Save Mart Supermarket

National Labor Relations Board - Board Decisions

Sep 29, 1998

326 N.L.R.B. 1146 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
Save Mart Supermarkets and United Food & Com-
mercial Workers Union Local 1036, AFL–CIO.
Cases 31–CA–21899 and 31–RC–7356
September 29, 1998
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FOX, LIEBMAN, AND BRAME
On September 30, 1997, Administrative Law Judge
Frederick C. Herzog issued the attached decision. The
Respondent and the Charging Party filed exceptions and
supporting briefs.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Save
Mart Supermarkets, Tehachapi, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.2
Substitute the following for paragraphs 2(a) and (b).
“(a) Within 14 days after service by the Region, post at
its Tehachapi, California facility copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 31,
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 20, 1996.
“(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the recommended Order to comply with the
Board’s decision in Indian Hills Care Center, 321 NLRB 144 (1996),
as modified by Excel Container, Inc., 325 NLRB 17 (1997).

[Direction of Second Election omitted from publica-
tion.]

Gary Freelan Ellison, Esq., for the General Counsel.
Robert L. Zaletel, Esq. (McQuaid, Metzler, McCormick & Van
Zandt), of San Francisco, California, for the Respondent.
David Rosenfeld, Esq.), of Oakland, California, and James G.
Varga Esq. (each of Van Bourg, Weinberg, Roger & Ro-
senfeld), of Los Angeles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This case
was heard by me in Bakersfield, California, on July 29–31,
1996, and is based on a charge1 filed in Case 31–CA–21899 by
United Food & Commercial Workers Union Local 1036, AFL–
CIO (the Union or the Petitioner), on March 21, 1996, alleging
generally that Save Mart Supermarkets (the Respondent),
committed certain violations of Section 8(a)(1), (2), and (5) of
the National Labor Relations Act (the Act). On June 1, 1996,
the Acting Regional Director for Region 31 of the National
Labor Relations Board (the Board) issued a complaint and no-
tice of hearing alleging violations of Section 8(a)(1) of the Act.
The Respondent thereafter filed a timely answer to the allega-
tions contained within the complaint, denying all wrongdoing.
On December 12, 1995, the Union filed a petition in Case
31–RC–7356.2 Following a hearing, the Regional Director for
Region 31 issued a Decision and Direction of Election.
Pursuant thereto, an election by secret ballot was conducted
on March 8, 1996, by the Regional Director. Of approximately
50 eligible voters, 49 cast ballots, of which 18 were cast for the
Petitioner, 28 were cast against the Petitioner, and 3 ballots
were challenged. The Regional Director found that the chal-
lenged ballots were not sufficient to affect the results of the
election.
On March 15, 1996, the Petitioner filed timely objections to
the conduct of the election and to conduct affecting the results
of the election. Thereafter, following an investigation, the Re-
gional Director issued a report on objections, and an order di-
recting hearing concerning the allegations contained in the
Petitioner’s Objections 2 and 7, a portion of Objection 3, and
certain “other investigative disclosures.” He also ordered the
consolidation of Case 31–RC–3356 with Case 31–CA–21899.
In due time, the complaint and the remaining objections to
election, as consolidated, came on for hearing before me.
All parties appeared at the hearing, and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and to file
as:
1 Subsequently twice amended.
2 The petition concerned the Respondent’s store in Tehachapi,
California, in a unit that was ultimately described
Included:
Full-time and regular part-time employees of the (Respondent) at
its facility in Tehachapi, California.
Excluded:
Office clerical employees (including bookkeepers), confidential em-
ployees, professionals, all other employees, managers, guards and
supervisors as defined in the Act.
326 NLRB No. 103
SAVE MART SUPERMARKETS 1147
briefs. Based on the record, my consideration of the briefs filed
by counsel for the General Counsel and counsel for the Re-
spondent, and my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and the answer admits, that the Re-
spondent is a corporation with corporate offices located at Mo-
desto, California, and a retail grocery store in Tehachapi, Cali-
fornia, where at all times material it has been engaged in the
business of retail sales of groceries; that in conducting its busi-
ness it annually purchases and receives at the store goods or
services valued in excess of $5000 directly from points outside
the State of California, and that it annually derives gross reve-
nues in excess of $500,000.
