Low Bros. National Market, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 98 (N.L.R.B. 1970)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Low Bros . National Market , Inc. and Retail Clerks
Union Local 1288 , Retail Clerks International As-
sociation , AFL-CIO. Case 20-CA-5703
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
June 30, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On March 4, 1970, Trial Examiner Richard D.
Taplitz issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a brief. The
Union and the General Counsel also filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, Low
Bros. National Market, Inc., its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
1. Add the following as paragraph 2(c) and re-
letter the paragraphs accordingly.
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
RICHARD D. TAPLITZ, Trial Examiner: This case
was tried at Fresno, California, on January 6,
1970.' The complaint herein dated October 16 al-
leges that Low Bros . National Market, Inc., herein
called the Respondent, violated Section 8(a)(3)
and (1) of the National Labor Relations Act, as
amended, by discharging Richard Franco because
of his activities on behalf of Retail Clerks Union,
Local 1288, Retail Clerks International Associa-
tion, AFL-CIO, herein called the Union. Respon-
dent's answer, dated October 20, admits many of
the factual allegations of the complaint but denies
the Respondent violated the Act. The complaint
was based on a charge filed by the Union on August
4. All parties appeared at the hearing, were given
full opportunity to participate, to adduce relevant
evidence, to examine and cross-examine witnesses,
to argue orally, and to file briefs. Briefs which have
been carefully considered were filed on behalf of
the General Counsel and Respondent.
Upon the entire record' in the case and from my
observation of the witnesses and their demeanor, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, has a retail
grocery store called Low Bros. National Market or
National Market in Los Banos, California. During
the year preceding the issuance of complaint,
Respondent purchased products valued in excess of
$50,000 directly from suppliers located outside the
State of California and sold products valued in ex-
cess of $500,000.
The complaint alleges, the Respondent admits,
and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6)
and (7). of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I
find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting and the Prior Case
In December 1968, the Union sought to organize
the National Market. On January 2, the Respon-
All dates are in 1969 unless otherwise specified
2 The General Counsel filed a motion to correct the transcript of the
record Respondent objects only to changing the word "psyching" to "-
slacking " on p 75, 121. To the extent that the motion is unopposed it is
granted and the following changes are made p . 7,1 20 "881 " is changed to
read 8(a)(3 ), p 119,1 5 the word "whether " is deleted
184 NLRB No. 11
LOW BROS . NATIONAL MARKET, INC. 99
dent filed a petition for an election in Case
20-RM-1147 and, pursuant to an "Agreement for
Consent Election," an election was held on January
30. The Union did not receive a majority of the
votes and filed timely objections to the election.
The Union also filed a charge against Respondent
in Case 20-CA-5415, alleging that Respondent vio-
lated Section 8(a)(1) of the Act. Complaint issued
upon the charge, and the unfair practice case and
representation proceedings were consolidated and
heard by Trial Examiner David E. Davis on June
10. The Trial Examiner found that Respondent vio-
lated Section 8(a)(1) of the Act by engaging in
various acts of coercion against its employees and
by the same conduct substantially interfered with
the election and inhibited the employees from ex-
pressing their free choice therein. He therefore
recommended that the election be set aside, that a
new election be conducted, and that the represen-
tation case be severed from the complaint case.
Specifically, the Trial Examiner found that Mor-
rey Low, Respondent's president,3 threatened em-
ployee Moore with loss of his employment if the
Union won the election; that Rudolph Galvan,
manager of Respondent's National Market,4
threatened employee Vickers with discharge if she
voted for the Union; and that Galvan discouraged
employees from adherence to the Union by
threatening them with stricter working conditions.
The Trial Examiner credited the testimony of em-
ployee Vickers that Galvan told her that Respon-
dent's employees had been represented by a union
on a previous occasion but that it had rid itself of
all employees one by one. All the unfair labor prac-
tices were found to have occurred in the latter part
of January 1969. On January 8, 1970, the Board is-
sued its Decision and Order in Case 20-CA-5415,
180 NLRB 592, adopting the findings, conclusions,
and recommendations of the Trial Examiner.
On February 15, employee Richard Franco was
given a 2-week notice of termination. Franco
ceased his employment with Respondent on
February 28. The General Counsel contends that
Franco was discharged because of his activity on
behalf of the Union and that the discharge was a
continuation of the Respondent's conduct of
several weeks before which the Board has found to
have been in violation of the Act. The Respondent
contends that Franco's discharge had nothing to do
with union activity but resulted from the return
from military service of former employee Larry
Bernardo, the decrease in business which prevented
Respondent from keeping both Bernardo and Fran-
co, and from Franco's performance as an employee
which Respondent considered unsatisfactory.
