Everage Brothers Market, Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1973

206 N.L.R.B. 593 (N.L.R.B. 1973)

EVERAGE BROS . MARKET
Everage Brothers Market, Inc. and, Retail Clerks
Union, Local 770, Retail Clerks International Asso-
ciation, AFL-CIO and Marjorie Faniel . Cases 21-
CA-11081 and 21-CA-11520
October 25, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 29, 1973, Administrative Law Judge Allen
Sinsheimer, Jr., issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions.
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 limited exceptions and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge, and to
adopt his recommended Order, as modified herein 2
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
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, Everage
Brothers Market, Inc., Los Angeles, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
herein modified:
1. Substitute the following for paragraph 1(b):
"(b) Discriminating in regard to the hire, tenure of
employment, hours of employment, or any term or
condition of employment of Marjorie Faniel, or any
other employee, because she (he) has filed charges or
given testimony under the Act."
2. Insert the following as paragraph 1(d) and re-
number the subsequent paragraph accordingly:
"(d) Soliciting withdrawal of charges as a condi-
tion of continued employment or reinstatement."
i The Administrative Law Judge inadvertently failed to quote the entire
undisputed statement read by Respondent while he was testifying during the
hearing with regard to the affidavit he had filed at the time of the investiga-
tion Therefore, the first quote at par 16, sec. III,C,(1) of the Administrative
Law Judge's Decision is amended to read , "I told her that she had filed unfair
charges against me and that I wanted a letter from her saying she had filed
untrue charges against me before I could let her come back to work "
2 While the Administrative Law Judge made a number of findings with
respect to unfair labor practices on the part of Respondent, he inadvertently
failed to include cease-and-desist provisions for certain conduct in his recom-
mended Order and notice , and neglected to include the broad order language
which-he had recommended and which is appropriate . Accordingly , we have
modified the recommended Order and notice.
593
3. Substitute in renumbered paragraph 1(e) the
phrase "in any other manner" for the phrase "in any
like or related manner."
4. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with re-
prisals if they sign authorizations for or join the
Retail Clerks Union, Local 770, Retail Clerks
International Association, AFL--CIO, or join any
other labor organization.
WE WILL NOT solicit from our employees the
withdrawal of charges they have filed with the
National Labor Relations Board, as a condition
of their continued employment or reinstatement.
WE WILL NOT discriminate as to the hire, tenure
of employment, hours of employment, or any
term or condition of employment of Marjorie
Faniel, or any other employee, because she (he)
has filed charges or given testimony under the
Act.
WE WILL NOT discourage membership in Retail
Clerks Union, Local 770, Retail Clerks Interna-
tional Association, AFL-CIO, or in any other
labor organization, of our employees by discrimi-
nating in regard to their hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist the above-named or any
other labor organization of our employees, to
bargain collectively through representatives of
their own choosing or to engage in other concert-
ed activities for the purpose of mutual aid or to
refrain from any or all such activities, except to
the extent such right may be affected by an agree-
ment requiring membership in a labor organza-7
tion as a condition of employment as authorized
in Section 8(a)(3) of the Act.
WE WILL offer Marjorie Faniel immediate and
full reinstatement to her former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to her sen-
iority or other rights or privileges.
206 NLRB No. 68
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL pay Marjorie Faniel for the earnings
she lost because of the discrimination against her,
with 6-percent interest.
EVERAGE BROTHERS MAR-
KET, INC.
(Employer)
Dated By
(Representative) (Title)
calendar year 1972, a representative period, Respondent
derived gross revenue in excess of $500 ,000. It purchased
and received at Los Angeles, California, goods, materials,
and supplies valued in excess of $2,000 directly from firms
located outside California, or directly from firms located in
California which purchased and received said goods, mate-
rials, and supplies directly from firms located outside Cali-
fornia. I find that Respondent is and at all times material
has been an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5254.
DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR, Administrative Law Judge: The
above proceeding was heard April 12 and 13 at Los Angeles,
California. The complaint in Case 21-CA-11081 was issued
on January 23, 1973.1
An order consolidating Cases 21-CA-1108-1 and 21-
CA-11520 and a consolidated amended complaint and
amended notice of hearing was issued March 22, 1973.2 The
consolidated amended complaint alleges violation of Sec-
tion 8(a)(1), (3), and (4) of the Act.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the brief of the
General Counsel, I make the following:3
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation, is engaged in Los
Angeles in the operation of a retail food store. During the
i Based on an original charge filed June 29, 1972, and a first amended
charge filed August 2, 1972 A second amended charge was filed February
20, 1973.
