King Soopers, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 269 (N.L.R.B. 2002)

KING SOOPERS, INC. 269
King Soopers, Inc. and United Food and Commercial
Workers, Local Union No. 7. Case 27–CA–
16818–1
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On December 7, 2000, Administrative Law Judge
James L. Rose issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and supporting briefs, the Respondent filed a brief in
answer to the exceptions, and the General Counsel and
the Charging Party each filed a reply to the answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order.
Contrary to our dissenting colleague, we agree with the
judge that the Respondent did not violate Section 8(a)(5)
of the Act by refusing to deal with George Gonzales as
the Union’s business agent.
Gonzales was a long-term meat department employee
for the Respondent. He also served as a union steward
for approximately 13–14 years at the relevant store. On
March 6, 1996,1 Gonzales confronted his supervisor
about the Respondent’s decision to assign him to work
on a Saturday.2 During this confrontation, Gonzales an-
grily threw his meathook over his shoulder, narrowly
missing an employee. He also threw a 40-pound piece of
meat into a saw (breaking its blade); threw his knife into
a box; threatened his supervisor; and refused to follow
the store manager’s order to leave the store.
On March 16, the Respondent terminated Gonzales,
based on his threatening and violent behavior. An arbi-
trator upheld the termination. Relevantly, the arbitrator
found that Gonzales’s above-described behavior demon-
strated not only that he cannot control his temper, but
also that he was capable of seriously endangering the
safety of the supervisor and the employee who had been
present during the confrontation. Finally, the arbitrator
found that, a few months before March 1996, Gonzales,
while serving in his capacity as union steward, had
placed his hand over the store manager’s mouth during a
discussion with her.
On February 14, 2000, the Union hired Gonzales as a
business agent. He was assigned to service several
stores, including the one where the above-mentioned

1 All dates refer to 1996 unless otherwise indicated.
2 Gonzales wanted to take the day off to celebrate his birthday.
confrontation occurred. On March 7, 2000, the Respon-
dent advised the Union that, given the nature of the inci-
dent leading to Gonzales’ termination (as well as his vio-
lent and threatening conduct preceding his termination),
it would not deal with him regarding union matters.
Under settled Board law, an employer is justified in re-
fusing to meet with a particular union representative if
there is “persuasive evidence that the presence of [that
individual] would create ill-will and make good faith
bargaining impossible.” KDEN Broadcasting Co., 225
NLRB 25, 35 (1976) (emphasis in original).
As the judge found, the Respondent has met this bur-
den. In this regard, uncontroverted evidence demon-
strates that Gonzales engaged in volatile and disruptive
workplace misconduct on March 6, which gave rise to
his termination. This misconduct, which was triggered
by a minor scheduling dispute, clearly jeopardized the
safety of a supervisor and a fellow employee, and is suf-
ficient to establish that Gonzales’ presence would pre-
clude good-faith bargaining.
Thus, in light of Gonzales’ egregious misconduct, in-
dividuals required to deal with him in a potentially ad-
versarial setting (a grievance meeting, for example)
might reasonably be preoccupied with the legitimate
concern that he would react violently if his position did
not prevail. Such a preoccupation undermines good-faith
collective bargaining because it impedes a vigorous ex-
change of positions unencumbered by the threat of an
adversary’s violent reaction. In short, Gonzales’ propen-
sity to react violently during a confrontation would cast a
lingering and threatening shadow over collective bar-
gaining, which must, of course, occur in an atmosphere
devoid of violence and threats if it is to succeed. Based
on these circumstances, then, we agree with the judge
that the Respondent should not be required to deal with
Gonzales as a union business agent because his presence
would create ill will and would make good-faith bargain-
ing impossible.
Our dissenting colleague contends, principally, that it
is unfair to allow the Respondent to refuse to deal with
Gonzales because the incident leading to his termination
occurred several years ago. Our colleague further argues
that Gonzales’ nonviolent dealings with employers dur-
ing his tenure as a shop steward, and later, as a business
agent, should negate any concern that his propensity to
react violently during a confrontation would repeat itself.
These contentions are without merit.
