Maxi Mart

National Labor Relations Board - Board Decisions

Dec 20, 1979

246 N.L.R.B. 1151 (N.L.R.B. 1979)

The Administrative Law Judge concluded, and we
agree, that after the Union obtained authorization
cards from a majority of employees in the bargaining
unit, Respondent engaged in various violations of
Section 8(a)(I) of the Act and also discriminated
against employees in regard to their tenure and terms
and conditions of employment in violation of Section
8(a)(3) and (1) of the Act. With respect to the allega-
tion that, commencing on or about January 7, 1978.
Respondent engaged in "unit packing" in violation of
Section 8(a)(1) of the Act, the Administrative Law
Judge specifically found that Respondent added
Franciso "Pancho" Ramos, Maria de la Torre. and
Alfredo Gutierrez to the meat department in an effort
to expand the size of the voting unit to insure that the
ballots of bona fide employees would be diluted and
their desire for union representation frustrated. With
respect to the representation case portion of this pro-
ceeding, the Administrative Law Judge found the
challenges to the ballots of these four employees "sus-
tainable." We agree that these employees were not
bona fide meat department employees, but were
transferred to the meat department payroll to dilute
the voting strength of bona fide employees, and we
shall sustain the challenges to their ballots.'
In fashioning a remedy, the Administrative Law
Judge concluded that the Union was entitled to either
a certification or a bargaining order. Based on his
finding that the election was "still unresolved." the
Administrative Law Judge recommended that the pe-
tition be dismissed and that Respondent be ordered
to recognize and bargain with the Union as of Janu-
ary 10, 1978. the date it embarked upon its course of
unlawful conduct.6 Although we agree with the Ad-
ministrative Law Judge that Respondent's unfair la-
bor practices were sufficiently serious to warrant the
issuance of a bargaining order, we disagree with his
recommended dismissal of the election petition and
ing employees. threatening to discharge employees. promising a age n-
crease, discharging three employees. and particularly packing the voting
unit. was egregious and widespread and demonstrated a general disregard
for employees' fundamental statutory rights. Hickmott Foods, Inc. 242
NLRB 1357 (1979).
Member Penello notes that, in affirming the Administrative Law Judge's
finding of violations in this proceeding, he puts no reliance on .Ahilties and
Goodiill, Inc.. 241 NLRB 27 (1979), cited by the Administrative Law Judge.
in which he dissented. Accordingly. in line with his dissent there, and con-
trar" to the Administrative Law Judge's recommended Order. Member
Penello would order backpay from the date on which the striking emnploees
offered to return to work.
'See Value inty Furniture of Springdule, Inc.. 222 NLRB 455 1976).
'Although at one point in his Decision, the Administrative Law Judge
referred to a demand for recognition on January 10. he subsequently stated.
"ITIhe Union has not made a demand for bargaining" In the absence of an
allegation that Respondent violated Sec. 8(aA5 ) of the Act, and inasmuch as
January 10 coincides with the commencement of Respondent's course of
unlawful conduct, we find it unnecessary to pass on the question of, whether
the Union n fact made a demand for bargaining.
In these circumstances. Chairman Fanning would order only bargaining
prospectilsel
Maxi Mart and Butchers Union Local 498, Amalga-
mated Meat Cutters and Butcher Workmen of
North America. AFL-CIO. Cases 20-CA-13931
and 20-RC- 14545
December 20, 1979
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On May 22, 1979, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and 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 exceptions and briefs
and has decided to affirm the rulings, findings,2 rec-
ommendations, and conclusions3 of the Administra-
tive Law Judge and to adopt his recommended Or-
der,4 as modified below.
I Respondent filed cross-exceptions and a supporting brief which were re-
jected by the Board on the ground that they were untimely filed.
2 The Administrative Law Judge found, and we agree, that Respondent
violated Sec. 8(a}(3) and (I) of the Act when, on January 19, 1978. Respon-
dent laid off employee Delores Lopez, who had signed an authonzation card,
for the purpose of creating a space in the meat department in which to place
employee Mana de la Torre, who Respondent was confident would vote
against union representation in the event of a Board election. The Adminis-
trative Law Judge, however, failed to include specific language in his Con-
clusions of Law and recommended Order with respect to this finding. We
shall amend the Administrative Law Judge's Conclusions of Law and modify
his recommended Order accordingly.
I The Administrative Law Judge found, based on the credited testimony of
Danny O'Br)an, Respondent's meat department manager, that Respondent
put pressure on employees Larry Brower and William Dietrich in an effort to
force them to quit or to provide Respondent an excuse to fire them. This
pressure, which included O'Bryan's giving the employees insufficient time to
do their jobs and then "jumping them" when they were not able to complete
the assigned tasks, was found by the Administrative Law Judge to be part of
Respondent's effort to get rid of Brower and Dietnch because of their union
sympathies. The Charging Party has excepted to the Administrative Law
Judge's failure to conclude that the harassment by O'Bryan constituted a
violation of the Act. We find merit in this exception. Respondent's conduct
in this regard clearly constituted discrimination in the employees' terms and
conditions of employment in violation of Sec. 8(aX3) of the Act. Although
the complaint does not specifically include this conduct as a violation of the
Act, the allegation was generally encompassed in the complaint, the issue
was fully litigated at the hearing, and the record fully supports the finding of
a violation. Accordingly, we shall amend the Administrative Law Judge's
Conclusions of Law to include this violation and shall modify the recom-
mended Order to provide a remedy therefor Gerald G. Gogin dh/ba Gogin
Trucking, 229 NLRB 529 (19771.
' The Administrative Law Judge recommended that Respondent cease
and desist from "in any other manner" interfering with, restraining, or coerc-
ing employees in the exercise of their Sec. 7 nghts. We agree with the Ad-
ministrative Law Judge that the issuance of a broad order is warranted in
this case, inasmuch as Respondent's unlawful conduct, including interrogat-
246 NLRB No. 154
MAXI MART 1 151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with his failure to recommend that a certification of
representation issue. Thus, inasmuch as we shall sus-
tain the challenges to the four ballots referred to
above and since the remaining challenged ballot is
insufficient to affect the results, it is clear that a ma-
jority of the valid ballots cast in the February 16,
1978, election were cast in favor of representation by
the Union.7 In these circumstances, the Union is enti-
tled to both a certification and a bargaining order.'
Accordingly, we shall issue a Certification of Repre-
sentative.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 7:
"7. On January 19, 1978, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by laying off employee
Delores Lopez for the purpose of creating a space in
which to place employee Maria de la Torre, who Re-
spondent was confident would vote against union rep-
resentation and, commencing in February 1978, after
having recalled Lopez, Respondent violated Section
8(a)(3) and (1) of the Act by reducing her hours be-
cause she wished to be represented by a union."
Insert the following as Conclusion of Law 10 and
renumber the subsequent Conclusions of Law accord-
ingly:
"10. Commencing in late March or early April
1978, Respondent violated Section 8(a)(3) and (1) of
the Act by putting pressure on employees Larry
Brower and William Dietrich, including giving them
insufficient time to do their assigned tasks, because of
their prourion sympathies in an effort to force them
to quit or to provide Respondent an excuse to fire
them."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Maxi
Mart, Sacramento, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
I. Substitute the following for paragraph (a):
7The tally of ballots issued on the date of the election showed that, of
approximately eight eligible voters, eight ballots were cast, three in favor of
representation by the Union, none against; there were five challenged bal-
lots. In light of our finding that the ballots of Francisco "Pancho" Ramos,
Arturo Ramos, Maria de la Torres, and Alfredo Gutierrez should be sus-
tained, the Union has received a majority of the valid ballots cast in the
election.
'Case, Inc., 237 NI.RB 798 (1978). and cases therein at fns. 3 and 4.
"(a) Laying off or transferring employees, or hiring
new employees for the purpose of subverting an elec-
tion which is, or is about to be, scheduled in order to
deprive bona fide unit employees of the full weight of
their ballots."
2. Insert the following as paragraph l(f) and re-
letter the subsequent paragraph accordingly:
"(f) Putting pressure on employees, including giv-
ing employees insufficient time to do their assigned
tasks. because of their prounion sympathies in an ef-
fort to force them to quit or to provide Respondent
an excuse to fire them."
