Wild Oats Markets

National Labor Relations Board - Board Decisions

May 29, 2003

339 N.L.R.B. 81 (N.L.R.B. 2003)

WILD OATS MARKETS 81
Wild Oats Markets, Inc. and Local 371, United Food
and Commercial Workers International Union,
AFL–CIO. Cases 34–CA–9243 and 34–CA–9278
May 29, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 20, 2001, Administrative Law Judge
Michael A. Marcionese issued the attached decision.
The General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wild Oats Markets, Inc.,
Norwalk, Connecticut, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

1 The judge found that the Respondent did not violate Sec. 8(a)(5) of
the Act by failing to pay any profit-sharing bonuses after a majority of
the employees had voted for the Union. The General Counsel contends
that the Respondent had discretion over these bonuses and that the
Respondent, therefore, was obligated to bargain with the Union before
taking unilateral action. We agree with the judge’s conclusion.
In NLRB v. Katz, 369 U.S. 736 (1962), the Supreme Court was pre-
sented with the question of whether the employer violated Sec. 8(a)(5)
of the Act by unilaterally granting merit wage increases during the
course of negotiations for a first contract. Rejecting the employer’s
argument that the increases were the continuation of its past practice,
the Court found the employer violated the Act because “the raises . . in
question were in no sense automatic, but were informed by a large
measure of discretion.” NLRB v. Katz, supra at 746. Here, in contrast,
the payment of the profit-sharing bonuses was essentially automatic,
provided that certain objective criteria were met, and involved only
limited discretion. The bonuses were paid when stores met specific
numerical targets set out for each store in advance. Although the Re-
spondent’s chief financial officer (CFO) had some discretion to pay
bonuses even when the targets were not met, the record contains evi-
dence of only two instances in which she did so. In both instances, one
of which involved the March 2001 payment to the Norwalk store in
question, the store came close to its target number and the CFO ex-
pected the target would be met in the subsequent month. There is no
evidence that the Respondent ever paid a bonus where the target num-
bers were missed beyond a single month, which is the case with the
Norwalk bonuses at issue from April though July 2001. The record,
therefore, supports the Respondent’s argument that the CFO’s narrow
discretion to grant increases did not cover the situation at issue herein.
In these circumstances, we agree with the judge’s conclusion that the
Respondent’s failure to pay the bonuses was consistent with its past
practice and did not constitute an unlawful change in the terms and
conditions of employment.
Thomas E. Quigley, Esq., for the General Counsel.
Thomas R. Gibbons, Esq. (Jackson, Lewis, Schnitzler & Krup-
man), of Hartford, Connecticut, for the Respondent.
Brian Truini, Union Representative, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on February 14, 15,
and 22, 2001. Local 371, United Food and Commercial Work-
ers Union, AFL–CIO (the Union) filed the charge in Case 34–
CA–9243 on April 11, 2000, and amended it twice, on July 31,
2000, and September 29, 2000. The Union filed the charge in
Case 34–CA–9278 on May 11, 2000. An order consolidating
cases, consolidated complaint, and notice of hearing issued on
September 29, 2000, alleging that the Respondent, Wild Oats
Markets, Inc., violated Section 8(a)(1), (3), and (5) of the Act.
On October 13, 2000, the Respondent filed its answer to the
consolidated complaint denying, inter alia, that it committed
any of the alleged unfair labor practices.1
At times relevant to the complaint, the Respondent owned
and operated a retail grocery store in Norwalk, Connecticut.
During that time, the Union was successful in organizing the
Respondent’s employees at the Norwalk store and was certified
by the Board as their exclusive collective-bargaining represen-
tative on May 31, 2000. 2 The consolidated complaint alleges,
and the Respondent denies, that it interfered with, restrained
and coerced its employees during the organizing drive through
threats, implied promises, and other verbal acts committed by
admitted supervisors and agents. Resolution of these allegations
is essentially a question of credibility. The General Counsel
also alleges, and the Respondent denies, that it discontinued its
monthly profit-sharing bonus in April, in violation of Section
8(a)(3), because the employees had voted for the Union. Be-
cause the Union was ultimately certified by the Board, the
complaint alleges that the Respondent’s unilateral action in
discontinuing the bonus also violated Section 8(a)(5) of the
Act. The Respondent denies that it discontinued its profit-
sharing program after the election, contending that the store did
not meet the nondiscriminatory criteria for payment of a profit-
sharing bonus in the months succeeding the union election.
Resolution of this issue turns primarily upon documentary evi-
dence.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
1 The General Counsel amended the consolidated complaint at the
hearing to withdraw one allegation, add another alleged 8(a)(1) viola-
tion, and to reflect the correct description of the Respondent’s business.
The Respondent answered the new unfair labor practice allegation at
the hearing by amending its answer to specifically deny the new allega-
tion.
2 All dates are in 2000 unless otherwise indicated.
3 Counsel for General Counsel’s unopposed motion to correct the
transcript is granted.
339 NLRB No. 15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operated a retail natural food
store in Norwalk, Connecticut, until August 7, 2000. During the
time that it operated this store, the Respondent annually derived
gross revenues in excess of $500,000 and purchased and re-
ceived at the store goods valued in excess of $50,000 directly
from points located outside the State of Connecticut. Although
the Respondent sold the Norwalk store, it continues to operate
other stores throughout the country. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a chain of natural food stores
throughout the United States and Canada. According to Mary
Beth Lewis, the Respondent’s chief financial officer, vice
president of finance, and corporate secretary, the Respondent
began calendar year 1999 with 63 stores and ended that year
with 110 stores. During its expansion in 1999, the Respondent
acquired an existing store in Norwalk, Connecticut, operated
under the name “Food for Thought.” The acquisition was effec-
tive on April 30, 1999. The Respondent continued to operate
the store under the “Food for Thought” name until August 7,
2000, when it sold the store to Grange Investments, an unaffili-
ated entity which was still operating the Norwalk “Food for
Thought” store at the time of the hearing. Lewis testified that,
by the end of calendar year 2000, the Respondent had 106
stores.
Michael Gilliland is the Respondent’s founder, president,
and chief executive officer. Peter Williams has been the Re-
spondent’s vice president of human resources since May 1997.
During the period of time relevant to the complaint, Gregory
Seymoure was the Respondent’s northeast regional director
with responsibility for nine stores, including the Norwalk store;
Robert Church was the Norwalk Store director; Ahmed Abbas
was the food service manager in charge of the kitchen and deli
at the Norwalk store; and Sal Sabatino was the store’s produce
manager. In its answer, as amended at the hearing, the Respon-
dent admitted that Gilliland, Seymoure, Church, Abbas, and
Sabatino were its supervisors and agents within the meaning of
the Act prior to the sale of the store.
The parties stipulated that, on February 8, the Union filed a
petition to represent all the full-time and regular part-time em-
ployees at the Norwalk store, with the exclusion of office cleri-
cal employees, and guards, professional employees, and super-
visors as defined in the Act. A hearing on the petition was
scheduled at the Board’s Hartford Regional Office for February
18. On that date, the parties executed a Stipulated Election
Agreement setting April 3 as the date for the union representa-
tion election. The tally of ballots at the April 3 election showed
that the majority of employees voted in favor of representation
by the Union. The Respondent filed timely objections to the
election, which were resolved on May 31 when the Board, in a
“Decision and Certification of Representative,” overruled the
objections and certified the Union as the employees 9(a) repre-
sentative. There is no dispute that, until April 2000, no Union
had ever successfully organized any of the Respondent’s em-
ployees.
Two of the Respondent’s top officers, Lewis and Williams,
conceded at the hearing that the Respondent is generally op-
posed to union representation of its employees. The Respondent
furnished to the General Counsel pursuant to subpoena a com-
pany document with the heading “The Early Signs of Union
Organizing Activity.” This document instructs store managers
and supervisors that

it is extremely important that a Company’s managerial and
supervisory personnel react in a quick, and aggressive manner
following the first signs of union organizing. A delayed reac-
tion is almost always damaging and often fatal to later efforts
to remain union-free.

