Diaz Enterprises, Inc., d/b/a Valley Supermarkets

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diaz Enterprises, Inc., d/b/a Valley Mart Super- markets and Antonio C. Hernandez, Jr. Case 23-CA-8515 September 27, 1983 DECISION AND ORDER BY MEIMBEIRS JENKINS, ZIMMERMAN, AND HUNTER On May 26, 1982, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Diaz Enter- prises, Inc.. d/b/a Valley Mart Supermarkets, McAllen, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy nol to overrule an administrative law judge's resolutions with respect to credi- bilily unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions, are incorrect Standard Dry Wa'll Producti, Inc.. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings We agree with the Administrative Law Judge that Respondent failed to present sufficient evidence to show that Charging Party Antonio C. Hernandez, Jr., possessed any supervisory powers under Sec 2(1 I) of the Act We note. however, that the Administrative L aw Judge cited .\evis Industries, Inc-. d/hba IFiresno Townehouse, 246 NLRB 1053 (14791, for the proposition that "save for exceptional circumstances not presented in the instant case," i.e.. an employer's pattern of conduct aimed at coercing employees in the exercise of their Section 7 rights, Sec. 8(a)ll) is not vio- lated by the discharge of a supervisor. In our recent decision in Parker- Robb Chevrolet. Inc., 262 NLRB 402 (1982), the Board overruled, inter alia, IFriino lrntehous.e Member Jenkins dissented in 1lydro Conduit Corporation, 254 NLRB 433 1981). His dissent, however, was not premised on any disagreement with principles of law cited by the Administrative Law Judge. 2 In accordance with his dissent in Olympic Medical C rporanton, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the fiormula set forth therein APPENDIX NotiICi To EMPIOYI-ES PIOSTED BY ORDER OF TIlE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Wi Wil.l. NOI create the impression that we are engaging in surveillance of your activities on behalf of United Food and Commercial Workers, Local No. 455, AFI.-CIO-CLC, or on behalf of any other labor organization. WEu Wll1. NOr interrogate you concerning your activities on behalf of and sympathies for the above-named labor organization or any other labor organization. Wt: wrl 1 NOT tell you that you will not be able to work for us if you become involved or continue to engage in activity on behalf of the above-named labor organization or any other labor organization. WE WilL NO' tell \ou that if you select the above-named labor organization or any other labor organization as your bargaining repre- sentative it will cause a separation between you and us and will prevent us from talking directly to you. WIE Will. NOT discharge or otherwise dis- criminate against you wsith regard to hire or tenure of employment or any term or condi- tion of employment for engaging in activity on behalf of the above-named labor organization or any other labor organization, nor for engag- ing in activity protected by Section 7 of the National Labor Relations Act. WtI Will. NOI in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above which are guaranteed by the National Labor Rela- tions Act. 264 NLRB No. 26 156 VALLEY MART SUPERMARKETS WE WILL offer Antonio C. Hernandez, Jr., immediate and full reinstatement to his former position, dismissing, if necessary, anyone who may have been assigned or hired to perform the work that he had been performing prior to his unlawful discharge of February 5, 1981, or, if his former position no longer exists, to a sub- stantially equivalent position, without preju- dice to his seniority or other rights and privi- leges, and make him whole for any loss of pay he may have suffered as a result of our dis- crimination, with interest. WE WILL expunge from our files any refer- ence to the discharge of Antonio C. Hernan- dez, Jr., on February 5, 1981, and WE WILL notify him that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. DIAZ ENTERPRISES, INC., D/B/A VALLEY MART SUPERMARKETS DECISION WILLIAM J. PANNIER II1, Administrative Law Judge: This matter was heard by me in McAllen, Texas, on February 9, 1982. On July 16, 1981,' the Regional Direc- tor for Region 23 of the National Labor Relations Board issued a complaint and notice of hearing, based upon an unfair labor practice charge filed on June 1, alleging vio- lations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material, Diaz Enterprises, Inc., d/b/a Valley Mart Supermarkets, herein called Respondent, has engaged in the retail business of selling meats, gro- cery products, and related items at a chain of retail stores in Star, Hidalgo, and Cameron Counties, in the lower Rio Grande Valley, in the State of Texas. Two of these retail stores are located in McAllen, Texas, with the one on South Tenth Street being the only facility in- volved in this proceeding. During the 12-month period prior to issuance of the complaint, a representative period, in the course and conduct of its business oper- ations, Respondent derived gross revenues in excess of $500,000 and, during that same period, purchased goods and commodities valued in excess of $50,000 from suppli- ers located outside the State of Texas, which goods and commodities were shipped directly to Respondent's I Unless stated otherwise, all dates occurred in 1981 Texas facilities. Therefore, I find. as admitted in the answer, that at all times material Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZAlION INVOI.VF I) The parties stipulated that, for purposes of this pro- ceeding only, United Food and Commercial Workers, Local No. 455, AFL-CIO-CLC, herein called the Union, has been an organization in which employees par- ticipated and which existed at least in part to represent employees in negotations with employers. Therefore, I find that, for purposes of this proceeding, the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE AIl .EGED UNFAIR I.ABOR PRACTICES On February 5, Antonio C. Hernandez, Jr., then pro- duce manager at Respondent's South Tenth Street store, had been summoned to the office of that store and had been discharged. 