Clinton Food 4 Less

National Labor Relations Board - Board Decisions

Apr 22, 1988

288 N.L.R.B. 597 (N.L.R.B. 1988)

CLINTON FOOD 4 LESS 597
Co-Jo, Inc. d/b/a Clinton Food 4 Less and United
Food and Commercial Workers Local No. 576,
AFL-CIO and CLC and Linda Brooks. Cases
17-CA-12951, 17-CA-12961, 17-CA-13001,
and 17-CA-13113-1
April 22, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 11, 1987, Administrative Law
Judge Elbert D. Gadsden issued the attached deci-
sion. The General Counsel and the Respondent
filed exceptions and supporting briefs, and the Gen-
eral Counsel filed a brief in opposition to the Re-
spondent's exceptions.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 2 and
conclusions to the extent consistent with this deci-
sion and to adopt the recommended Order.3
The Respondent has excepted, inter alia, to the
judge's finding (at sec. III,M, of his decision) that
the Respondent violated the Act by asking employ-
ee Linda Brooks "what [she] was wanting" with
respect to the negotiations between the Respondent
and the Union. The General Counsel has not op-
posed this exception in his answering brief.
It is undisputed that this question was directed to
an open and active union adherent; indeed, Brooks
was a member of the Union's negotiating commit-
tee. Accordingly, we shall dismiss this allegation of
the complaint. Rossmore House, 269 NLRB 1176
(1984).4
The Respondent has also excepted to the judge's order granting the
Charging Party's motion to quash subpoena duces tecum and have re-
turned to it subpoened records For the reasons set forth in the judge's
recommended Order granting this motion, we affirm the judge's ruling.
2 The General Counsel and the Respondent excepted to some of the
judge's credibility findings. The Board's established policy is not to over-
rule an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951) We have carefully examined the record and find no
basis for reversing the findings.
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
4 Member Cracraft finds it unnecessary to consider whether the Re-
spondent violated Sec 8(a)(1) by mterrogatmg Brooks as any violation
that might be found would be cumulative.
We agree with the judge that the Respondent
discharged employee Linda Brooks on August 23,
1986, 5 in violation of Section 8(a)(3) and (4) of the
Act. We conclude that the reason the Respondent
offered for the discharge—discourtesy to custom-
ers—was a pretext for getting rid of Brooks be-
cause of her union activity and testimony in this
proceeding.
Brooks had been employed by the Respondent
for about 11 years. She had served as head check-
er, had been given banking responsibilities and
access to the company computers, and had partici-
pated in writing and enforcing company courtesy
policies. The Respondent had recognized her per-
formance by selecting her to attend a club meeting
and by giving her bonuses and a trip.
Brooks was a leading union adherent and a
member of the Union's negotiating committee. She
regularly participated in, the Union's picketing and
handbilling, which began April 24 after the Re-
spondent withdrew recognition from the Union.
On April 21, the Respondent questioned Brooks
about her union interests and, on April 25, unlaw-
fully changed her work assignments and those of
some other employees.
In April and May two customers, Mildred May-
field and Pamela Corum, separately complained to
management that Brooks had been rude to them,
and the Respondent disciplined Broolcs. 6 At the
hearing in this case in August, customer Mayfield
testified that Brooks had been courteous to her
since the April complaint; customer Comm testi-
fied that Brooks had again been rude to her on the
day she testified, August 21.7
On August 23, the Respondent called Brooks to
the office shortly before her shift was to end and
gave her a written notice which stated she was ter-
minated because she had been disciplined previous-
ly for rudeness to customers and a customer had
testified that she had been rude again.
In rejecting discourtesy to customers as the Re-
spondent's real reason for discharging Brooks, we
have considered the circumstances of the discharge
against the background of Brooks' longterm satis-
factory employment and the Respondent's union
5 All dates refer to 1986.
6 We adopt the Judge's finding that the Respondent did not act unlaw-
fully in imposing the discipline. However, we do not agree with our dis-
senting colleague that Brooks exhibited a "pattern" of inappropriate be-
havior for which she was disciplined.
7 Commu testified that the mcident of rudeness occurred on the same
afternoon that she testified. As Corum would have had little opportunity
to report the matter to the Respondent before testifying, we do not adopt
the judge's speculation that it is probable Comm would have reported
the incident to management if it had occurred. We also disavow his con-
clusion that Brooks would not have repeated discourteous behavior
toward a customer who had already reported her to management, for the
record shows that Brooks did not know who had complained about her.
288 NLRB No. 80
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
animus and extensive unfair labor practices. The
Respondent's manager unexpectedly presented
Brooks with written notice of termination without
questioning her earlier or at the time about wheth-
er she had in fact been rude to customer Corum,8
and without obtaining her version of the matter.
An employer's failure to adequately investigate an
employee's alleged misconduct has been found to
be an indication of discriminatory intent, and we
consider the Respondent's failure to investigate
Corum's complaint as an important factor in deter-
mining the reason it discharged Brooks. See W. W
Grainger, Inc. v. NLRB, 582 F.2d 1118 (7th Cir.
1978); Kidde, Inc., 284 NLRB 78 (1987); Firestone
Textile Co„ 203 NLRB 89, 95 (1973). It is signifi-
cant, too, that the Respondent accepted without in-
quiry Corum's testimony that Brooks had been
rude while apparently ignoring Mayfield's testimo-
ny that Brooks had not been discourteous since
April. Furthermore, as the judge points out, at the
hearing the Respondent probed into remote events
that were satisfactorily resolved at the time to
show unsatisfactory conduct by Brooks. This
action of the Respondent also reflects on the genu-
ineness of the reasons it offers for the discharge.
See Goren Printing Co., 284 NLRB 30 (1987). In
the circumstances, we believe that the Respond-
ent's seizing on Corum's assertions about Brooks,
without any attempt to verify what happened or to
obtain Brooks' account of the incident, warrants
the inference that the Respondent utilized Corum's
allegations as a pretext to discharge an avowed
union adherent.8
8 The judge discredited Corum's testimony that Brooks was rude to
her in August.
9 On March 9, 1988, the General Counsel filed a "Motion to Withdraw
Cross-Exception to the Administrative Law Judge's Decision, Sever
Cases, and Remand Case." In this motion, the General Counsel noted
that Charging Party Linda Brooks had signed a settlement agreement
with the Respondent embracing "all aspects" of her "employment" be-
tween specified dates A copy of the settlement was attached. The Gen-
eral Counsel requested that the Board accept withdrawal of the General
Counsel's cross-exception, and sever and remand Case 17-CA-13113-1
(which pertains to Brooks) for further processing by the Regional Direc-
tor in light of the settlement. Also on March 9, 1988, the Respondent
filed a Motion for Withdrawal of Exceptions. In this motion, the Re-
spondent, citing the settlement agreement, moves the Board to allow the
withdrawal of its exceptions pertaining to Brooks and to dismiss the pro-
ceeding relating to her.
The parties' motions were received at a time when the case was near-
ing the end of the decisional process. In these circumstances, the Board
believes that the settlement question is more appropriately considered at
the compliance stage of this proceeding and, therefore, denies the mo-
tions to withdraw exceptions, sever, and remand. See Independent Stave
Co., 287 NLRB 740 (1987).
Contrary to our dissenting colleague, we do not consider that we are
retreating from the principles of Independent Stave in taking this position.
It is true that the Board will no longer automatically reject a settlement
simply because it does not fully remedy the violation alleged, but the
Board did not abandon all consideration of the reasonableness of any
backpay settlement offered. Because there is insufficient information to
know what employment claims besides Brooks' unfair labor practice alle-
gations are included in the general release proffered as a settlement (and
what the approximate value of any other such claims might be), we
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Co-Jo, Inc.
d/b/a Clinton Food 4 Less, Clinton, Missouri, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
MEMBER JOHANSEN, dissenting in part.
I agree with my colleagues except as to Brooks'
discharge and settlement. The judge found that the
Respondent was justified in first warning Brooks,
and then suspending her, for being rude to custom-
ers. One of those customers, Pamela Corum, testi-
fied late in the afternoon of August 21 that at just
about 4 p.m. that same day, Brooks had again been
rude to her in a manner similar to Brooks' discour-
teous behavior toward Corum on previous occa-
sions. In response to the judge's questions, Corum
detailed Brooks' behavior, but the General Counsel
did not seek to recall Brooks either that day or the
next to rebut Corum's testimony. The evening after
Corum testified (after the hearing closed), Store
Manager Gish wrote a discharge memorandum re-
garding Brooks, which cited the prior discipline
imposed on her and stated that the day before,
Corum had testified under oath that Brooks had
"continued to be rude to her [Corum], and specifi-
cally identified an incident on August 21st." The
next day, Gish called Brooks into his office, read
her the memo, and discharged her. According to
Brooks, she asked Gish if that was the reason and,
after he said yes, she asked if she could have her
paycheck.
The judge discredited Comm and credited
Brooks. He did so in large part because he did not
believe Brooks would have repeated her rudeness
to a customer who already complained about it and
because Corum had not told the Respondent of
Brooks' latest rudeness. 1 The majority properly re-
jects the judge's faulty analysis of these points.2
The majority, however, does not disavow the
judge's rather unusual (and fallacious) reasoning
that Brooks and not Comm was telling the truth
because the Respondent's antiunion animus and
cannot know "whether the settlement is reasonable in light of the nature
of the violations alleged, the risks inherent in litigation, and the stage of
the litigation." Independent Stave, supra, slip op. at 11. As indicated, the
General Counsel is free to consider the appropriateness of the settlement
in the compliance stage in light of the principles set out in independent
Stave.
I note, however, that the judge also had earlier specifically discredit-
ed Brooks' denial that she had been rude to customers.
2 I also reject the judge's reliance on his speculation that "A person
with meager intelligence would not have indulged in such repetition
CLINTON FOOD 4 LESS 599
pervasive unfair labor practices were sufficient for
him to infer a discriminatory motive.
The issue, however, is not whether the judge ul-
timately believed all Corum's testimony. Rather,
the question is whether the Respondent, in light of
Brooks' exhibiting a pattern of inappropriate be-
havior, for which she had already been disci-
plined,5 was entitled to rely on unrebutted sworn
testimony by a facially disinterested witness in a
Board proceeding, to the effect that that behavior
was continuing. The answer must be "yes."
I emphasize that this is a narrow conclusion, on
the facts in this case. But I do not believe that the
Board can insist that an employer ignore unrebut-
ted, sworn testimony that an employee has contin-
ued a course of conduct that has already resulted
in a lawful warning and suspension. I therefore dis-
sent from my colleagues' contrary conclusion.
On March 9, 1988, the Respondent and the Gen-
eral Counsel filed motions to withdraw their re-
spective exceptions on the allegations concerning
Brooks. Thus, the General Counsel's motion states
that a private settlement agreement executed by
Brooks (the Charging Party in Case 17-CA-13113-
1) "embraces all aspects" of her employment, in-
cluding the discipline and her discharge at issue in
the case. The General Counsel noted that Brooks
had been reinstated by the Respondent on March
18, 1987, as a checker, with the same hours and
rate of pay she enjoyed at the time of her dis-
charge, and that she worked continuously for the
R.esponclent from that date until the Respondent
sold the store to new owners on January 18, 1988.
The General Counsel therefore moved that the
Board permit withdrawal of exceptions, sever
Brooks' case, and remand it to the Regional Direc-
tor to dismiss the charge (or permit its withdrawal)
based on this settlement agreement. The majority
at footnote 9, supra, refuse to grant the General
Counsel's motion. I cannot agree with their denial.
Thus, unlike my colleagues, and notwithstanding
the fact that I would dismiss the allegations con-
cerning Brooks' discharge on the merits, I would
grant the unopposed motions for withdrawal and
dismissal, based on the parties settlement. I see no
viable reason for declining to do so, and my col-
3 In addition to the judge's findings, the conclusion that Brooks' be-
havior became a pattern is also supported by testimony of Karen
Roskop—formerly a checker, and an original member of the Union's bar-
geinmg committee. Roskop's testimony, though not alluded to by the
judge, was not controverted. Roskop testified that Brooks' attitude
changed within the first week after the picketing started, and that she
(R.oskop) observed an immediate change in the way Brooks performed
her duties: "She was checking people out, but . . . she would never be
nice to them. She would throw the groceries down . . . . She would let
people wait in the check stand if she was around." Roskop also testified
that "[P]eople came in and complained" to her about Brooks; "They said
she was being rude to them, smashing the bread." The General Counsel
did not recall Brooks to rebut this testimony. -
leagues in my view have advanced none. Indeed, I
believe a denial of the motions here is incompatible
with the principles enunciated in the Board's
recent, and unanimous, decision in Independent
Stave Co.4 The settlement itself5 states unequivo-
cally that it "fully satisfies and solves any and all
claims for potential liability" concerning Brooks'
employment with the Respondent, and that it "fur-
ther satisfies any and all claims for backpay and in-
terest due and owing as a result of her discharge,"
and "completely resolves any dispute between
[Brooks and the Respondent] regarding her em-
ployment relationship." This language, together
with the motions, leaves no doubt that the parties
not only consider the settlement appropriate, but
also desire dismissal of Brooks' case on that
ground. I see no useful purpose to be served in de-
nying their requests. Assuming that Brooks' and
the General Counsel's position would eventually be
upheld—not only by the judge and the Board—but
also by a court of appeals, the only substantive
question remaining would be the appropriate
amount of backpay, if any, due to Brooks. But reli-
ance on that factor was rejected by the Board in
Independent Stave's overruling of Clear Haven
Nursing Home.6
In any event, speculation regarding any amount
of backpay that might be due here would not be an
appropriate consideration in deciding whether to
grant these unopposed motions. Here the Charging
Party/Individual discritninatee and the Respondent
have clearly agreed to be bound, the General
Counsel has obviously deemed the settlement rea-
sonable in light of all the circumstances, there is no
suggestion of fraud, coercion, or duress, nor any
indication that the Respondent has breached any
previous agreements, or engaged in a history of
violations of the Act.
In these circumstances, it seems to me that the
majority's action seriously undermines the viability
of Independent Stave. Accordingly, I dissent.
4 287 NLRB 740 (1987)
5 Copies of the settlement (which provides for a substantial cash
amount) signed by Brooks, and marked "Received" by the Respondent's
owner, with the date, were attached to both the Respondent's and the
General Counsel's motion.