2 An original charge was filed in Case 21-CA-11520 on February 1, 1973,
and a first amended charge on March 13, 1973
3 The General Counsel filed a motion to correct the transcript No objec-
tion has been received thereto. I have carefully checked the proposed correc-
tions and find that they are proper The motion is accordingly granted
The parties have filed a joint motion to receive certain documents into
evidence as G.C Exh . 12(a) being the original complaint and notice of
hearing dated August 23, 1972, which was issued in Case 21-CA-11081 and
later withdrawn, and G.C. Exh. 12(b), an affidavit of service. The joint
motion is hereby granted and the documents are received in evidence and
made a part of the record as G C. Exh 12(a) and (b)
Retail Clerks Union, Local 770, Retail Clerks Interna-
tional Association , AFL-CIO , is,a labor organization with-
in the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Marjorie Farrel was initially discharged from employ-
ment with the Respondent on or about June 12, 1972, and
on June 29 the initial charge in Case 21-CA-11081 was
filed. Thereafter, on August 16, 1972, she was rehired. On
or about February 6, 1973, Respondent again discharged
Faniel.4
The issues relate to the alleged 8(a)(1) activities, to the
two terminations of Farrel, and to the circumstances be-
tween June 12 and August 16, 1972, with respect to
Respondent's alleged insistence upon withdrawal of charges
before it would reinstate Faniel, and to alleged reduction in
her hours from about August 23, 1972, to her second termi-
nation on or about February 6, 1973.
B. The Alleged 8(a)(1) Activities
On June 7, Respondent opened a new market in Los
Angeles. Union Organizer and Representative Emma
Brown testified that she had gone to the market the day
before the store opened, talked with its manager and super-
visor, Ronald Yell, and told him that she was going to try
to organize the Union. Brown said that she again went to
the market the next day and spoke with an employee named
Bob Brooks. According to Brown, Yell observed her speak-
ing to Brooks and threatened Brooks in the presence of
employee Marjorie Faniel (who was 10 or 12 feet away) that
if he signed a union card he would be terminated. Brown
kept talking about union cards and then left the market.
According to Faniel, she overheard Yell tell Brooks not to
sign a card and if he did he would have to fire him. Faniel
added that she advised Brooks he should go ahead and sign
the union card and that immediately thereafter Yell called
Brooks to the office.
Faniel testified that the next day, June 7, she was in the
office speaking-with an employee named Darlene who ques-
4 During the period between August and February, on October 10, 1972,
the Regional Director approved a settlement agreement in which the Respon-
dent agreed , among other things , to reinstate Famel and make her whole for
loss of pay in a specified amount , 'which settlement agreement the parties
agreed was never carried out.
EVERAGE BROS. MARKET 595
tioned her about the Union and signing a card. Faniel re-
plied she thought Darlene should sign a union card because
it was for the betterment of, and would help, the employees.
According to Faniel, Yell walked in and "told her he
wouldn't sign it if he was her," and then looked at Faniel
and said nothing.
Yell testified that he did not see Brown in the store until
the day that it opened. He also denied that he ever threat-
ened to fire Brooks if he signed a union card and said he
knew Brooks was a union member as well as himself. Yell
does not appear to have denied making the statement set
forth to Darlene. Based on the foregoing and my observa-
tion of the witnesses and also my findings infra concerning
the conduct of the Respondent, with respect to insistence
upon Faniel's withdrawal of certain charges, I find that the
statements were made by Yell as testified to by Brown and
Faniel and the Respondent thereby violated Section 8(a)(1)
of the Act .5
C. The Alleged Discrimination Against Marjorie Faniel
1. The initial termination of June 12
Marjorie Faniel was employed by Respondent as a check-
er at the new store on June 5. She had in the past worked
for Respondent at its old store for a year and a half and for
about 6 months prior to employment at the new store had
been unemployed due to hospitalization and illness. Faniel
had 6 years' experience as a checker in the grocery industry
and, according to Faniel, Respondent regarded her as a
skilled checker and had requested that she train checkers at
its new store .6
Faniel testified she signed a union card before June 12.
Cross-examination with respect to this card raised a ques-
tion as to when it was signed, which I find unnecessary to
resolve.
On June 12, Faniel was accused of being short $200 on
her cash register. It appears that the register reflected a $200
shortage. Faniel insisted she was not short and there was an
error on the tapes. Faniel said she requested Manager Yell
and Joe Hyun, Respondent's accountant, to review the
tapes and find the error. According to Faniel, Hyun said he
was too tired to do so then but would take the tapes home.
Faniel testified she offered to give Respondent the $200
until the mistake was found, but the offer was declined.
Faniel testified that the next day she reported for work
but was told by Yell she was terminated because of the
shortage. She then went to see Everage, the Respondent's
president, and Sam Kim, its business consultant, and tried
to explain she was not short, but Everage said she was short
and had to be fired. Faniel said she went over her tapes,
found she wasn't short, and took them to Yell, Kim, and
Everage but they wouldn't check them when asked. Faniel
then angrily told Everage and Kim that Respondent
wouldn't get away with what they were doing because she
was going to the Labor Board.
Yell testified that earlier on the date of the shortage (on
June 12) he reprimanded Marjorie Faniel for drinking in a
car with some friends. According to Yell, she apologized
and said it wouldn't happen again?
Yell also testified:
Later that night when we closed the register out, we
come up with $200 short.
Even then I told here it could have been a register error.
So we took the detail tape. I had our accountant take
it home and check it out and let us know the next
morning.
