Shop Rite Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1975

216 N.L.R.B. 256 (N.L.R.B. 1975)

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shop Rite Foods, Inc. and Amalgamated Meat Cutters
& Butcher Workmen of North America, AFLr-
CIO, Local No. 171. Case 23-CA-4835
January 22, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On June 17, 1974, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited exceptions and a supporting brief.
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, find-
ings, ' and conclusions of the Administrative Law
Judge and to adopt his recommended Order except
as modified herein.2
The Administrative Law Judge found that the
statement in Respondent's letter of April 19, 1974,3
that all reinstated employees would be terminated on
April 26,4 constituted a threat in violation of Section
8(a)(1) in that such statement was "calculated to
induce Prince, Garcia and Alvarez to cease to
participate in the further prosecution of the unfair
labor practice claims made in their behalf . . . ."
The Administrative Law Judge also found that
Respondent violated Section 8(a)(4) of the Act by
discharging Prince for 2 days pursuant to its letter of
April 19, in that the letter was "calculated to
influence reinstated employees, who, perhaps had
greater interest in their jobs, than further backpay,"
to stop cooperating with the Board in this proceed-
ing. We disagree.
Contrary to the Administrative -Law Judge, we do
not view Respondent's April 19 letter either as a
threat calculated to dissuade employees Prince,
Garcia, and Alvarez from utilizing the Board's
processes to prosecute alleged unfair labor practices
The 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
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 . 188 F 2d 362 (C.A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge, apparently through inadvertence,
recommended that backpay be awarded to Mary Alvarez from the date of
the discrimination against her until a date 5 days after a valid unconditional
offer of reinstatement was made to her. We hereby , in accord with our usual
practice, modify the "Remedy" so as to provide that Respondent's backpay
216 NLRB No. 43
committed against them, or as proof that Respond-
ent denied Prince employment for 2 days to
discourage her from testifying at an unfair labor
practice hearing. Thus, it appears from the record
and the letter itself that the offers of reinstatement
were extended to the three employees in anticipation
of, and conditioned upon, the Regional Director's
approval of a settlement agreement negotiated
between Respondent and the Charging Party. When
the Regional Director later declined to approve the
proposed agreement, the Respondent withdrew its
offers of reinstatement and so notified the employees
via the April 19 letter.
In our view, the Respondent's action, based as it
was on the failure of settlement negotiations, did not
in any way discriminate against the employees
because of their resort to Board processes. The
Respondent at that time was not under any legal
obligation to offer reinstatement to any of the three
employees, but did so solely as part of a proposed
settlement to avoid costly litigation of the issues.
Respondent's offer of reinstatement, therefore, was
conditioned on, and in anticipation of, the Regional
Director's approval of the proposed settlement
agreement. When such approval did not materialize,
the Respondent was free to revoke the offers of
reinstatement without incurring a new legal liability.5
In these circumstances, we cannot find that the
Respondent violated Section 8(a)(4) and (1) of the
Act by terminating the conditionally reinstated
employees. Nor can we view the April 19 letter as a
threat to take unlawful action. In addition, we
disagree with the Administrative Law Judge's theory
that Respondent's April 19 letter violated Section
8(a)(4) with respect to employees who acted to their
detriment upon it because such letter was "calculated
to influence employees not to cooperate with the
Board" and to "cease to participate in . . . prosecu-
tion." While conduct so motivated may, under
circumstances not present herein, be violative of
Section 8(a)(1), we do not believe it is the same as the
proscription in Section 8(a)(4) against ". . . dis-
charge or . . . discriminat[ion] against an employee
because he has filed charges or given testimony ..."
or (as found in Plate Manufacturing Company, 197
responsibility to Alvarez terminates as of the date of its valid unconditional
offer to her of reinstatement.
3 All dates herein are in 1974 unless otherwise indicated.
4 These employees had previously been offered reinstatement in
conjunction with Respondent 's proposed settlement of the instant charge.
The Regional Director had refused to approve the proffered settlement
primarily because it did not provide backpay for Prince, Garcia, and
Alvarez, the employees affected by the settlement and reinstatement offers.
S Of course, this conclusion in no way affects the remedy provided herein
for the discharge of Alvarez which we have found to be violative of Sec.
8(ax3)
SHOP RITE FOODS, INC. 257
NLRB 793, 802 ( 1972)) because he is named in a
charge.
Accordingly, for the reasons above stated , we shall
dismiss those portions of the complaint which allege
that the Respondent , by its April 19 letter, violated
Section 8(a)(1) and (4) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Shop Rite Foods , Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Amalgamated Meat Cutters & Butcher Work-
men of North America , AFL-CIO, Local No. 171, is
a labor organization within the meaning of Section
2(5) of the Act.
3. By discharging Mary Alvarez because of her
union activities , Respondent has violated Section
8(a)(3) and (1) of the Act.
4. Respondent has not violated Section 8(a)(1) of
the Act by failing to submit lists of employees' names
and addresses in conformity with the Board's
Excelsior policy, by implementing new benefits, by
laying off Virginia Carlisle, by threatening Jesus
Diaz, or by misrepresenting the election voter
eligibility date.
5. Respondent has not violated Section 8(a)(3)
and (1) of the Act by issuing formal reprimands to
Juan Lopez, Elmira Prince , and Joe Escobedo, by
reducing the hours of Elmira Prince , or by discharg-
ing Alfonso M. Garcia.
6. Respondent has not violated Section 8(a)(4)
and (1) of the Act by its letter of April 19, 1974, or by
any action it took pursuant thereto.
7. The unfair labor practices found above have an
effect upon commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below , and hereby orders that Respondent,
Shop Rite Foods , Inc., San Antonio , Texas, its
officers , agents, successors , and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 1(a):
"(a) Discharging employees because of their union
activity."
2. Substitute the following for paragraph 2(a):
"(a) Make Mary Alvarez whole for any loss of pay
she may have suffered by reason of the discrimina-
tion against her in the manner set forth in the section
of this Decision entitled `The Remedy.' "
3. Substitute the attached notice for that of the
Administrative Law Judge.
ACTING CHAIRMAN FANNING , concurring and dis-
senting in part:
I agree with my colleagues to the extent they affirm
the Administrative Law Judge 's findings and conclu-
sions . Contrary to my colleagues, I would adopt the
Administrative Law Judge's finding, for the reasons
stated by him, that the Respondent violated Section
8(a)(1) of the Act by stating in its April 19 letter that
employees Prince, Alvarez, and Garcia would be
terminated on April 26 if the Regional Director for
Region 23 failed to approve Respondent 's proposed
settlement agreement of outstanding unfair labor
practice charges involving , inter alia, these employ-
ees. I would also adopt the Administrative Law
Judge's finding that Respondent violated Section
8(a)(4) of the Act by causing employee Prince, who
acted upon the April 19 letter, to lose 2 days of work
on April 27 and 28. In addition, I would find,
contrary to the Administrative Law Judge and my
colleagues , that Respondent also violated Section
8(a)(4) by its conduct vis -a-vis Alvarez whose
employment opportunities were adversely affected
by Respondent 's April 19 letter.
The Administrative Law Judge found that Alvarez
called Respondent's district manager, Tidwell, on
April 24, the day she received the April 19 letter,
because she had been told to speak to Tidwell
concerning Respondent 's earlier offer of reinstate-
ment . When Tidwell offered her reinstatement at her
former location as of April 19 , Alvarez told him that
the letter she had just received stated that she would
be discharged on April 26. After Tidwell denied
knowledge of the letter , Alvarez stated that she
thought someone was "playing games" with her, and
the conversation ended . Because of Respondent's
April 19 letter, Alvarez did not return to work on
April 29. Alvarez was eventually offered reinstate-
ment at the hearing herein.
In my view, Tidwell offered Alvarez reinstatement
as of April 29. The credited testimony indicated that,
because of the letter , Alvarez thought the offer of
reinstatement a nullity, inasmuch as the offer was not
to take effect until April 29 and the letter explicitly
stated that she would be terminated on April 26.
Thus, it seems clear that she did not return to work
because she reasonably believed that Tidwell's offer
had been revoked by the letter. Accordingly , I would
find that Alvarez' employment opportunities were
impaired as a result of the letter and that Respondent
thereby violated Section 8(a)(4) and (1) of the Act
with respect to her inasmuch as the letter was
designed to induce her to refrain from further
cooperating with the Board in this matter.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because they have
engaged in union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed by Section 7
of the Act.
WE WILL make Mary Alvarez whole for the
earnings she lost by reason of our discrimination
against her.
SHOP RITE FOODS, INC.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard on April 30 and May I and 2, 1974,
in San Antonio, Texas, upon an original charge filed on
July 23, 1973, and a complaint issued March 13, 1974, as
amended on March 26, 1974, alleging that Respondent
engaged in certain independent violations of Section
8(a)(1) of the Act; violated Section 8(a)(1) and (3) of the
Act by discharging Alfonso M. Garcia and Mary A.
Alvarez and by issuing reprimands to Juan Lopez, Elmira
Prince, and Joe Escobedo, and by reducing the work hours
of Elmira Prince; and violated 8(a)(4) and (1) of the Act by
threatening to discharge employees Garcia, Alvarez, and
Prince to discourage them from testifying in the instant
proceeding. Respondent duly filed an answer denying that
any unfair labor practices were committed. After close of
the hearing , briefs were filed by the General Counsel and
the Respondent.
