert
Perry, but I had no idea if Mack was at the time."
Etienne testified that on occasion, when Smith would
catch him alone, Smith would ask, him whether he had
heard anything new. Etienne always answered, "No " A
week before the election, according to Etienne, Gendel-
man called him and asked him "who all showed up at
the meeting" and "what kind of chance did I think the
union had in winning." Etienne answered that "pretty
much everybody was there" and that the Union had "a
pretty good chance they could win." -
1. Herman describes the above encounter as follows:
Etienne walked up to the office, knocked on the door,
and entered. "[H]e started talking about the union, how
opposed he was to the union." Neither Smith, Gentle-
man, nor I. Herman asked him any questions I. Herman
testified, "I didn't have any conversation with him at all.
I was just a bystander, I just listened to 'him, that was
all." 13
According to Smith, Piccioni came to him and said
that Etienne wanted to talk to "us" about the Union.
Etienne came into the office and gave "us information
about the union." Etienne said he had attended several
meetings. "He gave us a few names . . . r of who, was
there and how many people were there, that's all."
Smith testified that he had engaged in no further conver-
sations on the subject. Smith further testified that he did
not instruct Piccioni to tell Etienne to go to the office.
Piccioni testified that Etienne came to him and said
that "he wanted to talk to Mr. Smith" about the Union.
"From there, he went to Mr. Smith."
Since I have found that Etienne is not a creditable wit-
ness, those allegations in the complaint which are based
solely on the testimony of Etienne are dismissed except
for the charges against Gendelman. Gendelman was not
called as a witness Hence Etienne's testimony in regard
to Gendelman's phone call stands unrefuted in the
record Since the credible record contains no valid
reason for Gendelman's absence as a witness, the infer-
ence is that Gendelman, an officer of the Respondent, re-
frained from testifying because he had engaged in the
conduct described by Etienne. See American Chain Link
Fence Co., 255 NLRB 692 fn 4 (1981); Hamilton Avnet
Electronics, 240 NLRB 781, 789 fn. 31 (1979). Thus it fol-
lows, by Gendelman's interrogations, to wit, "who all
showed up at the meeting" and "what kind of a chance
did I think the union had in winning," the Respondent
1' In one of Etienne's affidavits he deposed, "Although Herman intro-
duced himself to me, he did not make a single comment during the meet-
- ing " Etienne testified that this statement in his affidavit was a "lie "
1003
violated Section 8(a)(1) of the Act. See Rossmore House,
269 NLRB 1176 ( 1984).
D. Alleged Discrimination Against Robert Perry
The General Counsel in her complaint alleges that
about 27 November 1985 the Respondent, acting through
Gene Piccioni, issued a. written warning to employee
Robert Perry.
Perry was employed as a "[s]elector, forklift opera-
tor." He signed a union authorization card on 29 Septem-
ber 1985 at the union hall at which time he obtained
union authorization cards for coworkers to sign. He,
thereafter, distributed 17 cards at work to his coworkers.
He attended six or seven union meetings
On 27 November 1985 Perry was given a warning
notice signed by Gene Piccioni and J. W. Smith which
stated the reason for the warning as follows: "Putting
one stores merchandise [sic] in front of another. Robert
has been reminded what store number to mark on each
pallet several times. Next time this happens it will result
in a three day suspension." (Emphasis added.)
Perry testified that other employees, including Bennie
Evans, had committed the same infraction but were not
warned.
Perry testified that shortly prior to the election Smith
had asked him if he had put a union bumper sticker on
his car. Perry answered in the negative after which
Smith commented, "if he knew who did it, he would
'kick their ass." Smith admitted that the incident had oc-
curred but testified that he had said that "if I caught him
doing it, I would kick his ass."
The General Counsel claims antiunion animus.
Prior to the election M Herman held two captive-au-
diences speeches and wrote a few letters to employees.14
James Bell testified in respect to the meeting: "At the
meeting, we discussed the benefits of the company; what
the company was trying to do, and at that time he also
stated that if any person had a problem or what ever
could come to him." Perry remembered that M. Herman
told employees that they "did not need a union" and if
they "ever had any problems" they "could come talk to
him." M. Herman also showed them "a clipping of team-
sters racketeering." M. Herman had not invited employ-
ees to talk with him before according to both Bell and
Perry.
Separate meetings were held for about 13 or 14 Span-
ish-speaking employees at which meetings Elsie Rivas
acted as translator. According to employee Genaro Men-
breno, M. Herman stated that the Respondent was
against the Union.
M. Herman testified that he told the employee that he
did not think "there was a need for a union " M. Herman
further testified "Our offices are right next door, adja-
cent to the building, and I have indicated to all of our
people that we have what I call `open door' policy.