Q. (By Mr. Jones) Who was your accountant?
A. Joe Hyun.
The, next morning he brought the tapes back and said
he couldn't find any errors or mistakes.
She suggested we call NCR, which we did. They
couldn't find any mechanical defaults with the ma-
chine. I had no alternative but to let her go.
On June 15, the Union filed with Region 21 a charge
against Respondent in Case 21-CA-11034, alleging viola-
tion of Section 8(a)(1) and (5)'of the Act, with an amended
charge filed on June 20 naming Faniel as a discriminatee
under Section 8(a)(3). These charges were withdrawn on
June 22.
Faniel testified that about a week after June 14 8 she ,
returned to Respondent's premises to picket because of her
discharge and that, after crossing the entrance to the store
once, Yell approached her and requested that she go to the
office to talk to Everage. Faniel testified that Everage ad-
mitted he had been mistaken about her alleged shortage at
the cash register and that it had been a mistake on
Respondent's part which had been found. According to
Faniel, Everage said he tried to reach her and her husband
to tell them. Faniel said she told Everage he couldn't have
been trying to get in touch with her since neither she nor her
husband received any messages. Faniel then testified Ever-
age said she was trying to hurt Respondent by protesting her
discharge on the picket line. According to Faniel, Everage
then telephoned Faniel's husband, Bobby Faniel.
Bobby Faniel testified that Everage, in a telephone con-
versation to him at the time Marjorie Faniel had been out
picketing, admitted that Respondent had found the mistake
they thought Marjorie Faniel had made involving a $200
shortage. Everage asked Faniel to talk to his wife about the
picketing. Faniel testified he told Everage to deal with his
wife directly. Faniel further testified:
Q. What else did he say?
A. He asked in order for her to be continued to be
employed at the store, she would have to quit her in-
volvement with the Union.
Q. Did he mention anything about charges at the
time?
A. He said charges, talking about the Union.
Q. State that again.
A. The charges that she had filed with the Union,
5 I am aware of testimony that Brooks had been a member of the Union 1 Faniel admitted buying whisky from some friends but denied she was
and that Yell also had been, but such does not change my conclusion. drinking anything other than a soft dunk
6 Respondent's president, Everage, admitted that Faniel was a good check- 8 She first placed the time in the first week in July, then set the time as a
er Yell testified she was an excellent checker-very fast. week after her termination, but indicated she was not sure
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she would have to discontinue this in order to be em-
ployed back at the store.
According to Marjorie Faniel, Everage ended the meeting
by telling her that she could not return to work until he was
satisfied she had not or was not continuing to press charges
with the Labor Board and the Union . Faniel testified she
left the office and said she was going to the Labor Board
and the Union to fight for her rights and her job.
On June 29 the Union filed an original charge in Case
21-CA-11081 , alleging Faniel as an 8 (a)(3) discriminatee.
Thereafter, she called Everage and asked whether she could
return to work . Everage said that he had found out through
his attorney that she had pressed charges against Respon-
dent with both the Labor Board and the Union.
On July 21, Everage visited Marjorie Faniel at her home
with Bobby Faniel present during part of the conversation.
According to Marjorie Faniel, Everage said Respondent
made a mistake in attributing the shortage to her,9 and
stated that Faniel would not return to work until she proved
to him that she would not proceed on the charges with the
Labor Board and the Union . Everage then asked her to sign
a "release paper," stating she was not going to press the
charges any further. Everage also said she was his best
checker and he didn 't want to see her getting into trouble
with the Labor Board or the - Union and didn 't want her
making any trouble.
Bobby Faniel asked Everage as to how he and Marjorie
Faniel could be sure that if she signed the release Everage
wouldn't fire her again . According to Bobby Faniel and
Marjorie, Everage said he should be trusted and that if she
signed a release she could come back to work and would be
taken care of. According to both the Faniels;, Everage also
said that he would pay her "under the table " without saying
how much and that she would get a reasonable amount of
work . Both Faniels said that Everage then handed Marjorie
Faniel a typed copy of the release to sign. Marjorie refused
to sign any paper which said she was dropping the charges.
On August 15, Everage again visited the Farriers ,home
and, according to them , substantially the same conversation
as on July 21 occurred . Everage, according to Marjorie
Faniel, said that he would like to see her back but before
she could return she would have to sign a document stating
she was dropping the charges . Marjorie Faniel said that at
this time she signed the "release" document which Everage
had prepared which was addressed to the Board and stated
she had her job back and wished to drop the charges as there
was a misunderstanding.
Following the signing of the letter requesting withdrawal
of the charge, according to Faniel , Everage asked her to go
to lunch at Century City where a meeting had been ar-
ranged with Sam Kim, Respondent 's business consultant, at
which time Everage gave Kim the withdrawal which Faniel
had signed. According to Faniel , Kim told here it was nice
of her to sign the withdrawal and he was sure she wasn't the
type of person who wanted to "start trouble" with the Labor
Board and the Union. Everage again said they had found
the mistake and it was a wise thing to do to sign the paper
to show she wasn't trying to "start trouble."