There is no dispute that the Respondent reacted swiftly upon
learning of the Union’s campaign in early February. Seymoure
and Williams held meetings at the store to convey the Respon-
dent’s position to the employees. In addition, literature was
posted and distributed to employees encouraging them to vote
no in the April 3 election. The Respondent’s message to the
employees in this literature was that the employees already had
good wages and benefits, including the profit-sharing program,
and that the employees did not need a union. The General
Counsel does not allege that any statements contained in this
campaign literature went beyond the Respondent’s permissible
speech under Section 8(c) of the Act.
The General Counsel does allege that the Respondent vio-
lated Section 8(a)(1) at one of the meetings Seymoure held in
February; by harassment, threats, and other statements Abbas
made in conversations with employees during the campaign
and soon after the election; and by statements made by
Gilliland when he visited the store shortly before the election. It
is undisputed that, after touting the profit-sharing program in
preelection campaign literature and distributing profit shares to
Norwalk employees every month before the election, the Re-
spondent paid no profit sharing in the months following the
election through the sale of the store on August 7. What is in
dispute is whether the Respondent made a unilateral change in
employees’ terms and conditions of employment by discontinu-
ing profit sharing, and whether its action was motivated by
antiunion considerations.
The undisputed evidence reveals that the new owner of the
store, Grange Investments, retained a majority of the manage-
ment, supervisory, and nonsupervisory employees when it as-
sumed ownership on August 7, and that the store has remained
open. The new owners have not only recognized the Union, but
have entered into a collective-bargaining agreement covering
the unit. Of the witnesses who testified at the hearing, for both
the General Counsel and the Respondent, only two are still
employed by the Respondent, Lewis and Williams. Two of the
General Counsel’s three witnesses are still working in the Nor-
walk store for the new owners. The third worked there until he
left voluntarily for another job in October. Seymoure, who

WILD OATS MARKETS 83
testified for the Respondent, left the Respondent in May,
shortly after the election, under admittedly unhappy terms. The
Respondent’s remaining witness, Abbas, is still working as the
food service manager at the Norwalk store, employed since
August 7 by the new owners.
B. The 8(a)(1) Allegations
1. Seymoure
As noted above, Seymoure and Williams conducted meet-
ings with the Norwalk employees after learning of the Union’s
petition. The complaint alleges that, at one of these meetings on
February 16, Seymoure made an implied promise of benefits by
soliciting employees’ complaints and grievances. Employees
Rosette Louis and Libya Silveira testified for the General
Counsel about this meeting. Employee Rock Michel, who is the
employee no longer working at the Norwalk store, testified
about an individual meeting he had with Seymoure in February.
Seymoure and Williams testified for the Respondent.
Louis has worked at the Norwalk store since 1996, for all
three owners. She has always worked in the kitchen and deli.4
Ahmad Abbas is and has been her supervisor throughout the
relevant time period. In response to a leading question from the
General Counsel, Louis testified that she attended a meeting at
work in the middle of February at which Seymoure spoke to the
employees. When asked more directly if she recalled when the
meeting occurred, Louis said she could not remember because
Seymoure and Williams met with the employees regularly in
the time leading up to the election. She recalled that the meet-
ings took place in the basement office with small groups of
employees. She attended the meeting in question with about
five–six other kitchen employees. Louis had never seen either
Seymoure or Williams before the union campaign.
On direct examination, Louis testified that, at this meeting
which the General Counsel told her was in mid-February, Sey-
moure said, “[D]on’t vote for the Union, we’re going to have
bad times and we’re not going to get good money.” When
asked if she recalled anything else, Louis said she could not
remember what he told the employees. On cross-examination,
Louis volunteered that Seymoure came to the meeting and told
the employees, “any problem you guys got, it’s okay to come to
see me” but after the Union won, she never saw him again. On
further cross-examination, in responding to leading questions,
Louis acknowledged that Seymoure spoke about the upcoming
election, told the employees when and where the vote would
be, and that the Company hoped the employees would vote no.
On further questioning by the Respondent’s counsel, Louis
repeated that Seymoure told the employees to vote no because
the Respondent did not like unions. Louis also agreed with the
statements of the Respondent’s counsel that Seymoure told the
employees that the Respondent liked the idea of teamwork, and
that the Respondent didn’t think it needed to have a union in
the store. Finally, Louis said that, at every meeting, Seymoure
and Williams told the employees not to vote for the Union be-
cause the Union was not right for the employees or the store.