2 There is no dispute concerning the words that had been spoken to Hernandez during that meeting. Thus, he had been told that Respondent had heard rumors that he was involved in union activities. which Hernandez acknowledged were accurate, and that he was "breaking the policies of the store" by engaging in such activities. Then, Hernandez had been questioned as to whether he intended to continue engaging in union activity and if he had passed out a particular pamphlet that was produced by Berman and was shown to Her- nandez during the meeting. The latter had been told "that if I was involved with the union activities, I wasn't working for the company," and that Diaz would not like a union coming into the store inasmuch as it would cause a separation between Respondent and its employees, pre- venting Diaz from talking directly to them. Balli had said specifically that Hernandez "was still on probation" and "that they didn't want [Hernandez] even as assistant manager, because [he] was involved with the union ac- tivities." The meeting had concluded with Hernandez being discharged and with Diaz wishing "[g]ood luck to [Hernandez'] union." When addressed to an employee, within the meaning of Section 2(3) of the Act, the foregoing remarks consti- tute violations of Section 8(a)(1) of the Act.3 Further, terminating an employee for declining to abandon union activities violates Section 8(a)(3) and (1) of the Act. However, Respondent contends, contrary to the General Counsel, that since his November 1980 appointment to the position of produce manager at the South Tenth Street store, Hernandez had been a supervisor within the meaning of Section 2(11) of the Act and, consequently, 2 The following undisputed agents of Respondent had been present during that meeting: Pete Diaz, Jr., owner; Felix Chavez. Jr . general su- pervisor; William A Balli, director of meat operations; and l ayne Berman. a consultant to Respondent 3 The complaint also alleges that, on February 5, Diaz had said "that another company was going to close and go bankrupt because of the Union." No evidence was presented that Diaz or any other official of Re- spondent had made such a statement to Hernandez or to an. other em- ployee and, accordingly, I shall dismiss that allegation 157 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not entitled to the protection that the Act affords to employees. "Taft-Hartley amendments of the . . . Act excludes supervisors from the protections of the Act and thus frees employers to discharge supervisors without violat- ing the Act's restraints against discharges on account of labor union membership." Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 654-655 (1974). Thus, save for exceptional circumstances not presented in the instant case, see, e.g., Nevis Industries, Inc., d/b/a Fresno Towne- house, 246 NLRB 1053, 1054-55 (1979), enforcement denied on other grounds 647 F.2d 905 (9th Cir. 1981); Harvey's Wagon Wheel, Inc., d/b/a Harvey's Inn, 236 NLRB 1670, 1670-71 (1978), enfd. 106 LRRM 2547 (9th Cir. 1978), the Act is not violated by an employer's dis- charge of a supervisor for engaging in activities protect- ed by Section 7 of the Act when conducted by employ- ees. Nor is it violated by remarks to supervisors that would constitute violations of Section 8(a)(1) of the Act when directed to employees. See, e.g., The Berry Schools v. N.L.R.B., 627 F.2d 692, 696 (5th Cir. 1980). There- fore, the outcome in the instant proceeding rests upon a determination of whether or not Hernandez had been a supervisor during the time that he had served as produce manager at the South Tenth Street store. That determination, in turn, is governed by Section 2(11) of the Act, which defines "supervisor" as being, . . .any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or disci- pline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Although not all of these enumerated powers need be es- tablished to show that supervisory status exists, "posses- sion, alone, of one of these powers does not suffice to confer supervisory status. Rather, supervisory status exists only if the power is exercised with independent judgment on behalf of management, and not in a routine or clerical manner." Hydro Conduit Corporation, 254 NLRB 433, 437 (1981); see also St. Alphonsus Hospital, 261 NLRB 620 (1982), and cases cited therein. Further, while "it is the existence of supervisory power, and not necessarily the constant and continuous utilization of it, which determines whether a man is a supervisor," N L.R.B. v. Fullerton Publishing Company, d/b/a Daily News Tribune, 283 F.2d 545, 550 (9th Cir. 1960) Accord: Kern Council Services to the Developmentally Disabled, Inc., 259 NLRB 817 (1981), "failure to exercise may show the authority does not exist." Laborers and Hod Carriers Local No. 341 v. N.L.R.B., 564 F.2d 834, 837 (9th Cir. (1977). Finally, lest employees be denied rights guaranteed by the Act, the Board is obliged to exercise care in not construing and applying the statutory defini- tion of supervisor too expansively and the burden of proving that supervisory status exists rests upon the party advancing that contention. Hydro Conduit, supra, and cases cited therein; St. Alphonsus Hospital, supra. Hernandez had commenced working for Respondent in August 1980 in the produce department of its Pharr, Texas, store. He had continued working there until No- vember 1980, when he had been transferred to the South Tenth Street store. At that time, then Director of Meat Operations Balli had said that Hernandez would "be in charge for the produce department in the store in McAI- len" and that Hernandez would be on "probation for 90 days. If [he] made it, they [would] give [him] a raise at a produce manager's wages." Balli had concluded this con- versation by instructing Hernandez "to talk to Mr. de la Garza . . . the manager of. . . the McAllen store." 4 Pursuant to Balli's instruction, when Hernandez had arrived at the South Tenth Street store in November 1980, he had sought out and had spoken with de la Garza. The latter did not deny having said, during that conversation, only that Hernandez duties would involve getting the produce department in shape by "put[ting] everything fresh," and ordering merchandise, keeping the customer rack, produce and back room clean, un- loading merchandise from trucks delivering it to the store, and performing required inventory work. So far as the record discloses, the only mention made, during that conversation, about employees then working in the pro- duce department of the South Tenth Street store had been that Hernandez "had to work a schedule for . . . the two employees, that . . . were working in the pro- duce department." To support its burden of showing Hernandez' supervi- sory status, see Hydro Conduit and St. Alphonsus Hospital. supra, Respondent produced three witnesses: de la Garza, store director of the South Tenth Street store, President Pete Diaz III, and Cosme Munoz, Jr., the pro- duce manager at the Pharr store when Hernandez had worked in the produce department there and the individ- ual who had succeeded Hernandez as produce manager at the South Tenth Street store following Hernandez' termination. Diaz and de la Garza described the duties and authorities of department heads, such as produce managers. Thus, de la Garza testified that they have au- thority to hire, fire, reprimand, evaluate, recommend raises and promotions for, schedule and assign work to, and adjust grievances of employees working within their departments. Munoz described incidents where he had exercised supervisory powers, primarily while serving as produce manager at Pharr. However, when subjected to the close scrutiny required "to be alert not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied employee rights which the act [sic] is intended to protect," Westinghouse Electric Corporation v. N.L.R.B., 424 F.2d 1151, 1158 (7th Cir. 1970), cert. denied 400 U.S. 831, the accounts provided by Respondent's witnesses are not without in- firmities. At the outset, in the context of this record, it is not an altogether irrefutable proposition that department heads 4 It is admitted that at all times material de la Garza had been a super- visor within the meaning of Sec. 2(11) of the Act and an agent of Re- spondent. 