Many of them exercise that over the years and I just re-
14 On 4 December 1985 M Herman wrote employees, "Please take
this seriously, and don't make any mistake in judgment about the union
and about JUMBO's position on unionization in the warehouse We don't
believe it belongs here, and we want everyone to vote NO " (G C Exh
28)
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
peated that opportunity to anyone who had any-for any
reason. They didn't have to have a problem just come in
to say hello."
Since 1972 the Respondent has negotiated with Local
400 and Local 27 during which time there has never
been a work stoppage or a strike . The unions represent
between 1600 and 1800 employees . In response to a ques-
tion concerning his opposition to the Teamsters Union,
M. Herman testified (in part), "If it was Local 400, I
could probably look at it a little differently because I
have a relationship with them. It would be consistent
with what we're doing in our stores, in terms of contract
and this and that and the other."
Even though the Respondent opposed the Teamsters
Union in the election and harbored an anti-Teamsters
union animus, it is clear from the foregoing facts that the
General Counsel has not established a prima facie case
supporting her allegation that the Respondent violated
Section 8(a)(3) of the Act by issuing the referred to
warning notice to Robert Perry. Whereas, according to
Perry other employees were not warned for similar in-
fractions, Perry was a repeater. There is no credible
showing that Piccioni who initiated the warning har-
bored any antiunion animus against Perry at all. The alle-
gation is dismissed.
E. The Discontinuance of the Packing Department
The General Counsel maintains - that employees
Genaro Menbreno , Edith Tobar, Juan Carlos Toscano,
Maria Ventura, Ana Larios, and Dilma Salvador were
separated from employment discriminatorily on 8 No-
vember 1978 in violation of Section 8(a)(3) of the Act
when the Respondent discontinued the packing depart-
ment of the warehouse in order to prevent these employ-
ees from voting in the coming representation election set
for 13 December 1985 and to chill unionism among its
remaining employees.
The Respondent's counsel has well stated the Re-
spondent's position on the record:
MR. GuTmAN: There are several reasons. 1) The
machine was not operating properly . Had not oper-
ated properly . It was constantly in repair, in need of
repairs . We had brought in another machine on
consignment from a supplier of ours in New York
State. We could not get that to operate . In addition
to all of those things, we needed the space in the
warehouse because when we went into that ware-
house, we had six or seven stores, by the time this
incident came of time , in the Fall of 1985 , we were
going on almost double that number of stores. This
area was badly needed for staging merchandise for
delivery . It was taking up roughly 25 percent of the
floor space in the warehouse . And overriding all-
Not overriding that, but in addition to that it was
cheaper to buy the produce already bagged. So it
was a combination of all these factors . But, the
straw that broke the camel's back was that the ma-
chine could not operate anyway . And we were
badly in need of production for delivery to the
stores.
That is our position and the Union had absolutely
nothing to do with it . There is no evidence of any
knowledge of union activities on this man or any of
the individuals who were terminated.
The General Counsel asserts that her prima facie case
establishing that the Respondent discriminatorily termi-
nated the packing department is supported by the follow-
ing factors:
The Respondent harbored an anti-Teamsters Union
animus; Smith was aware of packing department employ-
ee Menbreno 's union affection ; the inference is that the
Respondent suspected that other packing department em-
ployees were prounion; the layoff was purposely used to
chill the union activities of other employees ; the timing
of the shutdown just before the election created a coer-
cive atmosphere of dissuasion; the Respondent , evidenc-
ing an intent to -continue the packing department, hired
new employees, one employee Toscano being hired 3
weeks before his layoff-,, a letter was written by the Re-
spondent's manager, Smith, dated 15 October 1985 sug-
gesting long-term employment for packing employee
Menbreno ; the decision to terminate the packing depart-
ment was precipitous in nature and did not include the
input of the day-to-day managers of the department; em-
ployee Menbreno, who performed jobs other than on the
packaging machine and was rated an excellent employee,
and Ventura, whose tomato machine job continued,
were, nevertheless, laid' off; all packing employees were
laid off although the Respondent had a problem retaining
warehouse personnel and selectors ; the foreseeable effect
of the layoff of the packing department employees was
to chill the union affection of the other employees; the
Respondent failed to recall any of the laid-off employees
to jobs in the warehouse ; and the Respondent's knowl-
edge of union activity was the only significant change in
the Respondent's operations which occurred shortly
before the layoff.
The General Counsel's prima facie case would be well
taken except the credible record establishes that the Re-
spondent would have terminated the packing department
even had the Union not been in the picture. Cf. Wright
Line, 251 NLRB 1083 ( 1980).
Employees in the packing department operated three
packaging machines . One (the potato machine) was used
to package potatoes, onions, apples, oranges, lemons, and
the like; the second (the bean machine) was used to
package beans and peppers; and the third (the tomato
machine), the smallest machine , was used to package
only tomatoes. I. Herman , who originated the idea of
packaging produce 40 years ago, described the packag-
ing process:
The packing operation is we have a piece of equip-
ment that feeds a scale that puts five pounds .of
apples or three of onions in a scoop, and then we
put it in a bag, drop it in a bag and we seal it.
