Wegmans Food Markets, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 3, 2007

05-CA-033228 (N.L.R.B. Aug. 3, 2007)

JD–53–07
Hunt Valley, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WEGMANS FOOD MARKETS, INC.
and Case 5–CA–33228
EDWIN R. MELHORN, An Individual
James C. Panousos, Esq., and Anne K. Yereniuk, Esq.,
for the General Counsel.
R. Michael Smith, Esq., of Baltimore, MD, for Respondent.
DECISION
Statement of the Case
RICHARD A. SCULLY, Administrative Law Judge. Upon a charge and amended charge
filed by Edwin R. Melhorn on September 13 and December 12, 2006, respectively, the Regional
Director for Region 5, National Labor Relations Board (the Board), issued a complaint on
December 22, 2006, alleging that Wegmans Food Markets, Inc. (Respondent), had committed
certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer denying that it had committed any violation of the Act.
A hearing was held in Baltimore, Maryland, on March 15, 16, 19 and April 3, 2007, at
which the parties were given a full opportunity to examine and cross-examine witnesses and to
present other evidence and argument. Briefs submitted on behalf of the parties have been
given due consideration.1 Upon the entire record and from my observation of the demeanor of
the witnesses, I make the following
Findings of Fact
I. Jurisdiction
At all times material, Respondent has been a New York corporation with its principal
office and place of business in Rochester, New York, engaged in the operation of retail grocery
stores at various locations, including one in Hunt Valley, Maryland, the only facility involved in
this proceeding. During the 12-month period preceding December 22, 2006, Respondent in the
conduct of its business operations derived gross revenues in excess of $500,000 and
purchased and received at its Hunt Valley facility, products, goods, and materials valued in
excess of $5,000 directly from points outside the State of Maryland. Respondent admits, and I
find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)

1 The unopposed post-hearing motion by counsel for the General Counsel, to remove
certain exhibits that were not admitted into evidence but were inadvertently included with the
official hearing transcript, is hereby granted. Those exhibits have been given no consideration.
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of the Act. The parties have stipulated, and I find, that United Food and Commercial Workers
Union, Local 27 (the Union), is a labor organization within the meaning of Section 2(5) of the
Act.
II. Alleged Unfair Labor Practices
The complaint alleges that Charging Party Edwin R. Melhorn was unlawfully terminated
by Respondent because he engaged in concerted activity protected by the Act and because it
mistakenly believed that he was involved in activity in support of a union. It also alleges that
Melhorn was unlawfully interrogated by supervisors concerning his union and protected
concerted activities.
Melhorn was employed by Respondent at its Hunt Valley store from August 2005 until
August 28, 2006. Melhorn, who is in his early eighties, is a college graduate and had served as
a naval officer during World War II. Prior to his employment with the Respondent, he had a 30-
year career as a manager with IBM Corporation and had also worked for approximately 13
years in several capacities for the United Methodist Church.
Melhorn was hired as an entry-level employee and began working cleaning and
assembling shelves before the store opened to the public in October 2005. Once the store
opened, he was assigned to the customer service desk where he worked until December 2005.
In early November 2005, Melhorn met with area manager Douglas Porter, employee
representative Laurie Katerle,2 and his immediate supervisor JoAnne Handy-Sims to discuss
alleged deficiencies in his job performance at the customer service desk. During the meeting,
Melhorn criticized Handy-Sims as “unapproachable,” said he was “not one of her favorites,” that
she treated every mistake he made as a ”federal offense,” and he said that he had not been
properly trained to do his job. It was agreed that they would meet again in two weeks to see if
there was any improvement.
On November 25, 2005, Melhorn had an argument with an African-American employee
at the customer service desk. When front end manager Andrew Kujawa attempted to interview
Melhorn about what had occurred, Melhorn said that he did not want to discuss it because in
Baltimore, in situations involving blacks and whites, the blacks always come out on top. He also
said that he knew he would be found to be at fault because the other employee was black and
blacks always come out on top when a white attacks them in the workplace. Kujawa responded
that he considered Melhorn’s comments to be inappropriate and sent him home for the day.
