Thriftway Supermarket

National Labor Relations Board - Board Decisions

Oct 16, 1985

276 N.L.R.B. 1450 (N.L.R.B. 1985)

1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Granco, Inc., d/b/a Thriftway Supermarket; Blan-
tom Corporation , d/b/a Thriftway Supermarket;
and Bland A . Painter, Jr., d/b/a Thriftway Su-
permarket , a Single Employer and United Food
and Commercial Workers Union Local No. 278,
UFCW International Union , AFL-CIO, CLC.
Cases 5-CA-12756, 5-CA-12855, 5-CA-
13358, and 5-RC-11316
16 October 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 6 April 1982 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
filed answering briefs.
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 briefs2 and
has decided to affirm the judge's rulings, findings,3
and conclusions to the extent consistent with this
Decision and Order, and to adopt the recommend-
ed Order as modified.
While we adopt most of the judge's conclusions
as to the alleged unfair labor practices, we cannot
find certain of the 8(a)(1) violations he found,4 and
i The Charging Party contends that we should disregard the Respond-
ent's exceptions because of their lack of specificity. We reject this argu-
ment and consider the exceptions
2 The Respondent has requested oral argument The request is denied
as the record , exceptions , and briefs adequately present the issues and the
positions of the parties.
3 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing the findings . In reaching this conclusion, we have taken into ac-
count that , in some instances , the judge did not explicitly state that he
was making a credibility resolution where a conflict in testimony oc-
curred. However, since in those instances he found that events took place
in a way consistent with only one of the versions of the conflicting testi-
mony, it is clear that he implicitly credited the witness whose version he
accepted
In addition , the Respondent protests that the judge uniformly credited
the General Counsel 's witnesses over those of the Respondent and argues
that this demonstrates the inadequacy of his credibility resolutions. How-
ever, the total rejection of one point of view does not of itself constitute
a basis for overturning an administrative law judge's credibility determi-
nations. NLRB Y. Pittsburgh Steamship Co., 337 U .S, 656 , 659 (1949).
In the decision, the judge made some inadvertent errors which were
noted and corrected.
4 Member Dennis would adopt all of the judge 's unfair labor practice
findings . In agreeing with her colleagues that a bargaining order is appro-
priate, Member Dennis relies on the analysis set forth in her concurring
opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985)
we find certain others for reasons other than those
given by the judge.5
We agree with the judge that the Respondent
"adopted [Lawrence Rickman's] `petition' as its
own" on two occasions. First, Store Manager
Welch told employee Ayers that "the store was
going to pass around a petition for employees who
were against the Union to sign."6 Later Welch pre-
sented the petition to employee Phifer and told him
that with two more signatures the Respondent
could win the election.7
Moreover, we find that Rickman was a supervi-
sor, so that his conduct was coercive regardless of
the Respondent's endorsement of it. During the or-
ganizational campaign, Rickman exercised supervi-
sory authority in numerous instances, disciplining,
assigning, and responsibly directing employees, and
effectively recommending their hire and discharge,
in the interests of the Respondent. Thus Rickman
referred both Frank Roop and Myrtle Walker for
employment, Company President Painter asked
Rickman's opinion whether each of them was a
good worker and Rickman said each was; both
were hired. Rickman testified that he would settle
disputes among courtesy clerks, that he would
advise employees to work faster when he thought
they needed to, and that employees came to him
when they needed help or had nothing to do, and
Rickman reassigned employees in response to these
requests. Assistant Store Manager Shell assigned
him to reprimand employee West in response to a
customer complaint about broken eggs. Rickman
once ordered employee Benson to leave the man-
ager's office because he was not supposed to be
there. Before discharging Benson, Store Manager
Welch asked Rickman's opinion of Benson and
Rickman said he "goofed off a lot." Welch later in-
vited Rickman to be present for Benson's discharge
interview.
That Rickman's actions were indeed an exercise
of authority, and not merely the advice of a senior
employee, is further shown by the numerous sec-
ondary indicia that gave Rickman the appearance
of supervisory status in the eyes of employees.
These include his having keys to the store and
access to the manager's office, his inclusion in man-
Chairman Dotson would not adopt the judge's finding that Supervi-
sor Metayer interrogated employee Caldwell by asking him if a union
representative had come to his house. Because the inquiry did not relate
to Caldwell's activity or sympathy, but only to whether he had received
an uninvited visit from the Union, it was not coercive
s Chairman Dotson would not find that this statement to a single em-
ployee was sufficient to make Rickman's activity an unlawful interroga-
tion of every employee Rickman asked to sign , but finds that it would
make his solicitation of Ayers coercive.
7 We do not need to pass on the judge 's finding that Welch solicited
Phifer to sign the petition . In light of our other conclusions , a finding
that Welch interrogated Phifer in this instance would only be cumulative.
276 NLRB No. 164
THRIFTWAY SUPERMARKET
agement meetings, and his authority to approve
customers' personal checks and rainchecks. At the
time in question, Rickman closed the store 2 nights
a week and on those occasions was the highest
person in authority present in the store for the last
several hours of the day.
We disagree with the judge's finding in part II,J
of the decision, regarding Store Manager Robert-
son. We would not find coercive Robertson's
asking Hatcher if the Union had told him that em-
ployees could lose benefits if the Union came in. It
is true, of course, that employees can lose benefits
in the process of collective bargaining and, Al-
though Robertson suggested that conclusion with-
out explaining the whole process by which it might
come about, such an omission in itself is not coer-
cive. See Eagle Comtronics, 263 NLRB 515 (1982).8
We nonetheless agree with the judge that the
Respondent's other unfair labor practices were
"sufficiently extensive and grave to foreclose any
reasonable likelihood that a fair election can be
held in the foreseeable future," and warranted the
imposition of a bargaining order remedy. In NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), the Su-
preme Court approved our use of bargaining
orders as remedies in cases marked by substantial
employer misconduct which has the "tendency to
undermine [the Union's] majority strength and
impede the election processes."9 The Court ex-
plained that, where the union had at one time en-
joyed majority support among the employees, the
Board, in fashioning a remedy, can properly con-
sider:
. . . the extensiveness of an employer's unfair
labor practices in terms of their past effect on
election conditions and the likelihood of their
recurrence in the future. If the Board finds
that the possibility of erasing the effects of
past practices and of ensuring a fair election
(or a fair rerun) by the- use of traditional reme-
dies, though present, is slight and that employ-
ees sentiment once expressed through cards
® Chairman Dotson would not find that Robertson created the impres-
sion of surveillance by telling Hatcher how many employees attended a
union meeting. Robertson could have learned that by legitimate means,
and he did not indicate to Hatcher how he knew He agrees with the
judge, nonetheless, that Robertson interrogated Hatcher unlawfully by
asking him why he went to the meeting
Nor would the Chairman find anything unlawful in Robertson's offer
to buy dinner for Hatcher if he found out when he had signed a union
card Hatcher had already told Robertson that he signed a card, and it is
unclear either that the Respondent would benefit by knowing the date, or
that Hatcher would be induced by the prospect of a free dinner In any
event, it appears that Robertson's offer was merely-rhetorical. He had
told Katcher that the card could only be revoked within 30 days of the
anniversary of signing, and suggested that Hatcher did not know just
when that would be. Robertson was apparently confusing the authoriza-
tion card with an authorization for dues checkoff under Sec. 302(c)(4) of
the Act
9 395 U.S at 614
1451
would, on balance, be better protected by a
bargaining order, then such an order should
issue. 10
In this case the Respondent, often acting through
its highest officials, committed extensive unfair
labor practices, including the most serious kind,
and continued to do so even after the election. It
took no rectifying measures and, while there has
been some employee turnover, we find evidence
that the inhibitive effects of the unfair labor prac-
tices are likely to persist nonetheless.I 1
There can be no doubt that the Respondent's ex-
tensive unfair labor practices served to dissipate the
card majority the Union had established as of 4
September. a 2 Included among the Respondent's
numerous violations of the Act were threats of
store closure and the discharge of a leading union
adherent. The Board has previously recognized
that these particular violations are likely to have a
lasting inhibitive effect on a substantial percentage
of'the work force." Moreover, interrogations and
threats were extensive and repeated, conducted by
management from top to bottom, and directed at
almost all employees, both individually and in
groups, with some employees the subject of repeat-
ed interrogations and threats.
Beginning on 5 September and continuing up to,
and even during, the 20 November election, the
Respondent's managers and supervisors made a
concerted effort to identify those employees who
supported the Union and coercively to persuade
them to relinquish their support. Individual em-
ployees were questioned about whether they had
signed union cards, whether they had attended
union meetings, why they wanted a union, and
why they thought the Respondent needed one,
whether they had decided which way to vote in
the election, and how they thought their fellow
employees would vote. Supervisor Rickman polled
the work force on their union sentiments, with the
participation of Store Manager Welch, asking each
employee to sign his or her name to an antiunion
statement. And, in one instance, Bland Painter III,
president of one of the Respondent's entities and
secretary-treasurer of another, closely questioned
prospective employee Dennis West about his atti-
i ° Id. at 614-615
'' See Horizon Air Services, 272 NLRB 243 (1984); Marchese Metal, 270
NLRB 293 (1984); Schaller Trucking Corp., 269 NLRB 292 (1984); Tall
Pines Inn, 268 NLRB 1392 (1984); Soil Engineering Co., 269 NLRB 55
(1984), Atlas Microfilming, 267 NLRB 682 (1983). Chairman Dotson dis-
sented in Soil Engineering, and did not participate in Atlas; he finds the
unfair labor practices here to be more numerous , extensive , and repetitive
than in either of those cases.
i 2 The Union lost the 20 November election.
13 Horizon Air Services, supra; Highland Plastics, 256 NLRB 146, 147
(1981).
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tude toward unions, and asked him how he would
vote in a union election.
