P. W. Supermarkets

National Labor Relations Board - Board Decisions

Apr 4, 1984

269 N.L.R.B. 839 (N.L.R.B. 1984)

P. W. SUPERMARKETS
P. W. Supermarkets, Inc. and Alfonso Perez. Case
32-CA-2974
4 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 September 1981 Administrative Law
Judge Maurice M. Miller issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found, and we agree, that the Re-
spondent's assistant manager did not threaten Al-
fonso Perez with discharge if he joined the Union.
The judge also found, however, that when the Re-
spondent discharged Perez and fellow employee
John Scheiderer as a result of its decision to sub-
contract the bakery cleanup work previously per-
formed by Perez and Scheiderer, the Respondent
violated Section 8(a)(3) and (1). For the reasons set
forth below we find that the judge erred.
The facts surrounding the discharge of Perez and
Scheiderer are not in dispute and are fully set forth
by the judge. In essence, the Respondent was in-
volved in two concurrent developments affecting
its bakery cleanup employees, Perez and Schei-
derer, at its store number 5. The first development
commenced in mid-April 1980, when two cleanup
workers at the Respondent's store number 6 filed a
grievance seeking a higher wage rate and inclusion
in the pension and health and welfare plans. From
its inception, the parties recognized that the store
number 6 grievance was applicable to all bakery
cleanup employees, including Perez and Scheiderer
at store number 5.1 It appears that the pension and
health and welfare aspect of the grievance was re-
solved quickly, in that the Respondent commenced
contributions for its bakery cleanup employees, in-
cluding Perez and Scheiderer, for the 25 May
through 21 June 1980 pay period. Regarding the
wage claim, the parties met 18 June 1980 but did
not reach an agreement. On I July 1980 the Re-
spondent offered a compromise wage rate of $4.60
per hour (up from $3.35). The Union confirmed
Although they were beneficiaries of the grievance, it is clear that
Perez and Scheiderer played no role in the initiation or processing of the
grievance.
269 NLRB No. 131
settlement at the $4.60 rate by letter dated 22 July
1980. The new rate commenced 20 July and the
formal agreement was signed 29 July. The Re-
spondent's controller, Sarraco, was the manage-
ment official involved in the grievance process.
During the period outlined above, the Respond-
ent was also exploring the feasibility of subcon-
tracting its bakery cleanup work at store number 5.
It appears that the concept of subcontracting arose
in May 1980 when Vitola, a baker at store number
5, made the suggestion to Store Manager Blum.
Blum relayed the suggestion to Sarraco who di-
rected Blum to solicit bids. Blum solicited a bid
from Top Notch, a cleaning firm, in early June
1980. Blum then went on a 2-week vacation and,
on his return, solicited a bid from Shine Company
(Shine), the firm that already did general cleanup
work at store number 5. In early July, Shine sub-
mitted a bid of $460 per month which was commu-
nicated to Sarraco.
Upon receipt of the Shine bid, Sarraco engaged
in a relative cost analysis between subcontracting
and retention of Perez and Scheiderer. Sarraco did
not recall and the judge did not find whether Sar-
raco utilized the $3.35 per hour plus fringes figure
or the compromise rate of $4.60 per hour plus
fringes in calculating the cost of retaining Perez
and Scheiderer. In any event, the judge found the
cost savings of subcontracting over retention of the
two employees were substantial. 2
Sometime prior to 15 July 1980 Sarraco instruct-
ed Blum to accept the Shine bid effective I August
1980 and discharge Perez and Scheiderer. On 31
July Blum informed Perez and Scheiderer that
their services were no longer needed because a
janitorial service had been contracted to take over
their work. They were told that they could work
through 2 August 1980, but each decided to leave
31 July.
Against this background of coinciding events,
the judge concluded that the decisive factor in the
decision to subcontract the bakery cleanup work at
store number 5, and thereby terminate Perez and
Scheiderer, was the substantial cost increase engen-
dered by the grievance settlement. From this fact
he posited that the Respondent's discharge of Perez
and Scheiderer unlawfully denied employees the
economic gains achieved through the protected ac-
tions of collective bargaining, i.e., the grievance
process. According to the judge, the Respondent's
reliance on such economic factors in deciding to
discharge two employees was inherently destruc-
tive of important employee Section 7 rights and,
I The judge found that the savings ranged from $8,000 to S10,000 per
year,
839
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, violated Section 8(a)(3) even though
there was no evidence of union animus. We cannot
agree.
We believe a proper analysis begins with the un-
disputed evidence that as a result of the Respond-
ent's dissatisfaction with the quality of cleanup
work it was receiving at store number 5, it began
to explore alternative arrangements, including sub-
contracting of the cleanup work. As one might
expect a reasonably prudent businessman to do,
Sarraco engaged in a relative cost analysis between
subcontracting and the retention of two employees.
In calculating the cost of retaining Perez and
Scheiderer, Sarraco, of course, utilized the then
current employment costs which included, at least,
the lion's share of the increased benefits achieved
in the grievance process. 3 It is undisputed that the
analysis demonstrated the subcontracting option to
be substantially more attractive from a cost stand-
point. Accordingly, on the basis of all of the infor-
mation available, and relying primarily on the sub-
stantial cost savings, Sarraco decided to subcon-
tract the bakery cleanup work at store number 5
and discharge Perez and Scheiderer.
Against this background, we note that the record
is barren of evidence indicating any union animus
or overt intent to discriminate against employees
on the basis of their union activities. Thus, the
judge found no merit in the allegation that the Re-
spondent threatened Perez with discharge if he
joined the Union. In addition, there is no indication
in the record that the Respondent's longstanding
relationship with the Union has been anything less
than harmonious. Indeed, the grievance involved
here was settled amicably on terms favorable to the
Union. Finally, in this regard, apart from the alle-
gation of unlawful discharge sub judice, there is no
allegation or evidence of unlawful conduct or hos-
tility toward the Union in the Respondent's deal-
ings with Perez, Scheiderer, or the Union,4 includ-
ing the employees who had initiated the grievance.
Accordingly, at least on its face, the Respond-
ent's discharge of Perez and Scheiderer appears to
have been predicated on traditional and legitimate
business grounds, i.e., the achievement of substan-
tial cost saving through the subcontracting of work
that was being performed in an unsatisfactory fash-
ion. The question becomes, therefore, whether the
Respondent's action was so inherently destructive
3 We agree with the judge that it is not necessary or decisive to deter-
mine whether Sarraco calculated costs using the old wage rate or the
new wage rate, inasmuch as he plainly factored in the increased health
and welfare and pension costs which represent the bulk of the increased
costs.
4 Significantly, there is no allegation that the Respondent's decision to
subcontract violated Sec. 8(a)(5). The Union registered no objection to
the discharges and, in fact, conceded the Respondent's right to subcon-
tract the bakery cleanup work at its other locations as well.
of employee Section 7 rights that the Respondent's
unlawful motive and intent can be presumed in the
absence of any evidence of unlawful intent. NLRB
v. Great Dane Trailers, 388 U.S. 26 (1967).5 The
judge answered this question in the affirmative. We
disagree inasmuch as his analysis suffers several
fundamental flaws.
Initially, we note that the Board has often found
discharges pursuant to an employer's decision to
subcontract work not to be violative of Section
8(a)(3) when the employer has demonstrated that
its decision was predicated on economic or other
legitimate business considerations. s Thus, it would
not appear that an employer's decision to subcon-
tract work is itself an act inherently destructive of
important employee rights. 7
More fundamentally, however, the judge's analy-
sis overlooks the sine qua non for an 8(a)(3) viola-
tion, namely, a causal connection between an em-
ployee's protected union activities and an action by
the employer detrimental to the employee's tenure
or terms and conditions of employment.8 In cases
such as Great Dane, the connection was obvious-
eligible employees who had not engaged in a strike
received vacation benefits while eligible employees
who struck did not. Thus, the employees' act of en-
gaging in union activities caused the detriment to
their terms and conditions of employment. In other
cases, this causal connection may be less obvious,
but it is no less required in properly finding a viola-
tion of Section 8(a)(3).
In the instant case, there is absent the necessary
causal relationship between union activities and an
action detrimental to employee tenure. Thus, it was
not the grievance that caused Perez and Scheiderer
to be discharged. Instead, the discharges were
caused by the Respondent's discovery that it could
have the work in question performed at a substan-
tially lower cost and an increased level of effec-
tiveness. To be sure, the grievance affected the out-
come of the Respondent's cost analysis, but to at-
5 Application of the Great Dane principle does not, of course, eliminate
the requirement of finding unlawful motive or intent in determining that
Sec. 8(a)(3) is violated. Great Dane simply states that certain employer
actions are so manifestly discriminatory against employees engaging in
union activities that the unlawful motive will be presumed.
I Liberty Homes, 257 NLRB 1411 (1981); W G. Best Homes Corp., 253
NLRB 912, 921 (1980); Park Furniture Mfg. Co., 199 NLRB 912 (1972);
Fibreboard Corp., 130 NLRB 1558 (1961), affd. 379 U.S. 203 (1964).
6 See Liberty Homes, 257 NLRB 1411 (1981), where an administrative
law judge applied Great Dane in finding that the employer's discharge of
employees pursuant to a decision to subcontract was inherently destruc-
tive of employee rights and violative of Sec. 8(aX3). In reversing the ad-
ministrative law judge, the Board stated: "The Administrative Law
Judge's rationale is ambiguous given his discussion of, and apparent reli-
ance on [Great Dane]. We do not consider that decision germane." 257
NLRB 1141 fn. 2.
s See American Shipbuilding Co. v. NLRB, 380 U.S. 300 (1965); Wright
Line, 251 NLRB 1083 (1980).
840
P. W. SUPERMARKETS
tempt to connect causally the grievance with the
discharges is to mistake a link in the causal chain
for the cause itself.
In addition, although employees often benefit
from the collective-bargaining process, they can
still be subject to detrimental action taken by the
employer in achieving legitimate business objec-
tives. As the Supreme Court has stated:
[We] have consistently construed . section
[8(a)(3)] to leave unscathed a wide range of
employer actions taken to serve legitimate
business interests in some significant fashion,
even though the act committed may tend to
discourage union membership.
American Shipbuilding Co. v. NLRB, 380 U.S. 300,
311 (1965). Indeed, anytime a union secures eco-
nomic gains through the collective-bargaining
process, it runs the calculated risk that the in-
creased costs may eventually compel the employer
to adopt cost-motivated changes such as layoffs or
subcontracting. 9
These concepts are equally applicable in examin-
ing grievances inasmuch as the grievance process is
simply an aspect of collective bargaining. Thus, in
Monarch Machine Tool Co., 227 NLRB 1880 (1977),
the union processed and won a grievance over the
startup time for a third shift at the employer's
plant. The employer told the union that insistence
on the awarded startup time would render oper-
ation of a third shift "economically unfeasible" and
would result in elimination of the shift. The union
adhered to its arbitration position and even subject-
ed the issue to a membership vote with the em-
ployees voting to insist on the arbitration awarded
starting time. The employer carried out its promise,
shut down the third shift, and laid off employees.