Melhorn did not deny making these comments to Kujawa when he met with Porter and Katerle
to discuss the incident. He did, however, accuse Kujawa of misrepresenting what had occurred,
criticized his handling of the matter, and asked that Kujawa be reprimanded. On December 1,
2005, Melhorn was given a written warning for his comments to Kujawa which were considered
to have violated Respondent’s “non-harassment policy” and to have shown a lack of respect for
fellow employees.
When Melhorn’s performance at the customer service desk did not improve, he was
reassigned to work as a cashier. Porter testified that this was done because Melhorn’s

2 An employee representative is an employee of Respondent’s Human Resources
Department whose duties include acting as an employee advocate in meetings with
management concerning employee performance issues. They are supervisors and agents of
the employer within the meaning of the Act.
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performance at the customer service desk was substandard, that he had been trained to
operate a cash register as a part of his customer service duties, that he was unhappy working
under Handy-Sims, and that the cashier position involved fewer tasks than the customer service
desk. Melhorn was not happy about this reassignment and complained about it in a letter to
Katerle, dated December 5, 2005. The letter accused Kujawa of defaming and lying about
Melhorn, accused Respondent of retaliating against him because he had reported being
discriminated against by his supervisor at the customer service desk, and stated if the matter
was not resolved to his satisfaction he was “prepared to take appropriate steps to correct this
injustice.” On December 10, Melhorn sent a letter to store manager Wendy Webster requesting
a meeting with her and company CEO Danny Wegman to discuss the list of complaints he
outlined therein. This was followed by another letter to Webster, dated December 16, repeating
his complaints and stating that if she did not respond by December 19, he was going to contact
Danny Wegman.
On December 21, Melhorn met with Webster and employee representative Karin
Flanagan. Webster told Melhorn he was a valuable employee and she wanted to see him
continue working at the store. They eventually agreed that Melhorn might be happier in a job
which involved demonstrating products in the cheese shop section of the store. He was then
assigned to reshopping (putting items back on the shelves), until March 2006,3 when he began
working in the cheese shop.
During the approximately six months that he worked in the cheese shop, Melhorn
received a number of counselings, two warnings, and a suspension for violating work rules.
Before starting in the cheese shop, Melhorn had to complete a computer-based training
program on food safety. Among the areas included in these instructions is Respondent’s “glove
rule” which requires that anytime employees touch something that could potentially contaminate
the food they are demonstrating, they must wash their hands and put on new plastic gloves. On
several occasions, Melhorn violated the glove rule or other parts of the food safety policy. The
violations included wearing his gloves out of his work area, failing to change his gloves after
eating a piece of cheese and after blowing his nose, failing to sanitize a knife he had dropped
on the floor, wearing a mesh protective glove while eating in the break room and while entering
a restroom, and attempting to reuse food that had been thrown in the trash. As a result,
Melhorn ended up taking the food safety course a total of three times. He also violated
Respondent’s time clock rule by making a purchase in the store while on the clock instead of
while off the clock or during a break period. On August 5, Melhorn was suspended for three
days for going into the bakery and taking a cookie from a sample bin with his bare hand which
required that the remaining cookies in the bin be destroyed. He had previously been told by a
bakery supervisor that he had to use a glove when removing cookies from the bin. Cheese
shop supervisors Monika Thompson and Erin MacMillan and service area manager Shawn
MacKay, all of whom had counseled Melhorn about glove rule violations, credibly testified that
Melhorn often made sarcastic comments and/or engaged in conduct they considered mocking
and disrespectful by waving his gloved hands or mentioning the number of gloves he had used
during a shift.
On August 7, Melhorn sent a letter to Respondent’s CEO Wegman complaining about
the management of the Hunt Valley store. He asserted that morale is slipping badly, in part,
because “Wegmans does not provide an independent third-party review of labor relations
decisions or a fair process for appealing disciplinary actions,” and he requested a personal
meeting with Wegman to discuss his experiences at the store. Store manager Wendy Webster

3 Hereinafter, all dates are in 2006.
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was instructed by Senior Vice President Mark Ferrera and HR Manager Kevin Stickles to meet
with Melhorn and to address his concerns, which is Respondent’s usual procedure when an
employee contacts the CEO. On August 24, Webster and Flanagan met with Melhorn in
Webster’s office. What occurred at that meeting is in some dispute; however, it is what led to
Melhorn’s termination.4
Melhorn testified that when he arrived at the meeting he was surprised to find Flanagan
present because she had not told him she would be there when she arranged the meeting.
