The Food Mart

National Labor Relations Board - Board Decisions

May 29, 1968

171 N.L.R.B. 838 (N.L.R.B. 1968)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agawam Food Mart , Inc., d/b/a The Food Mart and
Local 33 , Amalgamated Meat Cutters , Food Store
& Allied Workers of North America , AFL-CIO.
Case I-CA-5836 (1-2)
May 29, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS , AND ZAGORIA
On October 6, 1967, Trial Examiner Maurice S.
Bush issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner 's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith
The complaint alleges that the Respondent vio-
lated Section 8(a)(3) and (I) of the Act by dis-
criminatorily demoting and transferring Norman
Giroux, an assistant meat department manager at
one of its stores, and discharging Ismael Cruz, a
meatcutter in the same store, in February 1967,
because of their union activities. The Trial Ex-
aminer found in each instance that the demotion
and transfer of Giroux and the discharge of Cruz
were for the reasons given by the Respondent and
not because of their union activities. We disagree.
The Respondent has 14 stores in Massachusetts
and Connecticut with its main office in Holyoke,
Massachusetts. The Agawam, Massachusetts, store,
doing business as The Food Mart, is the only one of
the Respondent's stores involved in this proceeding.
However, the discharge and transfer-demotion
cannot be considered in a vacuum. Both Giroux
and Cruz were considered exemplary longtime em-
ployees who were considered as potential
managerial material for one of Respondent's meat
departments . A review of their employment
background , their union activity, their alleged
misconduct , and the severity and timing of their
discipline persuades us that their disciplining was
discriminatorily motivated.
Giroux began working as an apprentice meat-
cutter in 1962 at $2 an hour and a year later
became a journeyman meatcutter . In the spring of
1966 he was promoted to assistant meat manager of
the Agawam store and his hourly rate was increased
to $3.61 an hour . Giroux ( like Cruz ) signed a union
authorization card around November 1966. Both
Giroux and Cruz talked to other meatcutters about
the advantages of a union and Giroux was success-
ful in getting some of them signed up . It was also in
November that Giroux and Cruz (along with
others ) began wearing small union buttons bearing
the initials of the Union . Two days before a
scheduled representation election at Respondent's
Fairview store on February 23, Giroux , Cruz, and
one other meat department employee began wear-
ing a much larger union button which urged "Vote
Amalgamated Meat Cutters & Butcher Workmen,
AFL-CIO." On Thursday , February 23, the Union
won the election at the Fairview store and on the
same day sent a letter requesting recognition for
the meat department at Respondent 's Agawam
store . The Union 's claim for recognition was ap-
parently not brought to the attention of any respon-
sible official until Monday . On Tuesday official
notice was given the Respondent that an election
petition had been filed by the Union . It was on
Tuesday that Respondent decided to terminate
Cruz and transfer and demote Giroux.
Giroux was accused of tampering with his
timecard on February 25 and of taking a 40-minute
break rather than a 20-minute break . It is un-
disputed that on Saturday , the day he was
suspended , he had voluntarily worked from 8.30 to
10.05 without compensation , primarily because the
meat department was behind in preparing meats for
sale At 10 : 05 Giroux punched in and continued
working . At 12:10 Giroux punched out for a lunch
break and then realizing that he had officially
started work late, he crossed out the punched
marking of 12:10 on his card or he would have
shortened his pay by I hour . Having officially
started work late, he was entitled to a 20-minute
paid break period but not to a 1-hour lunch period
as he would have been if he had been officially on
the timeclock from 8:30 on . When questioned
about his timecard Giroux readily admitted crossing
out the 12 : 10 marking on his timecard . It was asser-
tedly for this conduct that Giroux was thereafter
transferred from the Agawam store and demoted to
a meatcutter 's position.
171 NLRB No. 121
THE FOOD MART 839
It seems apparent that if Giroux had mentioned
the reason for crossing out his punched time to
someone in authority at that time, his action may
well have been sanctioned. Further, it seems doubt-
ful to us that an extended break, if it occurred, was
in fact of great moment to Respondent inasmuch as
Giroux had that day worked 1-1/2 hours without
compensation.
With this background, Giroux's tampering with
his timecard seems to have been at most but a minor
infraction of company rules which Respondent
seized on and immediately blew up out of all pro-
portion to its importance or substance. In view of
his excellent employment background, his activity
on behalf of the Union despite his position as assist-
ant meat manager, and the fact he received no
warning or reprimand but was immediately trans-
ferred out of a store where a union election was
pending, we conclude that his transfer and demo-
tion were in fact caused by his union activities
and not by the change in the timecard.
Cruz began working for the Respondent as an ap-
prentice meatcutter in February 1960, and in 1961
he became a journeyman meatcutter. In 1962 and
1963 he declined offers to be made an assistant
meat manager . In 1965 he accepted the position of
assistant meat manager at one of Respondent's
stores and remained assistant meat manager until
November 1966 at which time he was demoted (at
his request ) to meatcutter and transferred to the
Agawam store. Both General Manager Abrahams
and Meat Supervisor Marino had a high regard for
Cruz and deemed him suitable for eventual promo-
tion to meat manager of one of Respondent's 14
stores. Cruz was specifically accused of changing
his timecard and in effect charging the Company
for a half hour not actually worked. Cruz had previ-
ously worked 10 to 15 hours' overtime without
compensation. He had never been accused of mal-
feasance in his job duties prior to the incident
herein, and was considered to be an exemplary em-
ployee who was regarded as potential managerial
material. The severity of the Respondent's action in
discharging Cruz for allegedly altering his timecard
leads us to believe the Respondent's motive was to
rid itself of a known union adherent in face of
union organization at the Agawam store.