6 236 NLRB 853 (1978).
Stephen E. Wamser, Esq., for the General Counsel.
William C. Nulton, Esq. (Shughart, Thomson & Kilroy), of
Kansas City, Missouri, for the Respondent.
Jerome F. X. Waterman, Esq., of Kansas City, Missouri,
for the Charging Party.
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On
unfair labor practice charges filed on 23 April and 5 May
1986, by United Food and Commercial Workers Local
No. 576, AFL-CIO and CLC (the Union or the Charg-
ing Party), against Co-Jo, Inc. d/b/a Clinton Food 4
Less (the Respondent), an order consolidating cases, con-
solidated complaint and notice of hearing was issued by
the Regional Director for Region 17, on behalf of the
General Counsel on 6 June 1986.
In substance the consolidated complaint alleged that
Respondent in various ways interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed by Section 7, including canceling negotiating
sessions scheduled for 11 April 1986 and withdrawing
recognition of the Union as the exclusive collective-bar-
gaining representative of employees on 8 April 1986, in
violation of Section 8(a)(1) of the Act; that the Respond-
ent discriminated against its employees by altering their
work duties and threatening them with disciplinary
"write-ups" because they joined, supported, or assisted
the Union and engaged in protected concerted activities
on behalf of themselves, and to discourage them from en-
gaging in such activity, in violation of Section 8(a)(3) of
the Act; and that Respondent failed and refused to bar-
gain in good faith with the Union, by failing and refusing
to furnish necessary information requested by the Union,
failing to timely submit a contract proposal to the Union,
refusing to meet with the Union at reasonable times and
places for the purpose of collective bargaining, and by
bargaining with a fixed mind or position not to reach an
agreement with the Union, in violation of Section 8(aX1)
and (5) of the Act.
The Respondent filed an answer to the consolidated
complaint on 17 June 1986 denying that it has engaged in
any unfair labor practices as set forth in the consolidated
complaint.
A hearing in the above matter was held before me in
Clinton, Missouri, on 18-22 August 1986. Briefs have
been received from counsel for the General Counsel,
counsel for the Charging Party, and counsel for the Re-
spondent, respectively, which have been carefully con-
sidered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation with
an office and place of business located at 1405 East Ohio
Street, Clinton, Missouri, has been engaged in the oper-
ation of a retail grocery store (the store or facility).
In the course and conduct of its grocery business oper-
ations during the 12-month period ending 30 April 1986,
Respondent purchased and received at its Clinton, Mis-
souri store products, goods, and materials valued in
excess of $50,000 directly from points located outside the
State of Missouri.
Also, in the course and conduct of its business oper-
ations during the same period, Respondent derived gross
revenues in excess of $500,000.
The complaint alleges, the answer admits, and I find,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find,
that United Food and Commercial Workers Local No.
576, AFL-CIO and CLC (the Union) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Joe Balentine is the owner of Respondent's grocery
store and Bill Gish is store manager. The Respondent
does not deny but acknowledges that at all times materi-
al, the following named persons who have occupied the
positions set forth opposite their names, on or about 23
April 1986, are agents of Respondent within the meaning
of Section 2(13) of the Act: Joe Balentine—owner and
Bill Gish—store manager.
The Respondent admits that the following employees
of Respondent constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full-time and regular part-time employees em-
ployed by Respondent at Respondent's facility in
the handling or selling of merchandise or perform-
ing other services instrumental thereto except
bakery department employees, meat department em-
ployees, office clericals, guards and supervisors as
defined in the Act.
Although Respondent denied in its answer that the
Union is and has been the exclusive collective-bargaining
representative of the employees in the above-described
unit, the settlement agreement (G.C. Exh 3) clearly es-
tablishes that on 9 September 1985, Respondent agreed
that, on the Union's withdrawal of the representative
Case 17-RC-9749, and the unfair labor practice charges
in Case 17-CA-12680, Respondent would recognize the
Union as the exclusive collective-bargaining representa-
tive of the employees in the following unit:
All full-time and regular part-time employees em-
ployed by Respondent at Respondent's facility in
the handling or selling of merchandise or perform-
ing other services instrumental thereto except
bakery department emplOyees, meat department em-
ployees, office clericals, supervisors and guards as
defmed in the Act.
Respondent admits that at all times material, Joe Ba-
lentine, owner, and Bill Gish, store manager, are supervi-
sors within the meaning of Section 2(11) of the Act, and
agents of Respondent within the meaning of Section
2(13) of the Act.
CLINTON FOOD 4 LESS

601
Subsequent to some preliminary correspondence, Re-
spondent and the union representatives met in negotia-
tion sessions on 14 October and 4 December 1985, and
on 18 February, 25 March, and 3 April 1986. During a
telephone conversation about 7 April 1986, Respondent's
negotiator, Richard Noble, informed the Union's repre-
sentative, Michael Constanza, that based on a disaffection
petition of employees dated 2 April 1986, Respondent
was withdrawing recognition of the Union. In a letter
dated 11 April 1986 from Noble to Constanza, Respond-
ent confirmed its withdrawal of recognition.'
B. Respondent Failed to Timely Submit Contract
Proposals
The complaint alleges and the General Counsel argues
that Respondent failed to timely submit contract propos-
als to the Union. A composite of the essentially undis-
puted evidence is as follows:
In a letter to Respondent dated 18 September 1985
(G.C. Exh. 4), the Union requested Respondent to fur-
nish it with dates and times to begin contract negotia-
tions. The Union also stated that it was necessary that it
have a complete list of all employees' first and last
names, dates of their hire, present hourly rate of pay, in-
formation on any benefits given employees, such as vaca-
tion, insurance, retirement, and paid holidays, before ne-
gotiations commenced. In a written communication
dated September 1985, Respondent furnished some of the
information requested by the Union. Among items of re-
quested information not furnished by the Respondent
were information on Randy Stewart and Todd Jones,
and dates and times for negotiation sessions.
In a letter dated 8 October 1985, the Union informed
Respondent about the specific information Respondent
did not furnish and, additionally, requested information
on the Company's dental insurance plan, Sunday over-
time, and bonuses. It also informed Respondent the
Union would submit grievances at the negotiation session
scheduled for 14 October 1985. The Union did not re-
ceive a written response to its 8 October letter to Re-.
spondent.
The parties first met in bargaining sessions on 14 Octo-
ber 1985, at which time the Union presented Respondent
a contract proposal. Respondent did not submit a con-
tract proposal at that time but its negotiator, Richard
Noble, advised the Union that it would have a contract
proposal at the next negotiation session secheduled for 4
December 1985. When the parties met on 4 December,
Noble informed the Union he was unable to present a
contract proposal because his law offices had moved
during the Thanksgiving weekend, office records were
still packed in boxes, and the office not completely orga-
nized. Consequently, he said he could not find Respond-
ent's unfinished contract proposal. He suggested cancel-
ing the meeting but Union Representative Constanza re-
jected the idea, and the parties remained in Noble's new
offices and talked about employee grievances. Respond-
ent made no response to the Union's 14 October contract
proposal during this meeting, but expressed the following
general concepts about what Respondent wanted its con-
The facts set forth above are not m conflict in the record.
tract proposal to contain: A profit-sharing plan, without
Respondent specifying the minimum contribution level,
and a health insurance plan without specific details. No
wage increase was proposed for any employees, and
Noble did not agree with the Union's proposed insurance
coverage.
The Union (Constanza) was demanding resolution of
the economic factors. Noble promised to get the Re-
spondent's proposed contract to the Union soon and
Constanza called Noble about the contract proposal on
several occasions subsequent to the 4 December 1985
meeting. Noble told him he had not had the time to get
with Balentine, but that he would. Finally, Noble agreed
to have Respondent's proposal on 3 January 1986, and
Constanza went to his office to get it but there was no
proposal. Noble then told Constanza he would have it 10
January 1986. He asked Constanza for the 20/10 health
insurance plan and Constanza said he would get it to
him Noble, however did not receive the health insur-
ance plan until 25 March 1986.
After revising Respondent's contract proposal, Noble
presented the proposal to the Union (Constanza) on 10
January 1986. Respondent's proposal did not contain any
specific wage increase for any of its employees but,
rather, promised periodic review and evaluation of em-
ployees' performance. Constanza spent considerable time
talking about the union campaign for the election of offi-
cers, and a runoff campaign between himself and one
Cindy Nance. Noble acknowledged there was no agree-
ment on the extent of coverage of the Union's health in-
surance plan. Although he proposed a profit-sharing
plan, it was without any specifics on minimum contribu-
tion levels. The proposal did not contain any specifics on
care coverage, profit sharing, or wage increases. Under
these circumstances the Union said it had nothing of sub-
stance to take back to the employees. Constanza contin-
ued to request that the parties resolve the economic fac-
tors first.
The Union (Constanza) and the Respondent (Noble
and Store Manager Bill Gish) met for negotiations on 18
February 1986. They discussed Respondent's proposal
but no information was furnished on the health and wel-
fare plan or on hours worked by Randy Stewart and
Todd Jones. The parties tried to agree on a wage in-
crease, but Gish said he was planning to draw up a
profit-sharing plan, but it was not ready at this time. The
parties did not agree on any economic proposals. Gish
informed Constanza that he would like to promote Keith
Dalton to a comanager, and Constanza said, Dalton is
nothing but a "piss ant stocker" and he will always be a
"piss ant stocker." Constanza denied he made such a
statement, but I was persuaded by his demeanor and the
frustrations he demonstrated he was experiencing from
his lack of success in trying to negotiate a contract with
Respondent, that he did make the statement. The parties
discussed reducing the insurance age from 21 to 19 to
pick up the young employees. Respondent insisted that
Jones and Stewart were not in the unit.
At the 25 March negotiating session, Constanza
brought a copy of the Union's 20-10 CD health and wel-
fare plan (G.C. Exh. 11) and presented it to Noble. Al-
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
though they discussed health and welfare insurance, the
dispute on Randy Stewart and Todd Jones continued,
and they had a problem about Randy Carroll, who had
always worked 40 hours but whose work hours were re-
duced below 40. Constanza asked Gish why, and Gish
said the work in produce had declined from $5000 to
$4000. Carroll disputed this estimation, and telephonic
clarification with Balentine established that the store's
produce had not declined and was still at $5000. Con-
stanza reminded Noble that he had still not furnished the
Union with a copy of the Company's proposal on profit
sharing, as he had previously promised. Noble promised
to have both the insurance and profit-sharing plans at the
next bargaining session. Respondent made no proposal
but insisted on the next meeting being held in Kansas
City as opposed to Clinton, Missouri, as the Union had
requested. They agreed to meet 3 April 1986 in Noble's
office in Kansas City.
When the parties met at the 3 April 1986 bargaining
session, the Respondent (Noble) for the first time offered
a proposal for a contract for 1 year, a wage proposal of
25 cents per hour across-the-board for all employees,
except Armstrong, a 10-cent-per-hour increase for Linda
Brooks, and no increase for Jones and Stewart because
Respondent did not consider them a part of the unit.
Constanza vocalized his anger. Respondent said it
wanted a profit-sharing plan and it desired some kind of
health and welfare insurance. However, when Constanza
asked for the specifics or copy of the plan, Noble said he
did not have them.
The parties agreed to meet again on 11 April, but
about 8 April, Noble called Constanza and informed him
that Balentine had received a petition from the employ-
ees withdrawing their support of the Union.
In a letter to the Union dated 8 April 1986, Noble con-
firmed the employees petition of disaffection, and ad-
vised the Union that Respondent was withdrawing rec-
ognition of the Union as the exclusive collective-bargain-
ing representative of its employees.
Noble testified that a few days before 8 April, Balen-
tine had called him and asked him "what would happen
if a petition were gotten up and the employees requested
they no longer wanted to be represented by the Union."
Noble said he told Balentine that would stop negotia-
tions, and because Balentine actually had the petition, he
informed Constanza that there would be no further nego-
tiations 11 April, as scheduled.
Conclusion
A deliberative review of the above evidence of Re-
spondent's bargaining posture reveals, without equivoca-
tion, that Respondent was slow in presenting contract
proposals. When the parties met for the first bargaining
session 14 October 1985, the Union presented a contract
proposal containing economic factors. Respondent did
not present a contract proposal and it did not agree to
the Union's proposal.
During the bargaining interim, 14 October 1985 and 2
April 1986, Respondent talked in generalities, and not in
specifics, about the economics of wage increases, insur-
ance coverage, and health and welfare benefits. Respond-
ent either made no response to, or rejected the Union's
economic proposals. Although the Respondent presented
Union Representative Constanza a contract proposal on
10 January 1986, it is particularly noted that Respond-
ent's proposal was devoid of any specific economic fac-
tors. Constanza expressed anger because he said he had
nothing to take back to the employees.
A proposal without economic specificity is, for all
practical purposes, a proposal without meaningful bar-
gaining substance, or it can constitute no proposal at all.
When the parties met in bargaining session on 18 Febru-
ary and 25 March 1986, Respondent still did not present
a more meaningful proposal by supplying specifics to its
general economic declarations.
When the parties met in bargaining session on 3 April
1986, it was the first time since 14 October 1985 that the
Respondent ever presented a contract proposal with eco-
nomic specifics on wage increases. However, Respond-
ent's wage proposal was so low, as compared with the
Union's wage proposal, that it may reasonably be in-
ferred that Respondent knew it would be rejected by the
Union, as indeed it was. Moreover, Respondent's belated
3 April economic proposal was made so close to its 7
April announcement that its employees had in fact sub-
mitted a disaffection petition, that it may also be reason-
ably inferred that Respondent's proposal was not pre-
sented in good faith because Respondent knew about the
petition. When all the above discussed evidence and in-
ferences are considered, along with the additional evi-
dence of Respondent's bad-faith bargaining conduct,
infra, I conclude and fmd that Respondent did fail and
refuse to bargain in good faith by refusing to timely
submit a contract proposal, in violation of Section 8(a)(1)
and (5) of the Act. Henry M Hald High School Assn.,
213 NLRB 463, 474-475 (1974).
C. Respondent's Refusal to Meet and Bargain at
Reasonable Times and Places
The consolidated complaint also alleges that Respond-
ent refused to meet and bargain at reasonable times and
places with the Union, in violation of the Act.