Flanagan offered to leave but he told her to stay. Webster said she wanted to discuss his letter
to Wegman and that he could meet with her or meet with Ferrera and Stickles, but not both, and
he agreed to talk to Webster. Webster began by saying she didn’t know how to satisfy him.
Melhorn responded that she should treat him like every other employee and Webster said she
could not treat 800 employees the same. Melhorn said that he wanted to discuss his letter, that
he had been treated unfairly, that he had been accused of stealing time, that he had been
followed around the store on three occasions, and that he had been falsely accused of food
safety rule violations. He also said that there were morale problems in the cheese shop, that
the employees were frustrated, and “the place is ready to explode.” He said that there were
morale problems in his old department customer service. Melhorn next said that he felt
Wegmans needed an independent representative in labor relations decisions and a fair process
for appealing disciplinary actions. At that point Webster threw up her arms and said: “you’re
talking union, aren’t you? That’s what you’re talking about. You’re talking about the union. We
don’t need a union here. Have you been soliciting employees?” Melhorn said he had not, but
that employees had come to him, referring to morale problems in the cheese shop and
customer service desk. Webster concluded by saying she would try to set up a meeting for him
with either Ferrera or the Human Resources representative. When asked if he had anything
else to say, Melhorn responded that he had noticed a startling parallel between his treatment at
the store -- being followed and under constant surveillance which made him afraid to walk
around in the store – and “the Gestapo-like tactics of Nazi Germany.” Webster responded that
he would hear from them and he left the office.
Webster testified that at the start of the meeting she told Melhorn that she wanted to
discuss his letter to Wegman and asked how she could help him. She said that Melhorn
seemed unhappy and angry that the company CEO had not come from Rochester to Hunt
Valley to meet with him and that his demeanor during the meeting was “aggressive and
disrespectful.” Melhorn complained about things that had happened to him including his
suspension, about morale at the cheese shop, and criticized the manager. Although she said it
was difficult to get Melhorn to focus on his letter to Wegman, he did say that “an independent
third-party was needed to review Wegmans’ labor relations decisions.” She told Melhorn that
the company had avenues available to pursue complaints such as the “You First” line (an
anonymous complaint line operated by an outside consultant) and “Ask Jack” (an internal line to
the senior vice president of operations). She denied telling Melhorn that his comments sounded
like “union talk,” or accusing him of stirring up trouble among the employees. Melhorn told her
“more than once” during the meeting that she “did not want to hear the truth about the store”
and that “she ran a Nazi-like environment.”
Flanagan testified that at the meeting Melhorn was upset that the CEO was not there
and that he was disrespectful, confrontational, and hostile. He said he was concerned that the
company had accused him of stealing time and it was trying to build a case against him, that he

4 Respondent asserts that this meeting was on August 22 but the evidence as a whole
indicates it was on August 24.
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was intimidated by his suspension, and that people were following him around. He said that
morale was bad in the cheese shop and that the manager was a “manipulative and nasty young
woman.” He told Webster that “the company was a Nazi-like environment” and said “the truth
hurts, doesn’t it?” Melhorn said that an independent third party was needed to review
Wegmans’ labor relations decisions and Webster referred him to the “You First” and “Ask Jack”
programs. She said she did not know what Melhorn meant by “an independent third party,” that
Melhorn did not say what he meant by his references in his letter to a third party review of labor
relations decisions or a fair process for appealing disciplinary actions, and that he was not
asked any questions about either subject. Melhorn did not make any comments about the need
for a union at Wegmans and did not indicate that he was active on behalf of a union. He was
not asked any questions about his union activities or sympathies or whether he was attempting
to organize or unionize the employees.