Disposing of two experienced and apparently
valuable employees in the ways described was an
act of retaliation for union activity against the em-
ployees who had formerly been favored by the
Respondent and also served notice to other em-
ployees of what could happen to them if they en-
gaged in union activities . Moreover , the fact that
there was a tight market for meatcutters in the area
and the timing of the disciplinary action, coming
immediately after the union victory at the Fairview
store and the letter requesting recognition at the
Agawam store, convince us that the Respondent
used the misconduct as a pretext for the action
taken against the two employees , whereas the real
reason was to curb and prevent further union ac-
tivity by them and other employees at the Agawam
store. Accordingly, we find the discharge of Cruz
and the demotion and transfer of Giroux to be in
violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Ismael Cruz, and by thereafter
failing to reinstate him, and by demoting and trans-
ferring Norman Giroux, the Respondent dis-
criminated against these employees to discourage
membership in and support for the Union, thereby
engaging in unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affir-
mative action to effectuate the policies of the Act.
It will also be ordered that the Respondent offer
to Ismael Cruz and Norman Giroux immediate and
full reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of earnings suffered by
reason of the discrimination against them, by pay-
ment of a sum of money equal to that which each
would normally have earned as wages from the date
of Ismael Cruz' discharge and Norman Giroux's
demotion and transfer to the date of the Respon-
dent's offer of reinstatement, less their net ernings
during said period (Crossett Lumber Company, Inc.,
8 NLRB 240), and in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289, together
with interest thereon at the rate of 6 percent per
annum, as set forth in Isis Plumbing & Heating Co.,
138 NLRB 16.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that Respondent
Agawam Food Mart, Inc., d/b/a The Food Mart,
Springfield , Massachusetts , its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on
behalf of Local 33, Amalgamated Meat Cutters,
Food Store & Allied Workers of North America,
AFL-CIO, or any other labor organization, by
discharging , demoting, transferring , and refusing to
reinstate employees, or by discriminating against
employees in any other manner in regard to their
hire or tenure of employment or any term or condi-
tion of employment.
(b) in any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization , to form , join, or
assist said Union , or any other labor organization,
to bargain collectively through representatives of
their own choosing , or to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from
any or all such activities.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer Ismael Cruz and Norman Giroux im-
mediate and full reinstatement to their former or
substantially equivalent positions , without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of pay which they
may have suffered as a result of the discrimination
practiced against them , in the manner set forth in
the section of this Decision entitled " The Remedy."
(b) Notify Ismael Cruz and Norman Giroux if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act , as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request , make available
to the Board or its agents , for examination and
copying , all payroll records , social security payment
records , timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its store in Springfield, Mas-
sachusetts , copies of the attached notice marked
"Appendix ."' Copies of said notice , on forms pro-
vided by the Regional Director for Region 1, after
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words " a Decision and
Order " the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
being duly signed by the Respondent 's representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous
places, including all places where notices to em-
ployees are customarily posted Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 1, in
writing , within 10 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER BROWN, dissenting:
I would affirm the Trial Examiner 's Decision and
Order dismissing the complaint.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
WE WILL NOT discourage membership in or
activities on behalf of Local 33, Amalgamated
Meat Cutters , Food Store & Allied Workers of
North America , AFL-CIO, or any other labor
organization , by discharging , demoting , trans-
ferring , or refusing to reinstate employees, or
by discriminating against employees in any
other manner in regard to their hire or tenure
of employment or any terms or conditions of
employment.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their right to self-organization, to
form , join, or assist said Union , or any other
labor organization , to bargain collectively
through representatives of their own choosing,
or to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection , or to refrain from
any or all such activities.
WE WILL offer to Ismael Cruz and Norman
Giroux immediate and full reinstatement to
their former or substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges , and make them
whole in the manner provided in the Board's
Decision for any loss of pay they may have suf-
fered as a result of our discrimination against
them.
WE WILL notify Ismael Cruz and Norman
Giroux if presently serving in the Armed
THE FOOD
Forces of the United States of their right to full
reinstatement upon application in accordance
with the Selective Service Act and the Univer-
sal Military Training and Service Act, as
amended , after discharge from the Armed
Forces.
All our employees are free to become or remain,
or refrain from becoming or remaining , members of
the above -named or any other labor organization.
AGAWAM FOOD MART,
INC., D/B/A THE FOOD
MART
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 20th Floor, John F. Kennedy Federal Build-
ing, Cambridge and New Sudbury Streets, Boston,
Massachusetts 02203, Telephone 223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Trial Examiner: The issues
herein are whether Respondent, a retail chain food
store company, discriminatorily demoted and trans-
ferred Norman Giroux, an assistant meat depart-
ment manager at one of its stores, and discharged
Ismael Cruz, a meatcutter in the same store, in
February 1967 because of their union activities in
violation of Section 8(a)(1) and (3) of the National
Labor Relations Act. Respondent denies any unfair
labor practices in connection with the demotion
and transfer of Giroux and the discharge of Cruz.
