Weis Markets, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1998

325 N.L.R.B. 871 (N.L.R.B. 1998)

871
325 NLRB No. 162
MR. Z’S FOOD MART
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In footnote 5 of his decision, the judge questioned the validity of
the R. Exh. 6, a letter dated November 16, 1994, because the letter
in question cites a Board decision (Big Y Foods, 315 NLRB 1083
(1994)), which did not issue until December 21, 1994. In a motion
to reopen the record, contested by the General Counsel, the Re-
spondent seeks to introduce an earlier letter in which the Respondent
claims the cite to Big Y Foods is clearly a reference to the judge’s
decision in that case, which issued on July 22, 1994. This evidence,
according to the Respondent, would support its contention that the
reference to Big Y Foods in the November 16 letter was also in-
tended to be a reference to the judge’s decision in Big Y Foods.
The evidence that the Respondent seeks to introduce relates to an
allegation that the judge dismissed. No party has excepted to the dis-
missal. Thus, we do not rely on footnote 5 in reaching our decision
in this case. We deny the Respondent’s motion to reopen the record
to introduce the earlier letter as it is not material to the case before
us.
We grant the Respondent’s uncontested motion to reopen the
record to admit R. Exhs. 77, 78, and 79.
In adopting the judge’s conclusion, in sec. III,B of his decision,
that the Respondent unlawfully discharged Thomas Cahill, Member
Brame relies on Cahill’s credited statements and on the passage of
time between the incident and the decision to terminate him, but not
on the judge’s finding that, even if Supervisor Adamsky’s version
of the statements were credited, Cahill’s statements would still not
constitute a threat.
In addition, Member Brame does not rely on the judge’s alter-
native criticism, in sec. III,A,3,i of his decision, of some of the Re-
spondent’s witnesses for volunteering testimony that Zuba did not
make certain unlawful statements, and of its counsel for eliciting
similar testimony from others through leading questions. Member
Brame notes that these are the only methods of showing that a state-
ment was not made.
Member Brame also does not rely on the judge’s double inference,
in sec. III,A,3,iv of his decision, that ‘‘Zuba’s promise of a wage
increase during the January 23, afternoon meeting may have been
designed to remedy any harm his morning comments may have done
to his antiunion message,’’ or on the judge’s speculative statement
in footnote 44, involving the Respondent’s counsel’s examination of
Vice President for Operations Edward Rakoskie.
2 We note the judge’s analysis in sec. III,A,1 of his decision, find-
ing that the Respondent violated Sec. 8(a)(1) by prohibiting non-
employee organizers from distributing leaflets in front of three of its
stores and threatening to call and calling the police to evict them,
is consistent with our decision in Indio Grocery Outlet, 323 NLRB
1138 (1997).
The judge concluded, in sec. III,A,3 of his decision, that Manager
Zuba’s January 23, 1995 statements to the Tunkhannock employees,
including that the Union ‘‘could do nothing for them,’’ implicitly
and unlawfully conveyed the futility of selecting the Union as their
representative. In adopting this finding, we emphasize, as did the
judge, that these statements were contemporaneous with and linked
to Zuba’s unlawful threats to close the store and put employees out
of work if they voted to unionize.
We hereby modify the judge’s conclusion of law regarding the Re-
spondent’s unlawful filing of a criminal complaint against employee
Cahill. Inasmuch as the filing of the complaint did not concern the
‘‘hire or tenure of employment or any term or condition of employ-
ment,’’ we find that the Respondent’s action violated Sec. 8(a)(1) of
the Act, rather than Sec. 8(a)(3).
3 In accordance with our decision in Excel Container, Inc., 325
NLRB 17 (1997), we shall change the date in par. 2(e) of the
judge’s recommended Order from February 16, 1995 to January 23,
1995, the date of the first unfair labor practice.
Weis Markets, Inc. t/a Mr. Z’s Food Mart and
United Food and Commercial Workers Local
72. Cases 4–CA–23525, 4–CA–23775, and 4–
CA–23880
June 12, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On March 21, 1997, Administrative Law Judge
George Alemán issued the attached decision. The Re-
spondent filed exceptions and a supporting brief; the
General Counsel filed a brief in support of the judge’s
decision; the Charging Party filed an answering brief
to the Respondent’s exceptions; the National Retail
Federation (NRF) filed an amicus curiae brief in sup-
port of the Respondent; the General Counsel filed an
answering brief to the Respondent’s exceptions and the
NRF’s brief; and the Respondent filed a reply brief to
the General Counsel’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to adopt the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Weis
Markets, Inc. t/a Mr. Z’s Food Mart, Tunkhannock,
Plains, and Scranton, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(e).
‘‘(e) Within 14 days after service by the Region,
post at its stores in Tunkhannock, Plains, and Scranton,
Pennsylvania, copies of the attached notice marked
‘‘Appendix.’’50 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
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872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
*An erratum issued on March 21, 1997, to amend the decison to
reflect that the Respondent’s motion to correct the transcript was
granted.
1 All dates are in 1995, unless otherwise indicated.
2 Rule 615 states in relevant part that ‘‘At the request of a party
the court shall order witnesses excluded so that they cannot hear the
testimony of other witnesses and it may make the order on its own
motion.’’
