Stop & Go Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1076 (N.L.R.B. 1979)

D[)EI'ISIONS ()OF NA I IONAL LABOR REL.A IONS BOARD
Stop and Go Foods, Inc. and Robert Bergen. Case 7
CA 15443
December 14, 1979
DECISION AND ORDER
BY C(IAIRMAN FANNING AND MEMBIRS PNI I .()
ANI) MURPIHY
On May 31, 1979, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint herein arises out of the discharge by
Respondent of Robert Bergen. the manager of its Yp-
silanti store and an admitted supervisor, for his par-
ticipation in a strike and picketing by the store's em-
ployees. The Administrative Law Judge found that
this discharge violated Section 8(a)( 1 ) of the Act. For
the reasons set forth below, we disagree with this con-
clusion and shall dismiss the complaint.
Bergen began working for Respondent on April
17,' 1978.2 On April 19, he noticed that one of the two
air-conditioning blowers in the store was not working
properly. Several days later, he reported the malfunc-
tion to his immediate supervisor, Barbara Patterson,
who informed him that Respondent would have a re-
pairman look at it. However, no action was taken. On
June 5, the other blower broke down, and Bergen
again telephoned Patterson, who promised to have
someone "look at it." A repairman came out within
the following week to check the system, but the air-
conditioner was not repaired.
During the next few weeks, Bergen made numerous
calls to Patterson inquiring as to when the air-condi-
tioner would be fixed. Patterson told him that "it was
going through the procedure" and she did not know
when it would be repaired but that a contractor had
been contacted to put in central air-conditioning by
July 4. During this period, the temperature inside the
The Administrative Law Judge found that Bergen began work on April
22. However, Bergen testified that he began working for Respondent on
April 17, and that testimony is consistent with the Administrative Law
Judge's finding that Bergen discovered the problem with the air-conditioning
system on April 19. Accordingly, we hereby correct this error, which does
not affect our decision herein.
2 All dates herein refer to 1978.
store exceeded 100 degrees and several employees
asked Bergen when the air-conditioning would be re-
paired. Bergen advised them of his conversation with
Patterson and the promise to have repairs made by
July 4. Employees Kathleen Crawford and Kathy
Green, among others, also told Bergen that they felt
like walking off the job.
The central air-conditioning was not installed as
promised and on July 5 Bergen again telephoned Pat-
terson and advised her of the situation. Patterson
stated that she could make no promises as to when
the contractor would appear. Bergen advised the em-
ployees of this conversation.3
On July 6, Bergen told the day-shift employees
that, because of the heat, they would be permitted to
take breaks when the store was not busy. Despite this
effort to relieve the employees' discomfort, Crawford
became ill because of the heat.4 After Bergen went
home at the 3 p.m. shift change. Crawford and Green
told the two evening shift employees, Sandy Dearing
and Shirley DeVore, that they intended to close the
store because of the heat. Green telephoned Bergen's
home and left a message that the employees had
closed the store. She then called Assistant Store Man-
ager Dorothy Swoffer and Supervisor Patterson, ad-
vising them of the employees' action. The employees
placed a sign on the door saying that the store was
closed because the employees were being subjected to
unfair working conditions.
At or about 6 p.m., Patterson called Crawford and
requested that she bring her the store keys, since she
intended to reopen the store. Crawford said that she
would give the keys to Bergen only. Thereafter. Ber-
gen arrived home and saw the message from Craw-
ford. At or about 8 p.m., Patterson telephoned Bergen
and asked him if he knew that the store was closed.
He told her that he did and that he agreed with the
employees. Patterson told him to bring his keys to the
store. Bergen did so, but upon his arrival refused to
open the store until a "supervisor" appeared. Ed
Brumley, whose position with Respondent is the same
as Patterson's, arrived at 11 p.m. and opened the
store. Brumley told Bergen that he did not blame the
employees for walking off the job and that Patterson
was supposedly on her way. When Patterson arrived,
she did not discuss the matter with Bergen and he left
the premises.
' There is some dispute as to whether Bergen was informed on some un-
specified date that Respondent had located replacement equipment as a
"temporary solution." and that this equipment would be installed by the
weekend of July 8 9. Respondent contended that Bergen's discharge was
partially motivated by his failure to convey this information to the employ-
ees. For the reasons stated by the Administrative Law Judge, we agree with
her finding that Bergen did not in fact receive this information and, in an)
event, his discharge was in no way motivated by any failure on his part to
rely information to the employees.
4On that day. the store temperature reached 110 degrees.
246 NLRB No. 170
1076
STOP AND GO FOODS, INC0
At 7 a.m. the next day, Bergen and Swoffer, who
despite her title is admittedly an employee, arrived at
the store and spoke with Patterson. According to Ber-
gen, "I stated the reasons we were going on strike";
namely, the lack of air conditioning. He also testified
that he told Patterson "we were prepared to go back
to work as soon as the air conditioning was fixed." At
the hearing, he stated that "if the employees had gone
on strike for any other reason I would not have sup-
ported them, but I was being subjected to the same
conditions... ."
Later that day, Bergen and most of the store per-
sonnel met at the store and prepared picket signs.
Bergen made some suggestions concerning the lan-
guage on the signs and participated in the picketing,
which lasted all day. He told the employees not to
obstruct traffic or prevent customers from entering
the store. That evening, Brumley told Bergen that the
replacement air-conditioners were on the way. Bergen
asked if there had been any mention of disciplinary
action and Brumley said that he had not heard any-
thing. At or about 10 p.m., the pickets left the prem-
ises.
The picketing resumed at 6 p.m. the next day, July
8. At 8 a.m., one of Respondent's trucks appeared
with the air-conditioning and repairs began. The em-
ployees immediately ceased picketing and indicated
their willingness to return to work as soon as repairs
were completed.
Respondent's zone manager, Garland Back, did
not learn of the strike until that morning. He called
Patterson and instructed her to ask the employees if
they would be willing to meet with him at 1 p.m. at
Respondent's district office. Bergen and the employ-
ees agreed.
At the beginning of the meeting, Back asked if Ber-
gen would be the spokesperson for the group and,
seeing no objections, Bergen said yes. Back asked
Bergen to explain what had happened, and Bergen
complied. Back asked the reason for the strike and
Bergen said it was "the fact that the air conditioner
was broken [and] I don't [sic] know, when asked,
when it was going to be fixed." Back and several
other company officials outlined the difficult condi-
tions at several of Respondent's other facilities. Dis-
trict Personnel Specialist Jackie Willets said that "this
was a form of apology from the Company to" the
store employees. However, Back said that he had no
choice but to suspend everyone for I week for going
on strike and picketing, but he hoped that "we could
resolve the problems in less time than that." Bergen
asked whether this meant that they were terminated.
and Back said no. Back further stated that each per-
son should write him a letter stating his or her feelings
about the strike and how each had participated.
After the meeting. Back instructed Patterson to ar-
range for individual interviews with the strikers on
Wednesday, July 12, with Bergen's interview sched-
uled last, since Back did not want the results of his
meeting with Bergen to affect the meetings with the
employees. Back testified that by Monday, July 10, he
was "95 percent" decided that he was going to termi-
nate Bergen. However, he intended to offer the em-
ployees their jobs back.
On July 12, Back individually interviewed each
striking employee with the exception of Crawford.
who did not make it that day. Essentially. Back said
he was sorry that the incident had occurred and of-
fered each employee his or her job back, but without
backpay. Bergen's status was not mentioned at any of
the interviews save that of Swoffer, who asked what
was going to happen to Bergen. Back replied that he
did not know, since he had not et met with Bergen.
Back interviewed Bergen in the presence of Super-
visor Patterson and District Manager Fernandez. He
told Bergen that he had no choice but to discharge
him, since by striking and picketing he failed to meet
his management responsibilities. Bergen said that he
was willing to return to work and could be a loyal
and productive employee. but Back said that Respon-
dent could not change its decision. That day. Bergen
told the store manager at Respondent's Ecorse store
and an employee at Respondent's Grove store that he
had been terminated.