Upon consideration of the entire record in this case,
including the posthearing briefs and my observation of the
witnesses while testifying, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Texas corporation, with the principal
office and place of business of its San Antonio district
located in San Antonio, Texas, from which it is engaged in
the retail grocery business on a chain-store basis. During
the 12-month period preceding issuance of the complaint, a
representative period, Respondent in the course and
conduct of said operations, sold and distributed goods
valued in excess of $500,000, and purchased and received
goods and commodities at its San Antonio facilities valued
in excess of $50,000, from suppliers located outside the
State of Texas.
The complaint alleges, the answer admits, and I find that
Respondent is, and at all times material has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local 171, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The instant litigation arises against a background of
longstanding efforts on the part of the rival Meat Cutters
and Retail Clerks Unions to obtain representation rights
on behalf of the previously unorganized grocery employees
located in the various retail food markets within Respond-
ent's San Antonio district. Thus, on August 27, 1969, the
Charging Party herein, Local 171 of the Meat Cutters
Union, filed a representation petition in Case 23-RC-3344.
The Retail Clerks either intervened or filed its own
petition, but in any event appeared on the ballot in all
ensuing elections . The first election was conducted on
March 27 and 28, 1970. Thereafter rerun elections were
directed on the basis of preelection misconduct, with the
second conducted on August 20 and 21, 1972, and a third,
on April 27 and 28, 1973. After a hearing, objections to the
third election filed by the Retail Clerks were sustained by
the Board, which directed a fourth election by Decision of
January 9, 1974.
The fourth election was scheduled for April 1974, but the
question concerning representation was subsequently
vacated when pursuant to agreement of the Meat Cutters,
Retail Clerks, and the Respondent, the Meat Cutters on
March 15, 1974, requested withdrawal of its petition in
Case 23-RC-3344, and disclaimed any further interest in
the unit. Following said agreement, the Retail Clerks
requested a card check, which Respondent accepted, and
when said check demonstrated that Retail Clerks repre-
sented a majority in the appropriate unit, Respondent
granted recognition to the Retail Clerks. Through contract,
having an effective date of April 28, 1974, the employees in
the unit, which for some 5 years had been the subject of
conflicting representation claims, are now covered by a
collective-bargaining agreement.
This complaint involves alleged violations of Section
8(a)(1) and (3) based on events preceding the grant of
recognition to Retail Clerks. The bulk of the independent
8(a)(1) allegations are based upon objections to the third
election, which were filed by the Retail Clerks, but,
interestingly enough, were opposed by the Meat Cutters,
the Charging Party herein. All the 8(a)(3) allegations
involve alleged discrimination directed at Meat Cutters'
supporters. An 8(a)(4) allegation is also included in the
amended complaint and is based on events which
immediately preceded the hearing in this proceeding.
SHOP RITE FOODS, INC.
B. Interference, Restraint, and Coercion
1. The Excelsior issue
The complaint as amended, alleges that in Cases 23-RC-
3344, 3347, and 3390, "the Board ordered Respondent to
furnish a list of eligible voters and their addresses in
accordance with its policy as set forth in Excelsior
Underwear, Inc., 156 NLRB 1236 (1966)," and further that
"On or about April 13, 1973 Respondent knowingly
submitted an eligibility list . . . which was grossly
inaccurate and incomplete, and thereafter refused to
correct and complete said list." The amended complaint
goes on to relate that this alleged noncompliance with
Excelsior constituted an independent violation of Section
8(a)(1) of the Act.
The General Counsel cites no Board authority to the
effect that a noncompliance with the Excelsior requirement
constitutes a per se violation of Section 8(a)(1). Indeed, the
Board, in enunciating the policy requiring preelection lists
of names and addresses, specifically stated:
Whether or not an employer's refusal to disclose
employee names and addresses after an election is
directed would constitute "interference, restraint, or
coercion" within the meaning of Section 8(a)(l) of the
Act, despite the existence of alternative channels of
communication open to the union, is a question on
which we express no view because it is not before us.i
Now some 8 years after issuance of Excelsior, that issue
is squarely presented under this complaint. For the reasons
set forth below, it is my opinion that the failure to submit a
timely accurate list of names and addresses does not
constitute a per se violation of Section 8(axl).
Over the years the Board has established standards for
the conduct of an election, designed to enhance employee
opportunity for a free and reasoned choice.2 Upon
noncompliance with such standards "the Board will set
aside an election even though the conduct does not
constitute an unfair labor practice." 3 Examples of the type
of conduct which, though grounds for setting an election
aside, do not constitute 8(a)(l) violations are gross
misrepresentations,4 captive audience speeches within 24
hours of an election,5 extreme racial propaganda,6 and the
systematic removal of small groups of employees from
their place of work to the locus of managerial authority for
purposes of communicating noncoercive antiunion propa-
ganda.7
I view the Excelsior requirement as subject to enforce-
ment on the same limited basis as the above categories of
preelection misconduct. In the 8 years that has lapsed since
adoption of the Excelsior requirement the Board has not
indicated a disposition to utilize complaint sanctions to
enforce that policy. The remedy for noncompliance with
Excelsior has been the direction of rerun elections. I
i Excelsior Underwear, Inc., supra, 1245-46. In the instant case, the
General Counsel has made no showing that alternative means of
communication were not available to the Unions , and hence it is plain that
the issue raised by the amended complaint is one specifically left open by
the Board in Excelsior, supra.
2 "The control of the election proceeding, and the determination of the
steps necessary to conduct that election fairly [are] matters which Congress
259
perceive of no salutory objective to be gained by reaching
into the arsenal of unfair labor practice remedies to
regulate this area. The furnishing of names and addresses
only accomplishes the objective underlying promulgation
of the Excelsior policy, where the lists are available during
the preelection period. The use of unfair labor practice
remedies hardly constitutes a practical means of assuring
that result as against recalcitrant employers. More expedi-
tious procedures are already available to compel such
compliance. Pursuant to Section 11, the Board's subpena
powers have been invoked to obtain court-enforced orders
requiring production of the lists in far more timely fashion
than would be the case in a Section 10 unfair labor practice
proceeding. In sum, I see no administrative advantage
inuring from addition of Excelsior to the already heavily
taxed system of determining and remedying unfair labor
practices.
There are also serious substantive questions that arise if
nondisclosure of names and addresses is to rise to the level
of a per se unfair labor practice. Significant differences
exist between presumptions that may be relied upon by the
Board in fashioning standards designed to assure an
election atmosphere conducive to a free and reasoned
choice, and presumptions that may properly support an
unfair labor practice finding. The character and degree to
which the Board relies upon presumptions in administering
the Excelsior policy is evident from the following quote
from Son Farrel, Inc., 188 NLRB 969, 970 (1971):
As the Employer points out, our adoption of the
Excelsior requirement was rooted in the hope of
insuring a "fair and informed" electorate. An employ-
er's submission to the petitioning union of a list of
names and addresses of all eligible employees was
deemed to be a proper administrative mechanism to
achieve that end. To look beyond the question of the
substantial completeness of the lists, however, and into
the further question of whether employees were
actually "informed" about the election issues despite
their omission from the list, would spawn an adminis-
trative monstrosity. The Excelsior rule imposes a simple
duty upon employers which can be satisfied by the
application of a reasonable amount of diligence. We
perceive no sound basis for granting the opportunity of
prolonged litigation to an employer whose more
attentive concern with the rule would have obviated the
need for any such litigation in the first place. We shall
therefore presume, as the Excelsior case intended, that
the Employer's failure to supply a substantially
complete eligibility list had a prejudicial effect upon the
election, without inquiry into the question of whether
the Union might have obtained some additional names
and addresses of eligible employees prior to the election
or whether the omitted employees might have garnered
sufficient information about the issues to have made an
entrusted to the Board alone ." N.LR.B v. Waterman Steamship Corpora-
non, 309 U.S. 206,226 (1941).
3 NVFCompany, Hartwell Division . 210 NLRB 663 (1974).
4 Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962).
5 Peerless Plywood Company, 107 NLRB 427 (1953).
6 Sewell Manufacturing Company, 138 NLRB 66 (1962).
7 Peoples Drug Stores, Inc, 119 NLRB 634 (1957).
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intelligent choice. Accordingly, we find that the
Employer's exceptions raise no material or substantial
issue of fact or law which would warrant reversal of, or
a hearing on, the Regional Director's findings on the
objections , which we hereby adopt.
Presumptions, such as referred to above, though quite a
proper basis for promulgating and administering rules
governing the election process, must be regarded with
greater scrutiny where the predicate for an unfair labor
practice finding. For as stated by the Board: "The test of
conduct which may interfere with the 'laboratory condi-
tions' for an election is considerably more restrictive that
the test of conduct which amounts to interference,
restraint , or coercion which violates Section 8 (axl)."8 In
my opinion, it would be improper to presume, without
more, that in each and every instance a failure to supply a
complete, accurate or any list at all, impairs employee
exercise of Section 7 rights. Even if the Section 7 rights "to
self organization, to form, join, or assist labor organiza-
tions" are construed as embodying the right to do so on an
informed basis, it would not follow that each and every
Excelsior noncompliance impedes that right. The lists
themselves merely provide the means by which the Union
may reach employees, but beyond that the lists do not
,guarantee an informed choice . Whether or not an employ-
er's withholding of all or part of the list can be, causally
related to an interference with Section 7 rights depends
vitally on whether the Union will use the lists, how they
will be used , or whether the names and addresses were
previously available to the union . In an unfair labor
practice proceeding an actual impairment or tendency to
impair Section 7 rights should not be assumed on
presumptions not necessarily indicative of actual interfer-
ence , restraint , and coercion of employees.