The administrative law judge dismissed the allega-
tion that the employer's action violated Section
8(a)(3), holding that the elimination of the shift re-
sulted from economic considerations and not from
a desire to retaliate against employees for their pro-
tected grievance activities. A unanimous panel of
the Board affirmed the administrative law judge.
Similarly, in McLoughlin Mfg. Corp., 164 NLRB
140 (1967), the employer closed its plant in large
part because of the onerous provisions contained in
the collective-bargaining agreement. In dismissing
the alleged 8(a)(3) violation, the Board held (164
NLRB at 141):
[W]e cannot conclude that because a condition
of employment imposed by a collective-bar-
9 "[T]here is nothing in the Act which gives employees the right to
insist on their contract demands, free from the sort of economic disad-
vantage which frequently attends bargaining disputes" American Ship-
building Co. v. NLRB, 380 U.S. at 313.
gaining agreement was the economic "straw"
which "tipped the scale" in the decision to
close, Respondents' motive for closing was to
defeat employees' statutory bargaining rights
and, therefore, was unlawful. [Footnote omit-
ted.]
This same principle is fully applicable here. 0
In conclusion, we find that the Respondent dis-
charged Perez and Scheiderer for legitimate busi-
ness reasons. Accordingly, we shall dismiss the
complaint in its entirety.
ORDER
The complaint is dismissed.
'o See also Dove Flocking d Screening Co., 145 NLRB 682, 694 (1963);
Lori-Ann of Miami, 137 NLRB 1099 (1962).
Indeed, if a contrary rule applied to an employer's action in such cir-
cumstances, then any time an employer subject to a collective-bargaining
agreement discharged an employee for cost reasons alone, it would vio-
late our Act since the employer would of necessity be relying on costs
engendered by the collective-bargaining process.
Many of the cases cited in this opinion also discuss whether particular
employer decisions were subject to a duty to bargain. We do not here
consider that issue. See fn. 4, supra
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge.
Upon a charge filed on August 14, 1980, and duly
served, the General Counsel of the National Labor Rela-
tions Board caused a complaint and notice of hearing
dated September 26, 1980, to be issued and served on P.
W. Supermarkets, Inc., designated as Respondent. There-
in, Respondent was charged with the commission of
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the National Labor Relations Act. 61
Stat. 136, 73 Stat. 519, 88 Stat. 395. Respondent's answer,
duly filed, conceded certain factual allegations within the
General Counsel's complaint, but denied the commission
of unfair labor practices.
Pursuant to notice, a hearing with respect to this
matter was conducted before me on March 19, 1981, in
San Jose, California. The General Counsel and Respond-
ent were represented by counsel. Each party was afford-
ed a full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence with re-
spect to pertinent matters. Since the hearing's close, the
General Counsel's representative and Respondent's coun-
sel have filed briefs; these briefs have been duly consid-
ered.
On the entire testimonial record,' documentary evi-
dence received, and my observation of the witnesses, I
make the following
Certain corrections of the record transcript, required to render it
more accurate and comprehensible, will be found listed within Appendix
B attached [omitted from publication].
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Respondent raises no question, herein, within respect
to the General Counsel's present jurisdictional claims.
Upon the complaint's relevant factual declarations-
more specifically, those set forth in detail within the
second paragraph thereof-which Respondent's counsel
concedes to be correct, and upon which I rely, I con-
clude that Respondent herein was, throughout the period
with which this case is concerned, and remains, an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and in business activities affecting
commerce, within the meaning of Section 2(6) and (7) of
the statute. Further, with due regard for presently appli-
cable jurisdictional standards, I find assertion of the
Board's jurisdiction in this case warranted and necessary
to effectuate statutory objectives.
II1. THE LABOR ORGANIZATION CONCERNED
Bakery, Confectionery and Tobacco Workers Interna-
tional Union Local Union No. 24, AFL-CIO-CLC, des-
ignated as the Bakery Workers or Local No. 24 within
this decision, is a labor organization, within the meaning
of Section 2(5) of the Act, which admits certain of Re-
spondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES CHARGED
A. Issues
This case presents two relatively simple, straightfor-
ward questions for resolution. The General Counsel con-
tends that-while Bakery Workers Union representatives
were pressing a grievance bottomed upon Respondent's
purported failure to comply with contractual commit-
ments regarding the compensation and fringe benefits
due certain part-time bakery cleanup workers-the firm
committed unfair labor practices.
First: The General Counsel charges that Respondent's
assistant manager, at one of the firm's stores, told a
cleanup worker he would be discharged if he became a
Bakery Workers Union member.
Second: The General Counsel charges that Respondent
decided to subcontract bakery cleanup work, within a
single one of several stores with bakery departments, and
that, consequent upon that decision's implementation,
Respondent laid off two bakery cleanup workers.
The General Counsel contends that these workers
were laid off, contrary to the statute, because Respond-
ent's decision to subcontract bakery cleanup work,
which they had been performing, derived-particular-
ly-from the firm's desire to preclude foreseeably higher
costs, which their continued employment would entail,
should the firm be required to comply with a collective-
bargaining contract's provisions regarding their compen-
sation and fringe benefit entitlements. By way of rejoin-
der, Respondent denies: First, that Store No. 5's designat-
ed assistant manager, purportedly responsible for threat-
ening one bakery cleanup worker's discharge, possesses
supervisory status, within the meaning of the statute.
Second, Respondent denies, further, that any threat of
discharge was made. Regarding its subcontracting deci-
sion, and consequently layoffs, Respondent denies that
union considerations, or foreseeably higher costs conse-
quent upon its prospective compliance with contractual
commitments, were motivating factors.
B. Facts
1. Background
a. Respondent's business
Respondent operates six grocery supermarkets within
Santa Clara County, California; three of these have
bakery departments, within which pastries and baked
goods are produced for retail sale. This case, particular-
ly, concerns a situation which developed at Respondent's
No. 5 store, with a Blossom Hill Road, San Jose loca-
tion.
Throughout the period with which this case is con-
cerned, Mario Blum was Respondent's store manager at
Blossom Hill Road; Floyd Wedel functioned as his assist-
ant manager. The store maintained a grocery depart-
ment, bakery department, and meat department; the
latter contained a so-called deli section. These depart-
ments were staffed by "between fifty and seventy-five"
employees. Respondent's bakery department complement
at Blossom Hill Road-during the period with which
this case is concerned-compassed four journeyman
bakers including the bakery foreman or head baker, be-
tween four and six sales clerks, and two part-time bakery
cleanup workers.
b. Respondent's relationship with the Bakery Workers
Union
The firm, currently, recognizes and maintains collec-
tive-bargaining relationships with three labor organiza-
tions. Since approximately 1952-1954, Respondent's gro-
cery clerks, throughout its supermarket chain, have been
represented by a labor organization currently designated
as United Food and Commercial Workers, Local 428,
AFL-CIO; the firm's current "Food Store Contract" ne-
gotiated with that organization runs for 3 years, with a
February 28, 1983 termination date. (Bakery sales clerks,
within Respondent's three stores with bakery depart-
ments, are covered by the contract designated.) Re-
spondent maintains a current collective-bargaining rela-
tionship, also, with Meat Cutters Union, Local 506,
which-likewise-dates back to some 1952-1954 com-
mencement date, never specified for the present record.
The firm's three store bakery departments had been
initiated, and had commenced operations, sometime
during 1968; since their formation, Respondent has main-
tained a collective-bargaining relationship with Bakery,
Confectionery & Tobacco Workers International Union,
Local Union No. 24, AFL-CIO-CLC, covering bakery
department personnel. Throughout the period with
which this case is concerned, their wages, hours, and
conditions of work have been governed by a collective-
bargaining contract bearing the captioned designation
"In-Store Bakery Retail Agreement" which had been ne-
gotiated with Local Union No. 24 particularly-for a 3-
year, 1978-1981, term-by a trade group, Food Employ-
ers Council, Inc., functioning in Respondent's behalf.
842
P. W. SUPERMARKETS
Inter alia, Local No. 24's contract sets minimum
hourly wage rates effective 1978, for bakery foreman,
journeyman bakers, bench hands, helpers, apprentices,
pot washers, and cleanup workers. Provisions were made
for successive hourly rate increases 3 months later, 1
year later, and thereafter at 6-month intervals throughout
the balance of the contract's term. (For potwashers em-
ployed, on the designated contract's effective date, a
$6.406 hourly rate effective July 3, 1978, was established;
potwashers hired after October 9, 1978, however, were
to be paid a $4.605 entry level rate, with periodic in-
creases provided thereafter, as previously noted. Cleanup
workers were to receive $3.15 per hour, effective July 3,
1978; hourly rates for these workers, were contractually
scheduled to rise by defined sums, over two yearly inter-
vals, reaching $3.35 by July 6, 1980.)
Further cost-of-living wage increases "if applicable"
for all employees contractually covered were likewise
promised within the Bakery Workers contract. The
agreement, however, contained a further provision-pos-
sibly inconsistent therewith-that contractually specified
cleanup classification three-step wage rates "shall not be
affected by any other wage increases" during the con-
tract's 3-year term.
Contractual fringe benefits provided within Local No.
24's agreement compassed a multifaceted health and wel-
fare program, for which employees who had worked 83
hours monthly were considered eligible; the program as
it existed on June 30, 1978, required monthly contribu-
tions of $99.07 from Respondent, per eligible employee.
Pension and retirement benefit provisions, for "each em-
ployee working in job classifications" contractually cov-
ered, likewise required company contributions. Through-
out the first 7 months of the calendar year 1980 period,
with which this case is concerned, Respondent was com-
mitted to provide pension plan contribution payments of
$5.84 covering each full working day, or portion thereof,
for which a contractually covered employee had re-
ceived pay, but not more than $29.20 weekly for any
single worker.
c. Respondent's bakery department cleanup workers
Prior to January 1980, Respondent did not consider
bakery department cleanup workers, within its three
stores which maintained such departments, employees
covered by the firm's broadly drafted Bakery Workers
Union contract. The record reveals that such workers
were being paid contractually specified "cleanup
worker" wage rates-concededly, however, no health
and welfare or pension plan contributions were being re-
mitted on their behalf. (According to Paul Sarraco, Re-
spondent's controller, his firm believed that-consistently
with the designated contract's presumptive intent-clean-
up workers, particularly, were to be considered contrac-
tually covered, but only when employed within separate-
ly maintained wholesale bakery establishments; Respond-
ent did not consider such workers, within its relatively
small supermarket bakery "departments" specifically,
beneficial members of Local No. 24's contractually pro-
tected group.)