The fact that Gonzales has had nonviolent encounters
as a shop steward in the past as well as some nonviolent
encounters with employers in his capacity as a business
agent is of limited significance in resolving the issue at
hand, namely, whether his tendency to react violently
338 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
during a confrontation justifies the Respondent’s refusal
to deal with him. In brief, neither Gonzales’ past behav-
ior nor his behavior as a business agent eliminates the
effect of the egregious misconduct which gave rise to his
termination. Additionally, our colleague ignores the ar-
bitrator’s finding that, a few months before the incident
leading to his termination, Gonzales, while acting in his
capacity as shop steward, placed his hand over the store
manager’s mouth during a discussion with her.
Our dissenting colleague concedes, as she must, that
the arbitrator upheld Gonzales’ termination. Nonethe-
less, she contends that the incident leading to his termi-
nation involved “no actual or intended physical contact,
and was purely personal in nature.” The absence of in-
tent or actual physical contact is irrelevant in these
circumstances, however. Gonzales’ behavior was plainly
reckless, and although he might have acted without a
subjective intent to cause physical injury when he nar-
rowly missed striking an employee with a meathook, this
does not mitigate or change how it would reasonably be
perceived by bystanders, and thus does not ameliorate
the potentially debilitating effect on bargaining.3
Finally, our colleague’s reliance on Caribe Staple Co.,
313 NLRB 877 (1994), is misplaced. In that case, the
respondent attempted to reduce the size of the union’s
bargaining team from 10 to 4 members, and sought to
exclude, among others, an employee who had recently
been terminated. Significantly, however, the respondent
raised no objection to the participation of that individual
at two bargaining sessions after his discharge. In effect,
then, in the circumstances of that case, the respondent
waived any right to demand his exclusion. By contrast,
in the instant case, the Respondent refused to deal with
Gonzales as soon as it became aware that he had been
assigned to service four of its stores. Further, as the dis-
sent concedes, individual misconduct that undermines
good-faith bargaining is not limited to what occurs dur-
ing bargaining itself. See Sahara Datsun, 278 NLRB
1044, 1046–1047 (1986), enfd. 811 F.2d 1217 (9th Cir.
1987).
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

3 Our colleague speculates that the Respondent’s statement that it
would only permit Gonzales to enter its stores “for the sole purpose of
shopping” demonstrates that it did not seriously believe that Gonzales
posed a threat to others. Contrary to our colleague’s contention, the
Respondent’s statement demonstrates no such thing. The issue here
involves the Respondent’s refusal to deal with Gonzales as a union
business agent, not Gonzales’s status as a customer.
MEMBER LIEBMAN, dissenting.
My colleagues’ decision to permit the Respondent to
seize upon a 4-year old personal incident to justify refus-
ing to deal with George Gonzales as the Union’s duly
designated representative misapplies precedent and
threatens the Act’s guarantee that employees will have
the right to bargain collectively through representatives
of their own choosing. Accordingly, I dissent.
That Gonzales was lawfully discharged for cause in
March 1996—after 23 years as a meatcutter and 13 years
as union steward in Respondent’s store 3—was resolved
by an arbitrator and is not in dispute. His termination
followed an argument with his department manager in
which Gonzales reacted in anger over being scheduled to
work on his 50th birthday, for which he had earlier re-
quested leave. Relying on the potential for injury created
by an emotional outburst in that workplace environment,
and despite Gonzales’ otherwise exemplary employment
record, an arbitrator upheld his termination.1 In reaching
his decision, the arbitrator made a specific finding that
during the exchange, Gonzales was not acting in his ca-
pacity as steward, but rather was arguing as an affected
employee about his own schedule.
My colleagues err in assessing the probable impact of
Gonzales’ participation in collective bargaining today
based solely on a single, remote instance of inappropriate
conduct involving a purely personal matter—and di-
rected toward a supervisor with whom Gonzales is
unlikely to come into contact.2 Far more relevant is the
absence of evidence that during Gonzales’ many years as
union steward, he ever engaged in inappropriate or abu-
sive conduct toward Respondent’s representatives. Gon-
zales’ record as steward was essentially unblemished,
and he appears to have contributed to a productive col-
lective-bargaining relationship. The evidence shows
that, as steward, Gonzales had daily contact with manag-
ers and supervisors; engaged in disciplinary interviews
and steps 1 and 2 grievance meetings on a weekly basis;
discussed and resolved all manner of workplace com-
plaints, employee disputes, and disciplinary proceedings;
1 While no one suffered any injury as a result of Gonzales’ behavior,
the arbitrator stressed the importance of an employer’s obligation to
maintain a safe workplace for all employees. He concluded that the
possibility of harm posed by Gonzales’ losing his temper in a setting
equipped with knives, saws, and meathooks was too high to risk return-
ing him to the job.