The Company's defense is that it took the indicated
actions solely because of the misconduct of the two
employees in tampering with their timecard records
contrary to company rules and in seeking to charge
Respondent for worktime utilized in excessive
lunch breaks.
The complaint was issued on April 10, 1967, and
amended before trial on May 5, 1967, pursuant to
charges duly filed by the Union.
The case was heard on May 24 and 25, 1967, at
Springfield, Massachusetts. Briefs have been filed
by the parties. These have been carefully reviewed
and considered.
Upon the entire record and from my observation
of the witnesses, I make the following:
MART 841
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Agawam Food Mart, Inc., is a Mas-
sachusetts corporation engaged in the operation of
a chain of retail food stores located in Mas-
sachusetts and Connecticut. Its principal office and
place of business is at South Street in Holyoke,
Massachusetts. In the course and conduct of its
business , Respondent annually sells and distrubutes
foodstuffs of a value in excess of $500,000, of
which a substantial part is purchased and trans-
ported in interstate commerce. Respondent is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION
Local 33, Amalgamated Meat Cutters, Food
Store & Allied Workers of North America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. General Background Findings
Respondent operates a total of 14 retail food
stores from its principal office at Holyoke, Mas-
sachusetts, all of which appear to be within a radius
of some 62 miles from nearby Springfield, Mas-
sachusetts. The Agawam, Massachusetts, store,
doing business as The Food Mart, is the only one of
Respondent's stores involved in this proceeding.
In 1960 and 1965, the Union lost elections in
which it sought to organize in a single unit all of
Respondent's meat department employees on a
multistore basis.' The Union filed objections to the
1965 election which resulted in an order setting
aside the election and directing a new election. On
June 8, 1965, the Union filed charges in Case
1-CA-5036 charging Respondent with violations of
Section 8(a)(1) and (3). As this had the effect of
blocking the rerun election, the Union thereafter,
with the approval of the Board, withdrew its 1965
petition for a multistore and no new election has
been conducted. In the meantime, a complaint was
issued in forementioned Case 1-CA-5036, and on
June 3, 1966, the Board issued its decision2 in that
case adopting the Trial Examiner's findings and
conclusions that Respondent had violated Section
8(a)(1) and (3) "by withholding sick leave benefits
from its meat department employees, while grant-
ing such benefits to other employees, by condition-
ing the granting of benefits upon a waiver of the
right to file charges and objections under the Act,
and advising its employees of these actions ...."
' Cases I-RC-5876 and I-RC-8199 and descriptions thereof as set
forth in General Counsel 's Exh. 2.
2 The Food Mart, 158 NLRB 1294.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a month after it withdrew its aforemen-
tioned 1965 petition for an election on a multistore
basis , the Union on November 29, 1965, filed a
petition for a single store unit limited to the meat
department employees at Respondent's store at
Fairview, Massachusetts. Pursuant to a hearing at
which Respondent took the position that the meat
departments of all of its stores constituted the only
appropriate unit, the Board issued its decision
directing an election among the meat department
employees of only the Fairview store. The Union
won the election held on February 24, 1966. The
Fairview store election was the first in which the
Union was successful in organizing and represent-
ing any of Respondent's employees.
On February 24, the same day it won the election
at the Fairview store, the Union filed a petition with
the Board for a single store unit limited to meat de-
partment employees at the Agawam store which is
about 10 miles away from the Fairview store On
the same day the Union sent a letter to the Com-
pany requesting recognition as the representative of
all the meat department employees in the Agawam
store. The Company received this letter the next
day, February 25, but as that was a Saturday the
letter did not come to the attention of responsible
officers of the Company until Monday, February
27. The next day, February 28, the Respondent
received official notice from the Board's Regional
Office of the petition filed by the Union for a single
store unit composed exclusively of the meat depart-
ment employees in the Agawam store.'
Cruz and Giroux who worked in the meat depart-
ment of the Agawam store were suspended on
February 25. Counsel for General Counsel seeks to
relate this to the Union's success in winning the
vote of the meat department employees in the elec-
tion at the Fairview store on February 24.
Respondent employs a total of about 900 em-
ployees in its 14 food stores. The stores are
operated under the direction of Kenneth G.
Abrahams, executive vice president and general
manager of Respondent. Mr. Joseph T. Wright is
Respondent's vice president in charge of personnel
and subordinate to Abrahams.
The Agawam store at the times here involved
employed some 80 employees. Of these 80 em-
ployees, 17 worked in the store's meat department
under the management of Ceasar Capodagli. The
manager of the Agawam store's grocery department
is James Maloney.
B. Employment History of Cruz and Giroux
Cruz' employment with Respondent spanned a
period of 7 years. He began his employment with
the Company as an apprentice meatcutter in 1960
and became a journeyman meatcutter in 1961. In
1962 and 1963 he declined offers to make him
assistant meat manager because he did not want the
additional responsibility the position entailed for
the 16 cents difference in pay per hour. But in 1965
when he needed additional money for a home he
was purchasing, he accepted an offer to an assistant
managerial position at one of Respondent's stores.