There is no disagreement that on 8 November 1985 the
potato machine was not fully operating . All three ma-
chines were old and subject to breakdown . Smith testi-
fied that the "equipment was old and decrepit. It was
JUMBO PRODUCE
breaking down constantly." I. Herman said that they had
bought the "large one and probably the small one at the
same time, 40 years ago." "We dust fixed it and fixed it
until it just fell apart. It just dissolved. And the small ma-
chine did the same thing."
I. Herman further testified that the Respondent sought
to replace the machines and did receive a machine on
consignment . However , although a number of mechanics
worked on it, it never became operational. Finally it was
returned to the supplier
At the time the packing department discontinued, ac-
cording to I. Herman, "the' old machines that was 40
years old was completely shot," and the "new one
wouldn't work at all." Hand packaging was tried but, by
that method, the Respondent was unable to get enough
merchandise to service the stores. "The packaging de-
partment had just run its time."
According to I. Herman the basic reason the packing
department was shut down was that "[w]e didn't have
any equipment to work on."
The decision to shut down the packing department
was discussed among I. Herman , M. Herman, and
Gutman, the Respondent's attorney, during the week
before the closure. The final decision was made on
Thursday, 7 November 1985. Eileen Manion , director of
personnel, was then contacted by M. Herman who in-
formed her of the closing of the packing department. She
was directed to "lay the people off." M. Herman told
her she would have to talk to them. M Herman cited
the reasons to her for closing the operation:
[T]he first reason was the problem of space in the
warehouse because of our increased size; second of
all, the machinery had reached a point where it
kept breaking down and it couldn't be fixed; and,
third, we found that we could do the thing cheaper
by having it come bagged . . ... s
On 8 November 1985 Manion met with the packing
department employees ; Elsie Rivas was the translator.
Manion informed the employees of the situation and said
that if they wanted to be placed in the Respondent's
stores they should contact her the following week.
Manion testified, "We were probably there 20 minutes to
half an hour because some of them became emotional. It
was a very difficult situation."
M. Herman testified that when the decision was made
to terminate the packing department he thought "how's
15 Employee Juan Carlos Toscano remembered that Manion said at the
packing employees ' meeting (see infra)
They told us that they have many problems with the machines, be-
cause they was broke down So they charged too much to take care
of machines and also they said, they need more room to put more
products , because they are going to open more stores So they are
going to take out the machines and-
Something with our salaries , so they can not pay our salaries and
take care of the machine , also, both things in the same time They
pay too much to the mechanics for taking care of the machines
Employee Menbreno remembered that Manion said "[W]e were going
to be kicked out because the machines were giving problems and that
they were going to open five more stores "
Employee Edith Tabor remembered that Manion said "[T]hey were
not going to need us anymore That she was sorry because the machine
was broken And they go and check the stores to see if they had an open-
ing, but they never called me "
1005
this going to look?" In view of the upcoming election,
"but in order to operate a business, I didn't have any
choice. We had to keep business otherwise one wouldn't
have a warehouse at all." M. Herman also testified that
"based on previous experience, not this election but pre-
vious elections, that I quite honestly thought that the
Hispanic employees in the warehouse were pro-manage-
ment."
From the credible evidence in the record it would
appear that the packing department was no longer fully
functional in that the potato and bean machines were of
little utility and lacked replacement. Thus the Respond-
ent, because of the lack of machines, was rendered
unable to operate the packing department as it had done
in the past. The alternate was to change its method of
packaging which it appears was economically unprofit-
able. Under these circumstances it seems evident that the
Respondent would have ceased the packaging operations
which had been performed on the potato and bean ma-
chines even though the Union had not been seeking rep-
resentation. Accordingly, I find that the Respondent did
not discontinue the packaging operation which had been
performed on the potato and bean machines for discrimi-
nating reasons. 16
F. The Alleged Discriminatory Layoffs of Genaro
Menbreno, Edith Tabor, Juan Carlos Toscana, Maria
Ventura, Ana Larios, and Dilma Salvador
As noted the General Counsel takes the position that
the layoffs of Genaro Menbreno, Edith Tobar, Juan
Carlos Toscano, Maria Ventura, Ana Larios, and Dilma
Salvador was for the purpose of gratifying the Respond-
ent's objectives, i.e., to chill the union affection among
its remaining warehouse employees and to dilute the bar-
gaining unit by eliminating employees whom it suspected
of being prounion.
I find that such position is well taken and that the lay-
offs were administered in such a manner as to be at odds
with and violate the requirements of Section 8(a)(1) and
(3) of the Act.
Genaro Menbreno Menbreno, "an excellent employ-
ee,1117 had worked for the Employer for 10 years.