3. Substitute the following paragraph for para-
graph 2(a):
"(a) Offer William Dietrich, Delores Lopez, and
Larry Brower immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings they may have suffered by reason of Re-
spondent's unlawful action against them. In addition,
make Delores Lopez whole for any loss of earnings
she may have suffered by reason of her unlawful lay-
off in January 1978 and the unlawful reduction in her
hours between February 1978 and her discharge.
Backpay shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977). (See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).)"
4. Substitute the attached notice for that of the
Administrative Law Judge.
1i IS FURTHER ORDERED that the challenges to the
ballots cast by Francisco Ramos, Arturo Ramos, Ma-
ria de la Torre, and Alfredo Gutierrez in the election
conducted on February 16, 1978, in Case 20-RC-
14545 be, and they hereby are, sustained.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Butchers Union Local 498,
Amalgamated Meat Cutters and Butcher Workmen
of North America. AFL-CIO, and that, pursuant to
Section 9(a) of the Act, the said labor organization is
the exclusive representative of all the employees in
the appropriate unit found herein for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment:
All full-time and regular part-time meat depart-
ment employees employed by the Employer at
its Sacramento, California, facility at 5815 Stock-
ton Blvd.. excluding all other employees, office
1152
sive collective-bargaining representative of our
employees in the bargaining unit described be-
low. Such recognition and bargaining shall be
retroactive to January 10, 1978. If we reach an
understanding, we will reduce such agreement to
writing and will sign and honor it. The bargain-
ing unit is:
All full-time and regular part-time meat de-
partment employees at our 5815 Stockton
Blvd., Sacramento. California. facility exclud-
ing all other employees, office clerical employ-
ees, professional employees, salesmen, guards
and supervisors as defined in the Act.
WE Wlll. immediately offer to reinstate Larry
Brower. Delores Lopez, and William Dietrich to
their former jobs or, if those jobs no longer exist.
to substantially equivalent jobs, dismissing if
necessary any persons who replaced them; and
wE wniLL make them whole for any loss of pay
they may have suffered by reason of our dis-
crimination against them, together with interest
thereon.
WE Wl.L make whole Delores Lopez for any
loss of earnings she may have suffered by reason
of her unlawful layoff in January 1978 and the
unlawful reduction of her working hours be-
tween February 1978 and her discharge, together
with interest thereon.
MAXI MARI
DECISION
SlAI MINrt oF t1i1 CASI
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me in Sacramento, California. on
January 16 and 17. 1979. pursuant to a complaint issued by
the Regional Director for the National Labor Relations
Board for Region 20 on August 1, 1978.' as thereafter
amended on September 14 and again at the hearing. In
addition. on January 12. 1979. the Board ordered consoli-
dated certain issues arising from the representation election
in Case 20 RC-14545.2 The complaint, based upon a
charge filed on July 7 by Butchers Union Local 498. Amal-
gamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO (herein called the Union). alleges that
Maxi Mart (herein called Respondent)., has engaged in cer-
tain violations of Section 8(a)(I) and (3) of the National
Labor Relations Act. as amended.
The Union's petition was filed on January 25 and sought
an election among certain of Respondent's meat depart-
ment employees. An election was held pursuant to a Stipu-
lation for Certification Upon Consent Election on Februarv
All dales herein refer to 1978 unless olherwle indicated
2 Sub nom. Malti tlarkei o/ Sacramentor (unpuhished rder)
clerical employees, professional employees, sales-
men, guards and supervisors as defined in the
Act.
APPENDIX
NOTI(E To EMP1.)_Y1ES
P(osE-D BY ORDER 0 IliIE
NAl()ONAI. LABOR REIAII()NS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members.
WL WllI. NOT lay off or transfer employees, or
hire new employees, for the purpose of subvert-
ing an election which is, or is about to be, sched-
uled in order to deprive bona fide employees of
the full weight of their ballots.
WE WIIL NOT interrogate our employees about
the manner in which they intend to vote in an
NLRB election.
WE WILL NOT promise employees wage in-
creases in order to induce them to abandon a
lawful strike to protest our unfair labor practices.
WE WILL NOT threaten to discharge employees
because they engage in a lawful strike to protest
our unfair labor practices.
\ WE WILL NOT discharge or otherwise discrimi-
nate in regard to the hire or tenure of employees
because they engage in union and/or protected
concerted activity.
WE WILL NOT put pressure on employees, in-
cluding giving them insufficient time to do their
assigned tasks, because of their prounion sympa-
thies in an effort to force them to quit or to pro-
vide an excuse to fire them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE WILL immediately recognize and bargain
in good faith with Butchers Union Local 498.
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, as the exclu-
MAXI MART 1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16. The tally of ballots issued on that date shows that of
approximately eight eligible voters, eight ballots were cast.
three in favor of representation by the Union, none against,
and five were challenged. The challenged ballots are suffi-
cient in number to affect the outcome of the election. The
Union filed objections to conduct affecting the outcome of
the election on February 21.
On March 29, the Regional Director issued her report on
challenged ballots but deferred a report on objections pend-
ing the Board's decision on the challenges. She recommend-
ed that the challenges to three voters be sustained and
deemed it unnecessary to decide the status of the other two.
The Board, after considering Respondent's exceptions, di-
rected a hearing on the matter. The hearing was conducted
on July 10 and 17, and on September 20 the Hearing Officer
issued her report recommending that the ballots of all five
challenged voters be opened. On October 2 the Union filed
exceptions to the Hearing Officer's report on the challenged
ballots.
On November 22, the Regional Director issued her re-
port on objections which she had previously deferred: she
overruled 5 of the 10 objections and recommended a hear-
ing on the remaining 5. Simultaneously, she moved the
Board to remand the entire representation case to her to be
consolidated with the complaint which she had previously
issued, averring that the complaint and the remaining ob-
jections involved essentially the same transactions. The
Union joined the motion and Respondent filed an opposi-
tion. Thereafter, as noted, on January 12. 1979, the Board
granted the motion to remand and consolidated all the rep-
resentation case issues with the complaint.
Issues
The complaint, as amended, alleges that Respondent vio-
lated the Act by "packing" the voting unit in an NLRB
election, discharging three employees because of their pro-
union sympathies, reducing the hours of one of those em-
ployees for the same reason, and engaging in certain in-
dependent violations of Section 8(a)( ). For the most part
the objections to the election track the complaint and raise
nearly identical issues. Assuming the allegations in the com-
plaint are proven, there remains for consideration the ques-
tion of whether or not a bargaining order is the appropriate
remedy or whether the representation case should be per-
mitted to proceed.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of all
parties.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FA(CT
I. RESPONDENT'S BUSINESS
Respondent admits it is a California corporation which
operates a retail food store located in Sacramento, Califor-
nia. It further admits that during the past year, in the
course and conduct of its business, its gross volume ex-
ceeded $500,000 and during the same period it purchased
goods and materials valued in excess of $2,000 from sources
outside California. Accordingly, it admits, and I find, that it
is an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. IElE LABOR ORGANIZA'ION INVOI.VIED
Respondent admits, and I find, that at all material times
the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
ttIll. IlIE AI.I.I(GI) UNFAIR ABOR PRA('IICES
A. Background and Participants
As noted, Respondent operates a retail grocery store in
Sacramento. The store has several departments including
meats. groceries, produce, a bakery, and a restaurant. We
are principally concerned with incidents involving the meat
market.
During the time period involved herein, Respondent's
manager was Jorge "George" Plasencia. The store is a
member of a grocery co-op known as United Grocers of
California. The United Grocer's meat program director is
Don Williams from whom Plasencia took a certain amount
of guidance. In addition Respondent had retained a labor
relations consultant, Frank Marcello.
The parties stipulated that, before January 8, the meat
department employees were manager Larry Brower, ap-
prentice William D)eitrich, full-time meatwrapper Delores
Lopez. and part-time meatwrapper Leticia Delgadillo.
Shortly before. the department had also included a journey-
man meatcutter named Ron Herrin: he had quit on Janu-
ary 6.
During the relevant period Respondent employed four
other individuals who became connected with the meat de-
partment. There were Grocery Manager Francisco "Pan-
cho" Ramos; his brother, Produce Manager Arturo Ramos;
Maria de la Torre, who had worked variously in the bakery,
the check cashing booth, and as a checkstand operator: and
Alfredo Gutierrez, a student who performed night stocking
and cleanup. It should be observed that the Ramos broth-
ers, de la Torre's husband, and Gutierrez' father are all
stockholders in Respondent.
