Pay 'N Save

National Labor Relations Board - Board Decisions

Sep 10, 1981

257 N.L.R.B. 1228 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pay 'N Save Foods, Inc. and United Food and Com-
mercial Workers International Union, Local 44,
AFL-CIO. Case 19-CA-12582
September 10, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 24, 1981, Administrative Law Judge
Richard J. Boyle issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and counsel for the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dr}, Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We agree with the Administrative Law Judge that, based on circum-
stantial evidence, including the size of the plant, the nature of the acous-
tics of the work facility involved herein, the fact that the employees were
not circumspect in their discussions of the Union, the timing of the dis-
charges, and the pretextual reasons asserted for the discharges, the con-
clusion is warranted that Respondent had knowledge of union activities
of the four alleged discriminatees prior to their discharges. See Syracuse
Dy-Dee Diaper Service. 251 NLRB 963 (1980); Florida Cities Water Com-
pany, 247 NLRB 755 (1980); and A to Z Portion Meats, Inc., 238 NLRB
643 (1978).
Respondent points to the fact that it had an ongoing relationship with a
union (other than the Charging Party Union), which represented certain
of its nonmeat market employees, to buttress its contention that it lacked
animus toward the Union involved herein. We find that Respondent's
animus toward the Union is amply illustrated by the negative reaction of
Respondent's president when he was presented with the union wage scale
of area meat market employees by one of the dischargees.
2 Respondent has also excepted to the Administrative Law Judge's
Remedy and Order, directing that the employees in question be offered
full and immediate reinstatement with backpay, computed in accordance
with traditional Board formulas. Specifically, Respondent contends that
three of the dischargees either engaged in, or assisted in, improper dis-
counting procedures, thus forfeiting all rights to reinstatement Based on
the record before us, we find that Respondent has failed to establish a
sufficient basis to deny reinstatement rights to the dischargees Respond-
ent is free to offer additional evidence and, based thereon, raise these
same contentions at the compliance stage.
Respondent also claims that the fourth employee, Deborah Anderson,
is not entitled to an offer of reinstatement because she was previously of-
fered reemployment or had her discharge retracted. Based on credibility
resolutions, the Administrative Law Judge found, and we agree, that An-
derson had never been offered reemployment to her former position nor
had her discharge been retracted.
Member Jenkins would compute interest on the backpay due in ac-
cordance with his dissent in Olympic Medical Corporation, 250 NLRB 146,
148-150 (1980).
257 NLRB No. 162
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Pay 'N Save
Foods, Inc., Forks, Washington, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Port Angeles, Washing-
ton, on February 24, 1981. The charge was filed on July
8, 1980, by United Food and Commercial Workers Inter-
national Union, Local 44, AFL-CIO (the Union). The
complaint issued on July 30, and alleges that Pay 'N
Save Foods, Inc. (Respondent), violated Section 8(a)(3)
and (1) of the National Labor Relations Act, herein the
Act, on July 2, 1980, by discharging four employees-
Debbie Anderson, Mary Engel, Josie O'Hair, and Pat
Russell.
1. JURISDICTION
Respondent is a Washington corporation engaged in
the operation of a grocery store and restaurant in Forks,
Washington. Its annual gross income exceeds $500,000,
and it annually takes delivery in Washington, from out-
side the State, of goods valued in excess of $50,000.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
II. I.ABOR ORGANIZATION
The Union is a labor organization within Section 2(5)
of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. Evidence
On June 18, 1980, Respondent's founder and owner,
Russell Thomas, told Respondent's meat department per-
sonnel that he was closing the department in 2 weeks,
and that they consequently would not be on the payroll
after July 2. Four of the department's five employees--
Debbie Anderson, Mary Engel, Josie O'Hair, and Pat
Russell-indeed ceased working for Respondent upon
completion of their shifts on July 2. Alan O'Hair, the de-
partment manager and head butcher, also was terminated
at that time.'
But instead of closing the department, Thomas himself
took over as its manager on July 3, staffing it, with two
exceptions, with newly hired people. The exceptions
were David Crippen, who was transferred from else-
where in the store, and Rhonda Nesse, who had worked
It is undisputed that Alan O'Hair was a supervisor as defined in the
Act. Alan and Josie are husband and wife.