158 VALLEY MART SUPERMARKETS employed by Respondent in all of its stores enjoy identi- cal authorities. While Respondent's witnesses claimed generally that they did, Munoz testified that the duties of produce manager at Respondent's different stores, where he had worked, were not similar "[b]ecause the working areas are different. See, there are some working areas that are reduced and some working areas that are large, and the volume that comes into each store is different too." s According to de la Garza, during the time that Hernandez had worked at the South Tenth Street store, there had been three departments-produce, market, and grocery-located there and a total of 35 persons had been employed at that store. By contrast, Diaz testified that, during January and February, there had been em- ployed at the Pharr store at which Munoz had been pro- duce manager "probably . . . about 40 employees, 40, 50 employees." Moreover, of the 35 persons employed at the South Tenth Street store while Hernandez had been working there, according to de la Garza, 6 of them had been "titled": store director (de la Garza himself), assist- ant manager, front end manager, produce manager, market manager, and grocery manager. Respondent con- tends that each one had been a statutory supervisor. But, to accept Respondent's contention would mean that there had been one supervisor for approximately every five employees working in that store. In these circum- stances, it does not follow as readily as Respondent seeks to portray that the produce manager at the South Tenth Street store in early 1981 necessarily would need or would possess the supervisory powers that the produce manager exercised at, for example, the Pharr store. Close examination of de la Garza's more detailed descriptions of how the produce manager at his store exercised pur- ported supervisory powers during that period, taken in connection with the undisputed testimony of Hernandez, tends to confirm that the produce manager at the South Tenth Street store did not exercise independent judgment in conjunction with the performance of powers enumer- ated in Section 2(11) of the Act. Most prominent in this regard was the testimony ad- duced in connection with the assertion that, as produce manager, Hernandez had possessed the power to fire em- ployees. Hernandez denied, and Respondent produced no evidence that Hernandez had ever been told, that he had that power. Yet, clearly the opportunity for de la Garza to have told this to Hernandez had been presented. For, commencing in December 1980, Hernandez had com- plained repeatedly about the slow work of Rafael Gon- zalez, the lone full-time employee assigned to work in the produce department at the South Tenth Street store. But, it is undisputed that on not one of those occasions did de la Garza point out that Hernandez had authority to terminate Gonzalez and to seek to replace him with a more efficient or faster worker. Instead, de la Garza tes- tified that he had told Hernandez only that "that em- 5 Munoz continued on to testify that with respect to "responsibilities" of all managers, "the responsibililles are there. tt each single department. you still have the same responsibiliies and duties of each department." Yet, it swas not clear that. in so testifyilig, Munoz w.as equating the vague term "responsibilities" with supervisory powers over department employ- ees, as opposed to identifying the obligation to ensure that work that had to be perfoirmcd in the same deparlmrnltts at the xarious stores ssas com- pleted. a matter discussed infrau ployee is a new employee; what we've got to do is train him."6 De la Garza testified that Hernandez had never recommended expressly that Gonzalez be terminated and, that had Hernandez done so, he (de la Garza) would have viewed such a recommendation "strongly." Yet, despite the undisputed number of complaints by Hernandez about the speed of Gonzalez' work, there is no evidence that de la Garza had ever solicited a recom- mendation from Hernandez as to how to resolve the situ- ation. Nor is there evidence that de la Garza even had advised Hernandez that he had authority to make such a recommendation. Notwithstanding Respondent's contention that depart- ment heads have authority to both hire and fire employ- ees, de la Garza conceded that, to do so, department managers "have to recommend it or they have to come and tell me. They have to make me aware of it." Fur- ther, de la Garza admitted that "[t]here had never been a situation" where a department head had hired or fired an employee "on the spot."'7 Accordingly, it would appear that at the South Tenth Street store, at least, Hernandez would have had, at best, only authority to recommend that employees be hired or fired. Moreover, de la Garza's own description of how he proceeds upon re- ceiving discharge recommendations tends to show that they are not "effective" within the meaning of Section 2(11) of the Act. Thus, de la Garza agreed that, when a discharge recommendation is made, he reviews addition- al factors before accepting that recommendation "[djue to the fact that there might be some more detail with the employment or with some other situations." Specifically, he acknowledged that he would consider background in- formation about employees' employment history that might not be known by the department head, as well as examine personnel files of employees whose terminations had been recommended. In addition, de la Garza conced- ed that he might call in employees and review the prob- lem with them during personal meetings. In short, rather than relying upon the department head's recommenda- tion and explanation for making it, de la Garza conducts "an independent investigation and determination before final action is taken." Loffland Brothers Company, 243 NLRB 74, 75 (1979). There is no indication that the de- partment head's recommendation will be relied upon nor, for that matter, that it will be given any weight by de la Garza in making his final determination. De la Garza was not called upon to give a detailed de- scription of hiring procedure at the South Tenth Street store, similar to that which he advanced with respect to the procedure which he follows upon receiving termina- 6 However, Hernandez testified that. when he had complained about Gotzalez, de la Garza had replied that nuothing