In August 1966 he sought to return to his old job of
journeyman meatcutter as he no longer wanted the
responsibility of the managerial job. General
Manager Abrahams and Meat Supervisor Marino
would not accede to Cruz' repeated requests for
demotion as they regarded him highly and deemed
him suitable for eventual promotion to meat
manager of one of Respondent's 14 stores. Cruz'
request was finally granted by Director of Person-
nel Joseph Wright. In November 1966 Cruz
received his requested demotion to meatcutter and
was transferred to the Agawam store.
Giroux began working for Respondent in 1962 as
an apprentice meatcutter and attained journeyman
a year later . In the spring of 1966 he was promoted
to assistant meat manager of the Agawam store at a
wage of $3.61 per hour.
Although there is no company rule requiring
meat managers to work overtime, the record dis-
closes that both Cruz and Giroux when they occu-
pied positions as assistant meat managers found it
necessary to occasionally put in some overtime
without compensation in order to keep up with
their work responsibilities.
The record also shows that prior to the events
hereafter related neither Cruz nor Giroux in their
combined 11 years of service had ever been ac-
cused of taking excessive time for lunch or rest
breaks, of altering or tampering with their time-
cards, or of any other malfeasance. Respondent
at all times here pertinent regarded the services
of the two men as satisfactory.
C. Union Activities and Company Knowledge
Both Cruz and Giroux signed union authorization
cards in or around November 1966. They talked to
other. meat department employees at the Agawam
store about the advantages the Union would have
for them. Giroux succeeded in securing union cards
from some of the meat department employees. In
November Cruz and Giroux, along with every other
meatcutter and counterman at the Agawam store,
began wearing small buttons bearing the letter ini-
tials of the Union. Two days before the election at
Respondent 's Fairview store (as heretofore noted,
the first election in a single store unit), Cruz and
Giroux and one other meat department employee
in the Agawam store began wearing a much larger
and more conspicuous union button reading "Vote
Amalgamated Meat Cutters and Butcher Workmen,
AFL-CIO." Three days later on Saturday, February
25, 1967, when the two employees were suspended
they were still wearing the large union button.
'G C Exh 2
THE FOOD MART 843
D. The Discharge of Cruz and the Demotion and
Transfer of Giroux
At noontime on Thursday, February 23, 1967,
Cruz and Giroux walked out together from the
Agawam store for their 1-hour lunch break after
punching the timeclock. Giroux's timecard shows
that he punched out at 12:02 and Cruz' card bears
a 12:04 punch out time . An hour later, about 1 o'-
clock, Capodagli, the meat department manager,
informed James Maloney, the then acting store
manager ,4 that he was leaving the store earlier than
usual for his lunch break, but that he expected Cruz
and Giroux back from their lunch hour in a few
minutes. After imparting this information to
Maloney, Capodagli left the store. Some 35 minutes
later, Maloney observed Cruz and Giroux returning
to the store without punching in on the timeclock.
He thereupon punched a blank timecard to deter-
mine the precise time of their return and as the
clock showed a return time of 1:42 p.m., he marked
the timecards of the two meatcutters in pencil to
show that they had returned at that time .5 The
testimony of Cruz and Giroux establishes that they
had overlooked clocking their cards that noon upon
return from lunch. Maloney did not speak to them
about their being late and did not inform them that
he had manually inserted their return time on their
cards. When Capodagli returned from his lunch
break that day, Maloney informed him that Cruz
and Giroux had been late in returning from their
lunch breaks, but did not ask him to take any ac-
tion because of their tardiness. Capodagli did not
speak to the two employees about the matter.
On Friday evening , February 24, Maloney told
Capodagli that he had discovered that the time he
had written in Cruz' card the previous day had been
erased and that he had rewritten it in again.6
The following day, Saturday, February 25,
Giroux was scheduled to start work at 11:30 a.m.,
but reported to work at 8:30 a.m. as there had been
a holiday (Washington's birthday) that week and
the meat department was somewhat behind in
preparing meats for sale.7 In discussing the matter
the night before with Capodagli, Giroux inquired
whether Capodagli had any preference with respect
to applying this extra time to the hours he owed the
Company for paid time off he had taken to attend a
funerals or to applying it to Giroux's vacation time.
Capodagli left the decision up to Giroux who de-
cided to make up the 4 hours he then owed the
Company later.'
After working from 8:30 to 10 o'clock that Satur-
day morning, Giroux caught up with the work and
found himself current. He therefore punched his
timecard in at 10:05 a.m. This started his paid time
going for the day.
Giroux and Cruz, according to Giroux's
testimony, punched out together for lunch around
noon that Saturday, with Giroux's timecard show-
ing a punch out time of 12:10 and Cruz' at 12:06.
Under company rules 1 hour is allowed for lunch
for those employees who start work early in the
morning . Giroux, realizing at once after punching
out that he was not entitled to the 1-hour lunch
break but only to a 20-minute break, as he had not
started his work day officially that day until 10:05
a.m., immediately crossed out with a pencil the
12:10 he had just punched in on his timecard. Had
he not done this, he would have shortened his pay
for that day by 1 hour.