1228
PAY 'N SAVE
in the department all along on a part-time basis and re-
mained without disruption. Nesse was not at work when
Thomas made his June 18 pronouncement, and later was
assured by him that it did not apply to her.
Thomas, adamant that he did not discharge the em-
ployees in question, but instead "closed the [meat]
market and opened it the next day myself under a wholly
new operation," testified that the decision was his alone;
that he reached it "about a week or probably two weeks
before" its announcement, having been considering it for
"probably a year"; and that it derived from his conclu-
sion that "the whole attitude of the department had de-
clined to the point where [he] thought it was no longer a
viable, profitable business at all." Thomas elaborated
that, for "several months," he "personally [had] observed
the lack of service, lack of cooperation, and a lack of
productivity that was necessary to make money, and a
poor attitude"; and that he had "waited too long" to take
action.
Thomas added that his "problems were with the gen-
eral management [Alan O'Hair] and the senior employ-
ees," and that "a couple of young people"-Nesse and
Debbie Anderson-"had really nothing to do with the
attitude and circumstances." Nesse consequently was
spared, as above detailed, and Thomas assertedly direct-
ed his son Barry, who has the title of assistant store man-
ager, to tell Anderson that she could stay.2 Thomas dis-
closed in an affidavit given before the hearing that he
"wouldn't have terminated [Anderson] if she hadn't been
present on June 18," enlarging that he "didn't want to
personally go to each employee; [he] just wanted to end
the operation quickly."
Regarding the allegedly poor service, Thomas testified
that customers had complained to him, and reportedly to
others, about waiting 15 to 20 minutes to place an order;
that there had been "many complaints about our lack of
selection . . . from time to time"; and that customers had
remarked, as well, that "the attitudes were poor" among
those in the department. Thomas continued that the com-
plaints were about "the butcher, mainly," which is to
say, Alan O'Hair, because of his "failure to serve the
people in the manner that they expected." Thomas con-
ceded, however, that not all customer comments were
negative-"We also had compliments on the meat
market."
Further on the subject of poor service, Thomas related
that he was influenced in his decision by the complaint
of a customer named Virgil Thayer, who supposedly
took his business elsewhere because Alan O'Hair had
said Thayer would be charged time and one-half to have
a quarter of beef cut. Thomas asserted variously that
Barry testified that he told Anderson, shortly before July 2, that his
father had not wanted to let her go. inasmuch as she had not been the
cause of any problems, and that Respondent wished to keep her. Ander-
son replied, according to Barry, that she felt she should "support" the
others being terminated, and that she was going to go to school, besides.
Anderson testified that Barry told her his father had not wanted to termi-
nate her, but did so because she happened to be among the group he ad-
dressed on June 18, and that she responded that she was going to be
going to school. To the etent that their versions differ, Anderson is
credited. She was a most forthright and convincing witness. It is con-
cluded that Barry's remarks did not constitute a retraction of the dis-
charge or an offer of rehire.
Thayer complained of this "about the week following
the . .. termination of the market," "probably a week or
two before I terminated the market," "the week before"
July 2, "a week before the [June 18] meeting with my
employees," and that he was "not sure" of the date.
Thomas went on that the decision also was influenced
by accounting statements, which professedly revealed
the percentage of profit for Respondent's meat depart-
ment to be "disastrously lower" than the nationally pre-
scribed standard and by word from son Barry that some
of the department's employees had been "speaking
poorly" of him.
Of those whose terminations are in issue, Engel had
been with Respondent about 18 years; Josie O'Hair about
7 years; Russell about 6 years; and Anderson about 2-1/2
years. None had been warned before June 18 that her
performance was seriously lacking or her job in jeop-
ardy. Although Thomas assertedly had been considering
the action for about a year, he admittedly never men-
tioned this to the affected employees before June 18, tes-
tifying only that he sometimes "made general remarks to
the department about our lack of profit, and sometimes
about service or a selection in a case." He testified that
Engel had been a satisfactory employee "up to the last
year or two"; that Josie O'Hair was a "pretty good" em-
ployee; and that, as above noted, he did not want to ter-
minate Anderson in the first place.