3 There was no indication, for example, that Cahill, through signs,
facial expressions, or some other manner, provided assistance to the
General Counsel’s witnesses. See Impact Industries, 285 NLRB 5,
8–9 (1987). Further, allowing Cahill to remain in the hearing follow-
ing his testimony was fully consistent with the model sequestration
rule set forth in Greyhound Lines, 319 NLRB 554 (1995). Thus, in
relevant part, the rule states that ‘‘[a]lleged discriminatees, including
charging parties, may not remain in the hearing room when other
witnesses on behalf of the General Counsel or the charging party are
giving testimony as to events as to which the alleged discriminatees
will be expected to testify.’’ (Emphasiss added.) As Cahill had al-
ready testified, the above rule was not contravened.
business or closed the stores involved in these proceed-
ings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current and
former employees employed by the Respondent at any
time since January 23, 1995.’’
Carmen Cialino, Esq., for the General Counsel.
Robert Lewis, Esq. (Jackson, Lewis, Schnitzler & Krupman),
for the Respondent.
George Wiszynski, Esq. (Butsavage & Associates, P.C.), for
the Charging Party.
DECISION*
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. Pursuant to
charges, and amendments thereto, filed by United Food and
Commercial Workers Local 72 (the Union) on various dates
between February 16 and September 22, 1995,1 the Regional
Director for Region 4 of the National Labor Relations Board
(the Board) issued a consolidated complaint in this case,
which was subsequently amended on October 10, 1995, al-
leging that Weis Markets, Inc. t/a Mr. Z’s Food Mart (the
Respondent) had violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act (the Act). The Respondent
thereafter filed a timely answer to the amended Complaint
denying the commission of any unfair labor practices. A
hearing on the complaint allegations was held before me on
consecutive days from January 30 to February 5, 1996, in
Wilkes-Barre, Pennsylvania, during which all parties were af-
forded full opportunity to appear, to call and examine wit-
nesses, to submit oral as well as written evidence, and to
argue on the record.
On the basis of the entire record in this proceeding, in-
cluding my observation of the demeanor of the witnesses,
and after considering briefs filed by the Respondent, the
General Counsel, and the Charging Party, I make the follow-
ing
Finding on the Sequestration Order
At the start of the hearing, the General Counsel moved to
sequester all witnesses except for alleged discriminatee
Thomas Cahill, who was to serve as his representative to as-
sist him in the prosecution of the case. The Charging Party
and Respondent did not object to the sequestration of wit-
nesses. The Respondent, however, moved to have the exclu-
sion apply also to Cahill while the General Counsel’s wit-
nesses were testifying, and that its own witnesses should be
allowed to remain during the General Counsel’s presentation
of his case, citing as support therefor the Board’s holding in
Unga Painting, 237 NLRB 1306 (1978), and Rule 615 of the
Federal Rules of Evidence.2 The Respondent’s motion was
denied and, except for allowing each party to have a rep-
resentative present, all witnesses were ordered sequestered.
In its posthearing brief, the Respondent renews its argu-
ment that Cahill should have been sequestered and moves to
have his entire testimony stricken, contending that Cahill’s
presence in the hearing room while other General Counsel
witnesses testified tainted his testimony (R. Br. 89). The Re-
spondent’s argument is without merit. Cahill was the first
witness to testify in this proceeding, and as such had no op-
portunity to hear what other General Counsel witnesses who
followed him on the witness stand would have to say. His
testimony therefore could not have been tainted by testimony
he had not yet heard. The Respondent does not suggest, nor
did I observe or perceive anything in Cahill’s conduct or de-
meanor as he sat at the General Counsel’s table, to indicate
that Cahill’s mere presence in the hearing room tainted the
testimony of those General Counsel witnesses who succeeded
him to the witness stand.3
The Respondent further argues that because Cahill ‘‘was
a witness to testimony of General Counsel’s other witnesses,
[it] was prejudiced by the cumulative effect of the testimony
and its inability to elicit contradictory testimony,’’ and that
allowing Cahill to remain undermined a main purpose of the
sequestration rule, e.g., to provide a cross-examiner an op-
portunity to test the truthfulness of a particular witness who
does not know what to expect (R. Br. 89). To the extent it
argues that the failure to exclude Cahill somehow deprived
it of a fair opportunity to cross-examine Cahill or any other
General Counsel witness, that argument is without merit.
Cahill, as noted, was the first witness called to testify and
following his direct examination, was subjected to extensive
cross-examination by Respondent, as indeed were all of the
witnesses called by the General Counsel. The Respondent
does not explain how Cahill’s presence in the hearing room
affected its ability to cross-examine either Cahill himself or
any other General Counsel witness. The Respondent’s dis-
satisfaction with the answers it obtained during cross-exam-
ination of these witnesses, or its inability to elicit from them
the responses it anticipated or preferred can hardly be attrib-
uted to Cahill’s presence in the hearing room.
Finally, I see no connection, and the Respondent points to
none, between what the Respondent suggests is the cumu-
lative nature of the testimony provided by the various Gen-
eral Counsel witnesses and the fact that Cahill was not se-
questered. Clearly, as an alleged discriminatee in this matter
and having been the first called to testify, Cahill’s testimony
was essential and hardly cumulative. If its assertion is that
the testimony of the other General Counsel witnesses who
corroborated Cahill is cumulative, a claim I do not accept,
I nevertheless remain at a loss to understand how the cumu-
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873MR. Z’S FOOD MART
4 G.C. Exh. 1[y] amended the consolidated complaint by, inter alia,
substituting a new paragraph 5(b)(i-iv) which broadened par. 5 (b)
of the initial complaint to include the allegations that the Respondent
violated Sec. 8(a)(1) by telling employees it would be futile to sup-
port the Union (par. 5[b][ii]), urging an employee to resign (par.