During the 10 years he had "worked on the table;
worked on the machine and in the freeze[r]; worked on
the truck" "loading and unloading." 18 Menbreno also
16 Except for the continuance of the tomato machine, this meant the
full shutdown of the functions of the packing department
Smith had written on 15 October 1985 the following letter
Re Genaro Menbreno
To Whom It May Concern
Genaro Menbreno has been employed by Jumbo Food Stores
since 8-4-75 as a part time produce clerk in our produce warehouse
In January 1976, Mr Menbreno was promoted to full time until June
1978 He was rehired 8-30-78 as a full time emloyee and has worked
with us since then
Mr Menbreno has been an excellent employee of Jumbo Food since
he has been employed with us. We feel that the probability of his con-
tinued employment and his above average performance is excellent
We hope this will help Mr Menbreno in obtaining citizenship If
you have any questions at all concerning this matter , please feel free
to contact me at the above number [Emphasis added , G C Exh 22 1
Is Selectors were employees who selected produce in the warehouse to
fill orders for the retail stores
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
worked on Saturdays on which day the packaging ma-
chines were generally not in operation . On this day he
performed loading and unloading , used the forklift lifting
skids and filled a selector 's job . Smith agreed that Men-
breno always worked on Saturdays during which period
he did selector 's work. Smith also agreed that Menbreno
was used as a helper selector and would get "one skid of
lettuce, or something."
Other employees confirmed that Menbreno did work
other than packaging . Employee Evans testified, when
he was asked if Menbreno performed selector 's work,
"[O]ccasionally, yeah, on Saturday , and sometimes he
comes in and he helps us when we are short of help."
"He operates the forklift ." Employee Perry testified that
Menbreno helped "pull orders for the stores" when work
was backed up and operated the "walkee jack ." He had
no "problems" doing this work . He worked at these
tasks "four days" a week "two hours a day." Further
testifying Perry stated that Menbreno worked regularly
on Saturdays performing selector's duties, "[h]e would
bring merchandise into the icebox . Sometimes he would
get on the forklift and put it away , too." He had no
"problems" doing this work . In regard to Menbreno's
competence Smith dated him an "excellent employee."
Bell testified, "Well, he [Menbreno] would select
produce that the shipper would give him with no prob-
lem. He knows what box to go to , what to get." Bell ob-
served Menbreno operating the "riding jack," "a forklift
with wheels on the front and/on the sides ." Menbreno
was also capable of running the tomato machine which
remained operational after the layoffs.19
Menbreno not only appeared fully capable of perform-
ing selector 's work (which the Respondent admitted that
he did) but he understood English well enough to per-
form the work with no problems.
Menbreno attended union meetings during the union
campaigns of 1984 and 1985 . He signed a union authori-
zation card on 6 October 1986 . He conversed with em-
ployees about the Union . During the 1985 union cam-
paign employees met with Roy Essex, a union organizer,
at the liquor store on Route 202 . Menbreno was among
these employees.
According to Smith , Etienne gave the Respondent "a
few names" of employees who attended union meetings.
Etienne related to Gendelman "pretty much everybody"
was at the union meeting.2°
Menbreno testified that , as he was standing in front of
the coffee venting machine, Smith asked , "[W]here are
you going , Chico?" Menbreno replied that he was look-
ing for a car for a friend . Smith responded , "No, you
19 Employee Perry described the operation of the tomato machine. He
testified that the tomatoes were placed in cardboard cartons which were
placed on a moving belt which carried them to the machine where they
were wrapped in cellophane. "As the cellophane would wrap them, they
would pull up and go through the little heat house and that would [seal
and] draw the cellophane tighter. Then when they come down, some-
body would take them off and stack them in a cardboard box." When the
cellophane roll was empty , the machine was stopped and a full roll of
cellophane was put on the machine . Perry testified that the job could be
learned in a short time . Smith said , "Maybe a week , ten days."
SO From these revelations an inference is that the Respondent would
have learned that Menbreno attended union meetings.
come to meet with the union." Menbreno denied81 the
accusation.22
Menbreno testified that Saturday following the above
conversation Smith gave Menbreno a schedule showing
that he "was not going to work on Saturdays." This
seems too obvious to have been a coincidence . Accord-
ing to Smith , Menbreno always worked on Saturdays.as
I am convinced that the Respondent had knowledge of
Menbreno 's union leanings.
Since the layoff of Menbreno , the Respondent has ad-
vertised for warehouse workers in newspaper advertise-
ments . Smith testified that the Respondent has hired se-
lectors, but no job had been offered to Menbreno. Ac-
cording to Smith Menbreno was "not retained because
he wasn't qualified."