Accordingly, I find and conclude that the Respondent is now,
and at all times material has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that the
Union is now, and at all times material has been, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues Arising from the Complaint
The complaint alleges that during the critical period3 the Re-
spondent maintained a system of “teams” headed by “team
leaders,” and that it used this system to solicit grievances from
employees and impliedly promise benefits to employees, and
also to engage in surveillance of employees’ union activities. It
is also alleged that during late February or early March 1996,
the Respondent informed employees several times that it would
be a futility to select the Union as their bargaining representa-
tive. Finally, it is alleged that during late February and/or early
March 1996, and on March 8, 1996, the Respondent solicited
complaints and grievances from employees and impliedly
promised increased benefits to employees.
The Respondent, both by its answer and by its evidence at
trial, disputes each of these allegations.
B. The Evidence
Union activities at the Respondent began in September1995.
On September 26, 1995, 8 to 10 employees met at the home of
Debbie Northcut, a former employee. Among those in atten-
dance was year employee Rhonda Cleeland, a bakery clerk.
Cleeland and the others met with union organizer Eddie Pope,
to whom Cleeland submitted her signed union authorization
card.
Regarding the allegation that the Respondent instituted or
maintained a system to solicit grievances, and to imply that
they would be remedied, the Respondent acknowledges that its
manager at the store started a practice that predated the filing of
the petition. However, as explained, the Respondent contends

3 As previously shown, the petition was filed on December 12, 1995,
and the election was held on March 8, 1996, thus defining the critical
period.
that the practice is merely consistent with good management,
and is not violative of the Act.
Thus, on October 18, 1995, Thomas Sarkesian, a 22-year
employee, who was then store manager at the store, called a
meeting at the Lamp Post Pizza Parlor, inviting department
heads, their assistants and the key carriers—employees who
close the store and who are in charge during Sarkesian’s ab-
sence. There was no discussion of the union or of its activities
at the meeting. In Sarkesian’s view there were a lot of hurt
feelings about layoffs, and reduction of hours and salaries, and
he wanted to solve that problem. He admitted that teams were
not in existence prior to this meeting. At the meeting Sarkesian
appointed Gilbert Toledo, Linda Canard, Arnie Gonzalez, and
Larry McDonald as team leaders. (Gilbert Toledo was the for-
mer produce manager, and was out on disability at the time.)
Linda Canard was a key carrier. Arnie Gonzalez was the man-
ager of the bakery/deli. Larry McDonald was manager of the
meat department.4
Sarkesian had the leaders pick filve to seven team members
by raising their hands as he read off a roster of all store em-
ployees. Team leaders were to select team members based on
their “comfort level.” According to Sarkesian’s credible testi-
mony, the team leaders were given responsibility for letting
their team members know about company policies and proce-
dures and what was discussed at team meetings, such as better
customer service. They were also made responsible for gather-
ing employee ideas and suggestions. Sarkesian also distributed
various written materials describing new store policies regard-
ing express lanes, training, and procedures for handling robber-
ies. Sarkesian told the team leaders to take each of these
documents to each of their team members, and to be sure that
each was fully understood. In fact, the team leaders were told
to have the team members sign a paper indicating that these
policies were talked about. Before this meeting such informa-
tion had been disseminated either by giving it to managers at
weekly manager meetings or to the employees individually by
the managers or by posting one on the bulletin board.
The team leaders were also told by Sarkesian to have team
members sign off if they had any suggestions for improvements
or information. If an mployee had a complaint the team leader
was to write it down and bring it to Sarkesian’s attention.
However, the team leaders were specifically told to tell the
employees they could not fix their problems. Sarkesian credi-
bly denied ever telling the team leaders to solicit grievances of
complaints, problems, or telling the team leaders to make any
representations about their ability to remedy any complaint.
