Superior Warehouse Grocers, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1985

277 N.L.R.B. 18 (N.L.R.B. 1985)

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Warehouse Grocers, Inc. and Robert Te-
treault and Local 1428, United Food and Com-
mercial Workers International Union, AFL-
CIO. Cases 21-CA-22061, 21-CA-22242, 21-
CA-22370, 21-CA-22418, and 21-CA-22555
30 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 19 June 1985 Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Superior
Warehouse Grocers, Inc., Los Angeles, Covina,
and Lynwood, California, its officers, agents, suc-
cessors, and assigns , shall take the action set forth
in the Order.
Frank M. Wagner, Esq., for the General Counsel.
Norman E Jones, Esq. (Jones, Jones, & Jones), of San
Simeon, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge.
This matter was heard in Los Angeles, California, on 4
December 1984. The charge in Case 21-CA-22061 was
filed by Robert Tetreault on 14 March 1983 and was
amended on 6 May 1983.1 On 17 May the Regional Di-
rector for Region 21 of the National Labor Relations
Board (NLRB or Board) issued a complaint in Case 21-
CA-22061 on behalf of the General Counsel of the
Board . Local 1428, United Food and Commercial Work-
ers International Union, AFL-CIO, CLC (Union) filed
the charge in Case 21-CA-22242 on 9 May; that charge
was amended on 26 May. On 8 July the Regional Direc-
tor for Region 21 issued an order consolidating Cases
21-CA-22061 and 21-CA-22242, and a consolidated
amended complaint . On 28 June the Union filed Case 21-
CA-22418. On 26 October the Regional Director for
Region 21 issued an amended order consolidating the last
' Unless specified otherwise , all dates hereafter refer to the 1983 calen-
dar year.
two cases with the former two cases and an amended
consolidated complaint . On 7 September the Union filed
Case 21-CA-22555 which was amended - on 23 Novem-
ber. On 3 December the Regional Director for Region
21 issued a second amended order consolidating all of
the pending cases and a second amended consolidated
complaint (complaint), which constitutes the operative
pleading of the General Counsel in the instant proceed-
ing, alleging Superior Warehouse Grocers, Inc. (Re-
spondent) had engaged in various unfair labor practices
in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act.
The Respondent timely answered all of the General
Counsel 's complaints , including an answer of 27 Decem-
ber to the operative pleading in this matter . The Re-
spondent's final answer admitted certain allegations of
the complaint and denied others including the alleged
unfair labor practices.
On the entire record , my observation of the witnesses
who testified in this matter, and my careful consideration
of the timely posthearing brief filed by the General
Counsel, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation engaged in
the retail sale of groceries and sundry items at Covina
and Los Angeles, California, derived gross revenues in
excess of $500,000, and purchased and received goods
and supplies valued in excess of $50,000 from suppliers
located outside the State of California in the 12-month
period preceding the issuance of the complaint. The Re-
spondent admits that it had been at all material times an
employer engaged in commerce or a business affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and I so find. I further find that it would
effectuate the purposes of the Act for the Board to assert
jurisdiction over the labor dispute described below.
II. THE LABOR ORGANIZATION INVOLVED
At the hearing the Respondent amended its answer to
admit that the Union has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act, and I so find.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case focuses on conduct on supervisors and
agents of Respondent at its Covina, California store be-
tween January and August. In addition to that store, Re-
spondent operated a similar store in Los Angeles. The
Covina store ceased operating in November. In March
1984, Respondent opened a store in Lynwood, Califor-
nia.
At the relevant times, James Oh was Respondent's
president and was believed by employees to be Respond-
ent's owner. Between December 1982 and August, the
Covina store was managed at one time or another by
Ronald Simmons, Larry Fellbaum, Frank Ingram, and
277 NLRB No. 10
SUPERIOR WAREHOUSE GROCERS 19
Gus Alvarez.2 All appear to have reported directly to
Marie Song , known as the "store director" and believed
by employees to be a relative of Oh. In the same period
Robert Blueford was the assistant store manager at
Covina and Michael Toupal was the grocery manager.
Sandra Sexton was a frontline manager overseeing the
work of 20 or so cashiers employed at Covina. Respond-
ent admitted that all of the foregoing individuals were
supervisors and agents.
Respondent denied that James Blake, alleged to be a
frontline manager, was a supervisor . As the evidence
shows that Blake was Sexton's predecessor in that posi-
tion and that the extent of Sexton 's authority clearly
shows that she was a supervisor, and as Simmons testi-
fied without contradiction that Blake hired and fired em-
ployees, I find that Blake likewise was a supervisor.
Curtis Vandeveld, a representative of the Union, made
efforts at various times since 1981 to organize the Covina
employees . During one period, the Union deferred its or-
ganizing efforts following a plea by Oh to allow- a period
of time for the store to become a profitable operation.
Oh promised that in return he would later discuss union
recognition.
The organizing drive appears to have been renewed in
earnest in early January . Added impetus to that drive
was provided in early March by Ronald Simmons imme-
diately following his term as store manager .3 A petition
for an NLRB election was filed in May but was later dis-
missed following the close of the Covina store. The
Union established a picket line at the Covina store in late
July to protest Respondent 's unfair labor practices. The
picketing continued through September.
B. The Alleged 8(a)(1) Violations
Paragraph 6 of the complaint alleges 32 separate acts
between January and 2 August by 9 of the Respondent's
supervisors which are alleged as unfair labor practices in
violation of Section 8(a)(1) of the Act in paragraph 10 of
the complaint . At the hearing, Respondent amended its
answer to admit that it engaged in all of the conduct al-
leged in complaint paragraph 6 except subparagraph 6(d)
which alleges that James Oh threatened employees with
physical harm if the employees selected the Union as
their collective-bargaining representative .4 However, Re-
spondent did not amend its answer to admit that such
conduct constituted violations of Section 8(a)(1) as al-
leged in paragraph 10. Chronologically, the conduct ad-
mitted by the Respondent is as follows:
1. On an unspecified date in January , Ronald Simmons
interrogated employees concerning their union activities
and the union activities of their fellow employees.
2. On an unspecified date in January, James Blake
threatened employees with discharge because of their
support for the Union.
2 Although the admitted allegation lists Alvarez ' position as frontline
manager , the testimony shows that Alvarez was the store manger.
0 Tetreault 's charge alleged discrimination by Respondent against Sim-
mons but there is no evidence concerning the circumstances of Simmons'
departure as the Covina manager
4 In admitting the conduct alleged in complaint pars . 6(g) and (h), the
Respondent admitted that the agent and supervisor responsible was Frank
Ingram rather than Larry Fellbaum as alleged in the complaint
3. About 1 February, James Oh engaged in the follow-
ing conduct at the Respondent 's Covina facility: threat-
ened employees with closure of the business and dis-
charge if they continued to engage in union or other pro-
tected concerted activities ; conveyed to employees the
futility of seeking union representation ; made promises of
medical insurance benefits in an effort to have employees
abandon their support of the Union; and solicited em-
ployees to engage in surveillance of their fellow employ-
ees' union acitivities.
4. About 12 March Michael Toupal engaged in the fol-
lowing conduct at the Covina store: created the impres-
sion of surveillance of employees ' union or other protect-
ed concerted activities ; threatened employees with trans-
fer to Respondent 's Los Angeles facility and other re-
prisals to induce them to abandon their union and other
protected concerted activities ; and threatened a reduc-
tion in hours and other reprisals to induce employees to
abandon support of the Union.