The General Counsel's prima facie case discloses that
the Respondent actively opposed the Teamsters Union in
the representation election , a fact which was known to
Smith; that Smith knew or strongly suspected that Men-
breno was a union partisan; that Menbreno was indeed a
union partisan, attended union meetings , and met with
the union organizer; that Smith characterized Menbreno
as "an excellent employee of Jumbo Foods since he had
been employed" on 4 August 1975; that the Respondent
felt "that the probability of his continued employment
and his above average performance is excellent"; that his
fellow employees testified to his good work characteris-
tics; that Menbreno not only did packaging but also did
selecting , forklift, and other warehouse jobs and worked
regularly each Saturday , engaging in warehouse tasks
other than packaging; that when Menbreno was laid off
on 8 November 1985 jobs in the warehouse for which he
was qualified to perform were available , including
tomato machine operator; that Menbreno had been em-
ployed by the Respondent for over 10 years during
which time no disciplinary action had been lodged
against him; that Menbreno was laid off from his Satur-
day job although there is no credible proof that work
was not available for him on that day; and that Men-
breno was not retained in employment by the Respond-
ent for a false reason, i.e., "because he wasn't qualified."
I find that the General Counsel has established a
strong prima facie case.
Once the General Counsel has shown by a preponder-
ance of the evidence that the protected conduct was "a
motivating factor" in the decision to separate an employ-
ee from employment "the burden shifts to the employer
to show that it would have discharged the employee
even if the employee had not engaged in protected activ-
ity." Blue Arrow, Inc. v. NLRB, Docket Nos . 82-1836
and 82-1955, mem. 725 F .2d 682 (6th Cir. 1983). See also
Wright Line, 251 NLRB 1083 (1980); NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 ( 1983).
21 The conversation with Smith had been in English . Menbreno, who
testified in Spanish, gave an English and Spanish version which were
substantively the same . This is the English version.
22 Smith denied the conversation. I do not credit Smith 's denial. I am
of the opinion that Smith knew more about the employees' union affec-
tion than he admitted , for when he found a union sticker on his car he
chose the most active union partisan to accuse of putting it there.
23 Smith testified that Menbreno did selector 's work on Saturdays.
JUMBO PRODUCE
In the credible record the Respondent assumed this
burden by asserting that Menbreno was not retained be-
cause he "wasn't qualified." The credible record reveals
that Menbreno was qualified and there was available
work for him to do. Smith's own reference to Menbreno
as an excellent employee belies his testimony that Men-
breno was not qualified.
Moreover, it is clear that if Smith determined that
Menbreno was not qualified to be retained he must have
given some thought to and weighed whether he should
have been retained or laid off. Thus Menbreno's layoff
was a deliberate act. Smith' s reliance on a false reason
manifests his true reason or real motive, i e., the rejection
of a union partisan. "[T]he `real motive' of the employer
in an alleged § 8(a)(3) violation is decisive." NLRB v.
Brown Food Store, 380 U.S. 278, 287 (1965). "It is the
`true purpose' or `real motive' in hiring or firing that
constitutes the test." Teamsters Local 357 v. NLRB, 365
U.S. 667, 675 (1961) "Section 8(a)(3) prohibits discrimi-
nation in regard to tenure or other conditions of employ-
ment to discourage union membership. . . . It has long
been established that a finding of violation under this
section will normally turn on 'the employer's motiva-
tion." American Ship Building Co. v. NLRB, 380 U.S.
300, 311 (1965).
Smith was accommodating the Respondent' s anti-
Teamsters Union stance with which he was familiar.
Finding no plausible motive for Smith's refusal to
retain Menbreno or offer him employment in the jobs
which he was performing satisfactorily or in Saturday
work, I conclude that Smith's motive (which is inputed
to the Respondent) was to discourage membership in a
labor organization. "[W]hen every other plausible motive
has been eliminated and the reasons advanced are not
persuasive, the union activity may well disclose the real
motive behind the employer's action." Ames Ready-Mix
Concrete v. NLRB, 411 F.2d 1159, 1161 (8th Cir. 1969)
See also NLRB v. Melrose Processing Co., 351 F.2d 693,
698 (8th Cir. 1965); Marlan Lewis, Inc., 270 NLRB 432
(1984).
I further conclude that had Menbreno not been a
union partisan he would have been retained in the Re-
spondent's employ.
By Menbreno's discharge on 8 November 1985 and the
Respondent's refusal to retain him in its employment or
offer him employment, the Respondent violated Section
8(a)(3) and (1) of the Act.
Maria Ventura: Maria Ventura was next in seniority in
the packing department to Menbreno. According to
Smith she had worked on the tomato machine. Although
the tomato machine was the part of the packing depart-
ment which was continued after the shutdown of the
potato and bean machines, Ventura was not continued on
the tomato machine. The job was given to Marta Oyar-
zia, Oyarzia's employment records reveal that she last
worked in the warehouse around October 1979 and filled
out a new employment application with a reporting date
of 15 April 1986.
The credible record reveals no reason why Ventura,
who apparently was a good employee, was laid off from
the tomato machine job which continued in existence.
1007
Since I have found that the layoff of Menbreno was
discriminatory and that the Respondent 's persuasion was
to dissuade employees from union affection and since the
Respondent has presented no credible plausible explana-
tion or reason for its layoff of Ventura when a job con-
tinued for her, I find that the Respondent 's motive for
her layoff was for the purpose of discouraging union ac-
tivity of its employees . See Ames Ready Mix-Concrete v.