could he done "about it. because [Gonzalez] was hired by one of the supervisors, Mr Gonzalez was hired by one of the supervisors, so he cannot do anything about it. 7 Munoz claimed that he had done so. but his testimony describing spe- cific instances where he had exercised that authority all pertain to occa- sions when he had been produce manager at the Pharr store. Although he admitted that he had four employees working In the produce depart- merit at the South Tenth Street store at the time of the hearing, Munoz did not claim that he had hired or recommended to de la Garza that they be hired. Indeed. he did not even claim that he had participated in the process leading to their being hired to work in the South Tenth Street ,store produce department 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion recommendations from department heads there. Al- though he testified that, after becoming produce manager at the South Tenth Street store, Munoz had interviewed applicants for positions in the produce department there and claimed that Munoz had recommended hiring and paying certain applicants a particular rate of pay, de la Garza did not describe what weight he had given those purported recommendations. Furthermore, though he ap- peared as a witness for Respondent, as observed in foot- note 7, supra, Munoz did not corroborate de la Garza's account of those assertion interviews of applicants and supposed recommendations that certain ones be hired at a particular pay rate. Moreover, certain evidence tends to show that de la Garza follows a procedure with regard to hiring that is similar to the one followed by him with respect to dis- charges-that is, that he conducts independent investiga- tions and makes an independent determination. Thus, he admitted that there had never been an instance where a department head had hired an employee "on the spot" and, further, conceded that both for hiring and firing, de- partment heads "have to recommend it or they have to come and tell me." In addition, de la Garza's description of department heads' recommendations that additional employees be hired for their departments shows that he does conduct his own independent investigation before granting such a request. Thus, he testified that, when a department head recommends that an additional employ- ee be hired because of increased sales volume in that de- partment, de la Garza reviews department sales to ascer- tain whether there is a trend that would warrant the hiring of an additional employee in that department. So far as the record discloses, de la Garza gives no weight to department heads' recommendations, which appear to serve merely as triggering mechanisms for de la Garza's review of department sales records which he uses as the basis for an independent determination of whether or not to allow an additional employee to be hired for that de- partment. De la Garza also claimed that department heads can reprimand and can evaluate employees in their depart- ment. However, as was the case with his assertion that department heads can hire and fire employees, close scrutiny of the evidence pertaining to these matters shows a lack of support for de la Garza's generalized as- sertions of supervisory power to reprimand and evaluate. In the first place, "absent some showing of impact on employees' job status, it is settled that verbal reprimands do not constitue 'discipline' within the meaning of Sec- tion 2(11) of the Act." Hydro Conduit, supra, 254 NLRB at 437. De la Garza conceded that he does not give any weight to verbal complaints by department heads about employees in their departments: "But he comes to me and . .. he says . . . I am having problems with this. To me, that is just-that is his problem. That is not my problem." Accordingly, it cannot be said that verbal complaints to employees by department heads nor that verbal complaints to de la Garza about employees by de- partment heads constitute "discipline" within the mean- ing of Section 2(11) of the Act. De la Garza asserted that Respondent has a disciplin- ary procedure whereby department heads can place writ- ten reprimands in employees' personnel files and that, after three of these have been placed in an employee's file, termination can follow. At the outset, it is worth noting that Respondent produced no corroboration for de la Garza's testimony that such a procedure exists. Neither Diaz nor, most particularly, Munoz described such a procedure. Indeed, though the latter described problems that he had encountered with a particular em- ployee at Pharr, leading Munoz to "ask, the store man- ager to look into this matter between me and him togeth- er," at no point did Munoz testify that he had given, or even had considered the possibility of giving, a written reprimand to that employee. Similarly, although de la Garza agreed that, while he had been produce manager at the South Tenth Street store, Hernandez had com- plained repeatedly about the speed at which Gonzalez had worked, at no point did de la Garza claim that he had even said to Hernandez that he had authority to issue a written reprimand to Gonzalez. In fact, de la Garza did not testify that he had ever, at any time, told Hernandez that he (Hernandez) had power to issue writ- ten reprimands. Finally, no written reprimands were pro- duced during the hearing to support de la Garza's claim that such a policy exists and that it is one which actually has been followed. These circumstances cast considerable doubt on de la Garza's unsupported testimony that a written reprimand policy, giving department heads au- thority to insert written reprimands in personnel files of employees in their departments, ever existed. Furthermore, assuming arguendo that such a policy does exist, there is no evidence that a department head's issuance of a written reprimand to an employee has any independent impact on that employee's job status, at least at the South Tenth Street store under de la Garza's man- agement. No evidence has been produced that employees suffer immediate detriment to their job status whenever a written reprimand is given to them. Rather, so far as the record shows, the reprimand is simply placed in their personnel file and nothing further happens at that time. De la Garza identified two areas where written repri- mands ultimately could affect an employee's job status. The first one pertained to discharges: "I get involved when it is probably the third reprimand. He is ready to be fired." Aside from the absence of any showing that such a situation has ever occurred, de la Garza's own ac- count of how he handles discharge recommendations by department heads (which, in effect, is what three written reprimands would constitute under de la Garza's descrip- tion of the purported policy), described above, shows that he conducts an independent investigation of the matter and makes an independent determination as to whether or not discharge is