5[b][iii]), and promising employees a raise to discourage their sup-
port for the Union (par. 5[b][iv]). A prehearing motion filed by Re-
spondent with the Board seeking dismissal of the above allegations
on grounds they are time-barred under Sec. 10(b) of the Act was de-
ferred to me for initial consideration and resolution (see G.C. Exhs.
1[ff]; 1[ll]). The Respondent renewed its motion to dismiss in its
posthearing brief. Having duly considered Respondent’s motion in
light of its prehearing supporting brief and an opposition brief filed
by counsel for the General Counsel (G.C.Exh. 1[kk]), I find the Re-
spondent’s claim to be without merit. The 8(a)(1) allegations in
question clearly meet the ‘‘closely related’’ test stated by the Board
in Redd-I, Inc., 290 NLRB 1115, 1118 (1988); see also, Nickles Bak-
ery of Indiana, 296 NLRB 927, 928 (1989). Said allegations, for ex-
ample, involve the same section of the Act as the allegation con-
tained in the charge filed in Case 4–CA–23525 on February 16 (see
G.C. Exh.-1[a], par. 5), and grow out of the same factual situation,
e.g., a January 23, mandatory employee meeting conducted by Re-
spondent’s manager, Zuba, during which he allegedly made the un-
lawful statements described in the charge and the amended com-
plaint paragraph 5(b)(i-iv). Given these facts, and as the Respond-
ent’s defense to the allegation that it threatened to close the stores
was similar to that asserted with respect to the allegations not con-
tained in the original charge, I find that a sufficient nexus exists be-
tween the allegations in the initial charge and that contained in the
October 10, amendments to the Complaint. Hamilton Plastic Prod-
ucts, 309 NLRB 678, 683 (1992). Accordingly, Respondent’s motion
to dismiss is denied.
lative nature of the testimony is relevant to the question of
Cahill’s sequestration. In any event, on the issue of the cu-
mulativeness of testimony adduced at the hearing, I note that
the number of witnesses called by Respondent to refute
Cahill’s testimony far exceeded that used by the General
Counsel in support of Cahill’s testimony. In summary, as-
suming arguendo that the failure to exclude Cahill was some-
how improper under Unga Painting, the Respondent has not
shown that it was in any way prejudiced by the failure to
do so. Boilermakers (Triple A South), 239 NLRB 504 fn. 1
(1978); Impact Industries, supra. Finally, I find no support
in the language of Rule 615 of the Federal Rules of Evidence
or Board law for the proposition that a general sequestration
order should not apply to the witnesses of one side while
witnesses for the other side are testifying.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation with its main
office in Stroudsburg, Pennsylvania, is engaged in the retail
sale of food and other items at stores located throughout
Pennsylvania, New York, Maryland, Virginia, and West Vir-
ginia. Of the various stores found within the Commonwealth
of Pennsylvania, one is located in the Village Center Shop-
ping Center in Tunkhannock, Pennsylvania (the Tunkhannock
store), another on River Road, in Plains, Pennsylvania (the
Plains store), and one on Washington Avenue in Scranton,
Pennsylvania (the Scranton store). During the past calendar
year, the Respondent, in the course and conduct of its busi-
ness operations, derived gross revenues in excess of
$500,000, and purchased and received at its Pennsylvania
stores goods valued in excess of $50,000 directly from points
and places located outside the Commonwealth of Pennsyl-
vania. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. It further admits, and I find,
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations
The complaint as amended alleges that the Respondent
violated Section 8(a)(1) of the Act by:
(1) Threatening to close its stores, discontinue plans to ex-
pand, and eliminate jobs if employees were to choose the
Union as their bargaining representative; telling employees it
would be futile to support the Union because it could do
nothing for them, promising them a raise in order to dissuade
them from supporting the Union; and telling Cahill he should
resign and go on welfare (see G.C. Exh. 1[y]).4
(2) Promulgating a no-solicitation rule prohibiting non-
employee Union organizers from soliciting or distributing lit-
erature on the parking lots adjacent to its stores, and threat-
ening to have them arrested and calling the police when they
refused to do so.
(3) Threatening to reduce employee work hours in order
discourage employees from engaging in Union or other pro-
tected activity.
(4) Telling employees they cannot wear union buttons to
work.
It is further alleged that the Respondent violated Section
8(a)(1), (3), and (4) of the Act by discharging employee Tom
Cahill because of his support for the Union and for having
given a sworn affidavit to the Board, and by filing a criminal
complaint against him with the Pennsylvania State Police.
B. The Relevant Facts
The record reveals that in December 1992, Weis Markets
purchased some 14 stores, including the Tunkhannock,
Scranton, and Plains stores, from IGA Food Mart, Inc., pre-
viously owned and operated by Stanley Zuba, Respondent’s
current manager. As owner/operator of IGA Food Mart, Zuba
had maintained an open policy regarding the solicitation and
distribution by various nonprofit and charitable groups at his
stores. Weis Markets, on the other hand, had long maintained
a strict no-solicitation policy at its stores. Thus, with the sale
of his stores and his assumption of the duties as Weis’ gen-
eral manager for Mr. Z’s, Zuba was obligated to adhere to
Weis’ policy, including its no-solicitation rules. However, al-
though Weis assumed control over the IGA stores in 1992,
by the summer of 1994, Zuba had not implemented Weis’
no solicitation/no distribution policy at the Tunkhannock,
Scranton, and Plains stores. In fact, only after union literature
and authorization cards began appearing at one of the stores
in the summer of 1994 was implementation of Weis’ no-so-
licitation policy raised for the first time with Zuba by Weis’
labor counsel, Robert Lewis. According to Zuba, Lewis
‘‘strongly advised’’ him to change his open policy of allow-
ing solicitation at his stores, and in a letter purportedly sent
to him on November 16, 1994, explained how a supermarket
chain in Michigan (Meijer) had been required by the Board
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874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 While dated November 16, 1994, R. Exh. 6 makes reference to
a Board decision in Big Y Foods, 315 NLRB 1083 (1994), which
issued on December 21, 1994, after Lewis purportedly mailed the
letter to Zuba. The Respondent’s failure to explain this inconsistency
leads me to question the circumstances and the motivation surround-
ing the preparation of R. Exh. 6.