B. Franco's Discharge
Franco was hired at the National Market by
Manager Galvan in mid-November 1968. As a box-
boy, Franco's duties were to shelve food, carry out
customers' groceries to their cars after putting the
groceries in boxes, and unloading trucks when they
came in.
On December 29, 1968, there was a meeting at
Galvan's house. At this meeting a number of em-
ployees, including Franco, signed union member-
ship cards. At that time Galvan was in favor of the
Union and he remained that way, according to his
own testimony, until about 3 days before the elec-
tion of January 30, when he told every employee in
the store that he had changed his mind about the
Union and that he didn't think they were ready for
a union.
During January, Franco was vocal in his support
of the Union and he spoke to other employees in
the store, telling them that he was in favor of the
Union and that everybody was going to benefit
from it. In addition to speaking to the employees,
Franco had a number of conversations with
Respondent's president, Morrey Low, and Galvan.
1. Franco's conversations with Low
On or about January 7, Franco had a conversa-
tion with Low in Low's private office. Franco had
been called to the office on the loudspeaker. No
one else was present. Low asked Franco if he liked
working for Respondent and Franco answered that
he did. Low said that he had been fighting the
Union for 8 years and talked about the store and
his financial problems. Low went on to say that he
wanted Franco's help in getting out of the mess and
he said that the mess he was referring to was the
Union. At the end of the conversation, Low asked
for Franco's support and shook his hand.
The second conversation took place about Janua-
ry 14. Once again Franco was called to Low's
private office on the loudspeaker and as before
they were alone. Low told Franco that he had given
Franco's brother a start at the store and he had
given Galvan a high position as manager of the
store. He then told Franco that Franco would have
a difficult time getting employment with any other
employer.' Low asked if he still had Franco's sup-
port.
The third conversation occurred about January
21. Franco was once again paged on the loud-
speaker. Low told Franco that the day was getting
close and he needed Franco's support. Low also
said that even if the store did go union, things
' Respondent 's answer admits that Morrey Low is president and a super-
visor within the meaning of Sec 2(11) of the Act 1 so find.
' Respondent's answer admits that Galvan is manager and a supervisor
within the meaning of Sec 2(11) of the Act. i so find
51n an apparent reference to either Low 's or Franco 's ethnic
background , Low compared the color of their skins and said "no white em-
ployer will hire you "
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would still be the same, that he still would be
running things his way, and that he might cut hours
or lay employees off. Low explained to Franco that
if the Union got in his overhead would go up, he
would have financial problems, and for that reason
might have to let someone go.6
2. Franco's conversations with Galvan
As was noted above, Manager Galvan was active-
ly prounion until about 3 days before the January
30 election, at which time he told all the employees
he changed his mind and, according to the credible
testimony of Franco, that when the employees
voted they should think about what they were doing
and vote the right way. During the period that both
Galvan and Franco were in favor of the Union, they
spoke about it on an almost daily basis.
Franco also talked to other employees about the
Union. One of them was Jim , the store butcher.
Franco testified that about a week before the
January 30 election he was called to the office by
Galvan and, in the presence of employees Steve
Moore and Jeff Smith, Galvan asked him what the
big idea was talking to Jim about the Union. Franco
further averred that he asked Galvan how he had
found out and Galvan answered that Jim had called
Low who in turn had called Galvan and that Low
was mad about it. Galvan denied having any such
conversation with Franco. I credit Franco. Galvan
impressed me, from my observation of him on the
witness stand, as an intelligent person who was
quite capable of testifying in a clear, direct manner.
Instead, he was evasive and far less than candid in
much of his testimony, as indicated by the implica-
tion in his initial testimony that he had not told the
employees in the store about his change of mind
about the Union and then his subsequent testimony
in which he admitted that he told every employee
in the store that he had changed his mind. His
failure to recall his testimony at the prior hearing
impressed me as an attempt to conceal information
rather than a real lapse of memory. Franco was
sometimes confused and often had difficulty in
communicating, but my observation of him on the
witness stand convinced me that he was a truthful
witness who was trying his best to be accurate. It is
true that Franco placed this conversation about a
week before the election, whereas Galvan dated his
change of heart about the Union as 3 days before
the election. However, whether Franco was incor-
rect about his date or Galvan was previewing his
change of mind, I find that this conversation did
occur during the latter part of January.