Gilbert Toledo, an apparently credible witness, stated that
Sarkesian said the purpose of the team leaders and teams was to
give the employees the opportunity to discuss their problems
with someone else other than management. This, according to
Toledo, was Sarkesian’s way of solving the employee’s prob-
lems with the store, the store manager, or other employees, and
getting them out in the open. It was Toledo’s further under-
standing that he was to make himself available to the employ-
ees to discuss their problems at the store, by directly confront-
ing them. He admitted, however, that he was never instructed
of the specific problems he was to inquire about.
Employee Rhonda Cleeland, a highly implausible and biased
witness, testified that sometime in January, she was in the bak-
ery department when Canard approached her with a note-
4 Notwithstanding his reluctance to serve in that position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
book—one she had never seen in the store before––with Clee-
land’s name on it and told Cleeland that she was on Canard’s
team. At that time Canard made her sign a piece of paper in-
side that stated she read items on a list, and if she had any prob-
lems she was to go to Canard with them, and Canard would, in
turn, write them down and give them to Sarkesian. The paper
she signed was read to her. At the hearing she did not remem-
ber its specific contents nor its purpose. Thus, so Cleeland
testified, when Cleeland’s vacation was taken away from her,
she took the problem to Canard as previously instructed, but
Canard failed to do anything about it. She followed up with
Sarkesian, who said he would get back with her, but never did.
Prior to the organizing campaign there was no process in place
for problem solving such as the team leader concept.
Stephanie Brooks, a bakery clerk who worked for the store
for 7 years, was one of the first employees to have an individual
meeting with Sarkesian. This meeting took place on February
20, 1996. Brooks previously had been part of management for
2 years as the bakery/deli manager, and during this time had
gone to Sarkesian whenever she had any type of problem. This,
however, was the first time she had ever been summoned to
Sarkesian’s office to discuss any problems she may have been
having as an employee. It was Brooks’s understanding that
certain other unspecified employees also were paged to Sarke-
sian’s office that day, but did not hear him page anyone else.
Brooks credibly testified that during the meeting with Sarke-
sian, she told him she was having scheduling problems, and
that the schedule was unfair in her view, as her hours were
insufficient, and under company policy she felt she was entitled
to more hours as a more senior employee. Sarkesian increased
her hours and said it was within his discretion to do so.
As to whether it was unusual for Sarkesian to be dealing with
Brooks on this level, the evidence was that the chain of com-
mand in place at the store dictated that Brooks go first to her
bakery manager with her scheduling complaints, and if the
complaint was not resolved at that level only then to go to up-
per management. However, the bakery manager, Arnie Gonza-
les, had been terminated on February 2, 1996, and Brooks
thought it was logical to speak with Sarkesian about her prob-
lems. Sarkesian did not write the schedules after Gonzales left,
but rather, Steven Dieterle, the grocery manager did. However,
Brooks did not go to him and complain about her schedule even
though it was company policy to do so. Sarkesian stated he
was the proper person for Brooks to come to with a scheduling
problem.
Beverly Jones, a generally credible witness, and a produce
clerk at the store, attended an individual meeting with Sarke-
sian at the store sometime in February. She was aware that
other employees were summoned to his office like she was;
having spoken to employee Delana who went to Sarkesian’s
office about an hour before her. Sarkesian told her that he had
asked her to come to his office so he could inquire whether she
had any concerns or problems. She told him that she was frus-
trated at being stepped down to a service clerk from her posi-
tion as a cashier. Sarkesian told her he could not step her back
up because sales were down, due to Albertson’s moving in
across the street in 1994. Jones came away from the meeting
disappointed that she couldn’t be stepped back up. Sarkesian
stated he did not have the authority to step her up. As to Jones’
problems with the other service clerks, Sarkesian remarked that
they had a maturity problem; he told her that he had set guide-
lines for them, but they were not following them, and there was
nothing more he could do. He asked Jones what he she thought
he might do, but she had no suggestions.