In sum, I conclude that in the absence of any remedial
advantage to the further burdening of the administrative
process by duplicating the enforcement of Excelsior
through complaint proceedings , the statutory policy
underlying Excelsior is best implemented through postelec-
tion representation procedures , and, further that any
noncompliance with that policy is too remote from Section
7 rights to constitute ipso facto interference , restraint, and
coercion within the meaning of Section 8(axl) of the Act.
Accordingly, I shall recommend dismissal of this allegation
of the complaint.
2. Misstatement of the eligibility cutoff date
The complaint, as amended, sets forth an 8(aXl)
violation based upon allegations that shortly before the
third election, "Respondent knowingly advised its employ-
ees in writing that they would not be eligible to vote in the
forthcoming Board-conducted election unless they were
employed before March 10, 1973 , which date was substan-
tially different from the actual eligibility cutoff date."
Although the General Counsel made certain factual
representations in connection with this allegation, no
evidence was offered in support thereof. Furthermore the
factual assertions underlying this allegation are limited to
s Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1%2).
a See, e.g., Glazers Wholesale Drug Co., 209 NLRB 1152 (1974). Cf.
the type of preelection misconduct, which, though grounds
for setting an election aside, is not a violation of Section
8(a)(1) of the Act .9 Accordingly, I shall recommend
dismissal of this allegation of the complaint.
3. The alleged grant of benefits
The complaint alleges that Respondent further violated
8(a)(1) on April 15, 1973, by announcing "the implementa-
tion of major improvements in employee benefits in the
context of discussion of the forthcoming representation
election." The only evidence offered in support of this
allegation is a document, which was concededly posted on
company bulletin boards and directed to "All Personnel,"
with the designated subject thereon being "Sick Leave."
The document lists qualification standards and benefits,
under the Company's sick leave policy and includes a
detailed discussion of the workings of that policy. There is
no indication whatever that this publication resulted in a
net increase in benefits, a net decrease in benefits, or for
that matter, whether the contents thereof merely represent-
ed a clarification of existing policy.
At the hearing when these deficiencies were called to the
General Counsel's attention by Respondent's attorney, I
called on the General Counsel for a statement of position.
The following ensued:
JUDGE HARMATZ: Mr. Boss?
MR. Boss : Well, I think the facts speak for itself that
a revised policy concerning insurance benefits on April
15, 1973, 12 days before the election was an improve-
ment of the existing benefits.
We don't have it prior-any prior statement of it
but-
JUDGE HARMATz: How do you know it was-it
wasn't a deprivement?
How do you know it wasn't an increase in eligibility
requirements and a decrease in benefits.
Ma. Boss : We have it in the context of a spirited
election, which on three previous occasions had been
run off and set aside, and it was horribly contested with
two Unions competing.
We just say that the inference is that at the last
minute the company was coming up with this statement
of benefits.
JUDGE HARMATZ: In other words, the theory is the
company was fighting Unions and, therefore, it
wouldn't have amounted to anything that wouldn't
have given greater benefits to the-
MR. Boss : I think that's the inference that is
warranted.
JUDGE HARMATz: But you can't point to any specific
evidence aside from the fact-you can't point to any
specific evidence apart from the inference you seek me
to draw that would support a finding that these were
benefits , new benefits, enhanced benefits?
MR. Boss : Just the recent inference from the
attendant circumstances.
Aldon, Inc., 201 NLRB 579 (1973).
SHOP RITE FOODS, INC.
The inference which the General Counsel urges upon me
is highly speculative and unsoundly premised . Further-
more, it would be plainly inappropriate were Ito substitute
inference , where reasonable investigation could readily
develop the direct evidence necessary for presentation at a
hearing, that is, if the actual facts in truth are consistent
with the allegations in the complaint.
In his brief, the General Counsel refers me to the rejected
exhibit file, consisting of excluded transcript extracts from
the postelection hearing on the Retail Clerks' objections to
the third election. The General Counsel claims that the
testimony of Virginia Carlisle and Jesus Diaz, which was
given in that proceeding, substantiates the existence of an
allegedly illicit grant of benefits. Here, as in the case of
paragraphs 7 and 8 of the complaint, discussed under 4
below, such testimony given in the representation case but
not presented in the instant proceeding is not the
equivalent of the affirmative proof required to establish an
alleged unfair labor practice . Accordingly, I find that the
General Counsel has failed to prove that benefits were
increased during the preelection period, and I shall
recommend dismissal of this allegation in the complaint.
4. Paragraphs 7 and 8 of the complaint
At the hearing, I dismissed paragraphs 7 and 8 of the
complaint from the bench. Paragraph 7 alleges unlawful-
ness both in the layoff of Virginia Carlisle and her rehire at
a reduced schedule of hours . Paragraph 8 alleges a threat
of discontinued benefits addressed to employee Jesus Diaz.
These allegations are of a type which would turn on an
assessment of oral testimony. Nevertheless not a single
witness was called to testify before me with respect to these
allegations. Instead, the General Counsel after representing
that these witnesses were subpenaed , but not available
because they resided at locations distant from the hearing,
urged that I make findings with respect to paragraphs 7
and 8 based upon testimony given by these witnesses at the
hearing on objections to the third election in Cases 23-RC-
3344, 3347 , and 3390 . I granted Respondent's motion to
dismiss those allegations for want of competent substanti-
ating proof.
In his posthearing brief, the General Counsel both
requests that I reconsider my ruling and makes extensive
argument in support of that request.
Aside from my view as to the evidentiary defect
underlying these allegations, in the circumstances, I am not
entirely sure that I would recommend a remedy on this
minor part of the case were I to agree totally with the
General Counsel. In this connection, I note that these
allegations involve 8(axl) conduct directed at supporters
of the Retail Clerks Union and are derived from that
Union's objections to the third election. These objections
were at all times opposed by the Meat Cutters, the
Charging Party herein . This raises an interesting issue
under Section 10(b) of the Act, for the Retail Clerks
objections to the election were not the subject of an
independent unfair labor practice charge . While it might be
said that an unreasonable burden is not imposed upon the
Employer where required to preserve all facts as to matters
relating to the Meat Cutters charge , I question whether
such thinking can be extended to conduct directed at a
261
union other than the Charging Party, under circumstances
where the Charging Party has contended, as a matter of
record, that no such misconduct occurred. Aside from the
10(b) problem, there is the further question of whether in
the face of the present bargaining relationship between the
Retail Clerks and the Respondent, it makes any sense at
all, from the standpoint of statutory objectives, to remedy
preelection offenses directed at that Union by provisions
which might well serve as an irritant to that relationship. In
view of the foregoing it is my opinion that the existing
bargaining relationship between the allegedly offended
Retail Clerks and Respondent makes it idle to belabor this
point. Nonetheless the General Counsel's persistence in
this regard makes necessary further comment with respect
to the basis for my dismissal of these allegations.
First, it should be made clear that the issue here is not
the admissability of evidence but rather relates to the
quality of evidence necessary to substantiate an alleged
unfair labor practice. Even if I had admitted the excluded
material, the defect in these allegations would remain.
Authorities cited by the General Counsel hardly support
his claim that upon extra record evidence taken in a
representation proceeding before unfair labor practices
involving parole testimony may be predicated solely a
hearing officer. Paint, Varnish & Lacquer Makers Union,
Local 1232, AFL-CIO, 120 NLRB 1425, 1427 (1958),
involved evidence and findings from a representation case
which were used solely for background purposes and were
not the sole evidence offered in support of an unfair labor
practice allegation. In General Seat and Back Manufactur-
ing Corp., 117 NLRB 1223, 1229 (1957), and Credit Bureau,
189 NLRB 574, 594 (1971), representation case evidence
was considered as prior inconsistent testimony hearing
upon credibility. In Thomas Products Company, 175 NLRB
776 (1969), the documentary evidence in the representation
case was authenticated and made a part of the record in
the unfair labor practice proceeding.
In my opinion, the General Counsel, without support
from precedent, seeks to nullify the right to a hearing
accorded persons charged with unfair labor practices by
virtue of Section 10(c) of the Act. This is particularly so,
where, as here, the reliance upon secondary evidence
would preclude an assessment of parole testimony and
resolution of issues of credibility by an administrative law
judge having an opportunity to observe the witnesses. For
the reasons indicated, I reaffirm my ruling dismissing these
allegations.
C. The Alleged Discrimination
1. The reprimands to Escobedo and Lopez
Joe Escobedo. The complaint alleges that on June 1, 1973,
Joe Escobedo was issued a reprimand in violation of
Section 8(a)(3) and (1) because of his activities on behalf of
the Meat Cutters Union. Escobedo was hired by Respond-
ent in 1968 as a produce helper. A few weeks later he was
promoted to the nonsupervisory position of produce
manager . As produce manager, Escobedo was responsible,
inter alia, for rotation of produce to avoid spoilage, and the
ordering of produce and frozen foods. At all times
material, Escobedo was an active protagonist of the Meat
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cutters Union. He participated as an observer on behalf of
the Meat Cutters at all three elections. Both before And
after the third election of April 27 and 28, 1974, Escobedo
regularly wore a Meat Cutters badge in the store. Prior
thereto, Escobedo solicited union authorization cards and
engaged in handbilling in his own and other stores in
Respondent's San Antonio district on behalf of Meat
Cutters. Escobedo credibly testified that his union activi-
ties were conducted in the presence of certain of Respond-
ent's supervisors, including Calvin Prater, the produce
supervisor for Respondent's San Antonio district, and
Buster Tidwell, Respondent's San Antonio district manag-
er. Produce Supervisor Prater admits to knowledge of
Escobedo's activities on behalf of the Meat Cutters Union.