Franco had another conversation with Galvan on
January 30, just before the election. It took place in
the warehouse of the store with no one else present.
Franco credibly testified that Galvan told him to
vote no; he replied that it wasn't "worth the hass-
le"; Galvan said, "Think about your job"; and he
replied that he would go through with it anyway
and vote the way he felt. Galvan denied that he
ever told Franco that Franco would be laid off or
apt to be laid off if the Union won. He did not
specifically deny the conversation to which Franco
testified. I find that the conversation did occur as
was testified to by Franco.
3. Franco's conversation with Respondent's
attorney, Ted Frame
On January 29, outside of President Low's office,
Respondent's lawyer, Ted Frame, had a conversa-
tion with Franco. Frame told Franco that he didn't
care how Franco felt about the Union and he didn't
want to know but he wanted to tell Franco Low's
side of the story. Frame then talked about Low's
financial problems and how difficult it was for Low.
In his initial testimony, Franco stated that Frame
asked him how he felt about the Union and he an-
swered that the Union was good. However, on
cross-examination, Franco admitted that when the
conversation opened Frame said he didn't want to
know how Franco felt about the Union. While it is
possible that at different points in the conversation
Frame said he didn't want to know and then asked
about Franco's union sympathy, the cross-examina-
tion sheds enough doubt on the question of Frame's
interrogation of Franco that no weight can be given
to Franco's assertion of interrogation. Frame did
not take the stand.
4. Vickers' conversation with Manager Galvan
Barbara Vickers worked for Respondent as a
checker or cashier from July 1968 until April 13,
when she left Respondent's employ for reasons un-
related to this case. Franco often boxed groceries
which she checked out and he often spoke to her in
favor of the Union. She, herself, had signed a union
card at Galvan's home with the other employees. A
few days before the election, Galvan told her that
everyone had changed their minds about voting for
the Union.'
On February 1, Galvan came up to Vickers'
checkstand and they had a conversation. Vickers
testified that Galvan said he had been talking to
President Low about the Union, that if Franco
started "goofing off and psyching off on his job,"
he knew what had to be done, and that he knew
that Franco had voted for the Union. Galvan re-
called the conversation with Vickers but he
testified that he told her that if Franco didn't
straighten up he would have to let him go whether
These findings with regard to all three conversations between Low and
Franco are based on the credible and uncontradicted testimony of Franco
Though Low took the stand to testify on behalf of Respondent, he did not
take issue with any of Franco 's testimony relating to these conversations
' These findings are based on the credited testimony of Vickers Galvan
testified that he did not have any recollection of a specific conversation
with Vickers but he did recall telling all the employees that he had changed
his mind I credit Vickers' version of the conversation
LOW BROS. NATIONAL MARKET, INC.
they joined the Union or not . As indicated above, I
did not find Galvan to be a credible witness. On the
other hand , Vickers was direct, forthright , and fully
credible . I credit her version of the conversation.
5. The discharge
On February 15, President Low gave Franco a 2-
week notice of termination . Low told Franco that
former employee Larry Bernardo had returned
from military service ; he had more need for Bernar-
do than Franco; things were too slow for him to
keep on both of them; and he would rehire Franco
if things picked up again.
C. Respondent's Defense
1. The return of Larry Bernardo
Low owns and operates another store in addition
to the National Market. The second store is located
in Merced , California , and is named the Super M
Market.
Larry Bernardo began work for Low in the Na-
tional Market store in September 1964. He left
Low's employment after working for a little over a
year because he could not get along with Low's
parents who at the time had a stock ownership in
the store. By November 1966, Low's parents no
longer had an interest in the stores and Bernardo
went back to work for Low, but this time at the
Super M store. While he was working there, he ran
the cash register, worked produce, and did
everything in the store . He was considered a good
worker. After about 4 months of employment at the
Super M, Bernardo was drafted into the Army. Be-
fore he left for service, Bernardo told Low that he
would like to have his job back when he got out,
and Low told him that he could. Low told him that
he could not promise that Bernardo would have any
particular job when he came back but he would
have a job. About 5 or 6 months before Bernardo
was due for discharge from the Army, he wrote to
Eddie Owl who was then the store manager of the
Super M and said that he was coming back. Owl
replied that there was no opening at the Super M
but there was one at the National Market . Bernardo
was discharged on February 13 and reported for
work on February 15. On that date he was hired at
the National Market as assistant manager . Accord-
ing to Low's credible testimony, he wanted Bernar-
do at the National Market because he needed an
assistant manager there and he knew that Bernardo
could do everything in the store.