B. The Union's Organizing
In November 1977 Meat Manager Larry Brower, who
had been hired during the previous month, contacted the
Union to find out about obtaining union representation.
The parties stipulated that on December 2, 1977, Brower,
Lopez. and Herrin signed union authorization cards and
that Deitrich signed one in January 6, 1978. The cards are
identical and authorize the Union to represent the em-
ployee "for the purposes of collective bargaining, respecting
rates of pay, wages, hours of employment, or other condi-
tions of employment, in accordance with applicable law."
On January 10, the union president and business agent,
Tom Lawson, together with another business agent, Al Ras-
1154
MAXI N
mussen, went to the store. Lawson and Plasencia knew each
other, having had a conversation about supplying meatcut-
ters in 1976 prior to the store's opening. Moreover, Lawson
had been through the store on a number of occasions since
that time. Lawson testified that he and Rasmussen located
Plasencia in the back of the store and asked him if he had a
moment to talk with them. He gave Plasencia an informa-
tion copy of the current collective-bargaining agreement
and the health and welfare plan. Plasencia replied they
should deal with the labor relations consultant, Marcello:
Lawson agreed to do so but said he did not have Marcello's
current address or phone number. Plasencia agreed to pro-
vide Lawson with that information and they walked to the
office to obtain it.
When they arrived at the office Lawson showed Plasencia
the signed authorization cards and told him the Union was
only interested in representing meat department employees.
not the clerks or individuals employed in other departments
such as the backpay or the restaurant. While they were
standing there, they went through the cards see if each card
signer was employed in the meat market. Plasencia agreed
they all were, except for Herrin, who had recently quit. At
that point, according to Lawson, Plasencia stopped the con-
versation and again referred them to Marcello. After ob-
taining Marcello's address and telephone number the union
officials left.
Plasencia does not specifically deny Lawson's version,
but says Lawson's visit was identical to previous visits
which Lawson had made. He says during each of the other
visits Lawson offered to refer meatcutters to Respondent if
Respondent would agree to sign a contract. He says Law-
son usually handed him a contract saying, "Look it over. If
you have any questions just call." Plasencia says the Janu-
ary 10 conversation was no different from the others, but he
does not specifically deny Lawson's version relating to the
presentation of the authorization cards. Lawson says his
previous visits were principally to keep an eye on this non-
union operation, though he once gave Plasencia an "infor-
mation" copy of the area collective-bargaining contract.
As noted above, the parties stipulated that, prior to the
pay week beginning January 8, only Brower, Deitrich. Lo-
pez. and Delgadillo appeared on either the schedule or the
payroll records as being assigned to work in the meat de-
partment. In fact, Delgadillo had only recently been added.
apparently the week before.3 The original work schedules
are no longer in existence and the parties agree that the
only way to determine whether or not an employee was
assigned to the meat department is by payroll record, if the
employee's pay rate changed as he or she switched from a
nonmeat department job to one in that department. The
payroll records are not in evidence and I am without the
benefit of Respondent's records to determine the actual
dates other employees were assigned to the meat depart-
ment. There are, however, handmade copies of schedules
made by Brower.4 The parties are in agreement that the
schedule shown on the General Counsel's Exhibit 3 for the
' The General Counsel does not contend that Delgadillo's assignment to
the meat department was part of the plan to "pack" the voting unit
4 See G.C. Exh. 3 and C P. Exh. 5. Brower made the copies to be given to
the Union hth to show current schedules and as evidence of Respondent's
misconduct.
1155
week of January 8 through 14 is accurate for what is shown
thereon. Respondent, however, contends that there are
some omissions.
Herrin quit on January 6. According to Brower. between
that date and January 10 when the union officials appeared
at the store, he had a conversation with Plasencia regarding
the size of the work force in the meat department. Brower
remembers Herrin left on a Friday and his conversation
with Plasencia was on the following Monday. If that is so. it
occurred on January 8. Brower says he asked Plasencia if
they were going to replace Herrin on the schedule. After
some discussion he says Plasencia decided that because
business was slacking off they would not then replace Her-
rin.
Plasencia denies saying that to Brower and asserts that
Herrin had to be replaced. He says he hired two temporary
people. one Anguiano and another named Lowell C'arl.
Neither of those names appears on the General Counsel's
Exhibit 3 nor were any timecards or other evidence of hire
introduced showing the dates of their employment. In addi-
tion, according to Plasencia. he decided to transfer Pancho
Ramos into the meat market full time and Arturo Ramos
and de la Torre into the department part time. Further, he
also scheduled Alfredo Gutierrez to work in the department
from 7 to 9 p.m. on varying days of the week. The General
(Counsel's Exhibit 3 shows that of the four new meat depart-
ment employees only Gutierrez had been assigned hours in
the department before January 12 and he appears to have
been scheduled both on January 10 and I 1. His name had
not appeared on former schedules, though he may previ-
ously have performed some duties there.
On January 19. at 6:40 p.m. Plasencia told Delores Lopez
that she was being laid off. Lopez says he told her there was
a "slack in business" requiring him to lay someone off and
he had chosen her. He said if business picked up he would
call her back. Prior to that time she had always worked 40
hours per week. She also said that during the previous week
Plasencia had assigned her to train de la Torre as a meat-
wrapper.
Plasencia was not consistent in his testimony about Lo-
pez' layoff. During the hearing on challenged ballots he said
he laid her off for "no specific reason." (G.C. Exh. 2(b).)
Before me he said he laid Lopez off because she had failed
to train de la Torre, implying he did not tell Lopez she was
being laid off because business was slow. She admits that
during that week she had concluded de la Torre was being
trained to replace her, and she had discussed her fear with
Plasencia. She recalled Plasencia replying she was not to
feel that way.
Brower testified that, on January 19, he had spoken to
Plasencia regarding Lopez' layoff. Brower told Plasencia
that he was upset with the decision to lay her off because he
had not been notified about it. Plasencia replied she was
being laid off for lack of work and would be recalled when
work picked up. Brower thought that was inconsistent be-
cause additional employees had been assigned to the meat
market: he asked why he had been given all the extra help.
observing that the hours of the new people exceeded the 40
Lopez had worked: he also observed that they were un-
trained. Brower says Plasencia responded saying the new
people were stockholders and had the right to work.
DEC ISIONS OF NATIONAL LABOR RELATIONS BOARD
On approximately January 20. apprentice meatcutter Bill
Deitrich had a conversation with Plasencia regarding insur-
ance. Although Deitrich says the conversation was begun
by Plasencia without any prompting by him, it appears
likely that Plasencia's testimony regarding who started the
conversation is more accurate. Deitrich admitted that in
January he was having difficulty catching up on some large
medical bills. Therefore, it does not seem improbable that
Deitrich would have initiated the conversation. In any
event, he testified that during the conversation Plasencia
told him Respondent was going to have a medical and den-
tal plan as well as a $10,000 life insurance policy. He recalls
telling Plasencia, "Good. Show me the paper work and I'll
sign it." Deitrich also admits he did not connect the conver-
sation to the advent of the Union. Plasencia recalls Deitrich
mentioning the illness of his son and asking if there was
anything the Company could do. Plasencia replied the store
was looking into health insurance, referring to the fact that
he had spoken about that topic with meat department em-
ployees before, and told Deitrich he was looking for a
health plan for all the store's employees. He remembered
the conversation then turned to some domestic difficulties
Deitrich was having and Deitrich asked Plasencia some
questions which Plasencia told him he was unqualified to
answer, being unmarried.
As noted, on January 25, the petition was actually filed.
Presumably it was served upon Respondent within a day or
two thereafter.
Later in January Plasencia complained to Brower that
the meat counter was not filled with meat at 9 a.m. Brower
replied it was difficult to keep the counter filled without
qualified help. A few days later, according to Brower. Pla-
sencia brought him a letter of resignation to sign. Brower
refused because the letter required him to admit he had
failed to perform his duties. When he asked for a copy
Plasencia told him he could have a copy if he signed it.5
On January 30, while on a break. Brower and the Ramos
brothers had a conversation. Brower says he remembers it
well because this was one of the few times Arturo was actu-
ally in the meat market. Brower testified Arturo was sched-
uled for 8 hours per week but never actually worked in the
market.