NLRB, supra. I further find that had the Respondent not
been desirous of discouraging union activity of its em-
ployees it would have retained Ventura in its employ-
ment.
Tobar and the other alleged discriminatees : 24 Tobar was
the wife of Menbreno , a known union partisan. From
such circumstance it does not seem unreasonable that the
Respondent would have reasoned that she likewise
would have been a union partisan . As to the other al-
leged discriminatees , who were all Hispanics as was
Menbreno , it also does not seem unreasonable that the
Respondent would suspect that they had come under
Menbreno's persuasion and favored the Union. More-
over , since Menbreno talked to other employees about
the Union , it would seem reasonable to conclude that
these other employees were the other Hispanic employ-
ees who also spoke Spanish . Thus, despite M Herman's
disavowal , the likelihood of the Hispanic employees
being prounion was as persuasive as their likelihood of
being promanagement
Indeed it is significant that , while the Respondent of-
fered retail store jobs, it offered no jobs to any of the al-
leged discriminatees which , if they had been filled,
would have allowed them to have become eligible
voters Moreover , the credible record is without explana-
tion as to why the Respondent filled jobs in the ware-
house from the street and offered no jobs to the alleged
discriminatees . This does not appear to be the usual prac-
tice followed by employers in like situations , but con-
forms more to the tactics of those antiunion employers
which desire to rid their establishments of prounion em-
ployees. Indeed the Respondent 's conduct appears even
more suspect in that M. Herman testified that the Re-
spondent had problems retaining employees in the ware-
house. Hence the mass layoff of packing employees, one
of whom was a known union partisan and the others no
doubt suspected union partisans , without an offer of
available jobs or at least a place on a preferential hiring
list lacks a credible explanation unless it is construed to
have been for a discriminatory purpose. Moreover, it
seems clear that such discriminatory purpose was in line
with the Respondent 's anti-Teamsters Union stance an its
desire to defeat the Union in the upcoming election. The
failure of the Respondent to retain or recall any of the
packing department employees to work in the warehouse
is indeed evidence of discriminatory motivation. "When
an employer lays off employees . . . for economic rea-
sons, then hires new employees to replace them, it is
patent evidence that its assertion is pretextual." Fedco
24 On 25 September 1985 Smith wrote of Tobar
I feel she is an excellent loyal employee whos [sic] probability of
continued employment with the company is very good [G C Exh
21]
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Freightlines , 273 NLRB 399, 400-401 (1984). See also
Northwind Maintenance, 281 NLRB 317 (1986).
Additionally, the manner in which the Respondent ad-
ministered the layoffs by wholly ignoring the retention
of any of the employees or offering them available jobs
or job openings in its warehouse would indicate that its
purpose was to discourage employees ' union affection to
chill unionism , and to eliminate eligible voters in the up-
coming election . Indeed the Respondent either knew or
reasonably should have known then such result would
have occurred by its choice in this respect . Such conduct
carried "with it an inference of unlawful intention so
compelling that if [sic] is justifiable to disbelieve [the Re-
spondent's] protestations of innocent purpose." See
American Ship Building Ca v. NLRB, 380 U.S. 300, 311-
312 (1965). See also Radio Officers v. NLRB, 347 U.S. 17,
45 (1954).
The layoffs, as administered, caused employees to be-
lieve that they were effected to impress employees with
The idea that, if they favored the Union, their jobs were
in peril . The Respondent must have known that employ-
ees would so react and intended such result . In any event
the Respondent reaped the benefit . Any other conclusion
would be at ineluctable odds with the realities of the in-
dustrial world and in opposition to sound reason. The
natural foreseeable consequences of the layoffs as admin-
istered by the Respondent were the obvious discourage-
ment of membership in a labor organization. Hence, by
engaging in conduct which was inherently destructive of
employees' protected rights the Respondent must be held
to have intended the very consequence which foreseea-
bly and inescapably flowed from its action which actions
the Respondent has not justified as being different than
they appear on their face . Cf. NLRB v. Erie Resistor
Corp., 373 U.S. 221, 227, 228 (1963).
Accordingly, I fmd that the Respondent in its adminis-
tration of the layoffs in the packing department discour-
aged membership in a labor organization , chilled the re-
maining employees' union affection , and rendered ineligi-
ble employees as voters in the representation election
which otherwise would have been eligible had the Re-
spondent not administered the layoffs in a discriminatory
manner. It must be deemed that the Respondent intended
such result (which obviously occurred) in that the Re-
spondent's conduct under the circumstances was "'inher-
ently destructive' of important employee rights " and that
an unfair labor practice may be found "even if the em-
ployer introduces evidence that the conduct was moti-
vated by business considerations ." See NLRB v. Great
Dane Trailers, 388 U . S. 26, 34 (1967). Cf. Pittsburgh Press
Ca, 234 NLRB 408 (1978).