Jones did not recall ever being previously summoned to the
manager’s office to be asked about any problems. Sarkesian,
on the other hand, claimed he had discussions with her about
this issue every two to three months, and that this started well
before the union campaign. Sarkesian also disputed her testi-
mony by stating that, prior to the union campaign, he would
walk the floor of the store two to four times per week and so-
licit grievances and problems from the employees he came in
contact with. Sometimes such discussions took place in his
office for privacy reasons. He stated that his meetings did not
change in any fashion before or after the union campaign. Al-
though he claimed that he was careful not to hold the em-
ployee’s he questioned “captive,” i.e., to be careful during the
meeting to make promises to them he couldn’t resolve or in-
quire as to their position on the union, he admitted that he also
did not believe it necessary to tell the employees they didn’t
have to answer questions. Sarkesian stated that he felt it neces-
sary to call Brooks, among other employees he previously dis-
cussed problems with, because of an altercation which had
broken out between two employees in the store, and he wanted
to call everyone on staff that day to ease the tension and friction
in the store. Even though there were team leaders on staff on
the day of the altercation, and it would be more expeditious for
them to handle it, this was something to be handled by Sarke-
sian solely.
Lavonne McMurrey was a grocery clerk employed for 5
years. McMurrey, a generally credible witness, attended an
individual meeting with Sarkesian in his office, sometime in
late February. She was summoned to this meeting by a fellow
employee, possibly Linda Canard. Prior to this she had never
been called into his office before and asked about problems she
may have been having. She heard from other employees that
Sarkesian was calling everyone up and observed this on and off
during the day of her meeting, but did not know how they were
being summoned. Sarkesian asked if she had any problems
they could work out. She said that the clerks needed another
calculator to use when they were closing out their tills in order
to get out of the store on time. She also brought up problems
she was having with Steve Dieterle, the assistant manager.5
However, she told Sarkesian she was working these problems
out by herself and did not want his assistance, and he said he
would honor her wishes.
Sarkesian later told the key carriers that it was unacceptable
that the checkers were staying overtime to count out their tills
at night and they were to remedy it, even though it’s his per-
sonal responsibility for running the check stands properly.
In addition to the evidence concerning individual meetings,
the Petitioner also adduced evidence concerning certain “small
group” meetings.
Edith McCasland, a service clerk employed by the store for 3
years, testified that she was present at a “small group” meeting
in Sarkesian’s office approximately 3 weeks before the elec-
tion. The other employees in attendance were Lavonne
McMurrey, Larry McDonald, Penny Veehard, Cheryl Myers,
and Dan Mullin. At the meeting Michael Silveira, vice presi-
dent of human resources & law, spoke about what would hap-
pen if the Union were elected. Using a pie symbol, he said no
matter what the Union promised, only so many pieces of the pie

5 Relating to the death of a family member.
SAVE MART SUPERMARKETS 1149
could be allotted to labor, and they wouldn’t get them all. He
also explained that negotiations could take a long time, and
things wouldn’t change overnight. McCasland also stated that
Silveira also said he was in charge of negotiations and he was
not willing to negotiate, and that that negotiations could take up
to 2 years. However, as she testified, it became clear that she
could not recall whether Silveira’s statements were couched as
mere possibilities, or were, instead, couched as certainties
based on his own decisions. After hearing her testimony it
seemed clear that, while she is a truthful person, her recollec-
tion of details tends to be faulty.
Employee Rhonda Cleeland attended a “small group” meet-
ing in late February, approximately 1 week after Cleeland’s
birthday of February 20.6 It took place in Sarkesian’s office,
with Silveira, Strickland, Fugate, Questa, and Strader in atten-
dance, along with employees Farinas, Larry Morphis, and
Alexis Martinez. Strickland came down to the floor and sum-
moned her to the meeting. When she explained to him that she
was in the middle of baking and could not attend, he said he
would have Sarkesian find someone to cover her. She didn’t
know if anyone did, but she attended the meeting anyway. She
spent approximately 45 minutes at the meeting and left before it
ended. She recounted that Silveira asked why the employees
wanted to pay union dues when they “already had their cake.”