Thomas shares the management of the store with his
oldest son, Bruce, who carries the title of general man-
ager. As between the two, the elder Thomas has the
greater authority. He testified that, "generally speaking,"
Bruce and Barry "both have quite a bit of input or in-
gress, I might say, into the meat operation." Bruce testi-
fied, on the other hand:
It so happens that the meat department has always
been his [the father's] domain, so to speak. I have
not an awful lot of knowledge about the meat busi-
ness, and, as a result of that, "I've always relied on
my dad to make those decisions because based on
his experience with the meat."
Regardless, and even though father and sons supposed-
ly had been in recurrent discussion over the "problems"
of the meat department for a year or so, Bruce did not
learn of the father's decision until after its disclosure to
the employees on June 18. Beyond that, according to
Bruce, he learned of it from one of the employees, later
verified it with Barry, and did not talk to his father
about it until perhaps the next day. Bruce concededly
was "very surprised" by the news-"I think we all
were." Asked why he was surprised, Bruce explained
that his father "didn't say anything to me about it, he
just went ahead and made his own arrangements."
Respondent's meat department employees are non-
union. The remainder of its employees, except for those
in the restaurant, have representation and are under a
bargaining agreement. Because that agreement provided
for a 7-percent wage increase, to be effective in June
1980, Thomas decided in early June to grant the same in-
crease to the meat department employees. He testified
that he wanted "to avoid a lot of problems we run into
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by having different wage schedules." The restaurant em-
ployees were not to receive any raise, however, Thomas
explaining that "they were just at the point of either
losing money or not making any."
In years past, it had been customary for Engel, on
behalf of her coworkers in the meat department, to
inform Thomas each spring of the union scale for meat-
cutters, which he then used as a guideline in deciding
how much raise to give them. On June 12-6 days
before Thomas's announcement-Engel again observed
this practice. Thomas, described by Engel as "very
upset," responded that the meat department employees
would be getting a 7 percent raise "like the rest of the
store .. . and that's that." Meatcutters' scale would have
meant raises well above that, Engel testifying that it
would have increased her hourly pay from $7.50 to $9;
Russell, from $6.80 to $7.90.
Engel reported Thomas's reaction to Alan and Josie
O'Hair, and it was decided that Russell should notify the
Union of the employees' interest in representation. Rus-
sell spoke with Michael Dunn, an official of the Union,
that same day, and they arranged for him to meet with
the employees at Russell's home on June 18 at 4 p.m.
Between then and the June 18, every day that they
worked, the meat department employees engaged in
some discussion of the pending meeting and union repre-
sentation generally; and, at or about 7 a.m. on the June
18, at work, Engel and Russell urged Alan O'Hair to be
at Russell's that afternoon, because he knew "the right
questions to ask." The record leaves to surmise whether
any of this was within earshot of, or otherwise reached,
the Thomases. Engel testified that the meat department is
"kind of like an echo chamber"; that conversations there
can be heard "very plainly all over the store." Respond-
ent had about 35 employees at the time, divided between
two shifts, in the grocery portion of its operation.
Thomas told some of the meat department employees
at or about 10:30 a.m. on the June 18 that he wanted to
meet with them when they were all there; then an-
nounced to them at 11:30 that they would not be needed
after July 2. He explained that he did not like their atti-
tudes, the service they had been giving, or "anything
about the operation."
The employees met with Dunn as scheduled, all sign-
ing union authorization cards. By letter dated June 20,
Dunn informed Respondent that a majority of the meat
department employees had designated the Union as their
representative and demanded recognition. According to
Thomas' affidavit, receipt of this letter on about June 21
"was the first that I knew of my meat department em-
ployees' wanting to be represented by the Union." In his
live testimony, Thomas stated that he first learned of the
employees' interest in the Union "probably ten days after
[he] terminated the market"-i.e., "after July 2." Similar-
ly, son Bruce testified that he first learned of the union
activity "maybe four weeks after" the June 18 notifica-
tion to the employees, when Respondent received notice
of the present charge.
B. Discussion
Semantics aside, the reality is that the four in question
were discharged on June 18, effective July 2. It is con-
cluded, in agreement with the General Counsel, that
those discharges violated Section 8(a)(3) and (1).
