Pick-N-Pay Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1980

247 N.L.R.B. 1136 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First National Supermarkets, Inc. d/b/a Pick-N-Pay
Supermarkets, Inc. and Joseph Mastrandrea. Case
8-CA-12518
February 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On October 18, 1979, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, counsel for the General Coun-
sel filed exceptions and a supporting brief, and
Respondent filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
' The General Counsel 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 credibility
unless the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 1g8 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: The hear-
ing in this matter was held in Cleveland, Ohio, on August
20, 1979, upon a complaint issued by the General Counsel
and an answer filed by Respondent.
Upon the entire record in the case, including my observa-
tion of the demeanor of witnesses and upon consideration of
the briefs, I make the following:
N.L.R.B. v. J. Weingarten. Inc., 420 U.S. 251 (1975); Lennox Industries.
Inc.. 244 NLRB 607 (1979).
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Massachusetts corporation, operates a
chain of retail supermarkets, including a store in Cleveland
Heights, Ohio. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
National Labor Relations Act, as amended.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, chartered by Retail Clerks
International Union, AFL-CIO (herein called the Union), is
a labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE UNFAIR LABOR PRACTICES
The issue in this case is whether Respondent violated the
Weingarten ' rights of Joseph Mastranderea. (I shall refer to
him as Joe to avoid confusion with his father who is
mentioned below.) Joe was a stock clerk in Respondent's
Cleveland Heights store. He was suspended on September 5,
1978, and terminated several days later. The General
Counsel alleges that Respondent refused Joe's request for
union representation "at an interview" on September 5
which Joe "reasonably believed . . . would result in his
being subject to adverse disciplinary action." The Union was
the recognized bargaining representative and had a collec-
tive-bargaining contract with Respondent at material times.
Claiming that it suspended and terminated Joe for cause,
Respondent denies having refused any request by Joe for
union representation. The complaint does not allege that Joe
was suspended and discharged for unlawful reasons. The
General Counsel contends, rather, that such action was
violative of the Act only because it was allegedly attended by
a refusal to grant Joe's purported request for representation.
Joe is in his second or third year of college, and had
worked for Respondent for more than a year and a half. His
duties included marking prices on merchandise. This mark-
ing is done with a label gun which affixes an adhesive label
to the merchandise and which contains a mechanism that
enables the operator to select the price to be imprinted on
the label. There are occasions when Respondent changes the
prices on merchandise already marked. In these instances,
the individual remarking the merchandise is required to peel
off the label bearing the original price before affixing a label
with the new price. This is because Respondent has a policy
against "double labeling"; in other words, no item may
contain more than one price label.
Pursuant to instructions, Joe was marking prices with a
label gun on September 5, 1978, when his father entered the
store with a shopping list. Mastrandrea was a regular
customer at the store. Mastrandrea approached his son on
this occasion and asked the latter to help him select items on
the shopping list. Among the listed items were Pop Tarts.
247 NLRB 162
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PICK-N-PAY SUPERMARKETS, INC.
Joe thereupon placed four Pop Tarts and other food
products in his father's shopping cart.
Jane Potts is a plain-clothes store detective on Respon-
dent's security force. Her principal area of concern is
shoplifting, and she works on a roving basis in Respondent's
various stores. Potts is not known to store personnel, and she
did not know either Joe or his father before the events
involved here. Potts testified that, while on duty in the
Cleveland Heights store on September 5, she saw Joe reduce
prices on four boxes of Pop Tarts with a label gun and
deposit them in a customer's (Mastrandrea's) shopping cart.
She thereupon reported these observations to the store
manager, Sal Albanese. Joe meanwhile left the premises to
have lunch, and Mastrandrea continued selecting merchan-
dise and eventually went to the checkout counter to pay for
his purchases. The cashier (Sarah Corea) noticed that the
Pop Tarts in Mastrandrea's basket were mismarked and she
notified the approaching Albanese to that effect.
Albanese was acquainted with Mastrandrea on a personal
basis as a regular customer of the store. Mastrandrea had
not yet left the checkout area on the occasion in question
and Albanese asked whether he would mind going into the
backroom of the store to have his purchases checked.
Mastrandrea had no objection, and he went into the
backroom with Albanese and Potts. Mastrandrea's pur-
chases that day totaled about $100, and Albanese and Potts
checked each item. The parties stipulated that the four boxes
of Pop Tarts had been "double-labeled" with a top label
marked at 47 cents covering another label marked at 69
cents. The store price on this product was 69 cents, and the
record shows that no other Pop Tarts on the shelves had
been double-labeled or marked less than 69 cents.
In fairness to the memory of Mastrandrea, who died
before the hearing in this matter, it should be mentioned
that, at the time Mastrandrea approached the checkout
counter to pay for his purchases, no testimony or circum-
stances in this case suggest that he had any knowledge or
any reason to suspect that any merchandise in his shopping
cart had been mismarked.
Mastrandrea was concerned during the inspection of his
purchases that his son was involved in some wrongdoing and
he asked Albanese "what is going to happen to Joe" and he
solicited Albanese's efforts in Joe's behalf. Albanese replied
it was "out of my hands." Albanese had meanwhile notified
Respondent's security headquarters, and they dispatched
another security investigator from that division, a Norman
Simmonds, who shortly joined the group in the backroom.
Joe returned from lunch about an hour later; his father
and the others were still in the backroom. Joe walked into
the backroom-he was not called or requested to go there.