Having attempted to identify and coerce union
supporters through unlawful interrogation, polling,
and prehire screening, the Respondent went on to
threaten them with dire consequences should the
Union succeed. For example, during the last week
of September, Assistant Manager David Shell told
employee Charles Benson that, if the Union got in,
the Respondent would most likely have to cut
hours and wages because it could not afford union-
ization; in early October William Welch told
Benson that, if the Union won, the Respondent
would have to cut the hours and might even have
to close; in October, Bland Painter III told employ-
ee' Michael Taglio that the Union was a cancer and
that it and everyone that was siding with it were
going to be eliminated at all costs; on 6 October
Welch told a meeting of employees that, if the
Union got in, they would all go back to the mini-
mum wage, all their benefits would be taken away,
and the Respondent would negotiate from scratch;
on 7 November Welch told employee Oscar Joe
Phifer that, before negotiating a contract, the
Painters (Bland Painter III and Bland Painter Jr.)
would close the doors and the employees would all
be out on the street looking for jobs; on 19 Novem-
ber Bland Painter III told employee Kathy Ayers
that the Union was not going to get into the store
and, if it did, the Respondent would not negotiate;
and on election day, 20 November, Meat Depart-
ment Supervisor Lucien Metayer told employee
Charles Caldwell, prior to Caldwell's casting his
ballot, that, if the Union won, employees would
loss their Blue Cross/Blue Shield insurance.
Finally, the Respondent drove its point home by
discharging organizing committee member Charles
Benson, citing pretextual reasons. The lasting in-
hibitive effect of this pattern of violations was ex-
acerbated when, months after the Union lost the
election, the Respondent again seized on a pretext
and discharged union organizing committee
member Oscar Joe Phifer. The judge concluded
that Phifer's discharge was a violation of both Sec-
tion 8(a)(3) and Section 8(a)(4).
Bland Painter III made the decision to discharge
Phifer. It was Painter who, during the course of
the Union's organizing campaign, told employee
Michael Taglio that the Union was a cancer and
that it and everyone that was siding with it were
going to be eliminated at all costs. Phifer's dis-
charge demonstrates Painter's enduring hostility
toward anyone who supported the Union, and indi-
cates his intention to make good on his threat to
Taglio.
The Respondent's numerous and grave unfair
labor practices, their lasting inhibitive effect, and
the Respondent's continued willingness to violate
the Act (as demonstrated by Painter's discharge of
Phifer even after the Union had lost the election),
all indicate that our usual remedies will be ineffec-
tive here and a bargaining order is warranted. The
Respondent claims, however, that a substantial
number of workers have left its employ, including
the two supervisors who perpetrated the majority
of the unfair labor practices (William Welch and
Jesse "Shane" Robertson) and six of the targets of
the violations (Kathy Ayers, Charles Caldwell, Mi-
chael Taglio, Wayne Firebaugh, Patricia Guthrie,
and Dennis West). Based on this turnover, the Re-
spondent argues that, if we reinstate discriminatees
Benson and Phifer, its remaining work force would
not suffer any residual impact from the previous il-
legal conduct and that a bargaining order should
not issue. This argument is not persuasive. We find
that the impact of the Respondent's violations is
likely to persist despite some turnover.14 Although
Welch and Robertson no longer work for the Re-
spondent, Bland Painter III continues at his posts
of president of Granc-o and secretary-treasurer of
Blantom. Painter has characterized the Union as a
"cancer," and has demonstrated his willingness to
carry out his threat to eliminate it at all cost. Espe-
cially significant here is Painter's interrogation of
West in his prehire interview; that tactic would
make employee turnover an opportunity for coer-
cion, rather than a factor dissipating coercion.
Painter's continued presence thus makes it unlikely
that the effect on employees of the Respondent's
unfair labor practices has been softened by Welch's
and Robertson's departures.1 s
The turnover at the time of hearing was about 12
percent, it was not nearly as large as that cited by
courts in overturning Board bargaining orders. a 6
While the six employees who have left were tar-
gets of unfair labor practices, we do not assume
that other employees were unaffected. The dis-
charges in particular were likely to be common
knowledge, and the polling touched the majority of
employees. Based on all of the above, we cannot
agree with the Respondent that our normal reme-
dies will suffice here and we will adopt the judge's
recommendation that a bargaining order issue.
14 See Marchese Metal.
15 NLRB v Anchorage Time Publishing Co, 637 F 2d 1359, 1370 (9th
Cir 1981)
1 s See , e g., NLRB v. Apple Tree Chevrolet, 671 F 2d 838, 842 (4th Cir
1982) (75-percent turnover), Red Oaks Nursing Home v NLRB, 633 F.2d
503, 510 (7th Cir 1980) (35 percent)
THRIFTWAY SUPERMARKET 1453
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Granco, Inc., d/b/a Thriftway Super-
market; Blantom Corporation, d/b/a Thriftway Su-
permarket; and Bland A. Painter, Jr., d/b/a
Thriftway Supermarket, a Single Employer, Roa-
noke, Virginia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Remove from its files any reference to the
unlawful discharges of Charles Benson and Oscar
Joe Phifer, and notify them in writing that this has
been done, and that the discharges will not be used
against them in any way."
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election in
Case 5-RC-11316 is set aside and the petition is
dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in United
Food and Commercial Workers Union, Local No.
278, United Food and Commercial Workers Inter-
national Union, AFL-CIO, CLC, or any other
labor organization, by discharging any of our em-
ployees or in any other manner discriminating
against them in regard to their tenure of employ-
ment or any term or condition of employment.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because that employee
was named in charges filed under the Act.
WE WILL NOT interrogate our employees con-
cerning their or other employees' union activities
or desires.
WE WILL NOT, without adequate safeguards, poll
employees about their attitude towards a union.
WE WILL NOT ask employees how they will vote
in a representation election.
WE WILL NOT interrogate job applicants with
regard to their union sympathies.
WE WILL NOT say anything to give you the im-
pression we are engaging in surveillance of union
meetings or employee union activities.
WE WILL NOT tell you that other employees
have been discharged because of their union activi-
ties.
WE WILL NOT threaten you with store closure,
discharge, reduction of wages and hours, loss of
health insurance or other benefits, or a refusal to
negotiate, or other reprisals because you select a
union as your collective-bargaining representative.
WE WILL NOT promise to buy any employee's
dinner if he or she divulges the date he or she
signed a union authorization card.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL on request, bargain collectively with
United Food and Commercial Workers Union,
Local No. 278, United Food and Commercial
Workers International Union, AFL-CIO, CLC as
the exclusive bargaining representative of all the
employees in the bargaining unit described below
with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment
and, if an understanding is reached, embody that
understanding in a written, signed agreement. The
bargaining unit is:
All full time and regular part time cashiers,
baggers, meat, grocery, produce, and delicates-
sen clerks working at the Employer's locations
at 7511 Williamson Road, 319 Grandin Road,
S.W., Roanoke, Virginia, and Main Street,
Troutville, Virginia, but excluding all store
managers, assistant store managers, co-manag-
ers, merchandisers, department managers exer-
cising supervisory duties, office clericals, con-
fidential, seasonal and casual employees,
guards and supervisors as defined in the Act.
WE WILL offer Charles Benson and Oscar Phifer
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL remove from our files any references
to the discharges of Charles Benson and Oscar Joe
Phifer, and notify them in writing that this has
been done, and that these discharges will not be
used against them in any way.
All our employees are free to join United Food
and Commercial Workers Union, Local No. 278,
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Food and Commercial Workers Internation-
al Union , AFL-CIO, CLC or any other labor or-
ganization.
GRANCO, INC., D/B/A THRIFTWAY
SUPERMARKET; BLANTOM CORPORA-
TION D/B/A THRIFTWAY SUPERMAR-
KET; AND BLAND A. PAINTER, JR.,
D/B/A THRIFTWAY SUPERMARKET, A
SINGLE EMPLOYER
Mark M Carissimi and N. Marcus Dunbar, Esqs., counsel
for the General Counsel.
James V Meath and David E. Nagle, Esqs., for the Re-
spondent.
Carey R. Butsavage, Esq., for the Charging Party.
DECISION
CLAUDE R. WOLFE, Administrative Law Judge. This
consolidated proceeding was ,tried before me at Roanoke,
Virginia, on August 12, 13, and 14, and September 8, 9,
and 10, 1981. The General Counsel alleges numerous
violations of Section 8(a)(1), (3), and (4) and seeks a bar-
gaining order. Case 5-RC-11316 involves objections to
conduct affecting a representation election.
On the entire record' and considerations of testimonial
demeanor derived from my observation of the witnesses,
I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
The various entities named as Respondents operate as
a single employer and will be collectively referred to as
Respondent. Respondent's retail grocery business meets
Board and statutory jurisdictional requirements and Re-
spondent is an employer engaged in commerce and oper-
ations affecting commerce as defined in Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The Charging Party (the Union) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1 At hearing I rejected G.C. Exh. 3, a position statement forwarded to
the Regional Office by Respondent's attorney on November 26, 1980, in
response to the charges filed in Cases 5-CA-12748 and 5-CA-12756.
Case 5-CA-12756 alleges the unlawful discharge of Charles Benson. In
his posttrial brief, the General Counsel again moves for the admission of
his Exh 3 as containing admissions with respect to a job evaluation of
Benson. In support of this argument the General Counsel cites Steve Alai
Ford, Inc., 179 NLRB 229 (1969), and V & W Castings, 231 NLRB 912
(1977). After consideration of the argument and authorities advanced,
G.C. Exh 3 is received . The General Counsel's brief was served on Re-
spondent in November 1981, and no opposition to the receipt of G C.
Exh. 3 has been received.
At trial I rejected G.C. Exh. 47 relating to the discharge of one Ham-
brick as irrelevant . That ruling is reaffirmed.
III. THE ALLEGED UNFAIR LABOR PRACTICES2 AND
OBJECTIONS TO ELECTION
A. Background and Procedure
Respondent's locations involved in this case will be re-
ferred to as the Troutville, Hollins, and Grandin stores.
The Union's organizing campaign began in March
1980,3 and the first union authorization card is dated
March 27.
In March, Store Manager William Welch told employ-
ees Firebaugh and Guthrie that "this company would
probably lock its doors if the union tried to get in."
During the third week of March when James Cloninger
was being interviewed for a job he was asked by Bland
Painter III (Painter) what he thought of unions. Clon-
inger expressed a poor opinion of unions, whereupon
Painter said the Company was very antiunion. In April,
Welch asked Charles Benson4 if he had heard anything
in the store about the Union. None of these March-April
statements may be found violative of the Act because
they occurred more than 6 months prior to the filing of
the first charge in this case, but they may be considered
as background evidence.5
The Union filed a petition for election on September 9.
An election was held in the unit hereinafter found appro-
priate on November 20, 1980. After the resolution of cer-
tain determinative challenged ballots, the Regional Di-
rector for Region 5 issued a revised tally of ballots
showing 19 votes for the Union, 25 against, and 6 chal-
lenged ballots. On November 28, the Union filed its ob-
jections to the election certain of which are pending
before me. The objections before me read as follows:
1. The Employer, by and through its agents,
made material representations to employees and
thereby interfered with the laboratory conditions
necessary for a free and fair election.