I find that the mass layoffs of Menbreno, Tobar, Tos-
cano , Ventura, Lavios, and Salvador by the Respondent
on 8 November 1985 were in violation of Section 8(a)(1)
and (3) of the Act.
Additionally the fact that some of the laid-off employ-
ees were nonunion employees is immaterial in this case:
In adopting the judge's conclusion that Respond-
ent violated Sec. 8(a)(3) and (1) of the Act by ter-
minating 10 employees, we emphasize that it is the
of employees for the discharge , that is unlawful.
Accordingly, the General Counsel was not required
to show a correlation between each employee's
union activity and his or her discharge . Pyro Mining
Co., 230 NLRB 782 fn . 2 (1977); see Birch Run
Welding & Fabricating v NLRB, 761 F.2d 1175,
1180 (6th Cir. 1985). Instead, the General Counsel's
burden was to establish that the mass discharge was
ordered to discourage union activity or in retalia-
tion for the protected activity of some.
ACTIV Industries, 277 NLRB 356 fn . 3 (1985).
The General Counsel has met this burden.
G. The Alleged Surveillance by Smith
The General Counsel claims that during the conversa-
tion between Smith and Menbreno set out above, a s
Smith created an impression of surveillance of employ-
ees' union activities.
The facts do not support this claim . The claim is dis-
missed.
H. Alleged Solicitation of Employee Complaints and
Grievances
The General Counsel maintains that the Respondent
violated Section 8(a)(1) of the Act by M. Herman 's state-
ments to employees in a preelection speech . Perry testi-
fied that M. Herman said, "[I]f we ever had any prob-
lems, we could come talk to him." Bell testified that M.
Herman said, "[I]f any person had a problem or what-
ever [he] could come to him ." Both employees testified
that they had not heard M. Herman make a similar state-
ment before on the subject . M. Herman did not specifi-
cally deny the statement but testified , "I have indicated
to all our people that we have what I call 'open door'
policy . Many of them exercise that over the years and I
just repeated that opportunity to anyone who had any-
for any reason. They did not have to have a problem just
to come in to say hello."
There is no credible evidence which rebuts the infer-
ence that the employees could have anticipated favorable
treatment of their problems.
The foregoing statements of M. Herman were in viola-
tion of Section 8(a)(1) of the Act.
In the case of Merle Lindsey Chevrolet, 231 NLRB 478
fn. 2 (1977), the Board stated:
We agree with the Administrative Law Judge that
by telling employees he wanted to ascertain and
talk about their problems Respondent 's president,
Merle Lindsey, violated Sec . 8(a)(1) of the Act.
Uarco Incorporated, 216 NLRB 1 (1974). In that
case, the Board stated:
[T]he solicitation of grievances at preelection
meetings carries with it an inference that an em-
ployer is implicitly promising to correct those in-
equities it discovers as a result of its inquiries.
... However, it is not the solicitation of griev-
ances itself that is coercive and violative of Sec-
Respondent's mass discharge, and not its selection 25 Menbreno was accused of going to a union meeting.
JUMBO PRODUCE
tion 8(a)(1), but the promise to correct grievances
or a concurrent interrogation or polling about
union sympathies that is unlawful; the solicitation
of grievances merely raises an inference that the
employer is making such a promise, which infer-
ence is rebuttable by the employer.
In the instant case, there is no evidence that Re-
spondent made any statement or took any action to
establish that it was not promising to remedy griev-
ances and we therefore find that Respondent did
not meet its burden of rebutting the inference.
As in the Merle Lindsey Chevrolet' case the respondent
made no statement or took no action to establish that it
was not promising to remedy the problems and thus did
not rebut the inference. See also Gull, Inc., 279 NLRB
931 fn. 1 (1986).
I. Challenges
1. Since Eugene Piccioni is a supervisor within the
meaning, of the Act, the challenge to his ballot is sus-
tained.
2. Since Genaro Menbreno was unlawfully laid off and
discharged, the challenge to his ballot is overruled.
3. Since Edith Tobar, Juan Carlos Toscano, and Maria
Conchita Ventura were unlawfully laid off and dis-
charged, the challenges to their ballots are overruled.26
The challenged ballots of Virginia Cerritos and Elsie
Rivas: Both Cerritos and Rivas were under the supervi-
sion of Smith, manager of the warehouse Cerritos and
Rivas work in the glass-enclosed warehouse office where
they can see the warehouse and are visible to persons in
the warehouse. They visit the warehouse about 8 or 10
times a day in the performance of their job duties They
change orders and inform warehouse employees what
the changes are. These are the orders which are taken by
the two employees over the phone from the retail stores.