Joe testified that, when he entered the room, his father was
"pretty shaken up" and his face was "red." Potts asked Joe
about the Pop Tarts. Joe testified that he first told Potts that
he had not remarked the Pop Tarts. Joe testified that he then
told her he had done so. While denying at the hearing that
he had reduced prices on the four Pop Tarts, Joe testified
that he told Potts that he had double-labeled them because,
he further testified, he thought his father had done some-
thing wrong and he wanted to end the situation and get his
father out of the room as quickly as possible because his
father was suffering from a heart ailment. Joe indicated that
he wanted his father to leave the room and Albanese then
escorted Mastrandrea out of the room while Joe remained.
(Joe first testified that no one asked him to remain; he then
changed his testimony to say that "they told me to stay
there.")
Albanese returned to the backroom. Joe testified that he
asked Albanese upon the latter's return whether Juanita
Wiggins, the union steward, was working and that Albanese
said she was off that day. Joe further testified that Albanese
left the room at that point and that he (Joe) then asked Potts
and Simmonds, "Am I going to get somebody?" and that
neither one answered.
Albanese and Potts testified that Joe did not inquire about
Juanita Wiggins; and Albanese, Potts, and Simmonds
testified that Joe did not request representation by anyone in
the backroom. All parties agree that, while still in the
backroom, Potts then prepared a report (called a general
statement) of the incident in Joe's presence. The report
states, in effect, and as Joe had earlier told Potts, that Joe
had reduced the price on the four boxes of Pop Tarts from
69 cents to 47 cents (totaling 88 cents). Potts tendered the
general statement to Joe. According to Potts, Albanese, and
Simmonds, Potts told Joe that he should read the document,
that he had a right not to sign it, and that he was also
entitled "to a union steward to be in here present with you."
The general statement submitted to Joe contained a printed
statement that "I have read the above and acknowledge that
it is true and correct. I know this statement may be used
against me in a court of law and that I have the right to an
attorney before signing this statement. I wish to waiver [sic]
my rights and sign this statement." Simmonds also read this
statement to Joe at the time. Joe signed the general
statement, and he testified that he did so without reading it.
Joe was suspended that same day, and was terminated a
few days later. On September 11, 1978, he filed a grievance
with the Union over his termination and he gave the Union a
written detailed account of his version of the entire Pop
Tarts incident and the backroom event. This account says
nothing about his having purportedly requested either
Wiggins or "somebody" on that occasion or that any such
purported request had been denied him. The grievance was
processed short of arbitration, through the third step of the
contract grievance procedure. At no time during the
grievance handling process did Joe complain or even
mention that Respondent had purportedly refused a request
for representation on September 5.
Joe filed an unfair labor practices charge against the
Union (Case 8-CB-3815) on December 12, 1978, complain-
ing, in effect, about the Union's failure to take his grievance
to arbitration. (In a January 4, 1979, affidavit to the General
Counsel, Joe stated that the Union had advised him on
November 29, 1978, that the Union had decided not to take
his grievance to arbitration "because they did not feel it
would be meritorious or successful.") Joe withdrew the
charge against the Union and he later filed (on January 12,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1979) the charge against Respondent in the present case.
Joe's affidavit of January 4, 1979,2 to the General Counsel
states that he purportedly had asked Albanese "for a Union
Representative" and that Albanese replied that Juanita
Wiggins was off that day. The affidavit does not mention
that Joe purportedly then asked Potts or Simmonds whether
he would get "somebody."
IV. CONCLUDING FINDINGS
I have not set forth all of Respondent's evidence respect-
ing the Pop Tarts incident,' for I do not decide whether Joe
did in fact double-label and reduce prices on the four Pop
Tarts. Such determination is unnecessary because the Board
has found Weingarten violations where an employer dis-
charged or otherwise disciplined an employee for good cause
despite the fact that a refusal of representation had no
influence on the employer's disciplinary decision. Certified
Grocers of California, Ltd., 227 NLRB 1211, 1215 (1977),
enforcement denied 587 F.2d 449 (9th Cir. 1978); Anchor-
tank Inc., 239 NLRB 430, fn. 9 (1978).
Mindful that Joe went into the backroom without request
or direction from Respondent, that he told Potts and
Albanese-before even purportedly requesting a union
representative-that he had double-labeled and lowered the
price of the Pop Tarts, and that he signed the general
statement which, in effect, said no more about the incident
than he had earlier admitted upon first entering the room, I
have a preliminary question whether Joe's initial and
continued presence in the backroom was not entirely
As indicated at the hearing, Joe's affidavit and his letter to the Union in
support of his grievance are not entitled to any more weight than his
testimony respecting the truth of their contents. The situation is different,
however, as to admissions and like statements.
' E.g., further testimony of Albanese and testimony of Michael Fruhlinger.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
voluntary and, therefore, whether Weingarten applies at all.
Cf. Super Valu Xenia, a Division of Super Valu Stores, Inc.,
236 NLRB 1581 (1978). However, I shall not reach this
question, but shall assume for discussion purposes only that
it was a Weingarten context, for I am satisfied that, even on
such assumption, no violation occurred.
Potts, Albanese, and Simmonds each impressed me as
trustworthy witnesses and there was no showing that any of
them had any ill will toward Joe or his father. Considering
all the facts and circumstances involved here, I am con-
vinced that the record does no preponderantly establish that
Joe requested and that Respondent denied him any represen-
tation during the backroom incident on September 5, 1978. 1
shall therefore recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and 2(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in any violation alleged in
the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
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.
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