The evidence clearly shows that the Union (Con-
stanza) always took the initiative to obtain a bargaining
schedule and that it generally accommodated the bar-
gaining date most convenient for the Respondent's nego-
tiator, Noble. The undisputed evidence of record shows
that during the period 14 October 1985 and 2 April 1986,
Respondent acknowledged that it refused to meet for ne-
gotiations in Clinton, Missouri, or at a location half the
distance between Clinton and Kansas City, Missouri, be-
cause Respondent would not pay its attorney-negotiator
for the time spent away from his office in Kansas City.
Clinton, Missouri, is approximately 78 miles, or a 1-
hour-and-45-minute to 2-hour drive by automobile to
Kansas City. Consequently, the Union's bargaining com-
mittee traveled by automobile to Kansas City for all the
bargaining sessions held on 14 October and 4 December
1985, and 18 February, 25 March, and 3 April 1986. The
language of Section- 8(a)(5) of the Act, as well as the
Board and court's interpretations of it, conceive the obli-
gation to bargain as a two-way street, where each party
is to meet the other, part of the way, in establishing a
CLINTON FOOD 4 LESS

603
time and place to bargain. In the instant case, the evi-
dence is clear that Respondent did not assume any initia-
tive in establishing a reasonable time and place to meet
and bargain with the Union. Respondent placed the onus
and inconvenience of travel and expenses for travel,
completely on the members of the union negotiating
committee, at the financial convenience and physical
comfort of itself (negotiator Noble). Respondent also left
the concern and the initiative for scheduling negotiation
sessions to the Union, and generally did not initiate a
schedule for bargaining on its own.
In Gulf Concrete Co., 165 NLRB 627, 630-632 (1967),
the employer insisted on meeting in Corpus Christi in-
stead of Victoria, Texas, where the bargaining unit was
located. The Board held that such insistence and refusal
on the part of the employer to meet anywhere other than
Corpus Christi violated Section 8(a)(1) and (5) of the
Act.
Under the circumstances in the instant case I conclude
and find that the Respondent, very much like the em-
ployer in Gulf Concrete, refused to bargain in good faith
with the Union, in violation of Section 8(a)(5) and (1) of
the Act. Gulf Concrete Co., supra; Semperit Pacific, Inc.,
237 NLRB 478, 488 (1978); Tower Books, 273 NLRB 671,
672 (1984).
I further conclude and find on the foregoing evidence
that by the failure of Respondent to take any initiative to
schedule bargaining sessions, and its insistence that all
the sessions be held in Kansas City, Respondent did fail
and refuse to meet and bargain with the Union at reason-
able times and places; and that such conduct constitutes a
refusal to bargain in good faith, in violation of Section
8(a)(1) and (5) of the Act. Milgo Industrial, Inc., 229
NLRB 25, 31 (1977).
D. Respondent Bargained with a Fixed Mind or
Position
The complaint alleged that Respondent bargained with
a fixed mind or position, and therefore not in good faith,
in violation of Section 8(a)(5) and (1) of the Act.
In support of the above allegations, counsel for the
General Counsel presented testimony by Stephen B.
Millin, Esq., former practicing associate of Respondent's
attorney-negotiator, Richard Noble, Esq. Pursuant to
subpoena, Millin testified that in 1983 Noble requested
him to represent Constanza in a legal dispute, and there-
after asked him, as a "personal favor would you put
aside whatever else you are doing, so that you can sit
down and talk to Constanza, because he is getting emo-
tionally wrought over your putting him off." Noble told
him either "Joe Balentine or another management person
will not give Mike Constanza a contract and Constanza
knows that." The conversation continued as follows:
And I said, "What do you mean?" And he said,
"I've talked to Mike about this. He is not going to
get a contract in Clinton and what you ought to tell
him to do is back off, somebody else to handle it."
Mr. Millin said he told Mr. Constanza what Mr.
Noble said.
On another occasion in late November 1985, Millin
said that while he was having a telephone conversation
with Noble, Constanza entered his office and he permit-
ted Constanza and Noble to talk to each other on the
telephone. He overheard Constanza trying to arrange a
meeting with Noble and Noble was apparently trying to
put off where and when they could meet.
Millin further testified that on 27 June 1986 he had
lunch with Noble, during which time Noble told him
Constanza had called up an employee of Responden4-and
represented himself as Noble. Noble told him he had told
Constanza he hoped Constanza would win in Clinton;
and that his client (Balentine) "was the meanest prick
he'd ever known." However, Noble denied ever having
made such statements to Millin, or that he had any con-
versation with Millin about Respondent. Noble also
denied he told Constanza that Balentine did not want the
Union or a contract and would not sign a contract be-
cause of his religious convictions.2
After Respondent withdrew recognition of the Union
about 7 and 8 April 1986, the essentially undisputed evi-
dence shows that Respondent (Balentine) told cashier
Linda Brooks there would be no negotiations and there
would be no Union in the store because the Union no
longer enjoyed majority status. Balentine acknowledged
that on 12 April 1986 he asked Brooks what did she
hope to gain by supporting the Union. He further ac-
knowledged that on 21 April 1986, he told Jana Harrison
he did not think he needed the intervention of a third
party to help him run his business; that he could run it
2 In the above regard, I credit essentially all Willi's testimony and dis-
credit Noble's denials, not only because I was persuaded by the demean-
or of each witness that MiIhn was telling the truth and Noble was not
truthful in denying the embarrassing revelation by Noble, but also be-
cause I was further persuaded that MiBin's testimony was truthful in that
it is supported by the following circumstantial evidence.
I Previously established evidence and findings of Respondent's
failure to timely submit a contract proposal and its failure to make
any meaningful movement in its bargaining posture between 14 Oc-
tober and 2 April, under topic B, and Respondent's refusal to meet
and bargain at reasonable times and places under topic C, all clearly
tend to support MiIlm's testimony of the statements attributed to
Noble
2. Man and Noble are not only licensed practicing attorneys but
were also formerly law partners or associates in the same law firm,
and still appear to maintain some collegial relations Man probably
would never have voluntarily testified about the statements attrib-
uted to Noble if he had not previously related them to Constanza
and was not now testifying pursuant to subpoena by the General
Counsel Under such circumstances, I find it difficult to conceive
Maim appeanng and giving such adverse testimony against his legal
colleague's legal and professional interest, in the absence of any es-
tablished adverse motive for doing so
3. The prior well established findings of Noble's failure to take
some of the initiative to schedule bargaining sessions, his refusal to
meet for such sessions in Clinton, as well as the lapse of time in es-
tablishing such sessions all tend to support the credibility of Wines
testimony that Noble did tell Man Respondent did not want the
Union or a contract; that Noble wished Constanza would win the
dispute with Respondent, and probably out of frustration in defend-
ing Respondent's desire not to have the Union or a contract, Noble
probably did make the disparaging remark about the client. More-
over, I find It difficult to conceive MIIlin responding to a subpoena
only to relate such a fabrication against his professional colleague if
It were not m fact true.
4 Additional evidence and findings of Respondent's antiunion con-
duct, infra, further supports the credibility of MIBin's testimony.
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
much better without such assistance. However, Balentine
denied he told Brooks on 26 April that he did not care
how long she stayed on the picket line, "You'll never get
a contract," or that he told Harrison and Brooks "If the
courts or Board made him negotiate, he would never
sign a contract."3
Conclusions
I therefore conclude and find that the foregoing cred-
ited evidence amply establishes that Respondent bar-
gained with the Union with a fixed mind and position
and, therefore, failed and refused to bargain in good faith
with the Union, in violation of Section 8(a)(1) and (5) of
the Act.
E. Respondent Refused to Provide Requested
Information
The consolidated complaint alleged that Respondent
has refused to provide certain information requested by
the Union. The documentary evidence establishes that in
a letter dated 18 September 1985 (G.C. Exh 4), the
Union requested Respondent to provide it with certain
information regarding the employees because such infor-
mation was necessary for the Union to prepare for con-
tract negotiations. In a September 1985 letter, the Re-
spondent provided the Union with some of the requested
information, but failed to include information on two
specific employees and economic and employment data
on other employees. In another letter dated 8 October
1985, the Union requested the current addresses and tele-
phone numbers of all bargaining unit employees and a
copy of Respondent's insurance plan. Respondent failed
to provide the Union with either.
The record shows that when Constanza asked Noble
for the addresses and telephone numbers of the unit em-
ployees at the 14 October negotiation session, that Noble
said the bargaining committee "could look them up," and
that Respondent had provided the Union with the Excel-
sior list. However, there had been no union election or
Excelsior list of employees. In fact Noble testified that
addresses of unit employees were not an issue in negotia-
tions. Respondent's manager, William Gish, acknowl-
edged that Constanza asked for the hire dates of Stewart
and Jones during the 25 March negotiating sessions, and
he told Constanza he did not know the dates. Noble ac-
knowledged Respondent did not provide the Union with
those dates at neither the 25 October 1985 or the 3 April
1986 negotiation sessions.
Constanza testified without dispute that during the 14
October negotiating session, he requested the amount of
bonuses the Respondent had paid to unit employees. Re-
spondent did not deny that Balentine told Constanza it
3 I credit Brooks' and Harrison's account that Balentine said, "You'll
never get a contract," and "If the courts and the Board made him negoti-
ate, he would never sign a contract." I credit their versions not only be-
cause I was persuaded by their demeanor that they were telling the truth,
but also because I perceived Balenhne as a decent and fine American
busmess man, but one who is adamantly opposed to this Union, and he
was determined to do all he could to defeat it. In doing so, I was per-
suaded by his demeanor and the record, which is replete with evidence
supporting the Respondent's antiunion disposition, as well as the credibil-
ity resolution here made, that he violated the Act in the process.
was none of his business. The Union never received the
latter requested information.
The law has been long established that an employer
has the general obligation to provide information that is
needed by the bargaining representative for the proper
performance of its duties. NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956). It is undisputable that a primary func-
tion of a bargaining representative (the Union) of em-
ployees is to negotiate a contract on their behalf.
Further amplifying the obligation of an employer to
provide information to a bargaining representative, the
Supreme Court has held that an employer has a duty
under the Act to supply, on request, such information
that is probably relevant, in fact, relevant, necessary, and
useful to a union's effective and intelligent evaluation in
determining whether to process employee grievances.
NLRB v. Acme Industrial Co., 385 U.S. 432, 438 (1967).
Accordingly, I find the Union's request for economic
data on employees, the current addresses and telephone
numbers of all bargaining unit employees, a copy of Re-
spondent's insurance plan, its profit-sharing plan, the hire
date of two employees, and the amount of bonuses Re-
spondent had paid to unit employees all appear probably
relevant, in fact relevant, necessary, and useful to the
Union in preparing to negotiate a contract and process
employee grievances with Respondent. Truit Mfg., supra;
Acme Industrial, supra; Southwestern Bell Telephone Co.,
247 NLRB 171, 173 (1980); Imperial Tile Co., 227 NLRB
1751, 1754 (1977); Henry M Hold High School Assn., 213
NLRB at 474-475.
Consequently, Respondent's refusal to furnish the re-
quested information constitutes a refusal to bargain in
good faith, in violation of Section 8(a)(1) and (5) of the
Act.
F. Supervisory Status of Keith Dalton
Counsel for the General Counsel contends that Keith
Dalton was a supervisor for Respondent during January-
April 1986, but Respondent maintains Dalton was not a
supervisor at that time.
In support of the General Counsel's contention, former
employee Kati L. Steinert, Jana Harrison, and Linda
Brooks, Respondent's employees for 11 years, testified
pursuant to subpoena that in September 1985, Keith
Dalton was stocker but later became more like their su-
pervisor; that Dalton commenced performing more and
more checker work, assigning them (checkers) to duties
(cleaning the office and under the registers), giving them
breaks, making change for them, threatening to write
them up for violating store policy, telling them when
they could leave early or to stay late, putting informa-
tion into the computer to which only management had
access, carrying store keys, and opening and closing the
store when other managers were not there. Linda Brooks
testified that Store Manager Gish told her that Keith
Dalton and Kurt Loman, an acknowledged supervisor
were, her supervisors, and for her to treat them as such.
Keith Dalton testified he has been employed by Re-
spondent for 4 years, that his job title has never changed,
and that his job duties have not changed since 2 April
1986. He denied that he performs numerous supervisory
CLINTON FOOD 4 LESS 605
duties and acknowledged that he closes the store 3 days
a week, when management is not on duty from 5 until 9
p.m. He locks the doors and puts up the registers.
Store Manager Gish acknowledged Dalton served as
acting manager every third Sunday and works with him-
self and Assistant Manager Kurt Loman on an every
third Sunday rotation basis. Employee Lisa Blackaby tes-
tified she perceives Dalton as the manager when she
works on Sundays. Dalton is salaried and reports only
his overtime on timecards. All other employees report
their work on timecards. Dalton said all breaks are nor-
mally taken at 7 p.m. and employees do not ask him to
take a break, or to leave early. On a few occasions when
he told employees to stay late, Dalton said he was com-
plying with orders from management. He denied he told
anyone to distribute company handbills, but acknowl-
edged he called Gish and asked him what should he do
about Kari Steinert talking to customers about the
Union. Gish told him to tell Steinert she should not talk
about the Union on store time, and he so informed Stein-
ert.
Conclusion
Although Dalton, as well as Respondent, denies
Dalton is a supervisor, or that he performs supervisory
functions, the credited evidence established that Dalton
is solely in charge of the store 3 evenings a week and on
every third Sunday. I think it's absurd to believe that
Respondent would allow its store to open for business 3
evenings a week and every third Sunday without a man-
ager. In fact when I consider that employees perceived
Dalton as a supervisor; that he is salaried as other admit-
ted managers, and earns more than any other store em-
ployees; that he has store keys and he puts information
into management's computers; that he assigns cleaning
duties to cashier employees and inquires of management
what he should do about employees talking about the
Union to customers; I am persuaded that all of such evi-
dence strongly infers that Dalton is a supervisor. More-
over, when all of these indicia of supervisory status are
considered with the essentially undisputed evidence of
management's acceptance and coordinating relationship
with Dalton in preparing the disaffection petition and so-
liciting the signatures of employees on behalf of manage-
ment, infra, I am persuaded by the record evidence as a
whole, and Respondent's conduct in dealing with the
Union, that Dalton was a supervisor in 1986, within the
meaning of Section 2(11) of the Act. Dale Service Corp.,
269 NLRB 924, 925 fn. 8 (1984).
G. Disaffection Petition
During the trial the consolidated complaint was
amended on motion of the General Counsel to allege
that a disaffection petition was sponsored by the Re-
spondent. Respondent's defense for terminating the nego-
tiations and withdrawing recognition of the Union on 3
April 1986 was based on its receipt of a disaffection peti-
tion signed by six of its employees R. Exh. 7).