2 For reasons totally unconnected to the events of this case, the su-
pervisor involved in the 1996 incident transferred to a store that is not
among those to which Gonzales has been assigned to serve as business
representative.
KING SOOPERS, INC. 271
and participated in negotiations. At no time did Gonza-
les’ behavior become an issue.3
Gonzales’ newly-acquired duties as union business
representative—which he assumed in February 2000,
nearly 4 years after his discharge4—included enforcing
collective-bargaining agreements, conducting grievance
meetings at steps 1 and 2, and counseling employees, all
functions closely similar to the duties he carried out ap-
propriately as a steward. From February 23, to March 1,
2000, Gonzales made visits to four different facilities run
by the Respondent, including two stops at store 3, the site
of his prior representational experience.5 In addition to
introducing himself to management personnel and em-
ployees at these sites, Gonzales also participated in
grievance meetings at two locations. There is no evi-
dence that problems of any kind arose, or that anything
out of the ordinary occurred, during the course of these
visits.
Nevertheless, on March 7, Respondent’s attorney noti-
fied the Union that the Respondent would not permit
Gonzales into its stores for the purpose of dealing with
management regarding labor relations, grievances or
other union matters. Cited as the basis for its position
was the “violent and threatening” conduct that led to
Gonzales’ termination some four years earlier. The letter
nevertheless specifically invited Gonzales to come into
its stores as a customer to shop.6

e.

3 Repeated assertions by the majority notwithstanding, there is no
competent record evidence to support a finding that Gonzales had dem-
onstrated a “propensity to react violently.” My colleagues rely on a
reference in the arbitrator’s decision in Gonzales’ discharge case to a
prior incident in which he “placed his hand over the store manager’s
mouth.” This occurred during a discussion about a deli clerk’s sched-
ule. It appears that Gonzales placed his hand to the manager’s mouth to
signal that he wanted an opportunity to respond to the manager’s com-
ments. According to the arbitrator’s account, when the manager
stepped back, Gonzales “immediately apologized.” Nothing more
came of the matter.
There is no suggestion that Gonzales was violent or out of control
during this exchange or that the manager was harmed in any way. The
manager involved in that incident did not testify in this proceeding.
The only testimony on the subject is Gonzales’ answer on cross-
examination that he recalled that the issue was discussed in his arbitra-
tion decision and that he denied any implication of misconduct. Thus,
the majority accords pivotal weight to evidence of scant probative
value.
4 Gonzales was employed as a meatcutter in other retail grocery
stores during the period between his discharge and being hired by the
Union.
5 Department manager Gallegos, the store manager, and the assistant
manager, all of whom had been involved in Gonzales’ termination,
were no longer working at store 3.
6 If the Respondent seriously believed that Gonzales posed a threat
to the safety and well being of others, it would seem logical for the
Respondent to seek to insulate its customers as well as its managers and
employees from such threat.
Thereafter, on March 10, the manager of Respondent’s
store 2 declined to set up a step 2 grievance meeting with
Gonzales, stating, that he had been directed not to deal
with Gonzales. Within days, other managers followed
suit, two warning that Gonzales’ failure to leave the
premises would result in the police being called to re-
move him.7 After weeks of discussions between the Re-
spondent and the Union, and despite the written assur-
ance of the union president that Gonzales would comport
himself in a professional manner,8 the Respondent held
firm to its refusal to deal with Gonzales as the union
representativ
Among the rights guaranteed employees under Section
7 of the Act, is “to bargain collectively through represen-
tatives of their own choosing.” This guarantee has been
construed by the Board to include the union’s unilateral
right to choose the individuals it wants to act as its
agents.9 The Act requires an employer to recognize,
meet, and deal with whomever the union designates as its
representative in collective bargaining. Failure to do so
violates an employer’s obligation to bargain under Sec-
tion 8(a)(5), except in rare circumstances. The test is
whether there is “persuasive evidence that the presence
of the particular individual would create ill will and
make good faith bargaining impossible.” KDEN, supra,
225 NLRB at 35 (emphasis in original). See also Gen-
eral Electric Co. v. NLRB, 412 F.2d 512 (2d Cir. 1969)
(describing exceptions to the right to choose bargaining
representative as “rare and confined”).