The circumstances surrounding issuance of the repri-
mand reveal that on June 1, 1973, Escobedo, while
unloading a truck, observed Calvin Prater, inside the
produce cooler in his store. Prater apparently was checking
the produce in Escobedo's department. At that time, Prater
said nothing to Escobedo, but returned about 4 o'clock
that same afternoon and informed Escobedo that he
wished to talk to him and Store Manager Martinez. In the
ensuing conversation, Prater told Escobedo that he was
going to give him a reprimand for overstocking the
produce cooler and for failure to properly rotate his
merchandise . A written reprimand to that effect was given
to Escobedo which he signed . Escobedo at that time made
no defense to Prater and offered no explanation for the
conditions cited as objectionable by Prater in the repri-
mand.
With respect to the status of his department on June 1,
Escobedo initially testified that the conditions prevailing in
his department that morning were no different than those
on any other Friday which, according to Escobedo, is a
very heavy -day. Later, in his testimony, however he
referred to the fact that he had been off the previous
Monday, the Memorial Day holiday, and this loss of 8
hours from the normal workweek caused him to fall
behind. When this explanation was pursued further,
Escobedo admitted that conditions in the produce depart-
ment on June 1 were somewhat worse than on previous
Fridays in the sense that he had insufficient time to rotate
merchandise and therefore there was spoilage and also that
there was overstocking. On the basis of Escobedo's own
testimony I am satisfied and find that the content of the
reprimand was not at odds with the facts. There is no
showing that such condition had been condoned in the
past by Respondent without issuance of reprimands. Since,
as produce manager, Escobedo was responsible for the
rotation of produce as well as ordering, I cannot conclude
that the reprimand was issued for reasons other than good
cause . It is true that Escobedo was a known protagonist of
the Meat Cutters Union and that the reprimand was issued
some 7 weeks after the third election . However, these
factors hardly provide sufficient basis for inferring that
Prater's action, with respect to Escobedo on June 1, was
either union related or predicated upon anything other
than the sound exercise of managerial authority. Accord-
ingly I find that the General Counsel has not established
by a preponderance of the evidence that Respondent
issued a reprimand to Escobedo in violation of Section
8(a)(3) and (1) of the Act and hence I shall recommend
dismissal of this allegation of the complaint.
Juan Lopez. As in the case of Escobedo, the General
Counsel contends that a formal reprimand issued Lopez in
the week following the third election was based upon
discriminatory considerations and therefore violative of
Section 8(a)(3) and (1) of the Act. Lopez is also a produce
manager and has been in Respondent's employ since 1965.
He first signed a Meat Cutters' authorization card in 1969
and has actively supported that Union in all three
elections. His activities included the wearing of a Meat
Cutters' badge during these elections until several months
after the third election. He was also an observer at all three
elections, and was a roving Meat Cutters observer in the
third, which required him to perform his functions in
connection with that election in four different stores. As
these union activities were engaged in openly and in the
presence of management representatives, including Prater
and Tidwell, I find that Lopez' support of the Meat Cutters
was a commonly held fact within management.
The circumstances surrounding the issuance of the
reprimand show that on Wednesday, May 2, Prater was in
the produce department managed by Lopez and that he
gave Lopez a check list which noted certain deficiencies in
his department; namely, that the frozen food section was
low, with a few items completely missing . Lopez concedes
that at that time his frozen food section was lower than
normal. He attributes this condition, however, to the fact
that he did not work on the previous Saturday because he
acted as observer at the election conducted that day. Lopez
also cites his other responsibilities in the department, and
the fact that his helper was on vacation that week. Lopez
testified that sometime in the course of his conversation
with Prater, the latter referring to Lopez' union badge,
stated: "I don't think you're supposed to be wearing that
anymore, but I'll find out." Lopez responded that Prater
should let him know when he finds out. Lopez continued to
wear the button and Prater never again mentioned the
matter.
No reprimand was given Lopez that Wednesday. The
next day, on Thursday afternoon, Prater called a meeting
of all produce managers from the various stores in the San
Antonio district which was held from 2 to 4 p.m. At that
meeting Prater again raised the issue of the frozen food
section to Lopez. He told Lopez to return to his store after
the meeting and to work on the frozen food section until
midnight if necessary. According to Lopez' testimony, he
returned to the store and did some work that Thursday
evening, but did not finish the job until Friday.
On Friday Prater again appeared at the store and
presented Lopez with a formal, previously typed-up
reprimand signed by District Manager Tidwell, and stating
as follows:
Cause of Reprimand & Disciplinary Notice . . .
Failure to properly maintain the frozen food section
of the Produce Department allowing the inventory to
be depleted on numerous items , and that due to his
negligence , could have caused loss of sales and
customer dissatisfaction.
Action Taken
SHOP RITE FOODS, INC. 263
Reminded employee of policy on care and rotation
of products in the frozen food cases . Reminded him of
his responsibility and job. Any further negligence on
his part will subject him to more stringent action.
According to Lopez , after reading the reprimand, he
advised Prater that the condition of the frozen food
department was not his fault since he did not work the
previous Saturday . Prater is alleged to have replied "Well
it's not the Company's fault you weren 't here on Satur-
day." Prater asked Lopez to sign the reprimand which the
latter refused, stating that as far as he was concerned he
was doing his job. According to Lopez, Prater then said
"Well I don't really want to do this, but I have to." Lopez
further testified that at the time of his encounter with
Prater on Friday morning he had reworked the frozen food
section and that Prater had remarked that "everything
looked real good."
Prater and Tidwell credibly testified that this reprimand
originated with Tidwell , who, after visiting the store in the
middle of that week and observing the condition of Lopez'
frozen food section , contacted Prater and instructed him to
issue the reprimand . The accuracy of this testimony is
enforced by Lopez' indication that Prater , on delivering the
reprimand, stated that he really didn't want to, but was
obligated to do so. The origin of the reprimand renders
immaterial certain conflicts in the testimony of Prater and
Lopez bearing upon the condition of the frozen foods
section on Friday, May 4, and conflicting versions of their
conversations during that week.
Thus, the established facts show that on and before
Wednesday , May 2 , the frozen food department for which
Lopez was responsible was low generally and out of certain
stock . I accept as plausible Respondent 's expressed
concern that such a condition could result in a loss of sales
and constituted poor merchandising. I further find that the
reprimand was given at Tidwell 's insistence . I also regard
as unpersuasive Lopez' explanation that his not having
worked the previous Saturday furnished an acceptable
excuse for the condition of his frozen food case the
following week . 10 It is true that Lopez was known to be an
aggressive advocate of the Meat Cutters Union, and that
the reprimand was issued on the heels of the third election.
But these facts hardly support a fmding of illegality where,
as here, the action of management seems entirely plausible,
is based upon established facts , and is not shown to have
been disparately applied . Accordingly, I find that the
General Counsel has failed to sustain his burden of proof
with respect to the 8(aX3) and (1) allegations relative to the
Lopez reprimand, and, accordingly, I shall recommend
dismissal of this allegation of the complaint.
10 Saturday is a heavy sales day . Such sales would always result in heavy
depletion of stock so as to require replenishment on days to follow. Thus, an
absence on Saturday would not seem to be unusually critical to proper
maintenance of frozen food stocks.
11 There is testimony in the record relative to Pence's dissatisfaction
with her failure to attain full-time employment . However no issue pertaining
2. The reprimand to and reduction of Elmira
Prince's work hours
Elmira Prince was hired in November 1972 as a cashier
on a part-time basis.11 By her own testimony Prince
concedes that she was one of the last employees to join the
Meat Cutters and, apart from her wearing a Meat Cutters'
badge on a single occasion, the first day of the third
election, the record does not disclose that Prince engaged
in overt activities on behalf of that Union.
The reprimand. The complaint alleges that a formal
reprimand was issued Prince in violation of Section 8(a)(3)
because of her union or protected activity. The disputed
reprimand, which was dated May 26, 1973, and issued by
Store Manager Marvin Toombs recited that it was based
on the following: "Failure to call prices when checking
customers [sic]." Prince concedes both that Toombs
observed her failure to call prices and that other girls had
received reprimands for such an offense. Aside from the
minimal union activity attributed to Prince, her testimony
that, despite the date appearing on the affidavit, she
received it prior to the April 26 election and before she
wore the Meat Cutters' badge further weakens any basis
for inferring that the reprimand was based upon union
considerations. In the posthearing brief of the General
Counsel, the following statement appears: "General
Counsel is not contending at this time that the reprimand
awarded to Elmira Prince on or about May 12, 1973 was
violative of the Act." I shall recommend dismissal of this
allegation.
