Woodland Supermarket

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 295 (N.L.R.B. 1979)

WOODLAND SUPERMARKET 295
William Dong, an Individual Proprietorship, d/b/a
Woodland Supermarket and Retail Clerks Union,
Local No. 727, chartered by and affiliated with Re-
tail Clerks International Association, AFL-CIO,
CLC Cases 28-CA-4384, 28-CA-4478, and 28-
CA-4484
January 26, 1979
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS PENELLO MURPHY. AND TRUESDALE
On September 1, 1978, the National Labor Rela-
tions board issued a Decision and Order' in the
above-entitled proceeding wherein it found that Re-
spondent had engaged in and was engaging in certain
unfair labor practices within the meaning of Section
8(a)(l), (3), and (5) of the National Labor Relations
Act, as amended, and ordered that Respondent cease
and desist therefrom and take certain affirmative ac-
tion to remedy such unfair labor practices. In its De-
cision, the Board concluded, inter alia, that Respon-
dent's offers of reinstatement to three unlawfully
discharged employees and to five discriminatees who
were unfair labor practice strikers did not constitute
valid offers because they were conditioned upon ac-
ceptance and return within an unreasonably short
period of time. In so doing, the Board found that
Respondent had sent these employees Western
Union mailgrams, dated October 5, 1977, which indi-
cated that if they wished to return to their jobs they
should report to Respondent on or before October 7,
1977. Accordingly, as part of its Order, the Board
required Respondent to offer reinstatement to the
dischargees and the discriminatees who were unfair
labor practice strikers and to pay backpay to them
until such time as they were reinstated or Respon-
dent made valid offers of reinstatement to them.
On September 25, 1978, Respondent filed its peti-
tion for reconsideration wherein it contends that the
Board erred in concluding that the offers of rein-
statement herein were invalid. In this regard, Re-
spondent asserts that the October 5 mailgrams upon
which the Board relied were confirmation copies sent
to its attorney of telegraphic offers of reinstatement
previously sent to the affected employees on Septem-
ber 29, 1977, and that therefore such employees in
fact had 8 days in which to respond to its offers of
reinstatement. Respondent thus urges that the offers
of reinstatement were valid and that no further offers
of reinstatement are required. On October 10, 1978,
the General Counsel filed his response to the petition
1237 NLRB 1481
240 NLRB No. 27
for reconsideration, wherein he fully concurs in the
factual statements set forth by Respondent that the
telegraphic offers were sent to the affected employees
on September 29, 1977. The General Counsel re-
quests the Board to grant Respondent's petition for
reconsideration and to find that Respondent's back-
pay liability to the eight employees was tolled as of
September 29, 1977. The Charging Party did not file
a response to the petition for reconsideration.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reconsidered the record and its
original Decision and Order in light of Respondent's
petition for reconsideration and the General
Counsel's response thereto, and has decided to grant
Respondent's petition. Thus, we find that in the
Board's original Decision the Board inadvertently
but erroneously concluded that Respondent sent of-
fers of reinstatement by Western Union mailgrams
dated October 5, 1977, to the eight discriminatees
herein, and that a careful reexamination of the rec-
ord demonstrates that Respondent sent telegraphic
offers of reinstatement to such employees on Septem-
ber 29, 1977. Accordingly, we now find that valid
offers of reinstatement were tendered by Respondent
on September 29, 1977. We shall, therefore, modify
our original Order in this proceeding.
ORDER
It is hereby ordered that Respondent's petition for
reconsideration be, and it hereby is, granted.
IT IS FURTHER ORDERED that the Board's original
Decision and Order in this proceeding be, and it
hereby is, amended as follows:
1. Substitute the following for paragraph 2(a) of
the Order:
"(a) Make whole Eileen Kelly, Charles Helms,
and Diana Nolan for any losses they may have suf-
fered as a result of Respondent's discrimination
against them from the date of their discharges until
the date of Respondent's valid offer of reinstatement
on September 29, 1977. Backpay is to be computed in
the manner prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest thereon as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).'"
2. Substitute the following for paragraph 2(c) of
the Order:
"(c) Make whole Greg Haig, Craig Snively, Mar-
cia Tavolino, Dean Christianson, and William White
for any losses they may have suffered with backpay
for the period from July 28, 1977, when they uncon-
WOODLAND SUPERMARKET
.. t ........ .......... As.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditionally applied for reinstatement, until September
29, 1977, when Respondent made valid offers of rein-
statement to each of them, in the same manner as set
forth in paragraph 2(a), supra."
3. Substitute the attached notice for the notice at-
tached to the original Decision and Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, it has been found that we
violated the National Labor Relations Act, and we
have been ordered to post this notice and to abide by
the following:
The Act gives employees the following rights:
To organize themselves.
To form, join, or help unions.
To bargain as a group through representa-
tives they choose.
To act together for collective bargaining or
other mutual aid or protection.
To refuse to do any or all these things.
I WILL NOT interrogate employees concerning
their membership in, activities on behalf of, or
sympathy for the Union.
I WILL NOT threaten employees with layoff or
more arduous terms and conditions of employ-
ment if the employees join, support, or assist the
Union.
I WILL NOT solicit employees to revoke their
union authorization cards or require any em-
ployee to sign a document agreeing to refrain
from designating the Union as the employees'
collective-bargaining representative.
I WILL NOT promise employees positions in
management if they withdraw their support
from the Union.
I WILL NOT advise unfair labor practice strikers
that they will never again work in the store.
I WILL NOT lay off, discharge, or refuse to rein-
state employees because of their union member-
ship or other protected concerted activities.
I WILL NOT refuse to recognize and bargain
with the Union as the exclusive representative of
all the employees in the appropriate unit and I
WILL NOT unilaterally establish and post new
store work rules and regulations without con-
sulting the Union.
I WILL NOT in any other manner discourage
membership in a labor organization or interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them by Section 7 of
the Act.
I WILL make whole Eileen Kelly, Charles
Helms, and Diana Nolan for any losses they
may have suffered as a result of my discrimina-
tion against them from the date of their dis-
charges until the date of my valid offer of rein-
statement on September 29, 1977, with interest.
I WILL make whole Craig Snively for the wages
he lost from May 29 to June 10, 1977, with inter-
est.
I WILL make whole Greg Haig, Craig Snively,
Marcia Tavolino, Dean Christianson, and Wil-
liam White for any losses they may have suf-
fered with backpay for the period from July 28,
1977, when they unconditionally applied for re-
instatement, until September 29, 1977, with in-
terest.
I WILL, upon request, bargain collectively with
the above-named Union, as the exclusive repre-
sentative of all employees in the appropriate
bargaining unit described below, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an under-
standing is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All full-time and regular part-time grocery
employees, produce employees and cashiers
employed at Woodland Supermarket located
at 2480 North Pantano Road, Tucson, Arizo-
na; excluding all meat department employees,
casual employees, guards and supervisors as
defined in the Act.
I WILL rescind the store work rules and regula-
tions unilaterally established and posted in Oc-
tober 1977 without prior notice to or consulta-
tion with the Union.
WILLIAM DONG, AN INDIVIDUAL PROPRIETOR-
SHIP, d/b/a WOODLAND SUPERMARKET