On Thursday, July 13, Back met with employee
Crawford. He told Crawford that he wanted her to
return to work. Crawford asked whether she would be
paid for time off and Back said he would think about
it. She also asked if he was going to reinstate Bergen.
and Back replied he would consider it.
Bergen and employees Swoffer and Crawford sub-
sequently filed charges with the Board, and a consoli-
dated complaint was issued by the Regional Director
on August 29. On November 18, Respondent entered
into a settlement agreement which provided for back-
pay for Swoffer, Crawford, and the other suspended
employees and for posting of a notice. Thus, the in-
stant case involves only the suspension and discharge
of Bergen.
The Administrative Law Judge found that under
the circumstances Bergen's suspension and discharge
violated Section 8(a)( I) of the Act, since it "tended to
lead rank-and-file employees reasonably to fear that
Respondent would punish them for engaging in like
conduct, and [since] Respondent failed to take rea-
sonable and timely steps to reassure them otherwise."
In so doing. she relied on, inter alia. the Board's deci-
sion in (;eneral Nutrition Center. In(. ,and Production
'221 NIRB 850) 1975)
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stamping, Inc.,6 and opined that a showing that the
supervisor's discharge constituted an integral part of
Respondent's pattern of conduct aimed at penalizing
employees for their union or concerted activities was
not required for a violation to be found. In essence,
she found that, because Respondent did not reassure
the employees that it would not take the same or
similar action against them if they engaged in con-
certed activity, a discharge not unlawful in itself was
transformed into a violation of Section 8(a)(l). We do
not agree.
The Board has long held that an employer violates
Section 8(a)(1) when it discharges a supervisor for re-
fusing to commit unfair labor practices, 7 for attempt-
ing to protect employees from interference or dis-
crimination proscribed by the Act,8 or for
participating in a Board proceeding.9
In addition to the above situations, we have also
found a violation of Section 8(a)(1) when the supervi-
sor's discharge is otherwise shown to be an "integral
part of a pattern of conduct aimed at penalizing em-
ployees for their union [or concerted] activities"' 0 or is
"an important element in [the employer's] total strat-
egy to rid itself of the Union."" In Pioneer Drilling
Co., Inc.,' for example, respondent wished to punish
several employees and supervisors for engaging in
union activity. The practice in the industry was for
rank-and-file employee crews to be terminated along
with their supervisors. Respondent, therefore, termi-
nated two of its supervisors and, as a consequence,
was also able to rid itself of the employee crews en-
gaging in union activity. The Board held that these
discharges violated Section 8(a)(l) since they were an
"integral part" of respondent's scheme to punish the
employees for their union activity. Similarly, in Krehs
and King Toyota, Inc.,' 3 respondent unlawfully closed
its body shop, discharging the body shop employees
and their supervisor. We held that the supervisor's
discharge violated Section 8(a)(l) since "by his dis-
6239 NL.RB 1183 (1979).
7 See. e.g.. Miami Coca Cola Bottling Company doing business as Key West
Cocoa Cola Bottling Company. 140 NLRB 1359 (1963), enforcement denied on
other grounds 341 F.2d 524 (5th Cir. 1965); Russell Stover Candies. Inc.. 223
NLRB 592 (1976), enfd. 551 F.2d 204 (8th Cir. 1977).
'See., e.g.. Buddies Super Markets, 223 NLRB 950 (1976), enforcement
denied 550 F.2d 39 (5th Cir. 1977) (supervisor advised employee that respon-
dent was building a case against him because of his union activity); VA DA of
Oklahoma, Inc., 216 NLRB 750 (1975) (supervisor informed employee of
planned reprisals against him): Donelson Packing Co., Inc. and Riegel Proi-
sion Company, 220 NL.RB 1043 (1975) (supervisor's discharge motivated in
part by his attempt to prevent discrimintory layoff of union adherent).
9 See. e.g.. Oil Citv Brass Works. 147 NLRB 627 (1964). enfd. 357 F.2d 466
(5th Cir. 1966); Better Monkey Grip Company, 115 NLRB 1170 (1956). enfd
243 F.2d 836 (5th Cir. 1957), cert. denied 355 U.S. 864.
'See. e.g., Krebs and King Tovota. Inc.. 197 NLRB 462 (1972); Pioneer
Drilling Co. Inc., 162 NLRB 918 (1967), enfd. in pertinent part 391 F.2d 961
(10th Cir. 1968).
n See. e.g., East Belden Corporation. 239 NLRB 776 (1978)
t Supra, fn 10.
' Supra, fn. 10.
charge, Respondent effectuated its decision to close
the body shop operation because of the employees'
union adherence."' 4 Thus, the discharge was "an inte-
gral part of a pattern of conduct aimed at penalizing
employees for their union activity."'5 In such cases,
we have found that the employer violated the Act by
discharging the supervisor because its conduct was
"aimed at penalizing employees" rather than at pun-
ishing the individual supervisor for being disloyal and
engaging in union or concerted activity.' 6 Moreover,
under circumstances in which an employer has en-
gaged in a widespread pattern of misconduct in order
to stifle employees' exercise of their Section 7 rights,
reinstatement of the discharged supervisor may be
necessary to offset fully the coercive effects of the em-
ployer's total course of conduct. 7
Although the discharge of a supervisor for engag-
ing in union or concerted activity must necessarily
affect employees to some extent, we have never held
that the discharge of a supervisor for such activity
violated the Act merely because as an incidental ef-
fect employees may fear that the same fate may befall
them if they engage in similar activity. In several in-
stances we have found that an employer did not vio-
late Section 8(a)(l) merely by discharging a supervi-
sor for disloyalty for personally engaging in union or
concerted activity. In Sibilio's Golden Grill, Inc., a
supervisor was discharged for joining employees in
concerted activity with respect to a dispute concern-
ing wages. The supervisor was not acting to protect or
vindicate the employees' statutory rights, nor was she
discharged for refusing to infringe on those rights.
Moreover, there was no evidence that the discharge
was an integral part of a scheme aimed at discourag-
ing employees from engaging in concerted activity.
Rather, the supervisor was discharged for merely "ad-
vancing her own and the employees' job interests."'
1 197 NLRB 463, fn. 4.
15 Id. quoting Pioneer drilling, supra. See also Southern Plasma Corporation,
242 NLRB 1223 (1979) (supervisors terminated along ith several employees
when respondent shut down part of its operation to thwart concerted ac-
tivity); East Belden Corp., supra (entire work force, including supervisors.
terminated by respondent in order to avoid successor obligations).
1' Indeed. the employer may not even be aware that the discharged super-
visor had personally engaged in concerted or union activity. See Fairvie
Nursing Home, 202 NLRB 318 (1973), enfd. 486 F.2d 1400 (5th C'ir. 1973).
rehearing denied 491 F.2d 1272, cert. denied 419 U.S. 827 (1973).
R7 By engaging in numerous and widespread unfair labor practices against
the employees, the employer in such cases may irrevocably blur an percep-
tion by the employees of the distinction between its right to prohibit supervi-
sors from engaging in union or concerted actiwit) and Its obligation to permit
employees to freely exercise their Sec. 7 rights. This does not mean, however.
that an employer violates Sec. 8(aX) I in all cases in which action against a
supervisor is contemporaneous with unlawful conduct against employees.
See. e.g., Karl Kristofferson and Sigvald Krsoffrson Co-partner d/ha
United Painting Contractor, 184 NLRB 159 (1970). enfd. 441 F2d 266 (4th
Cir. 1971); Sibiio's Golden Grill. Inc., 227 NLRB 1688 (1977). enid. 573 F.2d
1302 (3d Cir. 1978); Long Beach Youth Center, Inc. a/k/a Long Beach Youth
Home. 230 NLRB 648 (1977).
8 227 NLRB 1688 (1977).
1 Ibid
1078
STOP AND GO FOODS. INC.