Applying that standard, consistent with the Board’s
past decisions, I see no basis for the Respondent’s refusal
to deal with Gonzales. The incident relied on by the Re-
spondent occurred some 4 years earlier, involved no ac-
tual or intended physical contact, and was purely per-
sonal in nature. The supervisor whose actions triggered
Gonzales’ misconduct is now working at a store not in-
cluded within Gonzales’ jurisdiction as business repre-
sentative, so there is no prospect of any lingering per-
sonal ill will between the two affecting the bargaining
process. As demonstrated, Gonzales’ most recent visits
to the Respondent’s facilities in his role as business agent
were professional and productive. The objective evi-
7 During the incident that gave rise to his termination, the police
were not summoned, and neither a criminal charge nor a civil complaint
was filed.
8 Union President Duran made this representation in a March 31 let-
ter to Respondent’s president. The Respondent did not request further
assurances.
9 See People Care, Inc., 327 NLRB 814, 824 (1999); Long Island
Jewish Medical Center, 296 NLRB 51, 71–72 (1989); Fitzsimons Mfg.
Co., 251 NLRB 375, 379 (1980), enfd. 670 F.2d 663 (6th Cir. 1982);
KDEN Broadcasting Co., 225 NLRB 25, 35 (1976).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 272
dence here, then, falls far short of the strict standard es-
tablished by the Board.
The Board’s decision in Caribe Staple Co., 313 NLRB
877 (1994), is illustrative. There, the Board affirmed a
judge’s determination that an employer could not compel
the exclusion of the union’s representative, a former em-
ployee, from contract negotiations even though that indi-
vidual had been fired just weeks before for having com-
mitted repeated physical attacks on his supervisor. Be-
cause the misconduct was unrelated to bargaining and
involved no member of the employer’s negotiating team,
good-faith bargaining was not impossible. Id. at 889–
890. I am not persuaded by the majority’s effort to dis-
tinguish Caribe Staple by re-rationalizing that decision,
and I am aware of no precedent that, on its facts, sup-
ports the result here.10
For all of these reasons, I would reverse the judge’s
dismissal of the complaint.

Amadeo E. Ruibal, Esq. and Daniel J. Michalski, Esq., for the
General Counsel.
Emily F. Keimig and Patrick R. Scully, Esqs., of Denver, Colo-
rado, for the Respondent.
Michael J. Belo, Esq., of Wheat Ridge, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Denver, Colorado, on October 5, 2000, upon
the General Counsel’s complaint which alleged that the Re-
spondent refused to deal with a business agent of the Charging
Party and thus violated Section 8(a)(5) of the National Labor
Relations Act (the Act).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends that it was not
required to deal with the business agent because he had previ-
ously been discharged by the Respondent for having engaged in
violent behavior toward a fellow employee and a supervisor.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing findings of fact, conclusions of law, and recommended
Order.

10 Where the Board has found that a representative’s conduct outside
the bargaining process justified a refusal to deal with him, that conduct
has been easily distinguishable from Gonzales’ single, if dramatic,
display of temper. In Sahara Datsun, 278 NLRB 1044 (1986), enfd.
811 F.2d 1217 (9th Cir. 1987), for example, the employee representa-
tive disseminated a newsletter to all employees that accused the Re-
spondent’s owners of involvement in prostitution and the use and sale
of cocaine. He also made unsubstantiated accusations to the Respon-
dent’s bank that certain management officials, including officials who
could be expected to be involved in bargaining, had engaged in fraudu-
lent financial practices.
I. JURISDICTION
The Respondent is a corporation engaged in the operation of
retail grocery stores with facilities, among other places, in the
Denver, Colorado metropolitan area. During the course and
conduct of this business the Respondent annually purchases and
receives directly from points outside the State of Colorado,
goods, products, and materials valued in excess of $50,000 and
annually derives gross revenues in excess of $500,000. The
Respondent admits, and I conclude, that it is an employer en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, United Food and Commercial Workers,
Local Union 7 (the Union) is admitted to be, and I find is, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For many years, the Union has been the bargaining agent for
units of the Respondent’s Denver area employees, and the par-
ties have signed successive collective-bargaining agreements,
the most recent of which is effective from July 11, 1999,
through September 11, 2004.
On March 19, 1996, the Respondent terminated Union Stew-
ard George Gonzales, a long-term meat department employee
in store 3. The basis of the discharge was the alleged violent
and threatening acts by Gonzales toward his supervisor and a
fellow employee on March 6, of that year. Gonzales grieved
his discharge and the matter was arbitrated, with the arbitrator
concluding that in fact he willfully engaged in the acts alleged
and that discharge was the appropriate penalty.