Melhorn was told to meet again with Webster on on the following day at 9:00 a.m.
Follwing the meeting and again the next morning, Webster discussed what had occurred with
Ferrera and Stickles. They discussed Melhorn’s work history, the previous incident involving his
disrespect toward other employees, and his multiple problems in the cheese shop and
concluded that he should be terminated. When Melhorn arrived at her office the next morning,
Webster was on the telephone and, at approximately 9:20, Melhorn left the store. Around 11:00
a.m., Webster telephoned Melhorn and told him that he was being terminated “due to
disrespect.” Melhorn asked for a copy of the termination notice but Webster declined to provide
it to him. A memorandum in Respondent files prepared by Webster states that Melhorn was
terminated for numerous work rule violations and for his disrespectful comments to Webster that
the store was a “Nazi-like environment,” “you don’t want to hear the truth” and “the truth hurts
doesn’t it.”
Counsel for the General Counsel asserts that Melhorn was terminated in retaliation for
his union and other protected concerted activity. The evidence shows that on April 6, Melhorn
went to the Towson office of Local 27 and met with organizer Timothy Goins. Melhorn inquired
about attempting to organize Respondent’s Hunt Valley store. Goins talked to him about Local
27’s policies and procedures and explained what an organizing effort at a large store would
involve. Goins gave Melhorn some union literature and a single union authorization card. He
suggested that Melhorn set up a meeting with a small group of interested employees. No such
meeting was ever arranged. Melhorn did not sign a union authorization card, he did not solicit
cards from other employees, and he never talked to any other employees about getting a union
at the store. There is evidence that Local 27 representatives passed out union literature at the
Hunt Valley store on June 22 as part of a handbilling effort or “blitz” at Wegmans stores
throughout the East Coast. There is no evidence that Melhorn had any involvement in that
handbilling effort.
Melhorn testified that shortly after he began working in the cheese shop in March, he
spoke with some co-workers, whose full names he did not know, about conditions there
because some of them did not appear to him to be happy. He said that one employee named
Donna told him that morale in the department was poor, that they were frustrated, and that the
place was ready to explode. Donna did not say what she meant by this and he did ask her.
Melhorn testified that a week or so later he spoke to Flanagan and informed her as to what he
had been told about the morale problems in the cheese shop, the employees’ frustration, and it
being about to explode. He told Flanagan that the employees had taken their concerns to
Human Resources but that nothing had been done and told her that this made him wonder “if
third party representation is needed in a matter such as this.” Flanagan did not ask him what he
meant by “third party representation,” but told him there was no need for it. Melhorn testified
that he again raised the need for “an independent third party representative” during a meeting
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with Flanagan on June 10 in which he was reprimanded following a customer complaint about a
glove rule violation. Flanagan did not ask him what he meant and he did not explain but she
said she did not agree with him. In a follow-up meeting several days later with Flanagan and
Katerle, Melhorn told them they were not true employee representatives which were needed in
the store and said he was talking about “an independent third party representative.” Katerle
asked him if he didn’t like the way things were done at the store why he didn’t leave. He
responded that he needed the job and that he wanted to be an agent of change.
In her testimony, Flanagan denied that these conversations about an independent third
party representative ever took place, saying, that Melhorn had never come to talk to her about
morale in the cheese shop, never said that the cheese shop was ready to explode, and, prior to
August 22, had never said anything to her about the need for third party review. Katerle testified
that she met with Melhorn in June, after he asked to see his personnel file, and that Flanagan
was present. They discussed his concerns about the store management and Melhorn said that
people were following him and watching his every move. She asked why he chose to work
there if he was so unhappy and he responded that he was 80 years old and that this job was his
last resort. Melhorn said that he wanted to see things changed. She told him to jot down what
he would like to see changed and they would meet again to discuss what they could do to make
the changes happen. The conversation ended after Melhorn said he did not need to see his
personnel file but he never followed up with her about the changes he wanted to see. Katerle
denied that Melhorn said anything about morale in the cheese shop or the store or that he said
anything about the need for employee representation by an independent third party at the store.