In his testimony, Store Manager Gish testified that on
Monday, 31 March 1986, a conversation occurred among
himself, Assistant Store Manager Leman, and head clerk
Dalton. During the conversation, Loman said, "That
Union does not represent a majority of employees any
more, isn't there anything we can do to end this and get
back to work." Dalton agreed and Gish said, "Maybe a
petition might do some good," and he would consult
with Balentine's attorney on the matter. Keith Dalton es-
sentially corroborated Gish's testimony that Loman
asked whether anything could be done about the Union
and Gish suggested a petition. Either Balentine, as Noble
testified, or Gish, called Noble that day and talked with
him about a petition. Later that afternoon, Gish told
Dalton that Balentine seemed to think it was okay to go
ahead with the petition.
Although Gish told Dalton that management could
not be involved, he suggested the language of the peti-
tion to Dalton, and told him to date it. When Dalton ar-
rived home that evening, he said he prepared the petition
(R. Exh. 7) and dated it 2 April 1986. On the next day,
he said he signed it and approached employees who ulti-
mately signed it; that he told them we all know a majori-
ty are against the Union; that he thought a petition
would get rid of the Union, and asked them would they
like to sign it. The petition read: "We do not want the
Union to represent us."
The following employees signed the petition: Keith
Dalton, Karen Roskop, Lisa Blackaby, Todd S. Jones,
Billy J. Armstrong, and Randy Stewart.
Thereafter, Dalton called Gish and told him he had
the signed petition and Gish said, "Okay, that's fine." Al-
though Dalton said he prepared and talked to the em-
ployees about the petition himself, Karen Roskop undis-
putedly testified that both Dalton and Loman asked her
if she wanted to sign the petition, and she said, "Yes,'"
and she did in fact sign it. Employee Randy Stewart tes-
tified that Dalton called him to the office on 2 April and
asked him to sign the petition.
Conclusion
The Board has long held that an employer violates
Section 8(a)(I) of the Act if it solicits, supports, or assists
in the initiation, signing, or submission of a decertifica-
tion or disaffection petition. Eastern States Optical Co.,
275 NLRB 371 (1985); Placke Toyota, 215 NLRB 395
(1974).
In the instant case, Store Manager Gish and Assistant
Store Manager Loman are admitted supervisors under
the Act. In this decision, Keith Dalton has been previ-
ously found to have been a supervisor in April 1986.
Under these circumstances, the evidence is uncontrovert-
ed that Managers Loman and Gish initiated the idea of a
disaffection petition when Loman stated that a majority
of the employees were against the Union, and asked was
there anything management could do about it. Supervi-
sor Dalton agreed and Manager Gish suggested a peti-
tion.
Not only did Gish suggest the petition, but he suggest-
ed its language and reminded Supervisor Dalton to date
it. By suggesting the language and reminding Dalton to
date the petition, Manager Gish was certainly assisting
and supporting Dalton in the preparation of the petition.
As a supervisor, Dalton carried out the ministerial task
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of physically preparing the document (R. Exh. 7), and he
circulated and solicited signatures of employees, with
some assistance from Manager Loman. Thereafter, Su-
pervisor Dalton submitted the petition to management by
calling and informing Store Manager Gish that he had it,
and by placing it in management's office for them.
Assuming, arguendo, that Dalton was not in fact a su-
pervisor within the meaning of the Act, I nevertheless
find he was certainly acting as an agent in fact on behalf
of management, for the exclusive purpose of preparing,
circulating, and soliciting employee signatures, and sub-
mitting the petition to management. In other words,
Dalton was a loyal servant and agent of management
who was in on the planning, preparation, circulation, and
submission of the petition. Indiana Cabinet Co., 275
NLRB 1209, 1210 (1985); Seaward International, Inc., 270
NLRB 1034, 1042 at sec. III,B,1 (1984), and Campo
Slacks, Inc., 250 NLRB 420, 423-424 (1980).
H. Respondent Withdrew Recognition from the Union
It is uncontroverted that the settlement agreement
(G.C. Exh 3) establishes that on 9 September 1985, Re-
spondent agreed to recognize the Union on the Union's
withdrawal of a representation case and the charges in
an unfair labor practice case. The Respondent subse-
quently met in a negotiation session with the Union first
on 14 October 1985 and in other negotiation sessions on
later dates.
The Respondent defends most of the 8(a)(5) and (1)
charges in this proceeding on the grounds that the Union
lost majority status and Respondent had the legal right
to withdraw recognition and terminate negotiations with
it.
As counsel for the General Counsel argues, the law is
well established that if an employer voluntarily grants
lawful recognition to a union, such employer becomes le-
gally obligated to bargain in good faith with the union
for a reasonable time during which period, the union
enjoys an irrebuttable presumption of continued majority
status. Talon, Inc., 269 NLRB 327, 327-32,8 (1984); San
Clemente Publishing Corp., 167 NLRB 6, 8 (1967); Keller
Plastics Eastern, Inc., 157 NLRB 583, 586-587 (1966).
The above principles of law apply even when recogni-
tion and bargaining result from private out-of-board set-
tlement agreements. Ted Mansour's Market, 199 NLRB
218, 221 (1972); VPI Limousine, 276 NLRB 871, 874-875
(1985). If, however, the employer after recognizing the
union fails to bargain in good faith, the running of the
reasonable time period for bargaining is tolled. Cf.
NLRB v. Key West Coca Cola Bottling Co., 382 F.2d 921,
923-924 (1967), where the irrebuttable presumption of a
certified union's majority status was extended by reason
of a lack of good-faith bargaining by the employer
during the certification year. NLRB v. Burnett Construc-
tion Co., 350 F.2d 57, 60 (10th Cir. 1965).
In the instant case, Respondent did not bargain in
good faith, but in fact bargained in bad faith by its con-
duct as previously found and as follows:
1. Adamant refusal to bargain at any place other
than its attorney-negotiator's office 78 miles from
the employees homes and worksite.
2. Extended delays in making substantive con-
tract proposals in a good-faith effort to reach an
agreement.
3. Adamant refusal to provide the Union with re-
quested information necessary for the Union to in-
telligently and fairly negotiate a contract on behalf
of employees it represented.
I therefore conclude and find on the foregoing evi-
dence and cited legal authority, that Respondent clearly
did not bargain with the Union in good faith. Conse-
quently, Respondent is now precluded from asserting
that a reasonable time for bargaining has elapsed to justi-
fy its withdrawal of recognition from the Union. The
law under such circumstances is also clear, that a defense
that a union no longer enjoys majority status, so as to
justify terminating bargaining, may be raised only in a
context in which the employer is free of unfair labor
practices. Western Truck Services, 252 NLRB 688, 691,
sec. IH,C (1980), and Chet Monez Ford, 241 NLRB 349,
350-351 (1979). Additionally, the theory for rejecting the
lack of majority status defense under such circumstances
is, that the employer's misconduct may well have in-
duced the union's loss of majority. Eastern Washington
Distributing Co., 216 NLRB 1149, 1152-1153 (1975);
Franks Bros. v. NLRB, 321 U.S. 702 705-706 (1944).
In the instant proceeding the Respondent's previously
discussed unlawful conduct, including the participatory
conduct of its managers in initiating, preparing, support-
ing, assisting, and submitting a disaffection petition of
employees, certainly was a real potential and probability
that induced the loss of majority support for the Union.
Fremont Newspapers, Inc., 179 NLRB 390, 391 (1969).
Evidence that a loss of union majority might have been
induced by the Respondent is the testimony of employee
Randy Stewart, who expressed his despondency with the
Union having failed to accomplish more within a year.
Similarly, the testimony of Bill Armstrong and Keith
Dalton, to the effect that they wanted to get it (the
union matter) resolved, epitomizes the frustration and the
relief they wanted from the stagnation in the bargaining
relations, occasioned largely by the Respondent's unlaw-
ful conduct.
Additionally, because the disaffection petition was
conceived in an atmosphere poisoned by Respondent's
unfair labor practices, the petition may not serve as a
foundation for withdrawal of recognition by the Re-
spondent. To allow Respondent such a defense, would in
effect, permit Respondent a license to benefit from its
own wrongful conduct. NLRB v. Little Rock Down-
towner, 414 F.2d 1084, 1091 fn. 4 (8th Cir. 1969); NLRB
v. Alterman Transport Lines, 587 F.2d 212, 228, Sec. V
(5th Cir. 1979); Terrell Machine Co., 173 NLRB 1480,
1482 (1969).
The instant case is distinguishable from Tri-State Cul-
vert Mfg., 280 NLRB 743 (1986), where the Board re-
cently held that an employer's withdrawal of recognition
from the union did not violate the Act. There, the em-
ployer had also agreed to recognize the union pursuant
to a non-Board settlement agreement. The employer,
however could withdraw recognition from the union 3-
1/2 months later because the Union did not represent a
CLINTON FOOD 4 LESS

607
majority of employees at the time the agreement was ex-
ecuted. here, unlike there, the evidence does not estab-
lish that the Union did not represent a majority of em-
ployees at the time the settlement agreement was execut-
ed.
I. Respondent Removed Pickets from Store's Sidewalk
On 3 April the Union's position was that the following
employees were in the bargaining unit: Bill Armstrong,
Randy Carroll, Keith Dalton, Terry Dozier, Linda
Brooks, Karen Roskop, Kari Steinert, Todd Jones, Lisa
Blackaby, and Randy Stewart.
As previously established by the utncontroverted evi-
dence of record, after Respondent made its first nonspe-
cific contract proposal on 3 April 1986, the parties
agreed to meet again on 11 April. However, on 9 April,
Noble called Constanza and informed him that Balentine
had called and advised that Respondent had received a
petition from the employees withdrawing recognition
from the Union, Local 576.
On the evening of 24 April, the Union commenced in-
formational picketing in front of Respondent's store with
signs that read in part, "Please Do Not Shop At Balen-
tine's Food 4 Less, 1405 Fast Ohio, Clinton, Missouri"
(R. Exh. 14), and leaflets that contained the same mes-
sage. (G.C. Exh. 15.) Picketing resumed at 8 a.m. on 25
April by Kari Steinert and Jana Harrison. Constanza and
Union Representative Joel Morales were present. City
police officers visited management at the store several
times that morning. After noon, Balentine accompanied
by a city police officer approached and requested pickets
to leave the store's sidewalk or be arrested. Morales re-
fused to leave because he said they had a right to be
there. The picket line nevertheless moved about 200 feet
onto the parking lot that evening, and continued picket-
ing behind a yellow line painted on the surface of the lot
by management and the police.
The pickets also wore a "Smile sticker" (G.C. Exh.
16) on their clothing that read "We'll have a union soon.
Local 576." Another sticker read, "UFCU 576, I am
proud to be Union" (G.C. Exh. 17).
Respondent responded with its own handbill (G.C.
Exh. 18) posted on the store's window and distributed to
customers by a clown outside the store. The handbill
read: "The Majority of Our Employees Do Not Want
To Be Represented By U.F.C.W. Local No. 576, We Re-
quest Your Understanding."
On 13 June the Union changed the picket signs and
handbills after the Board issued a complaint, stating that
a complaint had been issued against Respondent for
unfair labor practices. Constanza and employees met
with Balentine to try to resolve their dispute but Balen-
tine told them the Union did not represent a majority of
the employees. On that day, under threat of arrest, Re-
spondent removed a picket from the front of the store.
Respondent also had Constanza arrested when he picket-
ed on the sidewalk in front of the store. Employees
Linda Brooks, Terry Dozier, and former employee
Randy Stewart witnessed the arrest.
That evening Constanza returned to the store and saw
Terry Dozier picketing 200 feet away from the store be-
cause an attorney and Balentine had ordered him to
leave or be arrested. With a camera Balentine took a pic-
ture of Dozier picketing in front of the store.
Conclusion
In an effort to justify its removal of pickets from the
store's sidewalk, Respondent claimed a property interest
in the sidewalk and parking lot in front of its store,
which is located in a shopping center. Respondent also
contends the Union waived its statutory right to picket
on the sidewalk.
In evaluating Respondent's claimed property interest,
an examination of its written lease (G.C. Exh. 22, p. 1,
par. 2) Food Town Stores, Inc., reveals that on 29 April
1981, 17,500 square feet of a shopping center building
was leased to Respondent, "Together with the right to
the use of, in comnion with other tenants of the shopping
center, the parking areas, entrances, and exists, drives,
service drives, sidewalks and other common facilities and
appurtenances in the shopping center."
In a further effort to claim a specific property interest
in the sidewalk and a designated section of the parking
lot, Respondent presented the testimony of Carl Fish-
man, owner of the shopping center and lessor of the Re-
spondent. Fishman testified that in April 1986 Balentine
called him, expressed concern about pickets on the park-
ing lot, and requested the exclusive use of a part of the
parking lot not to be used by other merchants. Fishman
said he granted Respondent's request and that the ar-
rangement has not been withdrawn or confirmed in writ-
ing. Nor was the oral , telephonic agreement to modify
their written lease ever reduced to writing.
Counsel for the General Counsel argues that the Re-
spondent has failed to establish a bonafide property inter-
est in the sidewalk and parking lot, and by failing to do
so, it is precluded from relying on the balancing test, of
accommodating Section 7 rights to picket, against private
property rights, as enunciated in Hudgens v. NLRJ3, 424
U.S. 507, 521-522 (1976), and Giant Food Markets, 241
NLRB 727, 728 (1979).
In construing and applying Hudgens in Giant Food
Markets, supra, the Board held that "where . . . the in-
tended audience [of the pickets] is not readily identifiable
until the audience attempts to enter the store, such other
means of communication cannot be considered reasona-
ble in relation to their possible effectiveness. . . .
[R]equiring that any picketing or handbilling be conduct-
ed off the private property, at entrances to the parking
lot 250 feet or more from the store entrance . . . would
too greatly dilute the Union's message for it to be mean-
ingful."