Brower recalls Arturo asking his opinion about whether
Respondent could afford to "go Union." After discussing
that topic for awhile, Brower mentioned Lopez, saying it
was too bad she had been laid off. He says Arturo replied,
"Yes, Delores was a good worker, if she only hadn't signed
the union card." Pancho said nothing at that time and
shortly thereafter the conversation ended.
I Respondent introduced Resp. Exh. 6, a warning letter dated February 3
which Plasencia says is the letter he asked Brower to sign. He denied ever
giving Brower a resignation letter. Brower said the letter he was shown is not
Resp. Exh. 6, but another. The letter in evidence was handwritten by Plasen-
cia and except for his testimony there is no proof that it was written on that
dale. While its authenticity is subject to some doubt, so is Brower's testimony
on the point. Brower testified the resignation letter was undated and Plasen-
cia told him it would not be accepted until he became dissatisfied with
Brower's work. While such a device is not unheard of, its use is compara-
lively rare in nonexecutive level jobs. In any event I find it unnecessary to
resolve this evidentiary conflict. nor does it have any impact on the credibil-
its of either person involved.
Brower said a few minutes later he asked, "Pancho. do
you mean to tell me that Delores was laid off because she
signed a union card?" According to Brower. Pancho an-
swered "Yes."
This information was apparently relayed to Union Busi-
ness Agent Lawson, who promptly called the February 2
strike to force Respondent to put Lopez back to work.
Brower, Deitrich, and Lopez all picketed and within a few
hours Plasencia agreed to recall Lopez.
However. Plasencia. who in the second week of January
had taken the scheduling duty from Brower, 6 did not assign
Lopez to a 40-hour week. Instead, he assigned her a 24-
hour week for 2 weeks, then reduced it to 16 hours for 2
weeks and, from then until May 26. only gave her 8 to 12
hours per week. Plasencia admits scheduling her in this
fashion, but said, as discussed supra, it was a disciplinary
measure taken to punish Lopez for refusing to train de la
Torre. Lopez denied she refused to train de la Torre and
said she once told Plasencia that de la Torre was difficult to
train. Brower testified that meatwrapping is not a particu-
larly difficult job to learn but de la Torre was slow and had
difficulty remembering the various cuts of meat and their
prices. De la Torre testified no one ever explained the cuts
or the prices to her. Brower replied she was told on each
occasion, but she could not remember them.
On February 10, about a week after L.opez returned, she
had what can be described as a confidential conversation
with Plasencia which lasted on and off throughout the day.
At 7 p.m. the conversation resumed in the parking lot. She
testified, "Well, earlier in the same evening, same conversa-
tion, we had . . . discussed whether if Jorge [Plasencia]
thought that by laying me off and bringing Maria Elena de
la Torre. Francisco Ramos, and Arturo Ramos to work.
and Alfredo Gutierrez. that when the Union came in for the
election that it would be a four to three vote. And he didn't
make any comment at this time. but this was the conversa-
tion. okay. And in the evening at the parking lot when I
asked him what the real reason I had been laid off for was,
he said, 'The reason that [you] had mentioned earlier .... '"
She also said that most of the confidential conversation
related to her friendly warning to Plasencia that much of
his conduct appeared to be unlawful in the sense that he
was committing unfair labor practices and she urged him
not to continue to do that. The alleged unfair labor prac-
tices she referred to included her own layoff, the offer of
health insurance to Deitrich, an alleged "bribe" to Herrin.
the scheduling of de la Torre instead of herself, and the
attempt to persuade Brower to resign. She remembers Pla-
sencia said the Union had offered employees something and
he should be allowed to offer them something in return. She
also testified that he asked her how she intended to vote in
the NLRB election.
Plasencia's version is significantly different. He agreed
that on about that day he had a quasi-confidential conver-
sation with Lopez but said she merely told him "they were
going to have an election." that "the Union was really pow-
erful," and if the store did not sign the contract the Union
6The scheduling previously done by Broer had always been within a
framework dictated by Plasencia. Brower does not appear to have had any
real independence in performing that duli.
1 56
knives. generally owned by the employee, which are the
tools of the trade. O'Bryan, like Brower, also said he never
saw Pancho's brother Arturo working in the market while
he was there.
With regard to the hiring of O'Bryan, Respondent called
as witnesses Plasencia and Marcello. It did not call Wil-
liams. Plasencia testified he hired O'Bryan on Williams' rec-
ommendation and simpl, told O'Bryan he was supposed to
take care of the meat department. He remembers Williams
instructing O'Bryan to keep "black meat" out of the
counter as the department had had excessive amounts of
dark meat for sale. Plasencia also said that Marcello men-
tioned black meat, excessive waste, and customer com-
plaints. Plasencia denied he mentioned the Union in any
context, but was not asked whether anyone else mentioned
the Union. Marcello testified he arrived at the restaurant
late and the conversation had already begun. He said he
told them he was concerned because the NLRB election
had not been resolved, and he warned Plasencia against
making a "clean sweep" and told O'Bryan he was not free
to fire anyone without Plasencia's approval. He admits he
told O'Bryan to apply pressure to the employees. but in the
context of urging O'Bryan to tell them to perform their
duties more efficiently, and had nothing to do with forcing
anybody to quit.
Approximately 3 or 4 months after O'Bryan was hired.
apparently in June. Plasencia discharged him. O'Bryan says
Plasencia told him the reason he was terminated was be-
cause the two could not get along. Plasencia says he fired
O'Brvan for charging a personal purchase to the store. hir-
ing an employee at a rate higher than authorized, and not
working the schedule. When Plasencia fired O'Bryan. he
recalls O'Bryan saying he would "go to the Union."
O'Bryan admits that after his discharge he did go to the
Union and has spoken on approximately five occasions to
Business Representative Lawson. He states, however. that
the conversations only dealt with search for work in his
trade, Moreover, he describes his departure from Respon-
dent in different terms, saying that. when he let., he made
an effort to try to avoid hard feelings with Plasencia.
In analyzing O'Bryan's credibility I was particularly mi-
pressed by the undisputed fact that he immediate) at-
tempted to fire Brower for failing to call in sick. The zeal he
showed in that incident convinces me that he indeed was
instructed to get rid of Brower and Deitrich. He would not
have acted so promptly and on such a thin excuse if he had
not thought he was acting in accordance with Plasencia's
wishes. He must have been confident that he was carrying
out the described mandate. I credit, therefore. his testimony
that during the luncheon meeting when he was hired he was
told to rid the meat market of Brower and Deitrich because
of their prounion sympathies.
This conclusion is further buttressed bh the testimonial
differences between Plasencia and Marcello. Plasencia de-
nied mentioning the Union at all during the meeting, but
was not asked if others did Marcello admits the Union was
his principal topic he says he was concerned that the
NLRB election process had not been completed. Why was
Plasencia so careful to say he had not mentioned it'? Did the
directives to O'BrNan come from Williams or Marcello.
rather than him? Why was Williams not called to testify I
"would strike against the store and try to close the doors
down or in other words make the Company go out of' busi-
ness." When he asked her for an explanation, she said the
Union would stop all the deliveries from other companies.
He had no reply except to say that maybe the Union was
powerful enough to close the store. He denied saying any-
thing else to her.
The election was held 6 days later and, as noted, has not
been resolved due to the instant objections and challenges.
In late March or early April Respondent hired a new
meat market manager, Danny O'Bryan. O'Bryan testified
he was hired after being interviewed in the store's restau-
rant. Present during that interview were United Grocers
Williams. Labor Relations Consultant Marcello, and Pla-
sencia.
O'Bryan says Williams explained that Respondent was
having trouble with its meat market employees who were
trying to go union. They also discussed some difficulty the
market was having with displaying the product. He remem-
bered Plasencia saying they did not want the market to go
union and Williams asserting that he wanted the current
manager, Brower. "out of the market." He said they hoped
Brower would get mad and quit when O'Bryan replaced
him. If that did not occur they wanted O'Bryan to force
him to quit or to give O'Bryan a reason to fire him. They
also told O'Bryan that Deitrich did not know how to cut
meat properly and they wanted O'Bryan to force him to
quit or to give O'Bryan an excuse to fire him, too.