9 Everage did not deny making statements that Respondent had found out
that the attribution of the shortage to Marione Fanael was a mistake.
Kim testified that Marjorie Faniel signed the withdrawal
letter at the meeting at Century City while as set forth she
said it was signed at her home. Whether it was signed at
home or at this meeting is immaterial. The document signed
by Faniel was mailed to the Labor Board in an unmarked
envelope and, although at first some question was caused as
to how and by whom it was sent to the Board, it was subse-
quently admitted by Everage that he put the letter in an
envelope and sent it to the Board. There was also some
effort by Everage to have it appear that the letter was pre-
pared at Faniel's request. However, he admitted having the
letter typed, as well as sending it.
While Everage denied telling Marjorie Faniel that he
wouldn't take her back as long as charges were in effect, he
also testified as follows (with respect to an affidavit he had
given to a representative of the Board):
... she had filed unfair charges against me and that
I wanted a letter from her saying that she had filed
untrue charges against me before I could let her come
back to work.
She indicated "-
Q. That's enough.
So you did tell her you wanted a letter from her
before you would let her come back to work?
A. No. I may have implied it.
Q. It says here, "I told"-does told mean imply?
A. The implication is here.
Q. Do you want to change what's in your affidavit?
A. No. I don't want to change it.
Q. Was it a true statement when you gave it?
A. It's a true statement.
It appears quite clear from the foregoing (including the
Faniels' testimony which I credit) and I find that Respon-
dent conditioned Faniel's return to work on signing the
request to withdraw the charges and that Respondent would
not have reinstated or reemployed her otherwise. Respon-
dent thereby violated Section 8(a)(1), (3), and (4) of the Act,
and I so find.
A prior question is whether Faniel's termination of June
12 was discriminatory. Although as found there is substan-
tial evidence of Respondent's union animus, I am not pre-
pared to find that Respondent's termination on June 12 of
Faniel for an apparent error of $200 in the register was
violative of the Act. Faniel testified credibly that any appar-
ent error was not caused by her and that Everage subse-
quently admitted that so charging her was a
mistake-which Everage did not deny. While it may be
possible to infer that Respondent was aware of this at the
time of her termination, I do not consider that such has been
established. I accordingly consider that Respondent
(through Yell) thought there was a shortage for which Fan-
iel should be held accountable at the time she was terminat-
ed. I do not find from her offer to pay the $200 to keep her
job any admission of responsibility.
The next question is at what point did Respondent be-
come aware of and admit its error (as I have found above)
and at what point in time take the position that it would not
reemploy Faniel because of the charges?
It appears that the first amended charge in Case 21-
CA-11034 naming Faniel as a discriminatee was filed on
June 20 but withdrawn 2 days later. The charge in Case
EVERAGE BROS. MARKET
21-CA-11801 herein was filed June 29, 1972. According to'
Faniel, as set forth, she returned to picket about a week after
she was terminated although she wasn't sure of the time. At
that time, Everage admitted he had been mistaken about
Faniel's alleged shortage and accused Faniel of trying to
hurt Respondent by protesting her discharge on the picket
line. At the same time, Everage called Bobby Faniel and
warned that Marjorie Faniel would not be reemployed un-
less she quit her involvement with the Union and discontin-
ued charges she had filed with the Union . I have found
above that the Respondent violated Section 8(a)(1), (3), and
(4) by refusing to reinstate Marjorie Faniel until she with- -
drew the charges.
Faniel, as stated, set the time of her "picketing" and being
called in to see Everage as about a week after her termina-
tion was definite (or about a week from June 14). At that
time, as set forth, Everage told Faniel's husband that unless
she discontinued the charges filed she would not be reinstat-
ed. At about that time, the charges in Case 21-CA-11034
were still on file . I am accordingly finding that
Respondent's violation of Section 8(a)(1), (3), and (4) found
above commenced as of June 21, 1972.
D. The Subsequent Termination of Faniel and the Alleged
Reduction of Her Hours
On August 16, 1972, Faniel returned to work. According
to Faniel, before she started, Everage, in Kim's presence,
directed her to sign a copy of the withdrawal she had signed
the previous day and this was the date that Everage anony-
mously mailed to the NLRB Regional Office the letter re-
questing withdrawal of the charges.
During the first week upon her return in August , Faniel
worked a normal 40-hour week. The second week and there-
after her hours were drastically reduced-the second week
about half time and the third to about 15 hours per week.
The first week her hours were reduced was the same one that
the complaint and notice of hearing in Case 21-CA-11081,
dated August 23, was issued and received on August 24 by
Respondent.
Faniel asked Everage why her hours were being reduced
and he said her hours were being taken over by his nephew,
Fred Allen. Faniel testified:
I said, "No." I say, "You guys are being unfair. You are
cutting my hours down"-"The first time I was fired
you brought in your nephew and he took my hours and
I trained him. Now he has my hours and I have to split
hours with him."
She accused Everage of trying to force her to quit. Ac-
cording to her, Everage didn 't deny her allegations except
he responded that he cut her hours because work was slow.