He indicated that he had complete control over the length of the
negotiations by saying that he would take 20 seconds to 20
years to negotiate. He also suggested that if the union wasn’t in
within a year it would go away. According to Cleeland, Sarke-
sian stated that his position during the negotiations would in-
volve wearing his “meanest hat.” She recounted that he spoke
sternly to the employees “like a parent would do when [their]
children have done something wrong.” However, her testi-
mony was marked by a number of inconsistencies with her pre–
trial affidavit which she, unconvincingly, attributed to having
been distracted at the time she gave it.
Employee Cleeland testified about a meeting held in mid–
January 1996, at Old Town Pizza,7 which was attended by vari-
ous managers including Dan Strickland, Beth Fugate, Mike
Silveira, and Dave Questa. She did not recall what was dis-
cussed, as it did not pertain to her.
However, McCasland testified she was at a meeting held
sometime in February at Old Town Pizza, where Silveira,
Strickland, Fugate, and Questa, were present. According to
McCasland, Silveira spoke with the employees individually,
asking them if they had any problems.8
Additionally, the Union introduced evidence of an informal
meeting between Sarkesian and Cleeland. In late December
during the union campaign, employee Cleeland had a discus-
sion with Sarkesian about the bonus program. During her 4-
year tenure she had always received a quarterly bonus, which
was for avoiding on-the-job injuries and having a good sales
quarter. However, Sarkesian told her as of January 1st they
would not be getting bonuses anymore. Although she received
a bonus at the end of January, but thought it was for the quarter
prior to the year end quarter in light of what Sarkesian had said.
She learned that the bonus system was still in place when she
saw a memo, which had been faxed to the store the day of her

6 According to Silveira, the meeting was March 5 or 6.
7 Although she was less than clear concerning the exact location.
8 It is unclear whether this is the same meeting involved in Clee-
land’s testimony.
“small group” meeting of March 6, which contradicted Sarke-
sian’s statements about discontinuing the bonus system. Her
concerns about the bonus system continued nevertheless. Al-
though she eventually received a bonus for the first quarter of
1996, it arrived at least 2 months after it was owed to the em-
ployees, long after the election.
Sarkesian denied saying that bonuses were being discontin-
ued. As to the timeliness of the 1996 bonus, Sarkesian stated it
normally takes 6 to 7 weeks after quarter’s end to pay the bo-
nuses. He further testified that the question about the timeli-
ness of the bonus payments came up when he was walking
through the bakery and stopped and had a casual conversation
with Cleeland. As noted elsewhere, Cleeland was not a credi-
ble witness, and I accordingly resolve this conflict between her
testimony and that of Sarkesian in favor of Sarkesian.
The Respondent presented substantially different accounts of
the “small group” meetings. Alexis Martinez, a credible wit-
ness, was the stocking crew manager of the Tehachapi store,
and worked there for 4 years. On one occasion, she was told by
two union representatives she cannot name that she would no
longer be receiving bonuses. She was outraged because Sarke-
sian did not discuss this with her or post a notice, which was
the usual manner of alerting employees to changes in benefits.
The next day, she went to Sarkesian to discuss the bonuses, at
which time he prepared and photocopied a statement denying
the Union’s alleged information about the bonuses.
Martinez was present at the March 6, 1996 meeting which
Cleeland described in her testimony. She apparently found out
about the meeting by a posting. It was her understanding that
these meetings were voluntary. According to Martinez, even
though Silveira talked about the negotiations he never made
any of the comments Cleeland attributed to him. I credit this
testimony over that of Cleeland.
