New Foodland, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1973

205 N.L.R.B. 418 (N.L.R.B. 1973)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Foodland, Inc. and Retail Clerks Union Local No.
1536, Retail Clerks International Association. Case
31-CA-3381
August 9, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On April 5, 1973, Administrative Law Judge Rich-
ard D. Taplitz issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that New Foodland, Inc., Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This case
was tried in Las Vegas, Nevada, on February 6, 1973. The
charge was filed on October 6, 1972,' by Retail Clerks
Union Local No. 1536, Retail Clerks International Associa-
tion, herein called the Union. The complaint issued on No-
vember 30 alleging that New Foodland, Inc., herein called
Respondent, violated Section 8(a)(I) and (3) of the National
Labor Relations Act, as amended, by threatening to dis-
charge and discharging Shannon L. Sanders because she
joined the Union. The primary issue is whether Respondent
discharged Sanders because she joined the Union or be-
cause it was complying with a local law which forbade
persons under 21 years of age from handling liquor.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. A brief which
' All dates are 1972, unless otherwise specified
has been carefully considered was filed on behalf of the
General Counsel.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demanor, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a Nevada corporation, operates a retail store
in Las Vegas, Nevada, where it sells groceries and liquor.
During the 12 months preceding the issuance of the com-
plaint, Respondent's gross revenues exceeded $500,000 and
Respondent received goods valued in excess of $50,000
from suppliers located in Nevada, who in turn purchased
those goods in substantially the same form directly from
suppliers located outside of Nevada. Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
Respondent has been operating its Las Vegas store since
1971. Pete Tasios is president of Respondent corporation
and the manager of the store.2 Tasios is a member of a
Meatcutters union and his assistant manager, Leon San-
chez, is a member of the union. Respondent has a collective-
bargaining agreement with the Union. All but one of
Respondent's employees in the bargaining unit covered by
that contract were members of the Union before being
hired. That one exception was Shannon L. Sanders, the
alleged discriminatee.
Sanders was employed as a grocery checker on June 21,
1972. Her duties included the checking out on the cash
register of groceries, liquor, wine, and beer. In addition, she
stocked liquor. The Respondent has a separate liquor de-
partment. The liquor is checked out both at that department
and at the grocery department. Sanders worked in both
departments.
A few months before her hire, Sanders was interviewed
for thejob by Tasios. He looked at her credentials, diploma,
and final test from the Education Dynamics Institute for
grocery checking, gave her a short oral quiz, and asked her
age. She replied that she was 20.3 Tasios told her to check
2 It is admitted, and I find, that Tasios is a supervisor within the meaning
of Sec 2(11) of the Act
3 These findings are based on the credited testimony of Sanders Tasios
testified that he did not ask her age at that time and he did not know that
she was under 21 until he was informed by another employee some time after
her hire His testimony with regard to when he learned her age shed some
doubt on his credibility As set forth in more detail below, his testimony that
he had not seen her application for employment or application for a surety
bond is difficult to believe At one point in his testimony, he averred that he
found out her age shortly after she was hired (June 21), at another point he
205 NLRB No. 79
NEW FOODLAND, INC.
back with him. She did so several times and on June 21 she
was hired. A few days thereafter Tasios handed her an
application for employment and an application for a surety
bond. She filled them out and handed them back to Tasios 4
Sanders stated her age on both the application for employ-
ment and the application for a bond. Both showed that she
was 20 years old and that her date of birth was March 17,
1952. That was her correct date of birth.
In the latter part of July Joseph E. Desaulniers, a business
agent for the Union, asked Sanders about joining the
Union. She answered that she would think it over. On Au-
gust 8, Desaulniers went back to the store and had a conver-
sation with Tasios. He told Tasios that Sanders had been at
the store for more than 30 days and that he was going to sign
her up. He also told Tasios that he had checked with the
Health and Welfare Department and found that payments
had not been made for Sanders; that he didn't see any
reason why she shouldn't be in the Union; and that Respon-
dent could afford health and welfare. Tasios asked Desaul-
niers if he could look the other way for 30 or 90 days.
Desaulniers replied that he would not. Desaulniers' work-
sheet filled out for that day states "Store check, copy work
schedule-check on Shannon Sanders and New Employee
Pete-Health Welfare about 30 days from now."