Analysis and Conclusions
In cases where an employer’s motivation for a personnel action is in issue, it must be
analyzed in accordance with the test outlined by the Board in Wright Line, 251 NLRB 1083
(1980), enf’d 662 F. 2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General
Counsel must persuade the Board that animus toward protected activity on the part of
employees was a substantial or motivating factor in the employer’s decision. Once that has
been done, the burden shifts to the employer to demonstrate that it would have taken the same
action even in the absence of protected activity on the part of the employees. Manno Electric,
321 NLRB 278, 280 at fn. 12 (1996). The General Counsel’s initial burden is met by proof of
protected activity on the employee’s part, employer knowledge of that activity, and employer
animus toward it. W.R. Case Cutlery Co., 307 NLRB 1457, 1463 (1992).
It is clear that Melhorn did not engage in any activity in support of the Union beyond a
single visit to its Towson office in April. He did not sign an authorization card and he took no
action to follow up on the Union representative’s suggestion that he arrange a meeting of
employees to discuss representation. He admits that he did not talk to any other employees
about the Union or solicit any support for it. He had no involvement in the Union’s “blitz” at the
Hunt Valley store on June 22 in which Union literature was distributed. There is no evidence
that any of Respondent’s supervisors was aware of Melhorn’s contact with the Union and I find
that no disciplinary action was taken against him as a result of that contact.
Counsel for the General Counsel contends that Melhorn was engaged in protected,
concerted activity when he sent his letter to CEO Wegman and when he discussed it with
Webster on August 22. I do not agree. The standard for determining whether an employee’s
activity is concerted is found in the Board’s decision in Meyers Industries, 281 NLRB 882
(1986), where on remand, it reaffirmed the definition set forth in its prior decision in the case,
Meyers Industries, 268 NLRB 493, 497 (1984), that it must “be engaged in with or on the
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authority of other employees, and not solely by and on behalf of the employee himself.” The
only evidence in the record of Melhorn’s alleged concerted activity consists only of his own self-
serving testimony.
I found Melhorn to be a singularly unreliable witness who appeared to be unable to admit
any failings or accept personal responsibility for his actions. The record shows that when he
was criticized or reprimanded for ineptness or work rules violations, he consistently claimed that
he did not commit any violations, that he was not properly trained, and/or he was the victim of a
plot by management to build a case against him. The evidence shows that although
Respondent made special arrangements to permit him to take a food safety training program
three times, he repeatedly violated Respondent’s glove rule that was a part of that training.
Melhorn admittedly deliberately lied on the employment application he submitted to Respondent
(omitting the fact that he was a college graduate) because he had “been advised” that if he
indicated that he was a college graduate he would probably be considered “over-qualified” for
the entry level job he was seeking. In an affidavit Melhorn gave the Board in which he was
asked to describe the meeting with Webster and Flanagan on August 22, during which he made
comments that led to his termination, he omitted any reference to accusing Webster of running
a “Nazi-like environment” or saying that she “didn’t want to hear the truth.” He now admits
saying those things but testified that he did not think they were “important.” Melhorn told
Maryland Unemployment Insurance adjudicator Robert Marker that his remarks were not
disrespectful and that he felt justified in accusing management of being “Nazis” because that is
what they were. He also told Marker that he had become enraged during the August 24
meeting with Webster.
I do not credit Melhorn’s testimony about his purported conversations with other
employees of the cheese shop about problems there. No other the cheese shop employee
corroborated his testimony and his claims about the employees’ unhappiness were refuted by
the credible testimony of MacMillan, Webster, and Flanagan. However, even taking Melhorn’s
testimony at face value, it fails to establish that he did anything “with or on the authority of other
employees” or even sufficiently identify who those employees might be. According to his vague,
generalized testimony, Melhorn talked to some employees shortly after he began working at the
cheese shop because some of them looked unhappy. An employee named “Donna” told him
that morale in the cheese shop was bad, that the employees were frustrated, and the place was
ready “to explode.” Although Donna did not say what she meant by any of this (and Melhorn did
not ask her), it was the alleged basis for his actions in contacting management. There is no
evidence that Melhorn discussed taking any action about perceived problems in the cheese
shop with any other employee or that any other employee was aware that he was going to
contact Human Resources about those problems or write a letter about them to the CEO of the
company. There is also no evidence that any other employee authorized Melhorn to speak on
his or her behalf.