2. The Employer, by and through its agents, un-
lawfully interrogated employees concerning their
union activities and/or union sympathies, thereby
restraining and coercing employees in the exercise
of their Section 7 rights.
3. The Employer, by and through its agents,
made threats of reprisal to employees if they sup-
ported the union, thereby restraining and coercing
them in the exercise of the Section 7 rights.
4. The Employer, by and through its agents,
threatened to close its stores if the union won the
election, and thereby interferred with the laboratory
conditions necessary for a free and fair election.
2 The facts set forth are based on a composite of the credited aspects
of the testimony of all witnesses, the exhibits, and careful consideration of
the logical consistency and inherent probability of the facts found Al-
though I may not advert to all of the record testimony or documentary
evidence, it has been weighed and considered. To the extent that testimo-
ny or other evidence not mentioned herein might appear to contradict
the findings of fact, that evidence has not been overlooked but has been
rejected as incredible, lacking in probative worth, surplusage, or irrele-
vant
2 All dates are 1980 unless shown otherwise.
4 Benson was a quiet, low key, mild-mannered witress who impressed
me as believable in most instances.
b Machinists Local 1424 v. NLRB, 362 U S: 411 (1960).
THRIFTWAY SUPERMARKET
5. The Employer, by and through its agents,
granted wage increases to employees during the
period between the filing of the petition and the
election in order to induce them to abandon their
support for the union.
6. The Employer, by and through its agents,
threatened employees with a loss of existing bene-
fits, thereby restraining and coercing employees in
the exercise of their Section 7 rights.
7. The Employer, by and through its agents, en-
gaged in surveillance of employees engaged in
union activities, thereby creating an atmosphere of
fear and coercion and destroying the laboratory
conditions necessary for a free and fair election.
9. The Employer, by and through its agents, dis-
charged employees who supported the union, there-
by creating an atmosphere of fear and coercion and
destroying the laboratory conditions necessary for a
free and fair election.
11. The Employer engaged in other conduct
which was intended to intimidate, threaten, and
coerce employees in the exercise of their Section 7
rights.
The charges in this case were filed on November 10,
and December 17, 1980, and May 22, 1981. Another
charge was filed on May 11, 1981, and received on May
14, 1981, in Case 5-CA-13310 alleging a refusal to evalu-
ate and grant a raise to Phifer, who is alleged herein as
an unlawful discharge, but 5-CA-13310 was withdrawn.
Cases 5-CA-12756, 5-CA-12855, 5-CA-13358, and 5-
RC-11316 were consolidated on June 29, 1981, and set
down for hearing.
B. Admitted Supervisors and Agents
The following named individuals occupied the posi-
tions set forth after their names at times material to this
case and are admitted statutory supervisors and agents:
Bland A. Painter III-president of Granco, Inc.
and officer of Blantom Corporation
William Welch-store manager
Jesse L. (Shane) Robertson Jr.-store manager
David Shell-assistant manager
Rollin Barto-deli department supervisor
Lucien Metayer-meat department supervisor
C. The Bargaining Unit, the Union's Majority, and the
Status of Certain Employees
The complaint alleges, Respondent admits, and I find
that the appropriate bargaining unit is:
All full time and part time cashiers, baggers, meat,
grocery, produce, and delicatessen clerks working
at the Employer's locations at 7511 Williamson
Road, 319 Grandin Road, S.W., Roanoke, Virginia,
and Main Street, Troutville, Virginia, but excluding
all store managers, assistant store managers, coman-
agers, merchandisers, department managers exercis-
ing supervisory duties, office clericals, confidential,
1455
seasonal and casual employees , guards, and supervi-
sors as defined in the Act.
The parties agreed that 48 employees were in the unit
on September 4, 1980.6 In its posttrial brief Respondent
withdrew its contention that Robert Creekmore should
be excluded from the unit. The parties being in agree-
ment and there being no persuasive evidence to the con-
trary, I find Robert Creekmore was in the unit on Sep-
tember 4, 1980, and continues to be so.
The General Counsel put in evidence 32 properly
signed and authenticated union authorization cards
which were signed by employees' before September 4,
1980.
c Those employees are.
Ayers, Kathy
Benson, Jr Charles
Bowe, Helen F
Caldwell, Chuck
Clements, Curtis B.
East, Virginia B.
Ford, Julia
Johnson, Robert L
Jones, Chip
McClung, Rita A
Poff, Betty H
Sweeney, Gregory S
Brammer, Bettie
Brinkley, Kathy
Cregar, Regina
English, Callie
Hatcher, Luanne
McDaniel, W. Keith
Morris, Jack K. Jr.
Phifer, 0 Joe
Secrist, Timothy
Tench, Suran A
Thomas, Daniel
Turner, Jeffrey
7 Those employees are:
Atkinson, Robert
Ayers, Kathy
Bedwell, Cornelia
Bedwell, Marcy
Benson, Charles K
Bowe, Helen
Brammer, Bettie
Brinkley, Kathleen
Caldwall, Charles
Clements, Curtis B.
Creekmore, Robert
Cregar, Regina
Davis, Jean E
East, Virginia B
Firebaugh, Wayne R.
Ford, Julia
Firebaugh, Wayne
Bedwell, Cornelia
Bedwell, Marcy
Davis, Jean E
Guthrie, Patricia B
Hambrick, Carol S.
Hosey, Emie
Lytton, Brenda
Jennings, Dorothy S.
McClearn, Mark
Richardson, James R
Shepherd, E. Marie
Annanno, Maggie
Atkinson, Robert G.
Burditt, Eugene
Hatcher, Andrew
Wilkerson, Colleen
Prime, Orville
Pring, Walter
Hammans, Rex
Rock, Richard
Waddell, Carol
Rock, Shirley
Shell, Mark
Guthrie , Patricia B.
Hambrick, Carol
Hammans, Rex M.
Hatcher, Andrew
Hosey, Ernest J
Johnson , Robert L.
McClearn, Mark
McClung, Rita
McCullough , Sandra
Poff, Betty H.
Pring, Walter D.
Richardson, James
Shepherd, Marie
Sweeney, Gregory Scott
Thomas, Danny
Thompson, Wayne L
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, in its posttrial brief, "Recogniz [es] that a
scant majority appears to have been established by the
General Counsel," and does not raise any question re-
garding the validity of the cards as designations of the
Union as collective-bargaining representative. The cards
contain an express authorization of the Union to repre-
sent the signer for purposes of collective bargaining.
There is no substantial evidence the signed cards were
procured by misrepresentation or improper inducement.
Accordingly, I find all 32 are valid authorizations of the
Union as the signatories' collective-bargaining represent-
ative.
Respondent does, however, contend that Wayne
Thompson, Michael Taglio, and Sandra McCullough
must be excluded from the unit, and Alexander Zimmer-
man, Margaret Hatcher, Linda Day, Lawrence Rickman,
and Grover Stanley should be included. The General
Counsel now agrees that Stanley should be included.
The Union argues Stanley is a casual part -time employee.
Grover Stanley is a social security annuitant who started
work in October 1979 under an agreement with Re-
spondent that he could temporarily leave work in order
to limit his earnings and thus avoid a decrease in his an-
nuity. He worked full time, left in June 1980, returned in
November 1980 to full-time work, and left again on June
12, 1981. Apart from the special arrangement made to
accommodate his annuitant status, there is no evidence
his terms and conditions of employment differ from those
of other unit employees, and I find he was a reasonable
expectation of recall. Accordingly, Grover Stanley is a
unit employee."
The unit now stands at 50 employees. Adding Zim-
merman, Hatcher, Day, and Rickman to and subtracting
Thompson, Taglio, and McCullough from the unit, the
result is a unit of 51 employees and 30 valid union au-
thorization cards. It follows, a fortiori, that the Union
enjoyed majority support on September 4, 1980, even if
Respondent be correct in its position as to inclusion or
exclusion of the seven employees. Accordingly, I find it
unnecessary to determine the status of Margaret Hatcher,
Linda Day, and Sandra McCullough because Day and
McCullough are definitely not supervisory employees
and Hatcher, whose supervisory status is disputed, is not
alleged to have committed any unfair labor practices.
Rickman and Zimmerman have been alleged as perpe-
trators of unfair labor practices, and Thompson and
Taglio, who Respondent contends are supervisors, have
been presented by the General Counsel as employees
who were subjected to unfair labor practices.
As meat manager, Michael Taglio was the sole denizen
of the Troutville store's meat department. There was no
other meatcutter in the store, and no one worked with or
for Taglio. All he supervised was the meat itself, and the
record contains no evidence that he possessed or exer-
cised any of the supervisory authorities enumerated in
Section 2(11) of the Act. I therefore find he was not a
supervisor. In so finding, I note that Respondent contem-
plated the possibility of nonsupervisory department man-
agers when it agreed to a bargaining unit excluding "de-
partment managers exercising supervisory duties."
Wayne Thompson , like Taglio , was meat manager at
the Grandin store where he and meatcutter Robert
Creekmore constituted the meat department. Both were
hourly paid, with Thompson grossing about $276 per
week and Creekmore grossing about $240. The depart-
ment work schedule was prepared by the store manager.
Thompson was responsible for ordering the meat from a
suppliers catalog which contains suggested retail prices.
The items to be ordered are determined by a visual
check of the stock on hand which reveal the areas that
need replenishment and by special sales set for all the
stores and communicated to the various meat managers
by Lucien Metayer, who sets the prices and prepares the
sales advertisements for the newspaper . On occasion
Thompson, after discussion with Creekmore, would
decide to try a new item which Thompson would then
order. Both men would cut, wrap , and display the meat
when it came in.
Both Thompson and Creekmore are accomplished
meatcutters , and Thompson 's direction of Creekmore
was quite routine, consisting of answering Creekmore's
questions if a problem with the work arose , or directing
him to make certain cuts of meat. It is not clear if Creek-
more always followed the same procedure when he
wanted permission to be off work, but I find the usual
way was for him to ask Thompson if he could be off,
and then, receiving an affirmative answer , seek the per-
mission of the store manager. When Creekmore was
evaluated in 1980, Store Manager Robertson went over
the evaluation form with Thompson, consulted him with
respect to Creekmore's performance on various factors,
and then checked the form in accordance with Thomp-
son's evaluation . Robertson relied on Thompson primari-
ly for an opinion on Creekmore 's technical performance.