The findings relating to the August 8 conversation are
based on the credited testimony of Desaulniers. Tasios
averred that he never had a conversation with Desaulniers
concerning health and welfare or pension payments for San-
ders and that he never asked Desaulniers to look the other
way. He testified that the conversation he did have with
Desaulniers took place on August 28; on that day Desaulni-
ers told him he would sign Sanders up; he told Desaulniers
"that's perfectly all right with me"; he also told Desaulniers
that he could not keep Sanders on the job because his liquor
license would be in jeopardy if she was caught selling liquor;
Desaulniers asked him to keep her on for a couple of weeks
and told him that he would find her a job; and he (Tasios)
replied that he would have to replace Sanders because she
was under age. Tasios' testimony was corroborated in part
by Assistant Store Manager Leon Sanchez who averred that
he was stocking shelves in an aisle nearby and overheard the
conversation; that he heard Tasios tell Desaulniers that it
was fine with him (Tasios) if Sanders joined the Union; and
that shortly thereafter in a private conversation with De-
saulniers, Desaulniers told him (Sanchez) that he had asked
Tasios if it would be all right with him if Sanders joined the
Union and Tasios had answered "sure." Sanchez also
averred that Desaulniers told him: "that is really nice of
Pete (Tasios) to let her join the union. He is going to have
to let her go because she is not of 21 years of age and it is
averred that he learned that information shortly before she joined the Union
(August 28), at yet another point he averred that he learned her age 2 or 3
weeks before she joined the Union I do not believe that Tasios was always
candid and I credit Sanders' testimony over his
These findings are based on the credited testimony of Sanders Tasios in
his testimony acknowledged that he gave Sanders an application for a surety
bond but he denied that she handed it back to him or that he saw it thereafter
He did, however, admit that the application for the surety bond, which was
admitted in evidence , was in Respondent 's possession and was found in
Respondent 's files Tasios also averred that the store did use some temporary
application forms but that he didn't know whether Sanders filled one out. I
do not credit Tasios' denial of the matters testified to by Sanders
419
nice of him to let her join the Union so that she can get a
better job-stands a better chance to get a better job after
she leaves the company." Desaulniers testified that he did
not speak to Tasios or Sanchez at all on August 28, and that
the conversations averred to by those witnesses never took
place. I credit Desaulniers who impressed me as an accurate
and truthful witness. As set forth above, I do not believe
that Tasios was always candid. Sanchez' corroboration was
not convincing. It is not likely that Desaulniers would com-
pliment Tasios for allowing Sanders to join the Union. Tas-
ios could not "allow" or forbid an employee to join the
Union. Desaulniers credibly testified that he does not make
a practice of discussing employees' membership with an
employer and that he did not do so in this case. He also
credibly testified that he never discussed Sander's age with
Tasios.
Desaulniers did speak to Sanders on August 28. He asked
her to join the Union and she did so on that date. Shortly
after signing up with the Union Sanders told Tasios that she
needed a $10 draw to pay her September dues to the Union.
He was speaking on the phone at the time and nodded his
head in the affirmative. She received the $10 that day. The
following day, August 29, at 9 a.m. in the store's liquor
department, Sanders had a conversation with Tasios. She
told him that she had joined the Union and he replied, "You
should have asked me before joining the union because I
might not be able to afford you now and will have to let you
go." 5 Sanders asked Tasios to let her know as soon as he
could and he told her to give him a couple of days.
Sanders continued to work until September 29. At 5 p.m.
that day Tasios told her that he was overstaffed; that he had
to let her go; and that she was not old enough to sell liquor.
She replied that he knew her age all along and he said that
he did not. That was her last day of employment. Sanders
credibly testified that the only time Tasios told her she was
under age was on September 29.
Respondent's sole contention at the hearing was that San-
ders was discharged because she was under age.
No replacement was hired for Sanders. Another employ-
ee, Ray McDonald, who had been working in the produce
department where there was not enough work to keep him
fully occupied, began spending half a day in the produce
department and a half a day doing the checker work that
had been performed by Sanders. McDonald earned some-
thing over $4 an hour while Sanders had been earning $2.61
an hour. Under the contract Sanders should have been
raised to $3.01 an hour after her first 3 months of employ-
ment which ended on August 20. She never received that
raise. The contract provides that contributions for fringe
benefits, such as health and welfare and pension, are to be
made for all employees other than certain part-time box-
boys. Desaulniers credibly testified that 24-1/2 cents per
hour is to be paid on employees from the first hour of
employment, whether or not the employee is a union mem-
ber. No fringe benefit payments were made on behalf of
Sanders prior to her discharge. After the charge had been
5 These findings are based on the credited testimony of Sanders Tasios did
not specifically deny the substance of this conversation but he did aver that
he told Sanders that she was under 21, that he couldn't risk his liquor license;
and that he would have to replace her Sanders denied the substance of
Tasios' testimony. I do not credit Tasios
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed Respondent paid all the fringe benefits due under the
contract for Sanders, retroactive to August 28, the day she
joined the Union. No payments were made for time she
worked prior to that date. It thus appears that Respondent
considered the fringe benefits to be due only to members of
the Union. This conclusion is supported by Tasios' state-
ment to Sanders in their conversation of August 28 to the
effect that it would cost him more money because she had
joined the Union. At that time she was already earning
union scale for her hourly rate.