The reduction of hours. The complaint alleges that
Respondent violated Section 8(a)(1) and (3) of the Act by
reducing Prince's hours from between 20 and 30 hours per
week to 8 hours per week. Undisputed documentary
evidence demonstrates that during the payroll period
ending June 9, 1973, Prince's hours were reduced to about
8 hours weekly. In prior weeks, during calendar 1973,
Prince had worked a high of 42 hours and a low of 26
hours weekly. The Company concedes that the reduction
in question was not attributable to a normal decline in
manning requirements , but nevertheless argues that this
action was directed at Prince for reasons unrelated to any
activity protected by the Act.
Thus, it appears that some time in the spring of 1973,
Prince, on report of an unidentified fellow employee, was
suspected by management (namely, Marvin Toombs, her
store manager) of checking out relatives and giving them
discounts in violation of what is conceded to be company
policy. As a result, Prince and another employee, who was
the object of similarly based suspicion, were required to
take a polygraph test.12 Toombs informed Prince of the
suspicions which created the need for the test. Prince
agreed to the polygraph, and concedes that in the course of
the test, she made the polygraph operator "mad." Accord-
ing to Prince, the operator accused her of lying in response
to questions concerning her giving discounts and checking
to her status in this regard was raised, none can be said to have been fully
litigated and hence this matter is regarded as collateral to the questions
presented by this complaint.
12 The other girl declined to take the test and never again returned to
work.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out relatives and she , further, concedes that when he
repeatedly questioned her as to whether she would like to
set a price on what she had taken from the Company, she
informed the operator : "If there's nothing else, could we
finish the test? . . . Because I have a lot of other things to
do." The operator then said "I bet you do." On that note,
the test apparently ended.
The "Confidential Report" of the polygraph operator
was forwarded to the Company under date of May 12,
1973. The contents of this report were never divulged to
Prince . The report on Prince states as follows:
Evaluation of the poly grams resulting from this
subject's examination , reveals to this examiner signifi-
cant criteria that would indicate deception when this
subject states that she has never eaten saleable
merchandise on the job without paying for it, has never
discounted to anyone, has never checked out a relative
and has answered all questions truthfully.
Toombs, himself, never saw the report . However the
results as reported to Toombs, by Grocery Supervisor
Lopez, were regarded as not sufficiently conclusive to
warrant discharge . However, Toombs' suspicion was not
allayed and he felt that some discipline was in order.
According to his testimony he decided to cut Prince's
hours in the hope , among other things , that she would
subsequently quit.13
I have no reason to doubt Toombs' testimony as to the
basis for his action . Prince was not questioned in the
proceeding as to whether she did or did not engage in the
indiscretions of which she was suspected , and which the
Company argues were the sole basis for the action taken
against her. The General Counsel has offered no proof that
provides a fair basis for disbelieving Toombs , or otherwise
leading to a reasonably based inference that the reduction
in hours was not in truth an act of managerial judgment
unrelated to any union activity . In these circumstances,
and since the usual factors pointing to pretextual discipline
are not present in this case , I find that the General Counsel
has not met his burden of proving unlawful discrimination
with respect to Prince's reduction in hours . Accordingly, I
shall recommend dismissal of the 8 (a)(3) and (1) allegation
based upon this incident.
3. The Alleged Discriminatory Discharges
a. Alfonso M. Garcia
Garcia was also a produce manager. Hired in 1968, he
was discharged on June 15 , 1973. The General Counsel
contends that this discharge was in reprisal for Garcia's
activities on behalf of the Meat Cutters Union. Respondent
defends on grounds that the discharge was based upon
legitimate considerations , both including and growing out
of Garcia's failure to report for work on June 14 , 1973. The
General Counsel seeks to put pretext to the justification
assigned by Respondent by relying , in essence, upon
13 1 note that Prance did quit her job in the fall of 1973 The reasons
behind her quit are not a matter of record , and the General Counsel does
not contend that she was at that time the object of a constructive discharge.
14 As will be seen , infra, I shall discredit Garcia's testimony that he
Garcia's testimony to the effect that Albert Guerra,
Garcia's store manager , gave him permission to take that
day off, and that Calvin Prater knew this at the time that
he terminated Garcia.
Garcia was active on behalf of the Meat Cutters in all
three elections . His activities included the solicitation of
signatures to authorization cards of that union, and he
acted as a union observer at all three elections . He also,
during the campaigns , wore a Meat Cutters' badge . Prater
admits to knowledge of Garcia's union learnings . Accord-
ingly, I am satisfied and find that Respondent was fully
mindful of Garcia's activities on behalf of the Meat Cutters
Union.
The circumstances surrounding his discharge show that
according to Garcia's normal work schedule, he is only to
work from 8 a.m. to 12 noon on Thursdays. On the week of
June 11 , he wanted to take off Thursday morning, June 14.
Garcia first testified that on Monday, June 11, when he
told this to Store Manager Guerra, the latter replied that as
long as Garcia did his job and had everything worked out
in the produce department Garcia could take the day off.
Garcia subsequently testified that Guerra at that time
stated "Ok. I'll go ahead and call Mr . Prater up."
Thereafter on both Tuesday and Wednesday, Garcia
asserts that he again reminded Guerra of his intention to
take Thursday off. Garcia does not indicate in his
testimony that Guerra ever informed him whether the
latter had in fact discussed Garcia's request for time off
with Prater or whether Prater had made any response. Nor
does Garcia testify that he inquired of Guerra as to
whether Prater had approved the request.14
Garcia further testified that he took Thursday off and
about 3 p.m. that day he received a phone call from Guerra
stating that Prater had been in the store and was disturbed
because the produce rack was low. Guerra informed
Garcia that Prater had his timecard and that he was to
report the next day, Friday morning, to Prater's office.
Garcia went to Prater's office the next morning and found
Guerra there. According to Garcia, although it is vague as
to just when this latter incident occurred, he overheard
district grocery supervisor, Joe Anthony Lopez, reprimand
Guerra for failing to report Garcia's taking time off to the
office.15 In any event it is Garcia's further testimony that
apparently some time thereafter Prater came into the office
and asked Garcia what had happened on Thursday. Garcia
said he was off. Prater asked why Garcia didn't notify
anyone at the office. Garcia said he informed Guerra of his
request to take the time off. Prater then asked Garcia
whether he didn't know that he was supposed to call the
office when taking a day off. Garcia was then given a
reprimand based on his failure to report to work on
Thursday, June 13, without first obtaining permission to
take the day off or requesting a replacement. The
reprimand under the section entitled "Action Taken"
states:
The employee is reminded that it was his responsibility
to obtain permission from the store manager and the
obtained permission from Guerra to take Thursday off.
15 As indicated infra, I credit Guerra 's denial that such a conversation
occurred.
SHOP RITE FOODS, INC. 265
produce supervisor before he could take off on a
scheduled workday-warning-further occurrences of
this nature could be cause for dismissal.
That reprimand was signed by Buster Tidwell and Calvin
Prater . After Garcia read the reprimand, Prater asked him
to sign it , which he did. Prater then gave Garcia a second
reprimand based upon Garcia's having worked off the
timeclock the previous day and his failure to make an "ad
loss" report .16 When Prater requested that Garcia sign this
final reprimand Garcia refused to do so stating "you mean
I'm fired , right at that moment." According to Garcia he
also advised Prater in the presence of Guerra that Guerra
had given him permission to take the day off. As a result of
this interview , Garcia was terminated.
On the basis of the foregoing it is apparent that the
immediate reasons assigned for Garcia's discharge by
Respondent consisted of Garcia's taking time off without
permission , his failure to fulfill his responsibilities in
connection with the "ad loss report ," and his working off
the clock.
Garcia denies that in taking Thursday off he did so
without permission and under circumstances violative of
company policy. He admits , however, that he did not take
the inventory necessary to the final preparation of the "ad
loss report" and also admits that while off the clock he
placed his order for additional produce and frozen food
from his home on Thursday morning . In this latter
connection , though Garcia admits knowledge of the
company policy against performing any work while not on
the timeclock , he testified that he did not know that
phoning in an order while not working was violative of that
policy. According to his testimony he informed Prater
during the discharge interview that this phone call only
took 3 minutes.17
Unlike the ad loss report and off-the-clock aspects of the
discharge which, at least factually, are conceded by Garcia,
the circumstances surrounding his taking time off are the
subject of a sharp conflict in testimony. His former store
manager , Guerra, who later quit Respondent's employ,
testified that on each occasion when Garcia told him of his
plan to take off that Thursday, Guerra told him to check
with Prater . All agree that Garcia never did so. Concerning
16 The functions of a produce manager with respect to the ad loss report
was to compile an inventory on Thursday mornings and Saturdays of sale
items appearing in newspaper advertisements on previous days, referred to
as an ad cycle . Thus, Respondent advertises various "leaders" in the Sunday
and Wednesday papers. The items covered in the Sunday newspaper are on
sale on Sunday, Monday , Tuesday, and Wednesday with those appearing in
the Wednesday paper being in effect on Thursday, Friday, and Saturday.
The ad loss report , which was prepared by the various produce managers,
was designed to give the company an idea of the merchandise cost of its
sales . An inventory of the quantity of ad items would be on hand at the
beginning of the ad cycle and the produce manager upon termination of the
ad period , would again take an inventory of those items to determine the
quantities sold. This inventory was to be taken on Thursday morning and
Sunday morning . Garcia admits that he had been previously criticized for
failure to submit his ad loss report on a timely basis and that Store Manager
Guerra had reported to him on one such occasion that Prater had been
inconvenienced because of his failure to do so . There is no question that due
to his absence on Thursday, June 14, Garcia was unable to take the closing
inventory necessary to accurate completion of his "ad loss report."