Under these circumstances, we concluded that, as a
supervisor, her conduct was not protected by the
Act. 2
Similarly, in Long Beach Youth Center, Inc..2t we
found that an employer did not violate Section 8(a)(1)
of the Act by discharging its supervisor "solely for
siding with the employees in their economic dispute
with the Respondent."'2 2 In neither of these cases did
the Board consider the incidental coercive effect these
discharges may have had on the employees.2 3
In the present case. the evidence clearly shows, and
the Administrative Law Judge found, that Bergen
was discharged solely for siding with the employees in
their dispute with Respondent over the delay in re-
pairing the air-conditioning equipment. There is no
evidence that Respondent was engaged in a pattern of
conduct aimed at penalizing the employees for engag-
ing in the strike.2 4 On the contrary, after reconsidering
its original decision to suspend Bergen and the strik-
ing employees Respondent revoked the suspensions
and asked everyone except Bergen to return to work.
Moreover, far from using the discharge of Bergen to
coerce the employees, Respondent attempted to mini-
mize the effect of the discharge upon them by making
him the last to be interviewed. Respondent certainly
could not prevent employees from learning of its ac-
tion and was under no legal obligation to explain its
otherwise lawful act under pain of Board sanction.2
x0 Member Murphy agrees for the reasons set forth in her dissenting opin-
ions in Downslope Industries Inc.. 246 NI.RB 948 (1979), and Puerto Ric,
Food Products Corp., e al., 242 NLRB 899 (1979): cf. the partial dissent in
Belcher Towing Company. 238 NLRB 446 (19781.
230 NLRB 648
Id. at 650.
21 Member Penello notes that he relies on the Board's Decisions in Sihio,'s
Golden Grill, Inc., suprau, and Long Beach outh Center, Inc. supra. cases n
which he did not participate, only as support for the view that the mere
incidental effect on employees of a supervisor's discharge is not sufficient in
itself to warrant finding a violation of Sec. 8(aX1). In other respects he would
find those cases distinguishable from the instant case in that the discharge
herein is not alleged to have been motivated by a desire to coerce employees.
nor is it claimed that Respondent engaged in a pattern of conduct aimed at
penalizing or coercing its employees.
4 There is no claim that Bergen was protecting employees from unfair
labor practices or was asked by Respondent to violate the Act. Moreover.
the Administrative Law Judge correctly found that the discharge was in no
way motivated by a desire to discourage employees from engaging in con-
certed activity.
'2 The Administrative Law Judge's reliance upon General Nutrition Center.
Inc., supra. fn. 5, and Production Stamping Inc., supra, fn. 6. to support her
finding of a violation herein is misplaced for two reasons. First. in those cases
the Board found that, under the circumstances, the supervisors' discharges
were an integral part of a pattern of unlawful conduct aimed at the employ-
ees, a fact not present here and one which the Administrative Law Judge
incorrectly held is not necessary for a violation to be found n this case.
Second. although there is some language in the Administrative Law Judge's
Decision in General Nutrition concerning failure of an employer to take steps
to reassure employees that they will not be punished for exercising their Sec.
7 rights. it is clear that any reassurances to employees to the contrary in that
case would have been futile, if not ludicrous, in view of its pattern of unlaw-
ful conduct. Accordingly, the employer's failure in General Nutrition to "re-
assure" employees that its intention in discharging supervisors was not
aimed at them was not crucial to the result reached therein. and we do not
consider this factor controlling in a determination of whether the discharge
of the supervisor herein violated Sec St( 1 ) of the Act.
Thus, absent evidence that Respondent's discharge of
Bergen was an integral part of a pattern of conduct
aimed at penalizing or coercing its employees. we
cannot agree with the Administrative Law Judge that
Respondent in so doing violated Section 8(a)( 1) of the
Act. Accordingly, we shall dismiss the complaint in
its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National labor Rela-
tions Board hereby orders that the complaint be, and
it hereby is. dismissed in its entirety.
DECISION
SIAltIAIN I ()1- I CASt
Nv, ( Y M. SHI}RMAN. Administrative Law Judge: This
case was heard in Detroit, Michigan, on February 6, 1979,
pursuant to a charge filed on August 10. 1978, and a com-
plaint issued on August 29. 1978. The issue presented is
whether Respondent Stop and Go Foods. Inc., violated
Section 8(a)(1) of the National Labor Relations Act, as
amended (the Act), by suspending and discharging Supervi-
..or Robert Bergen. allegedly because of his participation in
a work stoppage to protest allegedly insufficient air-condi-
tioning in the strikers' workplace.
Upon the entire record.' including my observation of the
witnesses, and after due consideration of the brief filed by
Respondent, I make the following:
FINI)ING;S ) A(l
i. JlRISII(' ION
Respondent is a Delaware corporation which maintains
its principal office and place of business in Englewood.
Ohio. Respondent is engaged in the operation of retail
stores which sell groceries and related products. Respon-
dent maintains various stores in Michigan, Indiana. Wash-
ington, and other States, including store 441 in Ypsilanti.
Michigan, the only facility involved in this proceeding.
During the year preceding the issuance of the complaint, a
representative period, store 441 had gross revenues exceed-
ing $500,000. 1 find that, as Respondent concedes, Respon-
dent is engaged in commerce within the meaning of the Act.
II. THE ALEGED UtNFAIR ABOR PRA(IRI( S
A. Background
Robert Bergen began working at store 441 on April 22,
1978.2 At all times material herein. he was in full charge of
that store and occupied supervisor status within the mean-
' Respondent's unopposed motion to correcl the record n certain respects
is hereby granted except as to the proposed change on p 10. . 13 I he record
as it there stands accords with ms recollection of what w.t sarid
2 All dates hereafter are 1978 unless otherw se indicaled
1079
I)lCISIONS ()OF NA'I1ONAI. .ABOR RELATIONS BOARI)
ing of Section 2(1 ) of the Act. He possessed and exercised
the power to hire and fire and responsibly to direct employ-
ees. lie also made bank deposits, sales reports, and work
schedules. However, he spent about 75 percent of his time
doing work which was also done by admittedly rank-and-
file employees namely. servicing customers, checking in
vendors, stocking shelves, mopping floors, cleaning shelves.
mopping the cooler, cleaning the restroom, and changing
light bulbs. Rank-and-file employees were paid an hourly
wage. Bergen was paid a salary, plus a bonus based on
Respondent's profits.
On an undisclosed date before 1977, two Bard air-condi-
tioning units were installed in the wall of store 441. On an
undisclosed date in 1977, Respondent drew up a capital
expenditures budget which called for the installation of a
central air-conditioning unit in that store. ('ompany policy
called for three bids on a capital expenditure of that size.
Local District Manager Bob Hernandez was responsible for
obtaining such bids. but he had difficulty in obtaining bids,
and Zone Manager Garland Back assigned the director of
construction. Steve Reisner, to help Hernandez on the bid
situation. On undisclosed dates before July 4 1978. Re-
spondent awarded the job to a contractor who promised on
three different occasions to install it but did not show up.
Back testified that Bergen, who became store manager on
April 12, "certainly had to be aware of" the 1977 plan to
install a central air-conditioning system in the store. This
testimony aside, the record fails to show the extent of Ber-
gen's awareness before June 27 of the events summarized in
this paragraph.
On April 19, a week after becoming store manager. Ber-
gen noticed that one of the two air-conditioning blowers
was not working. A day' or two later, he reported this to his
immediate superior. Barbara Patterson who said that "we"
would have to get a repairman to look at it. However, no
repairman came. On June 5, the other blower stopped
working, and the store had no air-conditioning at all. That
same day. Bergen telephoned Patterson that the air-condi-
tioner was not working at all. This call was his own idea.
She replied that "we'll have to get somebody to look at it."
Within the following week, a repairman came to see what
was wrong with it, hut the air-conditioner was not repaired.
A few days after the air-conditioning broke down. em-
ployee Kathleen Crawford asked Bergen when it would be
fixed. Bergen replied that he assumed Respondent would
have it fixed quickly, since it was a necessary part of the
operation. During the second week of the breakdown. Ber-
gen called Patterson every day to find out when the air-
conditioning would be repaired. On each occasion, she re-
plied that "it is going through the procedure." and she did
not know when it would be repaired. On June 27. 28. or 29.
when Bergen again asked Patterson by telephone when the
air-conditioner would be fixed, she replied that she did not
know, that a contractor had been contracted to put in cen-
tral air-conditioning and had promised to install it by July
4. and "That's all she could do." Between June 5 and 30. at
least six employees, including ('rawford and Kathy Green.
told Bergen that they felt like walking off the job and asked
when the air-conditioning would be repaired. He replied
that he did not know, and advised the employees about
Patterson's report regarding the air-conditioning contrac-
tor.