warranted. There is no evi- dence concerning what weight, if any. de la Garza ac- cords written reprimands in conducting his investigations and in making his determinations pertaining to termina- tions. For that matter, there is no evidence that depart- ment heads are called upon to make disciplinary recom- mendations either on the written reprimand itself, or to de la Garza on the basis of the written reprimands issued to employees. Yet, absent some showing that department heads do more than simply bring to Respondent's atten- 160 VALLEY MART SUPERMARKETS tion, by means of the purported written reprimand pro- cedure, that there has been insufficient productivity by an employee or that an employee is violating a work rule, the fact that the department head prepares the writ- ten reprimand does not, of itself, serve to establish effec- tive recommendation of disciplinary action within the meaning of Section 2(11) of the Act. Hydro Conduit. supra, 254 NLRB at 437-438, and cases cited therein. Similar considerations govern the second area where, according to de la Garza, written reprimands are taken into account in evaluating whether employees should be awarded periodic raises. It was in connection with the evaluation process that de la Garza's testimony was per- haps most elusive. During direct examination when asked about raises and promotions, he answered: "Okay. We evaluate every 3 months. Every 6 months the employees get a raise according to the evaluation of the department head. "But this seemingly clear account of effective rec- ommendation of rewards and promotions became cloudy when de la Garza then was asked if he would "explain what you meant by when you said that he will recom- mend raises or promotions?" Rather than directly answer the question, by describing the role played by depart- ment heads' evaluations in decisions as to whether or not to grant raises or promotions, de la Garza launched off in another direction: A. Yes, sir. Okay. Going back to the access to confidential information, that would tie in with that, I would suggest. He needs to have the employees' personal file that we have at that store for his de- partment. Okay? Right there and then, in case the produce manager, in this case, did not know or forgot about a reprimand that he issued, in making this evaluation he is supposed to consider that in giving him a raise, you see. But he does-he is the one that has his pay scale. He's got a pay scale sheet that he follows. Every six months they get a raise. During cross-examination, attention was again focused on the procedure for determining whether or not to grant to employees. In answering the questions pertain- ing to this subject, de la Garza first gave a detailed ex- planation as to how he determined whether or not to promote employees to managerial positions. Then, de la Garza's attention was focused specifically on raises for employees and he testified that, in their evaluation sheets, department heads "follow according to time and grade that employee in that department has" the pay scale schedule that Respondent publishes. In contrast to the asserted written reprimand policy, that department heads, such as produce managers, com- plete periodic evaluation forms is confirmed by Munoz. However, singularly absent from de la Garza's descrip- tion of the periodic evaluation process is an explanation of the weight accorded to those evaluations, as well as to written reprimands, in determining whether or not to grant particular increases or promotions--whether those decisions are made solely on the basis of written repri- mands that may exist and department heads' evaluations or, instead, whether, as is the case of discharge recom- mendations made to de la Garza by department heads, those written reprimands and "evaluations are but one of a number of items considered in making these determina- tions." Hydro Conduit, supra, 254 NLRB at 437. In sum, there is no "evidence that management relied upon [de- partment heads'] evaluations without an independent in- vestigation [nor] whether an evaluation of [a department head] had any effect on employees['] employment status or that they impaired a reasonably expected employment benefit, or resulted in a reward." St. Alphonsus Hospital, supra, 261 NLRB 620. Respondent also contends that Hernandez, as produce manager, prepared work schedules, scheduled vacations, assigned and directed work, authorized overtime, and ap- proved time off for department employees. At the outset, it is worth noting that, during the time when Hernandez had been produce manager at the South Tenth Street store, only two employees had been working in the pro- duce department. Moreover, as de la Garza admitted, one of them, Juan Barrera, had been a part-time employ- ee who always had worked Wednesdays and Fridays from 6 to 9 p.m., Saturdays from 2 to 9 p.m. and during the mornings on Sundays. Consequently, as a practical matter, the only scheduling that Hernandez had to per- form was for full-time employee Gonzalez. Given the South Tenth Street store's operating hours and the al- ready fixed schedule for Barrera, it hardly appears, and has not been shown, that any degree of discretion had been vested in Hernandez when he had scheduled Gon- zalez' work hours. To the contrary, scheduling for Gon- zalez appears to have been an "activity . . . more cleri- cal than supervisory." N.L.R.B. v. St. Francis Hospital of Lynwood, 601 F.2d 404, 421 (9th Cir. 1979); Stop & Shop Companies, Inc. v. N.L.R.B., 548 F.2d 17, 19 (lst Cir. 1977). Moreover, de la Garza did not dispute Hernandez' testimony that the latter had always shown the work schedules that he had prepared to the former, for ap- proval, before posting them.8 A similar conclusion-that the function is a clerical rather than a supervisory one-is warranted with regard to scheduling vacations. De la Garza testified that Re- spondent grants a I-week vacation to employees who have been employed for at least a year and that "[w]hat we try to do is try to get one out of each department so we won't have two at the same time out from the same department." Thus, so far as the record discloses, the only discretion that a department head can exercise with respect to vacations is in connection with making certain that the department is not understaffed because more *Thus, the fact that de la Garza had not directed Hernandez to change the schedules after Gonzalez had complained about the hours that he (Gonzalez) was being scheduled to work does not show that Hernan- dez had been exercising independent judgment in performing a supervi- sory function There is no evidence that, in rejecting Gonzalez' con- plaint. de la Garza had done so on the grounds that Hernandez ,was a supervisor. Beyond that. an employer's decision. made in response ito an- other employee's complaint, not to change a nonsupervisory decision made by an employee hardly serves. of iseilf, to convert that nonsupervi- sory decision into a supervisory one For example, the duties of inspec- tors are ordinarily not supervisory. See Hy'dro Conduit. *upra. Merely be- cause higher management rejects the protest of in employee whose work has been found wanting by an inspeclor de;s not serve to convert that inspector's decision with regard to the rejected work into one which Is supervisory. 