In the instant case, the picketing by Respondent's em-
ployees was not addressed to a readily identifiable audi-
ence until that audience (prospective grocery customers)
attempted to enter Respondent's store. Other means of
the Union communicating its Section 7 rights activity
cannot be considered reasonable in terms of effectiveness
under the circumstances.
Thus, Respondent's demand that the employees leave
the sidewalk and retreat to a location 200 feet away on
the parking lot, where prospective patrons of Respond-
ent would not be attracted by the pickets' message,
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would render the message virtually meaningless. This
conclusion is especially true because prospective patrons
of other merchants in the shopping center enter, park,
and exit the same common parking lot. Giant Food Mar-
kets, supra.
Additionally, requiring the pickets to picket on the
parking lot 200 feet away from the Respondent's store,
would subject them to the risk of being enmeshed with
the customers of other merchants within the shopping
center with which the Union has no dispute. Seattle-First
National Bank v. NLRB, 651 F.2d 1272, 1276 (9th Cir.
1980).
Respondent's claimed property interest in the sidewalk
and designated portion of the parking lot was established
only a day after the picketing commenced. It was ar-
ranged only after Respondent became annoyed by the
picketing, and even then, only by oral telephonic com-
munication for no additional consideration, in an effort
to circumvent the law and defeat the exercise of the stat-
utory rights of the employees to picket. Respondent's
threatening demand that the employees remove them-
selves from the sidewalk is therefore a sham designed to
circumvent the letter and spirit of the Act, in violation of
Section 8(a)(1) of the Act. The sham-claimed property
interest by Respondent makes it clear that Respondent's,
legal argument and the cases cited in support of it, are
distinguishable from and not applicable to the facts as
found in the instant case. Giant Food Markets, supra.
Respondent also violated Section 8(a)(1) of the Act by
causing the arrest of Union Representative Michael Con-
stanza. Giant Food Markets, supra. Because the arrest
was executed in the presence of Respondent's employees,
it automatically interfered with, restrained, and coerced
the employees in the exercise of their Section 7 rights, in
violation of Section 8(a)(1) of the Act. Tuscola Truckers'
Home, 233 NLRB 679, 685 (sec. II,D,2) (1977).
Respondent claims the Union waived its right to
picket on the sidewalk adjacent to the front of the store,
by Clinton City Attorney Gary Culvar's letter descrip-
tion that an agreement was entered into between the
Union and Respondent's attorney, Richard Noble, on 25
April 1986. According to Culvar's letter, he agreed to
withhold serving warrants for arrest for trespass on the
pickets because the Union and Respondent's attorney
(Noble), had agreed the pickets would remain behind the
yellow line that he, Culvar , painted on the surface of the
parking lot 200 feet away from the sidewalk, on the con-
dition that the warrants would not be served.
Culvar's letter is not signed by Noble or Union Attor-
ney Waterman. Nor does the letter appear to embrace an
entire agreement between the parties. That is, that the ar-
rangement was temporarily entered into pending the
Union's establishing its legal right to picket on the side-
walks, by filing a charge and having a complaint issued
by the Board. When a complaint was in fact issued 6
June 1986, the Union resumed picketing on the sidewalk.
Under the above circumstances, I find, as counsel for
the General Counsel argues, the incomplete description
of the arrangement between the Union and the Respond-
ent could hardly serve as an agreement on a waiver by
the Union of a statutory right to picket on the sidewalks.
Not only is the arrangement inadequately described to
constitute an agreement, but I do not find the written
language or its oral supplementation sufficient to consti-
tute a clear and unmistakable intent on the part of the
Union to relinquish its statutory right to engage in lawful
picketing on the sidewalk. Gem City Ready Mix Co., 270
NLRB 1260, 1261 (1984). In fact, since the warrants for
arrest would have been illegally served, it would appear
that any consideration for which the Union temporarily
agreed to forego picketing on the sidewalk, is void and
unenforceable as a waiver of the Union's right to so
picket.
J. Altering Employees' Work Duties
The evidence of record is uncontroverted that on the
evening of 24 April 1986, Linda Brooks, Jana Harrison,
and Kari Steinert picketed and handbilled on the side-
walk in front of Respondent's store. They were observed
by Store Manager Bill Gish. The next morning (25
April) Kari Steinert and Jana Harrison picketed and
handbilled on the sidewalk in front of Respondent's
store. They were again observed by Store Manager Bill
Gish.
When Linda Brooks, an employee of Respondent for
11 years reported for work on the morning of 25 April,
Store Owner Balentine relieved her of the keys to the
office and told her he would have to keep them for the
duration of the "goings on outside." Brooks also was no
longer allowed to get change out of the office for the
registers. Nor was she permitted to continue to prepare
food assistance vouchers, make price changes, handle
bad checks, have acess to management's computer,
charge customer duties, or pick up bank bags. Brooks
was assigned to work on Sundays, which she had previ-
ously worked only in emergency situations.
Respondent's explanation for changing Brooks' duties
was to prevent her from having access to its sales
volume amounts, since she was participating in the pick-
eting. Balentine testified, however, that the daily sales
records were kept in the inner office to which Brooks
did not have access. Brooks would have access to some
of the records if she were preparing sales records in the
outer office, but those records would be put into the file
cabinet in the inner office. Based on this evidence it ap-
pears that Brooks generally did not have access to actual
sales volume amounts, but she did see some sales volume
amounts, or she was close enough to make an assessment
of sales amounts on some occasions.
Similarly, on 25 April, Supervisors Dalton, Gish, and
Balentine directed picket Kari Steinert to put away
stock, which duty she does not generally perform. It
took her 5 hours to put stock away. Steinert was sched-
uled to be called second or first for checker duty, but in-
stead, Karen Roskop, Lisa Blackaby, and Melody Balen-
tine were checkers. After the stock was put away, Stein-
ert was told to clean the back room. She did the clean-
ing although her normal duties did not include cleaning
the back room. Keith Dalton and Terry Dozier normally
perform that task. She had helped clean the back room
on only one other occasion, when a bag of flour had
burst and she assisted Supervisor Kurt Loman in clean-
ing it up. When Steinert attempted to carry a magazine
CLINTON FOOD 4 LESS 609
outside to a customer who had left it, and when she at-
tempted to push a cart outside the store as she would
normally do, Manager Gish stopped her and did it him-
self.
On the next working day, 27 April, Store Manager
Gish told Steinert to get her coat and do the inventory
of ice cream in the freezer. This was the first and only
time she had been assigned to work in the freezer. That
duty was normally performed by a stocker or a manager.
Steinert said it took her 45 minutes to do the inventory
because she would come outside when she got too cold.
Store Manager Gish testified that physical inventory is
due every 3 or 4 months. It was due on 26 April, and
because Stewart had performed 90 percent of the inven-
tory and had to proceed to his other duties, he assigned
Steinert to complete the inventory because she was only
pulling boxes. He said she completed the job in 15 to 25
minutes, after asking him if she could wheel out the carts
because it was cold in the freezer. He said, "Yes." Assist-
ant Manager Loman is in charge of the freezer and
bakery personnel is in charge of the ice cream, and
Karen Raskop would sometimes assist them.
When Jana Harrison reported to work at 4 p.m. on 25
April, she was informed by Karen Roskop that Harrison
was not to check, but she nevertheless went ahead and
checked. At 4:30 p.m., Gish ordered her to stock with
Steinert for 2 hours. Normally, Harrison does not stock
and had never stocked for 2 hours. Although she was
stocking, Balentine, Karen Roskop, and Lisa Blackaby
were checking for 2 to 2-1/2 hours.
Store Manager Gish, further testified that a large truck
of stock arrived on 25 April and Loman was on vaca-
tion. Being shorthanded, he said he assigned Jana Harri-
son, Kari Steinert, and Karen Roskop to assist Linda
Brooks, Keith Dalton, Dozier, and Blackaby stocking be-
cause he had more checkers on hand than he needed.
Conclusion
Owner Balentine's explanation for relieving Linda
Brooks of the keys to the office appears reasonable for
management under the circumstances. However, when I
consider Respondent having taken the keys from Brooks
and prohibiting her from making price changes, handling
bad checks, charging customer duties, and assigning her
more Sunday work, and that all of such changes in work
assignments were given to Brooks the next morning after
Respondent observed Brooks and other employees pick-
eting in front of its store, I have misgivings that Re-
spondent's explanation for relieving Brooks of her usual
responsibilities was the real and truthful reason for
changing her work assignments. I therefore discredit
Owner Balentine's explanation for the changed assign-
ments.
When I further consider the above evidence along
with the evidence that Respondent assigned checker
Kari Steinert to put away stock, clean the back room,
and for the first time, to take inventory in the freezer, I
am not persuaded by the Respondent's explanation for
the assignments. Additionally, when I consider Respond-
ent's assigmnent of checker Jana Harrison to stock while
checkers Roskop, Blackaby, and Mrs. Balentine checked;
and that all of these different assignments were made to
-
the same three employees (Brooks, Steinert, and Harri-
son), whom Respondent had observed picketing Re-
spondent an evening or two earlier. I am fully persuaded
by these factors and the demeanor of the witnesses (in-
cluding Balentine), that Respondent instituted these
changes in their work assignments because of their pick-
eting and support for the Union.
The law is well established that an employer who as-
signs employees to more onerous working conditions and
duties in retaliation for the employees engaging in union
activities violates Section 8(a)(1) and (3) of the Act.
Frenchy's K & T & Earl's News Stand, 247 NLRB 1212,
1213 at par. 2 (1980). Because the evidence is clear that
Respondent in the instant case assigned employees
Brooks, Steinert, and Harrison to different if not onerous
working conditions because they engaged in picketing
and other activities on behalf of the Union, it is also
clear that Respondent has violated Section 8(a)(1) and
(3) of the Act. Frenchy's K & T, supra.
K. Respondent Disciplines Employees
At approximately 5 p.m. on 27 April, checker Kari
Steinert was called to the office where Store Manager
Gish showed her a copy of one of Respondent's printed
handbills (G.C. Exh 18), which read in pertinent part as
follows: "The Majority Of Our Employees Do Not
Want To Be Represented By" the Union. The word
"Not" in the handbill was blotted out, and Gish asked
Steinert if she did it. She denied she altered the handbill
or had knowingly passed out any handbills so altered,
but that she was merely removing them from behind the
register and distributing them to customers, as Respond-
ent (Balentine, Loman, and Dalton) had instructed her.
Gish told Steinert she was written up and that she had
her union friends to blame for doing this to her. He also
told her if she wanted to press it, the customer to whom
she gave it would appear in court.
Conclusions
The General Counsel alleges and argues that Respond-
ent disciplined checker Kari Steinert by issuing her a
writeup on 28 April because she gave a customer one of
Respondent's handbills that had been altered. The evi-
dence does not establish that Steinert altered the handbill
(R. Exh. 12) by blotting out the word "Not," and Re-
spondent does not affirmatively argue that she did. Re-
spondent does maintain, however, that Steinert distribut-
ed a handbill to customer Millin knowing it was altered.
Although Steinert denies she knew the handbill was al-
tered, I am not persuaded by her denial. Although she
may not have altered the handbill, I am persuaded by the
fact that Steinert had to reach behind the register for the
handbill, which she folded, placed the purchased receipt
with it, and handed it to customer Millin. Because Stein-
ert was a participating supporter of the picketing it is
reasonable to infer from her devout support of that activ-
ity that she at least knew the handbill was altered. Her
knowledge of the alteration may be reasonably inferred
from the fact that she folded the handbill before she gave
it to the customer. The evidence does not show that Re-
spondent instructed checkers to fold its handbills, and it
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is highly probable that Respondent did not instruct the
checkers to do so, since its objective was to make the
contents of the handbill readily readable by its custom-
ers. Steinert, in all probability knew that if the handbills
were not behind the register and folded when distributed
to customers, a member of management may have seen
them in altered form.
Whether Steinert knew the handbill was altered ap-
pears immaterial regarding why Respondent disciplined
her by issuing her a writeup. In this regard, Steinert tes-
tified, and I credit her testimony, that Manager Gish's is-
suance of the writeup was accompanied by his statement
that she "had her union friends to blame for doing this to
her." The latter statement can only convey the union
animus and hostility that Gish had for Steinert's picket-
ing the store, of which fact he and all of management
were fully aware. Although Manager Gish may have
denied making the statement to Steinert, I was persuaded
by his demeanor, as well as the evidence of Respondent's
union animus and unfair labor practices, with which this
record is replete, that Gish's denial would not be truth-
ful. I was persuaded by the demeanor of Steinert, who
has a good education, and impressed me as being mental-
ly bright, reliable, and also truthful.
Based on this credited evidence, I conclude and find
that although Steinert was distributing an altered hand-
bill to Respondent's customer, for which Respondent on
this first occasion might very well have warned her not
to do, Respondent supplied clear and obvious reasons for
disciplining SteWert when it told her she had her union
friends to blame for doing this to her. Because the record
is replete with hostile and unlawful efforts of Respondent
to defeat the efforts of the Union, I conclude and find
that Respondent's writeup of Steinert was discriminatori-
ly motivated, in violation of Section 8(a)(1) and (3) of
the Act. 7-Up Bottling Co., 261 NLRB 894, 902-903
(1982).
Manager Gish testified that on 25 April he had ob-
served Linda Brooks jerking money from the hands of
customers and slinging their groceries at them to the
bagging stop. He told her to settle down and treat the
customers right. Karen Roskop, who was opposed to the
Union, testified she observed Brooks being rude to the
customers.
Respondent's checkers were allowed to cash small
checks for customers if the checker knew the customer.
On the same day (25 April) Mildred Mayfield, a regular
customer, testified she asked Brooks to cash a small
check and Brooks said, "No, I'd get fired . . . You just
don't know what goes on here . . . I'm with them [the
pickets] out there." Mayfield also wrote a letter of her
complaint to the Respondent (G.C. Exh 10) and she also
testified that on other occasions other checkers had
cashed her checks. When Mayfield reported the incident
to Respondent, Manager Gish issued a disciplinary repri-
mand to Brooks on 28 April, suspending her for 2 weeks.
He cautioned her to quit talking to customers about the
Union. He also told her he only warned once and if he
had to speak to her again about her conduct, he would
take action.