As a result, according to O'Bryan, he put pressure on
both, including giving them insufficient time to do their jobs
and then "jumping them" when they were unable to com-
plete the assigned tasks promptly. When O'Bryan reported
to work, Brower's status was reduced from manager to jour-
neyman meatcutter. At that time, however, Brower was on
vacation and did not return on schedule as he was ill. When
Brower did report, O'Bryan attempted to discharge him for
failing to call in sick. But, because Brower had called in,
Plasencia overruled O'Bryan's decision. Nonetheless,
O'Bryan's zealousness to get rid of Brower cannot be ig-
nored.
Later, O'Bryan told Plasencia he wanted to change the
schedule to give Lopez additional hours as she was the best
meatwrapper. That, of course, would have required that de
la Torre's and Delgadillo's hours be reduced. O'Bryan says
Plasencia refused to make the change, saying he wanted "to
keep them back there because of the strike situation."
When O'Bryan was asked if Plasencia said anything else
about why he had "the other people working in the market"
(referring to the Ramos brothers and de la Torre). O'Bryan
testified "Yes. He said that before, because of the election
or whatever, I am not familiar completely with that, but
considering the election. that he wanted to keep them back
there, working on the schedule in case there was another
election held or something came up. They would have peo-
ple from the store in there to vote, or whatever to do with
the strike .... "
In addition. O'Bryan says Plasencia was constantly pull-
ing Pancho Ramos out of the meat market: that prevented
Ramos from learning the trade. It appears from Brower's
testimony that Pancho never even acquired the butcher
MAXI MARTI 1 57
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe that the posture of Respondent's testimony here re-
quires my crediting O'Bryan and discrediting both Plasen-
cia and, to a lesser extent, Marcello.
Returning to the chronology of events, on April 29 ap-
prentice meatcutter Deitrich was laid off. At that point
O'Bryan had been managing the market for several weeks
and Brower had been reduced to journeyman. Deitrich had
been absent from the market for 4 days (2 days off, plus 2
days' vacation). When he came to work on Thursday, April
27, at 9 a.m., O'Bryan told him he was not supposed to be
there, and he should not enter the meat market. O'Bryan
then handed Deitrich his knives. Deitrich took them to his
car and then returned to await Plasencia's arrival, despite
having been told by O'Bryan that he was not supposed to
be near the meat department. At approximately I I a.m.
Plasencia arrived and saw Deitrich speaking to Lopez and
Brower. Plasencia told Deitrich, "Get away from my em-
ployees!" and Deitrich asked, "So that means I'm termi-
nated?" But Plasencia said, "I didn't say that. Just quit
being smart." The two then went into Plasencia's office.
After half an hour's wait, Plasencia told Deitrich, "I prefer
you to take the rest of your vacation time." and handed
Deitrich a vacation check and a paycheck. Deitrich then
left. On the following Saturday, April 29, Deitrich returned
to the store where Plasencia told him he had been laid off
due to lack of work because he already had two journey-
men and could not afford an apprentice. According to Deit-
rich, Plasencia never complained about the quality of his
workmanship. Deitrich observed that he had been permit-
ted to run the meat department on Saturdays by himself', so
thought he was doing a good job.
O'Bryan testified he would have fired both Brower and
Deitrich, but not because of their competency; rather, he
believed they harbored ill feelings toward Respondent and
would have fired them for that reason. Plasencia says he
laid Deitrich off because "he was the low man in seniority
at the store, and Danny O'Bryan had said, as far as a meat
cutter ... he could use more of Larry Brower, because he
was a meat cutter, a journeyman." According to Plasencia.
the decision was made after conferring with O'Bryan and
O'Bryan had asked that the store keep the individual with
the most experience, meaning Brower. The thrust of Plasen-
cia's testimony is that Deitrich wuld not have been laid off
absent O'Bryan's recommendation.
On May 26, pursuant to Union Business Representative
Lawson's decision, Brower, Deitrich, and Lopez again be-
gan picketing the store. While the exact language on the
picket signs is not in the record, it appears that in some
fashion the placard accused Respondent of engaging in un-
fair labor practices. The picketing began when the store
opened. At 9 a.m. Plasencia arrived; both Brower and L.o-
pez were there, although Deitrich may not have arrived
until a short time later. Brower recalled Plasencia's exact
words were, "You are scheduled to be at work at 8 a.m.;
you have 5 minutes to return to work, to report to work, or
you are terminated." Plasencia admitted telling Brower he
had 5 minutes to return, but said instead of telling Brower
he would be terminated, he said if Brower failed to report
he would be considered "a quit."
Either shortly before or after Plasencia spoke to Brower
he also spoke to Lopez in Spanish. She testified Plasencia
asked her if she wished to go back to work saying he could
afford to increase her wage to $4 per hour, but could not
afford to give her $7 or $8, whatever the union scale was.
She also said he told her he was making only $5 per hour
himself.
Plasencia testified he asked her why they were striking
and she replied, "Because of the unfair labor practice."
Then, according to Plasencia. Lopez went on to say that she
felt it was unfair that she was getting paid less than previ-
ously employed meatwrappers. He asked her if she meant
that if she were to receive the same wage the previous meat-
wrappers claimed they had gotten, she would come back to
work? She replied she would not come back to work be-
cause she was on strike. He denied offering her any money.
Because Brower was on strike that day and O'Bryan was
off work with a cut finger, the market was without a jour-
neyman meatcutter. Plasencia immediately telephoned
O'Bryan and had him return anyway. When O'Bryan ap-
peared, he spoke with Plasencia. O'Bryan said Plasencia
told him he had asked the strikers to come back to work,
but they had refused, so he had "terminated them." When
asked if Plasencia referred to anyone by name, O'Bryan
said the only person whose name was actually mentioned in
the conversation was Brower but asserted that he is positive
Plasencia said he had terminated "them." O'Bryan assumed
Plasencia meant all three pickets.
Iv. ANALYSIS AND (ONC'LUSIONS
A. Respondent Packed the Voting Unit
An analysis of the evidence regarding the duties of the
various employees connected to the meat department in
January 1978 leads me to the conclusion that Respondent
transferred at least three, and probably four, employees
into the meat department with the express intention of
packing the voting unit in such a way as to insure the defeat
of the Union in the event that an NLRB election was sched-
uled. Until early January the department had consisted of
manager Brower, journeyman Herrin, apprentice Deitrich,
and full-time meatwrapper Lopez. Delgadillo had also been
assigned in early January as part of the unit in order to help
wrap meat on weekends. The departure of Herrin was most
fortuitous in the sense that it presented a vacancy at ap-
proximately the right time, for Herrin had quit on January
6. Four days later the Union made its demand for recogni-
tion supported by signed authorization cards. Assuming
that Plasencia's version of the Union's previous overtures is
correct, nonetheless this incident was a substantial depar-
ture from the earlier ones as it was the first time the Union
had presented actual evidence of representational author-
ity.7 Because this was the first time that authorization cards
had actually been presented, and as Respondent had the
availability of Marcello's counsel, it is likely that Plasencia
immediately grasped the significance of the cards and he
realized the Union would probably file for an National La-
bor Relations Board election.
7 n view of my credibility determinations relating to Plasencia, he is sim-
ply gisen the benefit of the doubt here for the purposes of disucssion;
frankly, I believe Lawson's version of his previous excursions to Respon-
dent's store to be the more credible.
1158
to make room for the wife of a stockholder who could be
counted on to vote against union representation.
The fourth transfer is more doubtful. That individual is
night cleanup man. Alfredo Gutierrez. Gutierrez had
worked for Respondent since 1976. During his entire em-
ployment he has been a full-time student and, at least as of
July 1978. was only 19 years old. His father is a stockhold-
er. lie says he served as the night cleanup man working in
the meat department and other areas until late 1977 when
he took some time off to play soccer. In his absence, his
father Luis Gutierrez did some of the cleanup work. None-
theless, it appears that meat department cleanup was prin-
cipally performed by the journeyman or apprentice meat-
cutter who was on duty when the market closed each
night either Herrin or Deitrich. Gutierrez claimed he did
the same work the meatcutters did after they left, saying the
cleanup work was performed twice each night. Frankly, I
doubt that occurred. If it did occur, it was not a normal
assignment. More likely. Gutierrez was simply the evening
janitor who cleaned the meat department as well as other
areas in the store. He appears also to have done a certain
amount of shelf stocking. Respondent concedes his name
never actually appeared on the meat department schedule
until Plasencia took over the schedule in January. It is
likely, therefore, that he, like the others, was not a bona fide
meat department employee. even though, unlike the other
three, he spent some time nearly regularly. physically, in
that department.