Among the considerations dictating this conclusion are
these:
(a) Although Thomas supposedly had been considering
action of this sort for "probably a year," he did not an-
nounce it until the very day the employees were to have
their first meeting with the Union's Dunn, and within a
week after they first contacted Dunn and began talking
among themselves about union representation.
(b) Thomas' June 18 announcement was spur of the
moment, or nearly so, as revealed by the incongruity of
its occurring within days after his decision to give the af-
fected employees a raise; by the testimony of son Bruce,
the store's general manager, that he was "very surprised"
by it; and by the passage in Thomas' affidavit that he did
not bother to exempt Anderson from the sweep of the
announcement because he "just wanted to end the oper-
ation quickly."
This indicates that a development coming to Thomas'
attention on or shortly before the June 18-namely, the
employees' interest in the Union-was the likely motivat-
ing force, inasmuch as the several "problems" cited by
Thomas in support of the action professedly had been of
concern for some months.
(c) Apart from their staleness, Thomas' stated reasons
for the action lacked conviction. For instance, while the
meat department assertedly had ceased to be "a viable,
profitable business." Thomas nevertheless had decided to
give the department's employees a raise. The restaurant
employees, on the other hand, were to be denied a raise,
the restaurant being "just at the point of either losing
money or not making any."
Further, Thomas' references to customer complaints
were for the most part without specificity and thus un-
convincing; and, in the one instance that he tried to be
specific-the Virgil Thayer matter-he left the record in
a state of high confusion whether it came up before or
after the June 18 announcement. Beyond that, Thomas'
concession that customer complaints were "mainly"
against Alan O'Hair, a supervisor, betrays the transpar-
ency of such complaints as a reason for discharging
those under O'Hair.
Finally, the falseness of Thomas' stated reasons for the
discharges is shown by his never having indicated to the
employees before June 18, individually or collectively,
that their jobs were in jeopardy. That he sometimes
"made general remarks to the department about our lack
of profit, and sometimes about service or a selection in a
case," hardly bespeaks a situation so straitened as to call
for a purge.
(d) In all the circumstances, it is inferable that
Thomas' recurrent reference to the employees' attitudes,
as a ground for the action, was an allusion to their union
sympathies. Virginia Metalcrafters, Incorporated, 158
NLRB 958, 962 (1966); Winn-Dixie Greenville, Inc., 157
NLRB 657, 662 (1966).
(e) The testimony of Thomas and son Bruce was de-
monstrably tailored in important areas, revealing their
awareness that the truth would be to Respondent's detri-
ment. Thus, despite the statement in his affidavit that he
1230
PAY 'N SAVE
first learned of the employees' interest in the Union upon
receiving the Union's demand letter, Thomas testified
that he did not receive that knowledge until much
later-"probably ten days after" July 2; and, despite
Thomas' testimony that Bruce had "quite a bit of input
. . . into the meat operation," Bruce, trying to peddle
the notion that there was nothing unusual about his not
being privy to the drastic action taken by his father, tes-
tified that "the meat department has always been his [the
father's] domain."
CONCLUSION OF LAW
By discharging Debbie Anderson, Mary Engel, Josie
O'Hair, and Pat Russell on June 18, 1980, effective July
2, as found herein, Respondent violated Section 8(a)(3)
and (1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, the entire record in this case, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 3
The Respondent, Pay 'N Save Foods, Inc., Forks,
Washington, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against its
employees because of their union sympathies or activi-
ties.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under the Act.
3 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by
Sec. 102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.
2. Take this affirmative action:
(a) Offer to Debbie Anderson, Mary Engel, Josie
O'Hair, and Pat Russell immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority and other rights and privileges, and make them
whole for any loss of earnings or benefits suffered by
reason of their unlawful discharges, with interest on lost
earnings. 4
(b) Preserve and, upon request, make available, to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amounts of backpay and benefits
owing under the terms of this Order.
(c) Post at its store in Forks, Washington, the attached
notice marked "Appendix." s Copies of said notice, on
forms provided by the Regional Director for Region 19,
after being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees customarily are
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
' Backpay shall be computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950). Interest shall be computed as prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co.. 138 NLRB 716 (1962).
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1231