Linda Brooks has been a devout supporter of the
Union and she has been on the picket line every day
except one day since the line was established. Pamela
Corum, a regular customer of Respondent, testified that
Brooks had waited on her on previous occasions and had
always been courteous to her. However, she stated that
after the picket line was established, she was about to
enter the store and Brooks said she should not be going
in there to shop. She replied, "Well Ma'm this is where I
buy my groceries." Brooks said, "Well you'll be sorry,"
and she said, "Maybe, but I do my shopping here." The
next day Comm said she purchased groceries and when
checking out by Brooks, the latter was throwing her
groceries down to the bagging stop and Brooks did not
thank her for her patronage. Comm said she reported
the incident in a note to the owner. Two or three days
later, management told her they had taken care of the
matter. For about five visits thereafter, Corum said
Brooks was okay, but on her next visit, she was rude.
She sent a note to the Respondent dated 6 May 1986 (R.
Exh. 11) complaining about Brooks' conduct.
Having previously warned Brooks about discourtesy
to its customers, Respondent suspended Brooks on 8
May for 2 weeks. The General Counsel alleges and
argues that Respondent disciplined Brooks for picketing
and filing an amended charge with the Board, in viola-
tion of Section 8(a)(1) and (4) of the Act.
In view of the multiple unfair labor practices found to
have been committed by Respondent, it is highly proba-
ble and reasonable to conclude that Linda Brooks was
frustrated and angry. The evidence is sufficient to rea-
sonably conclude that Brooks was especially frustrated
and angry on 25 April, when Respondent relieved her of
several of her normal work duties. I am therefore per-
suaded by these circumstances, as well as by Brooks' de-
meanor as she testified, the testimony of Mayfield and
Corum, that Brooks was discourteous to them. Brooks
did not testify in rebuttal against their testimony. Al-
though Brooks denied she was discourteous to any cus-
tomers, I do not credit her denial but rather credit the
testimony of management witnesses, as well as Mayfield
and Corum, by whose demeanor I was persuaded were
telling the truth. To find otherwise, I would have to dis-
credit all of management's witnesses, including their non-
employee-customer witnesses. Although I was not fully
persuaded by the demeanor of Corwn, I have difficulty
believing Mayfield and Comm would both take the time
to appear in court to testify against Brooks in a dispute
in which neither of them are involved.
Accordingly, I do not fmd that Respondent disciplined
Brooks on this occasion because she was involved in the
picketing or because she filed an amended charge with
the Board. Rather, I find that Respondent disciplined
Brooks because she was discourteous to its customers,
about which Brooks had been previously warned by Re-
spondent. Consequently, I do not fmd that Respondent
discriminatorily wrote up or suspended Brooks on 8 May
because she picketed and filed an amended charge with
the Board, in violation of Section 8(a)(1) and (4) of the
Act, and the allegation that she did so is dismissed.
CLINTON FOOD 4 LESS 611
L. Consolidated Complaint Alleges Respondent
Violated Section 8(a)(1) in Several Respects
1. Respondent's owner, Balentine, acknowledged in his
testimony that on 21 April, he asked Linda Brooks what
did she personally want—what did she hope to gain by
supporting the Union, and said he expressed his opinion
on what was going on, telling her he felt the Union no
longer had majority support and negotiations with the
Union would end.
Balentine testified that on 17 April he told Linda
Brooks that on the previous day (16 April), his wife
backed out their car and noted the tires were slashed,
and that he, in fury, said, "My wife and children could
have been harmed—there will never be a union in my
store in my life time."
2. Balentine further testified that on 21 April he asked
Jana Harrison why did she want the Union—what did
she personally hope to gain by supporting the Union.
Harrison testified she told Balentine she wanted more
money and Balentine said she deserved more money, and
when the Union is gone she will receive more. Balen-
tine's version of the conversation, however, is that he
told her "she would be getting more money except we
cannot grant wage increases during negotiations.4
3. Jana Harrison testified that on 26 April Balentine
asked her what did she think the picketing was going to do
because he did not care how long she picketed, she would
not get a contract—there would never be a union in his
store. Balentine denied he told Harrison there would
never be a union in his store, but said he did tell her ne-
gotiations would end because the Union no longer had
majority stalus.5
Conclusion
The law is well settled that an employer violates Sec-
tion 8(a)(1) of the Act by interrogating employees about
their union membership, activities, and sympathies with-
out prior assurances against reprisals of, or their union
support. Sierra Hospital Foundation, 274 NLRB 427, 428
(1985).
Because Balentine acknowledges he did ask Brooks
about her union interest and activities and did not deny
he asked Harrison the same questions, the evidence is es-
sentially uncontroverted that such interrogation of both
employees, without assurances against reprisals, consti-
tuted unlawful interrogation in violation of Section
8(a)(1) of the Act.
4 I credit Harrison's version of the conversation not only because I
was persuaded by her demeanor that she was testifying truthfully, but
also, because Balentine's version of lus statement, as lawfully made,
would have been one of the only lawful statements he made out of the
many antiunion and unlawful conversations he held with his employees. I
believe he revised his statement in Ins testimony to give it lawfulness. In
other words, Balentine's version is inconsistent with the overwhelming
evidence in this record of his antiunion statements and efforts to under-
mine the employees' picketing and the Union.
5 Again, I do not credit Balentine's denial that he told Harrison she
would not get a contract and that there would never be a union in his
store because I was persuaded by his demeanor that he was not testifying
truthfully, but especially so by the overwhelming evidence in this record
of the antiunion and unlawful statements Balentine made to his employ-
ees Moreover, I was persuaded by the demeanor of Harrison that she
was testifying truthfully.
Although Balentine admits he told Brooks there will
never be a union in his store, he said he uttered such
statement as a result of having been provoked by the
vandalism practiced against his automobile (tires slashed).
The evidence does not establish that Brooks had any-
thing to do with the vandalism against Balentine's car.
Although such an explanation by Balentine is per-
ceived as reasonable, and is accepted, given the circum-
stances, his denial that he made essentially the same
statement to Harrison is not persuasive. The record evi-
dence of Respondent's animus toward the Union is per-
suasive. It appears that Balentine's utterance to Harrison
was provoked as much by Harrison's picketing, as it was
by the cowardly vandalism against his automobile by an
unknown person. Such an utterance provoked by lawful
picketing, however, does not immunize such a statement
by an employer from violating Section 8(a)(1) of the
Act.
Consequently, I find Respondent's threatening state-
ment that there will never be a union in his store was
motivated by Balentine's animus towards the protective
picketing of Harrison and other store employees, in vio-
lation of Section 8(a)(1) of the Act.
I also credit Harrison's testimony that Balentine told
her she deserved more money and when the Union is
gone she will receive more. I credit her statement be-
cause I was persuaded by her demeanor that she was tes-
tifying truthfully, and also because her account is consist-
ent with all the credited evidence of record of Respond-
ent's diligent efforts to undermine the efforts of the
Union. Such a promise by an employer to increase wages
and benefits to an employee in order to have them reject
or defect from the Union as their bargaining representa-
tive, violates Section 8(a)(1) of the Act. Angelica Corp.,
276 NLRB 617, 623 (1985).
The record shows that after telling Brooks only 5 out
of 19 employees wanted the Union and that Lisa Black-
aby and Karen Roskop had finally realized that the
Union would not be like they thought it would, Balen-
tine asked Brooks what did she want. In the context of
this conversation, I find Balentine's asking Brooks what
did she want, constituted soliciting a grievance or com-
plaint by the Respondent, on an implied promise that
things would be better if she abandoned her interest and
support of the Union. Such conduct by the Respondent
violated Section 8(a)(1) of the Act. Cutting, Inc., 255
NLRB 534 (1981).
M. Respondent Prohibited Talk About the Union
Linda Brooks testified and I was persuaded by her de-
meanor that she was testifying truthfully, that Store
Manager Gish told her he had received complaints from
fellow workers and customers that she had been treating
them unfriendly. He told her to keep it (the Union) away
from the store—that the little gab sessions the employees
had been engaged in must cease and not to talk about
nonstore business.
On 26 April, Supervisor Dalton told Kari Steinert she
could no longer talk about the Union to anyone inside
the store or to customers, and if she did, he would issue
her a writeup. Gish told Steinert she could not talk to
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
customers about the Union and if she did, she would be
disciplined and written up. Similarly, Jana Harrison cre-
dibly testified that on 28 April, she was told by Manager
Gish that she was not to talk about anything relating to
the Union or she would be written up, followed by fur-
ther discipline if she continued to do so.
Conclusion
Because Respondent (management) ordered Brooks,
Harrison, and Steinert not to talk about the Union in the
store, the prohibition made no exception for breaktime,
lunchtime, and time before or after work hours, and
therefore it was an unduly broad prohibition rule against
talking about the Union, in violation of Section 8(a)(1) of
the Act. Our Way, Inc., 268 NLRB 394 (1983). Addition-
ally, because Respondent's rule restricted only conversa-
tions about the Union, it is discriminatory and, therefore,
also violative of Section 8(a)(1) of the Act. Liberty Nurs-
ing Homes, 245 NLRB 1194 (1979).
N. Respondent's Interference with Board Processes
The record is uncontroverted that Jana Harrison had
given an affidavit to the Board in a prior case with the
Respondent Under the circumstances in this case, specif-
ically on 21 April, Manager Balentine told Harrison he
had read her Board affidavit and knew from previous
conversations that she was the one who had said those
things.
Manager Balentine acknowledged in his testimony that
he made the latter statement to Harrison but said he had
not in fact read her affidavit.
Conclusion
I find Balentine's technical explanation that he had not
in fact read Harrison's affidavit immaterial, since he cre-
ated the impression to Harrison that he had access to the
contents of her statement. The Board has long held that
an employer violates Section 8(a)(1) of the Act if it cre-
ates such an impression with its employees because such
an impression inhibits employees to provide such state-
ments to the Board. North Electric Co., 225 NLRB 1114,
1116-1117 (1976).
0. Respondent Required Employees to Distribute Its
Handbill
The testimony of checker Kari Steinert is uncontro-
vetted that on 19 April, Respondent (Manager Gish) di-
rected her to distribute to each customer checking out at
her register a copy of Respondent's handbill opposing
the Union, or she would be disciplined for not doing so.
Conclusion
Although the free speech right of an employer to dis-
tribute literature in opposition to the Union's position is
protected under Section 8(c) of the Act, this protection
does not extend to the employer exercising his manageri-
al authority to compel employees, under threat of disci-
pline, to distribute the employer's literature in opposition
to the Union.
To allow such a mandate by management would strip
employees of the free exercise of their will guaranteed
under Section 7 of the Act and coerce employees to act
as agents of the employer. An employer who requires its
employees to convey the employer's antiunion message,
as here, violates Section 8(a)(1) of the Act. R. L. White
Co., 262 NLRB 575, 576 (1982). Moreover, such an
order by an employer amounts to such a managerial
mandate that it coerces employees to act as an agent of
the employer, in violation of Section 8(a)(1) of the Act.
Pillowtex Corp., 234 NLRB 560 (1978).
P. Respondent Prohibited Employees Wearing Union
Insignia
It is uncontroverted that on 25 April, Manager Gish
ordered checker Kari Steinert to remove a union sticker
she was wearing on her smock because it offended cus-
tomers, and if she did not remove it, she would be writ-
ten up. On the same day, Manager Gish ordered checker
Linda Brooks to remove a union sticker she was wear-
ing, or be disciplined. Also on 25 April, Manager Balen-
tine ordered checker Jana Harrison to remove the union
sticker she was wearing or be disciplined.
The evidence is also uncontroverted that for 2 months
employee Steinert had been wearing a "keep smiling"
button when Manager Gish ordered her to remove the
union sticker. He did not order her to remove the "keep
smiling" button. Both Jana Harrison and Linda Brooks
testified that they had worn similar buttons in the past
without any objections from management. Respondent
did not produce any evidence that customers were of-
fended or that work had been interrupted in any way by
employees wearing the union insignia.
Conclusion
The Supreme Court has long recognized the right of
employees to wear union insignia without interference by
the employer. Republic Aviation Corp. v. NLRB, 324 -QS.
793 (1945). Moreover, the Board has held that mere con-
tact with customers is not such an interference with
work performance or business to justify such a prohibi-
tion of wearing union insignia, absent a showing of spe-
cial circumstances. Burger King Corp., 265 NLRB 1507,
1507-1508 (1982).
In the instant case, Respondent did not establish any
special circumstances to justify its prohibitions against
union insignias.
Q. Threat of Unspecified Reprisal
The uncontroverted evidence of record shows the fol-
lowing:
In referring to the union activity of the employees on
12 April, Balentine told Linda Brooks to settle down,
quit the bickering among themselves, and if they could
not, he would see that things were settled.
As previously found here, Balentine told Jana Harrison
on 21 April that as long as he owned the store there
would be no contract and there would be no Union.
On 13 June Balentine told Constanza, Jana Harrison,
and Linda Brooks that he had other options to signing a
contract, including selling or closing the store. The law
is well settled that such statements constitute unspecific
threats of reprisal against employees' union interest, in
CLINTON FOOD 4 LESS 613
violation of Section 8(a)(1) of the Act. In Roskin Bros.,
274 NLRB 413 (1985), the company's agent announced
to employees, "we know what's going on and we're
going to fix it'
R. Informing an Employee She is Disciplined Because
of Union Friends
As previously found here, on 28 April, Manager Gish
told checker Steinert she was written up for altering Re-
spondent's handbill, and she could blame her union
friends for doing this to her. Respondent's conduct in
this regard is unlawful because an employer violates Sec-
tion 8(a)(1) of the Act if it tells an employee his or her
union activities are the reason for being disciplined.
Woody's Truck Stops, 258 NLRB 705, 706-707 (1981).
S. Declining Request for Union Representation During
Disciplinary Interview
On 23 April employee Randy Carroll was informed he
had to take a lie detector test and he would be terminat-
ed if he did not take it. Carroll requested the presence of
a union representative during the test but the examiner,
after inquiring of management, informed him that he
could not have representation because the matter did not
pertain to the Union. Carroll submitted to the test and
was later fired. His discharge, however, is not an issue in
this proceeding. I find, however, that the examiner,
Berkland, who relayed the answer to the inquiry of man-
agement, is an agent in fact of Respondent, as well as an
agent within the meaning of Section 2(13) of the Act.