4 The transcript reads “dairy” instead of “deli.” This is an obvious er-
ror that I shall hereby correct.
Silveira has worked at the Norwalk store continuously,
through the changes in ownership, since April 1997. She is a
cook in the kitchen working under Abbas’ supervision. After
the election, Silveira became a union steward. She testified that
she attended a similar meeting in the basement at which Sey-
moure and Williams talked to the employees about the Union
and the upcoming election. Her best recollection is that the
meeting was in early February. Silveira also recalled that there
were about 10 employees present. As with Louis, this was her
first occasion to meet Seymoure and Williams.
Silveira testified that Seymoure told the employees that the
Respondent had 113 stores and no unions. He asked the em-
ployees to give the Respondent a chance. On direct examina-
tion, she recalled that Seymoure also said, “[I]f you have any
problem with your schedule, you must come in directly to talk
to me, you must come to see me. We will do everything we
can. You must vote no on April 3.” Silveira testified further, on
direct, that she spoke up at this meeting about her schedule
being changed and about the Respondent hiring people with no
experience and no customer skills. She recalled that Seymoure
responded by saying that the Respondent would provide train-
ing to new employees with people from the Colorado home
office. On cross-examination, counsel for the Respondent elic-
ited, with much difficulty, the concession that Silveira did not
remember everything that was said at this meeting. Silveira also
acknowledged, with some difficulty, that other employees
voiced complaints like she did and that they did so spontane-
ously. When asked specifically if Seymoure solicited employ-
ees to raise these complaints, Silveira replied that she could not
remember.
Michel was employed at the Norwalk store from January
1999 until he left voluntarily in mid-October. He was hired as a
dishwasher in the kitchen but was promoted to food service
clerk after the Respondent acquired the store. Abbas, who was
Michel’s supervisor, confirmed the fact that he promoted Mi-
chel from dishwasher to prep cook, with an increase in pay, in
mid-1999. Unlike Louis and Silveira, Michel testified that
Seymoure met with him one-on-one in February. According to
Michel’s recollection, Seymoure held similar individual meet-
ings with other employees. He did not identify anyone else,
such as Williams, being present when he spoke with Seymoure.
According to Michel, the meeting lasted 20–25 minutes.
Michel testified that Seymoure told him he had heard that the
main problem in the store, and the reason employees wanted
the Union, was the schedule.5 According to Michel, Seymoure
asked what Michel could tell him about that. Michel responded
by telling Seymoure that some people appeared to have “the
advantage” regarding scheduling. Seymoure then said, “[O]kay,
I take note, I will correct that.” According to Michel, Seymoure
then asked if that was the only reason the employees wanted the
Union and Michel replied that there were other reasons. He did
not testify whether he told Seymoure what the other reasons
5 The transcript, again, erroneously indicates that Michel said, “they
scare you” instead of “the schedule.” Because it is clear from the entire
context of Michel’s testimony that he and Seymoure spoke about
scheduling concerns and not any fear among the employees, I shall
correct the transcript accordingly.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 84
were. Michel testified further that Seymoure told him that the
Respondent was strongly opposed to the union. Michel could
not recall how the meeting ended or what else was said.
Seymoure was employed as the Respondent’s regional direc-
tor for about a year before his “unhappy departure” in May. At
the time of the hearing, Seymoure was no longer in the retail
grocery business. He appeared at the hearing pursuant to a sub-
poena from the Respondent. Seymoure acknowledged that he
did not often visit the Norwalk store before learning of the Un-
ion’s petition because he was busy with store openings in the
Boston area. He also acknowledged that, once he learned of the
Union’s organizational campaign, he visited the store one–two
times a week until the election. During these visits, Seymoure
met with store management and held meetings with groups of
10–12 employees. He would typically hold three–four such
meetings a day. The meetings generally lasted 15–30 minutes.
All the meetings were in the buyers’ office in the basement.
Seymoure testified that he was always accompanied at these
meetings by Williams or the Respondent’s regional human
resources manager. According to Seymoure, Williams did most
of the talking when he was present. Although Seymoure ac-
knowledged that the Respondent did have scripts for use in
talking to employees about the Union, he denied using a script
during any of these meetings and did not see Williams reading
from any script.
Seymoure testified that he recalled attending at least one
meeting at which Louis and Silveira were present. According to
Seymoure, he and Williams told the employees at the beginning
of the meeting that the Respondent could not threaten, interro-
gate, promise, or spy on the employees. This is what Seymoure
had learned during “TIPS” training provided by the Respon-
dent’s in-house counsel. He or Williams then talked about the
Respondent’s history, including the number of stores the Re-
spondent had all over the country. Seymoure testified that the
meeting was then opened up for questions from the employees.
Although this was met by silence at first, employees began
speaking up, asking questions, and expressing their concerns.
On direct examination, Seymoure recalled that employees
raised issues about scheduling, bonuses, and holidays and re-
ported promises that the Union was making during the cam-
paign. According to Seymoure, he or Williams responded to
these questions and concerns by saying that there were things
they could not talk about at that time, and that they couldn’t
make any promises. Seymoure denied soliciting these com-
plaints or grievances from the employees. He testified that they
arose spontaneously from the employees. Seymoure also denied
meeting individually with Michel or any other employee and
denied making the statements attributed to him by Michel. On
cross-examination, Seymoure conceded that he could not recall
everything that he said at these meetings. Although Seymoure
could not recall Williams asking the employees to give the
Respondent a chance, Seymoure admitted that he might have
used those words. Seymoure also admitted telling the employ-
ees that the Respondent was doing very well and that this was
due to the flexibility it had because it did not have to deal with
a union.
Williams testified that he attended meetings before the elec-
tion with Seymoure and groups of 5–10 employees in the buy-
ers’ office in the basement of the Norwalk store. These meet-
ings generally lasted 15–20 minutes. Although Seymoure spoke
at the meetings, Williams did most of the talking. Williams
testified specifically about one of these meetings at which he
recalled Louis and Silveira being present. This meeting was
held sometime between the filing of the petition on February 8
and the February 18 hearing date. According to Williams, he
introduced himself and started talking about the history of the
Company, its founders, and the number of stores it operated. He
then spoke about things employees could expect now that the
petition had been filed, that there was going to be an election
and how many votes were needed to win the election. Williams
told the employees that the Respondent was opposed to the
Union and explained the reasons.6 He also told the employees
that the Respondent was not allowed to and would not make
any promises. After this, the employees were asked if they had
any questions about the material just covered. Williams recalled
that, at some meetings, there were no questions. At other meet-
ings, including the one at which Louis and Silveira were pre-
sent, employees spoke up about issues they had. He recalled in
particular that employees expressed concerns about one of the
managers in the store and that they asked questions about poli-
cies and benefits. Williams denied asking employees what there
problems were and denied saying anything about employees’
hours or the schedule. According to Williams, when employees
spontaneously raised issues or concerns, he told them that he
was not allowed to make any promises at this time. On cross-
examination, Williams acknowledged reviewing a script before
meeting with employees, but he denied reading from it. Wil-
liams conceded that he asked the employees to “give us a
chance.” He also acknowledged telling the employees how
successful the Respondent was. Although Williams testified
that he prepared notes which he used as an outline at the meet-
ing, he no longer could find them.
The General Counsel bears the burden of proving the com-
plaint’s allegation that the Respondent, through Seymoure,
promised employees benefits by soliciting grievances at a meet-
ing in February. The testimony of Louis, Silveira, and Michel is
not sufficient to meet this burden in the face of Seymoure’s
denial and Williams’ testimony. All three of the General Coun-
sel’s witnesses had difficulty testifying in English, which is not
their native language. They often appeared confused and did
not even understand some of the questions asked by the Gen-
eral Counsel. In addition, there were internal inconsistencies in
their individual testimony and inconsistencies among them
regarding what Seymoure said. These inconsistencies make the
testimony unreliable as proof of an unfair labor practice. Louis
did not even testify that Seymoure solicited grievances until
cross-examination. Her recollection of the meeting was gener-
ally poor. Although Silveira did testify on direct to a solicita-
tion of grievances, on cross she appeared to admit that employ-
ees spoke spontaneously when they raised issues about the
schedule and other matters. Silveira also demonstrated poor
recall regarding the meeting and other events. In addition, I
note that Louis and Silveira both identified Williams as being

6 Williams did not identify in his testimony the reasons he gave to
the employees for the Respondent’s opposition to the Union.

WILD OATS MARKETS 85
present at the meeting at which Seymoure allegedly violated the
Act. Seymoure and Williams credibly testified that Williams
did most of the talking at these meetings. Thus, because Louis
and Silveira did not know either gentleman before the meeting,
it is possible that it was Williams rather than Seymoure who
made the questionable statements. It is also possible that, be-
cause Williams and Seymoure conducted the meeting in Eng-
lish and Louis and Silveira had difficulty understanding English
at the hearing, they may have misunderstood or misinterpreted
Seymoure or Williams’ speech. I do not believe that either wit-
ness testified falsely. Rather, their testimony was so unreliable
that it does not support a finding by a preponderance of the
evidence that Seymoure committed the violation alleged at any
meeting at which they were present.
Whereas Louis and Silveira described group meetings with
Seymoure and Williams, Michel said he only had a one-on-one
meeting with Seymoure. I credit Seymoure’s denial that he met
individually with Michel or any other employee. Seymoure is
no longer employed by the Respondent, was unhappy with his
departure from the Respondent’s employ, and would seem to
have no reason to commit perjury in support of the Respondent.
Michel may very well have confused his alleged meeting with
Seymoure for the meeting he did have with Gilliland, which
will be discussed later. Michel did not know either man before
attending the preelection campaign meetings held by the Re-
spondent. He could easily have mistaken Gilliland for Sey-
moure when describing this one-on-one meeting. Again, I do
not believe that Michel fabricated this testimony. Because his
testimony is inconsistent with the other evidence in the record
and may have resulted from confusion or mistaken identity, it is
not sufficiently reliable to support a finding of a violation.
Accordingly, based on the above, and in particular, the more
reliable testimony of Seymoure, I shall recommend dismissal of
this allegation of the complaint.
2. Abbas
As noted above, a hearing on the Union’s petition to repre-
sent the Respondent’s employees was scheduled for Friday,
February 18, in Hartford. The Union subpoenaed Michel and
Silveira to attend the hearing as potential witnesses.7 Michel
and Silveira testified that they informed their supervisor,
Abbas, in advance that they had been subpoenaed and would
not be in work on February 18. Abbas conceded that he had
received this information. Silveira testified that the following
Monday, February 21, she received a phone call at work. Abbas
answered the phone in the kitchen and called her over, saying
“it must be the government calling for Libya.” According to
Silveira, it was her husband on the phone. Silveira testified that
for some time after this, Abbas would similarly remark that the
Government was on the line whenever she received a phone
call at work. On cross-examination, Silveira acknowledged that
she had stated in her pretrial affidavit that Michel told her that
Abbas was making such a comment and that she overheard