According to her, at the time, one Michael Binns, a checker,
was working full time and a number of courtesy clerks,
including Everage 's nephew, were being trained as checkers
and were both checking and bagging . In addition , according
to Faniel, Respondent also increased her workload by not
scheduling or providing her with a courtesy clerk as she had
had in the past.
With respect to the matter of courtesy clerks, I note that
Faniel with reduced hours was evidently finishing work at
5 p.m. when the courtesy clerks apparently came to work.
597
I also note Everage's testimony that there was a reduction
in business that necessitated a reduction in hours and that
he had laid off his wife and his sister, who complained about
Famel working instead of her. Everage also testified the
reason Binns was given full-time work was because Binns
not only checked but also stocked and could do almost
anything including lifting heavy boxes. Everage further said
the courtesy clerks were checking at times in order to train
them to become checkers and that his nephew, Fred Allen,
was hired as a courtesy clerk.
There would be no violation, of course, if the reduction
of Faniel's hours was a legitimate business necessity and not
motivated in any way by her union activities or filing and
pursuing charges. However, the question is what was
Respondent's motivation in reducing Faniel's hours? First,
I have found that Respondent had illegally discriminated
against Faniel because of her union activities and because
she filed, pressed, and would not withdraw charges (until
shortly before she was reemployed). This conduct of Re-
spondent entitled Faniel to full reinstatement and to an
order directing such. Upon her reinstatement, she worked
a full 40 hours for about 1 week, from August 16. On August
23, the complaint in Case 21-CA-11081 issued and was
received on August 24. That week her hours were reduced,
while a nephew, Fred Allen,1° appears to have worked in her
place and various courtesy clerks engaged in checking.
The pattern of continuing discrimination and reprisal
manifested with regard to the week of August 23 follows
that commencing on June 21 after the charges of June 20
in Case 21-CA-11034, and as shown hereafter, a subse-
quent termination of Faniel on February 3, 1973, following
a reissuance of the complaint in Case 21-CA-11081 on
January 23, 1973, and a new charge in Case 21-CA-11520
filed on February 1, 1973, and received by Respondent on
February 2.
Whatever may be the case in general, under these circum-
stances (including particularly Faniel's entitlement to full
reinstatement on August 16), it became incumbent upon
Respondent, which had all pertinent information and busi-
ness records concerning its business needs in its possession,
to come forward and produce these to substantiate its con-
tention as to the need for reduction of Faniel's hours and
to justify its action." Respondent has not done so and 'I
10 While nepotism may not ordinarily be illegal, such relationship cannot
be used for discriminatory purposes.
11 Upon the General Counsel's showing of a prima facie case , the burden
of coming forward with evidence is upon the Respondent. N L R B v. Miller
Redwood Company, 407 F.2d 1366 at 1360 (C.A. 9, 1969).
Where a respondent is obligated to reinstate an employee upon wrongful
refusal or failure to do so, it appears (in a compliance case ) to be incumbent
upon a respondent to show what employment in the compensatory sense
would not have been available. N.L R B v. Pat Izzi Trucking Company, 395
F.2d 241 (C A. 1, 1968); N L R B v. Charley Toppino and Sons, Inc, 358 F.2d
94 (C.A. 5, 1966), and N L.R B. v. Mastro Plastics Corporation, 354 F.2d 170,
176 (C.A. 2, 1965), where the court (in a compliance case) said:
To establish, that an employer has reduced or adjusted his business to
an extent eliminating the job of a discrimrnatee requires careful analysis
of the books and records of the employer during the back pay period
Of course, the Board has access to these records , but it is the employer
who kept the records and who therefore is able to explain them and to
interpret any ambiguities they may contain. We agree with the cases that
Continued
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude from all of the foregoing that its reduction of
Faniel's hours, commencing the week of August 23; was
discriminatorily motivated and I find Respondent thereby
further violated Section 8(a)(1), (3), and (4) of the Act and
I shall recommend an appropriate remedy thereafter.
Following her reinstatement on October 10, a settlement
agreement was approved by the Regional Director which
provided for Faniel's reinstatement (already partly effected)
and payment of a certain amount of backpay. Following
conversations with the Board's compliance officer, Faniel
inquired of Yell whether he thought she had been wrong in
asking for backpay through the Board and Yell answered
that she was wrong if she remained working for Respondent
but not if she quit. The next day Sam Kim asked about her
dealings with the Board and warned that Respondent knew
every time she talked to the Board. Faniel said that half the
time the Board called her. According to Faniel, Everage
said they didn't owe her anything and did her a favor by
rehiring her after they found the mistake. The settlement
agreement was not complied with and on January 19, 1973,
the Regional Director withdrew his approval. Accordingly,
on January 23, 1973, the Regional Office reissued the com-
plaint in Case 21-CA-11801.