The foregoing has been a discussion of objective occur-
rences within the meat department. Based on that evidence
alone I could conclude that Plasencia deliberately added
four employees to the meat department to pack the voting
unit. In addition to that evidence, however, there is Lopez'
testimony that on February 10, after she had been returned
from layoff status, Plasencia admitted to her that he had
added those four to the department for the purpose of influ-
encing the outcome of the election. I credit her version here.
over Plasencia's denial, because Plasencia admitted the con-
versation was quasi-confidential. In that circumstance, it is
likely he believed she would not repeat what he told her. If,
as he says, her conversation was simply to tell him about
the election and that the Union was powerful and could
close the store, it would have been unnecessary for her to
have sought his confidence. More likely, the conversation
occurred as she said it did-her friendly warning that he
was committing unfair labor practices and his response in
kind. candidly admitting his true purpose in assigning the
tour employees in question to the meat department.
In addition to the admission reported by Lopez. there is
also O'Bryan's testimony that Plasencia later said he
wanted to keep those tour in the meat department in case
another election was held. so "they would have people from
the store [ownership] in there to vote .... It is apparent
that. although Plasencia's remark was specifically aimed at
a possible second election. it is also an admission that he
had already utilized their nresence in an attempt to rig the
first election. Once having done that, he believed he needed
to keep them in the meat department in the event the first
election was set aside (and to pro\idc some insurance in the
event of a strike). Only in that a'.iS ould his plan continue
to ssork.
At that moment Plasencia knew that of the four individ-
uals remaining in the meat department three had signed
cards. The only one who had not was Delgadillo.
Although Plasencia denied it, I credit Brower's testimony
that on the Monday following Herrin's departure Plasencia
told Brower not to replace him. Such a statement by Pla-
sencia. in view of his belief that the meat department was
losing money, makes a certain amount of economic sense in
that Respondent would no longer have to pay the salary of
a full-time journeyman meatcutter. That savings may well
have been thought sufficient to right the meat department's
precarious financial situation. The discussion appears to
have occurred on January 8, 2 days before Lawson ap-
peared with the authorization cards. With Lawson's ap-
pearance, the financial projection must have changed dra-
matically in Plasencia's mind as he undoubtedly foresaw
the higher wages which unionization might be expected to
bring. That, it seems to me. provided Plasencia with suffi-
cient motive to try to insure that the Union would be de-
feated in a Board election.
That this conclusion is not simply supposition is sup-
ported by the fact that, if it were truly necessary to replace
Herrin, only one individual need have been hired or trans-
ferred. Instead. Plasencia selected at least three. He first
directed Pancho Ramos, already the grocery manager, to
work full time in the meat department (as an apprentice):
Ramos was also exp&ted to continue his grocery manager
duties. Moreover. Pancho never acquired the butcher
knives normally used as the tools of the trade. suggesting he
knew his assignment was temporary. The second individual
Plasencia selected was Produce Manager Arturo Ramos.
who was scheduled to work in the meat department 12 to
16 hours per week in addition to his produce department
duties. Neither Brower nor O'Bryan ever saw Arturo actu-
ally work in the meat department. Brower testified the only
time he ever saw Arturo in the department was on January
30 when they discussed unionization at length. including
Lopez' layoff. His assignment seems altogether to have been
a sham. The third individual was Maria de la Torre, who
previously had served in the bakery department, the check-
cashing booth, and at the checkstands. All of her meat de-
partment hours appear to have been at the expense of Delo-
res Lopez for. as de la Torre's hours increased, Lopez' were
reduced. In this regard. I note the shallow nature of Plasen-
cia's explanation that Lopez was being punished for failing
to train de la Torre. He stated he began reducing Lopez'
hours even before her January 19 layoff as a punishment for
refusing to train de la Torre. Lopez testified that until the
layoff she worked at least 40 hours per week. Frankly. I find
no evidence in the record to support Plasencia's assertion,
and it seems likely that Lopez would know better than he
how many hours she worked prior to the layoff. Thus. cred-
iting Lopez. it appears Plasencia overreached in saying he
was punishing her even before she was laid off. In any event
he never told Lopez her layoff was disciplinary. Moreover.
during the NLRB hearing on challenged ballots he testified
he laid her off for "no reason." These inconsistencies are
evidence of discriminators motivation. Plasencia's explana-
tions here are hollow. More probable is the G;eneral (oun-
sel's theory that I.opel. a card signer, was laid off in order
MAXI MART 1159
I)ICISIONS OF NA IONAI. LABOR REILATIONS BOARI)
Thus. after adding the testimony of' Lopez and ()'Bryan
to the objective evidence, I can reach no other conclusion
except that Plasencia added Francisco "Pancho" Ramos.
Arturo Ramos. Maria de la Torre, and Alfredo (iutierrez to
the meat department in an effort to expand the size of the
voting unit in order to insure that the ballots of bona fide
employees would be sufficiently diluted so their desire for
union representation would be frustrated. Although there
are few reported unit packing cases I am persuaded that
such conduct violates Section 8(a)( 1) of' the Act. C'f. I/daue
(Cils Furniture o/' Springdale Inc.. 222 NLRB 455 (1976)
(challenged ballots sustained) cf: Plumbing & Indust.rial
Suply (o., inc., 237 NLRB 1124 (1978) (insufficient evi-
dence to prove packing of voting unit, though conduct al-
leged to have violated Section 8(a)( ): Kimmnerle Brothers,
Case 20 CA 12351 (1978) (my unreported ecision
adopted by Board in absence of exceptions; 8(a)( 1) viola-
tion found where voting unit packed). To hold otherwise
would fly in the face of' the statutory language vote dilu-
tion clearly interferes with the free exercise of the Section 7
right to freely select a bargaining representatives
B. Delores Lopez
As alluded to above, on January 19. Delores Lopez was
laid off for the purpose of creating a space for de la Torre so
de la Torre could vote against union representation. Re-
spondent's conduct in that incident is a clear violation of
Section 8(a)(3) and (1) of the Act. Later, in February when
the Union's picket line forced Respondent to rehire Lopez.
it did so, but did not return her to the same hours which she
had enjoyed before. Instead, it slowly reduced her hours.
continuing to employ de la Torre and continuing to give her
hours which had been taken from lopez. This was done.
not as Plasencia asserts to punish Lopez for failing to train
de la Torre, but was done to punish her for (a) seeking
union representation to begin with. (b) obtaining the
Union's assistance in picketing to get her job back, and (c)
forcing her to quit before a second election was conducted.
I reach these conclusions principally on the basis that both
Brower and O'Bryan agreed she was the best meatwrapper
in Respondent's employ and that Plasencia's assigned rea-
son, discipline fr failing to train de la Torre, is without
substance. lie never told her that was the reason. In fact he
never told anyone of' that reason. He once claimed, falsely.
that it was lack of work. On another occasion he said he
had "no reason." In that circumstance his actions make no
sense. Only in connection with the organizing drive does his
reduction of her hours become understandable and the only
reasonable explanation for his conduct is to punish her for
her union activities. Therefore, I conclude that the reduc-
In Kimmerle I observed that packing the voting unit in an NlRB elec-
tlon is analogous ito the crime of' fraudulenl .u ter reglstratlon in general
elections. In many jurisdictions it is a felony. Certainly ii is an extremely
grave matter hb the Board as well: it ma.y even he considered a crime under
the ct. See Sec 12. Moreover, one of he fiundations of American labor
relalions law lies in the integrity of the Board's eleclion pr(esses. B pack-
Ing the unit as Respondent did here. an emploer poisons the election pro-
cess itself and such conduct. elef unfettered. can have not other effect than to
ulndernline the integrit ofI' the Board 'he Board is nol and can nt e In the
hLusi iess of permitting crooked elections I therefore regard this unfair labor
pr;lilae ai one it teilt worst kinds I i hboth outiageous anid flagrantl.
tion of I.opez' hours after she returned to work in Fehruary
was a violation of Section 8(a)(3) and (I) of the Act.