These orders are filled and sent to the stores by the
warehouse employees. The two employees are a part of
the order flow process. I find that their interests are with
the warehouse employees and their jobs are a part of the
appropriate unit. Sears, Roebuck & Co., 222 NLRB 476
(1976); Avon Products, 250 NLRB 1479, 1484 (1980); Bar-
bara George Collection, 273 NLRB 1239 (1984). The chal-
lenges to their ballots are overruled.
IV. THE OBJECTIONS TO THE ELECTION
1. Objection 1: The Employer apparently due to inad-
vertence failed to post the English language version of
the election notice until shortly prior to the election.
Since 30 votes were cast, even though there were only
24 voters on the eligibility list and since there is no evi-
dence that any voters missed voting because the English
version was not posted earlier, it appears that no voter
or party to the election was prejudiced. The objection is
overruled.
16 It is clear in the record that there were jobs available for Menbreno
and Ventura, it is unclear whether there were jobs available for Tobar
and Toscano which they could perform Thus, I have drawn no conclu-
sion as to what their job expectancy might have been
1009
2. Objection 3: Objection 3 is overruled since it is .not
supported by credible facts.
3. Objection 4: Objection 4 is sustained. See supra.
4. Objections 2 and 8: Objections 2 and 8 are overruled,
except as to the layoffs of Genaro Menbreno, Edith
Menbreno, Juan Toscano, and Conchita (Maria) Ventura
who were laid off to discourage membership in a labor
organization in violation of Section 8(a)(3) of the Act.
See supra.
5. Other conduct not specifically alleged in the objec-
tions: Allegations contained in this section of the Acting
Regional Director's report on objections and hallenges
are overruled except for the unlawful solicitation of em-
ployees' grievances. See supra.
Having sustained Objections 4 and 2 and 8 in part, and
conduct not specifically alleged in the objections in part,
it is recommended that a new election be conducted, if a
majority of the valid ballots has not been cast for the
Union's representation of the Respondent's employees in
the appropriate unit . "Conduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with the ex-
ercise of a free and choice in an election." Del-Tex Opti-
cal Co., 137 NLRB 1782, 1786 (1962); Fluid Packaging
Co., 247 NLRB 1469, 1479 (1980).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and it will effectuate the purposes of the Act to
exert jurisdiction herein.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing em-
ployees in the 'exercise of the rights guaranteed them by
Section 7 of the Act, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By unlawfully laying off and discharging Genaro
Menbreno, Edith Tobar, Juan Carlos Toscano, Maria
Ventura, Ana Lavios, and Dilma Salvador on 8 Novem-
ber 1985, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act It
having been found that the Respondent unlawfully laid
off and discharged Genaro Menbreno, Edith Tobar, Juan
Carlos Toscano, Maria Ventura, Ana Lavios, and Dilma
Salvador on 8 November 1985 and has since failed and
refused to reinstate them, in violation of Section 8(a)(3)
and (1) of the Act, it is recommended that the Respond-
ent be ordered to remedy such unlawful conduct. In ac-
cordance with Board policy, it is recommended that the
Respondent be ordered to offer the above-named em-
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees immediate and full reinstatement to their former
positions or, if such positions no longer exist , to substan-
tially equivalent positions , without prejudice to their se-
niority or other rights and privileges previously enjoyed,
dismissing, if necessary , any employees hired on or since
the date of their discharges to fill any of the positions,
and to make them whole for any loss of earnings they
may have suffered by reason of the Respondent's acts
herein detailed, by payment to them of sums of money
equal to the amounts they would have earned from the
date of their unlawful discharges to the date of an offer
of reinstatement, less net earnings during such period,
with interest thereon , to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interested to
be computed in the manner prescribed in New Horizons
for the Retarded 27
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
ORDER
The Respondent, Jumbo Produce, Inc., Landover,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging union or concerted activities of its
employees or their membership in Drivers , Chauffeurs,
Warehousemen & Helpers Local Union No. 639 and
Warehouse Employees Local 730 a/w International
Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by unlawfully and discriminatorily laying off and dis-
charging its employees or discriminating against them in
any manner in respect to their hire or tenure of employ-
ment or any term or condition of employment in viola-
tion of Section 8(a)(3) and (1) of the Act.
(b) Unlawfully interrogating its employees about their
union or concerted activities.
27 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
28 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
(c) Unlawfully soliciting grievances from employees
and explicitly or implicitly promising to remedy or
adjust them.
(d) 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 action necessary to
effectuate the policies of the Act.
(a) Offer Genaro Menbreno, Edith Tobar, Juan Carlos
Toscano, Maria Ventura, Ana Lavios, and Dilma Salva-
dor immediate and full reinstatement to their former jobs
or, if those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.
(b) Remove from its files any reference to the unlawful
discharges of the above-named employees and notify the
employees in writing that this has been done and that the
discharges will not be used against them in any way.
(c) Preserve and , on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Landover, Maryland establishment
copies of the attached notice marked "Appendix."29
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent 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 Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
. IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act other
than those found in this decision.
29 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."