While a witness, the Union's secretary-treasurer Felisa
Castillo testified that she had not, personally, discovered
Respondent's utilization of bakery cleanup workers until
"probably" sometime late during calendar year 1979; the
record warrants a determination, which I make, that no
compliance with her organization's contractually man-
dated union-security provisions, as far as Respondent's
cleanup workers were concerned, had-prior thereto-
been demanded or required. None had, I find, become
union members.
2. Challenged discharges
a. Respondent's cleanup workers file a grievance
Sometime in January or February 1980, two cleanup
workers at Respondent's Store No. 6, Kirk Mueller and
Ken Turner, became union members. At some time, sub-
sequently, they spoke with union business representative
Thomas Wake; Mueller and Turner reported they had
"been made aware" that they were currently covered
under Local No. 24's collective-bargaining agreement,
and that they should "possibly" be receiving higher pay.
When the business representative, thereupon, investigat-
ed their situation, he discovered that both men were-
inter alia-doing pot washing work, in conjunction with
their regular "cleanup" tasks; further, he discovered that
they were not being listed as covered workers, within
Respondent's monthly health and welfare or pension
plan transmittals, and that required contributions, on
their behalf, were not being made.
Shortly following a consequent telephone conversation
with Controller Sarraco, Wake dispatched a letter, dated
April 16, 1980, wherein Respondent was formally noti-
fied that Mueller and Turner had filed wage claims, bot-
tomed on their performance of "potwasher" duties, while
receiving the contractually specified "cleanup" pay rate,
merely. Sarraco was, further, reminded that-pursuant to
Respondent's Bakery Workers contract departmental em-
ployees who had worked 83 hours, within a given
month, whether or not they held union membership,
were considered qualified for health and welfare cover-
age, and that pension plan contributions were likewise
required, on their behalf for "each [8 hour] day" worked.
Wake requested a commitment from Respondent, regard-
ing the specific "manner of payment" which would be
provided to settle these claims.
b. Problems at Respondent's Blossom Hill Road store
Concurrently with these developments, while Local
No. 24's grievances-with respect to Mueller's and Turn-
er's claims particularly-were pending discussion and
possible resolution, Respondent's Store No. 5 manager,
Mario Blum, had become cognizant-so his credible tes-
timony shows-with regard to certain managerial and
personnel problems within his particular store's bakery
section.
Complainant herein, Alfonso Perez, had been hired for
cleanup work within Store No. 5's bakery on December
3, 1979; during the 7-month period which followed-
prior to his July 31, 1980 termination hereinafter noted-
Perez had worked regular part-time afternoon shifts,
averaging, so I find, some 26-28 compensable hours
weekly. (While a witness, Perez had-initially-reported
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his service time as compassing some 26 hours weekly,
spread over 5-but occasionally 6-days. His further tes-
timony, however, would seemingly suggest that he nor-
mally worked a 2-5 p.m. shift; such a limited part-time
schedule, clearly, would not have provided him with 26
hours of compensable service time within a given calen-
dar week. My determination, herein, with respect to
Perez' weekly part-time services, derives-however-
from Respondent's subsequently filed reports, regarding
his work record, pursuant to which pension plan contri-
butions, required in his behalf, were supposedly calculat-
ed. Those reports reveal that-within a 9-week May-July
period preceding his termination-Perez worked a total
of 252 hours; his services, therefore, averaged some 28
hours weekly.) Within his 7-month period of service,
however, Perez had worked with a succession of cleanup
worker colleagues, some four of five in number. Their
successive periods of service had varied. Respondent's
bakery foreman, Fred Vitola, testified-without contra-
diction-that cleanup workers within his department
rarely provided Respondent with "steady" help; some-
times they might remain for 2 months, and sometimes
they might "last a week" merely.
Between December 1979 and May 1980, during Perez'
period of service, Respondent's Store No. 5 bakery de-
partment had been "written up" several times by Santa
Clara County health inspectors, for sanitation deficien-
cies. Respondent's bakery foreman, Fred Vitola, had
been-so his credible testimony shows-quite concerned.
He had, frequently, provided both Perez and his fellow
cleanup worker-whoever that might currently be-with
specific directives, verbal or written, regarding "certain
things" which would, particularly, have to be cleaned.
(Upon occasion, Vitola had returned to Respondent's
store, following his daily shift's completion, to show
Perez and his colleague precisely what had to be done;
he had-sometimes-performed required cleanup tasks
himself, while demonstrating, for his subordinates, how
he wanted things done.)
Respondent's current problems, with respect to main-
taining cleanliness within Store No. 5's bakery depart-
ment, had, likewise, been a subject of discussion-so the
record shows-between Vitola and Store Manager Blum;
they had, I find, considered the store's situation aggra-
vated by frequent personnel turnover, previously noted,
within this bakery department's two-man cleanup worker
complement. Store Manager Blum had, once, suggested a
possible change in personnel policy-for his bakery fore-
man's consideration-pursuant to which some retired
worker-who might be more dependable than the
"young people" whom Respondent had, up to that point,
been hiring for such work-would be sought.
Conditions within Store No. 5's bakery department
were-likewise-discussed by Respondent's bakers. One,
Carl Johnson, suggested to Respondent's bakery fore-
man, I find, that their firm's management might be well
advised to consider subcontracting required departmental
cleanup work to some janitorial service.
Sometime in May 1980, Foreman Vitola relayed this
suggestion to Store No. 5's manager; Blum, thereupon,
reported the bakery department's problems, and brought
Vitola's suggestion-promptly-to Controller Sarraco's
attention. Saracco, so his credible testimony shows, di-
rected Blum to solicit a bid "quotation" from the janito-
rial service which Respondent's baker, Johnson, had pre-
viously recommended. (While a witness, Respondent's
controller reported that a janitorial firm, Shine Building
Maintenance, was currently providing general cleanup
services within Store No. 5, particularly. Sarraco's testi-
mony, herein, warrants a determination-which I
make-that he was not really seeking "competitive" bids
from other building maintenance services. Rather, he was
planning to solicit a bid quotation from the firm which
Johnson had recommended for "match-up" purposes
merely, so that he could, subsequently, determine wheth-
er a parallel quotation, which Shine Building Mainte-
nance would be solicited to proffer, might be "out of
line" comparatively.)
Sometime thereafter, during the first week of June
1980, Blum solicited a bid from Top Notch Maintenance
Service, pursuant to Sarraco's directive. The janitorial
firm gave Respondent's store manager a price quotation;
Blum was told that Top Notch would service Store No.
5's bakery department and deli section for $800 per
month.
c. Grievance discussion
On June 18, Respondent's controller, together with a
Food Employers Council representative, conferred with
union business representative Wake and secretary-treas-
urer Castillo regarding the proper, contractually speci-
fied wage rate payable for bakery department cleanup
work. Though their conference had, originally, been
scheduled to discuss the wage rate grievances filed spe-
cifically on behalf of Respondent's Store No. 6 cleanup
workers, Mueller and Turner, particularly, the confer-
ees-concededly-discussed the wage rates which, con-
sistently with Respondent's current contract, should be
paid bakery department cleanup workers within Re-
spondent's three stores wherein such personnel were em-
ployed. (The record, herein, suggests, tangentially, that
questions with regard to Respondent's further contrac-
tual obligations-relative to health and welfare contribu-
tions, and pension fund payments, for cleanup workers-
had, otherwise, been resolved. I so find. The firm's June
1980 contribution report, directed to Bakery and Confec-
tionery Union and Industry International Health Benefits
and Pension funds-subsequently prepared on July 9 for
a 4-week, May 25-June 21 period-listed four cleanup
workers, at least, for whom contributions were, then,
being forwarded.)
Local No. 24's representatives claimed they had com-
pleted a job study which had revealed-so they report-
ed-that Respondent's bakery department cleanup per-
sonnel were spending "approximately 50 percent" of
their time washing pots, and 50 percent doing general
cleanup work. Respondent's controller, while a witness
herein, summarized his firm's contradictory response:
Our original position was that the higher rate [con-
tractually fixed for potwashers] was not warranted
. . . because we had [machine] dishwashers in the
store. We really didn't feel that they spent this
844
P. W. SUPERMARKETS
much time washing dishes as the labor study of 50
percent showed, and that we had been doing busi-
ness for 12 years or so without this problem arising
[Interpolations provided to promote clarity].
Sarraco declared his view, in Respondent's behalf, that
the contractually specified hourly rate for cleanup per-
sonnel-which was, by then, scheduled to rise from
$3.25 to $3.35 per hour, within a short time thereafter-
should be considered payable. The parties, however,
could not resolve any differences; their June 18 session,
noted, concluded with no consensus reached.
d. Respondent's decision to subcontract cleanup work
Thereafter, shortly following his return from a 2-week
June 1980 vacation, Store No. 5's manager requested Re-
spondent's regular janitorial service, Shine Building
Maintenance to submit a bid quotation calculated to
cover proposed supplemental charges, for bakery depart-
ment and deli cleanup services, confined to Store No. 5
particularly. Within a short time, presumably during
July's first week, Shine Building Maintenance reported
its readiness to provide additional cleanup services, cov-
ering the store departments noted, for a supplementary
$460 monthly charge. (In the meantime, Respondent's
management had-through a Food Employers Council
representative-suggested to Secretary-Treasurer Cas-
tillo, of the Bakery Workers Union, on or about July 1,
that so-called compromise rate, specifically $4.60 per
hour, might be negotiated for bakery cleanup workers
whose duties might compass potwashing, within Re-
spondent's three stores with bakery departments.) The
janitorial service's bakery department and deli cleanup
bid, noted, was transmitted to Respondent's controller,
presumably by Store No. 5's manager, promptly follow-
ing its receipt.
The record, herein, warrants a determination-which I
make-that Controller Sarraco, shortly thereafter, pre-
pared some comparative calculations, whereby he sought
to determine whether Respondent's possible reliance on
Shine Building Maintenance for cleanup services, par-
ticularly within Store No. 5's bakery department and deli
section, would produce cost savings. His figures, so I
find, persuaded him that Shine's retention for such work
would significantly reduce Respondent's cleanup costs.