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than one employee is taking a vacation at the same time. That type of authority is quit limited. Further, in the final analysis, that type of authority is not any different from the clerical function of scheduling employees on a daily basis so that the department is neither understaffed nor overstaffed at any one time. In these circumstances, the authority to schedule vacations, like the authority to prepare daily work schedules, is an "activity . . . more clerical than supervisory." N.L.R.B. v. St. Francis Hospi- tal, supra. In a pretrial affidavit, Hernandez stated that de la Garza had told "me that I had the authority to . . . cut the hours of work." Hernandez testified that he could do so only after consulting with de la Garza, although that qualification is not mentioned in the affidavit. In some circumstances, this might be deemed a variance that is material and the statement in the affidavit might be con- strued as an admission by Hernandez that he possessed authority to responsibly affect employees' working hours and, concomitantly, their earnings. However, there is no evidence that the affidavit is so complete in its descrip- tion that it can be said that a need for prior consultation with de la Garza is precluded absolutely as a possibility by the description in the affidavit itself. More significant- ly, there is no evidence that Hernandez or any other de- partment head ever had exercised such authority by cut- ting the hours of work of employees in their depart- ments. Finally, when he testified, de la Garza did not claim that department heads had authority to cut the hours of work of the employees in their departments. In these circumstances, the reference in Hernandez' affida- vit to a statement by de la Garza that the former could cut the hours of produce department employees' work is simply too vague to support a conclusion that Hernandez or any other produce manager possessed unfettered dis- cretion to reduce working hours through the exercise of their own independent judgment. Like considerations also govern Respondent's conten- tion that department heads authorize overtime. Hernan- dez testified that he had been told specifically that he could not authorize overtime for produce department employees and that he could only work 5 hours of over- time each week himself. The only evidence presented by Respondent as to when Hernandez could have allowed produce department employees to work overtime was de la Garza's testimony that if a . . . trailer is supposed to be in at 8:00 in the morn- ing, and . . the trailer . . . comes in at 1:00 in the afternoon. He's got to keep those employees there to unload and put that merchandise [away] .... We are not going to unload the trailer and leave that merchandise for tomorrow.... We are talking about perishable items. Respondent presented no evidence that Hernandez could have authorized overtime under any circumstances other than the very limited and well-defined situation present- ed when deliveries arrived later. In such circumstances, where the decision is purely mechanical or ministerial and where it is based upon circumstances totally beyond the control of the department head, it cannot be found that department heads possess independent judgment to determine whether or not employees can work overtime. With respect to requests for time off, Hernandez testi- fied, without contradiction, that on all three occasions when time off had been sought by produce department employees, during the time that he had served as pro- duce manager at the South Tenth Street store, de la Garza's approval had been sought in each instance. Thus, on one of those occasions the request had been made di- rectly to de la Garza who had, in turn, related to Her- nandez that the employee would not be reporting to work that day. On the other two occasions, Hernandez had spoken to de la Garza after receiving the request for time off. On one of those occasions, the employee had been ill and was reporting that he would not be coming into work that day. There is no evidence that Hernandez or any other department head had authority to deny time off when an employee sought it due to illness. Accord- ingly, it cannot be said that a department head has lati- tude to exercise independent judgment in connection with requests for time off due to illness. See Hydro Con- duit, supra, 254 NLRB 433. On the remaining occasion, Gonzalez had requested time off on the following day so that he could pick up his son in Kingsville. Hernandez testified, without contradiction, that he had told Gonza- lez that de la Garza would have to grant approval before Gonzalez' request could be granted and, further, that Hernandez had spoken to de la Garza about the request and that it had been de la Garza who had approved it. There is no evidence that de la Garza had even asked for Hernandez recommendation with respect to Gonzalez' request. So far as the record discloses, de la Garza simply had made his own determination without solicit- ing or considering Hernandez' feelings about whether or not the request should be granted. In these circum- stances, there is no basis for concluding that Hernandez or any other produce manager has authority to exercise independent judgment in granting or denying employee requests for time off. De la Garza testified that the produce manager at the South Tenth Street store possesses authority to assign work to and to direct the work of employees in that de- partment. However, so far as the record discloses, the work to be performed in that department is essentially routine, consisting of unloading merchandise from deliv- ery trucks, stocking merchandise, maintaining an inven- tory of produce items, and keeping the produce rack and area clean.9 There is no evidence that this work is other than routine. Nor is there evidence that it is performed in other than a routine fashion. For example, Hernandez testified that, each morning, he had started working at one end of the rack and, when he had arrived for work, Gonzalez had started working at the other end. The record does not show that there is any greater discretion involved in performing other work, such as unloading merchandise from trucks, that needs to be done in the While the produce manager must prepare orders for merchandise, there is no evidence thal (his duty can be assigned 1to anlly lher employee in the produce department. Accordingly, produce managers do not assign this work to employees nor do Ihly direct the performance of it