In his letter to Wegman, Melhorn offered his view of the Hunt Valley store and stated,
“my enthusiasm has been diminished by my personal experience of discrimination, retaliation,
mendacity, intimidation, and lack of respect by . . . management.” He also stated, “I would like
to meet with you to discuss the details of my experiences at Wegmans Hunt Valley.” His only
arguable reference in the letter to anyone other than himself is his statement that “morale is
slipping badly,” an apparent reference to the entire store, not just the cheese shop. Similarly, at
the August 24 meeting with Webster, he mentioned morale in the cheese shop but the focus of
his remarks was the alleged mistreatment of himself as an individual. Webster testified that she
believed that Melhorn was speaking on his own behalf when he met with her on August 24 and
that she never had the impression that he was acting or speaking on behalf of other employees.
I find the evidence fails to establish that Melhorn was engaged in concerted activity when he
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sent his letter to Wegman, nor when he met with Webster on August 24 to discuss his letter.
Counsel for the General Counsel contends that, even if Melhorn did not actually engage
in any union activity or in any concerted activity, Respondent thought that he did and that is why
it terminated him. I did not believe Melhorn’s testimony that he repeatedly voiced his concern
that independent third party employee “representation” was needed at the store to Human
Resources personnel, based on his overall lack of credibility, the complete absence of any
corroborating evidence, and the credible denials by both Flanagan and Katerle that he ever
mentioned it to them. In his August 7 letter to Wegman, which was discussed at the August 24
meeting that resulted in his discharge, Melhorn stated that morale at the store was slipping
because of “onerous conduct on the part of Hunt Valley management and also the fact that
Wegmans does not provide an independent third-party review of labor relations decisions or a
fair process for appealing disciplinary actions.” This, it is argued, led Respondent to believe
Melhorn was advocating that there be union representation of employees at the store and that
was the motivation behind and the real reason for his discharge.
The only support for this argument is Melhorn’s self-serving testimony that at the August
24 meeting with Flanagan and Webster, when he said that Wegmans needed “independent third
party representation in labor relations decisions” and “a fair process for appealing disciplinary
actions,” Webster threw up her arms and said: “You’re talking union, aren’t you. That’s what
you’re talking about. You’re talking about the union. We don’t need a union here. Have you
been soliciting employees?” I did not believe his testimony. First, both Flanagan and Webster
credibly denied that Webster made any reference to a union during the meeting.5 Their
mutually corroborative testimony described a meeting in which, at the outset, Melhorn became
irate when he learned that the CEO of the company had not come to Hunt Valley from
Rochester to meet with him. He was hostile and argumentative throughout the meeting. He
stated his belief that he was being followed around and that management was building a case
against him. He complained about being suspended and about his supervisor MacMillan whom
he admittedly asserted was “an asshole” and “a nasty, manipulative young woman,” although he
said he was just repeating what other employees had told him.6 While Melhorn told them that
morale in the cheese shop was bad, both Webster and Flanagan testified they believed that the
opposite was true since employee turnover there was low and they had heard no other
complaints.
In his letter to Wegman and in a statement he prepared sometime after his meeting with
Webster, Melhorn referred to the need for independent third party “review” of labor relations
decisions, not “representation” and he did not elaborate on what he meant by such review. The
difference is significant. While it might reasonably be argued that “independent third party
representation” means union representation, this cannot be said of “independent third party
review” which suggests a disinterested, neutral arbiter. A union presumably serves as an
advocate for the employees it represents, not as a neutral party. I find it unlikely that any
employer would consider having its employees’ collective bargaining representative review its
labor relations decisions or disciplinary actions; consequently, I do not believe Melhorn’s claim

5 I find counsel for the General Counsel’s attacks on the credibility of Webster and Flanagan
are not persuasive and find no basis for crediting Melhorn over them. Moreover, I find
Melhorn’s failure to mention Webster’s alleged “union” comments to Marker, the unemployment
adjudicator on his claim, suggests they were not made.