(While a witness, Sarraco could not produce documenta-
tion with respect to his calculations. Nevertheless, his
testimony-which I credit in this connection-reveals
that he determined the "average number of hours"
which Store No. 5's regular two-man bakery cleanup
crew could presumably work, weekly, multiplied that
figure by their projected hourly rate of pay, factored in
Respondent's prospective health and welfare and pension
plan contribution costs, for both cleanup workers, and
compared his resultant "total cost" figure, should Re-
spondent's current cleanup program be continued, with
Shine's proposed $460 monthly charge. Respondent's
controller could not recall whether-when making these
calculations-he had multiplied the two-man cleanup
crew's projected weekly hours by their currently speci-
fied contractual $3.35 pay rate, or Respondent's newly
proposed $4.60 rate. Upon the present record, however,
I am satisfied that-regardless of which hourly rate Sar-
raco may have employed for computation purposes,
when calculating Respondent's prospective costs should
its Store No. 5 cleanup crew be retained-his computa-
tions produced projected monthly and yearly cost figures
significantly higher than Shine Building Maintenance's
proposed charges. The controller claimed, while a wit-
ness, that-when compared with Respondent's prospec-
tive costs should Store No. 5's cleanup workers be paid
$4.60 hourly-the firm's possible reliance on Shine's
services, alternatively, would produce "approximately"
$10,000 in cost savings, yearly; he testified, further,
that-with prospective direct costs figured on the basis
of Respondent's current $3.35 hourly rate, the firm's pos-
sible reliance on Shine's services would produce approxi-
mately $8000 in yearly savings. My personal calcula-
tions-based on Sarraco's basic "average hours worked"
and "hourly rate" data, coupled with relevant contrac-
tual provisions which define Respondent's fringe benefit
contribution costs, suggest that his claimed cost "sav-
ings" represent reasonable projections.)
Sometime shortly before his July 15 departure for a
European vacation, Respondent's controller decided to
subcontract Store No. 5's bakery department and deli
cleanup work to Shine's janitorial service. He notified
the service contractor regarding his decision, directed
that firm not commence work within the designated de-
partments on August 1, and communicated his decision
to Store No. 5's manager. Blum was requested further to
notify his store's bakery cleanup workers that their serv-
ices would no longer be required.
e. Respondent's cleanup workers are solicited to
become union members
Sometime in July 1980, never specifically designated
for the record, Bakery Foreman Vitola received a tele-
phone call-so I find-from a Bakery Workers Union
representative. He was requested to ask Store No. 5's
cleanup workers whether they would "consider" becom-
ing union members. Vitola's testimony-which I credit in
this connection-warrants a determination that he did so.
(While a witness, Perez conceded that he had spoken
with Respondent's bakers and bakery girls, inter alia, re-
garding the Union; he proffered no testimony, however,
with respect to the substance of these conversations, or
precisely when they had taken place. He could not
"recall" such conversations; his testimony reflects no
recollection regarding Vitola's communication, particu-
larly.)
Shortly thereafter, Respondent's baker/decorator,
James "Ted" Mayall, brought two envelopes containing
various union membership application forms to Store No.
5; the baker requested Respondent's assistant manager,
Floyd Wedel, to make arrangements for their subsequent
delivery to Perez and John Scheiderer, Respondent's
second bakery cleanup worker, since they would be re-
porting for duty following the conclusion of Mayall's
shift.
Later that afternoon, Respondent's assistant manager
requested a bakery sales clerk, Gayle Jacobson, to notify
Perez and Scheiderer that Wedel wished to see them in
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Store Manager Blum's office. They reported, I find, as
requested. (While a witness, Perez could not recall
Scheiderer's presence in Blum's office, during his conver-
sation with Assistant Manager Wedel, which ensued. In
this regard, Wedel proffered recollections, within my
view, merit credence. For various reasons-which will
be detailed, subsequently, within this decision-I have,
herein, found Perez' testimonial recitals, frequently, less
than completely reliable. Specifically, however, with
regard to whatever questions the record may raise rela-
tive to Scheiderer's presence, I note-particularly-that
Respondent's assistant manager, who had been directly
requested to deliver two union envelopes, would hardly
have been likely to entrust such a missive, prepared for
Scheiderer, to complainant herein for subsequent trans-
mittal; the suggestion that he did so, necessarily implicit
within Perez' testimony, runs counter to logical or rea-
sonable probabilities, within my view.)
Complainant's proffered recollections, with particular
reference to his purported conversation with Respond-
ent's assistant manager, on this occasion, merit verbatim
recapitulation. As recorded, in relevant part, his testimo-
ny in direct examination reads as follows:
Q. To the best of your recollection, what did
Floyd say and what did you say?
A. He gave me two envelopes and said if I joined
I was fired....
Q. Okay, do you recall anything else that was
stated in your conversation with Floyd?
A. Yes, that it was not Floyd's fault, it was Joe's
[Note: presumably Joey Franco [sic], Respondent's
management representative, whose precise status
was never clarified within the the present record]
. . .that is all I can recall.
When subsequently cross-examined, with respect to what
Wedel may have said, Perez could recall little more. His
further testimony suggests some revised recollections,
but provides merely a few circumstantial details.
Q. And what did he [Floyd] say to you?
A. General talk like Hi, how are you? And then
about the Union talk [Note: talk about the Union?]
and he said if I joined I would be fired.
Q. You say about the Union talk, what discussion
was there either by you or Mr. Wedel . . . about
the Union?
A. I don't recall.
Q. The only thing you recall in that entire con-
versation is Mr. Wedel, or Floyd, allegedly telling
you that if you joined you would be fired.
A. Yes. That stood out the most because I told
him why give it to me, and he said it is your mail, it
is addressed to you .... He said if he kept it-in
other words, the Union sent it to me, and John.
And that is what he said. He said it is your mail. It
is yours, you have to take it ....
Q. Did you talk to anyone about it?
A. Yes . . . the bakery girls downstairs . . . Mrs.
Starrs and Gayle ....
Q. And you told those two bakery sales girls that
Floyd had just threatened to fire you if you joined
the Union?
A. Yes ....
Q. All right, now when Floyd allegedly told you
if you join you are fired, what did you said to him?
A. I told him that why give me the envelope if
you don't want me to join.
Q. And what was Floyd's response to that?
A. It is your mail. Or it is your envelope.
Q. And was that the end of the conversation?
A. Yeah.
Summoned as Respondent's witness, Wedel conceded
that Store No. 5's baker/decorator, Mayall, had request-
ed him to give envelopes containing union applications
to Perez and Scheiderer, telling him that the Union
wanted "these fellows" to become members. When they
came to Store No. 5's office, Wedel recalled, he had
given them each their separate envelopes, and had told
them that the Bakery Workers Union wanted them to
join; Respondent's assistant manager thought he had told
Perez, further, that it would be "up to him" should be
wish to become a union member. Complainant, so Wedel
testified, had then queried him with respect to what
would happen, should he and Scheiderer join. Respond-
ent's assistant manager recalled him reply that "as far as
[he was] concerned" or "as far as [he] knew" nothing
would happen. He denied, categorically, that Perez and
Scheiderer had been told that, should they join the
Union, they would be terminated.
Wedel's denial, with particular reference to Perez'
claim that he had been threatened with possible dis-
charge, raises a testimonial conflict-of-course which
will be resolved, with due regard for the record consid-
ered in totality, hereinafter.
f. Complainant's reaction
While a witness, Perez claimed that Wedel's purported
threat of discharge had bothered him, and had left him
"unsure" with regard to whether he should seek Bakery
Workers Union membership. His testimony, previously
noted herein, reflects his purported recollection that he
had reported the assistant manager's putative threat to
Mrs. Starrs and Gayle, Respondent's bakery sales clerk.
(Nevertheless, Perez recalled, he had promptly undertak-
en to compute "what he would be getting" should his
coverage, pursuant to the Union's contract, be con-
firmed. In doing so, he had multiplied his presumptively
regular part-time work schedule, compassing 24 hours
weekly, by a projected $6 hourly rate; making due al-
lowance for a $20 estimated weekly tax deduction, he
had concluded that he would be receiving $124 weekly,
or $496 within a 4-week period. According to Perez, his
"estimate" that he might be paid $6 per hour, maximally,
had been based on alleged "friend's" report; complainant
did not, however, name his purported informant.)
Perez did not complete or submit the union member-
ship documents whih Wedel had handed to him. He de-
clared, while a witness, that he had been "told" not to
do so. However, some weeks later-shortly before his
846
P. W. SUPERMARKETS
July 31 termination, by Respondent's store manager,
noted hereinafter-Complainant received a second set of
membership application forms, which had been mailed to
him. These, so Perez' testimony shows, he completed
and returned; he did not, however, forward any dues
payment.
g. The grievance resolution
On July 22, Food Employers Council dispatched a
letter to secretary-treasurer Castillo of the Bakery Work-
ers Union, on Respondent's behalf, purportedly to con-
firm a settlement previously reached between the parties
with regard to their dispute concerning the wage claims
presented on behalf of Respondent's cleanup personnel.
The firm had, so the letter reported, agreed-inter alia-
that bakery cleanup workers would be paid $4.60 per
hour, commencing with its June 29-July 5 payroll
period. Castillo's signed concurrence with the letter writ-
er's summary of their purported "agreement" was solicit-
ed.
On July 29, Castillo sent Food Employers Council a
fully executed "copy of the agreement" which had been
reached regarding the wage claims of Respondent's
bakery cleanup personnel.
Respondent's commitment to pay such cleanup work-
ers $4.60 per hour was implemented, however, with the
commencement of the firm's regular July 20-July 26 pay-
roll period, with respect to which paychecks were then
being prepared.
h. Discharges
Consistently with Controller Sarraco's prior directive,
Store Manager Blum notified Perez and Scheiderer, on
Respondent's next regular payday, July 31, that their
services would no longer be required, since they were
being replaced by a janitorial service contractor.
Summoned as Respondent's witness, Blum testified
that-shortly after 1:30, when Perez and Scheiderer re-
ported for their afternoon's work-he notified them that
Respondent would no longer require their services. The
store manager declared that-since Respondent's con-
tract with United Food and Commerical Workers re-
quired 3 days' prior notice when workers were being ter-
minated-he had given Perez and Scheiderer equivalent
notice. They were told, specifically, that they could con-
tinue working through their Saturday, August 2, shift.