6 David Davis manages the Tunkhannock store, Robert Stefanko
the Plains store, and Robert Stair the Scranton store.
7 Brown drew a distinction between Respondent’s right of control
over the sidewalk and parcel pickup areas, and its right over the
parking lot. Thus, he testified that Respondent has a ‘‘property inter-
est’’ in the sidewalk and pickup areas, but maintains only an ‘‘ease-
ment’’ right to the parking lot. The key distinction between the two,
according to Brown, is that Respondent lacks the authority to ex-
clude others, e.g., customers of other shopping center tenants, from
the easement, but inferentially may do so with respect to those areas
over which it retained a property interest. Despite Brown’s attempt
to portray himself as being sufficiently knowledgeable of Respond-
ent’s property rights and as having familiarity with such concepts as
property interests and easements, I seriously doubt he is as knowl-
edgeable as he made himself out to be. In this regard, I note that
Brown claimed that the parking lot easement went only as far as
‘‘where the lines demarking the beginning parking field begin.’’
When asked by the General Counsel if the drive-through area be-
tween the parking lot and the store’s pickup area was part of Re-
spondent’s ‘‘property interest’’ or considered part of the ‘‘ease-
ment,’’ Brown with some hesitancy labeled it a ‘‘cross easement.’’
(Tr. 432; 600–602.) I found Brown’s testimony in this regard uncon-
vincing. From his demeanor, I was left with the impression that he
was conjuring up these explanations as he went along. Nor, as will
be noted infra, is this the only instance in which Brown’s testimony
can be called into question. Overall, Brown’s testimony is found to
be lacking in candor.
8 During cross-examination, Brown testified, somewhat incredibly
in my view, that the parking lot sign was not really needed as the
cardboard sign posted at the stores in January would have been suf-
ficient to put the public-at-large on notice that the restriction on so-
licitation applied not only to the store itself but also to the common
areas of the shopping center including the sidewalk, the parcel pick-
up area, and the parking lot. Brown’s testimony in this regard simply
makes no sense, and I sincerely doubt that he himself believed what
he was saying. Clearly, if the cardboard no-solicitation sign placed
on the store window in January could by some stretch of the imagi-
nation be construed as applying to all the common areas of the shop-
ping center, then there would have been no need for Respondent to
post the metal no-solicitation sign at the parking lot. While Brown
explained that the purpose of putting up two distinct signs, one in
the parking lot and the other in the store, was ‘‘so that there’s abso-
lutely no confusion with any layman,’’ I place no credence on his
explanation.
to allow union picketing on its premises because of its prac-
tice of allowing solicitation by other groups (R. Exh. 6).5
Following discussions with Weis’ president, Norman Rich,
Zuba agreed to implement Weis’ no-solicitation policy at the
Mr. Z’s stores. However, because of the approaching Christ-
mas holidays, and because Zuba served as chairman of the
board for the area chapter (Monroe County) of the Salvation
Army, actual implementation of the no-solicitation policy
was delayed until January 1995 so as to afford the Salvation
Army a last opportunity to engage in fundraising at his stores
during the holidays.
Respondent’s general manager, Jeffrey Brown, testified
that on January 3, he prepared cardboard signs that read,
‘‘SOLICITING IS NOT ALLOWED ON THESE PREMISES’’ which
he immediately sent to all stores and which were posted ei-
ther on January 3 or 4. Brown claims he personally called
each store manager to explain the new policy,6 and instructed
them that should they receive a request to solicit, they should
direct the organization involved to address their request in
writing or by phone to one Loretta Matthews, a secretary
employed at Respondent’s headquarters in Stroudsburg,
Pennsylvania. According to Brown, the new policy was ap-
plicable to the stores, the sidewalk and parcel pickup areas
adjacent to the stores, and the portion of the parking lot
fronting the store. He admits that permission was never ob-
tained from the owners or landlords of the shopping centers
to restrict solicitation in the above areas, claiming that Re-
spondent had a right to do so pursuant to a ‘‘property inter-
est’’ arising from ‘‘our maintenance of the property and our
liability for any problems which occur on that property.’’
(Tr. 389.)7 On or about March 13, the Respondent posted
metal no-solicitation signs in the shopping center parking lots
which read: ‘‘SOLICITATION, DISTRIBUTION OF LITERATURE
OR TRESPASSING BY NON-EMPLOYEES ON THIS PARKING LOT
IS PROHIBITED. MR. Z’S FOOD MART’’ and replaced the card-
board signs posted on January 3, with metal signs identical
to the ones posted in the parking lots, except that the words
‘‘parking lot’’ were replaced with ‘‘premises.’’8
Cahill began working for Respondent as a third shift stock
clerk at the Tunkhannock store on June 16, 1994. He testi-
fied, without contradiction, that sometime in the fall of 1994,
during the change from daylight savings time to standard
time, he and other employees who worked the extra hour as
a result of the time change were told they would have to
wait until the spring of 1995 to be compensated for the extra
hour. Dissatisfied with Respondent’s decision to withhold
such payment, Cahill visited the Union’s office on about No-
vember 3, 1994 and after speaking with Union Representa-
tive Michelle Kessler signed a card authorizing the Union to
represent him for purposes of collective bargaining (G.C.