Thompson had no authority to hire, fire, discipline, or
make effective recommendations in that regard.
Thompson attended three management meetings in
1980. The first involved a discussion about union activi-
ty. Present were the store managers , meat managers, and
members of Respondent 's management . The other meet-
ings were attended by the meat managers and manage-
ment representatives and were devoted to discussion of
meat department operations.
The evidence before me does not establish that
Thompson had any significant supervisory authority. His
duties were routine, as were Creekmore 's, and required
the use of little independent judgment . The evidence
does not preponderate in favor of a finding that he was a
statutory supervisor, and I find he was not.9
Whether Lawrence Rickman, the sole employee in the
dairy department at the Hollins store, is a statutory su-
pervisor need not be decided because I find, for reasons
set forth hereinafter , that his conduct alleged as unlawful
must be imputed to Respondent.
Alexander Zimmerman works at the Grandin store.
Whether he be denominated "stock manager" or "head
stock clerk," he is not a statutory supervisor. The Gener-
al Counsel relies heavily on the fact that Zimmerman is
responsible for stocking shelves; tells stock clerks which
11 Holiday Inns of America, 176 NLRB 939, 941 (1969). 9 Compare Big Star No. 185, 258 NLRB 300 (1981).
THRIFTWAY SUPERMARKET
aisle to stock; and instructs them to bag groceries. Re-
spondent has written instructions that the immediate su-
pervisors of the clerks with respect to when they are
needed to bag groceries are the cashiers, who are unit
members. There is a set procedure whereby stock clerks
take their turn at bagging, and that Zimmerman may
send them to the front as needed does not strike me as a
discretionary act of the sort contemplated by the Act,
nor does the direction as to which aisle to stock. It is
true that he approves checks, but so do many other
people including the cashiers and unit employee Orville
Prime. There is some evidence that Zimmerman regular-
ly entered an office reserved for managers and was in
charge of the store in the absence of the store manager.
There is, however, no showing the store manager is reg-
ularly or even frequently absent, and Zimmerman's visits
to the office do not transform him into a supervisor
absent some other persuasive indicia of supervisory au-
thority. The General Counsel neither proffered nor ad-
duced any reasonable quantum of evidence that Zimmer-
man is a statutory supervisor, and, like the assistant man-
ager in Big T Food .Store,1 ° Zimmerman's status is best
defined as that of a "glorified stocker" with nothing
more than limited, and routine authority over any em-
ployee.
O. Conduct of William Welch, Store Manager
1. On September 10, Welch asked Kathy Ayers if she
had signed a union card and, after she said she had, why.
2. On September 16, Welch asked Charles Benson if he
had attended any union meetings, knew of anything
going on in the store about the Union, and if he signed a
union card. Welch asked Benson the same questions a
week later, and again in late September or early October.
Benson gave noncommittal answers each time.
3. In the last week of September, Welch told Benson
that if the Union got in Respondent would have to cut
hours and the store might close.
4. On October 10, Welch asked Benson if he had
signed a union card. Benson replied that he had and was
a member of the organizing committee. Welch said he
was disappointed with Benson. Employee Kathleen
Brinkley overheard this conversation and corroborates
Benson's testimony.
5. On October 6, Welch asked Patricia Guthrie how
she felt about the union campaign. She said she was not
sure. Welch then told her that if the Union got in it
would find ways to get rid of those employees who had
not signed authorization cards.
6. Kathy Ayers asserts that Welch had a meeting with
her and two or three other employees on October 6
wherein Welch said that if the Union got in they would
all go back to the minimum wage and lose their benefits,
and that Respondent would negotiate from scratch.
Welch generally denies threatening a cut to minimum
wage or saying Respondent would bargain from scratch
when he spoke to employees. I credit Ayers.
7. On November 4, Welch stopped Oscar Phifer as he
came into work and asked how he felt about the Union
and why he thought one was needed. Phifer replied that
10 Big T Food Store, 200 NLRB 409, 411-412 (1972).
1457
he did not think any Company needed a union if the ben-
efits and salary were good. About 15 minutes later,
Welch approached him again and asked the same ques-
tions. He did not respond. About November 7, Welch
called Phifer into his office and asked how he felt about
the Union and if he had decided how he would vote.
Phifer said he was for the Union and it would win the
election. Welch retorted that it would never win an elec-
tion because Respondent would never negotiate a con-
tract, and the Painters would close the doors and every-
one would be out looking for a job.
8. Wayne Firebaugh, a current employee thus not
likely to fabricate testimony contrary to the interests of
his employer who controlled his work future, credibly
testified that Welch said at a meeting with five or six em-
ployees on November 5 that if the Union got in pay
would be cut back to the minimum wage and Respond-
ent would not agree to a thing.
9. On November 17, Welch told Kathy Ayers that
Gene Burdett had said he was going to the union meet-
ing on November 16,1 1 and asked her if she had been at
the meeting. She admitted she had. Welch then asked
who else was there. She declined to say.
10. On November 19, Ayers complained to Welch
about the content of the antiunion literature, and asked
about a raise. He told her he would think about it. I do
not credit Welch that he was shocked at this request, but
I do credit his testimony, which had the ring of truth,
that Ayers volunteered Curtis Clements would vote
against the Union and she would do the same. I am per-
suaded Ayers was attempting to ingratiate herself with
Respondent in order to procure the raise, and I do not
credit her claim that Welch asked her how she would
vote.
Conclusions in Regard to Welch
The questions asked Ayers, Benson, Guthrie, and
Phifer on various dates in September, October, and No-
vember with respect to their union activities and sympa-
thies constituted coercive interrogation in violation of
Section 8(a)(1) of the Act. The inherent coerciveness of
such inquiries emanating from the store manager in the
midst of an organizing campaign and just prior to a rep-
resentation election was exacerbated by Welch's state-
ment of disappointment with Benson; Welch's threat to
Ayers, Firebaugh, and others that employees would lose
their benefits and suffer wage reductions if the Union got
in; Welch's threat to Phifer that Respondent would close
the doorsi2 and everyone would lose their jobs; Welch's
statements to Ayers and other employees that Respond-
ent would negotiate from scratch, accompanying a threat
of loss of wages and benefits;12 Welch's statement to
Phifer, along with a threat to close the doors, that Re-
spondent would never negotiate a contract; and Welch's
statement to Firebaugh, together with a threat to cut
11 Burdett had so advised Welch.
12 NLRB v Gissel Packing Co, 395 U S. 575, 618-620 (1964)
'' See Host International, 195 NLRB 348 (1972), for its discussion of
"bargaining from scratch" statements The statement before me is accom-
panied by other unlawful threats, and is surrounded by other unfair labor
practices.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, that Respondent would not agree to a thing.14
All of these statements of Welch were clearly calculated
to dissuade employees from supporting the Union, reson-
ably tended to restrain and coerce employees in the exer-
cise of their statutory rights, and individually and collec-
tively violated Section 8(a)(1) of the Act.
I do not agree with the General Counsel that Welch's
comments to Ayers on November 17 created an impres-
sion of surveillance. A truthful statement that another
employee had reported he was going to a union meeting
is no ground, without more, upon which to base a con-
clusion that Respondent attempted to or did create an
impression of surveillance of employees' union activities.
E. Polling
Lawrence Rickman distributed three documents to em-
ployees. They were prepared by a nonemployed friend
of Rickman's. The first document apparently issued
before November 2 and reads as follows:
We've Had Enough!
We're tired of hearing the union put our compa-
ny down. We're tired of hearing those few people
who want a union put our friends and our stores
down.
We're proud of our stores. We're glad that we
can work at a place where everyone gets along and
works together. Well, we did before "they" came
along. (Nobody was ever threatened at our store
before.) One of the things we're always hearing our
customers say is that they like to shop at our store
because everyone is always friendly and the atmos-
phere is warm. It's not like that at other stores, they
say. It must be bad to have to work at a place like
that.
We're proud of what we've accomplished as co-
workers. We don't need any outsiders coming in
trying to tell us how to take care of ourselves.
AND we sure don't want to PAY them, too!
From the "Real" Thriftway Employees
Rickman passed the second document out after No-
vember 2, and it reads:
GOOD NEWS!
Our numbers have grown ! Since we put out our
first message, we 've been pleased to find that there
are many, many more people who feel the same
way we do than we ever imagined . We've always
known that it was our working and pulling together
that made us so much better than the other stores
around , but we didn't know we'd see such a show
of strength and togetherness to keep them out.
There's strength in our numbers, just like there's
a lack of strength in theirs . You know , there were
only 11 people at the union meeting Nov. 2, and 2
of them have quit since then . They only have 9
14 Statements conveying that support of a union is futile have long
been held violative of the Act. See, e .g., M B D. Co., 193 NLRB 494,
501 (1971); and Ftrmat Mfg. Corp., 255 NLRB 1213 (1981).
people who still work in our stores . There's certain-
ly no strength in those numbers . Hey you 9, there's
still time to join us.
Be a Winner . VOTE NO!
These two documents were distributed by Rickman to
employees in envelopes. The third document is, accord-
ing to Rickman, in the nature of a petition, and shortly
before the election he carried it around to employees and
solicited their signatures thereto. It reads as follows:
Morning . .. .
Thank goodness it's almost over. We know ev-
eryone is anxious to get the election behind us. We
are pleased that so many plan to keep their futures
in their own hands. The main thing is just don't get
excited, just vote [NO] for yourself and your
friends.
We know things are not perfect, and as always,
there is room for improvement. However, we be-
lieve the best way to bring about these improve-
ments is for us to work together with management,
not to drive the wedge of a union between us.
Are we "real"?
You'd better believe it!
Rickman who works at the Hollins store, secured a
number of signatures to this third document when he
took it around to the other stores. He walked into the
Troutville store, where he knew everyone, and passed
his "petition" around without seeking prior permission.
At the Grandin store, he approached Store Manager
Robertson, told Robertson he had a petition, showed it
to him, and asked permission to go to the back room and
show it to employees. Robertson gave him permission to
so do.
Oscar Phifer testified that he saw Rickman's third doc-
ument with signatures already on it about 2 weeks before
the November 20 election, when Welch handed it to him
and said that if he (Welch) could get two more people to
sign it he knew Respondent could win the election.