(While a witness, previously, Perez had testified that he
was given a July 31 notice, with regard to his termina-
tion, at 4:30, shortly before his part-time shift's scheduled
conclusion. Further, he declared that Blum had given
him 2-week's rather than 3 days' notice. Herein, the store
manager's testimonial recitals, however, have been cred-
ited. Blum had been told, by Controller Sarraco, that
Shine Building Maintenance's janitorial services would
be extended to Store No. 5's bakery department and deli
section, starting with August's first full week; mindful of
this, the store manager would hardly have been likely to
give Perez and Scheiderer July 31 notices that they
faced termination 2 weeks later. Nothing within the
Bakery Workers Union contract required such forehand-
ed notices when workers were to be laid off or dis-
missed; Blum's determination to give Respondent's
bakery cleanup personnel the 3-day notice required for
grocery clerk terminations consistently with sec. 3.2 of
his firm's Food and Commercial Workers contract-
therefore-reflected a logical, and reasonably probable,
decision. Having so decided, Respondent's store manager
would have, most likely, given the workers concerned
notice directly when their Thursday, July 31 shift began,
so that they could work three regular part-time shifts
before their Saturday August 2 departure. I have so
found.)
When queried with regard to Brum's proffered reason
for their termination, Perez recalled-merely-that Re-
spondent's store manager had said their services were no
longer required, because a janitorial service was being
retained to perform their work. Brum testified that they
were told Respondent was "disappointed" with their
work, and would procure a janitorial service replace-
ment. With respect to this portion of their brief conver-
sation, I credit Perez' witness-chair recapitulation; if
Store No. 5's manager, incidentally, mentioned Respond-
ent's purported dissatisfaction with Perez' and Schei-
derer's work, I am satisfied that his comment, en passant,
was neither proffered, nor recognized by Perez, particu-
larly, as Respondent's prime motivational factor for their
termination.
Perez and Scheiderer, I find, did not finish their July
31 shift. Sometime between 2 and 2:30, they reported to
Store No. 5's checkstand, where their paychecks for the
previous calendar week were, presumably, being held.
(As previously noted, Thursday, July 31, was Respond-
ent's regular payday; checks for the firm's store employ-
ees, covering their services for a July 20-July 26 pay
period, had-routinely-been prepared for distribution.)
Brum, having observed them standing at Respondent's
checkstand, sent a head clerk, Harry Propp, to determine
their purpose. Perez and Scheiderer declared they were
"leaving" forthwith. Apprised of this, Blum provided
both of them, I find, with Respondent's regular "Exit
Interview" forms. Perez returned his form partially com-
pleted; the record, with respect to Scheiderer's reaction.
reflects Perez' recollection-merely-that his fellow
worker said his heart would not be in working, and that
he did not want to "hand" around. (Proffered for the
record, Perez' form reveals that he named Respondent's
"bakery" as his department, that he checked "Resigna-
tion" to designate his type of termination; that he printed
the word "resigned" when requested to note the reason
for his separation; that he dated the document, and that
he supplied his name written in script.)
Upon returning their "signed" forms, both cleanup
workers received their regular paychecks. The record
shows that the firm's July 20-July 26 payroll period was
the first period for which Perez was compensated at Re-
spondent's newly agreed-upon $4.60 hourly rate, for
bakery cleanup personnel. Both Perez and Scheiderer
then left Respondent's premises.
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Subsequent developments
a. Perez files a charge
Subsequent to the departure of Store No. 5's bakery
cleanup workers, Shine Building Maintenance provided
Respondent with bakery and deli cleanup services. The
record, however, warrants a determination-which I
make-that Shine was required, merely, to clean floors,
within the departments designated. Respondent's bakers
were, concurrently, required to take responsibility for
washing their pots, pans, and related equipment, and for
cleaning their working tables. The record, herein, reveals
that such tasks when performed by Store No. 5's several
bakers required periods of service equivalent to one
baker's time, for I hour daily. I so find.
On Saturday, August 9, Perez signed the charge
which-ultimately-gave rise to this proceeding; he de-
clared, therein, that he had been terminated because he
"chose to join" the Bakery Workers Union. His charge,
however, was not filed until Thursday, August 14, 5
days later.
Likewise, on the date last noted, secretary-treasurer
Castillo wrote Respondent's controller. She reported her
"understanding" that bakery cleanup work within Re-
spondent's Store No. 5 had recently been subcontracted;
noted that such work was "covered" pursuant to Re-
spondent's collectively bargained contract with the
Bakery Workers Union; and requested a statement re-
garding the "basis" for Respondent's decision to subcon-
tract the store's cleanup work. On Monday, August 18,
when Castillo's letter was received, Sarraco telephoned
her; subsequently, so the record shows, he returned her
letter with handwritten notations, summarizing the
manner in which Store No. 5's bakery cleanup work had
been divided, between Respondent's bakers and the
firm's regular janitorial service.
Respondent received no notice, with respect to Perez'
charge herein, until Thursday, August 21. Responding to
the Regional Director's request, therein, for a statement
of Respondent's position regarding the charge, Sarraco
subsequently dispatched an August 27 letter. Therein,
Respondent's controller reported, in relevant part, that:
Since 1970, we have employed clean up person-
nel in our bakery departments .... These posi-
tions were paid in accordance with union contracts
under the clean up rates. During 1980, the union in-
formed us that since some of the time was involved
in the washing of pots and pans that a higher rate of
pay was necessary .... [A] rate agreeable to both
of us and the union was placed into effect during
the latter part of July 1980.
Due to the increased wages incurred for clean up
personnel, the company decided to try using janitors to
clean the floors, and journeyman bakers to wash uten-
sil$ These new procedures are on a trial period and
if successful will be used at all locations.
Mr. Perez was given a three day notice of layoff
on July 31, 1980, upon receiving the notice he
walked off the job ... . [In] no way was his union
status a factor in the operational changes. [Emphasis
added. ]
Sarraco's letter contained no specific references to Schei-
derer's concurrent receipt of 3 days' notice regarding his
termination. Nor did it mention his July 31 resignation,
prompted thereby.
The record warrants a determination-which I make,
based on Sarraco's testimony proffered and received
without objection-that Scheiderer was reemployed,
sometime during the month of August, shortly following
his termination. He worked for some "short period of
time" performing meat department cleanup work within
one of Respondent's markets; his services during this
period were covered, so Sarraco's credible testimony
shows, under Respondent's collective-bargaining con-
tract with Meatcutters, Local 506. I so find.
b. Respondent's plans further subcontracts
As previously noted, Respondent's controller had noti-
fied the Bakery Workers Union, when responding to
Castillo's August 14 inquiry, that Respondent had sub-
contracted the "cleaning of floors" within Store No. 5's
bakery department, to a janitorial service, while "pan
washing" had been reassigned to that store's bakers.
Herein, both Sarraco and Castillo have testified that no
grievance was ever filed with reference to Respondent's
subcontracting decision, or that decision's subsequent im-
plementation, within Store No. 5's bakery department.
Within a letter dated October 1, Respondent's control-
ler subsequently notified Castillo that Respondent was
"contemplating" the like removal of cleanup personnel
within its two remaining stores containing bakery depart-
ments. Sarraco reported that:
The work presently being performed by these
people will be done by journeymen, with the excep-
tion of cleaning the floor areas. The floor will be
done by a professional janitorial service which cur-
rently does all floor areas in our markets nightly.
Castillo was invited to communicate with Respondent,
should the Bakery Workers Union desire to discuss the
impact of this proposed change. Some 12 days after her
receipt of Sarraco's letter, Castillo requested a meeting,
during which the impact of Respondent's projected
changes, together with their "appropriateness" under the
Bakery Workers Union contract, could be discussed.
c. The Union's reaction
Subsequently, pursuant to Castillo's request, the Food
Employers Council, functioning in Respondent's behalf,
arranged a meeting which Controller Sarraco attended;
the Union was represented by one David York, since
Castillo, who had been summoned for jury duty, could
not be present. With respect to their meeting's discus-
sion, Sarraco testified that:
He [York] did inform us that we did have the right
to make this decision. His main concern was finding
work for these people if we did lay them off ....
We gave him our guarantee that if we found suita-
ble-if we had suitable cleanup personnel that
848
P. W. SUPERMARKETS
would do a good job in other departments in the
store, we would move them over.
When questioned with regard to York's report, following
the meeting in question, Castillo conceded that he had
reported discussions with regard to Respondent's right to
subcontract cleanup work, and possible alternative em-
ployment for the firm's displaced cleanup personnel. She
purportedly recalled, however, that he had, further, re-
ported a consensus-merely-that a future meeting con-
cerning these subjects "might" be held.
With matters in this posture, I credit Sarraco's testimo-
ny regarding the meeting's outcome; while a witness,
Castillo conceded that no further meetings, with respect
to either of the matters noted, was thereafter requested.
C. Discussion and Conclusions
1. Respondent's purported warning that Perez faced
discharge
Resting his case on Perez' concededly uncorroborated
testimony, the General Counsel seeks a determination,
herein, that-when, sometime in July 1980, Store No. 5
Assistant Manager Floyd Wedel handed the bakery
cleanup worker two envelopes containing union member-
ship application forms-he commented, gratuitously, that
should Perez join the Bakery Workers Union, he would
be discharged.
As previously noted, however, Wedel's testimony re-
flects his categorical denial, inter alia, that Perez and
Scheiderer were threatened with dismissal. Confronted
with divergent recollections proffered by Respondent's
assistant manager, the General Counsel's representative
contends-shortly and simply-that Perez' testimony
was more detailed, presented a more coherent picture,
and should therefore be considered more trustworthy
than Wedel's version, with respect to their conversation.
I have not been persuaded.
While a witness, Perez struck me as basically straight-
forward but somewhat ingenuous; his proffered recollec-
tion reflect significant elisions, within my view. Though
satisfied that his witness-chair recitals compass no delib-
erate prevarication or conscious contrivances, I found his
testimonial presentation overly simplified, lacking in cir-
cumstantial detail save when he was prodded by ques-
tioners, and generally suggestive of vague or somewhat
confused memories, significantly colored by post hoc ra-
tionalizations.
Previously, within this decision, Perez' testimony that
Scheiderer had not been present, when Wedel handed
over Mayall's two union envelopes and purportedly vol-
unteered his discharge threat, has been noted; that testi-
mony, which Wedel subsequently contradicted, has been
herein rejected as contrary to reasonably probabilities.
(Though the General Counsel never claimed, for the
record, that Scheiderer was unavailable, he was never
summoned to corroborate his fellow cleanup worker's
testimony.)
I note further that Perez purportedly recalled Head
Clerk Harry Propp's presence in Store Manager Blum's
office, rather than Scheiderer, when Wedel's comment
was allegedly made; Wedel and Propp both contradicted
his proffered recollection. Their clear-cut, mutually cor-
roborative testimony, within my view, merits credence.
The cleanup worker's testimony that he subsequently
reported Wedel's purported threat to Mrs. Starrs, and
Gayle Jacobson, Respondent's bakery department clerks,
likewise stands rebutted. Jacobson's testimony, within my
view, reflected simple candor; her witness-chair declara-
tion that Perez proffered no such report, considered in
context, carried the ring of truth.