Exh. 3). Cahill testified that about 2 months later, while in
the employee breakroom, he told other employees that he
had signed a card for the Union. He further testified, without
contradiction, that Mark Adamsky, the Tunkhannock store
assistant night manager, an admitted Section 2(11) super-
visor, was seated at the table next to the employees when he
informed them of his card signing. Cahill subsequently solic-
ited Tunkhannock store employees Lou Burroughs, Tom Mil-
ler, and Sue Bonavita to sign authorization cards. He further
testified, without contradiction, that soon thereafter Adamsky
began referring to him as ‘‘Union boy’’ (Tr. 99). Miller like-
wise testified without contradiction that he often heard
Tunkhannock assistant store manager, Richard Kern, an ad-
mitted Section 2(11) supervisor, as well as Adamsky, often
refer to Cahill as ‘‘Mr. Union.’’
In early January, the Union began mailing literature and
blank authorization cards to the homes of Respondent’s em-
ployees describing its organization and soliciting their sup-
port (G.C. Exh. 4). Some of this literature wound up in the
hands of the various store managers who turned it over to
Brown. Brown, in turn, forwarded the union literature to At-
torney Lewis who advised Respondent to begin a mailing
campaign of its own. On January 14, the Respondent sent a
letter to all employees, largely prepared by Lewis, referenc-
ing the authorization cards being sent to them by the Union
and explaining, in question and answer form, why they
should not sign cards (G.C. Exh. 5). Further, following con-
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875MR. Z’S FOOD MART
9 The organizers learned of the scheduled meeting from Kessler
who had been informed by Cahill soon after notice of the meeting
had been posted in the store.
10 The record reflects that Chincola may have first entered the
store to purchase a beverage. No contention has been made here that
Chincola engaged in solicitation inside the Plains store.
sultations with Lewis, Zuba decided to conduct mandatory
employee meetings at all Mr. Z’s stores beginning January
23, because as Zuba put it, he wanted to ‘‘stress our part of
the case, to explain our situation and our position, of what
would happen.’’ (Tr. 231; 1023). One week prior to the
meeting, Tunkhannock Store Manager Davis posted a notice
near the employee timeclock informing employees that the
mandatory meeting was to be held at 7 a.m. and 4 p.m., on
January 23.
Cahill and approximately 20 other employees, including
Burroughs, Miller, Bonavita, and employees Sherry Metz,
John Swick, Stella Sands, and Shirley Dymond, attended the
7 a.m. meeting. In attendance for management were Zuba,
Davis, Kern, Adamsky, Tunkhannock Assistant Store Man-
ager Vito Rinaldi, and Night-Shift Foreman, John Baliant.
While there is no disputing that Zuba was the only individual
to address the employees and that the Union was the focal
point of the meeting, the General Counsel’s and Respond-
ent’s witnesses disagree on exactly what Zuba said to em-
ployees at the 7 a.m. meeting. As to the 4 p.m. meeting held
later that day, the evidence indicates that Zuba again was the
sole speaker and that the subject matter likewise centered on
the Union. The specifics of both meetings are more fully dis-
cussed infra in connection with my findings on the 8(a)(1)
allegations.
Following the 7 a.m. meeting, Cahill went outside and
began talking to union organizers John Chincola and Ken
Corasic who were handing out literature to employees as
they exited the store.9 According to Chincola, he and Corasic
stationed themselves in the parking lot near the pickup area
in front of the Tunkhannock store, some 10–15 feet from its
entrance. Chincola testified that a short while later, Kern
came outside, asked them if there was a problem, and when
told there was none, went back inside the store. Cahill, how-
ever, testified that while he was outside talking to Chincola,
he noticed Kern standing by the store window, that Kern
then came outside and ‘‘told us that he would like all of us
to leave the property,’’ and that they refused to do so (Tr.
54). According to Cahill, Zuba appeared shortly thereafter
and asked if the organizers were bothering him, to which
Cahill responded they were not. Zuba then told Chincola and
Corasic to leave or he would call the police. Except for hear-
ing Zuba ask Cahill if the organizers were giving him any
problems, Chincola agrees with Cahill that Zuba directed
them to leave the property under threat of arrest. Zuba’s ac-
count of this incident is that on observing Cahill talking to
the organizers, he informed the latter not to bother Cahill and
instructed them to leave the property. He claims that the or-
ganizers at this point were standing on the parking lot side
of the ramp leading up to the sidewalk adjacent to the store
(see R. Exh. 76). Despite some minor variances in their ac-
counts, I credit a composite version of Cahill’s and
Chincola’s testimony as to what occurred and find that Zuba
inquired of Cahill if the organizers were bothering him, and
that Zuba, as Kern had done moments earlier, ordered the or-
ganizers off the property under threat of arrest. I also credit
Chincola that he and Corasic were not on the sidewalk but
were instead leafleting on the parking lot near the parcel
pickup area of the store. It is undisputed that the organizers
left shortly thereafter.