As set forth, on February 1, Faniel filed another unfair
labor charge because of the reduction in her wages and
hours. Thereafter, Faniel testified she had a conversation
with Everage during which Everage asked why she wanted
to make trouble for him and finally stated that he could kill
her for this and asked why she wanted to make trouble after
all he had done for her family. When Faniel said it could
go both ways, Everage stated it didn't make any sense for
her to keep pressing charges because she wouldn't win. Ev-
erage did not deny the foregoing and I credit Faniel.
'On the following day Saturday, February 3, 1973, there
occurred an incident at Faniel's checkout stand involving
food stamps. The testimony of all witnesses, including Fan-
iel, Store Manager Yell, Everage, and the customers in-
volved, reflects that there was a great deal of confusion as
to just what occurred at the stand. There is varying testimo-
ny as to the amounts of money and food stamps involved
and precisely how much was presented by the customers
and how much was returned to them. However, it appears
some cash was improperly returned for food stamps.12 It
also appears that the register did not accurately record the
transaction, although Faniel had registered the sale. There
were, evidently, some missing food stamps which were not
located. According to Faniel's undisputed testimony, the
store was quite busy at the time. Also the customers con-
tended that they had not been given the proper change,
whether in cash or food stamps or both. Finally, the missing
food stamps were not in the register nor apparently on
Faniel's person.
A woman customer had given Faniel food stamps in ex-
cess of her bill and, according to Faniel, tried to get a cash
refund. The woman claimed Faniel asked for all the food
stamps she then had (which would be far in excess of those
have found this factor a persuasive reason for requiring the employer to
come forward with proof thatjobs were not available . [Cases cited.] [Em-
phasis supplied.]
12 Which would be unlawful
needed). Faniel denied making such a request. When a
shortage in cash, food stamps, or both became,evident to the
customers, they reentered the store to complain. Faniel
called Yell over to straighten out the matter. 3
13 Yell testified.
A. I happened to be walking towards the front and this gentleman
was standing at the end of Marjorie's counter arguing about the differ-
ence in change, saying that she had short-changed him.
So I walked up to Margie and I said what was wrong. I thought he
was trying to short-change her.
We got into a discussion about it Margie told me what happened and
she explained to me. I thought he was really trying to beat her out of
money. -
I said that I would takc the register count and count it out and if there
is any overage, she made a mistake. If not, I wouldn't be able to refund
any money.
A. We went into the office and I checked the register out. It came up
something like 19, $20 over. So I left it. Then I went to Margie and
I-questioned her, why it was over. She tells me that she got confused
in the transaction
THE WITNESS He said, "When we walked up, she told my wife to give
me all your food stamps ," and she was going to give her change in cash
for it. All of it, in other words, sell your food stamps
X ? i
JUDGE When he told you this, was Mrs. Famel there?
THE WITNESS Yes, she was standing there.
JUDGE When he told you what he had been talking to his wife about,
was she standing there?
THE Winnss The whole time. She kept saying, "Search me. I don't have
any money on me."
Yell further testified he asked the husband for a written statement that he
and his wife signed and "We went back downstairs and I gave her his
money." Yell, then testified he talked to Farrel before and after and-
THE WITNESS I asked her, "Margie, do you know what happened here?"
I said, "Can you explain to me what went on?"
This was before I counted her till. I was more on her side, thinking
they were trying to cheat her.
After I counted the till, and I found it was over, I wondered what was
going on
Yell said he told Fanel
THE WITNESS I told her, Margie, we are over and we are going to have
to give this customer his money "
JUDGE What did she say, if anything?
THE WITNESS She said, "Roland, I didn't try to cheat him." She was
excited and crying.
I said, "What were you doing taking cash for food stamps in the first
place? You know that's wrong. We can lose our license."
She said, "I can't"-
"That's what the gentleman said you were doing." I said. She denied
it.
I said, "Here is the proof. You are over and he gave you food stamps
and not cash."
She had given him something like $19 change in cash and not food
stamps.
JUDGE Do you know what the amounts were that were involved?
THE WITNESS The total bill was $11-he said he gave her sixty or fifty
or sixty dollars in food stamps and a $20 bill, something like that.
JUDGE A $20 bill?
THE WITNESS Yes.
JUDGE He said he gave her fifty or sixty dollars-
THe WITNESS A total of $60, $40, food stamps and a $20 bill.
When J looked at the receipt, I said, "Why did you accept so much
money for an $11 bill?" It didn't make sense.
EVERAGE BROS . MARKET 599
Everage came over and spoke to the female customer and
her husband outside of Faniel's presence and Yell spoke to
them in his office and, according to Faniel, upon returning
from the conversations the customers and Everage accused
Faniel of trying to sell food stamps for cash and claimed she
stole the food stamps which the female customer had given
her.14
According to Faniel, she, Everage, Yell, and the female
customer proceeded to Everage's office. Once in the office,
Faniel offered to have Everage and the customer search her.
She was in tears. She unzipped her clothes and, according
to her, allowed the female customer to search her, but the
customer denied that she actually searched her. The cus-
tomer did admit that she observed Faniel during this time.