Kathy Ayres was confused on the date Rickman gave
her the petition, but credibly testified that before she saw
it Welch told her the store was going to pass around a
petition for employees who were against the Union to
sign. She testified this occurred on November, August,
or October 11 and was followed by solicitation to sign
by Rickman on October 18. Considering the second doc-
ument refers to a November 2 union meeting, I am per-
suaded the correct dates were November 11 and 18. No-
vember 18 accords with Rickman's statement that the pe-
tition was being passed a few days before the November
20 election, and Charles Caldwell's testimony Rickman
solicited him on November 18. Andrew Hatcher's testi-
mony that he was solicited by Rickman to sign at the
Grandin store on November 14 establishes the date Rob-
ertson gave Rickman permission to so do.
On the basis of the direct and circumstantial evidence,
as well as logical probability, I am persuaded that
Welch, and therefore Respondent, knew of Rickman's
forthcoming petition when he talked to Ayers on No-
THRIFTWAY SUPERMARKET
vember 11. Whether or not Respondent had a hand in
the preparation or directly encouraged Rickman in his
endeavors, it is clear from Welch's statement to Ayers
that Respondent had adopted the "petition" as it's own,
and Welch's possession of the signed petition, which I
find he secured from Rickman, and his solicitation of
Phifer solidifies this conclusion. I am, however, con-
vinced that Phifer's estimation of the date of Welch's ap-
proach to him is in error, and that Welch talked to
Phifer about the petition after November 11. That there
were employee signatures on the document when Welch
showed it to Phifer, persuades me that the solicitation of
Phifer took place around November 14 when Robertson
gave Rickman permission to contact employees at the
Grandin store and Hatcher was solicited there by Rick-
man.
The documents on their face do not contain any un-
lawful statements, but the use of the petition by Rick-
man, with active participation by Respondent, to secure
the names of those employees who might vote against
the Union constitute polling of employees with respect
to their union sympathies. Whether or not Rickman is a
statutory supervisor, Respondent embraced his endeavors
as its own, thereby making him its agent, and itself,
through Welch, participated in the polling. Accordingly,
I conclude that Respondent, by polling and therefore in-
terrogating its employees in such a manner as to reveal
their individual sentiments with respect to the Union,
without lawful reason therefor and without providing
employees the assurance required by law, violated Sec-
tion 8(a)(1) of the Act.15
F. Conduct of Lucien Metayer, Meat Department
Supervisor
1. On September 5, Metayer asked Charles Caldwell if
the Union's representative had been to his house. Cald-
well said he had not.
2. On November 3, Metayer asked Caldwell if he had
been to a union meeting the previous evening. Caldwell
said he had not.
3. On November 5 or 6, Metayer asked Oscar Phifer if
he had decided how he would vote. Phifer said he had
not, and asked if Metayer knew what had happened to
Charles Benson. Benson had been terminated on Novem-
ber 4. Metayer said that B. Painter' 6 was not about to
let the Union come in, was tired of Benson's union ac-
tivities, and had to let him go.
4. On the morning of November 20, before the elec-
tion commenced, Metayer asked Caldwell how Phifer
would vote. Caldwell said he did not know. Later that
day, Caldwell was called to the store office where he
met with Metayer and Welch. Welch complimented him
on his work, and Metayer told him the union thing was
academic and he hoped Caldwell would vote according-
ly. Metayer avers he does not know why Caldwell was
called in and told he was doing a good job. I do not
credit Metayer. The obvious purpose was to create a
kindly feeling in Caldwell and persuade him to vote
against the Union.
15 Struksnes Construction Co, 165 NLRB 1062 (1967)
is 1 conclude he was referring to Bland Painter III.
1459
Still later that day after voting had started" but
before Caldwell voted, Metayer told Caldwell that if the
Union won the employees would lose their Blue Cross
and Blue Shield insurance.
Conclusions in Regard to Metayer
Metayer, like Welch, violated Section 8(a)(1) of the
Act by coercively interrogating Caldwell about his con-
tacts with the Union and how Phifer would vote, and by
coercively interrogating Phifer about how he would
vote. Metayer also violated Section 8(a)(1) by telling
Phifer that Painter III had let Benson go because of his
union activities."' The statement to Caldwell, shortly
before he voted, that if the Union won insurance would
be lost was a threat of loss of benefits designed to coerce
Caldwell into voting against the Union. Such a threat on
the threshhold of the ballot box obviously had a strong
tendency to restrain Caldwell in the free exercise of his
franchise in such a way that his ballot reflected his true
desires vis-a-vis the Union, and therefore violated Sec-
tion 8(a)(1) of the Act.
G. Conduct of David Shell, Assistant Manager' 9
Iii the last week of September, Shell told Charles
Benson that if the Union got in Respondent would most
likely have to cut hours and wages because it could not
afford unionization. Such a comment from a member of
management had a reasonable tendency to dampen Ben-
son's ardor for the Union. "Most likely" is ominous to
the apprehensive ear and Shell's statement may reason-
ably be viewed a threat of reduction in hours and wages
if the Union came in. Shell's addition that the reason was
inability to afford the Union was self-serving, specula-
tive, and not shown to be based on the slightest modi-
cum of fact. I find the threat violated Section 8(a)(1) of
the Act. 2 0
H. Conduct of Alexander Zimmerman21
Zimmerman told Andrew Hatcher in September that
the Company was too small to afford a union and a
union would likely mean higher wages which Respond-
ent could not afford, and therefore Respondent would
probably close and "we" would all be out of a job. I find
no violation because Zimmerman is not a supervisor, and
has not been shown to be an express or apparent agent
for whose conduct Respondent is responsible.
1. Painter interviewed job applicant Dennis West on
September 19, told him there was a union campaign, and
asked him if he had an opinion about the Union. West
said he had none. Painter persisted by asking what his
opinion would be if he had one. West again said he had
none. Painter then inquired into whether West's father
worked in a union plant and how he had voted in the
election there. West expressed a thought that his father
17 Voting at the Hollins store where Caldwell worked started at noon
and extended to 12:45 p m.
1 /Elk Brand Mfg. Co., 253 NLRB 1038 (1981)
19 Shell did not testify.
20 NLRB v. Carlton's Market, 642 F. 2d 350 (9th Car 1981)
21 Zimmerman did not testify.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voted against a union . Not satisfied, Painter asked how
West would vote in a union election . West finally capitu-
lated and opined he would probably vote against a
union. West was hired. k more coercive grilling of a
prospective employee with respect to his union inclina-
tions is difficult to imagine . Such questions as Painter
posed, in the context of a job interview, are inherently
coercive and violated Section 8(a)(1) of the Act.22
2. Andrew Hatcher credibly testified23 that Painter
addressed a group of four employees at the Grandin
store on October 27 and said that if the Union got in Re-
spondent would not have to agree to any bargains the
Union had. The obligation to bargain does not require
either party to agree to a proposal or require the making
of a concession .24 Accordingly, I find Painter 's state-
ment was consistent with the provisions of the Act and
was not unlawful.
3. Kathy Ayers testified that Painter told her on No-
vember 19 that the Union was not going to get into the
store and if it did Respondent would not negotiate.
Painter generally denies ever saying this to employees,
and says he recalls talking to Ayers at the Hollins store
in the presence of Welch. He does not specifically recall
what he said to Ayers, but claims it would have been
like any other statements he made to employees when he
told them of the Company's strong opposition to the
Union because history in the industry showed that com-
panies of Respondent's size could not pay the cost of the
Union's demands and tended to falter or fail if organized
by a union. There is no need to discuss the impact of his
purported claim expressed to employees that objective
history demonstrated his claimed adverse impact on
companies like Respondent of unionization because I
credit Ayers' version, noting that Welch, who testified at
length on other matters, did not corroborate Painter and
Painter had a failure of memory as to what he said to
Ayers on the occasion he remembers . In short, his testi-
mony does not squarely meet that of Ayers; available
corroboration, if it in fact existed, was not brought forth;
her testimony was more believable and demeanor was
more impressive than his; and the statement she relates is
consistent with other statements of Respondent' s supervi-
sory corps. Painter's statement served to notify Ayers se-
lection of the Union was futile, and therefore violated
Section 8(a)(1) of the Act.
4. Michael Taglio testified that Painter met With him
in October, told him Painter was disturbed that he had
heard Taglio was siding with the Union, and asked what
his intentions were. Taglio says that he told Painter he
was neutral and was going to union meetings as well as
considering the Company's statements on the matter. Ac-
cording to Taglio, this caused Painter to get upset and
say that he considered the Union a cancer, and that it
and everyone siding with it were going to be eliminated
at all cost.
Painter's version is that he was concerned that Taglio
did not have a clear understanding of the union situation,
and therefore asked Taglio to support the Company's po-
22 Quality Drywall Co., 254 NLRB 617 (1981)
22 Hatcher was still Respondent's employee at the time of hearing.
24 See Sec . 8(d) of the Act
sition. Painter testified that he told Taglio it was impor-
tant for Taglio to understand Respondent's position and
support it. Painter recalls that he said, "Mike, review this
union thing much as, much the same as you would if you
were to be notified that you had a cancer by your
doctor. It is an illness and we want to deal with it that
way." Painter denies saying the Union had to be elimi-
nated at all cost, or that everyone associated with it had
to be eliminated.
Considering Painter's agreement with Taglio on much
of the conversation; Painter's extreme opposition to the
Union, best illustrated by his reference to it as a cancer,
the numerous other acts of unlawful threats and interro-
gations by Respondent which show a pervasive pattern
of such acts; and the simple fact that Taglio's version
seemed candid and uncontrived; I find Taglio's version
of this event is the most probable and that Painter did
coercively interrogate him and threaten to get rid of all
union adherents. The interrogation and threats violated
Section 8(a)(1) of the Act.
The complaint further alleges that Respondent, on De-
cember 19, imposed more restrictive working conditions
on employees because of their union activities and sym-
pathies. The evidence and the General Counsel's argu-
ment make it clear that this refers to the treatment of
Taglio.
Taglio takes part in running races. From this avocation
arose a series of events about which Taglio and Painter
differ. It appears to me that Tagiio was not being entire-
ly accurate and was consciously trying to present his
case in its best light in his account of what transpired,
whereas in this instance Painter seemed to be more cer-
tain and believable when recounting what occurred with
respect to Taglio's running habits. Moreover, Margaret
Hatcher, who Taglio claims gave him permission to
leave each time he left on Saturday to race, was an im-
pressive witness whose demeanor bespoke open honesty.
She denied Taglio asked her for permission, and I be-
lieve her.