Acting Store Manager Maloney was standing
about 15 feet from the timeclock as Cruz and
Giroux were checking out. He testified that from
this position he saw Cruz making an erasure on his
timecard and then writing on it with a pen attached
by a chain to the courtesy booth alongside the
timeclock. Similar testimony was offered by Betty
Manchino who was working in the enclosed cour-
tesy booth at the time , but the stipulated physical
measurements made at the Agawam store during
the course of the hearing show that it was physi-
cally impossible for Miss Manchino from her posi-
tion in the booth to see any part of the pen at-
tached to the courtesy booth while the pen was put
to simulated use on a narrow writing ledge located
below the counter top of the courtesy booth, except
possibly the very tip of the pen or erasure end of
the pen. However, it is found that Manchino
through the process of deduction could and did sur-
mize that Cruz was making some changes on his
timecard which she later mistook as an actual ob-
servation of Cruz making the change on his card.
Such a transference of thought is not an uncommon
human psychological phenomena. Manchino im-
mediately reported her observation to Maloney to
whom she is engaged who indicated to her that he
had just personally made the same observation. She
also told Maloney that she had overheard Giroux
inquire of Cruz whether Cruz "was going to put
' During the week here involved Maloney , who is the Agawam's store
grocery department manager , functioned as acting store manager in the
absence of the regular store manager.
'The Company's employees handbook (G.C Exh . 7) requires em-
ployees to he in uniform before punching in on the timeclock The fact that
Maloney hand wrote the time of their return on the timecards of Cruz and
Giroux before they had a chance to get into their work aprons establishes
that this rule is more honored in its breach than in observance.
' There is no claim by Respondent , as in the case of Cruz, that the mark-
ing inserted by Capodagli on Giroux 's timecard for his noontime return on
Thursday had been altered in any way Respondent 's defense against the al-
leged discriminatory demotion and transfer of Giroux related to Giroux's
alleged misconduct on the following Saturday.
I As heretofore noted, Cruz when he was an assistant meat manager and
Giroux as assistant meat manager of the Agawam store found it necessary
from time to time to put in some uncompensated extra time in order to
keep up with their work.
8 Originally Giroux owed the Company 8 hours of work for time off to
take in a funeral for which he was nevertheless compensated with the un-
derstanding that he would make it up He had made up 4 hours of this time
before the events discussed in this decision and still owed the Company 4
hours at the time he spoke to Capodagli about his plans to come in earlier
than his scheduled time on the Saturday here under discussion.
9 At the date of the hearing some 3 months after his demotion, Giroux
still had not made up the 4 hours he owed the Company.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
down for an hour and a half or an hour" and that
Cruz had replied he didn't know.
As soon as Cruz and Giroux left the store,
Maloney telephoned the Company's office and left
an urgent message that he be contacted by either
Vice President Wright in charge of personnel or
General Manager Abrahams. When Abrahams
came to the store in mid-afternoon that same day
(Saturday, February 25) in response to the call,
Maloney handed him the timecards of the two em-
ployees for the week and accused Cruz and Giroux
of tampering with their time records . He explained
to Abrahams that at noon that day he had seen
Cruz making a change on his timecard which on
subsequent inspection he discovered showed that
Cruz had changed the 13:42 (about 1:35 p.m.)
marking he had placed on Cruz' timecard for
Thursday as the time Cruz had returned from
lunch, to 13:04 (about 1 p.m.), thus in effect charg-
ing the Company for 30 minutes of work time that
he had not put in . He also reported that Miss
Manchino had overheard Giroux ask Cruz whether
he was putting down "an hour and a half or an
hour" on his timecard.
Miss Manchino , a few minutes later after
Maloney spoke to Abrahams, also spoke to
Abrahams and confirmed Maloney's report that she
had seen Cruz make a change on his timecard and
had overheard Giroux asking him whether he was
putting down " an hour and a half or an hour" on
his card.
Maloney also told Abrahams that he had also
seen Giroux tampering with his timecard that noon
which upon subsequent inspection he discovered
showed a tampering of the noon punch out hour for
that day (Saturday). The tampered card showed
that Giroux had crossed out the printed time mark
of 12:05 with a pencil through which the printed
12:05 marking nevertheless showed . Maloney
further told Abrahams that Giroux had taken 40
minutes for lunch that day.
Upon receiving these complaints from Maloney
about Cruz and Giroux, Abrahams called the two
employees in for questioning . When confronted
with his time record for Thursday, Cruz readily ad-
mitted that the card showed a handwritten lunch
return time of 13:04 but flatly and emphatically de-
nied that he had written it or made any changes on
his card . At this juncture Abrahams asked Giroux if
he had seen Cruz make any changes on his card.
Giroux replied that he had not. Cruz also emphati-
cally denied to Abrahams that he had taken an
hour and a half for lunch that Thursday noon as
Maloney was accusing him of , but admitted being 5
to 10 minutes late which he said frequently hap-
pened as he and Giroux used part of their lunch
break to play pool and this sometimes delayed their
return to the store beyond the alloted 1-hour lunch
period.
When Giroux was questioned about his own
timecard record for that Saturday noon, he im-
mediately and readily admitted that he had crossed
out the timeclock marking but explained at once
that he had punched the clock by mistake from
habit before he realized that he was only entitled to
a 20-minute break instead of the full hour break
that noon, as he had not officially commenced
work that day until 10:05 a.m.