According to Faniel, nothing was found. Faniel also testi-
fied that Everage ordered Yell to search Faniel's check-
stand, which Yell did but didn't find anything. Everage
again accused her of trying to give the customer cash for
food stamps. Faniel denied this and said that if she had
engaged in such conduct she would not have called Yell.
Faniel, upset, had left the office and gone to the phone
booth to call her husband. He came and asked Yell to check
her out and she went home. At one point, according to the
woman customer, after she had been in the office and after
JusaE What did she say to that?
THE Wirmsss She couldn't explain that.
14 Faniel testified-
I said, "Oh, you are paying with food stamps." In my mind I am going
to redo the taxable items. I am going to separate them from the groceries
Groceries you pay with food stamps. Taxable items you pay cash.
Q. Can't use food stamps?
A. Right. She hands me all the food stamps. I don't know how much
cash it was , but I ring up on my machine-it rings the amount given.
The amount given I pushed the button for the numbers and it comes up.
It tells you how much change.
Now, at this time I tell her, this is too much stamps. After you tear
out the $5 coupons and $2 coupons and $2 coupons you-then no other
store will take them They have to be in the book. She is tearing them
out. I called Roland.
I asked Roland-he wanted money back for the food stamps It was
way over the amount. He wanted money back and she wanted money
back with it.
I said, "I can't give you back money for this. I will call Roland."
Roland comes over and he straightens it out as far as I know and find
out that I had given-I believe I give him the money back but I couldn't
give him the food stamps. So Roland goes in the office to try to make
up the money and 50 cents coupons. The 50 cents coupons can be tore
out all they want as possible . You can't give back the $5 stamp or the
$2 stamp.
We had to go in the office.
He pulled my drawer. I believe it was nineteen dollars and some cents
I owed them. Roland checked out my drawer. I owed them $19 in cash
and we had to pay them in stamps. They was making a ruckus-
Q. Who is "they?"
A. The customers Roland states it is their mistake and not my mis-
take.
Q. Who?
A. The customer states it is my mistake. Roland checks me out and
I am $19 over. He wants the money back. You can't give money back.
I says, "You can search me." I started crying. This is in front of all
those people now that know me in the market. So I go in the office and
I have the lady search me.
Q. Which lady?
A. The customer. Dan is in presence. This is the first office.
she had unzipped her clothes, Faniel went downstairs again
and picked up her purse and went outside.15
There is no question that there was quite a dispute at the
stand. There appears to be no question that there was some
variance in the register at that point. The female customer
testified as to amounts of cash and food stamps involved
while her husband said the bill was about $11 and they were
short the amount of $40 and also said they got about $32
back. However, there is no evidence other than the incident
itself to indicate that Faniel took anything. Further it would
hardly be likely for her to attempt to cheat the customers
out of an amount such as $19 or $32 or $40 and to expect
that they wouldn't know it. At any rate, she left the store on
Saturday, February 3. She was not scheduled to work Sun-
day or Monday.
On Sunday, Everage mailed her a certified termination
check and a letter stating she was fired . Everage concedes
that she was fired. Upon receiving the check, Faniel's hus-
band called Everage. He asked Everage whether she was
fired and Everage said she was. When he gave the phone to
Marjorie Faniel, Everage hung up. Accordingly, it is clear
that Faniel was terminated. The incident involving the food
stamps and the cash, as appears in this record, was a most
confusing one. The circumstances reflect that something
was amiss, but nothing definite was established. I conclude
that whatever occurred was the result of confusion rather
than any deliberate conduct by Faniel. Admittedly , she was
a good checker. It doesn't stand to reason that she was
deliberately attempting anything wrong in this incident.
However, it does appear that Respondent decided to use
this to terminate her. The question is was Respondent justi-
fied in so doing.
To bolster its position, Respondent brought up at the
hearing the drinking incident previously referred to and an
incident where Faniel allegedly had taken certain hair prep-
aration belonging to the store which she had in a bag at the
store. Faniel testified that the particular preparation was
sold in her husband's store and that she had bought the
items and had not taken them from Respondent's store.
Bobby Faniel, her husband, said he sold her three, four, or
five bottles. Yell said he was off that day and his assistant
reported the matter to her. Yell said there were normally'
about 8 or 10 bottles on the shelf and that there were sup-
posedly about a dozen bottles in the bag which Faniel had
and which were returned to the shelves. Whether or not
Faniel's version is correct, this incident obviously did not
lead to any action toward her at the time nor was it relied
on for her termination after February 3.
This again leaves a question as to Respondent's motive in
terminating her at that time. Respondent had previously
required Faniel to request withdrawal of charges before it
reinstated her on August 16. Second, Respondent stated it
was not going to pay Faniel any backpay that was due and
owing to her and, when she persisted in seeking this, also let
her know that she was unwise and she'd be better off to have
quit. Third, as set forth, the settlement agreement was with-
drawn on January 19 and on January 23 the complaint in
Case 21-CA-11081 was reissued. Further, on February 1,
15 According to the female customer, Faniel offered to have Everage search
her but Everage declined.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973, Faniel had filed a new charge in Case 21-CA-11520
(involving reduction in her hours, etc.) which Respondent
received on February 2.