Tasios credibly testified that 20 percent of his business
involved the sale of liquor, wine , and beer and that such
sales were essential to Respondent's profitable operation.
He also credibly testified that all the work in the store for
which Sanders was qualified involved some handling of
liquor.
A Las Vegas city ordinance provides that grocery stores
may, under certain conditions, sell alcoholic liquors. Title 5,
chapter 18, section 2, subsection (R), of the Las Vegas City
Code provides in part:
Intoxicating liquors, other than wine and beer, must be
segregated and kept under the exclusive control of and
sold or distributed only by an adult at least twenty-one
(21) years of age. All beer and wine shall be handled
only by an adult person over the age of twenty-one (21)
years and sold and distributed only by an adult of at
least twenty-one (21) years of age.. . .
Section 244.351 of the Nevada code provides that a per-
son between the age of 16 and 21 can be employed in a retail
food store for the sale of liquor if that employee is super-
vised by a person who is 21 years of age or older and who
is an owner or an employee of the business which sells the
liquor, and if that supervisory person is actually present at
the time of the sales. There was much testimony concerning
whether supervisors were present in the store at the time
Sanders made liquor sales. However, the Nevada code does
not require that the supervisor be a supervisor within the
meaning of the National Labor Relations Act, as it specifi-
cally states that an employee can supervise the sales. Wheth-
er or not Tasios and Sanchez were always present when
Sanders made liquor sales, some employee over 21 years of
age was always present in the store when Sanders was work-
ing. Respondent could have complied with the state law by
seeing to it that the employee over 21 years of age did
supervise Sanders' sales . With regard to the Las Vegas local
ordinance, there was no way that Respondent could allow
Sanders to make the liquor sales and at the same time com-
ply with that law.
It is noted that, in a statement submitted by Tasios to the
General Counsel on October 11, Tasios stated that Sanders
was working alone on her shift, when in fact she was never
alone in the store, and that she was discharged as soon as
a replacement could be hired, when in fact no replacement
was hired. In addition, Tasios in his statement referred only
to the Nevada law and made no mention of the Las Vegas
city ordinance as a basis for the discharge.6
6 On November 2, 1972, LeRoy Glazier , president of the Union, wrote to
Respondent claiming that Respondent violated the contract by firing San-
ders because of her age Glazier credibly testified that the letter was based
on Tasios' statement to him that he had fired Sanders because of her age
B. Conclusions
The General Counsel has established a prima facie case by
introducing credible evidence that (1) Respondent knew
before hiring Sanders that she was under 21; (2) Sander's
age was again pointed out to Respondent within a few days
after her hire by statements on her employment application
and application for a bond; (3) Business Agent Desaulniers
told Tasios on August 8 that he was going to sign Sanders
up and that fringe benefits had to be paid on her behalf, and
that Tasios asked Desaulniers to look the other way for 30
or 90 days; (4) Sanders joined the Union on August 28; (5)
Tasios learned that she had joined the Union on that date
and on the following day, August 29, told her "you should
have asked me before joining the union because I might not
be able to afford you now and will have to let you go"; (6)
on September 29, Tasios for the first time told Sanders that
she was under age and discharged her on that day; and (7)
Respondent was under the mistaken belief that fringe bene-
fits had to be paid only on behalf of employees who were
members of the Union, and that it could save such pay-
ments for Sanders as long as she was not a union member.
Respondent defends on the ground that it discharged
Sanders because it would have been unlawful under state
and local law to allow her to continue selling liquor.
Respondent's contention that it informed both the Union
and Sanders well before her discharge that she could not
continue to work because of the liquor laws was not sup-
ported by credible evidence.
