Lucky Stores, Inc.

LUCKY STORES. INC. Lucky Stores, Inc. and United Food and Commercial Workers International Union, AFL-CIO, Local 839.' Case 32-CA-864 September 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 5, 1979, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Decision and in response to Respondent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Lucky Stores, Inc., Watsonville, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I The name of the Charging Party, formerly Retail Clerks International Union, Local 839, AFL-CIO, is amended to reflect the change resulting from the merger of Retail Clerks International Union and Amalgamated Meatcutters and Butcher Workmen of North America, on June 7, 1979. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on April 19, 1978, by Retail Clerks International Union, Local 839, AFL-CIO, hereinafter re- ferred to as the Union, the complaint herein was issued on May 31, 1978. On November 8, 1978, an amendment to the complaint was issued. The complaint, as amended, alleges that Lucky Stores, Inc., hereinafter referred to as the Re- spondent, violated Section 8(aXl) of the Act by unlawfully interrogating employees on three separate occasions and by also coercing and intimidating an employee because of his protected activity on the last of said occasions. Respondent, by its answer, denies that it engaged in the alleged unlawful conduct. Pursuant to notice a hearing was held in Watsonville, California, on December 11, 1978. Appearances were en- tered on behalf of General Counsel and Respondent and briefs were timely filed by said two parties. Based upon the entire record' in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent admitted the following allegations in the complaint: Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in San Leandro, California, where it is engaged in the business of the retail sale of grocery and related products. During the past 12 months, Respondent, in the course and conduct of its business operations, derived gross rev- enues in excess of $500,000; it also purchased and received goods or services valued in excess of $5,000 which origi- nated outside the State of California. Respondent admits that it is, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The only facility of Respondent involved in this proceed- ing is its store number 36 in Watsonville, California. At all times material herein, David Ruiz occupied the position of manager of said store, and it is found that during said time he was not only a supervisor within the meaning of Section 2(11) of the Act, as admitted by Respondent, but also was its agent acting on its behalf within the meaning of Section 2(13) of the Act. The unfair labor practices alleged in the complaint, as amended, were all predicated upon the conduct of Ruiz. It is alleged that he unlawfully interrogated employees of said As indicated in the transcript of the proceeding, the last portion thereof was not transcribed because the tape recordings of the remainder of the proceeding were lost. The missing portion consisted substantially of the tes- timony of Clarence William Amos. The parties entered into a joint motion and stipulation where they set forth the substance of his testimony and waived their rights to his further examination or cross-examination. By order issued January 25, 1979, I received said stipulation in the record as their joint exhibit. It was further stipulated therein that G.C. Exhs. 2 and 3 were re- ceived into the record. 245 NLRB No. 79 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store number 36 in mid-March 1978, on or about April 12, and on or about August 11, 1978. It is also alleged that on or about August 11, 1978, he "coerced and intimidated an employee because he had engaged in union activities." The only witnesses who testified were called by the General Counsel, and, since their testimony is uncontradicted and credible, it is credited. According to the stipulated testimony of Amos, he is the president of the Union and on the following dates he visited the store and spoke to Ruiz concerning allegations that courtesy clerks ("bag boys") were performing certain work contrary to the terms of the collective-bargaining contract in effect between Respondent and the Union: (a) About the middle of March, 1978; (b) On April 6, 1978; and (c) On April 12, 1978. Claud Osborn, an employee, testified that when he deliv- ered some invoices to Ruiz' office in mid-March 1978, Ruiz asked him, "Do you know who called the Union?" to which he replied, "Gee, I sure don't." While Osborn testified that Ruiz did not indicate what the call to the Union had refer- ence to, Osborn did testify that he had seen Amos in the store a day or two prior to the day he was questioned by Ruiz.' Leroy Shiflet, an employee, testified that he was sum- moned to Ruiz' office in the evening of April 12, 1978, and that when he arrived Ruiz and another employee, Jim Hicks, were present. Shiflet's testimony continues as fol- lows: A. Mr. Ruiz asked me if I had called the Union pertaining to the bag boys doing duties that were not in line with the contract. I told Mr. Ruiz that I had not called the Union on that particular item. Q. Did he ask you anything else? A. He asked me if I knew who had. I told Mr. Ruiz I did not. Q. Do you recall whether Mr. Ruiz said anything else? A. He asked me if I called the Union about Mr. Sweeny. Q. Do you know what he was referring to when he asked you this? A. I did not. Q. (By Mr. Sotolongo) Who was Mr. Sweeny? A. Mr. Sweeny is the assistant manager. Q. What happened after this? A. Mr. Ruiz kept asking me if I knew who had called the Union. I told Mr. Ruiz I did not and I told