In brief, according to the decision of the arbitrator, Gonzales
and his supervisor had a dispute over the assignment of Gonza-
les to work a Saturday (which Gonzales wanted off because it
was his 50th birthday). Gonzales became angry and threw a
40-pound chunk of meat against a saw, breaking the blade,
threw his meathook over his shoulder (narrowly missing a fel-
low employee), and threw his knife in a box. He threatened his
supervisor, and subsequently, went told by the store manager to
leave, he refused to do so. Gonzales took the position then, and
in testimony during the instant trial, that the events did not
occur as found by the arbitrator. He claims that these acts were
accidents, though agreeing to the confrontation over being as-
signed to Saturday work. The arbitrator also found, though
denied by Gonzales, that a few months previously, during a
discussion with the store manager while acting as a union stew-
ard, Gonzales put his hand over her mouth.
In concluding that the discharge of Gongalez, a 23-year em-
ployee, was warranted, the arbitrator “views grievant’s behav-
ior as something a good deal more serious than a simple and
momentary loss of temper . . . . He demonstrated with remark-
able clarity that he cannot not [sic] control his temper and that
in his loss of control he is capable of seriously endangering the
safety of two fellow employees only a few feet from him, as
well as his own safety . . . . This conclusion is buttressed by the
KING SOOPERS, INC. 273
fact that grievant lost his temper only a few months earlier in
the incident with (the store manager) and (assistant store man-
ager).”
On February 14, 2000,1 Gonzales was hired by the Union as
a business agent and was assigned to service four of the Re-
spondent’s stores (including the one where he had been em-
ployed), three Safeway stores and two others.
Stephen J. Dicvoce, the Respondent’s director of human re-
sources and labor relations, testified that on learning of this
assignment, he conferred with the Respondent’s vice president
of operations. They determined, based on the arbitrator’s deci-
sion that the Respondent would not deal with Gonzales. Never
before, in his experience, had the Respondent taken such a
position.
By letter of March 7, counsel for the Respondent advised the
Union’s president, Ernest Duran, that “given the nature of the
incident resulting in Mr. Gonzales’ termination and his history
of similar, violent and threatening conduct preceding his termi-
nation, King Soopers has determined that Mr. Gonzales is per-
mitted in its stores for the sole purpose of shopping, but not to
deal with store management regarding labor relations, griev-
ances, or other union matters.”
Duran responded, “Be advised Local 7, not you, has the right
to determine who will serve as a Union Representative. Indeed,
your assertions are untrue and appear libelous.”
There followed a further exchange of letters between the Re-
spondent and Union to like effect and on March 10, the charge
in this case was filed. Effective April 17 (“[u]ntil we are suc-
cessful in winning the grievance to allow George Gonzales
back in King Soopers stores”) . . . certain changes in business
agent assignments were made by the Union such that Gonzales
was assigned to 10 Safeway stores and the Safeway meat plant.
B. Analysis and Concluding Findings
The parties agree that as a general rule, a labor organization
can designate whomever it wishes to be its agent for purposes
of collective bargaining, handling grievances, and related mat-
ters. They also agree that in extraordinary circumstances,
where the union’s designated representative is, or reasonably
could be, disruptive to the collective-bargaining process, an
employer can refuse to deal with that representative without
violating its duty to bargain.
Thus in Fitzsimmons Mfg. Co., 251 NLRB 375 (1980), affd.
sub nom. Auto Workers v. NLRB, 670 F.2d 663 (6th Cir. 1982),
there was a physical confrontation between the union represen-
tative with whom the company refused to deal and the com-
pany’s personal director, during which the union representative
grabbed the personal director by the tie, said he would punch
him in the face and suggested they go outside and fight.
Though the union gave assurances such would not be repeated,
the Board concluded that the union agent’s “conduct (was)
sufficiently egregious to make bargaining impossible . . . .”
251 NLRB at 382. The Board quoted the test set forth in
KDEN Broadcasting Co., 225 NLRB 25, 35 (1976): whether
there is “persuasive evidence that the presence of the particular

1 All dates are in 2000, unless otherwise indicated.
individual would create ill will and make good-faith bargaining
impossible.” See also Sahara Datsun, 278 NLRB 1044 (1986).