In my judgment, Respondent seized on the food stamp
incident to again terminate Faniel because of her persis-
tence in pursuing her rights under the statute, such being a
continuation of Respondent's prior conduct. I also note
further that Yell testified Faniel was not terminated over the
food stamp incident, but that she quit. Everage, however,
testified he terminated her after the food stamp incident
because of the incident. It is questionable whether the food
stamp incident could be the true cause because Yell admit-
ted that he thought the incident resulted from confusion,
that the store was busy, and that confusing incidents involv-
ing food stamps and cash are a common occurrence (al-
though not in those amounts). It was also admitted that it
was not unusual for customers to attempt to cash in food
stamps for currency although illegal. Further, Faniel had
rung up the sale and it would be highly improbable that
having done so that she would then have attempted to short
change the customer and certainly not in the amounts said
to be involved. I accordingly find that Respondent termi-
nated Faniel on February 3 because of her persistence in
pursuing her rights including the seeking of backpay and
her filing of charges in Case 21-CA-11520 respecting reduc-
tion in her hours and pay, thereby further violating Section
8(a)(1), (3), and (4) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic, and com-
merce among,the several States and tend to-lead to labor
disputes burdening and obstructing the free flow thereof.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent violated Section 8(a)(1),
(3), and (4) of the Act by conditioning reinstatement of
Marjorie Famel from June 21, 1972, to August 16, 1972,
upon her not pressing charges with and withdrawal of
charges filed with the Board, by, from August 23, 1972, to
February 3, 1973, reducing the hours of work of Man one
Faniel because of her prior filing and pressing of charges
and/or because of issuance of the original complaint in
Case 21-CA-11081 on August 23, 1972, and by her termina-
tion on February 3, 1973, because of both her prior filing
and pressing charges and/or the reissuance of complaint in
Case 21-CA-11081 on January 23, 1973, and the filing of
charges in Case 21-CA-11520 on February 1, 1973, which
were received on February 2, I shall recommend that she be
made whole for any loss of earnings she may have suffered
as a result of Respondent's discriminatory and illegal refus-
al and failure to reinstate her from June 21, 1972, to August
16, 1972, as a result of her reduction in hours from August
23, 1972, to February 3, 1973, and as a result of her termina-
tion on February 6, 1973.
It will also be recommended that Respondent preserve
and make available to the Board, upon request, payroll and
other records to facilitate computation of backpay. Loss of
earnings shall be computed in accordance with the formula
prescribed in F. W. Woolworth Company, 90 NLRB 189,
and interest at the rate of 6 percent per annum shall be
added to the backpay to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Because of the nature and extent of the unfair labor prac-
tices engaged in by Respondent, as found above, it will
further be recommended that Respondent be ordered to
cease and desist from in any other manner infringing upon
the, rights of the employees guaranteed in Section 7 of the
Act. Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent, Everage Brothers Market, Inc., is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Clerks Union, Local 770, Retail Clerks Interna-
tional Association, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. By threatening employees with reprisal if they signed
authorizations for or joined the Union and by soliciting
withdrawal of charges as a condition of continued employ-
ment or reinstatement Respondent has interfered, re-
strained, and coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act and thereby has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Marjorie Faniel and reducing her hours to
discourage membership in a labor organization and because
she filed or caused to be filed, pressed, and declined to
withdraw charges filed with the Board, Respondent has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1), (3), and (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER16
Respondent, Everage Brothers Market, Inc., Los Angeles,
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor 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.
EVERAGE BROS. MARKET 601
California, its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals if they sign
union authorization cards or engage in union activities.
(b) Discriminating in regard to the hire, tenure of em-
ployment, hours of employment, or any term or condition
of employment of Marjorie Faniel or any other employee
because she or he has engaged in union or concerted activi-
ties or any other activity protected by the Act.
(c) Discouraging membership in Retail Clerks Interna-
tional Association, AFL-CIO, Local Union No. 770, or in
any other labor organization of its employees, by discrimi-
nating in regard to their hire or tenure of employment or
any term or conditions of employment.
(d) In any like or related manner interfering with the
right of employees to self-organization, to form labor orga-
nizations, to join or assist the above-named or any other
labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain from any or
all such activities, except to the extent such .right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer Marjorie Faniel immediate and full reinstate-
ment to her former position or, if that position no longer
exists, to a substantially equivalent position without preju-
dice to her seniority or other rights or privileges.
(b) Make Marjorie Faniel whole for any loss of earnings
she may have sustained as a result of the discrimination
against her in the manner prescribed in the section of this
Decision entitled the "Remedy."
(c) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary or
useful to an analysis of the amounts of backpay due under
the terms of this recommended Order.
(d) Post at its premises in Los Angeles, California, copies
of the attached notice marked "Appendix." I7Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by an authorized repre-
sentative of the Respondent, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed in all other respects.
17In the event that the Board's Order is enforced by a Judgment,of a
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 Court of Appeals Enforcing an Order of
the National Labor Relations Board."