I credit Painter's version as the more believable where
it conflicts with Taglio's testimony with regard to Tag-
lio's absences.
Painter was Taglio's direct supervisor. In the summer
of 1980, Taglio requested Painter's permission to be off
one Saturday morning in September to run in a race.
Painter gave permission conditioned on Taglio preparing
the meat case before he left so that it would be suffi-
ciently stocked until his return. No other races were
mentioned during this meeting, and Taglio's claim that
he received permission to be absent for a series of races,
provided he checked with Margaret Hatcher and had the
meat case prepared before he left each time, is expressly
discredited.
After this September race, Taglio ran in several other
races on Saturday mornings. Painter came to the Trout-
ville store one Saturday morning in October or Novem-
ber and noted the meat case was not stocked, there was
no ground beef, and the meat that was in the case did
not look good. Taglio was absent. Painter returned about
1:30 or 2 p.m. Tagiio was then present. Painter expressed
his displeasure with the state of the meat department and
THRIFTWAY SUPERMARKET
told Taglio he was not aware Taglio was not going to be
there that morning. Taglio said he had been in a road
race that morning. Painter then again expressed his dis-
pleasure and told Taglio he was expected to be at work
on Saturday mornings in the future.
In December, Painter became aware from Taglio's
timecards that commencing in August Taglio had
worked four or five short Saturdays25 and then worked
extra the following week to make it up. Painter discov-
ered this on a Monday and later that day went to the
store and found Taglio still working at 7 p.m. Taglio ex-
plained he was working late to make up the hours he
had missed the prior pay period. After some discussion
about this late working with which Painter was dis-
pleased, Painter told Taglio he was expected to work his
schedule.26 Painter shortly thereafter, on December 19,
issued the following memo to Taglio:
We have brought to your attention in the past
the need for you to work as scheduled. Failure to
report to work as scheduled is a violation of compa-
ny policy. The seriousness of the problem is in-
creased since we have previously discussed the
same set of circumstances.
We hope that you understand the nature and con-
sequences of your actions. This is an official warn-
ing which will be placed in your personnel file.
Any further violation of company policy by you
may result in discipline up to and including dis-
charge.
When Painter handed the memo to Taglio on Decem-
ber 19, he asked Taglio to sign the acknowledgment that
Taglio had read it. Taglio refused to do so. Painter ex-
pressed disbelief that Taglio was refusing to do some-
thing Painter was telling him to do. Painter then added
that because of the lack of integrity Taglio had shown
him and his company some things were going to change
and the conduct of employees was going to be docu-
mented and placed in their records. All this latter com-
ment means is that Painter was fed up because Taglio
was manipulating his hours without permission and
erupted with a threat to document employee misconduct.
In substance, "no more Mr. Nice Guy," in response to
Taglio's taking it on himself to tinker with his schedule
and then refusing to acknowledge the warning, memo
therefor.
What most probably happened is that Taglio took the
permission to run one race and, without further checking
with Painter or anyone else, construed it as blanket per-
mission for all races. Painter did not so construe it.
Taglio was the only meatcutter in the store, and it is not
surpising that Painter would be dismayed and angry at
unexpectedly finding him gone on a busy Saturday and
the meat case in woeful condition. The action of Taglio
in working overtime on a Monday to make up for lost
Saturday work did not help in keeping the meat case up
on Saturday and only meant Taglio was making up for
25 This comports with Tagho's testimony that he ran five races in
1980
26 Taglio concedes that Painter did tell him not to work overtime I
conclude this was the same conversation.
1461
his loss of income by working more hours than usual the
week after the missed Saturday. The discovery of this
practice warranted a warning, and I find no persuasive
evidence that the December 19 memo was related to
Taglio's union activity, the interrogation and threats in
October, or anything other than the fact Taglio was at-
tempting to adjust his schedule to accommodate his Sat-
urday races without management permission for any but
the one in September. Painter's reaction was not unrea-
sonable in the circumstances. I do not, as the General
Counsel does, find it unlikely that Taglio would run ad-
ditional races after September without asking permission.
To the contrary, I am persuaded that he did just that,
hoping to mask it with extra work later on. Nor do I
find it unlikely that Painter would not tell Taglio to
inform someone that he would not be there on a Satur-
day morning. The only Saturday he had permission to be
gone was well known to Painter, who gave both the per-
mission and the instructions on the condition the meat
department must be left in in Taglio's absence. The Gen-
eral Counsel has not shown by a preponderance of the
credible evidence that Painter's actions of December 19
constituted an unfair labor practice as the complaint al-
leges.
J. Conduct of Jesse (Shane) Robertson Jr., Store
Manager
All of Robertson's conduct alleged occurred during
conversations with Andrew Hatcher. I credit Hatcher's
version of all these conversations. He testified in a
straightforward, convincing manner. Robertson, on the
other hand, asserts a faulty recollection of what he said
to Hatcher and other employees; confines his testimony
to bare denials of Hatcher's testimony proffered to him
by Respondent's counsel; and gives inconsistent testimo-
ny.27
On September 8, Robertson asked Hatcher if he had
signed a union card, and received an affirmative answer.
Robertson had no valid reason for such inquiry, and such
interrogation, coercive by the very fact it emanated from
the store manager, violated Section 8(a)(1) of the Act.
On November 10, Robertson asked if Hatcher had
heard of union fines and assessments. Hatcher said he
had. Robertson then asked if the Union had told him Re-
spondent's employees could lose their benefits if the
Union came in. I consider the last question an implied
threat of loss of benefits if employees selected the Union
to represent them. This threat violated Section 8(a)(1) of
the Act.
On November 12, Robertson twice violated Section
8(a)(1) by asking Hatcher if he remembered the date he
2 7 As an example of his inconsistency , Robertson denies asking anyone
about union meetings or attendance threat; then recalls a conversation
with Hatcher where he told Hatcher a union meeting had "bombed out"
with only 15 or 16 present, then denies telling Hatcher anything about a
union meeting , then recalls discussing a union meeting with Hatcher; then
denies the conversation about a "bombed out" meeting , or any conversa-
tion like that. On cross-examination, he says he probably started the con-
versation about a union meeting with Hatcher, but denies saying anything
about how many were at the meeting , and finally says he has no good
recollection of exactly what was said during his talks with Hatcher.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed a union card, and promising Hatcher a dinner if
Hatcher found out the date he signed the card. -
On November 17, Robertson told Hatcher he had
heard that the union meeting the night before had
"bombed out" because only 15 or 16 people attended.
Hatcher said there were more than that. Robertson asked
how he knew. Hatcher replied he was there, and Robert-
son asked why he went. The interrogation of Hatcher
with regard to his union activities clearly violated Sec-
tion 8(a)(1) of the Act, and the Board has held, adopting
an administrative law judge's decision, that asking an em-
ployee about the level of attendance at a union meeting
is a "clear signal to an employee that Respondent had
their union activities under surveillance."28 This finding
is squarely applicable to the facts before me and I find
that Robertson did, on November 17, create such an im-
pression and thereby violated Section 8(a)(1) of the Act.
K. The Separation of Charles Benson
Benson signed a union authorization card and was a
member of the Union's organizing committee. Respond-
ent was aware of this by mid-October at the latest when
Benson so advised Store Manager Welch. On September
16, Welch prepared a written evaluation of Benson's
work performance, with an overall conclusion that
Benson was "Definitely above average." There were no
entries on the evaluation under the heading "Major weak
points."29 I do not credit Welch that he filled out the
form because Benson's production and motivation were
bad and he was trying to help Benson. Welch's own rat-
ings in the body of the form are inconsistent with this
contention. Welch was in the habit of urging employees
to speed up, but this was not limited to Benson nor is
there any convincing showing that Benson was worse
than others in this request. The September evaluation
militates to the contrary, and I place no stock in Welch's
claim that he keeps in mind an unwritten standard that
an employee should stock a minimum 35 cases per hour
which he applied to Benson.
On November 4, Welch called Benson into the back
room and told him his productivity had not improved in
over a year,30 and he had received reports Benson was
doing poorly during Welch's absence of several days
preceding November 3.31 Benson accused Welch of
pushing him around because of his union views. Welch
denied this, but said he would have Benson thrown off
the parking lot if he did not stop talking to people there.
Benson had solicited employees to sign union cards on
28 Rexair, Inc, 243 NLRB 876, 882 (1979).
28 The copy of the evaluation in evidence is only reliable to the extent
it rates Benson as a satisfactory or better employee This is so because it
bears the date of October 6, which is shown by Benson's credible testi-
mony and Respondent's position letter of November 26 to be incorrect,
and because I credit Benson, a more convincing witness than Welch, that
indications that his weak points which were production , speed, and per-
formance were not on the form when Welch reviewed it with him on
September 16 These entries are also inconsistent with other uncontested
ratings on the form to the effect he strives hard, has a high desire to
achieve, is very industrious, and does more than is required, as well as
the concluding evaluation that his work was definitely above average
30 This was of course inconsistent with his evaluation of Benson less
than 2 months prior to this conversation.
31 Lawrence Rickman had informed Welch that Benson "fooled
around a lot just like any employee " [Emphasis added.]
his own time in the parking lot, and I conclude this was
what Welch had reference to in view of his statement of
similar import made to Benson later that day and set
forth below. Welch continued that he was putting
Benson on 90-day probation. Benson protested he did not
like being put on probation because he had been on pro-
bation when first employed. Benson did not refuse to go
on probation. Welch retorted that was the way it would
have to be if Benson stayed there. They then argued
about Benson's productivity, with Welch claiming it was
bad and Benson asserting it was not. After a few repeti-
tions of this difference of opinion, Welch told Benson he
was fired and to hit the clock and get the hell out.32
Benson did so.
Benson returned later in the day with Union Agent
Grimes. The two of them walked through the store.
Benson gave no convincing reason for this stroll, but it is
not a relevant consideration.
Benson returned again that evening after he heard a
rumor that Welch had said he had quit. He accused
Welch of saying he had quit. Welch denied it. They
went to the back room with Shell and Rickman present
at Welch's request. 33 Benson and Welch again argued
about the quality of Benson's productivity, with Rickman
interjecting that he had told Welch of Benson's poor
work. The conversation turned in a different direction.
The sequence of statements is not entirely clear, but
Welch told Benson he would be kicked off the lot if he
did not stay off and stop talking to people about the
Union. This fairly translates to stop talking to employees
about the Union on the lot, and stay off the lot or be
kicked off. Benson accused Welch of picking on him and
pushing him against the wa1134 because of his union sym-
pathies. Welch concluded the conversation by telling
Benson he was fired and to get out of the store and
never come back.