Low testified that he did not keep Franco when
Bernardo reported for work because he couldn't af-
ford to have both of them on the payroll and
because Franco who was a junior employee at both
stores, was less capable than Bernardo . In support
of his contention that he could not afford to keep
both employees on the payroll at the same time,
Low showed through the use of a sales chart that
101
the National Market sales for the month of Februa-
ry were lower than in any other month of the year.
The chart also showed a substantial rise in the sales
volume for March, April, and May. However, Low
testified on cross-examination that both stores show
a decline in sales every February and there is no
evidence in the record to indicate whether or not a
reduction in sales has ever resulted in the discharge
of an employee in past years. As there is no way of
establishing through the evidence in the record that
there is a correlation between gross sales and a par-
ticular fixed number of employees that are needed
and there is likewise no evidence of any past prac-
tice which would indicate such a correlation, the
bare gross volume figures have little meaning. How-
ever , it is important to look at the question of
whether or not Franco was replaced . If he were
replaced , Respondent 's argument that it could not
afford an extra man could not be given much
weight.
After Franco was discharged, two new employees
were hired who did similar work to that which had
been done by Franco. One was David Myers and
the other Ken Otto. According to the testimony of
Low, Myers was hired in the latter part of March
because Low knew that Myers' father had a finan-
cial problem and he wanted to help out. Low also
testified that Myers worked for about 2 weeks
about 12 hours a week. As to Ken Otto, Low
testified that he was hired as a part timer about the
first of May, and that business had increased by
then. With regard to the date that Myers started his
employment, Low was testifying from memory
rather than from records because, according to
Low, Myers was paid in cash and no payroll record
was ever prepared on him. Barbara Vickers
testified that she saw a new boxboy doing Franco's
work about a week after Franco was discharged.
Franco's last date of employment was February 28
and she saw the new boxboy, whose first name she
recalled was David, about March 5. She concurred
with Low's testimony that Myers worked for about
2 weeks and that he was only a part-time worker.
She was certain that the new boxboy came to work
about' a week after Franco left and not a month
after as was testified to by Low. According to
Vickers' testimony, the other boxboy, Ken Otto,
was hired on March 15. She stated that she remem-
bered that date because it was on the same day that
she gave her notice that she was quitting on April
15. On April 15 when she did leave Respondent's
employ, Otto was still working.
Franco's testimony corroborated that of Vickers'
with regard to the hiring date of Myers. Franco
averred that he went back to the store about a
week after his discharge and he saw someone else
that he did not recognize boxing food. The new boy
was putting groceries in sacks and taking them out
to people's cars and he wore the same type of blue
apron that Franco had worn when he was working
there.
427-835 0 - 74 - 8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the date of hires of Myers and Otto, I credit
Vickers rather than Low. Low had with him when
he testified records of employees' hiring dates, but
these records omitted the names of Otto and
Myers. It is difficult to believe that Low would
allow any employee to work for him without keep-
ing records of that employment. His testimony that
he kept no such records with regard to Myers does
not reflect well on his credibility. The fact that he
had to rely on memory with regard to the hiring
date of Otto because the records he had with him
omitted Otto's name also gives pause. On the other
hand, the testimony of Vickers and Franco that
they saw Myers working a week after Franco's
discharge is fully credible. In a similar vein Vickers'
testimony that she specifically remembered the
date that Otto started working because that was the
date that she gave her own notice is credible.
Vickers left Respondent's employ about April 15
and she was sure that Otto was working at that
time. According to Low's testimony, Otto was not
hired until some time in May which would be more
than 2 weeks after Vickers left. I find that Myers
replaced Franco as a boxboy about a week after
Franco's discharge, that Myers worked for about 2
weeks, and then that on about March 15 Otto
replaced Myers. However, both Myers and Otto
were part-time employees whereas Franco was a
full-time employee.
2. Franco's performance on the job
President Low testified that in reaching the deci-
sion to discharge Franco, he considered Franco's
ability as a worker. According to Low, Franco
couldn't check, couldn't do produce, and in general
didn't have the makings of a clerk.