Later that afternoon at approximately 4:30 p.m., following
a similar meeting at the Scranton store, Chincola began
handing out leaflets to Scranton store employees from the
parcel pickup area of the store’s parking lot. Approximately
1 hour later, James Dohlon, the Scranton store’s grocery
manager, came out and told him he did not belong there, that
he was on private property, and unless he left the police
would be called. Chincola refused to do so, at which time
on Dohlon’s instructions the local police were called and ar-
rived some 15 minutes later. Chincola testified, without con-
tradiction, that Zuba arrived at about the same time as the
police and said to him, ‘‘Charlie, I thought I told you this
morning, get the hell out of here. You’re trespassing. You’re
on private property, and I’m going to have you arrested.’’
Chincola responded that his name was not ‘‘Charlie’’ but
rather John Chincola. After looking at the union literature
being distributed and checking Chincola’s identification, the
police officer told Chincola he could only leaflet at the shop-
ping center’s entrances and exits, but could not do so in front
of the store. He warned that if Chincola persisted, he could
be arrested. At that point, Chincola opted to leave.
On January 24, Chincola, on learning that a mandatory
employee meeting was to be held that day at the Plains store,
began leafleting employees as they entered and exited the
store. He was accompanied this time by Kessler and Union
President Thomas Lazur. While Chincola and Kessler sta-
tioned themselves at the parcel pickup area which abuts the
sidewalk adjacent to the store, Lazur stood on the sidewalk
itself.10 Soon thereafter, Plains’ store manager Stefanko ap-
proached them and stated, ‘‘Get out of here, you’re on pri-
vate property; we’re going to call the police.’’ When
Chincola, Kessler, and Lazur declined to leave, Stefanko di-
rected a store clerk to call the police. A short while later,
the Plains township chief of police appeared and asked
Chincola what was going on, that he had received a call
about a disturbance at the store. After some discussion the
police officer took the organizers’ names, addresses, and
phone numbers, and then asked Stefanko and Dohlon if they
were ‘‘aware of the NLRA.’’ According to Stefanko, the po-
lice officer seemed annoyed at having been called, called the
incident an insignificant event, told him he could not remove
the union representatives from where they were, and left.
Soon thereafter, Zuba appeared and ordered them to leave,
stating that they were on private property, and threatened to
call the police and have them arrested. Chincola credibly tes-
tified that while other employees were milling around, Zuba
quipped, ‘‘what did the Union do for Giant, what did the
Union do for Acme people; they are all out of jobs.’’
Stefanko, who by now had reappeared, then asked Chincola
why he did not get a job, to which Chincola replied, ‘‘I have
a job, a real job, a Union job.’’ The exchange ended at that
point. Chincola claims that after this encounter, employees
stopped taking literature from him and the other organizers.
On January 25, according to Kern, when he reported for
work he found the store in a state of disarray, with cardboard
strewn all over the aisles and the shelves not properly
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876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 In its posthearing brief, the Respondent claims that it was error
to deny his request to have ‘‘portions of the book’’ included as evi-
dence (Tr. 905), because the book was needed to show that Cahill
had in fact threatened Adamsky with a car bomb and had the ability
to construct such a bomb and carry out the threat (R. Br. pp. 96–
97). I note in this regard that Respondent sought to introduce the
entire book, not mere portions of it, into evidence, and its assertion
to the contrary is clearly without merit (see Tr. 79–80; 902; 903–
905). Further, I declined to receive the book into evidence on rel-
evancy grounds, as argued by the General Counsel and the Charging
Party (Tr. 903–905), not because of the size of the book. However,
ignoring my ruling that the book is not considered evidence in this
proceeding, the Respondent in its posthearing brief has taken the lib-
erty, in my view improperly so, of including portions of the rejected
‘‘bomb book’’ exhibit as part of an appendix to its brief, and cites
to it in presenting its arguments (R. Br. 83, Appendix Exh. ‘‘S’’).
Respondent’s counsel, Lewis, an experienced practitioner in the field
of labor law, must certainly be aware of the impropriety of such
conduct. I place no reliance and have not considered arguments
based on that rejected exhibit, nor have I considered the various
bomb-related newspaper articles included in the appendix (Exhs. T-
Z) as they too have no bearing on the question of whether or not
Cahill threatened Adamsky.
stocked. That same day, he held a meeting in a backroom
of the store to discuss the store’s condition. At the meeting,
he complained to employees that he was dissatisfied with
their work, and further mentioned that the night shift was in
need of additional checkers (or cashiers) due to some res-
ignations. On the latter point, he made it clear to employees
that the store did not have the budget to fill the two checker
slots and that volunteers would be needed to perform the
checking duties. Kern readily admits telling employees that
if he could not obtain employees to volunteer to cross-train
into the checker positions, he might have to reduce their
work hours presumably to come up with the funds needed
to hire two additional checkers. Kern further admits to hav-
ing a conversation with Adamsky in the juice aisle in which
he told Adamsky that ‘‘this crap has to stop’’ referring to the
employees’ slow pace. Adamsky confirmed Kern’s testimony
about having made the ‘‘crap’’ remark. On this same subject,
employee Miller recalled being at a meeting, presumably the
one alluded to by Kern, and to having heard Kern complain
that the shelves had not been pulled properly, the freight
hadn’t been put up, and that ‘‘if we didn’t start working
harder, that he was going to hire more people and cut our
hours.’’ Cahill claims to have overheard the conversation be-
tween Kern and Adamsky in the juice aisle and that he heard
Kern say, ‘‘if this crap doesn’t stop, we’re going to cut the
hours and bring in our own guys.’’ Cahill claims Miller was
standing nearby, but did not hear the conversation between
Kern and Adamsky, although he did not explain how he
would know what Miller did or did not hear. Miller makes
no reference to the Adamsky/Kern discussion in the juice
aisle, and in fact it is not clear whether he was standing
nearby as suggested by Cahill. By the same token, Miller
could not recall if Cahill was present at the above-described
employee meeting called by Kern, and Cahill was not asked
if he attended any such meeting. He further claims that by
the time Kern arrived to work on the morning of the meet-
ing, all the new freight had been shelved and employees
were working on shelving the old freight that was in the
storeroom.