Tari Sickler, an apparently credible witness and a checker for
3 years, attended a meeting prior to the election whose other
attendees were Lavonne McMurrey, Dan Mullin, Larry
McDonald, and Edith McCasland. This, apparently, is the same
meeting described by McCasland and McMurrey. The meeting
began between 9:30 and 10 a.m. and lasted approximately 45
minutes. Management personnel in attendance were Silveira,
Questa, Fugate, and Strickland. According to Sickler, someone
asked Silveira how long the negotiations would take, and he
responded it would depend. He never gave any specific indica-
tion of time; all he said was that it was the Union’s position was
that if a contract was not reached within a year they would redo
the election. She also denied that Silveira used the labor pie
analogy or said that he wasn’t willing to negotiate. In fact Sil-
veira said he would be willing to negotiate almost anything
except the terms of the Southern California union agreement.
Lawrence (Larry) McDonald has been the meat manager for
the past 3 of his 7-year tenure at the store. He attended a meet-
ing shortly before the election at which Cleeland and Jones
were also present. He testified that when Silveira was asked
how long it would take to get a contract, he said that you look
at both sides and take it from there. He never heard Silveira
say the process was futile. He denied that Silveira made any of
the statements Cleeland attributed to him, at least not while he
was there. He did hear Silveira tell Cleeland it could take 1 to 2
weeks to reach a contract.9
9 Apparently due to tension caused by what he viewed as the ordeal of
testifying, this witness abruptly left the witness stand in the midst of his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
Michael Silveira gave the following account of his state-
ments regarding union negotiations. He explained that on Feb-
ruary 27, 1996, he drafted and distributed a memo regarding the
union election. The main purpose of the March 5 and 6 meet-
ings was to cover the February 27 memo and to present the
Respondent’s position that it preferred not to have union repre-
sentation. He claims his standard comments at all of the meet-
ings was that there was to be an election by secret ballot held
March 8, 1996, that the employees are free to choose, and that
the Company was opposed to it. In response to questions as to
how long it would take to negotiate the contract he said there
was no way of knowing, emphasizing that the employer has an
obligation to bargain in good faith. It could take a short or long
time––it depended on the issues. He then showed the employ-
ees a binder of other contracts they could look at. If people
didn’t ask questions, he would start off by discussing some of
the questions described in the February 27 memo. He denied
ever asking anyone if they had problems. He just asked for
questions, and denied saying that things won’t change over-
night if the Union wins the election. He testified that at the
meetings he told the employees it was more likely store #64
would follow the northern California stores’ master food
agreement, not the southern California stores’ standard con-
tract. As to the pie chart, he said that Questa came up with a
pie chart they used on one occasion to explain the negotiations,
which was in response to a question at one of the previous
meetings.
David Questa worked as the personnel supervisor for the
southern Division for 9 years. His primary duties were griev-
ance procedures, and he worked on labor negotiations. He
assisted in all the group meetings and testified that Strickland
and Strader were not present at all of them. He did not recall
the dates and times of certain of the meetings, but categorically
and credibly denied all of Cleeland’s allegations as to what
Silveira said. According to Questa, Silveira mentioned the pie
but did not make the labor allocation statement, nor state that
he was too busy to negotiate. Silveira also never said it would
take 2 or more years to negotiate the contract. Silveira only
responded to a question asked by an employee whether they
would automatically get the southern California contract by
saying, “No. What you are voting on is union representation,
and then you go into the whole negotiating process, what you
get wouldn’t be automatic.” If the Union won, the Union and
Silveira would set up the meetings to negotiate and it would
take an unknown period of time. When an employee specifi-
cally asked Silveira how long the negotiating process would
take, he responded he didn’t know––it could take any period of
time. To illustrate, he referred to the ongoing negotiations with
another union which had started in January.
Beth Fugate, the benefits administrator for the nonunion
plans, worked for Save Mart for 7 years. She attended “small
group” meetings at which Cleeland, McCasland, and McMur-
rey were present. She credibly denied that Silveira made any of
the statements Cleeland alleged. She testified the pie was used
to answer questions as to whether unionizing would result in
greater pay and/or benefits. Silveira used the pie to demon-
strate that the basic pie was always the same size whether be-
fore or after the union. Silveira said, “[H]ere’s your pie now,
here’s what it looks like after negotiations.’’ Silveira always

testimony. He returned when instructed to do so. Despite his emotion-
alism, I found his testimony to be credible.
said there was no way to project how long negotiations would
take.