Respondent points to only two specific incidents
relating to Franco's conduct. On one occasion, the
date of which was not given, a bottle of baby food
had been broken on the floor of the store and Low
told Franco to pick it up. Franco was then called to
the front of the store to box groceries and he forgot
about cleaning up the baby food. According to the
credible and uncontradicted testimony of Franco,
he was never criticized about this incident. The
other incident was also on an undetermined date.
According to the testimony of Galvan, a customer
complained that Franco stared at her and
frightened her.
Franco was not able to check (run the cashier)
and Low's testimony that he could not handle
produce was credible. It is clear from the testimony
of a number of witnesses that his all-around ability
as a clerk was limited. However, he was a boxboy,
and a boxboy's duties were very limited in nature.
Respondent contends nonetheless that Franco's
ability and attitude even as a boxboy were not up to
par. Employee John lacopi testified that Franco
was lazier and more sluggish than the other wor-
kers; Low testified that Franco didn't seem to get
the job done; Galvan testified that Franco was
sometimes moody and didn't like taking orders, he
complained to the checkers about doing too much
boxing, though he wasn't either fast or slow he
didn't do things right, and he made one of the
checkers nervous by talking back to her; the
assistant manager, Larry Bernardo, testified that
Franco did not always follow directions; employee
Clairmonte Graper testified that Franco was not as
smart as the other boys, he was sometimes silent
when he was asked a question, he sometimes passed
baskets through so hard they would bang into her,
he sometimes mumbled and talked to himself,
sometimes he wouldn't talk to anyone, he would
complain that the noise of the cash register gave
him a headache, and he used words that she didn't
understand.
Franco was never told that he would be
discharged unless his work or attitude improved.
However, there was some conflict of testimony con-
cerning whether he was ever praised or repri-
manded about his work. Franco testified that at one
time Galvan told him that he was finally catching
on. Galvan denied ever making such a statement.
Though I believe Franco to be a more reliable wit-
ness than Galvan, the entire incident is without sig-
nificance. Even if Galvan did on one isolated occa-
sion mildly praise Franco, such a limited comment
would not reflect on Franco's overall work per-
formance. Galvan testified that he told Franco
many times to straighten up and he also spoke to
Franco's older brother about it. Franco did not
deny Galvan's testimony in this regard but once
again there is little significance that can be at-
tributed to such a remark. It is the kind of remark
that can be used in either a trivial or a major
matter.
There is no dispute that at the time of the
discharge Franco was not told that he was an un-
satisfactory worker and he was told that if things
picked up he would be able to come back.
Franco acknowledged that he wore trimming on
the cuffs of his pants and that he sometimes wore a
headband, armbands, and peace buttons. Franco
denied that anyone ever told him to take off the
headband. He stated that he took it off before
putting on his apron. He acknowledged that he
wore his armbands and peace symbols to work, that
he was told to take them off, and he removed them.
He also acknowledged that Galvan told him that his
hair was getting too long and that he needed a hair-
cut. Though he did get a haircut eventually, Galvan
kept reminding him to keep his hair short.
Galvan also described Franco's headbands and
peace buttons. Galvan went on to testify that Fran-
co was not neat and that he wore Levis and tennis
shoes when a white shirt and tie were required.
The composite picture8 that emerges of Franco is
Franco's own description of his appearance was amplified somewhat by
the testimony of Manager Galvan, Assistant Manager Bernardo , and em-
ployee Graper
LOW BROS. NATIONAL MARKET, INC. 103
that of a rather sluggish worker of limited ability
who tended to be moody, uncommunicative, and at
times sullen. He wore his hair long and he some-
times wore braids on his pants, and a headband in
his hair. However, Respondent does not argue that
Franco's appearance was adversely affecting either
its business or its image. As Respondent pointed
out in its brief, the General Counsel opened the
area of Franco's dress and Respondent's contention
is that Franco's dress was part of the overall picture
of an unsatisfactory employee. That brief reads in
part: "We did not contend at hearing, and we do
not now contend, that Franco's dress per se was a
reason for his discharge."
he was not offering Franco his job back and that
they both thought it was a kind of a little joke.
Franco testified that he had no recollection of
such a conversation with Bernardo and - that he
never told Bernardo that he did not want to come
back.
Bernardo's testimony was credible and it is quite
possible that Franco, who had previously been the
subject of "riding" on this subject, may have for-
gotten the particular incident. However, I attribute
no significance to the conversation. Bernardo was
playing a rather nasty game and Franco's response
could not reasonably be considered to be a rejec-
tion of a job.