him further that I would not answer anymore of his questions unless I was represented by my representa- tive from the Local Union 839 from Salinas. Q. What occurred then? A. Mr. Ruiz got very mad and told me to go back to work. 2 It is noted that according to Amos' credited testimony, he spoke to Ruiz in mid-March about the bag boys doing work contrary to the provisions of the contract. In his cross-examination. Shiflet testified that in the course of his conversation with Ruiz, Ruiz stated that he would prefer to deal with problems concerning potential violations of the contract first rather than hearing about them from the Union. It is noted that according to Amos' credited testimony, he spoke to Ruiz on April 6 and April 12 about bag boys doing work contrary to provisions of the contract. By way of defense Respondent introduced a letter ad- dressed to Shiflet dated July 14, 1978 (with a copy sent to the Union), signed by Walter H. Herkal, Jr., Respondent's industrial relations manager. In its brief, Respondent ar- gues that no remedial order is required for Ruiz' interroga- tion of Shiflet by virtue of said letter. Said letter reads as follows: It has come to our attention that you claim to have been questioned by Lucky Stores management person- nel regarding whether your [sic] or other employees have made complaints to the Union about store opera- tions. Our investigation of this claim reveals that a dis- pute exists as to what actually happened, but we have concluded that no such interrogation occurred in viola- tion of the National Labor Relations Act. However, we do wish to apologize for any misunderstanding that may have resulted from this incident. You should be aware that the National Labor Rela- tions Act gives all employees the rights to organize themselves, to form, join or help unions to bargain as a group through a representative they choose, to act to- gether for collective bargaining or other mutual aid or protection, and to refuse to do any or all of these things. It has been the consistent policy of Lucky Stores, Inc. not to do anything that interferes with those rights and we certainly do not unlawfully ques- tion our employees regarding their union activities or the union activities of others. More specifically, it is not Lucky Stores' policy or practice to question any of our employees regarding whether they or any other employee have made complaints to the Union about store operations. If you feel that any management per- sonnel take actions in violation of any of these policies, do not hesitate to contact me directly either personally or through your Union. It is noted that said letter was sent by Respondent over 3 months after the incident occurred, about 3 months after the charge was filed and 1-1/2 months after the issuance of the complaint. It is also noted that said letter neither dis- avows nor repudiates Ruiz' conduct but rather contends that no unlawful interrogation occurred, as it understands Shiflet's claims, and merely apologizes for "any misunder- standing that may have resulted from this incident." The letter does state that it is not the policy or practice of Re- spondent to violate any of the rights employees are granted under the Act, including questioning employees whether they or other employees "have made complaints to the Union about store operations." Respondent's argument based on said letter is considered below. The last two allegations of unfair labor practices are based upon the same incident which occurred on August I , 1978. It appears necessary to set forth the circumstances which led up to said incident. The parties entered into the 648 LUCKY STORES. IN(C. following stipulation: "that on July 19, 1978. Teamsters Lo- cal 315 struck Safeway, that on August 6, ocal 287 of the Teamsters struck Alpha Beta and Ralph's, that Safeway, Lucky (Respondent). Alpha Beta and Ralph's. were bar- gaining as part of a multiemployer group at that time with eight Teamsters Locals, and that on or about August 7. or 8 Lucky Stores engaged in a defensive lockout against the various Teamsters Unions that were representing its em- ploy ees." By letters dated July 31 and August 9, 1978. and signed by Amos, the Union notified its members, including the employees at the store involved herein, of the ongoing strike by the Teamsters and of the facts that the strike had been sanctioned by the Union, that their refusal to pass through Teamster or IAM picket lines was protected under their Union's contract with their Employer, and that crossing or working behind said picket lines "max be subject to Union discipline." It is noted, according to Amos' stipulated testi- mony, that the strike sanction granted by the Union was "on the condition that the Teamsters maintain pickets on a twenty-ftour (24) hour basis at the stores involved in the primary economic labor dispute." Emilio DaSilva testified that on August I I he was se, ing as night crew manager.' Following is a summarN of his credited testimony. He arrived at about 10 p.m. and discov- ered certain equipment had been "tampered with;" i.e.. the key was missing from the forklift, and two steel plates were missing which were required to drive the forklift onto a truck or van to unload it. Not long after he arrived, a trac- tor truck hauling two vans "pulled into the pit to unload." He (DaSilva) asked the driver if he was a union driver, and he said he was not. Apparently at that point, Shiflet went to a pay phone and called Amos. After Shiflet spoke to Amos. DaSilva took over the phone from Shiflet and told Amos that there was a noncompany truck with a nonunion driver at the store to be unloaded and asked Amos, "[Wlhat should we do?" Amos told him "none of us were to go into the truck." DaSilva then went into the office and called Ruiz at his home and repeated the circumstances with which the employees were confronted, including apparently Amos' instruction and the situation about the forklift and the missing plates. It is apparent from DaSilva's testimony that Ruiz understood from his conversation with DaSilva that Amos' instruction not to unload the vans resulted from a phone call to Amos initiated by an employee other than DaSilva. Ruiz arrived at the store about 25 minutes later. DaSil- va's testimony continues as follows: Q. Would you tell us what occurred when Mr. Ruiz arrived in the store? A. He called a meeting of all the employees in the store to the back room, to the storage area. Q. How many employees did you say there were? A. About eleven to thirteen employees. Q. What occurred when the employees came into the back? It appears that he was a member of the Union. No issue was raised or testimony elicited as to whether or not he was a supervisor within the mean- ing of the Act. In any event, a resolution of that question is not material to a resolution of the issues herein. A. Well. when we all gathered in the back in a cir- cle, he stood in the middle. He asked: Who called the UJnion. Q. Did he say anything else'? Was there any re- sponse to that'! Jit.);l GII.HIRI: Was there a response? 1111 WIINFSS: Yes. I responded. I said that I had talked to Bill Amos. And then he asked again: Who called the Union? And then at that point. Dick Shitlet said: I called the Union. Q. (By Mr. Sotolongo) What occurred then, Mr. DaSilva? A. Dave Ruiz became really upset and he went right up to Dick Shiflet's face. He started screaming right into his face and called him all kinds of names. Q. What kind of names did he call him? A. He was a malignant cancer. we should all stay away from him, that we should try to avoid him at all cost. He just went on and on. Q. What tone of voice was he using? A. He was really angry. He was just screaming six inches away from his face. Q. Do you remember some of the other things he said? A. He just called him about the most debasing things that you could call a man. Q. How long did this go on? A. Ten, fifteen minutes. Q. Did Mr. Shifet say anything or do anything? A. No. He just froze there. Q. Were the other employees there when this was happening? A. Yes. We were ll there. Q. After this occurred. what happened' A. He told Dick Shiflet to get out, to go out and work and to get out of his sight. And then he told us a few more things. We had some missing equipment, missing unloading plates, and we need those plates to unload the trucks, and they were missing from the establishment. Thereafter the employees unsuccessfully searched for the missing plates, and while DaSilva did not go into the vans, he assisted the truckdriver and Ruiz (who unloaded the vans) by driving the forklift (apparently on the loading plat- form). It appears that the forklift was made operable by fusing some wires. None of the employees assisted in the unloading, and DaSilva told Ruiz he would assist in the unloading but would not go into the vans. It is noted at this point, although I do not consider it to be material to a resolution of the issues herein, that there was no picketing at the store involved herein by the Teamsters on August I I or prior thereto. Resolution of the Issues Clearly the inference may be drawn that the interroga- tion of Osborn in mid-March and of Shiflet on April 12 by Ruiz as to calling the Union was prompted by Ruiz' resent- ment that complaints had apparently been lodged b one or more employees that bag boss were used for work contrary 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the provisions of the union contract. Also, the inference may be clearly drawn that the interrogation of the I to 13 employees at the meeting Ruiz called on the night of Au- gust I as to who called the Union was prompted by resent- ment that an employee had made a call to the Union to elicit advice about unloading the vans driven by a non- Teamster driver. Although the three incidents were spread over a period of approximately 5 months,nevertheless. they constitute a pattern which clearly conveyed to the employ- ees Ruiz' resentment of employees complaining to or con- sulting their bargaining representative. In any event, such inquiries of employees about their union activities are in- herently coercive and violative of Section 8(a)( 1 ) of the Act. P. B. and S. Chemical Company, 224 NLRB 1, 2 (1976) Graphic Services Corporation, 224 NLRB 17 (1976). The in- quiries had no legitimate purpose, and they were not ac- companied by any reassurances which would offset their coercive effect. The coercive effect of such interrogation was enhanced by Ruiz' verbal attack against Shiflet on Au- gust II, which was clearly based on his confession that it was he who had called the Union. In addition, the verbal attack upon Shiflet for having called the Union must have not only intimidated Shiflet but also the other employees who witnessed it, and it had the effect of coercing, restrain- ing, and interfering with employees' protected right to con- sult with their bargaining representative, in violation of Section 8(a)(l) of the Act. As to Respondent's contention that its above-quoted let- ter to Shiflet dated July 14 precludes the necessity of issuing a remedial order for Ruiz' interrogation of Shiflet on April 12, as noted above it was sent over 3 months after the inci- dent and did not either disavow or repudiate Ruiz' conduct, but rather characterized the complaint about it as merely a misunderstanding for which it apologized. The letter was neither "timely," nor an