5. About 13 March James Oh engaged in the following
conduct at the Covina facility : created the impression of
surveillance of employee union or other protected con-
certed activities; interrogated employees about union ac-
tivities; threatened closure of the business and discharge
if employees continued to engage in union and other pro-
tected concerted activities ; conveyed to employees the
futility of seeking union representation; solicited employ-
ees to abandon union support and other protected con-
certed activities ; and threatened a reduction in hours and
other reprisals because employees had engaged in union
and other protected concerted activities.
6. On an unspecified date in late March or early April,
Frank Ingram threatened the closure of the Covina facil-
ity if employees selected the Union as their collective-
bargaining representative.
7. About 31 May Sandra Sexton interrogated employ-
ees concerning their union activities and the union activi-
ties of their fellow employees.
8. On an unspecified date in May, Sandra Sexton, at
the request of Larry Fellbaum , engaged in the surveil-
lance of employees ' union activities at the Covina facili-
ty.
9. On an unspecified date late May or early June,
Frank Ingram threatened employees at the Covina facili-
ty with discharge because of their support for the Union.
10. About 16 June Larry Fellbaum engaged in the fol-
lowing conduct at the Covina facility: interrogated em-
ployees concerning their union activities ; and threatened
employees with discharge for engaging in union and
other protected concerted activities.
11. About 20 June James Oh told employees that they
could not select the Union as their collective-bargaining
representative.
12. About 22 June James Oh engaged in the following
conduct at Respondent 's Covina facility: threatened em-
ployees with surveillance of their union activities; told
employees that Respondent would refuse to bargain with
the Union if it was selected as the employees ' collective-
bargaining representative ; told employees that the Re-
spondent would force the Union to strike and picket if it
was selected as the employees ' collective-bargaining rep-
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative ; made promises of pay raises if employees
abandoned support of the Union; and made statements
which created the impression that employees ' union or
other protected concerted activities were under surveil-
lance by Respondent.
13. About 22 June Robert Blueford engaged in the fol-
lowing conduct at the Covina facility : interrogated em-
ployees concerning union activities ; and promised pay
raises if employees abandoned their support for the
Union.
14. On an unspecified date in June, Respondent estab-
lished a medical insurance program to induce employees
to abandon support of the Union.
15. About 2 August Gus Alvarez threatened employ-
ees with unspecified reprisals for engaging in union or
other protected concerted activities.
As noted above, complaint paragraph 6(d) alleges that
James Oh threatened employees with physical harm if
they selected the Union as their representative . Daniel
Lopez, an employee of the Respondent at the Covina
store from October 1982 until ' 18 July 1983 , testified
without contradiction about a conversation with Oh on
12 March in the presence of Marie Song , Mimi Sims, and
Tom Curtis. Among other things, Oh told Lopez that he
had "bought" someone in the Union who informed him
that Lopez had signed an authorization card . According
to Lopez, Oh "came unglued" and told Lopez that he
wanted to choke him and accused Lopez of slashing his
tires. Oh continued by saying that if the store was union-
ized Oh would close the store and reopen later with new
employees . Oh told Lopez that he could not fire him but
he would reduce Lopez' hours enough to prevent Lopez
from making a living . Oh also asked Lopez to withdraw
his authorization card.
Michael LaFond, an employee at Covina from 4 No-
vember 1982 until 10 January, testified without contra-
diction that Oh telephoned him at home in March to
advise that Oh did not want "your union kind" around
the Covina store . LaFond said that Oh told him that "if
your union gets in here , I'll break your neck."
Lopez and LaFond impressed me as forthright and
candid witnesses who made every effort to recount these
and other events to the best of their recollection. In the
absence of any contradictory testimony , I credit Lopez'
and LaFond's testimony concerning the above incidents.
As the evidence shows that Oh-in an apparent rage-
told Lopez he would "like to choke" him, and that Oh
told LaFond that he would break LaFond 's neck if the
Union was successful , I find the General Counsel has
sustained his burden of proving the allegation in com-
plaint paragraph 6(d) by a preponderance of the evi-
dence.5
The conduct alleged in paragraph 6 which has been
admitted by Respondent or which I have found to be
true includes a variety of threats and promises . That con-
duct which does not specifically include threats or prom-
ises did-as shown by the testimony of Lopez and
LaFond recounted above and as shown by the testimony
of other witnesses recounted below in connection with
5 In my judgment, the record is void of any basis for inferring that
Oh-on either occasion-was speaking metaphorically.
the 8(a)(3) allegations-occur in an overall atmosphere of
extreme hostility by Respondent toward employee orga-
nizational efforts . In these circumstances, I find that all
of the conduct alleged in paragraph 6 would clearly tend
to coerce and restrain employees in the exercise of their
Section 7 rights . See Blue Flash Express, 109 NLRB 591
(1954). Accordingly, I find that Respondent violated
Section 8(a)(1) of the Act by all of the conduct alleged
in complaint paragraph 6.
C. The Alleged 8(a)(3) Violations
The complaint alleges that the Respondent violated
Section 8(a)(3) of the Act by engaging in the following
conduct to discourage union activities: discharging Mi-
chael LaFond on or about 10 January ; changing the
work hours and the work location of employees Te-
treault and Lopez on or about 12 March ; constructively
discharging Tetreault and Lopez on or about 12 March
and refusing to reinstate them until 17. March; issuing
written warnings to Tetreault and Lopez because they
refused to accept the changed work hours and transfer of
work location which was made on 12 March ; reducing
the hours of work of Tetreault and Lopez beginning in
or about the week of 27 March; issuing a written warn-
ing notice to Tetreault on 4 April; discharging Tetreault
on or about 4 April ; making unreasonable work assign-
ments, and maintaining unreasonably close observation
and supervision of Lopez' work beginning on or about
21 April; demoting Lopez on or about 1 May and issuing
two written warning notices to Lopez on the same date;
discharging Lopez on 18 July; and discharging Karen
Pedregon on or about 29 August . The evidence and my
conclusions pertaining to each of the employees alleged
to have been discriminated against is set forth below.
1. Michael LaFond
a. The Evidence
As noted above , LaFond was employed at the Covina
facility from 4 November 1982 until his discharge on 10
January 1983 . Hired by Oh , LaFond began as a stocker
and helper in the Covina deli and frozen food section; he
later became the deli and frozen food manager.6 La-
Fond's immediate -supervisor was Gary Castle.
When hired, Castle advised LaFond that his starting
time would be 6 a .m. This news prompted LaFond to
advise Castle that arrangements for his son's care would
likely cause him to be a few minutes late on occasion.
Castle assured LaFond that there would be no problem
with that situation and Ingram, too, gave LaFond a simi-
lar assurance shortly thereafter. Pertinent also is Ingram's
later assurance that LaFond should not worry about the
considerable overtime required to keep his department in
shape . Ingram instructed LaFond to work as long as nec-
essary for that purpose. Subsequent experience showed
that LaFond normally arrived at work between 6:10 and
6 There is no contention nor evidence that LaFond's position ever
placed him outside the Act's protection. There were no other employees
in the deli and frozen food department when LaFond served as its man-
ager.
SUPERIOR WAREHOUSE GROCERS
6:15 a.m., and that he worked an average of 48 to 56
hours per week. In one period commencing in mid-No-
vember 1982, LaFond worked 16 consecutive days.