Based on a further report he had received from
Maloney that Giroux had taken a 40-minute break
that Saturday noon instead of the 20 minutes he
was entitled to, Abrahams accused Giroux of steal-
ing company time and of setting a bad example as
assistant meat manager for other employees in the
Agawam store meat department. At the hearing,
Abrahams testified that Giroux had admitted to him
at the Saturday conference that he had taken a 40-
minute noon break that day. In his testimony,
Giroux, however, denied that he had made any
such admission and testified that he had taken only
a 20-minute break while eating his lunch in his car.
He also flatly denied the testimony of Miss
Manchino that she had seen him eating with Cruz
that Saturday noon at Woolwoorth's which is only a
few stores away from the Agawam store.
At the conclusion of the conference, Abrahams
suspended the two employees and told them he
would let them know their future with the Com-
pany early the following week. Before making up
his mind as to what to do about Cruz and Giroux,
Abrahams reviewed the provisions of the Com-
pany's published employee rules pertaining to
timecard irregularities and consulted other high
level officers of the Company. Respondent's em-
ployee handbook, of which both Cruz and Giroux
had received copies long prior to the events here
under consideration , states that altering or tamper-
ing with a timecard is prohibited and also provides
in a somewhat indirect way that falsifying informa-
tion on an employee timecard is a ground for sum-
mary discharge without prior warning or disciplina-
ry action.
On the following Tuesday, February 28, Cruz
met with Abrahams again at the Agawam store
where Cruz came to determine his fate . Abrahams
once again asked him if he would admit scratching
off the time Maloney had put on his timecard for
the previous Thursday noon and changing it to
show only an hour lunch break instead of the hour
and a half Maloney had charged him with. Cruz
again not only denied this but ridiculed the idea
that he would jeopardize his job "for just a lousy
half hour," especially in view of the fact that on a
previous occasion he had donated some 10 to 15
hours of his time to the Company upon the opening
of a new store . Abrahams called attention to the
fact that both Maloney and Manchin had sworn to
seeing him tamper with his timecard . Following an
ensuing argument in which Abrahams accused Cruz
of "pure dishonesty," Abrahams discharged Cruz.
On the same Tuesday, Abrahams had two
meetings with Giroux , after having assured him on
Monday over the telephone that he would not be
discharged. The first meeting took place in the
THE FOOD MART 845
morning at the Agawam store in the presence of
Capodagli . Giroux testified that at this first meeting
Abrahams again went over the matter of his
scratched out timecard for the preceding Saturday
and was impatient with him when he offered the
same admission and explanation for the tampered
card. Giroux further testified that Abrahams stated
to him that "anyone could make a mistake" such as
Giroux said he had made , but insisted that it looked
to him , in view of Maloney 's report that he had
taken 40 minutes for lunch when only entitled to a
20-minute break , and that he was trying to steal
company time. Abrahams ' testimony showed an en-
tirely different version of this first meeting with
Giroux that Tuesday, as he testified that Giroux had
told him that he was sorry for what he (Giroux) had
done that previous Saturday noon and
acknowledged that he had "goofed." Later that
day, Abrahams met with Giroux again at another
store . At this second meeting , Abrahams again
questioned Giroux about whether he had seen Cruz
the previous Saturday noon change the time shown
on Cruz' timecard for his return from lunch the
preceding Thursday . When Giroux again denied
that he had seen Cruz do this, Abrahams remarked
that it was "damn funny you didn't see him if you
were standing right aside of him ." Abrahams then
proceeded to tell Giroux that he didn 't think he
should be an assistant meat manager any more and
informed him that he was being demoted to a meat-
cutter position and would be transferred to another
store located about the same distance from his
home as the Agawam store . Giroux accepted the
demotion and transfer to another store where he
was still working at the time of the trial herein.
Abrahams did not fire Giroux as he had Cruz
because he felt that Giroux had been more honest
in admitting tampering with his timecard than Cruz
who denied any tampering on his card. On the
Saturday that Cruz and Giroux were suspended,
Respondent received , as heretofore noted, a letter
from the Union requesting recognition as the
representative of all the meat department em-
ployees in the Agawam store where Cruz and
Giroux had been working up to the hour of their
suspension . The contents of this letter did not
become known to Abrahams or any other responsi-
ble officer of Respondent until the following Mon-
day, February 27, as Respondent 's offices in
Holyoke where the letter was sent is not open on
Saturdays , although Respondent's officers may
drop in from time to time on Saturdays . The con-
tents of the letter , however , became fully known to
Abrahams prior to the time he discharged Cruz and
demoted and transferred Giroux.
At the end of the second day of trial in this case
when all the testimony was in , the hearing was
recessed on the joint motion of the parties for the
purpose of viewing the Agawam store and sub-
sequently receiving into evidence stipulations from
counsel on certain physical measurements of the
premises of the store and conclusions therefrom as
same may relate to the credibility of the testimony
of Maloney and Miss Manchino that they both saw
Cruz make a change on his timecard on the afore-
mentioned Saturday noon, February 25.10 When the
hearing was resumed for the taking of the stipula-
tions of counsel, after the visitation to the Agawam
store, Respondent's counsel moved that the case be
also reopened for the taking of further testimony on
the ground "that while the parties were at the
Agawam store within the last hour a circumstance
developed that there was another employee who
was present on February 25 at the time the event in
this proceeding took place and it appears that this
employee has some important testimony and
evidence for the record."