As previously noted herein Perez testified that, when
notified of his termination between 4:30 and 5 o'clock on
July 31, he was given 2 weeks' notice. Within this deci-
sion, however, Blum's testimony-that both cleanup
workers within his store's bakery department were given
3 days' notice of termination, merely, when their July 31
shifts began-has been credited; with due regard for Re-
spondent's concededly regular, contractually sanctioned,
practice in connection with grocery clerk terminations,
and reasonable probabilities, that determination, within
my view, merits reaffirmation.
While a witness, Perez conceded that-directly fol-
lowing his purportedly unsettling conversation with Re-
spondent's assistant manager-he had, nevertheless, pro-
ceeded to compute what his prospective earnings might
compass, should Respondent subsequently concede his
entitlement to some higher contractually mandated
hourly rate. He testified, however, that he had based his
calculations on a prospective $4.60 hourly rate which-
so far as the record shows-had not, yet, been conclu-
sively negotiated for cleanup workers; the record re-
veals, rather, that-contrary to his purported memory-
he had computed his prospective earnings based on a
presumed, hearsay derived, $6 hourly rate.
With respect to various collateral matters dealt with
throughout his testimony, Perez' memory stands revealed
as relatively poor. He recalled a comment by Respond-
ent's baker/decorator Mayall that bakery cleanup work-
ers at the firm's Store No. I had joined the Bakery
Workers Union; Respondent maintains no bakery depart-
ment, however, within the store designated. The cleanup
worker, further, purportedly recalled his notation on Re-
spondent's proffered "Exit Interview" form that the
firm's management had been bossy and pushy; the
form-when proffered for the present record-contained
no such comments. Perez testified that he had not noted
his July 31 resignation on Respondent's form; that docu-
ment, however, reflects his checkmarked concession,
therein, that his cessation of work constituted a resigna-
tion, plus a further, misspelled, reference thereto. Inter
alia, the cleanup worker purportedly recalled a bomb
scare within Respondent's supermarket, during which
Wedel had-so he testified-directed the store's tempo-
rary evacuation; Blum testified, credibly, that the bomb
scare-rather-had directly concerned a Payless Drug
Store next door.
With respect to several matters dealt with in Perez'
testimony, his witness-chair proffers differed from his
recollections recorded, previously, within a signed Board
statement; when taxed with these differences, the cleanup
worker contended that his prior statements-though pre-
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumably proffered when his memory was fresher-had
been mistaken.
Within his signed statement, noted, Perez claimed he
had never been told, by a management spokesman-prior
to July 31 specifically-that a janitorial service would be
retained to provide Respondent's bakery department
cleanup services. While a witness, the cleanup worker
conceded that Bakery Foreman Vitola had, however,
mentioned that possibility, before his [Perez] July con-
versation with Respondent's assistant manager. Perez
contended, nevertheless, that his unqualified prior state-
ment had not-willfully or consciously-been erroner-
ous, since he had not, then, considered Vitola a manage-
ment representative.
Upon this record, I find that cleanup worker's perti-
nent testimony with respect to Wedel's purported
threat-despite his patent sincerity and presumptive
candor-lacking in trustworthiness, and less than persua-
sive. When compared with Wedel's contrary recollec-
tions, plus Respondent's collaterally corroborative testi-
monial proffers, the General Counsel's presentation,
within my view, will not-preponderantly-sustain his
contention regarding Respondent's purported threat that
Perez might face discharge.
And since, within my view, the General Counsel's rep-
resentative has-necessarily-failed, thereby, to sustain
his required burden of proof, with respect to Wedel's
statutorily proscribed threat, no determination would
seem required regarding the assistant manager's purport-
ed supervisory status. Though thoroughly litigated, ques-
tions presented-upon this record-with regard to that
issue, have not therefore been resolved.
2. Challenged terminations
This Board has, consistently, held that concerned em-
ployers violate the statute when they relocate their busi-
ness facilities, subcontract part of their business operations,
or modify those operations in some other respect, with a
purpose to discriminate against their employees because
those employees have exercised their right to organize,
and bargain collectively. (When however, concerned em-
ployers move or close their plants or places of business,
suspend portions of their regular business operations, or
subcontract work which their employees have previously
performed, for purely economic reasons which bear no rea-
sonably cognizable relationship to union conduct, with re-
spect to which such employees may have been concerned, or
whereby their wages, hours, and conditions of work may
have been affected, employee dismissals resulting there-
from have never been considered unfairly discrminatory.
Employers have consistently been considered free to ter-
minate or lay off workmen for general business reasons,
so long as the purpose or necessary consequence of their
conduct has not been to discourage employees, with par-
ticular reference to their exercise of rights statutorily
protected.)
Decisions to subcontract particular functions, previous-
ly performed by a concerned employer's workmen, may
of course be predicated on legitimate labor cost consider-
ations, without flouting the statute's mandate. Cf. Fibre-
board Paper Product Corp., 130 NLRB 1558, 1559, 1571-
73, 138 NLRB 550, enfd. sub. nom. East Bay Union of
Machinists, Local 1304 v. NLRB, 322 F.2d 411, 413, 415,
(D.C. Cir. 1963), cert. denied as to dismissal of 8(a)(3)
charges, 375 U.S. 963 (1964). Nevertheless, the fact that
some employer may have had legitimate economic rea-
sons, for a challenged subcontracting decision, will not
render consequent employee terminations privileged,
when a purpose to deny or limit their right to participate
in, or reap the fruits of collective bargaining, or concert-
ed activity for their mutual aid and protection-statutori-
ly guaranteed-constituted a concurrent motivating
reason.
Herein, the General Counsel's case, clearly, turns on
his primary contention that Respondent's negative reac-
tion-when confronted with the consequences of Local
No. 24's persuasive grievance prosecution regarding the
wage rates and fringe benefit coverage which the firm's
bakery cleanup personnel were contractually qualified to
receive-constituted a cognizable "motivating factor"
with respect to Controller Sarraco's decision to reassign
part of their work, and subcontract the balance.
Consistently with this Board's recently articulated
decisional rubric relative to so-called "dual motivation"
cases, therefore, some determination must-initially-be
reached herein, with respect to whether the General
Counsel has persuasively demonstrated, prima facie, that
Respondent's conceded desire to avoid the high cost
consequences of Local No. 24's contractually grounded
grievances prosecution constituted "a" motivating factor
with respect to Sarraco's challenged decision. See Wright
Line, 251 NLRB 1083 (1980); Limestone Apparel Corp.,
255 NLRB 722 (1981), in this connection. Within my
view, the General Counsel's representative has, persua-
sively, sustained his contention, in that regard.
Respondent's statement of position, with respect to
Perez' charge filed herein, which Controller Sarraco sub-
mitted to this Board's Regional Office shortly thereafter,
reports the firm's sole basis for reassigning and subcon-
tracting the work previously performed by Store No. 5's
bakery cleanup personnel. Respondent's controller de-
clared, in that connection, that his decision had been
reached "due to the increased wages incurred" with re-
spect to such cleanup workers. Concededly, however,
Respondent's commitment to pay those "increased
wages" coupled with the firm's newly confirmed com-
mitment to provide health and welfare and pension plan
coverage for cleanup personnel, within its three stores
with bakery departments, had derived directly from
Local No. 24's prior, contractually grounded, grievance
prosecution. That grievance had, of course, been bot-
tomed on Local No. 24's contention that wages, hours,
and working conditions for Respondent's bakery cleanup
personnel should have been considered governed by Re-
spondent's currently viable collectively bargaining con-
tract; that such personnel, inter alia, were performing
potwasher functions; that they were therefore entitled to
wage rates equivalent to those contractually specified for
potwashers; and, finally, that health and welfare and pen-
sion plan payments for contractually qualified bakery
cleanup personnel should, henceforth, be considered re-
quired. In short, Respondent was not confronted with
prospectively "higher costs" bottomed on purely busi-
850
P. W. SUPERMARKETS
ness-related considerations; Sarraco's decision to subcon-
tract bakery cleanup work, rather, reflecting his reaction
to union-related developments. With respect thereto, Re-
spondent's controller testified:
Q. This [August 27, 1980] letter was sent to the
Labor Board to explain the circumstances under
which this subcontracting took place, correct?
A. I am not sure ....
Q. Okay, but apparently from the words con-
tained in the document, this is an explanation of the
reason why the subcontracting took place when it
did.
A. Yes ....
Q. And in the second paragraph you explained
the reason for the decision to subcontract, which is
due to the increase[d] wages incurred for clean-up
personnel. And that was the reason for your deci-
sion to subcontract, correct?
A. It is one of the reasons, yes . . . It is the only
reason in the letter ...
Q. So the reason that the decision was taken basi-
cally due to the increased wages as it says in the
letter?
A. That was one of the reasons. It wasn't the
only reason.... It is the only reason in the
letter ...
Q. Do you recall about the first time that P. W.
began to consider subcontracting out this work?
A. The first time I became aware of it was the
end of May sometime.
Q. And one of the things that prompted this to
take place was the increased wages. . . that the
clean-up personnel were going to receive?
A. That was one of the factors, yes ....
Q. A change was made or was pending at that
time in the wage rate that these people were going
to receive, these clean-up personnel, correct?
A. Yes, that is correct.
Q. Also, it was around that time that P. W. real-
ized that they were going to have to pay health and
welfare payments toward these clean-up personnel
. . .and I guess also pension payments, correct?
A. Yes.
Q. All these items became quite costly at P. W.
didn't they?
A. Yes they did.
Q. And it was for this reason, this was one of the
major reasons why P. W. decided to look into subcon-
tracting out the work? Or actually let's put it this way.
This was one of the major reasons P. W. decided to
subcontract out the work?
A. I am not sure if I will agree with the major
reason. It was an important reason. But there are other
reasons as well ...
Q. You thought it would cost less money to do it
that way?
A. We knew it would cost.... We knew what
it would cost before we made the decision to do it.
It was going to cost less money, yes ...
Q. And if you had done this computation and it
had cost more money, you wouldn't have imple-
mented this decision at that time, obviously?
A. That is correct. [Emphasis added.]
With due regard for Sarraco's testimony, determinations
would clearly be warranted, within my view, that Re-
spondent's decision to reassign necessary "pot washing"
functions within Store No. 5 particularly, to subcontract
with a currently retained janitorial service regarding the
store's further bakery and deli section cleanup require-
ments, and to dispense with the services of Store No. 5's
regular part-time cleanup workers, who had-thereto-
fore-been providing such services, derived specifically
from the firm's desire to forestall certain prospective
wage rate changes and fringe benefit contribution re-
quirements. And-since those prospective rate changes
and contribution requirements would, concededly, have
been bottomed on Respondent's currently viable collec-
tively bargained commitments to consider directly hired
bakery cleanup personnel compassed within Local No.