At some unspecified time prior to LaFond's discharge,
Beny Smith, described by LaFond as a union representa-
tive known to him from a prior place of employment,
visited the Covina store, told LaFond of his effort to or-
ganize the store, and ascertained LaFond' s interest in
supporting an organizational effort. Later, on 5 January,
union representative Brent Denkers visited LaFond's
apartment and LaFond signed a union authorization card
on that occasion.
Thereafter, LaFond conversed with five or six store
employees about the Union, both at the store and else-
where. Among those to whom LaFond spoke was Frank
Gomez, then the Covina grocery manager. LaFond pro-
moted the Union to Gomez, but the latter demurred
saying that he was not interested as he "just wanted to
have his job and that was it."
On arriving at work between 6:10 and 6:15 a.m. on 10
January, LaFond was summoned to the manager's office
by Simmons. When LaFond complied, Castle (who ap-
parently was already in Simmon's office) advised
LaFond that he had to terminate him. Castle told
LaFond that his discharge was "because of (his] tardi-
ness." LaFond protested, reminding Castle of their earli-
er conversation when LaFond was assured that there
would be "no problems" on that score. Castle did not re-
spond directly; instead Castle told LaFond that Ingram
and he had been "told to let [LaFond] go." Before leav-
ing LaFond was informed that his paycheck would be
available later in the day after Oh arrived at the Covina
store.
Ingram was present when LaFond returned later in
the day for his paycheck. LaFond pressed Ingram to ex-
plain the reason for his discharge and Ingram said that it
was because LaFond had worked too much overtime.
That explanation prompted LaFond to recount the
reason assigned by Castle and to press Ingram to explain
the inconsistency. Ingram was unable to explain either
the inconsistent reasons for LaFond's discharge or his
failure to warn LaFond against working excessive over-
time.' Instead, Ingram told LaFond: "I have to let you
go. I've been told to let you go " Before LaFond depart-
ed, Ingram called another employer in an effort to secure
employment for LaFond.
LaFond attempted to speak with Oh later that same
day about his discharge but Oh refused saying that he
was too busy.
According to Simmons, Ingram instructed him to dis-
charge LaFond. About 2 weeks after LaFond's dis-
charge, Simmons said that Ingram also instructed him to
discharge Calvin Cooper because-like LaFond-Cooper
was suspected of signing a union card. 8 Purportedly,
7 No evidence was proffered that the amount of LaFond's overtime
violated any general store policy or specific directive to him.
s The complaint contains no allegation pertaining to Cooper and no
other evidence was adduced concerning the discharge of Cooper, if it oc-
curred at all.
21
Ingram told Simmons: "[G]et rid of J Cooper] the same
way you did Michael LaFond for signing a union card."
Sylvia Mercado, an employee at Covina from April
1981 to October, was told by Frontline Manager Blake
that LaFond was fired becuase he was a union organizer
and not because of unauthorized overtime.
As recounted above, sometime in March, LaFond re-
ceived a telephone call at his home from Oh. On this oc-
casion Oh asked why LaFond was bothering him and
told LaFond that he did not want LaFond's "kind"
around his store. LaFond asked Oh what he meant by
his "kind" and was told by Oh: "I don't want your kind
around [the store] . . . and if your union gets in here, I'll
break your neck."
Respondent called no witnesses to explain LaFond's
discharge.
b. Conclusion
The preponderance of the evidence supports the con-
clusion that LaFond was terminated in violation of Sec-
tion 8(a)(3) of the Act.
As noted, Castle and Ingram provided LaFond with
conflicting and inconsistent reasons for his discharge.
Both attempted to evade responsibility for the illogic of
their explanations to LaFond by asserting that some indi-
vidual-never identified-had directed LaFond's termi-
nation. This circumstantial evidence supports the conclu-
sion that the reason each advanced on the day of La-
Fond's discharge was not the true reason for his termina-
tion.
Simmons uncontradicted admissions regarding In-
gram's statements about the reasons for LaFond's dis-
charge in connection with Cooper as well as Oh's state-
ments to LaFond in March and Blake's statement to
Mercado lend strong support to the conclusion that La-
Fond's discharge was the result of his union activity.
Athough no evidence was advanced about the precise
means by which the Respondent gained knowledge of
LaFond's union sympathies, Ingram, Blake, and Oh's
postdischarge statements leave no doubt that the Re-
spondent knew of LaFond's sympathies toward the
Union. Having weighed these postdischarge statements
together with the illogical and inconsistent reasons pro-
vided LaFond at the time of his discharge, the timing of
LaFond's discharge, the lack of any explanation as to the
reason for LaFond's discharge by the Respondent at the
hearing, and the extreme union animus otherwise demon-
strated by the Respondent, I find that the General Coun-
sel has sustained his burden of proving the 8(a)(3) allega-
tion pertaining to LaFond.
2. Robert Tetreault
a. The evidence9
Tetreault, hired at the Covina store as a stockclerk on
10 January, was discharged effective 2 April. Grocery
9 The events described below are based on Tetreault's testimony. No
contradictory evidence was offered by Respondent Based on my obser-
vation of Tetreault while testifying, I am satisfied there is no reason to
discount his testimony
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Mike Toupal was Tetreault 's immediate super-
visor at Covina. Prior to 14 March, Tetreault was sched-
uled regularly for 40 hours of work per week but his
actual workweek ranged from 40 to 48 hours.
Tetreault signed a union card on 9 or 10 March away
from the store premises ; no one other than the union rep-
resentative was present . Thereafter, he attended a union
meeting conducted by union representatives Brent
Denkers and Curtis Vandeveld . 10 Ronald Simmons,
Daniel Lopez, McCloskey Lim, and two other store em-
ployees whose names Tetreault could not remember also
attended.
On 12 March Toupal approached Lim and Tetreault at
their work area and asked to speak with them in the
manager's office. In the office, Toupal told the two em-
ployees that Oh knew that they had joined the Union
and that Oh had ordered their transfer to the Los Ange-
les store to thwart the union effort at Covina. Toupal
also told them that Oh knew that he could not fire them
so he (Oh) intended to make conditions so undesirable
that they would not want to stay. Toupal provided addi-
tional details saying that when they were transferred
their hours would be cut and their work would be made
undesirable. Toupal offered to serve as go-between with
Oh in order to stave off the reported consequences if the
two employees would agree to retrieve their union cards.
Toupal concluded by giving Tetreault his home phone
number to facilitate a call after Tetreault thought about
this proposition."
Subsequently, Tetreault learned that Lopez had like-
wise been reassigned to the Los Angeles store. Store
Manager Fellbaum told Tetreault that the reason for his
reassignment was a labor shortage at the Los Angeles
store.
On 13 March Tetreault spoke with Oh at the Covina
store. The two men were alone at the time. When Te-
treault asked the reason for his transfer, Oh initially re-
peated Fellbaum 's explanation that it was due to a labor
shortage and denied that it was because Tetreault had
signed a union card. Nevertheless , Oh asserted that he
was aware that Tetreault had signed a union card. Oh
explained that he had "bought off a few union people" to
obtain information about "who has cards in the store."