The motion, being granted, Respondent called
Dolores Frasco who has worked at the Agawam
store for nearly 2 years in the capacity of head
cashier on Saturdays and as a regular cashier during
the rest of the week." Miss Frasco was working at
the Agawam store when the visitation from the
hearing to take physical measurements of the
Agawam store took place. Her curiosity having
been aroused by the visitation, Frasco asked the
store manager "what was going on" and upon
receiving word that it had to do with timecard tam-
pering by the two involved employees, it recalled to
her memory what she had observed in that connec-
tion on the Saturday in question and this in turn led
to her testifying in this proceeding. On Saturday,
February 25, 1967, Miss Frasco worked as head
cashier which required her to supervise all the
other cashiers and to circulate among them. The
cash registers are near the front of the store and the
courtesy booth. Miss Frasco's credited and un-
disputed testimony shows that at noontime that
Saturday while standing near the timeclock she ob-
served Cruz erasing something from his timecard
on the writing ledge attached to the front of the
courtesy booth. At the time she saw Cruz erasing
his timecard, she assumed that he had punched
someone 's card by mistake, which is a common
mistake but later when she heard through the
grapevine that Cruz had been fired for tampering
with his timecard she associated his discharge with
the erasing she saw him do that Saturday noon on
his timecard, as she did not see him at the store
thereafter. While Frasco under cross-examination
could not state positively that the erasure she saw
Cruz make took place on February 25, her
testimony nevertheless as a whole leaves no doubt
that the incident did in fact occur on February 25
during the noon hour.
Miss Frasco, on the other hand, testified that she
had no recollection of seeing Giroux at all at the
time she observed Cruz erasing his timecard, as
10 As heretofore noted , Maloney and Manchino also saw Giroux make a
change on his own timecard that Saturday , but as Giroux has at all times
openly admitted this but testified that the change was made to correct an
error, there is no factual issue on the question of whether Giroux altered his
timecard that noon
" The findings of this paragraph are based on the testimony of Miss
Frasco
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there were many persons in the area near the cour-
tesy booth and she was not particularly looking for
any person . In my opinion , this honest disclaimer of
any knowledge of Giroux 's being present at the
time here in question due to inattention fortifies the
credibility of her testimony that she saw Cruz alter
his card.
Conclusions and Discussion
The critical questions in this case are, as Respon-
dent correctly points out , ( a) whether the two em-
ployees engaged in the misconduct attributed to
them by Respondent, and (b ) whether in fact Cruz
was discharged and Giroux demoted and trans-
ferred because of their misconduct and not because
of their union activities.
Taking up first the case of Cruz , the record
shows that Respondent accuses Cruz of two acts of
misconduct, to wit: (1) of tampering , contrary to
company rules , with his timecard for Thursday,
February 23, 1967 , by erasing therefrom Acting
Store Manager Maloney's marking charging Cruz
with a 1 - 1/2 hour lunch break and substituting a
marking showing only a 1 -hour lunch break, and
(2) of attempting through his alleged timecard al-
teration to charge the Company with a half hour
worktime not actually worked . Although Cruz flatly
denies that he had tampered with his timecard for
the day in question , I am constrained to accept the
testimony of Respondent 's witnesses, Maloney,
Manchino , and Frasco , that they had actually wit-
nessed Cruz tampering with his card , not only
because Respondent 's witnesses outnumber Cruz
but also because their testimony appeared so
detailed , forthright , and honest as to require ac-
ceptance . Particularly the testimony of Miss Frasco,
head cashier, that she had seen Cruz alter his
timecard carries special conviction as Respondent
had no awareness of this prospective witness prior
to the Trial Examiner 's visitation to the Agawam
store pursuant to motion , when Miss Frasco for the
first time became aware of the pendency of this
proceeding and its issues and volunteered the infor-
mation that led to her testimony
While it is true that Giroux , who was with Cruz at
the time , testified that he didn 't see Cruz make any
alterations on his ( Cruz ') card, it is evident that
Cruz could have made the change while in the
presence of Giroux without Giroux being aware of
it as Giroux was himself preoccupied with making
his own admitted alteration on his own timecard in
order to obliterate the noon checkout mark he had
punched on it by mistake . While it is also true that
Maloney , Manchino , and Frasco could not see from
their respective positions in the store at the time
they were observing Cruz altering his card, just
what alterations he was making , an inspection of
Cruz ' timecard which covers the entire week
reveals that the alteration must have been with
respect to his return time from lunch that Thursday
noon as his card reveals no other changes or altera-
tions.
I also credit the testimony of Maloney that Cruz
(as well as Giroux) on the Thursday in question had
taken 1 - 1 /2 hours for his lunch break rather than
only the single hour Cruz claims to have taken. The
crediting of Maloney 's testimony in this respect
is based on his demeanor as well as a number of
other factors . Among these factors is the fact that
Cruz and Giroux had already been out an hour
for their lunch break when Capodagli, the meat
department manager , told Maloney as he was
about to go out for his lunch that he was expecting
Cruz and Giroux back in a few minutes . Secondly,
Cruz in his testimony admits that he and Giroux
were frequently late in returning to work after their
lunch break as they were accustomed to playing
pool during their lunch hour. Moreover, Cruz him-
self admitted being late that Thursday noon
although he denied being as late as a full half hour.