6 While counsel for the General Counsel argues this is evidence that he was speaking on
the behalf of other employees, I find it another example of his inability to take responsibility for
his own words and actions.
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that Webster concluded from his statement, that Wegmans needed such reviews by an
independent third party, that he was “talking union.”
As noted, I did not believe Melhorn’s testimony that Webster accused him of talking
union nor that she asked him if he had been soliciting employees at the August 24 meeting.
There is no other evidence casting any doubt on the credible testimony of Webster and
Flanagan that this never happened. Accordingly, I find that the allegation that Melhorn was
subjected to an unlawful interrogation has not been proved.
The General Counsel has presented evidence of union animus on Respondent’s part,
consisting of an anti-union video shown to new employees, which is not alleged to be unlawful.
E.g. Ross Stores, Inc., 329 NLRB 573, 576 (1999); Affiliated Foods, Inc., 328 NLRB 1107
(1999). However, I find that the evidence fails to establish any nexus between this animus and
Melhorn’s discharge which is essential to establish a violation. Teletech Holdings, Inc., 333
NLRB 402 fn. 2 (2001). Nothing in the video suggests that Respondent’s hostility towards
unions was such that it would be willing to violate the law by discriminating against employees
to keep unions out. Raysel-IDE, Inc., 284 NLRB 879, 880 (1987); Fibrican Corp., 259 NLRB
161, 171-172 (1981).
The timing of disciplinary action can be indicative of an unlawful motivation. Masland
Industries, 311 NLRB 184, 197 (1993), Limestone Apparel Corp., 255 NLRB 722, 736 (1981).
That is not the case here. In fact, even if all Melhorn’s testimony were to be believed, and he
spoke about third party “representation” at the August 24 meeting, it would have been no
different than what he had already told Human Resources personnel several times months
before. What is different is that he had not previously accused Respondent of operating a
“Nazi-like” environment or told the store manager that “the truth hurts.” I find that the timing of
Melhorn’s discharge is explained by these comments at the August 24 meeting, not by any
revelation that he was “talking union.”
Counsel for the General Counsel contends that Melhorn’s comments to store manager
Webster at the August 24 meeting were not so egregious as to lose the protection of the Act. It
is clear that his comments were insubordinate and disrespectful and that Respondent
considered them so. Since Melhorn was not engaged in protected activity when he said them,
they were not protected by the Act. I find that by any objective standard accusing one’s
employer of operating a Nazi-like work environment constitutes the kind of disrespect
Respondent’s policies and work rules prohibit.
In summary, the evidence concerning Melhorn shows him to be a marginal employee
who failed to adequately perform the duties of three different positions, customer service,
cashier, and food demonstrator in the cheese shop. While in each case Respondent attempted
to make accommodations for him, his response was to deny any responsibility for his actions
and accuse it of being out to get him. At his final assignment in the cheese shop, he repeatedly
ignored its food safety rules, denied doing anything wrong despite numerous disciplines, and
often taunted the supervisors who called him to task. He had previously been warned about
making disrespectful comments and had consistently shown a dismissive attitude about the
many disciplinary actions taken against him. Based on the foregoing findings, I conclude that
Melhorn did not engage in any union or concerted activity protected by the Act. The evidence
fails to establish that Respondent had any knowledge that he had or that it any reason to
believe that he had engaged in such activity. It also fails to establish that it had a mistaken
belief that he had done so, which led it to terminate him. Accordingly, I find that the General
Counsel has not established that union or other concerted protected activity on Melhorn’s part
was a motivating factor in his termination and, therefore, has not met his initial burden under
JD–53–07
5
10
15
20
25
30
35
40
45
50
10
Wright Line. I shall recommend that the complaint be dismissed.
Conclusions of Law
1. Respondent, Wegmans Food Markets, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
ORDER7
The complaint is dismissed in its entirety.
Dated, Washington, D.C. August 3, 2007
____________________
Richard A. Scully
Administrative Law Judge

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.