24's comprehensive, contractually defined, three store bar-
gaining unit, previously noted, to provide definitive, con-
tractually mandated, health and welfare and pension fund
contributions on their behalf, and to grant them higher
hourly rates consensually negotiated in connection with
a contractually grounded grievance settlement-there can
be no question, now, that Respondent's subcontracting
and consequent termination decisions had been precipi-
tated by, and necessarily reflected, the firm's purposive
"avoidance" disposition with respect to particular collec-
tively bargained obligations. Compare Brown-Dunkin Co.,
125 NLRB 1379, 1385-86 (1959), affd. 287 F.2d 17, 19-
20 (10th Cir. 1961), in this connection. Thereby, Store
No. 5's bakery cleanup workers-whether or not they
were, currently, Bakery Workers Union members-were,
necessarily, deprived of contractually defined benefits
which their recognized collective-bargaining representa-
tive had theretofore negotiated.
Respondent's course of conduct, therefore, clearly
merits characterization as conduct "inherently destruc-
tive of employee interests" which may properly be
deemed statutorily proscribed, despite management's tes-
timonial proffers calculated to suggest that the firm's
subcontracting and termination decisions had been moti-
vated by business considerations. NLRB v. Great Dane
Trailers, 388 U.S. 26, 32-34 (1967). Sarraco's purported
justification-that some subdivision of bakery department
cleanup work, coupled with subcontract arrangements
whereby the major portion of such cleanup work would
be performed by a janitorial service, would provide Re-
spondent, prospectively, with significant cost savings-
cannot vindicate conduct which was, in fact, reasonably
calculated to deprive Store No. 5's employees for bene-
fits, negotiated and confirmed pursuant to collective-bar-
gaining processes by their recognized collective-bargain-
ing representative. Cf. Mrs. Baird's Bakeries, 189 NLRB
606 (enfd. 457 F.2d 512 (5th Cir. 1972)), citing Metrome-
dia, Inc. (KLAC), 182 NLRB 202 (1970), in this connec-
tion. As the Board's noted-within both decisions last
cited-the unlawfulness of Respondent's conduct, within
the statute's contemplation, is in no way minimized or af-
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fected by the fact that its responsible management repre-
sentative may have concluded, reasonably, that compli-
ance with his firm's contractual commitments and negoti-
ated grievance settlement would cost money prospective-
ly. If such purported business considerations could justify
discrimination, various proscriptions and protections set
forth within the National Labor Relations Act, which
that statute purports to guarantee, would be rendered
largely nugatory.
With matters in this posture, the General Counsel's
representative has, within my view, persuasively demon-
strated, prima facie, that a purpose to foreclose Store
No. 5's bakery cleanup workers from prospective hourly
rate increases, health and welfare benefits, and pension
plan coverage-which their recognized collective-bar-
gaining representative had, theretofore, successfully ne-
gotiated through contractually specified grievance proce-
dures, pursued particularly in their behalf-constituted
"a" motivating factor for Controller Sarraco's decision
to reassign their limited "potwashing" functions to Re-
spondent's journeyman bakers, to subcontract their pri-
mary floor cleaning work to his firm's previously re-
tained janitorial service, and command their termination.
(The record, herein, reveals-clearly-that Respond-
ent's decision was motivated, directly, by Sarraco's
freely declared desire to preclude prospectively higher
business costs generated, particularly, by statutorily pro-
tected conduct. Respondent proffers no contention that
management was, otherwise, confronted with prospec-
tively greater expense consequent upon discrete, business-
related, development calculated to suggest that some cost
retrenchment would be necessary. Compare and contrast
Liberty Homes Inc., 257 NLRB 1411, 1412 (1981), in this
connection. Further, Respondent's reord showing re-
garding the timing of Sarraco's decision, together with
that decision's implementation, would belie any conten-
tion that his motivation derived from business consider-
ations other than those generated by Local No. 24's per-
suasive grievance prosecution. Respondent's controller,
concededly, began considering the possibility of subcon-
tracting bakery department cleanup work-following a
suggestion which Store No. 5's manager had transmit-
ted-several weeks after Local No. 24's April 1980 wage
rate and benefit coverage claims had been presented, on
behalf of those workers directly concerned. His defini-
tive decision to reassign part of their work and subcon-
tract the balance, within Store No. 5 particularly, was
patently reached-so the record shows-shortly after,
Respondent's concession that its bakery cleanup workers
would be considered eligible for contractually defined
health and welfare benefits, and pension plan coverage;
further, Sarraco's decision-concededly-likewise fol-
lowed Respondent's final July 1980 concession, proffered
to settle Local No. 24's grievance claims, that bakery
cleanup personnel who performed pot washing work
would be granted a substantial hourly rate raise. The
firm's subcontracting decision was, subsequently, imple-
mented shortly after Respondent's revised wage rate pro-
posal, for bakery cleanup workers generally, had been
formally presented to Bakery Workers Union representa-
tives, and less than 2 weeks subsequent to the com-
mencement of Respondent's pay period within which
those wage rate increases, when consensually approved,
were scheduled to become effective. Compare and con-
trast Liberty Homes, Inc., supra in this connection. Sarra-
co's testimonial concession-that, before its decision was
reached, Respondent was fully cognizant of the prospec-
tive savings in contractually mandated and negotiated
labor costs which subcontracting would make possible-
has, previously herein, been noted.)
Concerned employers cannot, lawfully, eliminate
jobs-and, consequentially, terminate employees-where
newly realized economic considerations, generated by
and derived from unionization particularly, constitute a
moving cause.
This Board has, specifically, held that-when a work-
er's discharge has been precipitated by a newly generat-
ed or newly recognized necessity for paying his wages,
and/or conceding his right to claim fringe benefit cover-
age, consistently with the requirements of some extant
collective-bargaining agreement-that discharge violates
the statute. See Harry Tancredi, 139 NLRB 1510 (1962),
51 LRRM 1531, particularly, in this connection. (The
Trial Examiner's published Supplemental Intermediate
Report and Recommended Order with reference to the
case noted-which this Board subsequently "adopted"
without qualification-cannot be found within some
Board Decision volumes. His report and recommended
order will, however, be found-summarized-within the
LRRM volume cited. Copies have been supplied, for Re-
spondent's counsel and for my information, with the
General Counsel's brief herein.)
Employees cognizant with regard to Respondent's
conduct would, certainly, recognize its clearly implicit
message. And that message's recognition, necessarily,
would-as the General Counsel's representative cogently
notes-tend to chill their future participation in protect-
ed activity, particularly their readiness to file presump-
tively justified grievances, or their disposition to seek
wage increases. With matters in their present posture,
then, proof calculated to establish some further overt
manifestation of Respondent's statutorily proscribed mo-
tivation need not be considered required. NLRB v. Great
Dane Trailers, supra. Nothwithstanding the General
Counsel's failure to produce testimonial or documentary
evidence specifically probative of management's pre-
sumptive animus, Respondent's purported frugality
cannot-so I find-vindicate conduct realistically calcu-
lated to deprive employees of benefits derived through
their personal exercise of rights statutorily guaranteed, or
through reliance on their collective-bargaining represent-
ative's pursuit of such rights particularly in their behalf.
Since the General Counsel's representative has-within
the present record-demonstrated, prima facie, that
statutorily prohibited considerations were "a" motivating
factor which influenced Controller Sarraco's subcon-
tracting decision, this Board's currently relied on Wright
Line test shifts, directly to Respondent herein, the
burden of persuasion that this facially impermissible mo-
tivating factor was really irrelevant, and that it would
have reached the same decision, and taken the same
action, had that factor been absent. Cf. Statler Industries
v. NLRB, 644 F.2d 902 (Ist Cir. 1981), and cases therein
852
P. W. SUPERMARKETS
cited. Upon this record, Respondent has not, within my
view, satisfied that burden.
True, the record shows that Respondent's particular
problems, with reference to significant "turnover" within
Store No. 5's bakery department cleanup crew, and that
store's recurrent "write ups" for sanitation inadequacies,
had presumptively given birth to Sarraco's consideration
of subcontracting. (Reliance on some outside janitorial
service for cleanup work had, first, been suggested by
one of Store No. 5's bakers. His suggestion had been
conveyed to Foreman Vitola; the latter had relayed it to
Store No. 5's manager, who had subsequently communi-
cated with Respondent's controller.)
There can be no doubt, however, that-when Store
Manager Blum transmitted Vitola's subcontracting sug-
gestion to his headquarters superior-he "knew" that Re-
spondent's bakery cleanup personnel would be getting
raises; with due regard for Blum's testimonial concession,
I so find. While a witness, Blum conceded further that
his knowledge, in that regard, may have played some
"small part" when he suggested a possible subcontract to
Respondent's controller; and Sarraco testified-when
queried by the General Counsel's representative-that
Store No. 5's manager had, inter alia, mentioned Re-
spondent's prospective confrontation with "increased
costs" when he suggested some possibly alternative jani-
torial service commitment.
Regardless of what the record may show, however,
with respect to Store Manager Blum's concern regarding
the cleanliness of his store's bakery department, and
cleanup crew turnover, determinations would seem to be
warranted-clearly-that Sarraco was "more worried"
regarding money matters; while a witness, he so report-
ed. Further, he conceded-so his testimony, previously
noted herein, shows-that, had there been no prospective
cost savings, his decision to subcontract a major portion
of Store No. 5's bakery department cleanup work would
not have been implemented when it was.
With matters in this posture, then, Respondent has
clearly failed to demonstrate-herein-that its challenged
course of conduct would have been pursued, even in the
absence of prospectively increased wage and fringe bene-
fit coverage costs for cleanup personnel. And, since
those prospective cost increases would, clearly, have
been attributable directly to Local No. 24's pursuit of
rights currently contractually guaranteed or newly nego-
tiated for those workers concerned, Respondent has-
necessarily-failed to prove "by a preponderance of evi-
dence" that its challenged course of conduct would have
been pursued, had Local No. 24's protected conduct not
been undertaken.
Conclusions would, therefore, clearly seem warranted
that Respondent's decision to subcontract most of Store
No. 5's bakery cleanup work, together with its conse-
quent decision to dispense with the services of that
store's previously hired cleanup personnel, constituted
interdictory discrimination, with regard to their hire and
job tenure, for statutorily proscribed reasons. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct set forth in section III
above-since it occurred in connection with Respond-
ent's business operations noted in section I above-had,
and continues to have, a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States. Absent correction, such conduct would
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
In view of these findings of fact and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent, P. W. Supermarkets, Inc., is an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Union No. 24, Bakery Confectionery & To-
bacco Workers International Union, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5)
of the Act.