Thirdly , although Maloneyy also marked Giroux's
timecard that noon to show the same 1 - 1 /2 hour
lunch break since the two employees retuurned to
work together, Giroux has never challenged that
marking.
Under all of the above circumstances , I find that
Cruz by changing Maloney's marking of 1-1 /2
hours on his (Cruz' ) timecard to 1 hour gave the
Company good cause to believe that Cruz was at-
tempting to charge the Company with a half hour
of work time that he did not perform that
Thursday.
Respondent 's accusations against Giroux are that
on Saturday , February 25, 1967, he took a 40-
minute break when only entitled to 20 minutes and
that he tampered with his timecard for that day
contrary to company rules. The evidence in support
of this is Abraham's testimony that Maloney had re-
ported to him that Giroux had taken a 40-minute
noon break that Saturday and that Giroux on the
following Tuesday had admitted this to him
(Abrahams). Although Giroux denies making this
admission to Abrahams and although he testified
that he had taken only a 20-minute break while eat-
ing lunch in his car , I credit the testimony that he
had taken the longer break. One of the factors in
this credibility determination is that Maloney, who
reported Giroux's 40-minute break to Abrahams,
would naturally, after his experience with Giroux's
and Cruz' long lunch hour on the preceding
Thursday , have been on the alert for further exces-
sive lunch breaks by the two employees . Another
factor is the admitted fact that both Giroux and
Cruz left the Agawam store together that Saturday.
The record shows that the two men are accustomed
to playing pool together during their lunch break
and that this frequently made them late in returning
to the store . The final factor is that Miss Manchino,
the operator of the courtesy booth, testified that
she had seen both Giroux and Cruz eating lunch
together that same noon at the nearby Woolworth
store. With respect to the alteration appearing on
Giroux's card for Saturday noon , Giroux, as hereto-
fore shown , readily admits that he made that altera-
tion . While the record shows that Giroux made the
THE FOOD MART 847
alteration solely to correct a mistake in punching
out for the noon hour , this was nevertheless a viola-
tion of the Company 's rules as he should have
asked a supervisor to make the correction for him.
There is a third matter which also disturbed
Abrahams about Giroux and contributed to his
decision to demote and transfer Giroux to another
store . This was Giroux's denial that he had seen
Cruz on February 25 altering his timecard record in
the face of eye reports from Maloney and Manchino
that they had seen Cruz do this in Giroux's
presence . The evidence shows that Abrahams re-
garded this denial as a coverup for Cruz and caused
Abrahams to feel a loss of confidence in Giroux.
In summary it is found that Giroux and Cruz did
engage in the misconduct claimed by Respondent.
This in turn leads to the question of whether
Respondent used such misconduct as a pretextual
reason for the action taken against the two em-
ployees in order to curb and prevent further union
activity by them in the Agawam store , as contended
by General Counsel.
In support of his contention that the actions
against the two employees were discriminatorily
motivated , General Counsel relies principally on
Respondent 's knowledge of the union activities of
Cruz and Giroux at the Agawam store and the tim-
ing of the actions against them.
The Respondent acknowledges that it had
knowledge of the union activities of both Cruz and
Giroux prior to the actions taken against them as
they were observed wearing union buttons on their
persons during working hours at the Agawam store
since sometime in November 1965. This
knowledge , however , is not particularly significatnt
as all of the other meat department employees in
the Agawam store had been wearing union buttons
for the same period of time . The only thing that
distinguishes Cruz and Giroux ( and one other em-
ployee ) in the Agawam store meat department in
this connection is that for some 3 days before their
suspension they had been wearing larger and more
conspicuous union buttons than the remaining 16
employees in the department . This is also not
deemed particularly significant as union buttons are
union buttons regardless of size and there is no
evidence that Cruz and Giroux were any more ac-
tive in their union activities than their fellow work-
ers. The significant fact is that the complaint does
not allege and the record does not snow any acts on
the part of Respondent in the 4 months preceding
the suspension of the two employees reflecting a
union animus.
The second principal reason urged by General
Counsel in support of his contention that Respon-
dent discriminatorily discharged Cruz and demoted
and transferred Giroux is that the alleged dis-
criminatory action came at a time which coincided
with the election results in favor of the Union at
Respondent 's Fairview store and with the Union's
request for recognition at the Agawam store. While
this is true , this coincidence standing alone in the
absence of any independent Section 8 ( a)( 1) viola-
tions , is insufficient to establish a discriminatory
motive where as here the determined misconduct of
the two employees in the business judgment of
Respondent called for the action taken . Watkins
Center, 156 NLRB 442, 443-444.
I find that the other ancillary arguments ad-
vanced by General Counsel to show a discriminato-
ry motive in Respondent 's actions against em-
ployees Cruz and Giroux are without merit.
Upon the basis of the above findings of fact, and
upon the entire record in this case , I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the
Union is a labor organization within the meaning of
the Act.
2. The General Counsel has failed to establish by
a preponderence of evidence that the Respondent,
by discharging employee Cruz and demoting and
transferring employee Giroux to another of its
stores , discriminated against them within the mean-
ing of Section 8(a)(1) and ( 3) of the Act, as al-
leged in the complaint.
Upon the foregoing findings of fact , conclusions
of law and the entire record , and pursuant to Sec-
tion 10 ( c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.