Dan Strickland, the Save Mart recruiter, credibly testified he
assisted in the “small group” meetings, but didn’t attend them
all. His role was to get the list of employees and go down and
tell people, including Cleeland, that there was a voluntary meet-
ing upstairs they were welcome to attend. He testified that
Cleeland couldn’t come upstairs right away, as she was baking,
so he asked Sarkesian to find her a replacement to enable her to
attend. He testified that he wanted every employee to attend,
not just Cleeland. He didn’t know who covered her absence
from the bakery department.
Sifting through all this, and bearing in mind the conflicts be-
tween the various witnesses, what is clear is that there was a
great deal of misunderstanding by employees during the cam-
paign.
However, I accept it as proven that the practice of having
team leaders was established almost 2 months preceding the
beginning of the critical period preceding the election, but ap-
proximately 3 weeks following the beginning of union activi-
ties among employees. While that timing may well serve to
arouse suspicion about why it was established, it cannot by
itself demonstrate illegality in the act of establishing such a
system.
Nor, on balance, does it seem to me that the evidence dem-
onstrates that the way in which the team leaders were actually
utilized was violative. Sarkesian credibly denied that he ever
instructed team leaders to solicit grievances, or to resolve them,
much less grant or promise benefits. Even Toledo failed to go
so far. At worst his testimony was that team leaders were to
discuss problems with employees on their teams, and get them
into the open. He admitted that he was never instructed as to
any specific problems he was to inquire about. Moreover, I
regard Cleeland’s testimony about her interaction with her team
leader, Canard, as too vague to prove a violation.
Similarly, I conclude that Cleeland’s testimony concerning
Silveira saying that negotiations would be conducted with him
wearing his meanest hat, or would be futile, cannot support a
finding of a violation. As stated elsewhere, Cleeland was not
credible. And the denials of such conduct by Silveira, Sickler,
McDonald, Questa, and Fugate were each quite credible. Nor
does the testimony of any other witness, including that of
McCasland, prove that Silveira’s remarks about the length of
time to be spent in negotiations, or about a “pie” amounted to a
threat that negotiations would be futile, or so protracted as to
amount to a futility.
In my opinion, the only violations established in this case are
those of Sarkesian.
While he denied doing so, I have determined to credit the
testimony of McMurrey over his denial. Thus, I find that in
late February 1996, during the critical period, Sarkesian, unlike
anything he had previously done, called her into his office and
directly asked her if she had any problems that they could work
out. Though they did not actually work out a solution to any
problems, that does not detract from the violative nature of
Sarkesian’s solicitation to her.
Similarly, Beverly Jones credibly testified as to being solic-
ited to state her concerns or problems by Sarkesian when he
summoned her to his office sometime in February, during the
critical period. I have determined to credit her testimony con-
cerning this event over that of Sarkesian.
SAVE MART SUPERMARKETS 1151
Finally, the testimony of Stephanie Brooks was highly credi-
ble that on February 20, 1996, she was summoned to Sarke-
sian’s office. While it is not clear that her grievance was actu-
ally solicited by Sarkesian, it is quite clear that he remedied her
complaint about securing insufficient hours.
Thus, summarizing, I find and conclude that the Respondent
violated Section 8(a)(1) of the Act during February 1996, by
soliciting grievances from employees under circumstances
which gave rise to an implication that the Respondent would
remedy them. I also find and conclude that the Respondent
violated Section 8(a)(1) on February 20, 1996, by remedying
the grievance of its employee.