unambiguous repudiation of Ruiz' unlawful conduct. Moreover, it was followed on August II by similar and more egregious conduct. Consequently, there does not appear to be any merit in Respondent's said con- tention. Passavani Memorial Area Hospital, 237 NLRB 138, 139 (1978). In its brief, Respondent argues that the "five second con- versation with Osborn" does not demonstrate a pattern of interrogation. If the interrogation of Osborn had been the only incident, I would have been inclined to agree that, of itself, it was de minimis. With respect to the individual inter- rogation of Shiflet on April 12, Respondent seeks to slough it off by contending that Ruiz was only attempting to in- form Shiflet that "the employee had failed to follow the proper grievance procedure." The Respondent overlooks the fact that the testimony with regard to the incident clearly indicates that the main thrust of Ruiz' statements to Shiflet was an attempt to ascertain who had called the Union, which knowledge was unnecessary for Ruiz to have to point out what in his opinion would have been the proper procedure. As to the third incident, in its brief, Re- spondent relies to a great extent on the "no-strike" clause and the exception thereto (a picket line) in the collective- bargaining agreement. These matters were in no way ger- mane to the interrogation of the assembled employees as to who called the Union. Also not germane thereto were the missing key to the forklift or the missing steel plates used for unloading. These collateral matters afford no plausible reason for Ruiz' need to know who called the Union for instructions as to whether or not to unload the vans, or for Ruiz' verbal attack on Shiflet for admitting that he was the one who placed the call. It is noted that Ruiz displayed no anger toward DaSilva who received the instruction from Amos not to unload the vans and relayed it to the employ- ees. Thus, said collateral matters afford no defense to the allegations with respect to Ruiz' conduct on August I I. In finding the incidents of unlawful interrogation, I have not overlooked the case cited by Respondent, Swank Con- struction Company, 239 NLRB 844 (1978). I do not believe that said case can be said to be applicable to the facts herein. In the cited case, there was a single interrogation of a union steward as to whether he had called the Union. It was reasoned therein that that question would not tend to "inhibit" the union steward "from performing his duties as a steward in the future." IV. iF EFFECT(' OF 1llE UNFAIR LABOR PRA( II(ES UPON COMMERCE The unfair labor practices of Respondent set forth in sec- tion I1l, above, occurring in connection with its operations set forth in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. \. IFt REMEDY It will be recommended that Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as pro- vided in the recommended Order below, designed to effec- tuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by un- lawfully interrogating employees to determine who called the Union in mid-March and on April 12 and August 11, 1978, about matters relating to the contract between the Union and Respondent. 4. Respondent violated Section 8(a) I) of the Act by ver- bally abusing an employee on August 11, 1978, for having called the Union about a matter relating to said contract. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 650 l.UCKY STORES, IN('. ORDER' The Respondent. Lucky Stores. Inc.. Watsonville. ('ali- fornia. its officers. agents, successors, and assigns shall: I. Cease and desist from: (a) Unlawfully interrogating employees to determine who called Retail Clerks International Union, local 839. AFL-CIO. their collective-bargaining representative, about matters relating to its contract with said Union. (b) Verbally abusing employees for having called said Union about a matter relating to said contract. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its store number 36 in Watsonville California, copies of the notice attached hereto and marked. "Appen- dix."5 Copies of said notice on forms to be furnished by the Regional Director for Region 32, shall. after being dul In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall. as provided n Sec. 102 J48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. In the event that this Order is enforced by a Judgment of ;l United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States (ourt of Appeals Enforcing an Order of the Nalional labor Relations Board." signed by an authorized representative of Respondent. be posted by Respondent immediately upon receipt thereof and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places. including all places where notices to employees a;re customarily posted. Reason- able steps shall be taken bh Respondent o insure that said notices are not altered. deflliced. or covered hb an', other material. (b) Notif5 the Regional Director for Region 32. in wl-ri ing, within 20 days from the date of this Order. W.hat steps Respondent has taken to comply hereu itil. APPEN )IX NoIrl( t T( EPt YI (YIS POSIED BY ORDER ()f illt NAt ONAl. LABOR REI.AII()NS BARI) ,An Agency of the United States (;overnmnent WI wII.I. No) unlawfull\ interrogate employees to determine who called Retail Clerks International Union. Local 839. AFL CIO, their collective-bargain- ing representative, about matters relating to our con- tract with said Union. WE WILLt. Not verbally abuse employees for having called said Union about matters relating to said con- tract. Wtu wili. Not in ans like or related manner interfere with. restrain. or coerce employees in the exercise of the rights guaranteed under Section 7 of the Act. ].l( KY SI()RS. IN . 651