A company’s burden in refusing to meet with a particular
representative of a union is fairly heavy. For instance, in Long
Island Jewish Medical Center, 296 NLRB 51 (1989), the busi-
ness agent pushed the hospital’s administrator, called her an
“asshole” a number of times and momentarily blocked her from
her desk. The Judge and Board concluded that these acts were
provoked and thus were not sufficiently egregious under the
test of Fitzsimmons to justify the company refusing to deal with
the business agent. See also People Care, Inc., 327 NLRB 814
(1999), where insistence on removal of the union’s attorney
was not justified since there was insufficient evidence that his
presence would cause unreasonable hostility.
At the time of his discharge, Gonzales had been an employee
of the Respondent for 23 years and had been a union steward of
13 or 14 years, dealing daily with management on a variety of
labor issues. Never did the Respondent take the position that
his actions as a steward were such that the Respondent would
not deal with him. The basis for the Respondent’s refusal to
deal with him now, as a business agent, is the event which lead
to his discharge in 1996, though his “history of similar, violent
and threatening conduct” was also cited.
Thus the question here is whether the prior acts of Gonzales,
and in particular those for which he was discharged 4 years
ago, were sufficiently egregious to justify the Respondent’s
refusal to deal with him as a business agent servicing its stores.
I conclude they were.
There are two factors at work here which, combined, I con-
clude justify the Respondent’s refusal to deal with Gonzales.
The first, and most important, is his violent behavior in 1996
arising out of a work related issue. Although Gonzales denied,
and continues to deny, that he did anything wrong, must less
violent, the Respondent has a reasonable basis to conclude
otherwise. Though the recitation of facts in the arbitrator’s
decision are hearsay, the truth of those facts is not as important
as the fact they were found by an independent adjudicator.
Based on the arbitrator’s decision, the Respondent could cer-
tainly conclude that when confronted, Gonzales has the propen-
sity to react violently and could pose a physical danger to oth-
ers.
As noted above, Gonzales continues to deny the facts leading
to his discharge, which the Union apparently supports since
Duran wrote that the Respondent’s asserted reasons for refusing
to deal with Gonzales were “untrue and appear libelous.”
(Though counsel for the Union represented here that Gonzales
“lost his temper.”) Thus at no time did the Union or Gonzales
give any assurances that such behavior would not reoccur.
Further, I discredit Gonzales. In the spring of 2000, and af-
ter this case was filed, Gonzales sought out his former supervi-
sor, Joe Gallegos. According to Gonzales, this was solely for
the purpose of consoling Gallegos concerning the events which
occurred in 1996. He gave no reason why he had waited 4
years. Gallagos, on the other hand, credibly testified that Gon-
zales wanted him to tell the human resources directors that
Gonzales is not a violent person. While this meeting is of little
materiality here, it underscores my conclusion that Gonzales is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 274

willing to rearrange facts in a way he perceives will be to his
benefit.
The fact that Gonzales’ outburst happened 4 years ago is of
some relevance, but is not dispositive. While somewhat remote
in time, the reported actions by Gonzales demonstrate a violent
propensity which the Respondent need not be required to be
subjected to.
The second factor is necessity. The Union has about 18,000
members working in about 200 retail grocery stores in Colo-
rado and Wyoming, which are serviced by 21 business agents
(exclusive of union officers). Eighty of those stores are King
Soopers. Fifty-five are Safeway stores, another 40 are Albert-
sons and the rest are miscellaneous.
Gonzales has no demonstrated expertise which would sug-
gest that the Union’s membership would not be as well served
if he was assigned to service stores other than King Soopers.
He testified that he had 14 years experience in dealing with the
King Soopers contract with the Union; however, he also testi-
fied (as did others) that after his discharge in 1996, the King
Soopers contract was substantially changed.
In short, no persuasive reason was offered why Gonzales
need be assigned to any of the Respondent’s stores other than
that is what the Union wanted. Again, the Union has the gener-
ally unfettered right to select which individuals will represent it
in various stages of collective bargaining. But where, as here,
the Respondent has a reasonable basis for declining to deal with
a particular individual and the Union can show no overriding
reason for selecting that individual, then the Respondent is
justified in its refusal.
Accordingly, I conclude that the Respondent did not violate
Section 8(a)(5) in refusing to deal with Gongalez and I shall
recommend that the complaint be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The complaint is dismissed in its entirety.

2 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-
poses.