Beginning sometime in March and on instructions from
Respondent’s attorney Lewis, the Respondent, in response to
the charges filed by the Union in February, directed the four
Tunkhannock store managers (Davis, Kerns, Dudek, and
Rinaldi) to maintain a daily log of any unusual events or ac-
tivities occurring at the store (see G.C. Exh. 7, p. 8). Davis
gave conflicting testimony as what the log was to be used
for. Thus, while testifying that the log was intended to record
anything unusual that happened at the store, whether union
related, he also testified that his instructions were to record
any union activity taking place at the store. However, the
fact that the log is labeled ‘‘Union Activity’’ and that the
only entries contained therein appear to be Union related (in-
cluding the March 29, incident that led to Cahill’s eventual
discharge), I am convinced that the sole purpose of the log
was to keep a record of the employees’ union activities at
the store. My finding in this regard is supported by the fact
that the ‘‘Union Activity’’ log makes no reference to other
incidents that allegedly occurred sometime in March and
which presumably would have been recorded if the log had
a more general purpose (see fn. 12, infra).
Beginning sometime in April, Cahill began wearing a
prounion button to work (G.C. Exh. 6). The first day he wore
the button, Store Manager Davis asked him to remove it.
When Cahill asked why, Davis responded that the store had
a no-solicitation policy. Cahill responded that he was not so-
liciting and that every employee had a right to wear a union
button. Davis then instructed him to remove the button until
after the Respondent’s attorneys were consulted. Cahill
claims that the next day he was allowed to resume wearing
the button, but that soon thereafter Dudek instructed him to
remove it. Cahill explained to Dudek that Davis had ap-
proved his wearing of the button beginning that day. Dudek
thereafter allowed Cahill to continue wearing the button, and
no further incidents regarding the button occurred after that.
At around 4 a.m. on March 29, Cahill was performing his
normal duties restocking shelves when he began a conversa-
tion with employee Burroughs who was also busy restocking
shelves in the next aisle over. Cahill and Burroughs were
separated by the tall shelve or gondola on which the grocery
items are displayed. During this conversation, Cahill men-
tioned to Burroughs that his younger brother had obtained a
book on how to make car bombs entitled, ‘‘THE POOR MAN’S
JAMES BOND,’’ told him he did not care for such books, and
that it was ridiculous that such a book would be for sale.
Cahill testified that Adamsky, who was at the other end of
his aisle restocking shelves, could not have overheard what
he said to Burroughs, and denies that Adamsky took part in
his conversation with Burroughs, or spoke to him regarding
his work or the substance of what he may have said to Bur-
roughs. Burroughs essentially corroborated Cahill’s account
of their discussion of the car bomb book, testifying that there
was no discussion regarding anything specific in the book,
that Cahill expressed his objection to the book, and that
Adamsky was not a participant in the conversation.11
Adamsky provided a slightly different, and in my view,
confusing an unconvincing version of what occurred on
March 29. Adamsky agrees that Cahill and Burroughs were
engaged in a conversation while stocking shelves, and that
Burroughs was in the next aisle separated from Cahill by
shelves. He claims that he too was stocking at the time and
was only 4-1/2 feet from Cahill when he heard Cahill men-
tion to Burroughs that he and his brother had gotten a book
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877MR. Z’S FOOD MART
12 The incidents in question involved reports by employee Sands
that sometime in March, she found a sexually suggestive display in
the produce department where she worked, found puncture marks on
the tires of her car, and found the temperature thermostat on a
produce wrapper heat unit turned up all the way, which potentially
could have started a fire in the store, along with a destroyed roll of
plastic film used with the unit to wrap the produce. Sands claims
that these incidents were reported in March to Davis, Rinaldi, and
Produce Manager John Weron. These incidents were not recorded in
the ‘‘Union Activity’’ log which Respondent claims was to be used
to report incidents of an unusual nature. Other incidents alluded to
by Brown included loosened tire lugnuts discovered on Rinaldi’s car,
and writing on a bathroom stall reading, ‘‘John, the next time the
dent is in your head, not in your car.’’ According to Brown, Produce
Manager Weron purportedly told him he had discovered a dent on
his (Weron’s) car, and that the comment on the bathroom stall was
a reference to the dent in the car. Regarding the latter two incidents,
Rinaldi, who testified at the hearing, was not questioned about the
lugnut incident and consequently did not confirm Brown’s testimony
that such an incident occurred (Tr. 538–542). Weron was not called
as a witness in this matter, and Brown’s testimony regarding the
Weron incident amounts to nothing more than unsubstantiated hear-
say. As to the remaining incidents testified to by Sands, I am not
thoroughly convinced that such incidents occurred. Thus, while she
claims she reported these incidents to Davis, Rinaldi, and Weron, the
former two, both of whom testified, were not asked to confirm
Sands’ testimony in this regard, and Weron, as noted, was not called
to testify. Nor is there any evidence to suggest that if these incidents
did in fact occur, they were ever investigated by Respondent. Indeed,
even if I were to accept as true Brown’s assertion that these inci-
dents in fact took place, his testimony suggests that these incidents
first became a subject of discussion only when Respondent was pur-
portedly deciding how to handle the alleged Cahill-Adamsky inci-
dent.