On June 30. store 441 was visited by Ed Brumley, whose
position in the corporate hierarchy is the same as Patter-
son's. Bergen asked Brumley if he knew anything about the
air-conditioner. Brumley replied that the contractor had
been contacted and had "promised to have it done by July
4." Brumley said that he believed the whole thing was the
"fault" of District Manager Hernandez and his lack of ac-
tion. Brumley further said that other stores had been with-
out air-conditioning for a year or more. that they had had
standing water in their coolers, and that you could see
through the wall in their stores. Brumley said that he had
gotten into trouble for trying to have repairs made without
proper authorization. but he did not blame the employees
for not wanting to work. Brumley went on to say' that "he
does not blame the employees if they walked out after they
notified him. or referred to him that employees were talking
about walking out." Brumley suggested that during the fol-
lowing Saturday. July 1. Bergen give each employee 2 hours
off with pay: Brumley volunteered to work that Saturday
himself in order to enable Bergen to give the employees this
paid time off: Bergen followed Brumley's suggestion.
Between June 5 and July 4. the temperature inside the
store exceeded 100 degrees. In consequence of these tem-
peratures the store freezer and cooler were unable to keep
foods cold enough to prevent spoilage, and beverages cool
enough to be drunk immediately. Also, the lack of air-con-
ditioning made the store seem unhygienic. While the air-
conditioning was not functioning. customers complained to
the employees and to Bergen that the store was too warm.
did not look clean, was selling spoiled fod, and did not
have cold beverages. The customers further told the em-
ployees and Bergen that they did not understand why the
employees were working in the store or why the C'ompany
had it open.
The contractor did not install the central air-conditioner
by July 4. About July 5. Bergen telephoned Patterson. re-
ported that the contractor had not shown up, and asked,
"What's happening now?" Patterson said that she would
make no promises, because she would not believe anything
until the contractor showed up to fix it. About July 5 and
on subsequent days. Bergen advised the employees that the
contractor had promised to be there July 4. he had not
shown up. and nobody would make a commitment about
when the air-conditioning would be repaired.
About but no earlier than July 5. after what Zone Man-
ager Back testimonially described as a "lot of research,"
Reisner located two new Bard air-conditioners which were
about to be installed in a new store in Akron. Ohio. Back
asked if Reisner could make arrangements to transport
those units to Ypsilanti, about 170 miles from Akron. to
provide a "temporary solution" to the store 441 air-condi-
tioning problem. Back testified that, after such arrange-
ments were made on a date which he did not specify, he
telephoned Patterson. on a date which he did not specify'
that the Bard air-conditioners "should be there and in-
Back did not contradict Respondent's colunsel when he included in ne 1of
hli quesrions tIl Back the almenl ent that this ctn,crsatiln with t'atterson
icurred ion Jui' S.
1080
STOP AND GO FOODS. INC.
stalled by the weekend." which began on Saturday, July 8.
Back further testified that he told Patterson to relay this
message to Store Manager Bergen. Although still a supervi-
sor in Respondent's employ at the time of the hearing. Pat-
terson did not testify'. There is no evidence that she con-
veyed this message to Bergen.4 As discussed infra, the Bard
units were not delivered to the store until July 8.
B. The Strike and he Suspension of Strikers
On July 6. the store temperature reached 110 degrees.
Bergen told the day-shift employees that, because of the
heat, they could take breaks when the store was not busy.
Nonetheless, day-shift employee Crawford became sick be-
cause of the heat. At shift-change time, 3 p.m., Bergen went
home. Then the two day-shift employees, Crawford and
Kathy Green. told the two evening-shift employees, Sandy
Dearing and Shirley DeVore, that theN intended to close
the store because of the heat. The four employees waited
until a security company had made its customary visit to
pick up the employees' timecards. The four employees then
took all the money out of the cash register, hid it in the
hack room, and cut off all the lights. Green telephoned Ber-
gen's home. He was not there, and she left a message that
the employees had closed the store. Green telephoned
Assistant Store Manager Dorothy Swoffer and Supervisor
Patterson that the employees had closed the store.' After
that, Crawford locked the store. The employees put a sign
on the door saying that the store was closed because of the
heat and because the employees thought they were being
subjected to unfair working conditions. They then left the
premises.
About 6 p.m., Patterson telephoned Crawford to bring
her the store keys because Patterson was going to reopen
the store. Crawford said that she would not give the keys to
Patterson, but would give them to Bergen. An hour or two
later, Bergen arrived home, where he found messages left
by Crawford that the employees were walking off the job
and the store was closed. About 8 p.m., Patterson tele-
phoned Bergen and asked whether he knew his store was
closed. He replied yes, and that he agreed with the employ-
ees. Patterson told him to bring his keys to the store. Bergen
then returned to the store, where he arrived about 9 p.m.
The employees' sign was still on the door. Bergen was
joined by Swoffer and Bruce Clark, the manager of another
store. Because by this time Bergen had decided to side with
the employees, he refused to open the store until a "supervi-
sor" (Patterson's and Brumley's title) got there. Brumley
arrived about I I p.m.. opened the store with Bergen's keys,
and with Bergen performed a cash audit, while Clark
waited on customers. There is no evidence that an) cash
was missing. Brumley said to Bergen that the store was very
' When asked on cross-examination whether Bergen was aware of "a sub-
contractor to put in some alternate units." Bergen replied that Patterson had
told him about that before July 4. and that he had told the employees about
this report b Patterson. In view of Back's testimony that the new Bard units
were located no earlier than July 5. I conclude that Bergen did not interpret
this question as referring to the Bard units rather than to the new central air-
conditioning unit
Although Swoffer had the job title of assistant store manager, her em-
ployee status is not disputed
hot, that Brumley did not blame the employces for walking
off the job, and that Patterson was supposed to he on her
way there. Bergen and Swoffer waited for Patterson to ar-
rive, to see if she wanted to discuss anything with them. She
arrived about midnight. As she gave no indication that she
wanted to talk to them. Bergen and Swoffer left the prem-
ises. Bergen left his keys with Brumle,,.
At 7 a.m. on July 7. Bergen and Swoffer returned to the
store and spoke with Patterson. Bergen told Patterson that
"we" were going on strike because there was no air-condi-
tioning and "we" had no accurate information about when
it would be fixed. Bergen said that "we" were prepared to
go back to work as soon as the air-conditioning was fixed.
that "we ... everybody" enjoyed working there and wanted
their jobs. but "with the conditions we did not see how the
Company was moving to rectitN the air conditioning." Pat-
terson said that she did not know what was happening.
since the contractor had not shown up on July 4. and she
was not in a position to say anything more. Swoffer said
that "we were loyal employees . .. that we were proud of
our jobs . . . as soon as the air conditioning was fixed we
were prepared to go back to work." Bergen credibly testi-
fied to the belief that he "felt" he was "speaking for eer3-
one," but there is no evidence that he said this to Patterson.
Bergen did not work that day. July 7.
On that day, July 7, salesclerk Rost telephoned salesclerk
Crawford that Rost had received a call from the store, say-
ing that Bergen and Swoffer had quit and that Rost should
return to work. Crawford told Rost that she would call and
find out. Rost telephoned Bergen at his home, and told him
that she had telephoned the store to find out what was hap-
pening and had been told that he and Swoffer had quit.
Bergen said that he and Swoffer had not quit, but that they
were on strike. ife told Rost not to go to work until she
found out what was going to happen. Crawford telephoned
Swoffer, who said that she and Bergen had not quit. Craw-
ford then called the rest of the employees and told them to
come down to the store. Swofer telephoned Bergen that
"everyone was going to meet at the store to picket because
someone was telling the employees that [Swoffer and Ber-
gen] had quit. because of the air conditioning and the ork-
ing conditions."