17 Garcia's testimony as to the amount of time worked off the clock is
somewhat confused by his account of the portion of the discharge interview
dealing with how Garcia would be compensated for time spent off the clock.
the discharge interview, Guerra flatly denies that, as
asserted by Garcia, he that morning had any conversation
with or was rebuked by District Grocery Supervisor Lopez.
He also denies that Garcia, during the discharge interview,
told Prater that he, Guerra, had given Garcia permission to
take off that Thursday. According to Prater, at that
interview, during an exchange between Garcia and Guerra,
Garcia stated that he had asked Guerra for the day off, but
Guerra, then and there, corrected Garcia, stating that
Garcia told him he was going to take the day off and that
Guerra informed him "to check with Mr. Prater first."
I am unwilling to credit the testimony of Garcia where
contradicted by that of Prater and Guerra. Guerra, who
now works for one of Respondent's competitors, was a
highly persuasive witness who testified as if having no
interest whatever in the outcome and related his responses
to counsel's interrogation in a straightforward, direct
manner. I was also impressed with the demeanor of Prater
whose account, as corroborated by Guerra, was more
consistent with the probabilities than that of Guerra. On
the other hand I regarded Guerra as unreliable and
impelled to express his version of crucial incidents in a
manner that would further his cause. His testimony was
marked by frequent contradictions, including an attempt
to create the impression that his history of employment
with Respondent was unblemished, when in fact, this was
not the case at all.is In addition Garcia's testimony
reflected a tendency on his part to transfer to others what
quite obviously was his own responsibility. Thus, though
Garcia had previously received a reprimand on April 5,
1973, for failure to make price changes correctly and on
time, when questioned as to whether he subsequently made
these changes on the day he took off, Garcia attempted to
explain this away by testifying that effecting price changes
was the store manager's responsibility. In the face of these
contradictions, my distrust of Garcia's demeanor, and
what I regarded as an attempt by Garcia to tailor his
testimony in a manner consistent with his self-interest, I
regard his testimony as unworthy of belief.
Based on the foregoing, particularly the credited testimo-
ny of Prater and Guerra, I find that the reasons assigned
by Respondent for discharging Garcia are factually
substantiated and constitute valid cause. The indiscretions
Thus, through his testimony Garcia seems to draw a distinction between
preparation of the order and the actual telephone call, so as to create the
impression that the only off-the-clock work he performed was the telephone
call However , his statements to Prater apparently were not to that effect.
For, Garcia concedes that Prater paid him for an hour's work on Thursday.
The only sensible interpretation I can place on this extra compensation is
that it related to the time consumed by Garcia in the work performed off the
clock . Prater only agreed to pay this compensation when he was informed
by Garcia that preparation of the order took I hour. It is my impression
from the entirety of Garcia's testimony that he did not , in his conversation
with Prater concerning this matter, convey that his time off the clock was
limited to a 3- to 5-minute phone conversation
Is For example , Garcia first testified that he never had any problems
keeping his produce rack full, and repeatedly , on questioning by the
General Counsel, denied that he had ever received a formal reprimand.
Later, however, Garcia admitted that he had been transfered to a smaller
store in the past because he had been unable to maintain his department's
volume of business in the larger store. Furthermore , Garcia admitted, when
confronted with documentary evidence on cross examination, that he had
previously received written reprimands on January 2, 1970, January 1972,
and April 1973
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attributed to Garcia involved a serious infraction of
company rules,19 and there is no showing that Respondent
ever had condoned such misconduct or that its policy was
disparately applied to Garcia because of his support of the
Meat Cutters Union. Accordingly, I find that the 8(aX3)
and (1) allegations relative to his discharge are lacking in
merit and I shall recommend their dismissal.
b. The discharge of Mary Alvarez
Alvarez was hired on October 23, 1972, and assigned to
Store # 126 where she worked until her discharge on July
18, 1973. At the outset of her employment she worked as
an "office girl." In such capacity, Alvarez was responsible
for relieving the store manager of paperwork. She also
performed such utility functions as the making of signs, the
ordering of tobacco and candy, the training of new
checkers, and filling in as a checker when needed.
Despite the greater responsibilities and broader aptitudes
required of those in the office girl position, it was
Respondent's policy that this is a prestigious job with great
opportunities for enhancing skills, and that therefore office
girls should feel privileged with such status though
compensated at the same pay level applicable to ordinary
checkers. Alvarez did not regard this pay parity with
checkers as fair, and at some time in early 1973 she sought
a wage increase . She discussed this with Store Manager
Peterson and Assistant District Manager Lutich. When she
received no definite responses she eventually contacted
District Grocery Manager Lopez.
During this meeting with Lopez, some time in March
1973, Alvarez explained that she felt it to be unfair that
ordinary checkers and office girls should be paid at the
same wage level. She indicated that she had heard nothing
from other management officials concerning her prior
requests for an increase. Lopez told Alvarez that office girls
do not automatically earn at higher rates than checkers
and that if she was not interested in the prestige of her
position, she could cease to function as an office girl and
revert to the status of a checker. Alvarez stated that she
wished more money, and indicated that she wanted to
transfer to another store where the girls earned more.
Lopez said that she would not have to transfer, but that she
could earn more by working the 10 p.m. to 7 a.m. shift,
making her eligible for a 10 cents hourly differential.20
Alvarez declined to accept this suggestion, as she was the
mother of five children.
After this conversation, Store Manager Peterson in-
formed Alvarez, after Lopez discussed the matter with him,
that she was no longer an office girl, and that upon posting
of the new schedule, she would be put on the 10 p.m. to 7
a.m. shift. In addition, Alvarez, who, to supplement her
39 I find that company policy applicable to produce managers required
that a request for time off be addressed to Prater in order that he might
obtain a replacement should he assent . I rely, in this regard on the testimony
of Prater , Guerra, and Produce Manager Serna, who though an aggressive
supporter of the Meat Cutters and a witness for the General Counsel,
testified that obtaining the assent of Prater was a prerequisite for the taking
of time off and was standard operating procedure . 1 note, however, that this
finding is not necessary to the result reached , since I find that Guerra
instructed Garcia to check with Prater before taking off, a step admittedly
neglected by Garcia . It is plain therefore that Garcia took off Thursday,
June 14, without authorization.
earnings, had been working in another of Respondent's
stores on Sundays, was informed that she no longer could
work at that location.
The threatened shift change did not in fact materialize,
and Alvarez continued to work the day shift. Although no
longer holding the title of office girl, Respondent did not
replace Alvarez with any one in that classification.
Accordingly, Alvarez was repeatedly called upon to
perform the paperwork associated with that job.
Alvarez was discharged on July 18, 1973. Prior thereto
Peterson, in mid-June had taken his vacation, and was
replaced by Assistant Store Manager Ramos. During this
period, Alvarez contacted the main office for advice in
connection with a problem she had with an invoice.
Subsequently Lopez telephoned Ramos, who thereafter
informed Alvarez, that Lopez did not want her performing
office work, since she had been unhappy as an office girl
and Lopez did not want her to be unhappy any more.
Nonetheless, Ramos continued to ask her to perform such
duties when the work piled up, for, other than Ramos,
there was no one else to do it. Subsequent to his telephone
call to Ramos, Lopez appeared in the store, and Alvarez
attempted to clarify her responsibilities with respect to the
store's paperwork. Lopez told her she would have no
problems if she continued to abide by the instructions of
the assistant store manager,
On Monday, July 16, Alvarez had volunteered to work
the night shift because of a personnel shortage at the store.
About I a.m., Lopez arrived at the store, purchased
something, and checked out through Alvarez' register.
Alvarez was then, in addition to checking out customers,
engaged in some paperwork. She checked out Lopez, they
engaged in small talk, and apparently nothing further of
consequence occurred at that time.
Alvarez was next scheduled to work at 7 a.m. on July 18.
She arrived at the store and observed Store Manager
Peterson talking to a "new" girl. Peterson then left and
Alvarez was approached by the "new" girl who asked what
had happened to the store's former office girl, also stating
that she was there temporarily until the Company trained a
replacement. During this conversation Peterson returned,
stating that he would like to talk with Alvarez. Alvarez was
then informed of her termination, which Peterson attribut-
ed to a need to cut down on full-time people, the assertion
that she had asked to transfer and wasn't happy in the
store, that she had criticized company policy, that she had
created low morale among other employees in the store,
that she had divulged confidential office information to
other employees, and that, while she was friendly with
regular customers, she acted as a "zombie" towards others.
Alvarez during her employment with Respondent had a
commendable attendance record, had never received a
In my judgment , the seriousness of Garcia's absence is pointed µp by the
various special duties that produce managers are called upon to perform on
Thursday mornings . These include completion of the ad loss report for the
prior ad cycle; ordering merchandise for Friday, Saturday, and Sunday;
and the changing of prices to reflect changes in advertised items. All were in
addition to normal daily duties and were neglected by Garcia in taking off
that day.
20 Based upon the crgdited testimony of Alvarez. Reference to the night-
shift wprk was emitted from the testimony of Lopez, and in this regard, I do
not regard h1y account of the above conversation with Alvarez as in direct
conflict with the latter's version.