Conclusion
The courts and the Board have repeatedly held that
the denial of an employee's request for the presence of a
union representative during an investigatory interview
that the employee reasonably believes may result in dis-
ciplinary action, violates Section 8(a)(1) of the Act.
NLRB v. J. Weingarten, 420 U.S. 251 (1975).
T. Employer Photographs Picketer
The evidence is uncontroverted that although employ-
ee Terry Dozier picketed on the sidewalk in front of Re-
spondent's store on 13 June, Store Owner Balentine pho-
tographed Dozier.
In Waco, Inc., 273 NLRB 746, 747 (1984), the Board
held that an employer violates Section 8(a)(1) of the Act
if it photographs unlawful picketing in the absence of
proper justification. In the instant case, the lawfulness of
the employees picketing is uncontroverted. Also, the
record fails to show that Respondent offered any evi-
dence as justification for photographing picketer Dozier.
I therefore conclude and fmd that Respondent's act of
photographing Dozier while picketing violated Section
8(a)(1) of the Act. Waco, Inc., supra.
U.Another Complaint Issued Against Respondent
During Pendency of this Decision
Although a decision in the instant proceeding was
pending before me, charges of unfair labor practices
were filed against Respondent on 4 September 1986 by
checkers Linda Brooks and Jana Harrison. Pursuant
thereto, the Regional Director issued a complaint in
Cases 17-CA-13113-1 and 17-CA-13113-2, respectively,
on 3 October 1986 alleging in essence as follows:
On or about 23 August 1986, Respondent termi-
nated the employment of checkers Linda Brooks
and Jana Harrison because of their membership in
and activities on behalf of the Union, in violation of
Section 8(a)(1) and (3) of the Act, and because they
gave testimony during the investigation and hearing
in the instant Board preceding, in violation of Sec-
tion 8(a)(1) and (4) of the Act.
Consequently, on 5 December 1986, the General
Counsel moved to reopen the record, and pursuant
to Board's Rules and Regulations, consolidate the
complaints in Cases 17-CA-13113-1 and 17-CA-
13113-2 with cases in the instant proceeding. The
General Counsel's motion was granted 10 Decem-
ber 1986. However, the issues in Case 17-CA-
13113-2, involving Jana Harrison having been set-
tled by the parties, was severed from 17-CA-
13113-1, and will not be litigated in this proceeding.
Brooks' case (17-CA-13113-1) was heard by me in
Clinton, Missouri, on 17 December 1986.
Linda Brooks last testified in this original pro-
ceeding on 20 August 1986 and she did not work in
Respondent's store that day. While the trial was still
in progress, she did work in Respondent's store
from 8 a.m. to 4 p.m. on 21 August, from 8 a.m. to
5 p.m. on 22 August, and from 8 a.m. to 5 p.m. on
23 August, the day the trial in the instant proceed-
ing closed. About 15 minutes before the shift ended
on 23 August, however, Brooks was called to the
office where she was called to the office where she
was given a notice by manager Gish which advised
that her employment was terminated because:
1.She received a write up for being rude to a
customer 28 April.
2. She was suspended for 2 weeks on 8 May
for being rude to a customer.
3. One of the same customers testified in this
original proceeding that during the week of the
trial, Brooks was again rude to her.
In response to the testimony given by Respondent's
witness, Pam Corum, in the original proceeding, Linda
Brooks now testifies that she recalled waiting on custom-
er Pam Comm on 21 August while this original proceed-
ing was in progress. She said at that time that she greet-
ed Corum, checked out her groceries, told her the total
of her bill, accepted her money, and told her "Thank
you." Brooks denied throwing Corum's groceries to the
bagging stop, or throwing her change down, and said
she always thanked Comm and had never been rude to
her or to any other customer. Pam Corum did not testify
in this reopened session of this proceeding.
After Brooks testified concerning the prior testimony
of customers Comm and Mayfield, Respondent did not
confine its examination to matters concerning the testi-
mony of Corum and Mayfield, but instead proceeded to
question Brooks about very remote and somewhat unspe-
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cific events that occurred more than 5 years ago (prior
to 1980) regarding Brooks' refusal to cash a check for a
customer. However, Respondent's examination of Brooks
in that regard did not establish she was rude to the cus-
tomer because after she explained to management why
she did not cash the check, the explanation was appar-
ently accepted because the matter was dropped by man-
agement without any reprimand of Brooks.
Further probing into very remote matters, Respondent
presented the testimony of Melody Balentine, coowner
and wife of Balentine, regarding an incident with
Brooks. M. Balentine testified that 6 or 7 years ago, while
reprimanding Brooks about a matter, the nature of which
she could not recall, Brooks hung up the telephone on
her. She told Balentine about it and Brooks acknowl-
edged in her testimony, that Balentine told her she was
rude to his wife on the telephone, and he reminded her
that M. Balentine was her boss also, and whenever she
talks to her, Brooks should listen. M. Balentine said she
did not write up Brooks or make a record of the inci-
dent. She also noted that she had reprimanded another
employee for refusing to debone a chicken for a custom-
er, and that employee is still in Respondent's employ.
Conclusion
ki evaluating the credibility of Respondent's witnesses;
as well as the merits of its defense (the discharge of
Brooks for cause), I am constrained to consider the fore-
going remote incidents involving Brooks' contended
wrongful conduct against the backdrop of other evi-
dence o,f her work history performance.
In doing this, it is first noted that not only is the check
incident or the telephone incident of Brooks extremely
remote to her more recent (6 years) work performance
history, but her entire employment history with Re-
spondent tends to contradict and attribute little or no sig-
nificance to them. No record was made of either incident
and neither resulted in issuance of a writeup of Brooks.
Further reducing the significance placed on these
remote incidents by Respondent is the longstanding
tenure (11 years) of Brooks and the significant responsi-
bilities with which Respondent entrusted her (to make
change for checkers, access to company computers and
to take and bring money from the bank). The uncontro-
verted evidence also shows that Brooks was head check-
er and helped to write and enforce some of the courtesy
policies, one of which she is charged with having violat-
ed. During 11 years in Respondent's employ, she has
seldom been absent, arrives at work 10 or 15 minutes
before time and, at Balentine's request, accompanied him
at a Rotary Club meeting in late 1984, at which members
were to bring a female employee for recognition. Addi-
tionally, Respondent awarded Brooks a bonus of $100 in
December 1983, a bonus of $750 in June 1984, and has
given her a trip for two for lodging at the Four Seasons,
plus $100 spending money. Notably, she was also the
leading union adherent.
I therefore conclude and find on the foregoing back-
ground evidence, that Respondent has not seriously
warned or reprimanded Brooks for rude conduct any
time before the conduct for which she was disciplined in
April 1986.
This brings us to the question whether Brooks commit-
ted another infraction of store policy for which she had
been previously disciplined in April. The only evidence
on which this determination can be made is the testimo-
ny of customer Pam Corum that Brooks was rude to her
in August, and Brooks' denial on direct and cross-exami-
nation that she was rude to Corum. In the original pro-
ceeding Brooks denied she was discourteous to any cus-
tomer. It is true, as Respondent argues, that Brooks was
not called back to the stand to rebut the testimony of
Mayfield and Corum. However, it is noted that Mayfield
testified that after she reported Brooks to management,
Brooks has always been courteous to her. It was only
customer Corum who testified Brooks had been rude to
her in August.
Because Brooks had previously testified that she had
not been discourteous to any customers, including cus-
tomer Corum, perhaps the General Counsel did not
deem it profitable to have Brooks resume the stand to
again deny that she was not rude to any customers, the
conflict in testimony having raised a question of credibil-
ity. However, be that as it may, I do not credit the testi-
mony of customer Corum that Brooks was rude to her in
August or any time after she had been disciplined by Re-
spondent. First, as I indicated in section III,K, the penul-
timate paragraph of this decision, I was not fully per-
suaded by the demeanor of Pam Corum that she was
telling the full truth. This is so because I received the
impression that Corum was a bit partial towards Re-
spondent and was exaggerating in her testimony. She did
not testify in this extended session of this proceeding. I
had misgivings about the credibility of Corum's testimo-
ny then and now for additional reasons.
Brooks has been employed by Respondent 11 years.
Although she was reprimanded in April and disciplined 8
May for being rude to customers Corum and Mayfield,
she returned to work. Her return to work at least sug-
gests that she either wanted or badly needed her job.
Having been disciplined (suspended 2 weeks) for having
been discourteous to customers, I do not believe Brooks
would have returned to work and engaged in discourte-
ous conduct with the same customer (Corum) who re-
ported her to management, and for which report she was
disciplined. A person with meager intelligence would not
have indulged in such repetition and I was persuaded by
the demeanor of Brooks that she was testifying truthful-
ly; that she is intelligent and also appeared too much in
need of her job to have been discourteous to any of Re-
spondent's customers, not to mention customer Comm.
Moreover, I also discredit Corm's testimony because
when asked had she informed Respondent that Brooks
had been rude to her in August, she said, "No." Re-
spondent therefore first learned of Corum's assertion that
Brooks was rude to her in August when Corum testified
in the original session of this proceeding in August. If
Brooks had in fact been rude to Corum again in August,
it appears logical and realistic that Corum would have
reported such fact to Respondent.
CLINTON FOOD 4 LESS 615
Finally, I also credit Brooks' denial that she was rude
to Corum because I must consider the credited record
evidence as a whole. In doing so, I cannot ignore the
union animus, the pervasive unfair labor practices com-
mitted by Respondent, as well as the diligence of man-
agement to undermine the efforts of, and rid itself of the
Union. Such evidence is more than ample to infer that
Respondent's discharge of Brooks was discriminatorily
motivated by her membership in, and her leadership on
behalf of the Union, in violation of Section 8(a)(1) and
(3) of the Act; and also because she gave testimony in
the investigation and hearing of this proceeding, in viola-
tion of Section 8(a)(1) and (4) of the Act.
I have found pervasive unfair labor practices commit-
ted by the Respondent in this case. The credited record
evidence seems to imply on the one hand, that Union
Representative Mike Constanza was a zealous union rep-
resentative who sometimes resorted to uncomplimentary
tactics (misrepresenting himself as Respondent's counsel)
to win over employees. He also might have made himself
personally disliked by the Respondent. On the other
hand, having observed the owners of Respondent, the
Balentine's, testify, I perceived them as a fme, typically
American young couple operating a grocery business to
the best of their ability. The evidence indicates they did
not want their business unionized or did not want to deal
with Constanza, the union representative of their em-
ployees. Their efforts to prevent unionization or to avoid
dealing personally with Constanza resulted in substantial
violations of the Act, perhaps due more to their lack of
knowledge of the law than to any intended violation. But
a violation of the Act need not be motivated by an
intent, and any violation of the Act, irrespective of
intent, calls for remedies prescribed by the Board and the
courts.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and that it take cer-
tain affirmative action necessary to effectuate the policies
of the Act.
Having found that Respondent failed and refused to
bargain in good faith in several respects with the Union,
Respondent has violated Section 8(a)(1) and (5) of the
Act; that having interfered with, coerced, and restrained
employees in the exercise of their protected Section 7
rights in several respects, Respondent has violated Sec-
tion 8(a)(1) of the Act; that having discriminated against
the hire, tenure, or terms and conditions of employment
of its employees by assigning them different duties or dis-
charging them, Respondent has violated Section 8(a)(1)
and (3) of the Act; that Respondent, having discriminat-
ed against the hire, tenure, or working conditions of em-
ployees because they gave a statement or testimony
before the Board, has violated Section 8(a)(1) and (4) of
the Act; and the recommended Order will provide that
Respondent cease land desist from engaging in such un-
lawful conduct; that it be ordered to recognize and, on
request, bargain in good faith with United Food and
Commercial Workers Local No. 576, AFL-CIO and
CLC, as the exclusive collective-bargaining representa-
tive of its employees in the appropriate bargaining unit;
and that it make Linda Brooks whole for any loss of
earnings she may have suffered within the meaning and
in accord with the Board's decision in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977), 6 except as specifically modified by
the wording of such recommended Order.
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. By the following acts and conduct the Respondent
has violated Section 8(a)(1) and (5) of the Act:
(a) Since about 24 October 1985 Respondent has failed
to timely submit a contract proposal to the Union.
(b) Refusal to meet and bargain with the Union at rea-
sonable times and places.
(c) Bargained with a fixed mind or position not to
reach an agreement with the Union.
(d) Since 24 October 1985 failed and refused to furnish
the Union requested information.
(e) About 9 April 1986 canceled a negotiation meeting
scheduled for 11 April 1986 and withdrew recognition of
the Union as the exclusive collective-bargaining repre-
sentative of the unit.
(f) By overall acts and conduct, failed and refused to
bargain in good faith with the Union, as the exclusive
collective-bargaining representative of its unit employees.
- 2. On various dates between 12 and 28 April 1986, Re-
spondent has engaged in the following acts and conduct
in violation of Section 8(a)(1) of the Act.
(a) Interrogated its employees concerning their union
membership, activities, and sympathies.
(b) Informed employees that Respondent would not
bargain with the Union as their collective-bargaining rep-
resentative.
(c) Promised employees increased wages or benefits if
they rejected the Union as their bargaining representa-
tive.
(d) Solicited employees' complaints and grievances and
promised them increased benefits and better working
conditions if they rejected the Union.
(e) Prohibited employees from talking about the Union
at any time while in its store and threatened them with
discipline if they did so.
(1) Informed an employee that it had read the affidavit
that she had given to the Board.
(g) Instructed employees to give or insert Respond-
ent's antiunion handbills in customers' grocery sacks as
they checked out customers, and threatened them with
discipline if they refused to do so.
(h) Prohibited employees from displaying union insig-
nia while in Respondent's store, and threatened to disci-
pline them if they did so.
(i) Threatened employees with unspecified reprisals be-
cause they formed, joined, or supported the Union.
(j) Informed an employee that she was being disci-
plined because of her union activities and her union-sup-
porting friends.
6 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(k) Informed employees and their union representative
that they could picket on the sidewalks in front of its
store, and caused warrants to issue for their arrests when
they did so picket.
(1) Initiated, assisted, supported, solicited, and submit-
ted a disaffection petition of its unit employees.
(m) Refused an employee's request for union represen-
tation during an interview in which the employee had
reason to believe would lead to his discharge.
3. Respondent has discriminated against its employees
in violation of Section 8(a)(1) and (3) of the Act by its
act and conduct as follows.