Later that day, all the store 441 personnel (Bergen. Swof-
fer. Crawford, Rost., Dearing. Larry Hamilton. Jack Cope-
land, and Green) except DeVore and Cinda Martin met at
the store. Most if not all the persons present, perhaps in-
cluding Bergen, prepared picket signs from magic markers.
shoe polish, and discarded cardboard. Bergen made some
suggestions regarding the language on the signs which said,
"On strike," "Unfair Working Conditions," and "Stop-N-
Go On Strike." All of the personnel present, including Ber-
gen. participated in the picketing. In front of store 441 is a
horseshoe-shaped drive, on store property. which intersects
the public road at two points. The pickets paraded on the
shoulder of the public road in front of the store from the
outside edge of one drive entry to the outside edge of the
other. Bergen told the employees not to obstruct traffic or
prevent anyone from going into the store, and they com-
plied. An unidentified picket put signs falsely stating "Out
of Gias" on Respondent's premises. One sign was put in
front of the self-service gas pumps where the words were
II)sI
I)E( ISIONS OF NATIONAL I.ABOR RELATIONS BOARI)
too small to be seen by passing motorists. The other sign
was put near the gas price sign, where passing motorists
coming from one direction could see it. Bergen credibly
testified that he did not put up either sign, that Patterson
removed the sign by the gas pump about 5 minutes after it
was put up. and that he himself removed the other sign
about a minute after it was put up, when he saw a man
from the store come out to remove it.
While the picketing was in progress, the store was oper-
ated by Supervisors Brumley, Patterson. and Clark. About
8 p.m. that evening, July 7, Brumley came out of the store
and told Bergen that Brumley had received a call that the
air-conditioners had left Ohio and would be at store 441 the
following morning. Bergen relayed this report to the em-
ployees. Later that evening, as Bergen was leaving the
picket line to go home, Brumley approached Bergen and
said "woo, it's hot in there" and again said that the air-
conditioners were on the way. Bergen said that "we were
prepared to cease picketing when the air conditioners ar-
rived. We would go back to work when the air conditioner
was running." Bergen asked if there was any mention of
disciplinary action. Brumley said that he had not heard
anything about discipline. Bergen warned Brumley that the
rush hour was about to begin. The picketing continued un-
til about 10 p.m., by which time all the pickets had left the
premises.
On the following morning, all the store 441 personnel
except DeVore and Martin ' returned to the store. About 6
a.m., they resumed picketing in the same manner and with
the same signs as previously. One of Respondent's trucks
delivered the air-conditioners to the store at 8 a.m. At this
point, the picketing stopped. Some of the employees went
home. Bergen and an undisclosed number of employees
went into the store, bought doughnuts and coffee, and
waited for the air-conditioning to be repaired.
Back did not learn about the strike until that Saturday,
July 8. At an undisclosed hour that morning, he telephoned
Patterson at store 441. Back testified, without contradiction
or corroboration, that Patterson told him the employees
had locked the store, that the employees were presently en-
gaging in picketing activities because of the absence of air-
conditioning, that the pickets included Bergen, that the air-
conditioning units had arrived on the previous day, Friday.
July 7, and were presently being installed, and that the
picket signs variously stated that the employees were on
strike, "out of gas," and "water in gas." It is uncontradicted
that the new units did not arrive until July 8, and that no
"water in gas" signs were ever used. About 10 a.m., Back
telephoned Patterson again. He testified, without contradic-
tion or corroboration, that she said the contractor was still
installing the air-conditioning units and that the employees
were still picketing. It is uncontradicted that the picketing
stopped after the contractor started to install the air-condi-
tioning. During the same telephone call, Back asked Brum-
ley to check with the "people outside" and ask if they
would be willing to meet with Back that day. While Back
was still on the telephone, Brumley approached Bergen,
who said that as soon as the air-conditioning was repaired
6 Martin had been transferred to another store on the preceding da) (see
infra, part II, C).
we" were prepared to go back to work. Brumlec said that
Back wanted to meet with everybody concerned at the dis-
trict office that afternoon. Bergen said that he would have
to call everybody to see if everybody could make it. Brum-
ley then returned to the telephone and told Back that
"they" would be willing to meet with him. Back told him to
arrange for a 1 p.m. meeting at the Ypsilanti district office.
Using the store telephone. Bergen advised all the employees
who were at home that the meeting would be held.
The meeting was held about I p.m. that day in the dis-
trict office. Present were Bergen and all the store 441 em-
ployees, except DeVore and Martin. Also present were
Zone Manager Back, District Manager Hernandez, District
Personnel Specialist Jackie Willets, District Store Managers
Patterson, Brumley, and Bob Sims, and a company control-
ler whose name is not shown by the record. Garland asked
if Bergen would be the spokesperson for the group. After
making eye contact with the store personnel to ascertain
whether there were any objections. Bergen said yes. Back
then asked Bergen to go chronologically through what had
happened. Bergen said that he had informed Patterson
about on April 19 that something was wrong with the air-
conditioner, that the air-conditioner had broken down on
June 5. that the store personnel had received no informa-
tion on what was being done to repair the air-conditioner:
that Bergen had told Brumley that the employees were talk-
ing about going out on strike, that the store personnel had
struck and picketed, that the store personnel had told man-
agement they would stop picketing when the air-condition-
ers arrived, that when they arrived the store personnel had
in fact stopped picketing, and that when the air-condition-
ers were installed, the store personnel were prepared to go
back to work. "We lived up to our part of the bargain."
Back asked the store personnel's reason for going on strike.
Bergen said, "The fact our air conditioner was broken land]
I don't know, when asked, when it was going to be fixed."
Bergen further said that customers had complained be-
cause, as a side effect of the breakdown in the air-condition-
ing, the merchandise was improperly cooled. Back "re-
minded him whose responsibility it was to not sell that
merchandise." Back asked each of the store employees why
he or she had struck. Each of them stated that the problem
was the air-conditioning. Back then related the prestrike
steps which management had taken to correct the air-condi-
tioning, including finding the Ohio air-conditioning units.
Employees Rost. Copeland, and Sandy Dearing said that
they had been unaware of this last action. Back said that
when he was a boy working in Texas there was no such
thing as air-conditioning, that he worked in this kind of
weather, and everybody accepted it. The controller said
that the store he was working in that week was not air-
conditioned. that there was standing water in the cooler,
and that you could see through the walls. Willets said that
"this was a form of apology from the Company to" the
store personnel. Garland said that he was suspending every-
one for I week for going on strike and picketing, but he
hoped that "we could resolve the problems in less time than
that." Swoffer and other employees said that the store per-
sonnel were proud of their jobs. but that the working condi-
tions and the customers' complaints about spoiled mer-
chandise were too much to ask of an employee. Back said
1082
STOP AN) GO FODS. IN('
that it was not right l(r the store personnel to go on strike.
and that he had no other choice hut to suspend them. Ber-
gen asked whether suspension meant that they were termi-
nated. and Back said no. Back said that each suspended
individual should write him a letter stating his feelings
about the strike and how he individually participated in it.
Garland credibly testified that during the July 8 meeting
Bergen. on behalf of all the employees, offered to go back to
work at that time.
My findings about the events at the July 8 meeting are
based on a composite of credible portions of the testimony
of Bergen. Back, and Crawford. I discredit Back's testi-
mony that he said the suspension "would be for the purpose
to allow me to investigate the various allegations I had
heard relative to the picketing activity," and credit Bergen's
denial, for demeanor reasons and because Back's subse-
quent investigation was centered on who participated in the
strike and picketing and did not include asking any of the
employees about either picket line misconduct or Bergen's
reports to them regarding what Respondent was doing to
fix the air-conditioning.