SHOP RITE FOODS, INC.
reprimand, and from the specifics of her testimony,
impressed me as being a highly capable, work-oriented
individual who would not hesitate to volunteer her
employment services when conditions in the store itidicat-
ed a need . Lopez conceded that Alvarez was a good
mechanical worker.
Alvarez was initially indifferent towards union activity
and, while informing her original store manager, Henning,
of this, she also advised that she would let Henning know if
she had a change of heart. When she joined the Meat
Cutters Union in February 1973, Alvarez informed
Henning that she had done so. Alvarez was the only Meat
Cutters supporter in the store. Employees at that store were
described by her as weakly oriented towards organization.
As a result, and on advice of a Meat Cutters' official, she
neither wore a badge nor engaged in overt union activity.
However, some 2 weeks after the election of April 26, 1973,
Alvarez did circulate a petition in the store for employee
signature which was sponsored by the Meat Cutters and
aimed at prompting the NLRB to direct an immediate
rerun election. If any doubt exists from the foregoing of
Respondent's knowledge of Alvarez' union activity, that
fact and Respondent's specific animus towards Alvarez is
clearly established through the credited, uncontradicted
testimony of Leonard Serna relative to a conversation he
had with Store Manager David Gandin. Both were at that
time assigned to the store in which Alvarez later worked
the extra Sunday shift. Prior to the election in April 1973,
Alvarez came into that store to shop. Serna saw her and
said "Hello, Mary." Gandin asked Serna if she were the
Mary who worked at store # 126. Serha replied in the
affirmative. Gandin then said "Yes, Oh, she's involved with
that Union too much. She can get fired for it.,, 21
In my opinion, the foregoing is ample to substantiate,
prima facie,the General Counsel's contention that Re-
spondent, in terminating Alvarez, acted to rid itself of a
Meat Cutters supporter in a store where other employees
had not then been responsive to that Union's organization-
al efforts. This sudden termination of a known union
affiliate, with a previously unblemished work record, and
without prior notice or warning, strongly suggests that the
action taken against Alvarez was in implementation of the
disposition on the part of management implicit in Store
Manager Gandin's remark to Serna.
The inference of discrimination that flows from the
above is hardly diminished by Respondent's explanation
21 Serna was a produce manager and a highly active employee organizer
for the Meat Cutters Union. Within Respondent 's management , Serna was
regarded as a highly capable employee with a reputation for honesty I was
highly impressed with Serna, and find him entirely credible . Gandin did not
testify. I discredit Lopez' denial of knowledge of the union activity of
Alvarez . I was not impressed with Lopez' demeanor, and, on other matters,
regarded Alvarez as a far more persuasive witness who presented her
testimony in a straightforward fashion , free of any suggestion of coloration.
Further as will be seen infra, I regard Lopez' account of the reasons
underlying this discharge as totally unbelievable . Thus, I have also credited
Alvarez where her testimony conflicts with that of Lopez.
22 Lopez previously demonstrated a propensity to make quick , unreason-
able assumptions as to Alvarez' happiness with her job. Thus when Alvarez
questioned the fairness of management 's policy of not paying office girls
more than checkers , Lopez took this as indicating that Alvarez was unhappy
as an office girl.
23 Peterson did not testify and hence there is no direct evidence that the
problem concerning her attitude had ever been mentioned to Alvarez. I
267
for the action taken against Alvarez. District Grocery
Manager Lopez testified as to the circumstances surround-
ing the discharge of Alvarez. According to his testimony,
the sole basis for that action was a poor attitude reflected
by Alvarez in her dealings with other employees and
customers. While such misconduct would be open and
engaged in within the view of others, I note with interest
that not a single witness was called to corroborate Lopez in
this regard.
According to Lopez, through his frequent visits to Store
# 126, he had opportunity to observe Alvarez in the
performance of her duties. On such occasions he noted that
Alvarez did "not convey a friendly attitude toward .. .
customers," and that she acted "not in such a manner that
you could see that she was happy with her work or that she
was happy with her job,"22 and that "she seemed to be
doing it as something that had to be done rather than
something she wanted to do, sort of a distasteful approach
to it." Despite this, Lopez concedes that he never discussed
these impressions with Alvarez. Instead he claims to have
discussed the matter several times with Peterson, request-
ing Peterson to talk to her. According to Lopez, Peterson
subsequently indicated to him that he had done s0.23 Just
prior to the discharge, Lopez asked Peterson whether
Alvarez had improved. When Peterson replied in the
negative, Lopez suggested termination and Peterson
agreed. Peterson then effected the discharge.
I find Lopez' testimony completely unbelievable. It is
incredulous that a good worker would be terminated under
such conditions and on such flimsy grounds.24 This is
particularly the case when one considers Respondent's
cautious policy toward discharges evident from the
testimony of Toombs and Lopez, himself, in connection
with the treatment of Elmira Prince.25 The discharge of
Alvarez hardly squares with these expressions of manage-
ment's reluctant approach to this form of discipline. There
is also the question of why, Lopez, though.the moving
influence in the discharge decision, at no time, despite, his
frequent confrontations with Alvarez, voiced any criticism
to her based upon his own experience with her attitude or
that of Peterson, other employees, or customers.26 Indeed,
this failure of Lopez to counsel her, or to obtain more
direct evidence assuring that she had been counseled, is
also difficult to understand in the face of his admission that
Alvarez was a good mechanical worker.27 Also curious is
the absence of any explanation as to what provoked the
credit her denial that any such discussions took place with Peterson , Lopez,
or anyone else
24 Alvarez' uncontradicted and credited description of the reasons for
the discharge related to her by Peterson indicate that Peterson cited several
items which Lopez repudiated as not entering into the discharge decision.
The variance between Lopez ' testimony and Peterson's statements in
discharging Alvarez is perfectly consistent with an attempt on Peterson's
part to exaggerate and make more persuasive to Alvarez the justification for
the action against her.
25 Note also the three reprimand policy described by Prater in his
testimony concerning the discharge of Garcia.
26 Lopez testified to only one instance in which, from secondary sources,
he heard that a customer had complained that Alvarez acted in an abrupt
and rude fashion.
2T The record as a whole leaves me with the clear impression that those
occupying the position of office girl bung greater skills to their jobs than
ordinary checkers , and if effective in their work , are valuable employees.
While the competence of Alvarez in performance of her duties is not
(Continued)
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge conversation between Lopez and Peterson, since
the record is devoid of evidence imputing misconduct to
Alvarez at times proximate to that incident.
In sum, Respondent points to no incident which would
explain the timing of the action against Alvarez and its
entire defense rests on vague general testimony more in the
nature of accusation, than substantiated fact. It would
seem that termination of a good worker would be subject
to far more convincing proof that has been offered here;
that is, unless the true reason for Respondent's action lay
elsewhere. Indeed, I find the latter to be the case, and that
Alvarez was terminated to eliminate a potentially aggres-
sive individual from influencing others, in a nonunion
store, to support the Meat Cutters. I find that Respondent
thereby violated Section 8(a)(1) and (3) of the Act.
D. The Alleged Interference with Board Processes
In mid-April 1974, Respondent offered reinstatement to
Elmira Prince,28 Alfonso Garcia, and Mary Alvarez. Prince
and Lopez, pursuant to these offers, returned to work.
Mary Alvarez initially declined to accept reinstatement
because, in her case, the offer was not to her former
location, but to a store located at some distance from her
residence.
Following the transmittal of these offers of reinstate-
ment, a letter dated April 19, 1974, over signature of
Respondent's counsel, Durwood D. Crawford, was sent to
the Regional Director for Region 23, with copies to Prince,
Garcia, and Alvarez. The letter recited as follows:
"Dear Sir:
In an attempt to settle and resolve the substance of the
above Complaint, which is presently set for trial on April
30th, the Company officials and the officials of the
Meatcutters Union, the Charging Party, met and worked
out the following settlement:
Mary Alvarez, Alfonso Garcia and Elmira Prince would
be offered reinstatement by the Company to the positions
they previously held, but such reinstatement would be
without any back pay. The Company would remove the
reprimands issued to Juan Lopez, Almira Prince and Joe
Escobedo. No NLRB Notice would be posted, in line with
the Company's contention-which it still maintains-that
it did not violate the Act. This information was conveyed
to your office.
You now advise that in order for the Complaint to be
dismissed and eliminate the trial, back pay in the amount
of 80% of lost revenue must be paid to each of the three
individuals . This involves approximately $480.00 to Mary
Alvarez, $1,240.00 to Alfonso Garcia and $716.00 to
Elmira Prince. This information was conveyed to the
undersigned on April 18th, at which time you further
advised that the reinstatement offer to Mary Alvarez was
to Store No. 121, which was 26 miles from her residence
and unacceptable as a reinstatement offer. The offer to re-
questioned by Respondent, her value is affirmatively indicated by the fact
that she continued to perform office work, without need for a new office girl
to replace her, even after she was stripped of that title
2$ Elmira Prince had previously quit her employment in the fall of 1973.
The complaint raises no issue as to the legitimacy of her separation at that
time and therefore the offer of reinstatement made to her could not be
employ her at Store No. 121 apparently occurred through
an intra-Company communications breakdown. This has
already been corrected and she has been advised that the
offer is to Store No. 126-the store where she previously
worked. Also, the Company has offered reinstatement to
Elmira Prince, although this remedy was not sought in the
Complaint.
However, in light of the information given to me, that the
23rd Region will not approve a settlement on this basis, but
would require the Company to pay approximately
$2,436.00 in back pay, the Company regards the settlement
proposal as being rejected and, therefore, null and void.