3. When Respondent reassigned certain functions, pre-
viously performed by cleanup personnel within Store
No. 5's bakery department particularly, to journeyman
bakers; subcontracted certain further cleanup work,
which such personnel had theretofore been performing,
with a janitorial service; and consequentially terminated
the employment of Alfonso Perez and John Scheiderer,
Store No. 5's regular, part-time bakery department clean-
up workers, the firm discriminated against these employ-
ees with respect to their hire and tenure of employment,
and further interfered with, restrained, and coerced em-
ployees, generally, with respect to their exercise and en-
joyment of rights statutorily guaranteed. Thereby, Re-
spondent has engaged, and continues to engage, in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Since I have found that Respondent has committed,
and has thus far failed to remedy, certain specific unfair
labor practices which affect commerce, I shall recom-
mend that they be ordered to cease and desist therefrom,
and to take certain affirmative action, including the post-
ing of appropriate notices, designed to effectuate statuto-
ry policies.
Specifically, I have concluded and found that Section
8(a)(3) and (1) of the statute were violated when Re-
spondent reassigned Store No. 5's bakery department
potwashing work, subcontracted with a janitorial service
for the performance of further departmental cleanup
functions, and, consequentially, terminated the employ-
ment of Store No. 5's regular, part-time bakery cleanup
workers, for statutorily proscribed reasons.
Heretofore, when comparable conclusions have been
found warranted, this Board has normally promulgated
remedial directives calculated to restore the situation
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which existed before the Respondent concerned commit-
ted the particular unfair labor practices found. Employ-
ers have been required to cancel or suspend subcon-
tracts, to resume their direct responsibility for perform-
ance of the particular functions involved, and to reinstate
dismissed employees, with "make whole" payments cal-
culated to recompense them for whatever backpay and
benefits they may have lost by reason of their unlawful
terminations. Cf. Jays Foods, Inc., 228 NLRB 423, 424,
438 (1977); Townhouse T V. & Appliances, 213 NLRB 716,
717, 723 (1974); A-i Excelsior Van & Storage, 165 NLRB
427, 429 (1967); Town & Country, 136 NLRB 1022, 1028-
30 (1962). Such directives have constituted the Board's
remedy of choice, particularly when the records submit-
ted for review have warranted determinations that a
compelled resumption of suspended and/or subcontract-
ed operations would create no undue hardship. Compare
Statler Industries v. NLRB, supra, in this connection.
With matters in their present posture, however, reme-
dial directives calculated to require a full scale restora-
tion of the status quo ante herein, with reference to Re-
spondent's Blossom Hill Road store particularly,
would-within my view-produce a significantly anoma-
lous situation.
I note, in this connection, that the General Counsel's
complaint herein-consistently with Perez' charge from
which it derives-raises no questions regarding the pro-
priety of Respondent's subcontracting decision, per se, or
the propriety of that decision's subsequent effectuation,
save for his challenge regarding the decision's impact di-
rectly on Perez' and Scheiderer's job tenure, within Re-
spondent's Store No. 5 particularly. (Though he could,
clearly, have done so, complainant herein filed no charge
that their termination derived from Respondent's disre-
gard for its statutory duty to bargain collectively, con-
cerning a subcontracting decision.)
And the record, herein, reveals further that their con-
tractually recognized bargaining representative, Local
No. 24 of the Bakery Workers Union, when notified-
following its related query regarding Respondent's pur-
ported "basis" for negotiating subcontract arrangements
with respect to Store No. 5's cleanup work-that such
arrangements had been made, filed no contractually
grounded grievance. Local No. 24, likewise, filed no
8(a)(5) charges with respect to Respondent's course of
conduct. In short, Respondent's presumptive right to
subcontract work covered by Local 24's contract, within
Store No. 5 particularly-save when such conduct may
have, demonstrably, derived from a purpose to discrimi-
nate against contractually covered workers for reasons
statutorily proscribed-has not, herein, been questioned.
The record, likewise, reveals that Local 24's represent-
atives-when subsequently notified that Respondent's
management was "contemplating the removal of cleanup
personnel" within its two remaining bakery departments,
pursuant to arrangements whereby some cleanup func-
tions would be performed by journeyman bakers while
floor areas would be cleaned by a professional janitorial
service-proffered no protest. They declared their
"main" concern, merely, that some alternative work be
found for cleanup workers who might be laid off; Re-
spondent's controller, responsively, proffered his firm's
guarantee that suitable cleanup personnel who "would
do a good job" within other store departments would be
given reassignments. (The record suggests, however, that
Respondent may not have proceeded, further, with its
contemplated reassignment and subcontracting arrange-
ments. While a witness, Sarraco reported that he had not
yet "implemented" subcontracting plans with respect to
Respondent's two remaining bakery departments. He de-
clared he was not "sure" that Store No. 5's current ar-
rangement was "working out" consistently with Re-
spondent's desires; further, he testified that he had not
had time to discuss possible cleanup work subcontracting
with bakery department personnel, within the stores con-
cerned, or to determine their views.)
Thus, Respondent's managerial prerogatives, with re-
spect to setting up subcontract arrangements for cleanup
work within additional bakery departments, have not
been challenged contractually; neither have they been,
hus far, questioned as reflective of some possible disre-
gard for the firm's statutorily mandated bargaining duty.
With matters in this posture, the possibility exists-
clearly-that Respondent may, within its discretion, sub-
contract floor cleanup work within two of three bakery
departments, and dispense with the services of directly
hired cleanup personnel, therein, without let or hin-
drance; conceivably, by the time this decision issues, the
firm may-indeed-have done so. In that case, Board di-
rectives calculated to require a restoration of the status
quo ante within Store No. 5 solely would, necessarily,
subject Respondent to cost burdens-there-which it
could, freely foreclose within its remaining stores. Fur-
ther, should their reinstatements within Store No. 5's
bakery department forthwith be required, Perez and
Scheiderer would be thereby vested with a privileged
status-purely by virtue of their fortuitous prior selection
as bellwethers, for Respondent's subcontracting program,
under circumstances herein found statutorily pro-
scribed-which their fellow cleanup workers, within Re-
spondent's two remaining stores, could never claim.
Mindful of these possibilities, I shall not recommend a
reversal of Respondent's decision to subcontract floor
cleaning functions, within Store No. 5's bakery depart-
ment and deli section particularly.
However, with respect to Perez and Scheiderer, cer-
tain remedial directives, within my view, should be con-
sidered necessary and proper. I shall recommend: First,
that Respondent be required to offer Perez, particularly,
reinstatement to some substantially equivalent position
within one of the firm's several stores, without prejudice
to his seniority or other rights and privileges.
(This record suggests that-subsequently to Schei-
derer's receipt of Store Manager Blum's July 31 notice
of termination, and his consequent cessation of bakery
department cleanup work prior to his 3-day notice peri-
od's conclusion-that cleanup worker designated had
been offered, and had accepted, renewed employment
with Respondent, within a possibly "equivalent" posi-
tion. Should it be determined-during negotiations con-
cerned with Respondent's compliance obligations here-
under, pursuant to various remedial directives which will
be found set forth herein-that Scheiderer was not re-
854
P. W. SUPERMARKETS
hired for substantially equivalent work, Respondent
should be required to offer him reinstatement to such
work, on terms consistent with those hereinabove set
forth, in connection with Perez' right to reinstatement.
Should it be determined that Scheiderer was offered sub-
stantially equivalent work, which he was rehired to per-
form, Respondent's obligation to offer him reinstatement
should be considered discharged.)
Second, should no substantially equivalent positions be
currently available, wherein Perez, and possibly Schei-
derer, might be reinstated, Respondent should be re-
quired to list them as preferential applicants for such
work, and thereafter offer them reinstatement, whenever
such substantially equivalent work becomes available;
third, should Respondent hereafter determine, within its
discretion, to cancel subcontract arrangements for clean-
up work within Store No. 5's bakery department and deli
section, and to hire cleanup personnel directly for such
work, Perez and Scheiderer should be, preferentially, of-
fered reinstatement to their positions formerly held.
Respondent should, further, be required to make Perez
and Scheiderer whole, for any pay losses which they
may have suffered, or may hereafter suffer, by reason of
the discrimination practiced against them, by the pay-
ment to them of sums of money equal to the amounts
which each of them would normally have earned as
wages, from the date of their discriminatory termination,
herein found, to the date or dates on which Respondent
may have, heretofore, offered them reinstatement to sub-
stantially equivalent employment, or the dates on which
such reinstatement may be offered, or, alternatively, to
the date or dates of their placement on Respondent's
preferential hiring list, hereinabove prescribed. (The fact
that Perez and Scheiderer concededly resigned-directly
consequent on their terminations herein found unlawful,
and prior to the conclusion of Respondent's 3-day notice
period with respect to their employment tenure-should
not relieve Respondent from its responsibility to make
both of them whole for any losses which they may have
suffered by virtue of their discriminatory treatment at
Respondent's hands. Compare Mars Sales & Equipment
Co., 242 NLRB 1097 (1979), in this connection. Respond-
ent should, however, be considered free to contend and
seek to prove-during the compliance stage of this pro-
ceeding-that Perez and Scheiderer incurred a willful
loss of earnings when they ceased work prior to their
notice period's expiration.) Whatever backpay Perez and
Scheiderer may be entitled to claim should, however, be
reduced, to the extent of their separately computed net
earnings during the period or periods hereinabove desig-
nated. Their backpay should be computed by calendar
quarters, pursuant to the formula which this Board now
uses. F. W. Woolworth Co., 90 NLRB 289, 291-296
(1950). Interest thereon should likewise be paid, comput-
ed in the manner prescribed in Florida Steel Corp., 231
NLRB 631 (1977); see generally Isis Plumbing Co., 138
NLRB 716 (1962), in this connection.
Respondent should further be required to make what-
ever contributions its 1978-1981 contract with Local No.
24 of the Bakery Workers Union, or any successor con-
tract, may have prescribed or may currently prescribe, to
health benefits and pension funds, on behalf of both des-
ignated discriminatees herein, covering their backpay
period or periods previously defined. Since the record
warrants no determinations, presently, with regard to
Respondent's precise contractual liability for health bene-
fits and pension fund contributions which the firm pre-
sumably failed to provide, no provisions for possible in-
terest due, with respect to fund payments withheld, will
be set forth herein; calculations with respect to whatever
interest Respondent owes may be left to this proceed-
ing's compliance stage. See Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979), in this connection.
[Recommended Order omitted from publication.]
855