7 Michel and Silveira did not have to testify because the parties
reached agreement for a stipulated election. Michel and Silveira testi-
fied that they waited for several hours in the lobby of a nearby hotel
while negotiations for the stipulation went on at the Board’s Regional
Office.
Abbas telling other employees that the Government was calling
for Silveira.
Michel corroborated Silveira’s testimony that, for a time af-
ter he and Silveira went to the hearing, Abbas said, whenever
Silveira received a phone call, “it’s the government calling.”
Louis also testified that she heard Abbas make similar com-
ments when Silveira received phone calls in the kitchen. Al-
though all of the General Counsel’s witnesses testified that this
conduct continued for a time, none could recall with any cer-
tainty how long Abbas continued making such comments.
Abbas testified that Silveira and Louis were two employees
who received a lot of personal phone calls at work during that
time period. According to Abbas, employees are only permitted
to receive phone calls in the kitchen for an emergency. Abbas
testified that he spoke to both Silveira and Louis about their
receipt of personal calls. With respect to Silveira, Abbas claims
he told her that personal calls were interfering with her job and
that, if she needed to make a phone call, she could do it on her
break using the phone in the store. Abbas admitted speaking to
Silveira about her phone calls publicly in front of other em-
ployees. Abbas specifically denied telling Silveira, or anyone
else, that the government was calling for her.
As previously noted, none of the witnesses is still working
for the Respondent. However, Silveira and Louis still work
under Abbas’ supervision and took some risk testifying ad-
versely to him. At the same time, Abbas acknowledged being
aware that the Respondent was in the process of building a new
store not far from the Norwalk store that was scheduled to open
around the time of the hearing. Thus, Abbas may have wanted
to remain in the Respondent’s good graces in the event he
wished to work in the new store. The inconsistency between
Silveira’s direct testimony and her pretrial affidavit that was
brought out on cross-examination, while relevant to the issue of
credibility, is not fatal. See Electrical Workers Local 601
(Westinghouse Electric Corp.), 180 NLRB 1062, 1065–1066
(1970). Although she may have testified differently as to
whether Abbas said, “government calling” directly to her,
Silveira was consistent in her affidavit and testimony that she
herself heard Abbas make these statements. As against the mu-
tually corroborative testimony of the General Counsel’s wit-
nesses, I did not find Abbas denial persuasive. I thus find that
Abbas did, for a time after Silveira went to the hearing, com-
ment that the Government was calling for her when she re-
ceived phone calls at work. Because these comments singled
out Silveira derisively in front of her coworkers as a union sup-
porter, I find that they had a reasonable tendency to chill em-
ployees’ exercise of their Section 7 rights. Accordingly, I find
that the Respondent violated Section 8(a)(1) of the Act as al-
leged in the complaint by Abbas’ conduct in this regard.
The complaint also alleges that Abbas interrogated employ-
ees on March 27, threatened employees with a reduction in
hours on several occasions before the election and made state-
ments creating the impression among employees that their un-
ion activities were under surveillance shortly before and soon
after the election. Michel testified that on Monday, March 26,
the day after a meeting at the union hall, Abbas approached him
and said he heard the employees had a pizza party at Local 371.
Michel told Abbas that it was not a pizza party but a meeting.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 86
Abbas then asked Michel why just the people from the kitchen
attended the meeting. Michel disputed this, telling Abbas that
employees from all over the store were at the meeting. Accord-
ing to Michel, Abbas then asked for the names of the people
who were at the meeting. When Michel did not respond, Abbas
said, “[I]f you want, I can give you the names.”
Abbas admitted being aware that the Union held a pizza
party for the employees at its office. Abbas said he learned of
the party from employees. He identified three employees, in-
cluding Louis, who told him about the party. Abbas said he also
overheard these employees talking about it. Abbas did not men-
tion Michel as a source of his information about the party.
Abbas denied asking employees any questions about the party
or making any remarks about it beforehand. Abbas conceded
that, the day after the party, he asked employees generally
“how was the pizza.” He denied saying anything else beyond
this and specifically denied questioning Michel about who was
at the party. On cross-examination, Abbas could not remember
whether he had any conversation with Michel about the party,
but admitted that if Michel was working that day he would have
asked him how the pizza was. Abbas testified further that he
knew that it was illegal to ask such questions of employees or
spy on them from training he received from Seymoure or the
store managers. At the same time, he acknowledged being told
at the training meetings that the Respondent did not want the
Union in the store. He also admitted talking to the employees in
the weeks leading up to the election about the Respondent’s
position, but he denied saying anything illegal.
I credit Michel’s testimony over that of Abbas. Of all the
witnesses, only Michel and Seymoure had no conceivable in-
terest in the outcome of this proceeding. Moreover, Michel
impressed me as an honest hard-working immigrant who was
not likely to lie about such a conversation. As noted above,
Abbas had a possible reason to testify favorably for the Re-
spondent, his former employer. I also note that no witnesses
corroborated Abbas’ testimony that the pizza party or meeting
was a subject of open conversation in the kitchen before the
meeting. Based on Michel’s credible testimony, I find that
Abbas, during this conversation with Michel on March 27,
interrogated Michel and created the impression that the em-
ployees attendance at the union meeting had been under sur-
veillance. The Board has consistently held that an employer’s
questioning of employees about the union activity of other em-
ployees is unlawful interrogation Medicare Associates, Inc.,
330 NLRB 935 (2000). Similarly, statements by an employer’s
supervisors and agents that would reasonably convey the im-
pression of unlawful surveillance by the employer have rou-
tinely been found to violate Section 8(a)(1) of the Act. Flexsteel
Industries, 311 NLRB 257 (1993). The General Counsel has
thus met his burden as to these allegations.
Michel testified that, later in the same week, he had a con-
versation with Abbas on the loading dock. Abbas told Michel
he knew how everybody in the kitchen was going to vote and
he asked Michel for help convincing the employees to vote no.
Michel admitted telling Abbas that he intended to vote no and
that all the employees in the kitchen would support Abbas by
voting against the Union. In his pretrial affidavit, and at the
hearing, Michel conceded that he lied to Abbas when he said
this. Abbas testified to a similar conversation with Michel.
According to Abbas, Michel called him outside one time and
told Abbas that he was not going to vote for the Union because
the Union was not good for the store. Store Manager Church
was walking by at the time and Abbas told Michel that he
should tell Church that he was going to vote no. Again, I find
Michel’s testimony about the conversation on the loading dock
credible. The fact that he may have attempted to mislead his
supervisor regarding his union sympathies does not mean Mi-
chel would lie under oath in a Board proceeding. It is not un-
usual for employees to engage in such a deception when faced
with an employer’s opposition to union representation of its
employees. Moreover, Abbas’ testimony tended to corroborate
the fact that he and Michel did have a conversation in which
Michel indicated his intentions to vote against the Union. Al-
though the complaint does not specifically allege that this con-
versation was unlawful, the conversation is relevant back-
ground to other allegations to be discussed.
Michel testified further that, sometime after the conversation
on the loading dock, Abbas came in to the kitchen and told the
employees that he knew they were not all going to vote no even
though they said they were. Abbas then told the employees that
the Union can not guarantee the employees any full-time jobs.
He told the employees that union-represented employees at
Grand Union all have part-time jobs.8 Louis corroborated Mi-
chel in this regard. She testified that about a week before the
election, Abbas told the employees that if they voted for the
Union, they would have part-time jobs and make less money.
Louis recalled that Abbas said this at different times before the
election. Silveira also testified to similar statements by Abbas.
According to Silveira, Abbas told the employees on several
occasions during March that if they voted for the Union, they
would all be part time. When Silveira asked Abbas why the
employees would have to be part time if they had a union,
Abbas replied that the Union doesn’t give 40 hours. Abbas
denied telling employees that their hours would be reduced if
the Union won. According to Abbas, he knew that such a threat
would be illegal. Abbas also denied having any conversation
with Silveira about full-time or part-time jobs and claimed to be
unaware of the hours worked by union employees at Grand
Union. Abbas did acknowledge speaking to employees about
the Respondent’s opposition to the Union and telling employ-
ees that the Respondent provided good benefits and that the
Union could not guarantee this because benefits have to be
negotiated. The Respondent also distributed campaign literature
in response to union literature dated March 20 that compared
the Respondent’s wages, benefits, and working conditions with
those of employees the Union represented at Grand Union and
Stop & Shop. This particular leaflet specifically states that the
Union cannot guarantee it will deliver anything it promises.
The leaflet also states that the Union did not get the employees