Accordingly, the reinstatement offers will be withdrawn
effective Friday, April 26, 1974, and the employment of
these persons will be terminated as of that date, although
Mr. Garcia has already returned to work and Ms. Alvarez
and Ms. Prince may have done likewise by the time this
letter is received. In order that the reasons for the
Company's actions will be understood, I am sending copies
of this letter to all involved parties, including the three
named employees involved to advise them that, unless they
are notified to the contrary, their employment with Shop
Rite Foods will be terminated as of such date.
VERY TRULY YOURS,
DURWOOD D. Cn wi of DS "
Based upon this letter, the complaint was amended on
request of the General Counsel at the outset of the hearing
to allege that Respondent threatened to discharge Garcia,
Alvarez, and Prince "unless the Board would approve
reinstatement without backpay as a remedy for the prior
discrimination practiced against them . . . , to discourage
said employees from further participating, or from testify-
ing at the ULP Hearing before a duly designated ALJ."
The amendment went on to allege that by virtue of said
conduct, Respondent violated Section 8(a)(4) and (1) of the
Act. The threshhold issue in connection with this allegation
is whether Respondent discharged or otherwise discrimi-
nated against Prince, Garcia, and Alvarez within the
meaning of Section 8(a)(4).29 In this regard the facts show
that Elmira Prince, having received a copy of Crawford's
letter, did not report to work on April 27 and 28, 1974,
because she thought she had been terminated on Friday,
April 26, as indicated in the letter. Alvarez, after receiving
said letter, called District Manager Tidwell on April 24,
1974, in connection with indications she had received that
the Company on discovering that it inadvertently offered
her reinstatment to an unacceptable location, was willing
to modify that offer to accommodate her. When Tidwell
offered her a job as of Monday, April 29, 1974, at a more
appropriate location, Alvarez referred him to Crawford's
letter and its declaration that she would be immediately
discharged. Tidwell denied knowledge of the letter. After
Alvarez indicated to Tidwell that she felt that the
regarded as an attempt to fulfill any statutory obligation attributed to
Respondent through the instant complaint
29 Section 8(a)(4) makes it an unfair labor practice to discharge or
otherwise discriminate against an employee because he has filed charges or
given testimony under this Act.
SHOP RITE FOODS, INC. 269
Company's offer of reinstatement in the face of Crawford's
letter amounted to "somebody . . . playing games" with
her, the conversation ended . Prior to the hearing, which
opened on April 30, 1974, Alvarez had no further
conversation with company representatives concerning her
reinstatement . Garcia testified that he was reinstated on
Tuesday, April 23, 1974, and apparently was not influ-
enced by Crawford's letter since he reported for work on
Saturday, April 27, 1974, and the record does not suggest
that he lost any work in consequence of the representations
made on behalf of the Company in that letter.
I am satisfied that Crawford's letter of April 26, 1974,
had no effect whatever upon the job tenure or terms of
employment of Garcia. Further, the evidence as to Alvarez
hardly indicates that her reinstatement was delayed by
virtue of that letter, since, following its receipt, she
continued to seek clarification of aspects of the original
offer of reinstatement which she found objectionable.30 As
I am satisfied that the General Counsel has not established
that either Garcia or Alvarez lost work or otherwise had
their employment opportunities impaired as a result of
Crawford's letter, I cannot find that they were objects of
discrimination as required by Section 8(aX4).31
On the other hand, Prince, as of April 26, 1974, was
actively employed, and did not work the following
weekend because , through counsel, the Company had
declared that her employment would end on that date. As I
read Crawford's letter, that declaration was manifested in
absolute, unconditional terms, and Prince could hardly be
said to have acted unreasonably in assuming was terminat-
ed. The record indicates that she received no indication
that that effective April 26, 1974, "unless . . . notified to
the contrary," she she had not been terminated until
Monday, April 29, 1974. I fmd that Crawford's letter
effectively led Prince to believe that she was discharged as
of April 26,32 and that her failure to work during the
ensuing weekend was attributable to that representation. I
am also satisfied that said discharge was based upon a
motivation proscribed by Section 8(aX4) and (1) of the Act.
Though, perhaps, a tactical maneuver on the part of
Respondent to induce the Region to accept the terms of
the private settlement agreement , the letter set forth above
was also calculated to influence reinstated employees, who,
perhaps had greater interest in their jobs , than further
backpay, to no longer cooperate with the Board, and,
possibly to decline to testify at the hearing scheduled for
the following week. The fact that Prince subsequently did
testify at that hearing neither neutralizes the unlawful
motivation underlying her loss of 2 days' work nor
precludes a remedy for such discrimination . Accordingly, I
find that Respondent violated Section 8(aX4) and (1) of the
Act, by, in effect, denying Prince employment to discour-
age her from testifying at an unfair labor practice hearing.
30 On this issue , I regard as immaterial the question of whether the
original offer of reinstatement was legally sufficient to impose a duty of
acceptance upon Alvarez, on pain of loss of further backpay. All that
concerns me here is whether, by virtue of Crawford's letter, the tenure of
Alvarez' employment was adversely affected.
31 My failure to find this additional violation as to Alvarez in no way is
intended to affect the backpay to which she may be entitled as a result of
her earlier discharge , which I heretofore have found to have violated Section
8(ax3). My failure to find the additional 8(aX4) violation is based solely
upon the absence of any showing that Alvarez sustained an additional loss
I also find that the statement in Crawford's letter that all
reinstated employees would be terminated on April 26,
1974, at the very least, constituted a threat, plainly
calculated to induce Prince, Garcia, and Alvarez to cease
to participate in the further prosecution of unfair labor
practice claims made in their behalf, thereby independent-
ly violating Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Shop Rite Foods, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Local 171, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening discharge of reinstated employees
under circumstances tending to discourage them from
testifying in an unfair labor practice proceeding, Respond-
ent has violated Section 8(a)(l) of the Act.
4. By discharging Mary Alvarez because of her union
activities, Respondent has violated Section 8(a)(3) and (1)
of the Act.
5. By terminating Elmira Prince, and thereby causing
her to lose 2 days' work, under conditions calculated to
discourage Prince from testifying in an unfair labor
practice proceeding, Respondent has violated Section
8(a)(4) and (1) of the Act.
6. Respondent has not violated Section 8(a)(1) of the
Act by failing to submit lists of employees names and
addresses in conformity with the Board's Excelsior policy,
by implementing new benefits, by laying off Virginia
Carlisle, by threatening Jesus Diaz, or by misrepresenting
the election voter eligibility date.
7. Respondent has not violated Section 8(a)(3) and (1)
of the Act by issuing formal reprimands to Juan Lopez,
Elmira Prince, and Joe Escobedo, by reducing the hours of
Elmira Prince, or by discharging Alfonso M. Garcia.
8. The unfair labor practices found above have an
effect upon commerce within the meaning of Section 2(6)
and (7) of the Act.
The Remedy
To effectuate the policies of the Act, it is recommended
that Respondent be ordered to cease and desist from the
unfair labor practices found, and from any other like or
related misconduct, and to take the affirmative action
described below and set forth in the recommended Order.
Having found that Respondent engaged in unlawful
discrimination which resulted in Elmira Prince's failure to
report to work for a period of 2 days, I shall recommend
that Respondent make her whole for any loss of earnings
as a result of Crawford's letter.
32 My finding in this regard is made with full consideration of a
stipulation made at the outset of the hearing to the effect that Respondent
took no action with respebt to Crawford's letter but had "deferred any
action to reterminate." As I construe that stipulation, it merely means that
further affirmative steps to effectuate the discharges were not taken.
However, since the last paragraph of that letter was never rescinded , and the
discharge statement therein was absolute, the stipulation in no way bars an
8(ax4) finding based upon an employee 's reliance on the original forecast of
discharge.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she may have suffered by reason of the discrimination
against her by payment to her of a sum equal to that which
she would have earned as wages on April 27 and 28, 1974.
It having been found that Mary Alvarez was discharged in
violation of Section 8(aX3), I shall recommend that
Respondent make Alvarez whole by payment to her of a
sum of money equal to that which she would have earned
from the date of the discrimination against her to a date, 5
days after May 2, 1974, when a valid, unconditional offer
of reinstatement was made to her. As all parties concede
that said offer was valid and proper, I shall not recommend
that Respondent again be directed to offer Alvarez
reinstatement . The backpay due to Prince and Alvarez
shall be computed in accordance with the formula set forth
in F.W. Woolworth Company, 90 NLRB 289 (1950), with
interest at the rate of 6 percent per annum as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER33
Respondent, Shop Rite Foods Inc., San Antonio, Texas,
its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Threatening, discharging, or otherwise discriminating
against employees either in a manner discouraging them
from giving testimony under the Act, or because of their
union activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
33 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 the following affirmative action designed to
effectuate the policies of the Act:
(a) Make Elmira Prince and Mary Alvarez whole for any
loss of pay they may have suffered by reason of the
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of the amount of
backpay due under the terms of this recommended Order.
(c) Post at its San Antonio , Texas, places of business
copies of the attached notice marked "Appendix." 34
Copies of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's representative , shall be posted by it immedi-
ately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places , includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the said Regional Director , in writing, within
20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the
complaint not found to have been established by a
preponderance of evidence herein be, and they hereby are,
dismissed.
s+ In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board. "