C. The Ma 2, ermtinations
The complaint, as amended, alleges that on May 26 Re-
spondent discharged both Lopez and Brower because of
their union activities. On that date the Union called a strike
to protest Lopez' reduced hours, Deitrich's layoff, and Re-
spondent's frustration of the NLRB election process.
By May 26 Lopez' schedule had been reduced to 8 to 12
hours per week. While it is not clear whether Lopez was
scheduled for work on that day. Brower was scheduled to
begin work at 8 a.m. Instead of reporting to work, those
two, later joined by Deitrich, began picketing. At approxi-
mately 9 a.m., Plasencia appeared. Hie spoke to both of
them, though neither could overhear what he said to the
other. Plasencia appears to have been particularly angry
with Brower and told him he had 5 minutes to report to
work or he would be considered a "quit." Brower recalls it
as a threat of "termination." Brower refused to report and
remained on the picket line.
With regard to Lopez, the principal evidence regarding
her discharge is her reduced hours and O'Bryan testimony.
When Brower refused to resume work, Plasencia tele-
phoned O'Bryan. who had been off work with a cut finger.
When O'Bryan arrived, he recalls Plasencia mentioning
Brower by name, but also saying he had discharged "them"
for failing to come to work. In that circumstance, I con-
clude that Plasencia did discharge both Brower and Lopez
in violation of Section 8(a)(3) and (I).
Insofar as Brower is concerned, it is clear that converting
a striker to a "quit" is tantamount to a discharge, and is
unlawful. Holilq Inn o' HenrVeta. 198 N LR B 410 ( 1972).
nf'd. sub nom.. .L.R.B. v. Okla-lnn. 488 F.2d 498 (10th
Cir. 1973), Kelso Marine, Inc., Kel Stress Diision, 199
NLRB 7, 12 (1972): ale Manq/ileruring (Co., In., 228
NLRB 10. 13 (1977), enfd. 570 F.2d 705 (8th ('ir. 1978).
Moreover, it appears that Plasencia was in such a state of
mind as to seek a blanket solution i.e.. discharging both
pickets. Certainly his pre-May 26 treatment of Lopez sug-
gests he was slowly working up to laying her off again if she
did not quit and he was poised to discharge her. Accord-
ingly, I credit O'Bryan's quotation of Plasencia to the effect
that he had terminated "them." meaning both Brower and
Lopez for having picketed the store. It is at least an admis-
sion that Respondent unlawfully discharged L.opez: it ap-
pears to cover Brower as well. Discharging strikers for strik-
ing is of course unlawful. N..R.B. v. International o/an
Linei.v 409 U.S. 48 (1972).
1). The Discharge of William Deitrich
Apprentice meatcutter William Deitrich was laid off on
April 29. after the hire of O'Bryan. It will be recalled that
O'Brvan had been hired in order to harass and pressure
both Brower and Deitrich into quitting. Apparently the
pressure was not successful against either and Deitrich did
not give O'Bryan a sufficient excuse to discharge him. As a
result, Respondent discharged Deitrich., terming it a "lay-
ofH:''" Plasencia refuses to take responsibility tfor the decision
to discharge Deitrich. however, saying the responlsibility
1160
find, therefore, that Plasencia did ask her how she intended
to vote in the Board election and such conduct violated
Section 8(a)( I).
The last incidents alleged to he violative of Section
8(a)( 1) occurred on May 26 when Plasencia spoke to Lopez
and Brower at the picket line. The first allegation asserts
that Plasencia promised Lopez a age increase if she would
cease picketing. Plasencia knew she believed she was being
paid less than previously employed meatwrappers. Her
wage at that time was $3.50 per hour. I credit her testimony
that he told her he could afford to pay her $4 per hour. but
not $7 or $8. Such a remark is clearly an implied promise to
give her a raise if she would cease picketing. Such an in-
ducement violates Section 8(a)( ). Farah tanufacturing
C(ompany, Inc., 214 NLRB 304, 313 (1974).
I.ikewise, Plasencia's statement to the striking Brower.
threatening to discharge him or treat him as a "quit" if he
did not report immediately to work. violated Section 8(a)(1)
of the Act.
F. The Nature of the Strike
It is probable that the nature of the strike was an unfair
labor practice strike for it was called to protest the unfair
labor practices which Respondent had committed both be-
fore and after the election. These included the packing of
the voting unit, the layoff of Lopez, the reduction in hours
given her when she returned in February, and the discharge
of Deitrich. However, only Brower and Lopez were still
employed on May 26. Deitrich had already been discharged
and had not been reinstated. He therefore could not be
considered an unfair labor practice striker, although Brow-
er and Lopez may be so considered. However. it is unneces-
sary to determine the striker status of these individuals as it
is clear that all three were discharged because of their union
activity.
V. HE R-MI)Y
Having found that Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(3) and (I)
of the Act by discharging certain of its employees, packing
the voting unit, and otherwise restraining and coercing em-
ployees in the exercise of their Section 7 rights, I shall rec-
ommend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act. The affirmative action shall include
the requirement that Respondent immediately offer rein-
statement to its employees Larry Brower, Delores Lopez.
and William Deitrich to their former jobs or. if such jobs
are no longer available, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
and privileges they may have enjoyed. The order shall also
require Respondent to discharge, if necessary, an, replace-
ments hired after the dates of their unlawful discharges. In
addition. Respondent shall make the discharged employees
whole for any lost earnings which they may have suffered
by virtue of the discrimination against them by paying
them an amount equal to what they would have earned
from the date of his or her discharge to the date that each is
offered reinstatement. The backpa', hall be computed in
the manner prescribed by the Board in f'. W' Woolworth
was O'Bryan's and that the decision was based on the fact
that with two journeymen. as well as the untrained Pancho
Ramos, Respondent did not need Deitrich. Plasencia said
O'Bryan made the decision, and he simply approved it.
O'Bryan was not specifically asked about the decision to
terminate Deitrich, but did say he would have discharged
Deitrich. not because he was a bad meatcutter, but because
of his disloyal attitude toward Respondent. He said the
same thing of Brower. Even so. the ultimate responsibility
for the decision rests with Plasencia. Whatever reasons ad-
vanced by Plasencia and/or O'Bryan, it is clear Deitrich
was discharged as the natural result of the general plot to
oust those employees who had signed union cards. O'Bryan
had been hired with the express purpose of getting rid of
both Brower and Deitrich, and the discharge of Deitrich
was the expected result of the plan. That plan, of course,
included packing the department with employees who
could be expected to vote against union representation and
ousting those expected to vote in favor. In this circum-
stance, I am compelled to conclude Respondent discharged
Deitrich in violation of Section 8(a)(3) and (I).
E. Interference, Restraint, and Coercion
The complaint alleges that, on January 20, Plasencia
promised Deitrich health insurance benefits to dissuade him
from supporting the Union. On that day, Deitrich had ap-
proached Plasencia mentioning he had incurred some large
medical bills and asking if Respondent could help him out.
Plasencia said the store had been considering a health plan.
However, Deitrich did not connect Plasencia's statement to
the Union, and frankly I do not believe that it can reason-
ably be termed a response to the Union's appearance. First.
Deitrich had already incurred those expenses and, even if a
plan were subsequently adopted, it would not have allevi-
ated Deitrich's financial obligations. for no insurance plan
will pay for medical services rendered prior to the institu-
tion of the plan. Both Plasencia and Deitrich undoubtedly
knew that. It is unreasonable, therefore, to find that Plasen-
cia was offering to alleviate Deitrich's woes. Second, even if
one assumes Deitrich's situation would have been relieved
in the future by the establishment of such a plan, it was
Deitrich who initiated the conversation and Plasencia never
connected it to the Union. It seems unlikely, therefore, that
Plasencia's purpose was to induce Deitrich to abandon the
Union; more likely it was simply an innocent observation
by Plasencia, and I so find. I shall recommend that this
allegation be dismissed.
The second incident alleged to be violative of Section
8(a)(1) involves Plasencia's February 10 conversation with
Lopez during which she says he asked her how she intended
to vote in the NLRB election which was then 6 days away.