3. Respondent's contention that it did not believe
Franco wanted to return
Respondent introduced into the record con-
siderable evidence with the intention of establishing
that it had cause to believe that Franco did not
desire to return to work. Presumably, Respondent
is taking the position that Franco was originally laid
off because business was bad and he was not
needed when Bernardo returned from the service;
in reaching this conclusion Franco's poor work was
considered; and after business did subsequently im-
prove one of the reasons that Franco was not re-
called was that Respondent thought that he did not
want to return.9
About 2 weeks after Franco had left Respon-
dent's employ, he came back to the store and had a
conversation with employee John lacopi. Manager
Galvan was present during the discussion. lacopi,
who considers himself somewhat of a "tease,"
testified that he asked Franco as a joke whether
Franco wanted to come back. Franco answered to
the effect that he didn't want to hassle with people
any more. lacopi testified that they both had a
laugh over it and that he considered the question
and answer to be a jest. Galvan testified that he
took the conversation seriously. I do not credit Gal-
van's testimony in this regard. It was obvious that
lacopi did not have authority to offer Franco reem-
ployment and it was just as apparent that lacopi, in
a rather sadistic manner, was trying to needle Fran-
co. After observing Galvan, I'do not believe he was
so naive as to accept Franco's response at face
value.
Assistant Manager Bernardo testified that about
3 weeks after Franco left Respondent's employ, he
saw Franco at the parking lot of Gianoni's Market,
a place where single people gather, and he asked
Franco whether he would like to come back to
work and what he thought about the job. He further
testified that Franco answered that he didn't like
the hassling with the people and that he did not
want the job back. Bernardo went on to testify that
° Respondent 's brief mentions each of these arguments , though does not
connect them
t0 See also Sutherland Lumber Company, Inc , 176 NLRB 1010, N L R B
D. Analysis and Conclusions
Nothing in the National Labor Relations Act
prevents an employer from discharging an em-
ployee where he believes that the employee is not a
good worker or where he disapproves of an em-
ployee 's hair style or mode of life in general. How-
ever , an employer does violate the Act where he
discharges an employee because of the employee's
union activities and the employer will not be al-
lowed to use the employee 's hair style, mode of life,
ability, or anything else as a pretext to disguise the
real reason for the discharge. The sole question
presented in this case is whether or not a substan-
tial motivating reason for the discharge was Fran-
co's union activity . As the court said in N.L.R.B. v.
Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1,
1953): "In order to supply a basis for inferring dis-
crimination, it is necessary to show that one reason
for the discharge is that the employee was engaging
in protected activity . It need not be the only reason
but it is sufficient if it is a substantial or motivating
reason , despite the fact that other reasons may ex-
ist. "10
The evidence establishes that Franco was active
on behalf of the Union ; Respondent knew of that
activity; Respondent had a virulent animus against
the Union ; and Franco was discharged within a
relatively short time after engaging in protected ac-
tivity . The activity that Franco engaged in was the
signing of a card and the outspoken support he
gave the Union among his fellow employees.
Respondent knew of this activity because Manager
Galvan was privy to the signing of the card, warned
Franco not to talk to another employee about the
Union , and on January 30, the day of the election,
ascertained from Franco that Franco still supported
the Union . In addition , Galvan told Vickers on
February 1 that he knew Franco voted for the
Union . Respondent 's animus toward the Union is
established by the conversations that Franco had
with President Low and Galvan and the conversa-
tion that Galvan had with employee Vickers, all of
v. Lexington Chair Company, 361 F 2d 283 (C A 4, 1966), N L R B v
Symons Manufacturing Co , 328 F 2d 835 (C A 7, 1964)
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which are discussed in more detail below. Even
without that independent evidence of animus,
Respondent's conduct, as found by the Board in the
prior case , 180 NLRB 592, established that
Respondent 's animus toward the Union was suffi-
ciently vitriolic to motivate Respondent to commit
such widespread violations of Section 8(a)(1) of
the Act as to require a broad form order prohibit-
ing Respondent from interfering with the Section 7
rights of employees in any manner."
As to timing , the notification of discharge took
place on February 15 and Franco's last avowal of
support for the Union occurred in his conversation
with Galvan a little over 2 weeks before on January
30.
In determining whether there was a causal con-
nection between the protected activity and the
discharge, the actions and statements of the agents
of Respondent, as well as the defenses raised by
Respondent, must be considered.