Respondent knew of Benson's union activities, and
Welch's comments about Benson's soliciting in the park-
ing lot reveal Respondent knew and was opposed to
those activities. Moreover, Respondent's general hostility
to union activity is readily discernible from its various
unlawful acts and statements directed at other employ-
ees.
Respondent's contentions are, in sum, that Welch had
previously warned Benson regarding his productivity,
and placed him on probation because of his continued
low productivity and offered to help him improve by ex-
ample on November 4. It is further contended that
Benson in fact quit by clocking out rather than accept
Welch's proffer of instruction, and that Benson's subse-
quent insubordination on the evening of November 4,
consisting of accusing Welch of assault by saying Welch
32 This is not inconsistent with Benson's November 28, 1980 statement
to the Virginia Employment Commission that he was told that if he was
doing the best he could he was fired and to go hit the clock and get out.
33 Welch's versions of his conversations with Benson on November 4
are not credited. Shell did not testify, and Rickman was not asked to cor-
roborate Welch's version of the final meeting with Benson More impor-
tantly, Benson's testimony was believable in both delivery and substance.
34 Benson credibly explained that he was not accusing Welch of phys-
ically pushing him against the wall, and I do not credit Welch that
Benson was so claiming, or that he believed Benson was
THRIFTWAY SUPERMARKET
had slapped him up against the wall, was sufficient cause
for discharge if it be held Benson did not quit. Respond-
ent further asserts that even if Benson was discharged in
the morning his discharge was justified by "Benson's ad-
mitted history of warnings," and, finally, that Benson
would have been discharged even in the absence of any
protected activity.
Respondent relies in major part on Welch's version of
November 4 events. Welch's version has not been cred-
ited.
Benson did not quit. He was flat out discharged in the
morning, and the discharge was confirmed by Welch in
the evening. The admitted history of past warnings re-
ferred to by Respondent consists of the statement
"Talked to about production" entered by Benson on his
written statement to the Virginia Employment Commis-
sion following a "Yes" answer to the question, "Had you
been warned before about your conduct." On examina-
tion before me, Benson credibly explained that Welch
had told him three or four times that he could speed up.
To turn this into a history of warnings warranting dis-
charge is, in my view, tortured reasoning in the face of
persuasive evidence that Welch habitually said this to
employees. Moreover, Welch's evaluation of Benson in
September shows he considered Benson one of his better
employees at that time, and the evidence does not war-
rant a finding that Benson's performance later fell below
that of others not discharged. The testimony of Respond-
ent's witness Rickman that Benson fooled around just
like any other employee during Welch's absence prior to
November and that he so reported to Welch, does not
establish a basis for singling Benson out for poor produc-
tion. Similarly, there is no basis for a finding Benson was
insubordinate on the evening of November 4. He did not
accuse Welch of assault, nor could Welch have reason-
ably construed Benson's words as such an accusation,
nor did Benson's comments amount to insubordination.
Furthermore, Benson was already severed from employ-
ment, whether that severance be a discharge or a quit,
and owed no duty of subordination to Welch at the
evening meeting.
Considering the extent and severity of Respondent's
other unfair labor practices; its knowledge of Benson's
leading role in union organizing; its conceded hostility to
anion activities as well as that demonstrated by its con-
duct; and the porosity of the explanation advanced by
Respondent for the separation of Benson, I am con-
vinced that the reasons given by Respondent are pretexts
and warrant an inference of unlawful motivation."
Reconstructing a series of events from testimony
thereon rarely results in a minutely accurate scenario,
but I believe the most likely explanation of the events of
November 4, 1980, is that Respondent determined to get
rid of Benson, and thus remove a union activist, by plac-
ing him on probation. Respondent knew full well, as
Welch concedes, that when other employees had been
placed on probation they invariably quit. Respondent's
underlying concern and the depth of its opposition to
Benson's union activities was revealed by Welch's threat
35 Shattuck Denn Mining Corp v. NLRB, 362 F 2d 466, 470 (9th Cir
1966).
1463
to throw Benson off the lot for soliciting for the Union.
Benson 's protest at being placed on probation and his in-
sistence that he was doing good work were answered by
immediate discharge. Benson did not refuse probation
and was not engaging in insubordinate conduct, but
Welch seized upon the disagreement as an opportunity to
immediately accomplish the separation of Benson which
he had first tried to do by coercing him into quitting via
the probationary route. That the discharge was rooted in
a dislike for Benson's union activity becomes even more
apparent when one considers that Welch later in the day
again, without prelude, interjected that Benson would be
kicked off the lot if he continued to talk to employees
about the Union.
For all the reasons set forth above, I find that Re-
spondent discharged Charles Benson in order to discour-
age union membership and activity, and thereby violated
Section 8 (a)(3) and (1) of the Act.
In addition to the evidence set out above, Oscar Phifer
was told by Supervisor Metayer, on the day after Ben-
son's discharge, that "B. Painter" Bland Painter III, had
to let Benson go because he was tired of Benson's union
activities. Metayer did not say Painter had so told him. I
have credited Phifer over Metayer's denial , but this does
not require a finding that Metayer's statement is an ad-
mission against interest .36 There is no proof that Me-
tayer was privy to the reasons for the discharge, or that
he was offering more than surmise. Accordingly, I do
not find that Metayer's statement , although accurate,
constitutes an admission by Respondent,37 I do find,
however, that it is not likely Metayer would make such a
damaging statement if he did not have some reason to
believe it were true, and his statement at the very least
reasonably reflects an understanding by Respondent's
agent that Respondent might well and probably did fire
Benson for his union activities. This, of course, does not
prove that this was in fact the case, but viewed in this
light that statement has some relevance and weight as re-
flecting Respondent's state of mind with respect to dis-
charge for union activities and should be given that
weight, however slight.
L. Discharge of Oscar Phifer
Phifer signed a union card on October 7, and thereaf-
ter became a very active member of the Union's organiz-
ing effort. On May 11, 1981, the Union filed a charge in
Case 5-CA-13310 alleging that Respondent had refused
to give Phifer an evaluation or raise because of his union
involvement. The charge was received by Respondent
on May 14, 1981. It was subsequently withdrawn.
Bland Painter III concedes he knew before Phifer was
discharged that he was a member of the Union's organiz-
ing committee , that the charge had been filed referring
to Phifer, and that Phifer had testified on behalf of
Benson at an unemployment compensation hearing.
Phifer was scheduled to have a day off on Wednesday,
May 13, 1981. On Tuesday evening, May 12, he called
36 Cf. American Art Clay Co., 148 NLRB 1209, 1218-19 fn. 16 (1964);
Drico Industrial Corp, 115 NLRB 931 (1956).
37 Wisconsin Motor Corp, 171 NLRB 1431, 1433 (1968).
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his supervisor Lucien Metayer and requested time off to
take his wife to North Carolina because his stepdaughter
was there undergoing surgery. Metayer gave him permis-
sion to be off and concedes no specific date was set upon
which Phifer was to return. Phifer did not discuss how
long he would be gone, but his wife then got on the
phone. She thanked Metayer for letting her husband
make the trip, and told Metayer she wanted it under-
stood that she did not know what she would find when
she got there but they would be gone for several days.
Metayer told her that was fine, but to let Phifer do the
driving because she was upset.
The Phifers both testify they returned to their home
around 2 a.m. on Monday, May 18. Their trip was ac-
complished in their 1975 blue and white Chevrolet. Me-
tayer testifies that he saw a Chevrolet, which was blue
with a lighter top, at Phifer's house on the afternoon of
Sunday, May 17. Betty Brammer, a meat wrapper, says
she saw Phifer's two-toned blue Chevrolet at his house
on Sunday afternoon. There is no evidence that anyone
actually saw Phifer or his wife in Roanoke on Sunday.
Brammer and Metayer may well have seen a car similar
to that of the Phifers on Sunday, but their testimony cre-
ates only a suspicion that what they observed was
Phifer's car. Chevrolets are not that uncommon and
Brammer concedes she has seen another car like Phifer's
at the address where he formerly lived. I do not think
this evidence outweighs the credible testimony of both
Phifers that they did not return until Monday morning,
and I find that Phifers' recital of the time of their return
is correct.
When they got home the Phifers went to bed. After
rising, Phifer called the store about 2 or 2:30 p.m. to as-
certain the schedule for the following day. He talked to
Brammer . She reported it as 7 a.m., and he said he
would be in at that time. Brammer then told Metayer of
Phifer's call. Metayer asked her if she had checked the
schedule. She did, and it showed Phifer scheduled at 9
a.m. on Tuesday. She then called Phifer back and told
him of the correct time. Metayer then got on the line
and told Phifer to be in at 9 a.m.
When Phifer came in on Tuesday, May 19, Metayer
told him he was fired for not coming in on Friday, Sat-
urday, and Monday as scheduled.38 I do not credit Me-
tayer that he expected Phifer on Friday because he
thought it perfectly clear from their May 12 conversa-
tion that all Phifer wanted off was the day following his
scheduled day off. He was clearly apprised by Mrs.
Phifer of the possibility they would be gone several days,
and he told her that would be fine.
The decision to discharge Phifer was made by Bland
Painter III, who so instructed Metayer. Painter never
questioned Phifer about the reasons for his absence, nor
did Metayer. This is not surprising because they were
aware that his reason was his stepdaughter's surgery.
Metayer did not recommend the discharge of Phifer and
impressed me as exceedingly uncomfortable when called
upon to give the reasons for the discharge.
38 I do not credit Phifer's recollection that Metayer also mentioned
Thursday.
Painter testified that he decided to discharge Phifer on
Tuesday morning, May 19, because he had sufficient evi-
dence that Phifer was home on Sunday but failed to
report on Monday; failed to explain his absence to Me-
tayer or Painter; and made no good-faith effort to excuse
himself. Painter first claimed that he was told that Bram-
mer had seen Phifer on Sunday. He later changed this to
a report she had seen his car. Insofar as the purported
failure to explain or attempt to by Phifer is concerned,
the short answer is that he was neither asked nor given
any opportunity to explain. Moreover, these reasons are
inconsistent with what Metayer told Phifer. Painter later
testified on cross-examination that Phifer was fired be-
cause he did not appear for work commencing Friday.
Painter agrees that Phifer had received permission
from Metayer to leave town, and was not instructed he
must return on Friday. He claims, however, that the
Friday return was assumed. I discern no reason to con-
clude Phifer would have or should have so assumed.