Oh also told Tetreault that he would "do anything to
keep [the] store from going union" and that if he became
obligated to bargain with the Union, he would close the
store and fire the employees . Oh told Tetreault that some
day he hoped to be in a position to buy unionized stores
and to convert them to nonunion stores. Oh explained
that he would accomplish this object by telling employ-
ees that they would have to get withdrawal cards from
the Union or he would fire them. Oh told Tetreault that
they were friends before he signed a union card and that
he would have to get it back if he wanted his job at the
Covina store and his livelihood. Oh offered to assist Te-
treault to retrieve his authorization card . Following the
is As noted before, it is my conclusion (in the section below dealing
with Daniel Lopez) that this meeting was held on 12 March at approxi-
mately 4 30 p.m As did Lopez , Tetreault testified that this meeting was
held on 11 March.
I Lim's reassignment was not alleged in the complaint nor was it liti-
gated.
conversation, Oh requested that he work that day at
Covina because it was very busy.
Over the course of the next day, Tetreault and Lopez
met with union representative Vandeveld and each pre-
pared a letter protesting their transfer as unlawful disci-
pline to discourage their, support of the Union and stat-
ing their refusal to accept the reassignment . Tetreault
and Lopez delivered their respective letter to Marie
Song who told them that she would pass it on to Oh.
Tetreault then filed the charge in Case 21-CA-22061 al-
leging that the Respondent had discriminated against
Lopez, Simmons, and himself.
On 16 March Fellbaum telephoned Tetreault with in-
structions to report to the Covina store the following
day. When Tetreault complied, Fellbaum gave him a
written warning (his first) of termination signed by Fell-
baum and dated 16 March . The reasons listed for the
reprimand were: ( 1) receiving personal phone calls on
March 12 ; (2) failing to report to work as scheduled on
March 13; and (3) failing to notify the manager "per
company policy per attendance."12
At the same time, Fellbaum told Tetreault that "things
wouldn 't be very good" for Lopez and himself, and that
he would not be scheduled for as many hours of work as
he had in the past. Between that day and his discharge
on 2 April, Tetreault 's workweek never exceeded 32
hours; frequently it was much less.
On 21 March Fellbaum issued Tetreault a second writ-
ten warning for being a half hour late for work . There is
no evidence pertaining to a reason for Tetreault 's tardi-
ness on this occasion nor is this warning alleged in the
complaint.
On 26 and 27 March Ingram-in Fellbaum 's pres-
ence-spoke to Tetreault in the Covina manager's office.
On this occasion , Ingram complimented Tetreault's work
and asked that he transfer to the Los Angeles store as
the frozen food clerk . Ingram guaranteed Tetreault that
his workweek would increase to 40 and 48 hours, and
that "possibly" his hourly rate would be increased.
Ingram did not call for an immediate decision; instead he
asked Tetreault to give the proposition some thought.
Later in the day, Ingram and Tetreault discussed Los
Angeles clerk's position further without a decision on
Tetreault's part. That evening, in a brief discussion
which occurred in the parking lot after work , Ingram ad-
vised Tetreault to forget the reassignment as the position
had been filled.
On 4 April Tetreault telephoned the store and spoke
with a stockclerk who advised Tetreault that his name
appeared on the schedule . Tetreault reported for work
but later learned that the clerk with whom he had
spoken had mistakenly read the previous week 's sched-
ule. When the current schedule was posted, Tetreault
noted that he was not listed at all.
12 Fellbaum told Tetreault that he would delete the portion of the rep-
rimand concerning personal calls after Tetreault advised Fellbaum that
the only call was from the Los Angeles store informing Tetreault of his
work schedule there. However, a copy of the written reprimand in evi-
dence shows that nothing was done to physically alter the reprimand
document originally issued
SUPERIOR WAREHOUSE GROCERS 23
Tetreault sought out Fellbaum to discuss the schedule.
Fellbaum advised Tetreault that he had been terminated,
and provided a third warning and a termination notice.
The warning states that Tetreault failed to adhere to the
posted schedule by working unauthorized overtime, and
that he failed to correct merchandise prices which he
had mismarked. The termination notice cites the latter as
the "final circumstance leading to separation."
Tetreault testified that the overtime occurred a few
days earlier. At the end of his scheduled work on that
occasion, Toupal told Tetreault to remain until he fin-
ished the stocking work then in progress. When supplied
with the separation paperwork, Tetreault argued to Fell-
baum that the overtime incident had in fact been ap-
proved by Toupal. Fellbaum acknowledged to Tetreault
that he had not discussed the matter with Toupal and
there is no evidence that he did so subsequently. Con-
cerning the pricing error, Tetreault argued to Fellbaum
that he was merely doing what Fellbaum had instructed
him to do at the time and that he was not acting con-
trary to the instruction. Fellbaum expressed a lack of in-
terest in arguing; he told Tetreault that it does not matter
as he intended to discharge Tetreault anyway.
On 6 April Tetreault filed a first-amended charge al-
leging Respondent had discriminated against Lopez,
"other employees," and himself. On an unknown date in
May, Respondent reinstated Tetreault with a 25-cent-per-
hour increase in pay. Later, Tetreault quit of his own vo-
lition.
Respondent called no witnesses to explain its reasons
for discharging Tetreault.
b. Conclusions
I find that the General Counsel has proven the com-
plaint allegations to pertaining to Tetreault by prepon-
derance of the evidence.
The uncontradicted evidence shows that Tetreault's
transfer to the Los Angeles store on 12 March was retri=
bution for having signed a union card. Having been told
by Toupal that his hours of work would be reduced and
that the work which was provided would be made unde-
sirable so that Tetreault would choose to quit, I find that
Tetreault's refusal to accept the reassignment in these
circumstances was fully justified, Toupal's explanation
for these actions leaves no doubt as to the Respondent's
unlawful objective. Tetreault's refusal to present himself
at the Los Angeles store on 13 March is entirely outside
the realm of insubordination which presupposes at least
an arguably lawful direction not present here. Hence,
Tetreault's choice of refusing to accede to the Respond-
ent's unlawful scheme by not appearing for the assign-
ment was tantamount to a constructive discharge as the
complaint alleges and it follows that the 16 March writ-
ten warning to Tetreault for his failure to report to the
Los Angeles store is similarly unlawful as the complaint
alleges.
The General Counsel's uncontradicted evidence shows
that Tetreault's average workweek ranged from 40 to 48
hours per week in the period preceding 12 March and
that it was thereafter reduced for reasons explained only
by Toupal on 12 March. That evidence compels the con-
clusion that Tetreault's reduction in hours was motivated
by Respondent's desire to retaliate against him for his
union sympathies. This conclusion is strongly reinforced
by the nature of the Respondent's other concurrent con-
duct. Accordingly, I find that the Respondent unlawfully
reduced Tetreault's hours of work after his return to the
Covina store on 17 March.
Tetreault disputed without contradiction the veracity
of the allegations contained on his termination notice as
well as the explanation provided to him by Fellbaum on
the date of the discharge. In effect, Tetreault testified
that, with respect to the repricing and overtime allega-
tions contained in the Respondent's records, he was only
following instructions given by the Covina managers. In
this posture, the General Counsel has provided evidence
that the reasons assigned for Tetreault were not truthful.
As no witnesses were called by Respondent to contradict
Tetreault's claim concerning the allegations shown on his
final warning and discharge notice, it is my conclusion
that the information contained on Tetreault's termination
records is pretextual. Moreover, when Tetreault con-
fronted Fellbaum with the inaccuracy of the overtime al-
legation-which was the only claim cited on his termina-
tion notice-Fellbaum asserted that "it didn't make any
difference," a response which suggests other reasons ex-
isted for Tetreault's termination. As the Respondent, (1)
failed to provide evidence which supports the allegations
of its records, (2) exhibited strong union animus, (3) was
aware of Tetreault's union sympathies, and (4) had previ-
ously undertaken to punish and to force Tetreault to quit
in order to rid itself of a union sympathizer, I find it fair
to infer that Tetreault's union sympathies were the sole
or principal reason for his termination.