IV. THE OBJECTIONS
The Petitioner’s second objection states that, “The Employer,
by its agents, intimidated eligible voters with loss of employ-
ment opportunities if they supported the Union.”10
The Petitioner’s third objection stated that, “The Employer,
by its agents, made promises of benefits to those eligible voters
who would vote against the Union, and made promises of bene-
fits to all eligible employees as an inducement not to vote for
the Union, and promised benefits if the Union lost.”
The Petitioner’s seventh objection was that, “The . . . em-
ployer, by its agents, interfered with, restrained, and/or coerced
its employees in the exercise of their rights guaranteed by Sec-
tion of the Act.”11 He further concluded that, because of con-
flicting factual evidence on this objection, it should be resolved
by a hearing thereon. However, no evidence was offered to
support this objection at the hearing.
The Regional Director also noted that the investigation dis-
closed other factual matters that raised substantial and material
factual and legal issues, and which are closely related to and
involve the same evidence as certain allegations set forth in
paragraphs 6, 7, and 8 of the complaint.12 Accordingly, he
concluded that these other administrative disclosures would
best be resolved by referral to hearing, and he so ordered.
Summarizing the reasons for the Regional Director taking
the actions that he did in referring these objections for hearing,
and taking into account the evidence heard by me at trial of the
issues arising from the complaint, it is clear that the evidence to
support the objections is identical to that which must be consid-
ered in determining the proper outcome of the hearing on ob-
jections.
In light of my findings concerning the unfair labor practices,
which are tracked by the objections, I recommend that all the
objections be overruled, except that dealing with the Respon-
dent’s having solicited and granted grievances during the criti-

10 In his report the Regional Director explained that this allegation
concerned events alleged to have occurred at an employee meeting at
the Respondent’s store in early March 1996, and involving some state-
ments of Director of Operations/Southern Division Drake Straeter, to
the effect that employees would obtain less hours of work if the Union
was voted in. Additionally, it concerns an allegation that an employee
was told around February 1996, by the store manager of the store that
employees would have fewer work hours if the Union were voted in.
The Regional Director stated that he referred these allegations to hear-
ing because of conflicting evidence.
11 The Regional Director concluded that, because of conflicting fac-
tual evidence on this objection, it should be resolved by a hearing.
12 Accordingly, the Regional Director concluded that these other
administrative disclosures would best be resolved by referral to hearing,
and he so ordered.
cal period, and that the election’s results be set aside, and that it
be rerun on a date to be set by the Regional Director.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices, it shall be recommended that the Respondent be
ordered to cease and desist from its unfair labor practices; be
ordered to post the notice provided for herein; and be ordered to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Regarding the consolidated representation case, it will be
recommended that the representation case be returned to the
Regional Director with the direction to set aside the results of
the election and to rerun the election on a date to be set by him.
CONCLUSIONS OF LAW
1. The Respondent, Save Mart Supermarkets, is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, United Food & Commercial Workers Union
Local 1036, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by so-
liciting grievances from employees and implying that they
would be granted, and by actually remedying a grievance, in
order to induce employees to not support the Union.
4.The Respondent has not violated the Act in any other re-
spect.
5. The Respondent engaged in objectionable conduct war-
ranting that the election conducted in Case 31–RC–7356 be set
aside and rerun on a date to be set by the Regional Director
following the Respondent’s having remedied the unfair labor
practices found above.
On these findings of fact and conclusions of law and on the
entire record , I issue the following recommended13
ORDER
The Respondent, Save Mart Supermarkets, located in Te-
hachapi, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Soliciting or remedying grievances of employees in or-
der to induce them to abandon their support for the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Post at its offices and facility in Tehachapi, California,
copies of the attached notice marked “Appendix.”14 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 31, after being signed by the Respondent's authorized
13 All outstanding motions, if any, inconsistent with this recom-
mended Order are denied. If no exceptions are filed as provided by
Sec. 102.46 of the Board's Rules and Regulations, the findings, conclu-
sions, and recommend Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.
14 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board’” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT solicit you to tell us your grievances or imply
that we will remedy them, nor will we actually remedy them, in
order to induce you to not support the Union.

SAVE MART SUPERMARKETS