Respondent knew that Sanders was under age when she
was hired. Respondent did not consider her age an impedi-
ment to her employment prior to the time that she joined
the Union. Tasios knowingly ignored her age prior to the
time she joined the Union and then seized upon her age as
a ground for discharge after she joined. Under these circum-
stances, I find that Respondent discharged Sanders because
shejoined the Union and that the issue of her age was raised
by Respondent solely as a pretext to disguise the real reason.
The existence of a legitimate reason to discharge an em-
ployee is no defense to an alleged unlawful discharge where
that legitimate reason is not a moving cause of the dis-
charge. If the reason asserted by an employer for a dis-
charge is a pretext, then the nature of the pretext is
immaterial. That is true even where the pretext involves a
reliance on state or local laws. Thus, in The Embers of Jack-
sonville, Inc., 157 NLRB 627, enfd. 64 LRRM 2681 (C.A. 5,
1967), the Board found that an employer discharged several
employees in violation of the Act even though it would have
been unlawful, under a Florida statute relating to minors
working in places handling alcoholic beverages, for those
employees to continue their employment. In that case the
employer had suggested to the minors that they tell anyone
who might ask that they were 18 years old, when in fact they
were under that age. The employer discharged the employ-
ees on the pretext that they were under age after they had
engaged in union activities.
I find that Respondent violated Section 8(a)(1) of the Act
by threatening to discharge Sanders because she joined the
Glazier's belief at that time as to the reason for the discharge does not
establish the true reason for the discharge That "true" reason must be
determined in the light of all the evidence in the record
NEW FOODLAND, INC.
Union and violated Section 8(a)(3) and (1) of the Act by
discharging her because she joined.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation 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 be ordered
to cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
The customary remedy where an unlawful discharge is
found includes reinstatement with backpay. I do not believe
that anything in the state or local liquor laws warrants a
deviation from a full remedy. The state law puts limitations
on the manner in which persons under 21 can handle liquor
and the local law forbids anyone under 21 from handling
liquor. However, a reinstatement order would not force Re-
spondent to violate any state or local law, as Sanders is now
21 years of age. She has been 21 since March 17, 1973. Her
reinstatement at this time is needed to effectuate Federal
law and would not in any way contravene state or local law.
There is nothing in the state or local law which would
limit Respondent in paying backpay to Sanders. Sanders'
loss of earnings is attributable solely to Respondent's unfair
labor practices. State and local law was raised by Respon-
dent as a pretext and was not casually related to her dis-
charge or loss of earnings.
Having found that Respondent discharged Sanders in
violation of Section 8(a)(3) and (1) of the Act, I shall recom-
mend that Respondent be ordered to offer her reinstate-
ment and make her whole for any loss of pay resulting from
her discharge, by payment to her of a sum of money equal
to the amount she normally would have earned as wages
from the date of her employment to the date on which
reinstatement is offered, less net earnings during that peri-
od. 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 as provid-
ed in Isis Plumbing & Heating Co., 138 NLRB 716.
It is further recommended that Respondent be ordered to
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 re-
cords and reports, and all other records necessary to analyze
the amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
421
of Section 2(5) of the Act.
3. By discharging Shannon L. Sanders because shejoined
the Union, Respondent has violated Section 8(a)(3) and (1)
of the Act.
4. By the foregoing conduct and by threatening to dis-
charge Sanders because shejoined the Union, Respondent
has interfered with, restrained, and coerced employees in
the exercise of their rights guaranteed to them by Section 7
of the Act, in violation of Section 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.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER7
Respondent, New Foodland, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for joining Retail Clerks Union Local No. 1536,
Retail Clerks International Association.
(b) Threatening to discharge employees for joining that
Union.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer Shannon L. Sanders immediate and full rein-
statement to her former fob or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her
whole for her loss of earnings in the manner set forth in the
Section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due.
(c) Post at its Las Vegas, Nevada, store copies of the
attached notice marked "Appendix." 8 Copies of the notice
on forms provided by the Regional Director for Region 31,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
7 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Sec 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes
8 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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 "
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able steps shall be taken by Respondent to insure that said
notices are not altered , defaced , or covered by any other
material.
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith.
APPENDIX
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL offer full reinstatement to Shannon L. San-
ders, with backpay plus 6 -percent interest.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate
against any employee forjoining Retail Clerks Union
Local No. 1536, Retail Clerks International Associa-
tion.
WE WILL NOT threaten to discharge any employee for
joining that Union.
Dated By
NEW FOODLAND, INC
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , Federal Building, Room 12100,
11000 Wilshire Boulevard , Los Angeles , California 90024,
Telephone 213-824-7357.