Accordingly, I find that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act with respect to Tetreault
as alleged in the complaint.
3. Daniel Lopez
a. The evidence
Lopez was hired as a boxboy at the Covina store in
October 1982. By March 1983, Lopez had been promot-
ed to the position of stockclerk. Lopez typically worked
from 3 to 9 p.m. and, until March, he averaged 30 to 40
hours of work per week.
According to Lopez, in October or November, Benny
Smith, known to him as a former employee of the Re-
spondent, approached him in the parking lot to sign a
union authorization card. That card was never produced
at the hearing and Lopez asserted that he did not know
what happened to it. Thereafter, Lopez heard nothing
further about a union until attending a union meeting
which Lopez-like Tetreault-said was on 11 March. In
addition to those identified by Tetreault as being in at-
tendance at this meeting, Lopez recalled that employees
Tom Curtis and an individual known to him only as
Mike were present at the meeting.
Curtis Vandeveld, the union representative in charge
of the organizational campaign at the Respondent's store,
recalled that Lopez signed a union card at the March
meeting alluded to in the previous paragraph which was
held at a pizza parlour down the street from the Covina
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store. The authorization card executed by Lopez on this
occasion was produced in evidence and is dated 12
March. In addition, the card bears Vandeveld's dated ini-
tials on the reverse side, and a notation of the location in
accord with Vandeveld' s usual practice. Vandeveld's ini-
tials are dated 12 March. According to Vandeveld, the
12 March meeting commenced at approximately 4:30
p.m. Vandeveld recalled that Curtis did not sign a union
card. When cross-examined by Respondent, testimony
was elicited from Vandeveld-without objection-that
Curtis had subsequently admitted to Vandeveld that he
provided Respondent with information about the union
meetings in return for a promotion. That testimony was
never denied.
At some unspecified time on 12 March, Lopez re-
ceived a telephone call from Bob Blueford informing
Lopez that he was scheduled the following week on a 3
a.m. shift at the Los Angeles store.
Apparently concerned about the permanency of this
reassignment, Lopez spoke first with Store Director
Song, and then with Oh. These conversations, according
to Lopez, occurred shortly after the telephone call from
Blueford. Oh informed Lopez, contrary to Song's earlier
advice, that the Los Angeles assignment was not perma-
nent as it was occasioned by a temporary labor shortage
at that store. Nonetheless, the conversation quickly fo-
cused on the organizing drive. Oh told Lopez that he
was aware Lopez had signed a union card. Oh asserted
that he became aware of this fact because he had
"bought" someone in the Union. Oh asked why Lopez
signed the card and told Lopez to get it back. Oh threat-
ened to close the store if it was unionized and to reopen
later with nonunion personnel. More immediately, Oh
threatened to cut Lopez' hours to the point where he
could not make a living. In Lopez' words, Oh also
"came unglued" and told Lopez that Oh wanted to
choke him and accused Lopez of slashing his tires. As
noted in subsection B, above, Curtis was present during
Lopez' conversation with Oh.
As noted in the section dealing with Tetreault's dis-
charge, instead of reporting to the Los Angeles store,
Lopez-along with Tetreault-prepared a letter refusing
the Los Angeles reassignment and delivered it to Song at
the Covina store, accompanied by Tetreault. According
to Lopez, this occurred on the evening of the same day
he spoke to Song and Oh about his reassignment. On 14
March Lopez also accompanied Tetreault to file a
charge in Case 21-CA-22061.
It is undisputed that on 16 March, Fellbaum tele-
phoned Lopez with an instruction to report to the
Covina store at 8 a.m. the following day if he wanted to
"salvage" his job. When Lopez reported to work on 17
March, Fellbaum spoke to him in the Covina office and
gave him a written warning. This warning asserts that
Lopez violated store policies by: (1) receiving a personal
phone call on 12 March; (2) failing to report to the Los
Angeles store on 13 March; and (3) failing to notify the
manager of this failure to report. Lopez explained to
Fellbaum that the telephone call, in fact, was Blueford's
call to him directing him to report to the Los Angeles
store. Hearing this explanation, Fellbaum made a written
notation on the warning that the phone call was for com-
pany business and in this manner apparently excused the
infraction noted on the warning with respect to the
phone call. Although it was undisputed that Lopez noti-
fied Song in writing of his refusal to report to the Los
Angeles store, he did not argue this point with Fellbaum
on 17 March.
After 17 March Lopez' scheduled hours were reduced
to 24 or less per week. In mid-April, he was demoted
from stockclerk to boxboy.
One evening in the middle of April, Oh approached
Lopez where he was working in the Covina store and
asked why Lopez thought Oh was discriminating against
him. Lopez told Oh that he would not talk to him unless
he had a witness present. Oh responded by telling Lopez
that he made things "too complicated" for him and
walked away. Lopez testified that after that, Fellbaum
and Blueford took an added interest in his work; three or
four times a day one or the other of the managers would
stand near Lopez and watch him work for extended peri-
ods of time.
Sandra Sexton, hired at the Covina store in early April
as the frontline manager, said she was present at a meet-
ing on 20 May during which Oh told an assembled
group of managers that Lopez was among those who
had "filed suit" against him with the NLRB. Oh threat-
ened on this occasion to fire anyone who had anything
to do with the Union and gave Sexton an instruction to
take groups of cashiers to lunch in order to "give them
his side of the story."13
In late April, Blueford gave Lopez two written warn-
ings. The first, signed by Blueford and dated 26 April,
warned Lopez for failing to complete his work assign-
ment; the second, signed by Fellbaum and dated 28
April, warned Lopez for conversing too much with
friends and coworkers. Lopez disputed the bases of both
warnings at the hearing. He asserted that the former was
occasioned by his inability to complete his regular work
due to special assignments which Blueford ordered him
to perform without regard to the time taken away from
his regular duties. The latter warning occurred immedi-
ately after Fellbaum verbally reprimanded Lopez and
Einis Merryweather, another employee, for talking too
much when Fellbaum intercepted them giving directions
to a customer who had asked about the location of the
coffee stock. Respondent's records disclose that no writ-
ten warning was issued to Merryweather.
The events leading to Lopez' termination occurred on
17 July. As recounted by Lopez, when he arrived at
work, Gus Alvarez, then the Covina manager, assigned
Lopez and Lim to the task of cleaning the warehouse. In
the course of their work, Alvarez opened the warehouse
doors to permit the two workers to relocate approxi-
mately 10 empty breadracks outside on the receiving
dock to facilitate their cleaning work. After the job was
finished, the breadracks were intentionally left on the re-
13 Sexton did not appear at the hearing pursuant to the General Coun-
sel's subpoena The findings herein are based on information provided by
Sexton in affidavits Sexton executed during the General Counsel's investi-
gation. Those affidavits were received in evidence pursuant to the stipu-
lation of the General Counsel and the Respondent. No objection was
interposed to the use of Sexton's affidavits
SUPERIOR WAREHOUSE GROCERS
ceiving dock and the doors were locked by Alvarez.