The election was scheduled for January 30. Dur-
ing the month prior to that date, Respondent en-
gaged in a vigorous antiunion campaign which, as
found by the Board in the prior case, included con-
duct which violated the Act. On January 7, Pre-
sident Low asked Franco whether he liked working
for Respondent and in the same conversation told
Franco how he had been fighting the Union for 8
years. The implication of this conversation was
unmistakable: if Franco liked working for Respon-
dent, he had better recognize the fact that Respon-
dent did not like the Union. Low's second conver-
sation with Franco, which took place on January
14, removed some of the veil from the threat. Low
asked if he still had Franco's support and told him
that he would have a difficult time getting employ-
ment with any other employer. The third conversa-
tion which took place on January 21 also contained
an implied threat to discharge Franco. Low told
Franco that even if the store did go union , things
would still be the same , that he still would be
running things his way, and that he might cut hours
or lay employees off. Though Low did talk about
financial problems that might cause him to let
someone go if the Union came in, in the context of
the prior conversations , Low was implying that
Franco had a job if the Union was out and did not
have a job if the Union was in.
On January 30, the day of the election, Galvan
laid it on the line to Franco by telling him "think
about your job" while attempting to convince him
to vote against the Union.
Galvan 's remarks to employee Vickers on
February 1 gave body to Low's threats . Galvan told
" See R ! Reynolds Foods, Inc, 168 NLRB 305, where the Board
adopted the Trial Examiner 's Decision which found "The Board 's earlier
findings are properly considered evidence relevant to the present case with
respect to Respondent 's Union animus and against which the further al-
leged violations herein must be evaluated " Respondent 's reliance to the
contrary on Campbell & McLean , Inc, 118 NLRB 967, is misplaced In that
case the Board found that the Trial Examiner had given undue weight to
certain conduct that the Employer had engaged in some 4 years prior to the
incidents which gave rise to the case before the Trial Examiner and that
there was no relationship between the facts of the two cases In the instant
her that he had spoken to Low about the Union; if
Franco started "goofing off and psyching off on his
job," he knew what had to be done; and he knew
Franco had voted for the Union. I believe that the
clear implication of Galvan's remarks was that
Respondent was determined to get rid of Franco
because of Franco's union activity and that Respon-
dent was going to jump on the first excuse it could
find. At that time Galvan apparently expected the
excuse to be poor work on Franco's part. It seems
that Franco surprised him because there is no
evidence of any poor work between Galvan's
February 1 conversation with Vickers and the
notice of discharge on February 15. As the an-
ticipated excuse did not materialize, another one
had to be found. Bernardo's return to work after
military service on February 15 provided a
seemingly plausible reason for letting Franco go
and Franco was given his notice of termination on
that date.
Respondent contends that Bernardo had a prior
claim on the job and that in effect he replaced the
lesser skilled Franco. There is no question that
Respondent had the right to take Bernardo back,
but the impact on Franco is far from clear. Bernar-
do was hired as an assistant manager. Franco was a
boxboy, a job which required very limited skills and
ability. If Bernardo were taking over Franco's job
and doing boxing, he would be of very little use to
Respondent as an assistant manager. Respondent's
contention that business was bad in February and
that therefore it could not keep both Bernardo and
Franco is also subject to question. The week after
Franco was let go, Myers was hired as a boxboy.
Low's altruistic concern for Myers' father does not
convince me that he would hire an employee he
had no need of. Apparently Respondent needed a
boxboy and when Myers left, Otto replaced him.
Though Myers and Otto both worked part time and
Franco worked full-time, I believe that Respondent
did want a boxboy as long as it was not prounion
Franco.
It is true that Franco's ability was limited, his use-
fulness to Respondent was narrow, his attitude
toward work was sometimes provoking, and his su-
pervisors were not pleased with his appearance.12
However, I am convinced from the statements and
actions of Respondent 's agents that Respondent
was willing to put up with Franco as long as he was
antiunion but that they would not tolerate him
when he was prounion. I believe it was just because
Franco was an employee of marginal abilities that
Respondent thought it could get rid of a union sup-
porter and then find a plausible pretext to disguise
case the unlawful conduct which Respondent is alleged to have engaged in
occurred on February 15 and 28 , and the conduct which the Board has
found to have violated the Act occurred only a matter of weeks prior to
that time The allegations in the complaint relate to matters which would
be a continuation and extension of the same type of conduct which the
Board dealt with in the prior case
'= In spite of the fact that Galvan hired him after seeing him and there is
no evidence that his appearance changed between the time he was hired
and the time he was discharged
LOW BROS. NATIONAL MARKET, INC. 105
the real reason for the discharge. As set forth
above, Galvan at the time of his conversation with
Vickers thought that the pretext would be poor
work but Bernardo's return from service presented
Respondent with another excuse for discharging
Franco. When Franco was discharged, he was not
told that his work was bad and he was told that he
would be reemployed if business picked up.