Back testified that on an unspecified date and hour after
the July 8 suspension meeting Patterson told him that she
had told Bergen. on an undisclosed date, about a telephone
call from Back to Patterson regarding the substitute air-
conditioning units arranged for no earlier than July 5. He
further testified that he believed her. Patterson was still in
Respondent's employ at the time of the hearing, but she did
not testify. Bergen's uncontradicted testimony about Patter-
son's reports to him regarding management's handling of
the air-conditioning problem is circumstantially corrobo-
rated by Crawford's testimony concerning his reports to the
employees. Particularly in view of Patterson's failure to tes-
tify, and for demeanor reasons, I discredit Back's testimony
in this respect. In any event, he did not testify that his
alleged conversation with Patterson occurred before Ber-
gen's discharge.
C. The Revocation of the Enmllo'ees' Suspension' Bergen 's
Discharge
After suspending the store 441 personnel on the after-
noon of Saturday, July 8, Back instructed Patterson to find
out who had been scheduled to work during the period of
the work stoppage and to arrange individual interviews for
Wednesday, July 12, between Back and each suspended in-
dividual. Back instructed Patterson to set up Bergen's inter-
view as the last one on Wednesday, because Back did not
want the results of his meeting to have a bearing on the
results of the meetings with the employees and their indi-
vidual cases. Later, Patterson reported to Back that Martin
had reported to work at store 441 on Friday. July 7. the first
day of the strike, had then been transferred to another
store, thereafter had continued to work at the latter store,
had neither picketed nor exhibited sympathy for the picket-
ing. Patterson also reported to Back that DeVore had not
participated in the picketing, although on July 8 she had
participated in the work stoppage.
On Monday. July 10, Back was in Grand Rapids. Michi-
gan, where his own office is located. Back testified that on
that date he had decided "95 percent" that he was going to
discharge Bergen. Back returned to Ypsilanti on Tuesda,\.
Jul3 I1. He testified that when he arrived he intended to
offer all the others their jobs back, unless some other man-
agement people said something that day to change his
mind.
Between 9 a.m. and 5 p.m. on Wednesday. July 12. Back
individually interviewed each of the store 441 personnel ex-
cept Martin (who had not struck or picketed and had not
been suspended), Hamilton (who was out of town). and
Crawford (who was scheduled for a meeting that day but
did not make it). During each interview that day except the
Bergen interview Back said that he was sorry the whole
incident had occurred and offered the employees his job
back, but without backpay. Upon receiving this offer.
Assistant Store Manager Swoffer asked what would happen
with Store Manager Bergen, and Back replied that he was
unable to answer because he had not vet met with Bergen.
Bergen's status was not mentioned during any of the other
July 12 interviews with the suspended employees. During
none of these interviews with the employees did Back ask
whether Bergen had reported to them about Respondent's
efforts to resolve the air-conditioning situation' or ask about
the alleged misconduct on the picket line. Nor did Back sas
anything one way or the other about the effect of their
picketing activity on their work record. That same day em-
ployees Rost, Dearing, and Green telephoned Crawford
that they had been offered their jobs back immediately but
without backpay.
Back interviewed Bergen in the presence of Supervisors
Hernandez and Patterson. neither of whom said anything.
Back said that he had no choice but to terminate Bergen for
'ailing to meet the responsibilities of a manager by striking
and going out and picketing. Back said that he liked to
know the opinions of people who were leaving the ('om-
pany and asked for Bergen's opinion. Bergen said that the
Company moved "at a snail's pace in order to get somne-
thing done." He further said that he was prepared to return
to work, and that he could be a loyal productive employ c.
Back said. "... we cannot change our decision." Back fur-
ther said that Bergen did not adequately communicate with
the employees, without explaining how. Bergen told Back
what management had told Bergen about the air-condition-
ing, and asked whether he should lie to the employees. Back
said "You should never lie ... good luck," and left.?
Bergen testified that "if the employees had gone on strike
for any other reason I would not have supported them. but
I was being subjected to the same conditions and was not
told anything by the Company." He further testified that bh
the word "conditions" he meant lack of air-conditioning,
customer and employee complaints. and food spoilage
which affected his bonus based on net profits. He never
expressed this last concern to any employees in the store.
7Back testified that "some" of them "made comments" about uch re-
ports. but he did not testify what these comments ere.
MN findings as to the contents of this interview are based on Bergen's
tesimony. For demeanor reasons. I do not credit Back's tesllmon that he
told Bergen he was being discharged for "failure to exercise his management
obligations. in particular his failure In communication witlh his subordi-
nates." and that Bergen said he agreed with Back's declsiln i principle.
10X83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Events li4er Bergen's Discharge
The same day Bergen was terminated, he told a sales
clerk named Betty at Respondent's Grove store, and the
store manager of the Company's Ecorse store (identified in
the record as "Jean." and inferentially a supervisor like
Store Manager Bergen). that he had been terminated.
On Thursday, July 13, Back interviewed employee Craw-
ford in the presence of Supervisors Hernandez and Patter-
son, who did not say anything. Back said that he had re-
viewed Crawford's record and wanted her to come back to
work. She asked what he had reviewed about her record.
He said that he could not give her an answer, but she could
come back to work if she wanted to. She asked whether she
would be paid for time off. He said that he would think
about it. She asked if he was going to hire Bergen back.
Back said that he was going to take that under consider-
ation. Back said that she could start work when she was
ready. She said that she would be ready on Monday, July
17. During this interview Back did not say anything to her
about her conduct or that of others on the picket line or ask
her anything about Bergen. Nor did Back say anything
about the effect of her picketing activity on her record.
Five employees returned to work at the store, including
Crawford. Dearing, and Rost. Crawford testified that she
had heard, probably from one of the other employees, that
Bergen had been fired.
On July 17, Swoffer and Crawford filed charges against
Respondent. On July 22, Bergen sent Back the following
letter:
I apologize for my actions during the dispute of July
6, 1978. My actions were unprofessional and imma-
ture.
I would also like to apologize for the imposition on
all parties concerned.
As a member of the management team, my efforts
should have reflected the best interest of the store and
company. Of the alternative available, at the time, I
made an unwise decision.
I have learned and matured through the unfortunate
experience. Such actions have no place in a profes-
sional manager.
I would like to return to Stop-N-Go and build a
career. I realize the outstanding opportunity I have
jeopardized.
I believe the past experience will make me an im-
proved manager, and certainly, a loyal employee.
May I return to Stop-N-Go Foods as sale manager
of #441.
I am available, at your convenience.
Bergen, who appears to be in his late twenties, credibly
testified that he sent this letter because he had never before
been terminated, was afraid of being unemployed, and
wanted to get his job back. Back never replied to the letter.
Bergen returned to store 441 about July 19 and 26, Au-
gust 2, September 2 and October 2. On these occasions he
purchased a pop and talked to the store employees. At least
during the first of these visits he talked to them about his
"being fired . . . who was going back to work, who is not
going back to work." During his 3-month period of employ-
ment with Respondent, he had worked every day but one.
On August 10, Bergen filed the charge which gave rise to
the instant case, alleging that about July 12 Respondent
had discharged him because of his protected activities. On
August 29. the Regional Director issued an order consoli-
dating the Swoffer. Crawford, and Bergen charges. and is-
sued the complaint herein. Paragraph 7 of the complaint at
that time alleged, inter alia. that about July 8 Respondent.
through Back, had suspended "its employees" Bergen.
Swofler Crawford, Rost. IlHamilton. (opeland. Green.
Dearing, and DeVore "because of their protected concerted
activities in protesting working conditions at Respondent's
store, including inter alia, the work stoppage of said em-
ployees on or about July 6. 7. and 8. 1978." Paragraph 8 of
the complaint alleged that about July 12 Respondent had
discharged Bergen because of his participation in the fore-
going protected concerted activities. This complaint was
served on, inter alia, employees Swoffer and Crawford. Re-
spondent's September 6 answer, also served on Swoffer and
('rawford, denied all the allegations of paragraph 7 and 8 of
the complaint.