8 On cross-examination, Michel appeared to agree that Abbas’ com-
ments about hours of work occurred in the context of a discussion about
collective bargaining and negotiations. However, on further question-
ing, it was clear that Michel did not understand the questions from
Respondent’s counsel. At one point, Michel testified that Abbas said
the Union couldn’t guarantee the employees full-time jobs because it is
the company that determines the hours.

WILD OATS MARKETS 87
at Grand Union and Stop & Shop the kind of wages and bene-
fits that the Respondent provided to its employees. The alleged
threats attributed to Abbas by the General Counsel’s witnesses
are consistent with the points made in this campaign literature.
Because I found the testimony of Michel, Louis, and Silveira
more credible than that of Abbas, I find as alleged in the com-
plaint, that the Respondent did threaten employees with re-
duced hours if they voted in favor of union representation. See
El Rancho Market, 235 NLRB 468 (1978).
The General Counsel amended the complaint at the hearing
to allege that the Respondent violated Section 8(a)(1), on or
about March 20, through a promise of benefits made by Abbas.
Michel’s testimony also supports this allegation. Michel testi-
fied that, within a week or two before the election, he met with
Abbas for his performance review. According to Michel, Abbas
told him he was doing well and that he was going to receive a
$1 raise. Abbas said this was not because of the Union but be-
cause Michel was a good worker. Abbas then told Michel that
if there was any way he could convince the employees to sup-
port the Respondent in the election, Abbas would make Michel
his assistant. Abbas denied making such a promise to Michel.
He further denied having any meetings with Michel before the
election to give him a performance review or a raise. Abbas
said he would not have discussed Michel becoming an assistant
manager because Michel was not qualified for such a position
and worked another job that would conflict with his hours.
Abbas did acknowledge that Michel was a good, hard worker
and that he promoted Michel from dishwasher to prep cook in
mid-1999. Abbas also acknowledged giving Michel another
raise when he asked Michel to take on the additional job of
cleaning the floors. On direct examination, Abbas testified that
the last raise was given to Michel 3 to 4 months after his pro-
motion to prep cook and before the union organizing drive.
However, on cross-examination, Abbas conceded that it was
possible that Michel received a raise 2 to 3 weeks before the
election because that was about the time employees receive
their 6-month reviews. According to Abbas, if Michel got a
raise, he would definitely have spoken to him about it at the
time. Abbas had no specific recollection whether he in fact
gave Michel a raise shortly before the election. The Respondent
did not produce any payroll records which would have shown
whether Michel received a raise in March. The Respondent’s
compensation handbook does indicate that employees’ per-
formance is reviewed at 6-month intervals. Having considered
the respective testimony and the absence of documentary evi-
dence that would contradict Michel’s testimony, I shall credit
Michel over Abbas and find that a promise of benefit was made
by Abbas as alleged in the amendment to the complaint.
The complaint also alleges that Abbas created the impression
of surveillance and made additional threats after the Union won
the election on April 3. Louis testified that the day after the
election, Abbas came into the kitchen and said he didn’t trust
anybody in the kitchen after Monday, the day of the election,
that everybody in the kitchen was a “big” liar. In her pretrial
affidavit, Louis stated that she heard from another employee
that Abbas called the employees “professional” liars. When
confronted with this discrepancy at the hearing, Louis admitted
that Abbas made this statement to another employee. She ex-
plained further that Abbas used both the words “big” and “pro-
fessional” to describe the type of liars employees were. Louis
testified that the two words mean the same thing to her. Abbas
denied calling employees “liars,” “big liars” or “professional
liars.” He did admit posting a notice in the kitchen, which is
dated April 15, that refers to another employee’s accusation
that Abbas had called the Haitian employees “liars.”9 In the
notice, Abbas denied this accusation. The fact that Abbas
posted such a notice around the time Louis heard about Abbas’
accusation that the kitchen employees were liars tends to cor-
roborate her testimony. This notice demonstrates that there was
a report that Abbas made such a statement circulating in the
store before any unfair labor practice charge about it was filed.
Nevertheless, the only evidence to rebut Abbas denial that he
accused employees of being liars is hearsay. I shall credit
Abbas denial of this allegation because it is consistent with the
denial he made before the unfair labor practice allegation was
filed. Accordingly, I shall recommend dismissal of the allega-
tion that the Respondent created the impression of surveillance
through Abbas’ statement on April 4.
Finally, Louis and Michel testified to the alleged threats
Abbas made on April 10. Louis recalled that about a week after
the election, Abbas told the employees in the kitchen that the
store was going to be sold again, that it was not going to have
any kitchen and that everybody would lose their job because of
the Union. In her pretrial affidavit, Louis omitted any reference
by Abbas to the Union when he made this alleged threat. Mi-
chel testified that Abbas came into the kitchen a week after the
election and said to the employees, “since you all voted for the
Union, what are you going to do now? The store is going to be
closed now. I told you the company would do anything not to
have a Union.” Abbas denied telling the employees after the
election that the Respondent was selling or closing the store
because of the Union. According to Abbas, he learned about the
sale when the Respondent was negotiating with the purchaser.
At that time, some employees asked questions about what
would happen to their jobs if the store was sold. Abbas testified
that he answered these questions by telling employees that
businesses are bought and sold all the time, that nothing would
change, that they would be doing business the same as always.
It is undisputed that the store was in fact sold, but it has re-
mained open since Abbas allegedly made these statements.
According to Lewis, the decision to sell the Norwalk store was
made in the April–May time period. In evidence is a resolution
of the Respondent’s board of directors dated May 15 authoriz-
ing the Respondent’s officers to take the necessary steps to
complete the sale of the Norwalk store, as part of a package of
three stores, to Grange Investments. This resolution indicates
that the Respondent had already planned to close the Norwalk
store when it opened a new store in the same vicinity before
considering the sale. There is no allegation in the complaint that
the decision to sell was unlawfully motivated.
After considering the testimony in the context of the infor-
mation contained in the board of director’s resolution, I find
that Michel and Louis are more credible than Abbas regarding