Painter also testified there are no specific rules relating
to how much time a person can miss without being ter-
minated, and that the matter was discretionary.
Respondent's asserted reasons for discharging Oscar
Phifer are not persuasive and, in my view, are inventions
designed to mask the true motive for the discharge. The
evidence clearly preponderates in favor of a conclusion
that Phifer's discharge was an unfair labor practice. Ex-
tensive union activity known to the Employer who
strenuously opposes such activity, combined with a
counterfeit defense; 3 s Metayer's grant of permission to
leave without return date certain in a situation where
Metayer knew of the reasons for the absence and that
the return date was uncertain; the absence of any effort
to seek an explanation from Phifer when he returned;
and the timing of the discharge at the first possible
moment after Respondent learned Phifer was named in a
union filed unfair labor practice charge as a discriminatee
all combine to convince me that Respondent discharged
Oscar Phifer because he engaged in union activities and
because his name was included on the Union's charge.
The discharge of Oscar Phifer therefore violated Section
8(a)(3), (1), and (4) of the Act.46
M. The Objections
Matters alleged in Objections 2, 3, 4, 6, 9, and 11 have
been found to be unfair labor practices. Objections 2, 3,
4, 6, 9, and 11 are therefore sustained ,41 and the election
held November 20, 1980, should be set aside. My find-
ings on these objections obviate any necessity for deter-
mining the validity of the remaining objections.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
as See Shattuck Denn, supra, for the proposition that an inference of
unlawful motivation may be drawn from the presentation of a spurious
defense
40 Firmat Mfg. Corp, 255 NLRB 1213 (1981).
41 Dal-Tex Optical Co, 137 NLRB 1782, 1786 (1962).
THRIFTWAY SUPERMARKET
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for collective bargaining:
All full time and regular part time cashiers, baggers,
meat, grocery, produce, and delicatessen clerks
working at the Employer's locations at 7511 Wil-
liamson Road, 319 Grandin Road, S.W., Roanoke,
Virginia, and Main Street, Troutville, Virginia, but
excluding all store managers , assistant store manag-
ers, co-managers, merchandisers, department man-
agers exercising supervisory duties, office clericals,
confidential , seasonal and casual employees , guards
and supervisors as defined in the Act.
4. At all times since September 4, 1980, and continuing
to date, the Union has been the exclusive representative
of all the employees within said appropriate unit for pur-
poses of collective bargaining.
5. By discharging Charles Benson for the purpose of
discouraging union membership and activities, Respond-
ent violated Section 8(a)(3) and (1) of the Act.
6. By discharging Oscar Phifer for the purpose of dis-
couraging union membership and activities, and because
his name appeared in charges filed under the Act, Re-
spondent violated Section 8(a)(3), (1), and (4) of the Act.
7. By coercively interrogating employees about their
union activities and sympathies, Respondent violated
Section 8(a)(1) of the Act.
8. By asking employees how they would vote in a rep-
resentation election , Respondent violated Section 8(a)(1)
of the Act.
9. By interrogating employees about their union activi-
ties and sympathies during job application interviews,
Respondent violated Section 8(a)(1) of the Act.
10. By polling employees about to their union views
and sympathies, Respondent interrogated its employees
to undermine the Union's support and thereby violated
Section 8(a)(1) of the Act.
11. By creating an impression of surveillance of union
meetings and the union activities of its employees, Re-
spondent violated Section 8(a)(1) of the Act.
12. By telling an employee that another employee had
been discharged because of his union activity, Respond-
ent violated Section 8(a)(1) of the Act.
13. By threatening employees with store closure, dis-
charge, reduction of wages and hours, loss of health in-
surance and other benefits, and a refusal to negotiate
with the Union if they selected it as their collective-bar-
gaining representative, Respondent has violated Section
8(a)(1) of the Act.
14. By promising to buy an employee a dinner if she
reported the date she signed a union authorization card,
Respondent violated Section 8(a)(1) of the Act.
15. The unfair labor practices set forth hereinabove are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
16. The Union's Objections 2, 3, 4, 6, 9, and 11 must
be sustained, and the election held on November 20,
1980, must be set aside.
THE REMEDY
1465
In addition to the customary cease-and-desist order
and notice posting, my recommended Order will require
Respondent to offer unconditional reinstatement to
Charles Benson and Oscar Phifer and make them whole
for all wages lost as a result of their unlawful discharge,
such backpay and interest thereon to be computed in the
manner presented in F. W. Woolworth Co., 90 NLRB 289
(1950); and Florida Steel Corp., 231 NLRB 651 (1977).42
The General Counsel contends that the issuance of a
bargaining order is required because Respondent 's perva-
sive unfair labor practices have made slight the possibili-
ty of erasing their effects by traditional remedies so that
a fair election may be held.
In Gissel Packing Co., the Supreme Court approved the
Board's imposition of bargaining orders to remedy unfair
labor practices which undermined a union's majority and
prevented the holding of a fair election. The Court dif-
ferentiated between two situations. One occurs when the
unfair labor practices are so outrageous and pervasive
that their coercive effect cannot be eliminated by tradi-
tional remedies and a fair election is therefore impossible.
The other occurs, as described by the Court 395 U.S. at
614-615, "in less extraordinary cases marked by less per-
vasive practices which nonetheless still has the tendency
to undermine majority strength and impede the election
processes," and warrants the issuance of a bargaining
order where the Board finds that the possibility of ensur-
ing a fair election through the use of traditional remedies
is slight, and further finds that employee desires ex-
pressed through authorization cards would be better pro-
tected by a bargaining order.
Commencing September 5, 1980, and continuing to
May 19, 1981, Respondent committed 30 separate and
distinct unfair labor practices including two discharges,
several threats of discharge, store closure, reduction of
wages and hours, and loss of current benefits, unlawful
interrogation and polling of many employees, a statement
that an employee had been discharged for his union ac-
tivities, and the creation of an impression of surveillance.
This conduct closely parallels that in Price's Pic-Pac Su-
permarkets, 256 NLRB 743 (1981), where the Board
found it "difficult to imagine any conduct on the part of
an employer which would more thoroughly cripple an
organizing drive or render a Board election futile."
The imposition of a bargaining order is a stringent
remedy, but Respondent's conduct leaves no reasonable
alternative. As a general rule almost anything is possible,
but I am persuaded that the likelihood of traditional rem-
edies restoring the requisite laboratory atmosphere
within which a fair election may be conducted is mini-
mal. Respondent's unfair labor practices were extreme in
number and nature. The employees surely received the
message Respondent intended to convey that it stood
ready to, would, and had retaliated against union activi-
ties with discharges and threats of various kinds. A
Board order to remedy these acts by conventional
means, including an appropriate notice to employees,
cannot reasonably be expected to erase the continuing ef-
42 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fects of Respondent's conduct. In truth, it is doubtful
that the status quo ante can ever be completely restored,
and the situation before me engenders little confidence
that there is the vaguest chance that employees can now
go to the polls, only traditional remedies having been im-
posed, and exercise their statutory franchise free from
lingering fears of employer retaliation, notwithstanding
the notice promising no repetition of unfair labor prac-
tices. Why should employees believe an employer who
has been shown to be implacably opposed to a union and
ready and willing to violate the statute in furtherance of
that resolve? The plain answer is that they have no
reason to so believe.
I conclude that the violations of the Act are sufficient-
ly extensive and grave to foreclose any reasonable likeli-
hood that a fair election can be held in the foreseeable
future. The employees' signed authorization cards are,
therefore, the most reliable indication of their desire for
representation extant. Accordingly, in the absence of a
request for bargaining, I shall recommend the beginning
of Respondent's bargaining obligation be established as
September 5, 1980, at which time its unfair labor prac-
tices commenced.43
I further find that the scope and severity of Respond-
ent's unfair labor practices display a general disregard
for the employees' fundamental statutory rights and war-
rant a broad cease-and-desist order.44
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed45
ORDER
The Respondent, Granco, Inc., d/b/a Thirftway Su-
permarket; Blantom Corporation, d/b/a Thriftway Su-
permarket; and Bland A. Painter, Jr., d/b/a Thriftway
Supermarket, Roanoke, Virginia, its agents , officers, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in the Union, or any
other labor organization, by discharging employees or
otherwise discriminating in any manner with respect to
their tenure of employment or any term or condition of
employment.
(b) Discharging or otherwise discriminating against
employees because they were named in charges filed
under the Act.
(c) Coercively interrogating employees concerning
their or other employees' union activities and sympathies.
(d) Polling employees for the purpose of determining
their support for the Union without proper safeguards.
(e) Asking employees how they will vote in a repre-
sentation election.
(f) Coercively interrogating employees about their
union activities and sympathies during job application
interviews.
48 Trading Port, 219 NLRB 298 (1975).
44 Hickmott Foods, 242 NLRB 1357 (1979).
45 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
(g) Creating the impression it is keeping union meet-
ings and the union activities of its employees under sur-
veillance.
(h) Telling employees that other employees have been
discharged because of their union activities.
(i) Threatening employees with store closure, dis-
charge, reduction of wages and hours, loss of health in-
surance and other benefits, or a refusal to negotiate if
they select a union as their collective-bargaining repre-
sentative.
(j) Promising to buy employees dinner if they divulge
the date they signed union authorization cards.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
All full time and regular part time cashiers, baggers,
meat, grocery, produce, and delicatessen clerks
working at the Employer's locations at 7511 Wil-
liamson Road, 319 Grandin Road, S.W., Roanoke,
Virginia, and Main Street, Troutville, Virginia, but
excluding all store managers , assistant store manag-
ers, co-managers, merchandisers, department man-
agers exercising supervisory duties, office clericals,
confidential, seasonal and casual employees, guards
and supervisors as defined in the Act.
(b) Offer Charles Benson and Oscar Phifer immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(c) 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.
(d) Post at its Roanoke and Troutville, Virginia facili-
Ities copies of the attached notice marked "Appendix."141
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
46 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
THRIFTWAY SUPERMARKET 1467
posted . Reasonable steps shall be taken by the Respond- IT IS FURTHER ORDERED that the complaint be dis-
ent to ensure that the notices are not altered, defaced, or missed insofar as it alleges violations of the Act not
covered by any other material. found herein.
(e) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the petition in Case 5-
days from the date of this Order what steps the Re- RC-11316 be dismissed.
spondent has taken to comply.