Thereafter, on November 18, 1978. Respondent entered
into an agreement settling the Swoffer and C'rawford
charges. The agreement was signed by Swoffer on behalf of
both herself and Crawford. This agreement called for full
backpay for all eight of the suspended employees, ranging
f'rom $44 to $134.20. Further, the agreement reserved the
General Counsel's right to introduce evidence bearing upon
the settled issues in any hearing "which may result from the
Respondent's suspension of its employees, and its supervi-
sor Robert Bergen." as alleged in the Swoffer. Crawford,
and Bergen charges, "but without seeking a remedy tfr the
express conduct disposed of through the settlement herein."
The agreement also provided that Respondent "does not,
by the execution of this agreement, admit that it has, in
fact, violated the Act." In addition, the agreement called
for Respondent to post for 60 days a "Notice to Employ-
ees" which set tforth employees' Section 7 rights, stated that
Respondent would not do anything to interfere with, re-
strain, or coerce its employees in the exercise of these rights.
stated that Respondent would not "suspend. or otherwise
discriminate against employees because they have engaged
in protected concerted activities in protesting working con-
ditions, including engaging in a work stoppage," and stated
that Respondent would make whole Swoffer, Crawford,
Rost. Hamilton, Copeland Green. Dearing. and [)eVore
for any loss of pay from the "discrimination against them."
'Through no fault of Respondent, the Regional Director did
not approve this settlement until December 8, 1978. On
D)ecember 13. 1978, the Regional Director severed the
Swoffer and Crawford cases from the Bergen case, which
was the only one litigated before me in February 1979. The
only employee who testified was Crawford. and because of
a sequestration order issued on Respondent's motion she
did not hear the testimony of the other witnesses, Bergen
and Back.
E. Analvsis and Conclusions
I. The motivation for Bergen's discharge
Zone Manager Back testified, in effect. that he dis-
charged Bergen primarily because Back believed that Ber-
1084
SITO()P AND GO() F(X)I)S IN(.
gen had failed to tell the store employees what top manage-
ment was in the process of doing to relieve the air-
conditioning situation. Back further testified that he would
have discharged Bergen for this reason even if Bergen had
not participated in the work stoppage.
I do not accept Back's testimony in this respect. I hus.
there is no evidence that anyone ever told Back, before
Bergen's discharge. that Bergen had failed to relay to the
employees any information received by Bergen about top
management's efforts to restore the air-conditioning. More-
over, there is no credible evidence that anyone ever told
Back that Bergen had received any information. except
what he relayed to employees, about such efforts. Further-
more, the credible evidence shows that during the suspen-
sion interview Bergen told Back that Bergen had received
no information on what was being done to repair the air-
conditioner. Also, during the employee interviews after Ber-
gen's suspension and before his discharge. Back did not ask
any of the employees whether Bergen had reported to them
about top management's efforts to rectify the air-condition-
ing situation. Furthermore, during the suspension inter-
view, Back told all the store personnel. including Bergen.
that they were being suspended for striking and picketing.
and during Bergen's discharge interview Bergen told Back.
in effect. that Bergen had told the employees all he truth-
fully could about the air-conditioning situation, and Back
disclaimed any desire that Bergen lie about the matter. Fi-
nally, the credited evidence shows that during the termina-
tion interview Back told Bergen that he was being dis-
charged for failing to meet the responsibilities of a store
manager by striking and going out and picketing.
In view of the foregoing evidence. and for demeanor rea-
sons, I do not believe that Bergen's discharge was moti-
vated in any way by any belief entertained by Back that
Bergen had failed to keep his subordinates apprised of what
Bergen knew about what top management was doing to
restore the air-conditioning. Rather, I believe that Back dis-
charged Bergen solely because of his participation in the
strike and the picketing. In any event, for the reasons sum-
marized infra, part II1, . 2, the results herein would be the
same assuming that I accepted Back's testimony as to his
motives.
2. Whether Bergen's suspension and discharge violated
the Act
As Respondent conceded at the hearing before me, par-
ticipation in the strike and picketing involved in this case
constituted an employee right protected by Section 7 of the
Act. and the suspension or discharge of employees because
of such conduct would violate Section 8(a)(1). N.I.. RB. v.
KDI Precision Products, Inc.. 436 F.2d 385 (6th Cir. 1971 ).
Hlowever, as a supervisor. Bergen himself did not possess
such Section 7 rights. The General Counsel contends that
Supervisor Bergen's suspension and discharge were unlaw-
tul because they allegedly had the natural and probable
consequence of discouraging rank-and-tile employees from
engaging in such strike and picketing activities in the fu-
ture? The General Counsel relies on Falirieric, uring
I he (General (Counsel tlirher cntends that Superlslr Bergen' s uspen
si, n and discharge uere rnltlslted h : speCili Iniefli 1-. dlc,C r;age rillk-
Ilome, 202 NI.RB 318 (1973). enfd. 486 F.2d 14(X)( 5th (ir.
1973), cert. denied 419 U.S. 827: General \Nutrition ('enter
Inc., 221 N I.RB 850 (1975): Produ tion Satn)iplX . lc.. 239
NLRB 1183 (1979): and cases there cited at footnote 13 of
the Administrative l.aw Judge's Decision.
"IT]he discharge of or other reprisals directed against a
supervisor for engaging in conduct protected in an em-
ployee violates Section 8a)( I) of the Act if (1) under all the
circumstances, such punishment tends to lead rank-and-file
employees reasonably to fear that the employer will punish
them for engaging in like conduct: and 2) the emplo\er has
ftiled to take reasonable and timely steps to reassure his
rank-and-file employees that the> will not be punished fior
such conduct." General Nutrition, .supra. 221 NLRB at 859.
See also l.ocal No. 20'. Internaltonal l..soication of Bridge
IWlorkcr /[William B. Polock Co.] . Prko. 373 .S. 701.
707 (1963): Production Stamping. supra. Aletri-Frui,-( ,l-
non. 226 NLRB 1315 (1976). enfd. 567 F.2d 833 (8th Cir.
1977): I.ADA of Oklhoma, Itn., 216 NI.RB 750, 759
(1975): FI od Store Employees l ,nion. Local 347 A.minla-
mated Meat Cutters rlHeck Inc.] v. N.L.R.B.. 418 F.2d
1177. 1181 (D.C. Cir. 1969): King Radio Corporationt l,.
166 NlRB 180. 184 (1967). enfd. 398 F.2d 14 (10th Cir.
1968): 1. D. Lowe, etc. dh/a Ternio-Riie Afanuficlutrini
Companyr , et al., 157 Nl.RB 310. 322 (1966). enfd. 406 [.2d
1033 (6th Cir. 1969). The first condition may be met b a
showing that the supervisor's discharge constitutes an inte-
gral part of an employer's pattern of conduct aimed at pe-
nalizing employees for their union activities. However, this
"pattern-of-conduct" situation is only a particular. al-
though perhaps the most usual, means of fullfilling that con-
dition, and is neither the sole means nor in itself a separate
and additional requirement. See the discussions in General
Nutrition, supra, 221 Nl.RB at 859, and Produtction Staimp-
ing, supra. " '
I agree with the General Counsel that under all the cir-
cumstances Bergen's suspension and subsequent discharge
because of his picketing and strike activity tended to lead
rank-and-file employees reasonably to fear that Respondent
would punish them for engaging in like conduct, and that
Respondent failed to take reasonable and timely steps to
reassure them otherwise. Thus. Respondent publicly sus-
pended all of the store 441 pickets, including Bergen. in the
presence of all of the employee victims except DeVore on
the express ground that they had struck and picketed.