by em- ployees. See, e g. Sr .41phonmus lHopitil. vupru, 261 NL.RB 620 162 VALLEY MART SUPERMARKETS produce department. True, Hernandez had been responsi- ble for ensuring that work in the department was com- pleted. "Yet, responsibility for ensuring that work is completed properly on schedule is not, of itself, sufficient to confer supervisory status." Hydro Conduit, 254 NLRB at 438, and case cited therein. In these circumstances, a preponderance of the evidence does not establish that the produce manager at the South Tenth Street store "either responsibly directed employees or assigned work to em- ployees other than routine work which did not require [him] to use independent judgment." St. Alphonsus Hospi- tal, supra. Finally, while de la Garza asserted generally that the produce manager has authority to adjust employee griev- ances, no evidence was presented to support that asser- tion. Thus, the record does not show any instances where Hernandez or any other produce department man- ager had adjusted a grievance. Moreover, de la Garza did not explain what authority the produce manager at his store would be able to exercise in adjusting an em- ployee grievance, nor how much independent judgment the produce manager would be able to exercise in at- tempting to do so. To the contrary, while department heads attempt to handle customer complaints by them- selves, where problems arise between personnel in one department de la Garza testified, "I usually like to be around .... Because I want to hear what is happen- ing." In these circumstances, a preponderance of the evi- dence fails to show that Hernandez or any other produce manager at the South Tenth Street store uses independ- ent judgment in adjusting employee grievances in that department. When he testified, de la Garza did not appear to be doing so in a sincere fashion. Rather, he appeared to be attempting to tailor his testimony to buttress Respond- ent's position and to evade saying anything that might injure it. His general assertions pertaining to the authori- ty of the produce manager at the South Tenth Street store were, for the most part, unsupported by specific evidence. On a number of occasions, particularly with regard to the purported authority of the produce man- ager to terminate employees, the specific evidence elicit- ed contradicted his generalized description of the author- ity supposedly possessed by the produce manager there. On other occasions, such as with regard to the extent of the produce managers' ability to recommend raises for employees, de la Garza appeared to be attempting to evade directly answering questions, obviously designed to elicit a more particularized description of the role played by the produce manager in connection with his purported supervisory authority, because he felt that a direct answer might injure Respondent's position. I do not credit de la Garza. In sum, while the produce manager at the South Tenth Street store appears to have been in charge of the pro- duce department there in the sense of ensuring that suffi- cient types of produce are ordered, received, and stocked, at least during the time that Hernandez had been produce manager there,'0 a preponderance of the "I It may well be that. since Hernandez' termination, authorities had been added to that position so that it has become supervisory. But even if it had been shown to have become a supervisory position, it is not un- evidence does not shosw. as de la Garza in practice di- rects operations at that store. that the produce manager had possessed authoritys to exercise independent judg- ment in performing any of the powers enumerated in Section 2(11) of the Act. The fact that Hernandez had the title of produce manager does not suffice, of itself, to establish that he had been a statutory supervisor. St. Al- phonsus Hospital, supra, and cases cited therein at fn. 14. There is no evidence that he had ever been told that he possessed any of the powers enumerated in Section 2(11) of the Act, though the opportunity to advise him of that fact, as found above, had existed on several occasions. He appears to have spent most of his working days per- forming the same duties il the produce department as did Gonzalez and Barrera. That he was paid at a higher rate than were other produce department employees is not dispositive. St. Alphonsus Hospital, supra. De la Garza appears to be at the South Tenth Street store throughout the business day. To find, while Hernandez had been produce manager, that all titled employees at that store had been statutory supervisors would result in an unreal- istic and excessively high ratio of one supervisor for every five employees at a facility where the employees' work has not been showr n to have been other than rou- tine. Therefore, in the circumstances presented, I find that a preponderance of the evidence does not support the conclusion that Hernandez had been a supervisor within the meaning of Section 2(11) of the Act during the time that he had worked as produce manager at the South Tenth Street store. I As stated above, on February 5, Hernandez, an em- ployee within the meaning of Section 2(3) of the Act, was summoned to the office where he was confronted by Respondent's president and other high officials of Re- spondent. During the conversation that ensued, these of- ficials created the impression that there was surveillance precedented for ant enmployr seeking to avoid unionizatioil of its employ- ees, as Respondent's undisputed remaris on February 5 show had been its intention, to adjust the funictions of particular positions to remove them from coverage int a bargaining unit or even to remove them from coverage under the Act Given Respondent's undisputed unlawful con- duct. I would not place any great weight on the authority exercised by Produce Manager Munoz silnce he has replaced Hernandez as produce manager at the South lcnth Street store Yet, esen that is not a question that need he reached here For almost all of Munoz' specific descriptions pertain to actions which he had taken \hile .working as produce manager at the Pharr store where, of course. de la Garza is not the store director Although Munoz did describe an incident where he had recommended that a South Tenth Street store employee be given a raise, claiming that that employee had received one. de la Garza did not testify that he had relied upon Munoz' reconmmendation in awarding that raise and there is no other evidence frontm which II could be concluded that Munoz' recom- mendation in that instance had been effective Therefore. I find the evi- dence insufficient to conclude that the produce manager position at the South Tenth Street store has become a supervisory one since Hernandez' termination. iI In reaching this conclusion, I am not determining whether all de- partment heads nor even whether all produce managers. such as at Pharr. employed by Respondent are statutory supervisors. The only issue here is whether the manner in which de la Garza directed operations at the South Tenth Street store left atly room for the exercise of supervisory authority by the produce manager prior to Hernandez' termination. A preponderance ..f the esvidenc warrants a negative conclusion. What the circumstances at other stores, or e.en in other departments at the South Tenth Street store, may shov, is not addressed noir determined for those issues are not presented for resolution by the complaint in this matter. 