9 Many of the kitchen employees at the Norwalk store were Haitian
immigrants.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 88
his statements about a sale or closure of the store. It appears
that the Respondent was at least in the process of deciding to
close or sell the store, even if a decision had not been made, in
mid-April when Abbas made these statements. Abbas admitted
being aware of the negotiations to sell the store before the sale
was formally announced in the store. Because the Union had
only recently won the right to represent the employees, it is
reasonable to believe that Abbas would have linked these
events in his mind and conveyed that to the employees whom
he felt had betrayed him. After all, Abbas had spent the weeks
before the election being trained in the Respondent’s antiunion
philosophy and knew that the Respondent’s management in
Colorado did not want a union in the store. When he conveyed
his belief as to the Respondent’s motives in selling the store to
the employees, he violated Section 8(a)(1) of the Act even if
the Respondent was not in fact unlawfully motivated.10
3. Gilliland
The complaint alleges that the Respondent, through its CEO
Gilliland, unlawfully promised its employees increased benefits
and improved terms and conditions of employment by solicit-
ing their complaints and grievances on or about March 31. Mi-
chel testified that, on the Friday before the election, which
would have been March 31, he was called down to the office in
the basement by Gilliland. He had never met Gilliland and had
not seen him in the store before. Gilliland met with Michel
alone and, after introducing himself, told Michel that the Re-
spondent was strongly opposed to the Union and wanted the
employees to vote no. On direct examination, Michel testified
that Gilliland then said that the Company would do whatever it
can to prevent a union from coming into the store. Michel ac-
knowledged on cross-examination that this statement is omitted
from his pretrial affidavit. Michel testified further on direct
examination, that he told Gilliland that his reason for support-
ing the Union was that the Jamaican employees who worked in
the front of the store were treated better than the Haitians. Mi-
chel is Haitian. According to Michel, Gilliland thanked him for
this information and said he was going to talk to the store man-
ager. Gilliland then gave Michel a business card with his home
and office phone number and fax number and told Michel to
call him anytime he wanted to let Gilliland know what was
going on. On cross-examination, Michel testified that he was
aware that Gilliland met with other employees and also gave
them the same business card. In response to a series of leading
questions from the Respondent’s counsel, Michel answered
affirmatively that it was Michel who brought up the unfair
treatment of the Haitian employees, that Gilliland “did not draw
that out of him,” and that, after Michel “volunteered” this in-
formation, Gilliland thanked him, said he was going to talk to
the store manager, and gave Michel his card. On redirect, Mi-
chel testified that he told Gilliland about the problem because
Gilliland asked him “what is the problem that we need a union
for.” In his pretrial affidavit, Michel did not specifically state
that Gilliland asked him what the problem was. Instead, Michel

10 Because Abbas was a front-line supervisor with no involvement in
the decision to sell the store, his statements to the employees do not
establish an unlawful motive. Alexian Bros. Medical Center, 307
NLRB 389 (1992).
stated that, in response to his statement about the Jamaican
employees, Gilliland said it was good that Michel told him that
because Gilliland wanted to know what the problems were so
he could take care of them.
Respondent chose not to call Gilliland to testify about this
meeting. No explanation was given for his failure to testify.
However, Abbas testified that Gilliland did visit the store
shortly before the election and met with him individually.
Abbas claimed no knowledge whether Gilliland had similar
meetings with other employees. Abbas testified that Gilliland
asked Abbas how he liked the store and what he thought of the
Union. Based on this testimony I find that Gilliland was in the
store prior to the election. Because I have already found that
Michel was a generally truthful witness, I believe that he met
with Gilliland during this visit. I also find, based on Michel’s
testimony elicited on cross that other employees showed him
the same business card that Gilliland gave to Michel, that
Gilliland held similar one-on-one meetings with other employ-
ees. I find it highly unlikely that the Respondent’s CEO would
travel all the way from Colorado to Norwalk, Connecticut, to
just meet with Abbas, or Abbas and Michel. A visit to the store
by the founder and CEO of the Company and individual meet-
ings with eligible employees is consistent with the type of cam-
paign conducted by the Respondent to convince the employees
that they did not need a Union because the Respondent was
their benefactor. My finding that Gilliland in fact met with
Michel on March 31 is also based on his absence from the hear-
ing and the lack of any evidence to contradict either Michel or
Abbas. As the CEO and founder of the Company, Gilliland
would be expected to testify favorably for the Respondent. I
may thus draw an adverse inference from his unexplained fail-
ure to testify. Grimmway Farms, 314 NLRB 73 fn. 2 (1994).
Michel’s testimony regarding what was said during his meet-
ing with Gilliland is not entirely consistent with his pretrial
affidavit. However, I find any inconsistency not fatal to his
credibility. As noted previously, Michel is not a native English-
speaker and he may not have entirely understood the questions
that were asked by either the Board’s investigating agent or the
Respondent’s counsel.11 He was consistent in testifying that,
after he told Gilliland about the difference in treatment of the
Jamaican and Haitian employees, Gilliland said he was going to
talk to the store manager, he gave Michel his business card and
invited Michel to call him anytime. Thus, Gilliland implicitly,
if not explicitly, promised he would take care of this problem.
Such a promise, implicit or explicit, would have the reasonable
tendency to interfere with, restrain and coerce an employee in
his choice regarding union representation, regardless of
whether the employee “volunteered” his complaint, or it was
solicited by the employer. Accordingly, I find that the Respon-
dent violated Section 8(a)(1) of the Act as alleged in the com-
plaint, by Gilliland’s implied promise of benefit to Michel.
Laboratory Corp. of America Holdings, 333 NLRB 284 (2001).
11 It’s also conceivable that he misunderstood what Gilliland said to
him during the meeting. However, without the benefit of Gilliland’s
testimony, the only version of the conversation I have is that provided
by Michel.

WILD OATS MARKETS 89
C. Allegations Regarding the Respondent’s
Profit-Sharing Plan
The Respondent has maintained a corporatewide profit-
sharing plan for a number of years. The plan is described in its
staff handbook and compensation handbook distributed to em-
ployees. There is no dispute that the Respondent provided this
benefit to employees at the Norwalk store from the time it as-
sumed ownership and that employees received a profit-sharing
check each month from August 1999 through March.12 It is also
undisputed that the employees received no profit-sharing
checks after the Union won the April 3 election for the remain-
der of the time that the Respondent owned the store. The Gen-
eral Counsel alleges that the Respondent’s failure to pay any
profit sharing from April though August was discriminatorily
motivated in violation of Section 8(a)(3) and a unilateral
change in violation of Section 8(a)(5) because the Union was
ultimately certified. The Respondent counters that it continued
to apply the profit-sharing plan at the Norwalk store after the
April 3 election in the same way it had applied the plan before
the election. According to the Respondent, the only reason the
employees did not receive any shares of the store’s profits after
April 3 is that the store did not meet its neutral, preexisting
criteria for the employees to be eligible to receive profit shares.
According to the written plan descriptions contained in the
two handbooks, the Respondent will distribute 15 percent of
pretax profits on a monthly basis to regular full-time employees
“in those stores that have achieved their budgeted store contri-
bution percent (before profit sharing) on a year-to-date (TD)
basis.” Lewis testified that the store contribution percent is also
referred to as the store contribution margin. Even if a store
achieves its budgeted contribution margin, employees may not
receive the full 15 percent each month. Under the plan, 25 per-
cent of any profit-sharing pool will be deferred for those stores
that do not achieve budgeted gross sales amounts. Once it is
determined that a store has met its budget and whether any
portion will be deferred, the Respondent’s regional directors
have the discretion to temporarily defer profit sharing in stores
in their territory that they believe have other issues in addition
to the margin that need to be addressed. If a regional director
chooses not to exercise this discretion, then the regional direc-
tor will notify the store director of the amount of profit sharing
to be distributed that month. The store director then prepares a
worksheet showing how much each employee will receive out
of the total. The store director receives 20–30 percent of the
amount to be distributed, depending on the store’s average
weekly sales. The remainder is divided among full-time super-
visors and employees according to the number of “shares” each
has. The number of shares is determined by the store director
based on job performance, tenure, and department profitability.
Employees receive their profit shares, if any, 2 months in ar-