Respondent's reliance on evidence that it had
reason to believe that Franco did not want to return
also indicates that Franco was not as unacceptable
an employee as Respondent would picture him.
In conclusion I find that Franco was discharged
because he engaged in union activity and that the
reasons put forth by Respondent to explain the
discharge are simply pretexts to disguise the real
reason for the discharge. I further find that Respon-
dent, by discharging Franco for his union activity,
violated Section 8(a)(3) and (1) of the Act.13
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discharged and
failed to reinstate Richard Franco in violation of
Section 8(a)(3) and (1) of the Act, I shall recom-
mend that Respondent offer him reinstatement and
make him whole for any loss of pay resulting from
his discharge from the date of his discharge to the
date on which he is offered reinstatement, less his
net earnings during that period. Such backpay shall
be computed on a quarterly basis in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
289, and shall include interest at 6 percent per
annum as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
In view of the unfair labor practices committed
by Respondent as found by the Board in Case
20-CA-5415, 180 NLRB 592, and the broad order
prohibiting Respondent from engaging in any viola.
tions of Section 8(a)(1) that the Board found
necessary in that case, I find that a broad cease-
and-desist order is appropriate in the instant case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging and failing to reinstate Richard
Franco because of his activity on behalf of the
Union, thereby discouraging membership in the
Union, Respondent has violated Section 8(a)(3) of
the Act.
4. By the foregoing conduct Respondent has in-
terfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed to them by
Section 7 of the Act and thereby has violated Sec-
tion 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this case, I recommend that Respondent, Low
Bros . National Market, Inc., shall:
1. Cease and desist from:
(a) Discriminating against employees by
discharging them in order to discourage employees
from joining or supporting the Retail Clerks Union,
Local 1288, Retail Clerks International Associa-
tion, AFL-CIO, or any other labor organization.
(b) In any manner interfering with, restraining,
or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to reinstate Richard Franco to his
former or substantially equivalent position without
prejudice to his seniority and other rights and
privileges.
(b) Make Richard Franco whole for any loss of
pay he may have suffered by reason of the dis-
crimination against him by payment to him of a
sum of money equal to the amount he normally
would have earned as wages from the date of his
discharge to the date of the offer of reinstatement,
in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Notify Richard Franco if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
'S The complaint is narrowly drawn and does not allege any independent
violations of Sec 8 (a)(l) of the Act Low's three conversations with Fran-
co, Galvan 's criticism of Franco for talking about the Union, and Galvan's
conversations with Franco and Vickers are not mentioned in the complaint
and the General Counsel relies on them in his brief only as background for
Franco 's discharge rather than as independent violations I will therefore
make no findings with regard to independent violations of Sec 8 (a)(1 ) of
the Act, particularly as a currently outstanding Board order prohibits
Respondent from engaging in any violation of Sec 8 (a)( 1) of the Act
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its Los Banos, California, store co-
pies of the attached notice marked "Appendix."14
Copies of said notice, on forms provided by the Re-
gional Director for Region 20, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.15
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
16 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : " Notify the Regional Director for
Region 20 , in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to
give evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated
the National Labor Relations Act, and has ordered
us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a
representative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all of these
things.
WE WILL NOT do anything that interferes
with, restrains , or coerces employees with
respect to these rights. More specifically,
WE WILL NOT discriminate against employees
by discharging them in order to discourage em-
ployees from joining or supporting the Retail
Clerks Union , Local 1288, Retail Clerks Inter-
national Association , AFL-CIO, or any other
labor organization.
WE WILL immediately offer to reinstate
Richard Franco to his former or substantially
equivalent position without any change in
seniority or other privileges he enjoyed before
we discharged him and we will pay to him any
money he lost as a result of the discrimination
against him with interest at 6 percent.
WE WILL notify immediately the above-
named individual , if presently serving in the
Armed Forces of the United States, of the right
to full reinstatement , upon application after
discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act.
LOW BROS. NATIONAL
MARKET INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 450 Golden Gate Avenue, Box
36047, San Francisco, California 94102, Telephone
556-3197.