There is no evidence that management mentioned Bergen's
supervisory status during that interview. Nor did manage-
ment refer to Store Manager Bergen's supervisory status
during post suspension interviews with the suspended em-
ployees even when Assistant Store Manager Swofler asked
before his discharge what was going to happen to him. and
Crawford asked after his discharge whether he was goin to
and-file emplloyees from engaging in such aitlities I see ni esidence of ,luch
a specific intent
10 Respondent's able brief contends that a "pattern-of-conlduct" conditlion
a'ls substituted for or added to the "reasonahls-to,-lear" co.ndtliln h .'hrl
hlo' Glden Grilt Inc-. 227 NLRR 1688 (1977). enfd 713 I 2d1 1302 d f(ir
1978). decided ater (;eneral Vu,rllli This contention is refuted h the
phrasing .f the ProIiucrin Stanri.nirr anals sls. hch exprerls\ relies on (;oL
etat Vulrmion and st.tes. nter alia. "Here the discharge ol lithe slpernllsr
si.l part of a prgrarnm o the Respondent penah/irlng emplosee, who orga-
nized the lnlton. In such crcumntances. the nes.lahle effect oI he
Isuperxlsor's] dcharge wa1s I n press Illpon Ihe ernplu ees Ire ;rl. aerse
coneqlellces ,t their e em h m r eng.gU llg in uniLntt aitllt '"
1085
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
be "hire[d] back," to which Back replied that he was going
to take that into consideration. The fact that Bergen had
been discharged was clearly conveyed to the employees by
this tacit admission by Back to Crawford that Bergen had
been terminated, by Bergen's failure to return to work, by
his statements to rank-and-file employees that he had been
terminated, and by the issuance of the complaint herein
alleging that he had been discharged." Furthermore, the
initial complaint herein alleged that Bergen was an em-
ployee, alleged that all the July 8 suspensions violated the
Act, alleged that his discharge violated the Act, and was
served on employees Swoffer and Crawford. Respondent's
answer, which was also served on Swoffer and Crawford.
did not distinguish between Bergen and the suspended em-
ployees. Furthermore, although Respondent did offer rein-
statement to the rank-and-file employees during the week
after their suspension, Respondent said nothing to them
about the effect of the activity for which they had been
suspended on their work record, and failed to pay them any
backpay until after charges had been filed and the settle-
ment agreement had been reached, more than 4 months
after the suspension. Nor did the notice posted by Respon-
dent pursuant to the settlement agreement say anything
about why Bergen was not afforded any relief. While the
settlement agreement refers to Bergen as a "supervisor." the
only employee who signed it was Swoffer. and there is no
evidence that even she was told why Bergen's supervisory
status might be significant. In view of this continued failure
to give the employees any explanation for why Bergen was
punished more severely than the other strikers and received
no remedy therefor, and in view of the fact that Bergen
spent most of his time doing the same work as rank-and-file
employees. such employees might well have ascribed his
fate to his conduct in acting as the employees' spokesman
during the interview which culminated in the mass suspen-
sion, and inferred that like subsequent conduct would ex-
pose them to discharge even though mere participation in
such concerted activity would not.' Cf. General Nutrition.
supra, 221 NLRB at 860.
The cases relied on by Respondent are factually dissimi-
lar. In Long Beach Youth Home, 230 NLRB 648. 649 650
(1977), the discharged supervisor's dual staus in connection
with the labor dispute itself had been shown to the employ-
ees by his conduct on the employer's behalf in receiving the
strikers' demands after the strike began and before he him-
self joined the strike and publicly evinced support for the
strikers' cause. In Sihilios Golden Grill. supra, 227 NLRB
1688, the supervisor was discharged, for having joined a
union the preceding day, during a private interview where
I see nothing in General Nurition which supports Respondent's asser-
tion in its bnef that information of the supervisor's discharge must reach the
employees hrough the employer, or that the employer must convey this
information in a manner that would end to chill otherwise protected ac-
tivity. See 221 N.RB at 853. 859. In any event. Zone Manager Back. In
effect. told employee Crawford that Bergen had been discharged and might
not be hired back.
12 Although Bergen did not instigate the strike or the picketing, there is no
evidence that Respondent knew this or that the employees thought it did
While he struck partly because of his concern about the adverse effect of the
air-conditioning breakdown on sales and (consequently) his profit-based bo-
nus. he never mentioned this consideration to the employees. f. General
Nuiriion. upra, 221 N.RB at 859. fn. 49.
she was told to get out on the ground that she had quit her
job on the previous day.
As previously noted, I have rejected on factual grounds
Back's testimony that Bergen was discharged primarily be-
cause Back believed that he had failed to relay to his subor-
dinates the reports made to him about top mangement's
efforts to restore the air-conditioning. However, I would
find Bergen's discharge to be unlawful even assuming the
truth of Back's testimony regarding his motive. The uncon-
tradicted evidence establishes that Bergen did in fact relay
these reports to his subordinates. Furthermore, these re-
ports were related to the employees' protected activity in
concertedly protesting the lack of air-conditioning and Re-
spondent's continued failure to tell them when it would be
restored. Accordingly, if Bergen had been a rank-and-file
employee, Respondent could not have lawfully discharged
him in the erroneous, although good-faith, belief that his
reports were incomplete or inaccurate, because "the exam-
ple of employees who are discharged on false charges would
or might have a deterrent effect on other employees.... A
protected activity acquires a precarious status it innocent
employees can be discharged while engaging in it, even
though the employer acts in good faith. It is the tendency of
those discharges to weaken or destroy the §8(a)( I ) right that
is controlling." N.I.R.B. v. Burnup & Sims, Inc.. 379 U.S.
21 (1964). Accord: N.L.R.B. v. ('amhria Clotv Productt.
onom panT, 215 F.2d 48. 53-54 (6th C'ir. 1954). cited with
approval in Burnup & Sims, supra. In the instant case, Su-
pervisor Bergen's suspension and discharge. admittedly in
part because of his strike and picketing activity in connec-
tion with the labor dispute, were unlawful because the)
tended to lead rank-and-file employees to fear like reprisal
if they themselves engaged in like activity. The effect on
them of withholding reinstatement and backpay from Ber-
gen because of false charges (which he publicly denied dur-
ing the interview where all the pickets were suspended) re-
lating to that labor dispute would be the same whether or
not he was a statutory employee. Accordingly. Burnup &
Sims would call for an unfair labor practice finding and
order as to Bergen even accepting Back's testimony as to
his motives for the discharge.
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)( I ) of the Act by suspending and discharg-
ing Supervisor Robert Bergen.
CON('Ii SI(NS ()F LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Respondent has violated Section 8(a)( 1) of the Act by
suspending and discharging Supervisor Robert Bergen.
3. The foregoing unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
13 At the hearing Respondent's counsel stated, in effect. that the untruthful
"out of gas" signs had nothing to do with the issues presented here More-
over, there is no evidence that Respiondent ever tried to find out who put
them up. or eser thought Bergen had done so. In an) eent, because the
uncontradicted evidence establishes that Bergen did not post them and, in-
deed. that he promptly took one of them down. I hwould reject an', reliance
on such signs for the same reason that I have rejected Respondent's reliance
on Bergen's reports to the employees about management's efforts to restore
the air-conditioning.
1086
STOP AND GO FOODS. INC.
THE RtMIMI)Y
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be required
to cease and desist therefrom. Because the unfair labor
practices found include an unlawful discharge, Board prec-
edent appears to call for a broad order. Skrl Die Casting.
Inc., 222 NLRB 85 (1976); Harmon Industries. Inc., 226
NLRB 432 (1976), enfd. 565 F.2d 1047 (8th Cir. 1977). Ac-
cordingly, Respondent will be required to refrain from in-
fringing on employees' rights in any other manner. In addi-
tion, I shall recommend that Respondent be required to
offer Robert Bergen reinstatement to the job of which he
was unlawfully deprived or, if such a job no longer exists, to
a substantially equivalent job, without prejudice to his se-
niority or other rights and privileges, and to make him
whole for any loss of earnings he may have suffered by
reason of his unlawful suspension and discharge by pay-
ment to him of a sum of money equal to that which he
would have earned from his suspension on July 8. 1978, to
the date of a valid offer of reinstatement, less his net earn-
ings during this period. to be computed in the manner de-
scribed in F. .Woolvorth Companir. 90 NLRB 289 (1950).
with interest as prescribed in Florida Steel Corporation. 231
NLRB 651 (1977)." Also, Respondent will be required to
post appropriate notices. Because the record affirmativelv
shows that an employee at Respondent's Grove store
learned about Bergen's discharge, notices will be required
at that store as well as store 441.
[Recommend Order omitted from publication.]
'"See, generally. Ist. Plumbhn & Hearng Co, 138 NL.RB 716 (1962).
1087