12 Under the Respondent’s plan, as described in the written materials,
profit sharing is paid to the employees 2 months in arrears. Thus, the
first checks Norwalk employees received in August 1999 were for the
store’s performance in June 1999. Lewis, the Respondent’s CFO, testi-
fied that the Respondent did not count the store’s first full month in
operation, i.e., May 1999, in order to give the new store time to adapt to
its accounting methods and reporting requirements.
rears. According to Lewis, the purpose of holding back profit
sharing for 2 months is to see the trend in the store’s perform-
ance by looking at the next month’s results.
The Respondent’s accounting department in Colorado, under
Lewis’ supervision, analyzes each store’s performance on a
monthly basis, as reflected in the monthly profit and loss state-
ments (P&L) filed by the stores. This analysis is done on a
computer using an Excel spreadsheet. These spreadsheets,
which are in evidence for the entire period that the Respondent
owned the store, were referred to at the hearing as “profit-
sharing worksheets.” The supporting P&Ls for the same period
are also in evidence. Lewis explained, in considerable detail,
where the numbers on the worksheet come from and how the
amount making up each month’s profit-sharing pool is calcu-
lated. It is undisputed that employees’ receipt of any profit
sharing is based only on their store’s performance against its
budget and not on the performance of any other stores or the
Respondent as a whole. It is Lewis who approves the payment
of profit sharing to each store after reviewing the worksheets
prepared by her staff analyst. Lewis testified that she does have
discretion to authorize profit sharing for a store even if it does
not meet the threshold criteria for eligibility, i.e., meeting or
surpassing its budgeted store contribution margin. She will
exercise this discretion if there are “unusual factors” that might
have caused the store to fall below budget, particularly if the
store trend has been improvement and it is close to budget.
Lewis testified further that, at mid-year, stores that have had
their profit sharing deferred because of a consistent failure to
meet budget have the option of wiping the slate clean and start-
ing over. Lewis referred to this option as amnesty. If a store
chooses this option, it will forego any profit sharing that has
been deferred to date, with the expectation that its performance
will be sufficient to earn a profit share for the remainder of the
year.
A review of the P&Ls and worksheets in evidence shows
that the Respondent’s Norwalk store met its budgeted store
contribution percent, or margin, each month from June 1999
through December 1999. However, even though the store
achieved its budgeted margin, 25 percent of its profit-sharing
pool was regularly deferred because it did not meet its sales
budget. Summaries of payroll records in evidence show that
supervisors and employees at the Norwalk store received a
profit-sharing check each month, in varying amounts, from
August 1999 through March. These checks were normally dis-
tributed at the end of the month. The P&Ls and worksheets also
show that the Norwalk store did not meet its budgeted contribu-
tion margin for the first time in January and that it failed to
meet the margin each month thereafter. Because the Respon-
dent pays profit-sharing bonuses two months in arrears, the first
month that employees should not have received any profit shar-
ing under the Respondent’s plan, as it is described in the hand-
books, would have been March, i.e., the month before the elec-
tion. Lewis admitted that the Respondent’s Norwalk employees
received a profit-sharing check at the end of March, even
though the store was not eligible under the Respondent's crite-
ria, because Lewis exercised her discretion to authorize a dis-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 90
tribution of the profits because of “unusual factors.”13 The un-
usual factors, according to Lewis, were the arrival of a new
store manager, Church, in January and the fact that the store
had shown a positive trend in profit sharing. Lewis testified that
when she looked at the profit-sharing worksheet for the Febru-
ary bonus to be paid in April, she saw that the Norwalk store
was still below its store contribution margin, by a larger
amount. Although Lewis had made an exception for the previ-
ous month, she decided not to make any further exceptions
because of this downward trend. As the store continued to fall
short of its budgeted margin in the succeeding months, its em-
ployees received no further profit-sharing checks.14 Although
Lewis admitted being aware of union activity at the Norwalk
store beginning in February, and conceded that the Respondent
opposed unionization of its stores, she denied that the employ-
ees’ union activity or support had anything to do with her deci-
sions regarding the application of the profit-sharing plan to the
Norwalk store.
The documentary evidence is consistent with Lewis’ testi-
mony. The monthly P&Ls for 1999 show that the Respondent
had budgeted the Norwalk store’s contribution margin at about
14 percent. Each month, the store exceeded this amount, show-
ing an actual contribution margin at or near 16 percent. For
calendar year 2000, the Respondent budgeted the store’s con-
tribution margin in the range of 16 to 17 percent. According to
Lewis, the budgets are prepared in the fall and usually finalized
by December for the next calendar year. Based on the store’s
actual performance in 1999, the 16-percent figure was not an
unreasonable projection. The store’s actual performance in
2000, however, began almost 4 percent below the budgeted
amount. The actual dollar variance for January was $40,000.
Although the store narrowed the gap in February, missing its
budget by less than half a percent and about $20,000, it took a
significant drop in March and each month thereafter. By the
time the Respondent closed on the sale in August, the store was
falling short of its budgeted contribution margin by almost
$160,000 year to date. While the Respondent concedes that the
store was “profitable” throughout its ownership, in the sense
that it was not operating at a loss, it clearly was not meeting the
requirements set forth in the profit-sharing plan documents,
which existed before the advent of any union activity.
The General Counsel, while not disputing the authenticity or
accuracy of the documentary evidence offered by the Respon-
dent, attempted to show that the Respondent’s failure to meet
its target in March and April was due to extraordinary expenses

13 The complaint does not allege that Lewis’ exercise of her discre-
tion to pay a profit-sharing bonus in March, although the employees
were not entitled to one, was discriminatorily motivated. The Respon-
dent offered evidence showing that Lewis exercised her discretion in a
similar manner several months later for a store in Santa Fe, New Mex-
ico, where there was no union activity.
14 The summary of payroll records shows that Store Director Church
and his assistant, Jack Seeno, continued to receive $1000/month, desig-
nated as profit sharing, after the other employees stopped receiving
profit-sharing checks. Lewis testified that this was pursuant to their
individual employment contracts that required the Respondent to pay
them that amount as a bonus each month. The offer letters in evidence,
which are business records, corroborate this testimony.
for professional services and travel and lodging in those
months. These months coincided with the filing of the Union’s
petition, the preelection campaign, and the Respondent’s filing
and pursuit of its postelection objections. Because the Respon-
dent probably accrued higher than anticipated expenses for
legal fees and travel after the Union filed its petition, particu-
larly during the month of March which immediately preceded
the election, it is not surprising that these items were expensed
in that period. Even had the Respondent not had such extraor-
dinary expenses associated with the union campaign, it would
still have fallen short of its budget under the profit-sharing
criteria. Thus, I find nothing suspicious in the appearance of
these expenses in those months.
The General Counsel also offered the testimony of Louis re-
garding a conversation she had with Produce Manager Sabatino
in April. According to Louis, she was at the timeclock with
Sabatino one morning after the election and asked him what
happened to the profit sharing. At first, she testified that Sa-
batino said, “[N]o profit check from the employer.” Later, after
further thought, she testified that she was at the clock when
Sabatino asked Donovan Ewart for his check. According to
Louis, Ewart went into the office, came out and handed Sa-
batino a check. Louis then asked, “[W]here’s my check?” and
was told there was nothing for her. On cross-examination, when
repeating this conversation, Louis testified that she was told
“nothing for you, only for the managers.” It is not clear from
her testimony whether it was Ewart or Sabatino who made this
statement. In her pretrial affidavit, Louis stated that she asked
Sabatino on April 29 why the employees didn’t get a profit-
sharing check and that Sabatino’s sole reply was, “there was no
profit this month.” The summary of payroll records in evidence
reveals that neither Sabatino nor Ewart received a profit-
sharing check in the months after March. As noted above, only
the store manager and his assistant received a bonus in the
months after the election based on a contractual guarantee. I do
not credit Louis’ testimony that she was told that only the man-
agers got a bonus. Her testimony regarding this conversation
was internally inconsistent and inconsistent with her affidavit.
Her recollection as shown in the affidavit she gave soon after
this event is more reliable than her confusing and unclear testi-
mony at the hearing.15
The test for determining whether the Respondent’s post-
election failure to pay a profit-sharing bonus to the Norwalk
employees violated Section 8(a)(3) is the Board’s Wright Line
test.16 Under this test, the General Counsel bears the initial
burden of proving by a preponderance of the evidence that
protected activity was a motivating factor in the Respondent’s
action. To meet this burden, the General Counsel must offer
evidence of union or other protected activity, employer knowl-
edge of this activity, and the existence of antiunion animus that
motivated the employer to take the action it did. The Board has
recognized that direct evidence of an unlawful motivation is
rarely available. The General Counsel may meet his burden
15 It is axiomatic that a witness may be believed as to some but not
all of his testimony. See Farmer Bros. Co., 303 NLRB 638, 649 (1991).
16 See Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st
Cir. 1980), cert. denied 455 U.S. 988 (1982)