(a) Since about 25 April 1986, Respondent has altered
the work duties of employees Linda Brooks, Kari Stein-
ert, and Jana Harrison.
(b) About 28 April 1986, Respondent issued a discipli-
nary write-up to employee Kari Steinert.
(c) On 23 August 1986, and continuing to date, Re-
spondent has discriminated against employee Linda
Brooks, in regard to her hire and tenure, to discourage
her membership in and support of the Union.
4. Respondent has violated Section 8(a)(1) and (4) of
the Act by, on 23 August 1986, discriminating against
employee Linda Brooks in regard to her hire and tenure,
to discourage employees from giving statements and tes-
timony before the Board.
5. All the employees described below employed by the
Respondent constitute an appropriate unit for purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time employees em-
ployed by Respondent at Respondent's facility in
the handling or selling of merchandise or perform-
ing other services instrumental thereto except
bakery department employees, meat department em-
ployees, office clericals, guards and supervisors as
defined in the Act.
6. At all times material, United Food and Commercial
Workers Local No. 576, AFL-CIO and CLC, has been
the exclusive collective-bargaining representative of the
employees in the above-described appropriate unit within
the meaning of Section 9(a) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 7
ORDER
The Respondent, Co-Jo, Inc. d/b/a Clinton Food 4
Less, Clinton, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union
membership, activities, and sympathies.
(b) Informing employees it would not bargain with the
Union as their collective-bargaining representative.
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
(c) Promising employees increased wages or benefits if
they reject the Union as their collective-bargaining rep-
resentative, soliciting employees' complaints and griev-
ances, and promising them increased benefits and better
working conditions if they reject the Union.
(d) Prohibiting employees from talking about the
Union during any time while they are in the store, and
threatening them with discipline if they do so.
(e) Informing employees Respondent had read their af-
fidavit or statements submitted to the Board.
(t) Instructing employees to give or insert antiunion
handbills in customers' grocery sacks as they check out,
and threatening them with discipline if they refuse to do
SO.
(g) Prohibiting employees from displaying union insig-
nia while in the store, and threatening to discipline them
if they do.
(h) Threatening employees with unspecified reprisals
because they form, join, or support the Union.
(i) Informing employees they are being disciplined be-
cause of their union activities or their union-supporting
friends.
(j) Informing employees and their union representative
that they cannot picket on the sidewalk in front of Re-
spondent's store, and causing warrants to issue for their
arrest if they do.
(k) Initiating, assisting, supporting, soliciting, or sub-
mitting a disaffection petition on behalf of unit employ-
ees.
(1) Refusing an employee's request for union represen-
tation during an interview the employee has reason to
believe would lead to his or her discharge.
(m) Failing to timely submit contract proposals to the
Union.
(n) Refusing to meet and bargain with the Union at
reasonable times and places.
(o) Bargaining with a fixed mind or position not to
reach an agreement with the Union.
(p) Failing and refusing to furnish the Union requested
information.
(q) Failing and refusing to bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of unit employees.
(r) In any manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Linda Brooks whole for any loss of earnings
or other benefits she has sustained as a result of the dis-
crimination against her.
(b) Rescind and remove from personnel files and com-
pany records the discriminatory writeup issued to Kari
Steinert, and notify her in writing by mail that this has
been done and that the writeup will not be used against
her in any way.
(c) Offer Linda Brooks immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings
CLINTON FOOD 4 LESS 617
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the decision.
(d) On request bargain with United Food and Com-
mercial Workers Local No. 576, AFL-CIO and CLC as
the exclusive collective-bargaining representative of the
employees in the above-described appropriate unit con-
cerning terms and conditions of employment, and if an
understanding is reached, embody the understanding in a
signed agreement.
(e) 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.
(f) Post at Respondent's store and place of business at
1405 East Ohio Street, Clinton, Missouri, copies of the
attached notice marked "Appendix." 8 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT fail and refuse to bargain in good faith
with the Union by engaging in the following conduct:
(a) Fail to timely submit contract proposals.
(b) Refuse to meet and bargain at reasonable
times and places.
(c) Bargain with a fixed mind and position not to
reach a position with the Union.
(d) Refuse to furnish requested information to the
Union.
(e) Cancel negotiation sessions and withdraw rec-
ognition of the Union.
(f) By our overall acts fail and refuse to bargain
in good faith with the Union.
WE WILL NOT interfere with, coerce, or restrain our
employees in the exercise of their rights guaranteed by
Section 7 of the Act, by:
(g) Interrogating our employees about their union
membership, activities, and sympathies.
(h) Telling our employees we will not bargain
with the Union as their collective-bargaining repre-
sentative.
(i) Promising employees increased wages or bene-
fits if they reject the Union as their collective-bar-
gaining representative.
(j) Soliciting employee complaints and grievances
and promising them improved benefits.
(k) Prohibiting employees from talking about the
Union at any time.
(1) Telling employees we have read their state-
ment or affidavit they have given to the National
Labor Relations Board.
(m) Ordering employees to distribute antiunion
handbills on our behalf, and threatening them with
discipline if they refuse to do so.
(n) Prohibiting employees form wearing their
union insignia while at work, and threatening them
with discipline if they do.
(o) Threatening employees with unspecified re-
prisals because they form, join, or support the
Union.
(p) Telling employees they are disciplined be-
cause of their union activities and their union
friends.
(q) Informing employees they cannot picket on
the sidewalk and causing issuance of warrants for
their arrest when they picket on the sidewalk.
(r) Initiating, assisting, supporting, soliciting, and
submitting a union disaffection petition on behalf of
unit employees.
(s) Refusing employees' request for union repre-
sentation at an interview employees have reason to
believe will result in their discharge.
WE WILL NOT discourage employees' membership, or
support of the Union, or any other labor organization,
by:
(t) Issuing them a disciplinary writeup.
(u) Altering their work duties.
(v) Discharging them for supporting the Union.
(w) Discharging them for giving a statement or
affidavit to the National Labor Relations Board.
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Linda Brooks immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or any other rights or privileges
previously enjoyed and WE WILL make her whole for
any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL retract and remove from the personnel
records of Kari Steinert the disciplinary writeup that we
issued to her.
WE WILL, on request, bargain with United Food and
Commercial Workers Local No. 576, AFL-CIO and
CLC as the exclusive collective-bargaining representative
of the employees in the appropriate unit described
below:
All full-time and regular part-time employees em-
ployed by Respondent at Repondent's facility in
the handling or selling of merchandise or perform-
ing other services instrumental thereto except
bakery department employees, meat department em-
ployees, office clericals, guards and supervisors as
defmed in the National Labor Relations Act as
amended.
All our employees are free to become, remain, or
refuse to become or remain, members of United Food
and Commercial Workers Local No. 576, AFL-CIO and
CLC or any other labor organization.
Co-Jo, INC. D/B/A CLINTON FOOD 4 Less
ORDER GRANTING CHARGING PARTY'S
MOTION TO QUASH AND HAVE
RETURNED TO IT RECORDS SUBPOENAED
BY RESPONDENT'S COUNSEL
During a bench conference at the commencement of
the trial in the above-captioned case on 18 August 1986,
counsel for the Charging Party Union (Local 576),
Jerome F. X. Waterman, informed me that Respondent
had a subpoena served upon the Union at 4:30 p.m.,
Friday, 15 August 1986. Specifically, the subpoena was
served upon Union president, Mike Boyd by Respond-
ent's attorney-negotiator, Richard Noble. The subpoena,
requested among other things, the personnel file of the
Union's secretary-treasurer, Michael Constanza, includ-
ing all written reports, complaints and comments on the
conduct of Michael Constanza. President Boyd tried to
contact Union attorney Waterman without success. Mr.
Noble told Boyd if he surrendered a copy of the request-
ed information to him (Noble), he (Boyd) would not
have to come from Topeka to trial in Clinton, Missouri,
on Monday, 18 August 1986, and sit all day as keeper of
the records. Boyd thereupon gave copies of the subpoe-
naed documents to Mr. Noble.
Union counsel Waterman did not see the documents
concerning Constanza until 10:30 a.m. on the morning of
the trial (8-18-86), when counsel for the Respondent
showed them to him.
Mr. Waterman therefore moved to quash the subpoena
and have the documents returned to the Union on the
ground that the information therein was irrelevant to the
issues in this proceeding. Mr. William C. Nulton, counsel
for Respondent, objected and argued that the subpoe-
naed information was relevant to the issues and impor-
tant to Respondent's defense for withdrawing recogni-
tion from the Union.
Since I had not had an opportunity to examine the
contents of the subpoenaed documents, counsel for the
respective parties agreed on the record, to allow me an
opportunity to examine them overnight so that I could
rule on the question of relevance on the next morning
(8-19-86).
Having examined the subpoenaed documents over-
night, I ruled the subpoenaed information irrelevant to
the issues in this proceeding because none of the com-
plaints or comments on Mr. Constanza's conduct came
from unit employees of Respondent. All complaints and
comments in the documents came from employees em-
ployed by other enterprises in other cities, unrelated to
the Respondent. However, this is not a situation where
the Union still had its records in its possession and was
opposing surrender of them by moving to quash Re-
spondent's subpoena. On the contrary, counsel for Re-
spondent had already obtained possession of' the records
pursuant to the subpoena, and was unwilling to return
them to the Union.
Having ruled the substance of the subpoenaed records
irrelevant to the issues in this proceeding, and not know-
ing whether Respondent had copied any of them, I de-
ferred ruling on quashing and requiring Respondent to
return the subject of the subpoena to the Union, pending
both parties submitting a brief on the question raised
under these circumstances. Not only did counsel for the
parties willingly concede to do so, but without objection,
they agreed that I should retain possession of the subpoe-
naed documents until I rule on the question.
Briefs have been received from counsel for the Re-
spondent and counsel for the Union, respectively, with
respect to the Union's motion to quash and order to
return the subpoenaed records to the Union. Both briefs
have been carefully considered by me.
In Brinks Inc., 281 NLRB 468 (1986), the Board re-
cently addressed the propriety of a hearing officer revok-
ing (quashing) a subpoena on the grounds that the sub-
ject of the subpoena was irrelevant to the issues at hand.
In granting the motion to revoke (quash), the Board ob-
served that Section 102.66(2) of the Board's Rules and
Regulations provides, in part:
The Regional Director or the hearing officer, as the
case may be, shall revoke the subpoena, if, in his
opinion, the evidence whose production is required
does not relate to any matter under investigation or
in question of the proceedings, or the subpoena does
not describe with sufficient particularity the evi-
dence whose production is required, or if for any
other reason sufficient in law the subpoena is other-
wise invalid.
The Board stated:
CLINTON FOOD 4 LESS

619
With respect to the last-mentioned grounds for re-
voking a subpoena, that is, "any other reason suffi-
cient in law," the Federal Rules of Civil Procedure
provide useful guidance although they are not bind-
ing on this agency. Specifically, Federal Rules
45(d), and [fn. omitted] dealing with subpoenas for
the production of documentary evidence, and Fed-
eral Rule 26(1) [fn. omitted] dealing with subpoenas
for the production of documentary evidence, and
Federal Rules of Civil Procedure 26(1) [fn. omitted]
and (c) [fn. omitted] regarding the scope and limits
of discovery in civil cases in federal courts, should
be consulted by Regional Directors and Hearing
Officers when rulings on motions to revoke subpoe-
nas filed under Section 102.66 of the Board's and
Regulations.
Rule 45(b) of the Federal Rules of Civil Procedure
states inter alia, that a court may, upon motion, "quash
or modify the subpoena if it is unreasonable and oppres-
sive," and that
• . . for good cause shown . . . may make any
order which justice requires to protect the party or
person from annoyance, embarrassment, oppression,
or undue burden or expense, including one or more
of the following: (1) that the discovery not be had;
(2) that the discovery may be had only upon speci-
fied terms and conditions . . . (4) that certain mat-
ters not be inquired into . . . . (7) that a trade
secret or other confidential research, development,
or commercial information not be disclosed or be
disclosed only in a designated way.
Although the Board's analysis on procedure was refer-
able to Regional Directors and hearing officers, I am
persuaded that the Board would require an administra-
tive law judge in an administrative proceeding to follow
the same procedure. Thus, having previously found and
ruled during the trial that the personnel record, including
correspondence and comments in reference to Michael
Constanza, is irrelevant, I now grant the Chargmg
Party's motion to quash Respondent's subpoena.
Respondent's subpoena is also quashed pursuant to
Rule 45(b) of the Federal Rules of Civil Procedure, be-
cause not only did my examination of the subject of the
subpoena reveal that it is irrelevant in this proceeding,
but also that it has a high probability of causing Michael
Constanza (the Union) considerable annoyance, embar-
rassment, and oppression. Consequently, witness Con-
stanza (the Union) should be protected from such discov-
ery.
Additionally, as counsel for the Charging Party appro-
priately noted at 27 C.J.S. Discovery § 87 at 273:
A party who, under rule of court, deposits books
for inspection may withdraw them after a reasona-
ble time for inspection and taking copies has ex-
pired. The books should be returned to the party
producing them after they have been inspected, al-
though they may be required on the hearing. The
court may as a condition for making an order for
production require an applicant to undertake not to
make public the contents of the documents.
It is therefore obvious that the purpose of subpoenaed
documents is to apprise the court and counsel of its exist-
ence and relevance to the issues in the proceeding. The
subpoena does not confer property ownership of the
documents or their contents in the party who compelled
their production by subpoena. In the instant case, the
subpoenaed documents having been reviewed by the
court and counsel for the respective parties, and having
been ruled irrelevant, have served their purpose. That
purpose having been served, the subpoenaed records, or
any copies made of them, should be returned to the
Charging Party. The subject of the subpoena should be
returned to the Charging Party because, I also fmd that
failure to do so, would cause the Charging Party consid-
erable annoyance, embarrassment, and oppression, when
their contents are totally irrelevant to this proceeding.
Accordingly, I am forwarding by certified mail to
counsel for Respondent, all of the documents subpoenaed
by the Respondent, and IT IS HEREBY ORDERED, in view
of the foregoing, that Charging Party's motion be, and
the same is, granted; and that Respondent's counsel is
specifically ordered to return to the Charging Party
forthwith, all records produced by it pursuant to the sub-
poena, and if any, all copies made of them.