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees' union activities, questioned Hernandez about those activities, told Hernandez that he would no longer be working for Respondent if he continued his in- volvement with union activities, and said that selection of the Union as a bargaining representative would pre- vent Respondent from talking directly to its employees. When Hernandez declined Respondent's efforts to per- suade him to cease his involvement in union activities, he was terminated. These undisputed facts support the con- clusion that Respondent's statements to Hernandez vio- lated Section 8(a)(1) of the Act and that Hernandez' dis- charge, for refusing to abandon his efforts to organize Respondent's employees, violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1,. Diaz Enterprises, Inc., d/b/a Valley Mart Super- markets, is an employer within the meaning of Section 2(2) of the Act and engaged in commerce and in oper- ations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. For purposes of this proceeding, United Food and Commercial Workers, Local No. 455, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By creating the impression of surveillance of em- ployees' union activity, by interrogating an employee concerning his union activities and sympathies, by telling an employee that he would not be able to continue working for Respondent if he engaged in union activity, and by telling an employee that it could not talk directly to its employees if they selected a collective-bargaining reprerentative, Diaz Enterprises, Inc., d/b/a Valley Mart Supermarkets, violated Section 8(a)(l) of the Act. 4. By discharging Antonio C. Hernandez, Jr., for re- fusing to cease engaging in union activities, Diaz Enter- prises, Inc., d/b/a Valley Mart Supermarkets, violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. There is no evidence to support the allegation that employees were told that another company was going to close and go bankrupt because of the Union. THI REMEIDY Having found that Diaz Enterprises, Inc., d/b/a Valley Mart Supermarkets, engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirm- ative action to effectuate the policies of the Act. With regard to the latter, Diaz Enterprises, Inc., d/b/a Valley Mart Supermarkets, will be required to offer Antonio C. Hernandez, Jr., immediate reinstatement to his former position of employment as produce manager at its South Tenth Street store in McAllen, Texas, or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, anyone who may have been assigned or hired to perform the work he had been performing prior to his discharge on February 5, 1981. Additionally, Diaz Enterprises, Inc., d/b/a Valley Mart Supermarkets, will be required to make Hernandez whole for any loss of earnings he may have suffered by reason of his unlawful termination, with backpay to be computed on a quarterly basis, making deductions for in- terim earnings, as prescribed in F W. Woolworth Compa- ny, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforce- ment denied on different grounds 322 F.2d 913 (9th Cir. 1963), and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 2 The Respondent, Diaz Enterprises, Inc., d/b/a Valley Mart Supermarkets, McAllen, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Creating the impression that it is engaging in sur- veillance of employees' union activities; interrogating employees concerning their union activities and sympa- thies; telling employees that they cannot work for it if they become or continue being involved in union activi- ties; and telling employees that it will no longer be able to deal with them directly if they select a collective-bar- gaining representative. (b) Discharging or otherwise discriminating against employees with regard to hire or tenure of employment or any term or condition of employment for engaging in acitvity on behalf of a labor organization or for engaging in activity protected by Section 7 of the Act. (c) In any like or related manner interfering with, re- straining, or coercing its 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) Offer Antonio C. Hernandez, Jr., immediate and full reinstatement to his former position of employment, dismissing, if necessary, anyone who may have been as- signed or hired to perform the work that he had been performing prior to his unlawful discharge on February 5, 1981, or, if his former position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of his discriminatory discharge, in the manner set forth above in "The Remedy" section of this Decision. (b) Expunge from its files any reference to the dis- charge of Antonio C. Hernandez, Jr., on February 5, 1981, and notify him in writing that this has been done and that evidence of his unlawful discharge will not be used as a basis for future personnel actions against him. " .2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National L.abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 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 11 See Sterling Sugars. Inc.. 261 NLRB 472 (1972) 164 VALLEY MART SUPERMARKETS (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to compute the backpay and reinstatement rights set forth in "The Remedy" of this Decision. (d) Post at its South Tenth Street store, McAllen, Texas, copies of the attached noticed marked "Appen- dix." "4 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by its authorized representative, shall be posted by Diaz 14 In the event that this Order i' enforced by a Judgment of a United States Court of Appeals, the words in Ihe notice reading "Posted by Order of the National l.abor Relalirons Hoard' shall read "Pooled I'uru- ant to a Judgment of the United State, Court of Appra)l Enforcing an Order of the National I.ahor Relations Board" Enterprises, Inc., d/b/a Valley Mart Supermarkets. im- mediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees are cili- tomarily posted. Reasonable steps shall he taken by it to ensure that said notices are not altered, defaced. or cov- ered by any other material. (e) Notify the Regional Director for Region 23. in writing, within 20 days from the date of this ()rdcr. w hat steps have been taken to comply htcrc ith. IT Is I'lUR FHlIR ORDIRIAI) that the cotnplaint he. alnd it hereby is, dismissed as to the allegation ihat employees were told that another company , .as going to close and go bankrupt because of the Union.