WILD OATS MARKETS 91
through circumstantial evidence, such as timing and disparate
treatment, from which an unlawful motive may be inferred. If
the General Counsel meets his burden, then the burden shifts to
the Respondent to prove, by a preponderance of the evidence,
that it would have taken the same action, or made the same
decision, even in the absence of protected activity. Naomi Knit-
ting Plant, 328 NLRB 1279 (1999), and cases cited therein.
There is no question that the Respondent, and in particular its
CFO Lewis, were aware of the employees’ support for the Un-
ion when it ceased paying a profit-sharing bonus to employees
at the Norwalk store. By the time Lewis was reviewing the
profit-sharing worksheet that would determine whether a bonus
would be paid at the end of April, the Union had already won
the election. The independent violations of Section 8(a)(1)
committed by Abbas and Gilliland, as found above, establish
the existence of antiunion animus. In addition, the Respon-
dent’s admitted policy of opposing union representation among
its employees, although lawful, is further evidence of animus.
See Meritor Automotive, Inc., 328 NLRB 813 (1999); Cla-Val
Co., 312 NLRB 1050 fn. 3 (1993). The timing and circum-
stances surrounding the Respondent’s actions would support an
inference of unlawful motivation. It is an established fact that
the employees received some profit sharing every month from
the time they were first eligible until they voted for the Union.
The first time they failed to receive a share of the store’s profits
was the first month after the union vote. Moreover, Lewis ad-
mitted “overruling” the profit-sharing rules and authorizing
payment of a bonus to the Norwalk employees, even though the
accounting documents showed they were not eligible for one, in
the month immediately before the election when the Respon-
dent was campaigning for its employees to vote against the
Union. The campaign literature in evidence touts the profit-
sharing plan as one of the benefits already provided by the Re-
spondent without a union. I find, based on this evidence, that
the General Counsel has met his initial burden of proving that
the employees’ support for the Union was a motivating factor
in the Respondent’s action in failing to pay any profit sharing to
the unit employees after the election.
The evidence offered by the Respondent, however, was suf-
ficient to meet its burden of proving that no profit sharing
would have been distributed to the Norwalk employees from
April through the sale of the store in August even if there were
no union activity. The numbers in the P&L statements do not
lie. It is clear that the Norwalk store did not meet the criteria to
be eligible to receive profit sharing under the nondiscriminatory
guidelines contained in the staff and compensation handbooks
which predated any union activity. Although Lewis had the
discretion to override these guidelines and authorize profit shar-
ing when a store did not meet the criteria, and she had in fact
exercised this discretion in order to pay a bonus to the employ-
ees just before the election, I credit her testimony that she was
not motivated by any union activity when she decided not to
exercise this discretion in the following months. As noted
above, the P&Ls show a steady decline in the performance of
the Norwalk store with respect to its contribution to profits
beginning in January. Just because Lewis decided to overlook
this the first time it happened does not mean she had to keep
paying a profit-sharing bonus each month as the store’s per-
formance declined. The employees’ vote for the Union did not
entitle them to receive a profit-sharing check when the store
failed to meet its plan. Because the Respondent’s actions were
consistent with its profit-sharing plan, I find that it would have
taken the same action even absent union activity. Accordingly,
I shall recommend dismissal of the 8(a)(3) allegation of the
complaint.
I find further that the Respondent did not unilaterally change
any term or condition of employment for the Norwalk employ-
ees when it failed to pay a profit-sharing bonus after a majority
of the employees had voted for the Union. The Respondent
continued to apply the criteria of its preexisting, corporatewide
profit-sharing plan to determine whether any bonus should be
paid. The failure to pay a bonus was not a change, but in fact
was consistent with the plan. Accordingly, I shall recommend
dismissal of the Section 8(a)(5) allegation of the complaint as
well.
CONCLUSIONS OF LAW
1. The Respondent, on or about March 31, 2000, through its
CEO Michael Gilliland, violated Section 8(a)(1) of the Act by
implicitly promising its employees improved wages and bene-
fits if they rejected union representation through solicitation of
their complaints and grievances.
2. The Respondent, through its supervisor and agent, Ahmed
Abbas, violated Section 8(a)(1) of the Act, during the months
of February, March, and April 2000, by harassing employees
because of their support for the Union, interrogating employees
regarding the union activities and sympathies of other employ-
ees, by creating the impression among employees that their
protected activities were under surveillance, by threatening
employees with reduced hours or the sale and closure of the
store, and by promising employees benefits if they voted
against union representation.
3. By engaging in the conduct described above, the Respon-
dent has committed unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not violate Section 8(a)(1) through
any statements made by Gregory Seymoure during meetings
with employees in February 2000.
5. The Respondent did not violate Section 8(a)(1), (3), or (5)
through its failure to pay profit-sharing bonuses to employees at
its Norwalk store after they voted in favor of representation by
the Union.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Because the Respondent has sold the
Norwalk store, I shall recommend that it be required to mail a
copy of the notice to each employee who was employed at the
Norwalk store at any time between February 21, 2000, when
the first unfair labor practice was committed, and August 7,
2000, the date it completed the sale of the store to Grange In-
vestments.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, Wild Oats Markets, Inc., Norwalk, Con-
necticut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Harassing employees by making derisive comments
about their union activities or support.
(b) Coercively interrogating any employee about the union
support or union activities of other employees.
(c) Creating the impression among employees that their un-
ion activities were under surveillance.
(d) Threatening employees with reduced hours, sale or clo-
sure of the store if they voted for representation by Local 371,
United Food and Commercial Workers International Union,
AFL–CIO, or any other union.
(e) Promising employees benefits, either directly or implic-
itly through the solicitation of their complaints and grievances,
if they vote against representation by the Union.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, mail a copy
of the attached notice marked “Appendix”18 to all full-time and
regular part-time employees who were employed at the Re-
spondent’s store in Norwalk, Connecticut, excluding office
clerical employees and guards, professional employees, and
supervisors as defined in the Act, at any time from the onset of
the unfair labor practices found in this case until the sale of the
Norwalk store to Grange Investments. The notice shall be
mailed to the last known address of each of the employees after
being signed by the Respondent’s authorized representative.

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
18 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 Federal labor law and has ordered us to post and obey this
notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT harass you by making derisive comments about
your activities or support for Local 371, United Food and
Commercial Workers International Union, AFL–CIO, or any
other union.
WE WILL NOT coercively question you about the union sup-
port or activities of your fellow employees.
WE WILL NOT make statements that create the impression that
your union activities are under surveillance.
WE WILL NOT threaten you with reduced hours, or the sale or
closure of the store if you vote for union representation.
WE WILL NOT promise you benefits, either directly or implic-
itly through the solicitation of your complaints and grievances,
if you vote against union representation.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

WILD OATS MARKETS, INC.