Lopez went about other duties. Two or three hours
later, Alvarez returned to the vicinity with a security
guard, opened the receiving doors, and discovered three
smashed (and unsalable) loaves of bread in the racks lo-
cated on the receiving dock. It is undisputed that the
loaves of bread had not been in the racks when they
were relocated from the warehouse to the receiving
dock. When queried by Alvarez, Lopez denied knowing
how the loaves came to be placed in the breadracks on
the receiving dock.
When Lopez arrived for work on 18 July, Fellbaum,
who apparently had advanced to a position of responsi-
bility for both the Los Angeles and Covina stores, asked
for an explanation about the smashed loaves of bread.
Again, Lopez denied knowledge of the odd circum-
stances. With that, Fellbaum handed Lopez a written
warning which stated that Lopez was guilty of mishan-
dling company merchandise, willful misconduct, i.e., put-
ting bread out the back door, and failing to perform
work as required. Lopez declined Fellbaum's invitation
to sign the warning. To that Fellbaum replied that it did
not make any difference and then handed Lopez a termi-
nation notice which stated essentially the same thing.
Lopez also declined Fellbaum's invitation to sign that
document and asked for his pay. After Lopez was given
copies of the aforementioned documents and his pay-
check, he left and has never been reinstated to his em-
ployment with Respondent.
Respondent's records disclose no written warning was
issued to Lim over the 17 July incident.
Respondent called no witnesses to rebut the General
Counsel's case concerning Lopez.
b. Conclusions
I find that the General Counsel has proven the allega-,
tions of the complaint pertaining to Lopez.
Although Lopez testified that he executed a union au-
thorization card in October or November 1982 at the re-
quest of one Benny Smith, no such card was produced in
evidence, and the evidence is insufficient to show that
the Respondent's managers ever became aware of that
fact.
Nevertheless, the contemporaneous documentary evi-
dence prepared in connection with the March events es-
tablishes that the phone call reassigning Lopez to the
Los Angeles store occurred on 12 March, the same day
that Lopez attended a union meeting and executed what
proportedly was the second authorization card. 14 Al-
though the evidence fails to disclose that the telephone
call reassigning Lopez to the Los Angeles store occurred
after the 12 March union meeting, it is reasonable to
infer that it did and that Respondent did know of Lopez'
involvement with the Union at the time. I have reached
this conclusion because of the similarity of the Lopez,
14 I find that this documentary evidence reliably describes the se-
quence of events inasmuch as it was prepared at a time close to the
events in question and when there was no litigation pending which might
provide a motive to fabricate the documents In particular, the 17 March
waling notice refers to the telephone call received by Lopez as having
occurred on 12 March and Lopez ' authorization card as well as Vande-
veld's note thereon are both dated 12 March.
25
Lim, and Tetreault reassignments, the presence of direct
evidence on unlawful motive pertaining to Lim and Te-
treault, the Curtis link between the 12 March meeting
and Respondent 's knowledge, the absence of any proven
business necessity for the reassignments , and the lack of
any evidence that employees other than those attending
the meeting were transferred . For these reasons, I con-
clude that the evidence establishes that the involuntary
reassignment was motivated by Lopez' union sympathies
and, like Tetreault, he was justified in refusing to report
to the Los Angeles store as directed. It likewise follows
that the Respondent's warning of 17 March concerning
his failure to report to the Los Angeles store was also
unlawful.
The remaining allegations of the General Counsel's
complaint with respect to Lopez are that the Respondent
unlawfully reduced Lopez' workweek after late March,
that it made unreasonable work assignments and kept
Lopez under unreasonably close observation and supervi-
sion beginning in late April, that it had demoted Lopez
from his position as clerk to the position of boxboy on or
about the first of May and issued two unjustified written
warnings to Lopez, and that it unlawfully discharged
Lopez. The evidence supporting these allegations was
simply uncontested by the Respondent.
Clearly, Lopez' uncontradicted testimony establishes
that prior to 17 March he routinely was scheduled for 30
to 40 hours of work per week and that following 17
March, his schedule was reduced to maximum of 24
hours. About a month later Lopez was demoted with no
apparent explanation. The Respondent's hostility for the
union sympathizers is spread all across the record and
the evidence is plain that by 17 March, the Respondent
was well aware of Lopez' union sympathies. In these cir-
cumstances, I find that the General Counsel has estab-
lished a prima facie case that the Respondent discriminat-
ed against Lopez by the reduced work schedule and the
demotion. As the Respondent failed to come forward
with any rebutting evidence, it is my conclusion that by
reducing Lopez' workweek and demoting him the Re-
spondent violated Section 8(a)(3) of the Act.
With respect to the written April warnings, Lopez' un-
contradicted testimony establishes that those warnings
followed closely on the heels of Oh's attempt to confer
with Lopez about the discrimination allegation and
Lopez' adamant refusal to discuss the matter in the ab-
sence of a witness. Oh's hostility toward Lopez' activi-
ties is also found in Sexton 's statements . Lopez' testimo-
ny further establishes that the surveillance of his work
had not previously occurred and that both of the written
warnings were without justification. Also supporting the
Respondent's discriminatory motive with respect to the
latter written warning in April is the fact that
Merryweather, the other employee involved, did not re-
ceive a written warning. Accordingly, I find that the
General Counsel has established a prima facie case with
respect to these allegations of the complaint and, as the
Respondent failed to provide any rebutting evidence, it is
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
my conclusion that the Respondent thereby violated Sec-
tion 8(a)(1) and (3) as alleged-115
The absence of an explanation of the circumstances
surrounding Lopez' discharge is equally puzzling . Lopez'
testimony establishes that he had no knowledge concern-
ing the unusual appearance of the unsalable loaves of
bread on the breadrack . There is no evidence that Lim,
the other employee associated with Lopez in performing
the cleanup work on 17 July, was questioned or other-
wise disciplined with respect to the mishandling of the
bread products . As the record stands, the only permissi-
ble conclusion is that Lopez was wrongfully accused of
mishandling the unsalable bread products while Lim,
who, if he was still a union sympathizer at all, was clear-
ly not as persistent as Lopez, was never a focal point of
the Respondent 's investigation of the incident. These cir-
cumstances permit the inference-which I have made-
that the Respondent 's motive in focusing on Lopez as
the wrongdoer was motivated by its desire to rid itself of
another union sympathizer . For these reasons, I find that
the General Counsel has established a prima facie case
that the Respondent 's discharge of Lopez was unlawfully
motivated . As the Respondent failed to come forward
with any rebutting evidence , I futher find that the Gen-
eral Counsel has established that the Respondent violated
Section 8(a)(3) of the Act by discharging Lopez, as al-
leged.
4. Karen Pedregon
a. The evidence
Pedregon was hired as a checker at the Respondent's
Covina store on 9 November 1982 and worked continu-
ously until her discharge on 29 August 1983. From early
April until late June 1983, Pedregon's immediate supervi-
sor was Sandra Sexton.
Pedregon signed a union authorization card on 7
March and attended some of the union meetings held at
a Moose Lodge in Covina prior to her termination.
There is evidence that Pedregon discussed the merits of
the Union with other employees-primarily checkers-in
and about the store . She recalled one occasion when she
offered to provide union agent Vandeveld with some of
the checker 's names and telephone numbers if they were
interested in the Union.
There is ample evidence that the Respondent was
aware of Pedregon 's union sympathies . In late April,
Sexton told Pedregon that Oh was aware of Pedregon's
involvement with the Union and that Oh had expressed
belief that Pedregon has started the organizing effort.