He did not specifically deny her testimony and, in view of
the fact that he had already transferred four people to the
bargaining unit and had an intense curiosity about the
manner in which employees would vote, I find it highly
probable that he did ask her how she intended to vote.
Moreover. I note that, at this point. Lopez' hours had not
yet been reduced to the extent they later were. She was a
good employee and it appears likely that. if she had an-
swered that she intended to vote against union representa-
tion. he intended to return the full 40-hour week to her. I
MAXI MARTI 1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, 90 NLRB 289 (1950), and Florida Steel (Corpora-
tion, 231 NLRB 651 (1977).9 This order is consistent with
the Board's recent decision in Abilities and Goodwill. Inc.,
241 NLRB 27 (1979), in which the Board decided to treat
discharged strikers such as Brower and Lopez in the same
fashion as it would other discriminatorily discharged em-
ployees such as Deitrich.
In addition, Lopez is entitled to backpay for her lost
hours beginning with her February reinstatement, together
with interest thereon as described above.
There remains fbr consideration the question of whether
or not the Board should certify the Union as the freely
selected bargaining representative of Respondent's employ-
ees or whether a retroactive bargaining order should be is-
sued under the doctrine of N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). It appears that the Union won the
February 16 election, despite Respondent's attempt to sub-
vert it, as the challenges to the ballots of Francisco "Pan-
cho" Ramos, Arturo Ramos, Maria de la Torre and Alfredo
Gutierrez are sustainable. Value City Furniture of Spring-
dale, Inc., 222 NLRB 455. Nonetheless, the Union had ob-
tained an uncoerced card majority as of January 6, when
Deitrich signed his card (Herrin's resignation on that or the
following day notwithstanding). The choice then appears to
be one between a current certification or an order requiring
retroactive bargaining beginning the date Respondent em-
barked upon its antiunion campaign. See Trading Port, Inc.,
219 NLRB 298 (1975), and Beasley Energy, Inc.. d/b/a
Peaker Run Coal Company, Ohio Division # 1, 228 NLRB
93 (1977). There are cases where the Union has won the
election despite the employer's flagrant and pervasive un-
fair labor practices which, absent the election, would have
been sufficient to warrant a bargaining order, but because
the election process had been completed, the Board did not
choose that remedy. See Free-Flow Packaging Corporation,
219 NLRB 925, 930 (1975) (certification not issued): and
M. S. P. Industries, Inc., dbla The Larimer Press, 222
NLRB 220 at 222 (1976), enfd. in pertinent part 568 F.2d
166 (10th Cir. 1977) (certification issued). However, this
case is distinguishable from those as the election here is still
unresolved. Accordingly, I read Gissel, Trading Port, and
Beaslev as requiring a retroactive remedial bargaining or-
der. It is true that the Union has not made a demand for
bargaining, and thus there appears to be no refusal to bar-
gain within the meaning of Section 8(a)(5).'0 However, it
appears to me that the principal reason for a retroactive
bargaining order is to remedy the outrageous and flagrant
unfair labor practices which rendered a fair election impos-
sible. Trading Port and Beasley Energy, supra. Indeed. by
subverting the election process through unit packing, Re-
spondent has demonstrated that it will not permit a fair
election to be held. In that circumstance, I regard Respon-
dent as having forfeited its right to an election. Nonetheless,
it seems equitable in the circumstances to require Respon-
dent to begin bargaining with the Union as of January 10,
9 See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962). Con-
trar) to the General Counsel's request, interest shall be computed as set forth
Florida Steel, supra. See W Carter Maxwell, d/b/a Pioneer Concrerte Co., 241
NLRB 264 (1979.
'" The complaint has not alleged an 8(aXS) violation.
1978, the date it embarked upon its course of these outra-
geous and flagrant unfair labor practices. In no other way
will the employees' free choice of a bargaining representa-
tive by truly vindicated.
Upon the foregoing findings of fact, and upon the entire
record of' this case, I make the following:
CcN(lI.UsONS 01F LAW
1. Respondent, Maxi Mart, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Butchers Union Local 498, Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-CIO.
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The following employees of Respondent constitute an
appropriate unit for collective bargaining within the mean-
ing of Section 9(b) of the Act:
All full-time and regular part-time meat department
employees employed by Respondent at its Sacramento,
California facility at 5815 Stockton Blvd.. excluding all
other employees, office clerical employees, professional
employees, salesmen, guards and supervisors as de-
fined in the Act.
4. At all times since January 6, 1978, the Union has rep-
resented an uncoerced majority of the employees in the unit
described above and since January 10, 1978, has been, and
is now, the exclusive collective-bargaining representative of
those employees.
5. On January 10, 1978, Respondent transferred four
employees into the unit described above in order to subvert
the NLRB election it believed would be scheduled shortly
and such transfers were designed to dilute the voting
strength of bona fide employees in said unit and Respon-
dent thereby violated Section 8(a)(1) of the Act.
6. On various dates in 1978, as shown in this Decision,
Respondent violated Section 8(a)(1) of the Act by interro-
gating employee Delores Lopez regarding the manner in
which she intended to vote in an NLRB election, offering
Lopez a wage increase in order to induce her to cease strik-
ing in protest of its unfair labor practices, and threatening
employee Larry Brower with discharge for striking to pro-
test its unfair labor practices.
7. Beginning in February 1978. Respondent violated
Section 8(a)(3) and (1) of the Act by reducing the hours of
its employee Delores Lopez because she wished to be repre-
sented by a union.
8. On April 29, 1978, Respondent violated Section
8(a)(3) and () of the Act by discharging its employee Wil-
liam Deitrich because of his union activities and because
Respondent wished to replace him with an individual who
could be expected to vote against union representation in
the event a second representative election was subsequently
held.
9. On May 26, 1978. Respondent violated Section 8(a)(3)
and (I) by discharging its employees Delores Lopez and
Larry Brower because they engaged in a lawful strike to
protest Respondent's unfair labor practices as set forth
above.
1162
together with backpay and interest thereon in the manner
set forth in that portion of this Decision entitled "The Rem-
edy." discharging any replacement employees if necessary.
In addition, immediately make Lopez whole for the loss of
income, with interest, due to the unlawful reduction of her
hours as set forth above in the section of this Decision enti-
tled "The Remedy."
(b) Immediately recognize and. upon request. bargain
collectively in good faith with Butchers Union Local 498,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL CIO. as the exclusive bargaining rep-
resentative of the employees in the unit found appropriate
herein, retroactive to January 10. 1978. and. if an under-
standing is reached. embody such agreement in a written,
signed contract.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying. all pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its Sacramento. California, place of business
copies of the attached notice marked "Appendix."' Copies
of said notice. on forms provided by the Regional Director
for Region 20. after being duly signed by an authorized
representative of Respondent. shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDEREI) that the remainder of the com-
plaint be dismissed.
IT Is FT RrtiR ORI)FREI) that the petition in Case 20-RC-
14545 be dismissed.
10. The foregoing unfair labor practices are so flagrant
and outrageous and have so wholly disrupted and sub-
verted the representation election process that a fair elec-
tion cannot be held and the only remedy sufficient to cor-
rect them must include an order requiring Respondent to
bargain with the Union as of January 10, 1978.
1. Respondent did not engage in any other violations of
the Act.
Upon the foregoing findings of fact. conclusions of law,
and the entire record of this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER"'
The Respondent, Maxi Mart, Sacramento, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Transferring employees or hiring new employees to
be assigned to a department or unit in which a representa-
tion election is, or is about to be, scheduled for the purpose
of subverting that election in order to deprive bona fide unit
employees of the full weight of his or her ballot.
(b) Interrogating employees regarding the manner in
which they intend to vote in an NLRB election.
(c) Promising employees wage increases in order to in-
duce them to cease striking in protest of its unfair labor
practices.
(d) Threatening to discharge employees for engaging in a
lawful strike to protest its unfair labor practices.
(e) Discharging or otherwise discriminating in regard to
the hire or tenure of employees because they engage in
union and/or protected concerted activity.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Immediately offer William Deitrich. Delores Lopez,
and Larry Brower full reinstatement to their former jobs,
" 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 by 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.
1 In the event that this Order is enforced b 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional t.abor Relations Board."
MAXI MART 1163