Sexton's affidavits show that in May-in the course of a
meeting with Oh in which the identity of the union sup-
porters was discussed-Oh expressed the view that
"Karen was very much involved in the union ." In early
June, Fellbaum instructed Sexton to remove Pedregon
from work in the courtesy booth because of his belief
that Pedregon was obtaining information about employ-
1 s The General Counsel also alleged that these events resulted from
Lopez' having given testimony to the Board in support of Case 21-CA-
22061 As the remedy in either case is the same , I find it unnecessary to
further conclude that the Respondent 's actions violated Sec . 8(a)(4) of the
Act
ees' schedules and telephone numbers for the Union
while working in that position . Immediately prior to Sex-
ton's discharge in late June, Fellbaum accused Sexton of
attending a union meeting in the parking lot with Pedre-
gon and Lopez. In the first week of August , Pedregon
was assisting another checker during a slow period when
no customers were at her checkout stand . Alvarez ap-
proached the two checkers , accused them of conducting
a union meeting, and ordered Pedregon to remain at her
own register . Later that same day , Alvarez confronted a
boxboy named Curt about signing a union card earlier
that day. In the course of exchange between Alvarez and
Curt, Curt remarked to Alvarez that Pedregon also was
for the Union.
The day following the incident between Alvarez and
Curt, Pedregon was injured in an accident off the Re-
spondent's premises . Between 5 August and 29 August,
Pedregon was under a doctor's care and regularly pro-
vided the Respondent with information concerning her
condition as well as her physician 's assessment that she
should not be engaged in work. On 28 August, Pedregon
was released to return to work and telephoned Alvarez
to report that fact . At this time Alvarez informed Pedre-
gon that she was laid off due to a lack of business. When
Pedregon reported to the store to collect a prior pay-
check, she observed that there were five new cashiers at
work who had not been employed at the store prior to
her accident . In addition , approximately 3 weeks prior to
Pedregon's accident , the Respondent had hired approxi-
mately four to six new cashiers . Pedregon visited with
Marie Song while at the store and Song informed Pedre-
gon that she would not be rehired when business picked
up.
Respondent provided no evidence which contradicted
Pedregon 's testimony concerning the new cashiers. Nor
was any evidence provided to support the assertion made
to Pedregon by Alvarez that she was being laid off for a
lack of business.
b. Conclusions
I find the General Counsel has established , by a pre-
ponderance of the evidence , that Pedregon was laid off
because of her union activities and sympathies.
The General Counsel's prima facie case establishes that
Pedregon was an active and known union sympathizer.
As previously noted , the Respondent 's hostility toward
the Union and the union sympathizers is repeated
throughout the record . Pedregon 's testimony establishes
that the lack of business reason asserted by Alverez for
her layoff is contradicted by the presence of five new
cashiers not previously employed at the store before her
accident. These circumstances permit the inference that
Pedregon 's layoff was due to her union sympathies
rather than any lack of business . As the Respondent
failed to come forward with any rebutting evidence, I
find that the evidence establishes that Pedregon 's layoff
resulted from her union activities and sympathies as op-
posed to the asserted lack of business reason.
Accordingly, I find the Respondent violated Section
8(a)(1) and (3) of the Act, as alleged, in connection with
Pedregon's layoff.
SUPERIOR WAREHOUSE GROCERS 27
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent's set forth above, oc-
curring in connection with its operations described in
section 1, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lend to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce or in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees; threatening
to discharge employees; threatening to close its Covina
store and terminate employees; promising employees pay
raises and medical benefits and granting medical benefits;
soliciting employees to engage in surveillance of employ-
ee union activity, threatening to engage in surveillance of
employee union activity, and creating the impression that
employee union activities were under surveillance;
threatening to transfer employees from its Covina store
to its Los Angeles store; threatening hourly paid employ-
ees with a reduction in the hours of work; soliciting em-
ployees to abandon their support to the Union; telling
employees they could not select the Union as their repre-
sentative; and conveying to employees the impression
that it would be futile to seek union representation, ad-
vising employees it would not bargain with the Union,
and telling employees that it would force the Union to
strike and picket-all for the purpose of discouraging
employee support for the Union-the Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging, laying off, and refusing to reinstate
Michael LaFond, Robert Tetreault, Daniel Lopez, and
Karen Pedregon; reassigning Robert Tetreault and
Daniel Lopez from its Covina store to its Los Angeles
store; changing and reducing the work hours of Robert
Tetreault and Daniel Lopez; issuing written warnings to
Robert Tetreault on 17 March and 4 April; issuing writ-
ten warnings to Daniel Lopez on 17 March, 28 April
(dated 26 and 28 April) and 18 July; giving Daniel
Lopez conflicting working assignments and keeping his
work under unreasonably close observation and supervi-
sion on and after 21 April; and demoting Daniel Lopez
from stockclerk to boxboy-all for the purpose of dis-
couraging membership in, and support of, the Union-
the Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having concluded that the Respondent engaged in
unfiair labor practices described above, I recommend that
the Respondent be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having carefully considered
the extent, the seriousness and the protracted period of
time over which the Respondent engaged in the unfair
labor practices found above, I conclude the Respondent's
conduct has been "egregious" within the meaning of
Hickmott Foods, 242 NLRB 1357 (1979). Accordingly, it
is recommended that the Respondent be, ordered to cease
and desist from any other interference with employee
rights.
The General Counsel seeks an affirmative order of full
and immediate reinstatement for Tetreault , Lopez,
LaFond, and Pedregon at any of its current stores, a
make-whole remedy for the aforenamed employees, an
expungement remedy, and a make-whole remedy for Te-
treault and Lopez for Respondent 's action in reducing
the work hours after 17 March. The record shows that
the Respondent's Covina store was closed in November,
that a charge was filed alleging that the Covina store
was closed because of the employee union activity and
that the General Counsel refused to issue a complaint
with respect to that charge. In addition, the record
shows that Tetreault was reinstated at a higher rate of
pay in May at the Covina store. However, the record is
silent about whether any Covina employees were offered
employment at the Respondent 's Los Angeles store or its
Lynwood, California store following the closing the
Covina store . In these circumstances, it is recommended
that the Respondent be ordered to offer immediate and
full reinstatement to LaFond, Lopez , and Pedregon at its
Los Angeles or Lynwood, California stores on the same
basis that Respondent may have offered other Covina
store employees employment opportunities at other
stores upon the closing of its Covina store.
As Tetreault was reinstated at the Covina store in
May, which he accepted , and later quit, Respondent will
not be required to make an offer of reinstatement to Te-
treault. Similarly , it is recommended that Respondent
make LaFond, Lopez, Pedregon, and Tetreault whole
for any loss of earnings and benefits resulting from the
discharges found unlawful herein. To the extent that it is
concluded in the course of the compliance investigation
that LaFond, Lopez, and Pedregon would have been of-
fered an employment opportunity at the Respondent's
Los Angeles or Lynwood stores, the backpay period
shall continue until a valid offer of reinstatement is made
to them; otherwise, the backpay period for LaFond,
Lopez, and Pedregon shall terminate as of the date those
employees would have been laid off as a consequence of
the closing of the Covina store.
In addition,-it will be recommended that the Respond-
ent be ordered to make Lopez and Tetreault whole for
the loss of earnings resulting from the reduction in their
work hours after 17 March. All backpay shall be com-
puted in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 ( 1950), and interest shall be added to said
amounts in accord with Olympic Medical Corp., 250
NLRB 146 (1980), and Florida Steel Coip., 231 NLRB
651 (1977). And see generally Isis Plumbing Co., 13$
NLRB 716 (1962). Trust fund reimbursements, if any,
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be in accord with Merryweather Optical Co., 240
NLRB 1213 (1979).
It is further recommended that Respondent be ordered
to remove from its records any reference to the warning
notices issued to Lopez and Tetreault found unlawful
herein as well as any reference to the discharge of
LaFond, Lopez, Pedregon, and Tetreault.
It is further recommended that the Respondent be or-
dered to notify LaFond, Lopez, Pedregon, and Tetreault
in writing that such action has been taken, and that any
evidence of these unlawful warnings and discharges will
not be considered in any future personnel actions affect-
ing them. Sterling Sugars, 261 NLRB 472 (1982). Finally,
it is recommended that the Respondent be ordered to
post or mail the attached notice marked "Appendix" in
order to fully inform employees of their rights and the
outcome of this matter. If any of its Covina store em-
ployees were reassigned to other locations upon the clos-
ing of the Covina store, Respondent will be required to
post the notice at the other location. In the event all of
the Covina store employees were laid off rather than of-
fered employment opportunities at its other stores when
the Covina store closed, then a copy of the attached
notice shall be mailed by the Respondent to the last
known address of those Covina store employees laid off
at the time that store closed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
ORDER
The Respondent , Superior Warehouse Grocers, Inc.,
Los Angeles, Covina, and Lynwood , California, its offi-
cers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their ac-
tivities on behalf of, and sympathies for, Local 1428,
United Food and Commercial Workers International
Union, AFL-CIO, CLC.
(b) Threatening to discharge employees because of
their activities on behalf of Local 1428.
(c) Threatening to close its store and terminate em-
ployees because of their activities on behalf of Local
1428.
(d) Soliciting employees to engage in, threatening to
engage in , and creating the impression that employee ac-
tivity on behalf of the Local 1428 is under surveillance.
(e) Threatening to transfer employees to another store
and engage in other reprisals because of employee activi-
ty on behalf of Local 1428.
(f) Threatening hourly paid employees with a reduc-
tion in their hours of work because of their activity on
behalf of Local 1428.
(g) Soliciting employees to abandon support for Local
1428.
3 G If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(h) Conveying to employees the futility of representa-
tion by Local 1428, telling employees that they cannot
select Local 1428 as their representative, advising em-
ployees that it will not bargain with Local 1428, and tell-
ing employees that it will force Local 1428 to engage in
a strike and picketing if employees select Local 1428 as
their representative.
(i) Discharging, laying off, and refusing to reinstate
employees because of their activities on behalf of Local
1428.
(j) Reassigning employees to other stores because of
their activities on behalf of Local 1428.
(k) Changing and reducing work hours of employees
because of their activities on behalf of Local 1428.
(1) Issuing written warnings to employees because of
their activities on behalf of Local 1428.
(m) Giving employees conflicting work assignments
and keeping their work under unreasonably close obser-
vation and supervision because of their activities on
behalf of Local 1428.
(n) Demoting employees because of their activities on
behalf of Local 1428.
(o) In any other manner interfering with, restraining,
coercing, or discriminating against employees because of
the exercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Michael LaFond, Daniel Lopez, and Karen
Pedregon immediate and full reinstatement in the manner
set forth above in the remedy section.
(b) Make Michael LaFond, Daniel Lopez, Karen Pe-
dregon, and Robert Tetreault whole for losses they suf-'
fered as a result of the discrimination found unlawful
herein in the manner set forth above in the remedy sec-
tion.
(c) Remove from its records any reference to the un-
lawful warnings issued to Daniel Lopez and Robert Te-
treault and the discharges of Michael LaFond, Daniel
Lopez, Karen Pedregon, and Robert Tetreault, and
notify the employees in writing that this action has been
taken and that evidence of its unlawful conduct will not
be considered in any future personnel actions involving
them.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at places of business in Los Angeles and Lyn-
wood, California, copies of the attached notice marked
"Appendix" if, upon the closing of its Covina store, any
employees employed at Covina were offered and accept-
ed employment opportunities at those stores." 7 Copies of
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
SUPERIOR WAREHOUSE GROCERS 29
the notice, on forms provided by the Regional Director
for Region 21, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) In the event alternate employment opportunities
were not offered to any employee of the Covina store
when that store closed, signed copies of the attached
notice shall be mailed by the Respondent to the last
known address of such employees who were employed
at the Covina store immediately prior to its closing.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an administrative law judge at
which we were provided with the opportunity to present
evidence and argument, the National Labor Relations
Board concluded tht we violated the National Labor Re-
lations Act by engaging in certain conduct designed to
discourage employee support for and activity on behalf
of Local 1428, United Food & Commercial Workers
International Union, AFL-CIO, CLC, when that labor
organization attempted to organize the employees of our
Covina store in 1983. To remedy this matter, the NLRB
has ordered us to post this notice and to comply with its
terms.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively question you about your
union activities.
WE WILL NOT threaten to discharge you to discourage
union activities.
WE WILL NOT threaten to close any of our stores and
terminate employees in order to discourage union activi-
ties.
WE WILL NOT promise you pay raises or medical bene-
fits or grant any such benefits to dissuade you from en-
gaging in union activities.
WE WILL NOT solicit you to engage in, or threaten to
engage in , or create the impression that we are engaging
in, surveillance of any of your union activities.
WE WILL NOT threaten to transfer you in order to dis-
courage your union activities.
WE WILL NOT threaten you with the reduction in your
hours of work to discourage your union activities.
WE WILL NOT solicit you to abandon your support for
any union.
WE WILL NOT advise you that: it will be futile to seek
union representation, you may not select a union as your
representative, we will not bargain with any union you
may select, and we will force any union you may select
as your representative to engage in a strike or picketing.
WE WILL NOT discharge or lay off any employees in
order to discourage employees from engaging in union
activities.
WE WILL NOT reassign employees to any other store in
order to discourage your union activities.
WE WILL NOT issue written warnings to you in order
to discourage your union activities.
WE WILL NOT give you conflicting work assignments
or keep your work under unreasonably close observation
and supervision in order to discourage your union activi-
ties.
WE WILL NOT demote you in order to discourage your
union activities.
WE WILL NOT in any other manner interfere with, re-
strain, coerce, or discriminate against you in order to dis-
courage you from exercising the rights you have under
Section 7 of the National Labor Relations Act.
WE WILL offer immediate and full reinstatement to Mi-
chael LaFond, Daniel Lopez, and Karen Pedregon in the
manner directed by the National Labor Relations Board.
WE WILL make Michael LaFond, Daniel Lopez,
Karen Pedregon, and Robert Tetreault whole, together
with interest required by law, for any loss of earnings
and benefits they suffered as a consequence of our action
in discharging, laying off, or reducing their hours of em-
ployment.
WE WILL remove from our records any reference to
the written warnings issued to Daniel Lopez on 17
March, 26 and 28 April, and 18 July 1983, the written
warnings issued to Robert Tetreault on 17 March and 4
April 1983, and to the discharge or layoff of Michael
LaFond, Daniel Lopez, Karen Pedregon, and Robert Te-
treault and WE WILL notify those employees in writing
that this action has been taken and that any evidence of
our unlawful conduct against them will not be consid-
ered in any future personnel action related to them.
SUPERIOR WAREHOUSE GROCERS, INC.