on car bombs. Adamsky testified that as Cahill and Bur-
roughs continued talking, he went around the corner to the
next aisle to see where Burroughs was standing, and then re-
turned to Cahill’s aisle and continued stocking shelves. On
observing that Cahill was still talking with Burroughs,
Adamsky purportedly told Cahill, ‘‘Tom, I put you here to
work, you are gabbing like a politician.’’ Under cross-exam-
ination, Adamsky changed his testimony claiming that he
made his ‘‘politician’’ remark before overhearing Cahill tell
Burroughs about the car bomb book. In his modified version,
Adamsky purportedly heard Cahill make his remark about
car bombs, and became very frightened because, according to
Adamsky, Cahill was looking directly at him and seemed
very mad. Adamsky claims he then asked Cahill if he was
threatening him, and that Cahill did not respond but simply
walked away with a mad look on his face. Adamsky testified
that the following day, he reported this incident to Kern, and
on March 31, reported it to Davis who recorded it in the
‘‘Union Activity’’ log (G.C. Exh. 7, p. 8). Kern, who testi-
fied in this matter, was not asked about and consequently did
not confirm Adamsky’s assertion that the latter reported the
incident to him on March 30. Davis, on the other hand,
agrees that Cahill informed him of the incident on March 31,
and testified that he viewed Cahill’s mere comment that ‘‘he
had a book on car bombs’’ as ‘‘a very serious threat to
Adamsky . . . because with the way things are today, I
mean, you hear all this stuff going on, I mean, all these
bombings and that, all these threats, I mean, that’s serious.’’
On or about April 4, Davis purportedly reported the incident
to Brown. When asked if he considered separating Cahill
from Adamsky in light of the alleged threat, Davis claims he
did not consider it and in any event lacked independent au-
thority to do so, and could only recommend to higher author-
ity that such a personnel change be made. He admits, how-
ever, that he made so such recommendation to higher man-
agement. Given his position as the manager of the
Tunkhannock store, Davis’ claim that he lacked authority to
transfer either Cahill or Adamsky to another shift, is simply
beyond belief. Moreover, even if true, no explanation was
proffered as to why Davis, who claims he viewed Cahill’s
remarks as a ‘‘very serious threat to Adamsky, did not seek
permission from higher management to effectuate a change
in the work assignments of either of these two individuals.
The only reasonable inference that can be drawn is that the
incident was not as serious as Davis would have one believe.
Following the March 29, incident, Cahill, as noted, contin-
ued working alongside Adamsky without further incident,
and the issue of the car bomb comment was never discussed
with Cahill or Burroughs, or for that matter raised again until
April 29, when Cahill was discharged. Regarding the dis-
charge, Brown testified that on April 27, he met with Zuba,
Attorney Lewis, Respondent’s president (Mr. Rich), its vice
president for operations Ed Rakowski, and Mike Ream, the
former and since retired operations vice president. According
to Brown, the purpose of the meeting was to discuss what
to do about the ‘‘threats and the vandalism that was occur-
ring in the store.’’ (Tr. 542.) The threat alluded to was the
comment Adamsky claims was directed at him by Cahill on
March 29, and the alleged acts of vandalism pertained to in-
cidents purportedly reported by employee Sands.12 Brown
testified that Cahill’s remark was of paramount concern to
Respondent because it occurred just a few weeks after the
bombing of the federal building at Oklahoma City, and be-
cause of the potential liability that would be imposed on Re-
spondent should a bomb threat be carried out. Brown claims
that on Lewis’ advice, he agreed that both would meet with
Adamsky to ‘‘affirm the situation,’’ and that if Adamsky
were to confirm the March 29, incident, the Respondent
‘‘would have grounds for taking action’’ against Cahill (Tr.
544). On April 28, Brown met with Adamsky who ‘‘affirmed
. . . what he had reported before’’ regarding Cahill’s alleged
threatening remark. Brown testified that he asked Adamsky
whether he wanted to report the matter to the proper authori-
ties, and that the latter agreed to do so, but asked that Zuba
and Respondent’s Director of Security, Theodore Poltruck,
accompany him. Adamsky’s version, however, reflects that
Brown did not simply ask whether he wanted to report the
matter to the police but rather ‘‘told me that I should report
this to protect myself.’’ (Tr. 1021.)
On April 29, Brown and Rinaldi met with Cahill. Accord-
ing to Brown, who had never met Cahill, he introduced him-
self to Cahill, informed him that Adamsky had reported that
he (Cahill) ‘‘had a book on car bombs and that he had gotten
that book on car bombs, and that Adamsky had taken this
as a threat.’’ (Tr. 546.) Brown claims Cahill admitted having
received the book in the mail, that he and Burroughs dis-
cussed the book on March 29, but that it was not intended
as a threat. Cahill mentioned to Brown that Adamsky could
not have heard him as he was at the other end of the aisle.
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878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Trooper Jordan had already interviewed Adamsky, Zuba,
Poltruck, and Brown. Because Jordan knew Cahill, the matter was
reassigned to Filarsky to avoid a conflict of interest.
Brown claims he then asked that if this was so, ‘‘why did
Mark ask you if this was a threat?,’’ and that Cahill simply
declined to answer. Brown’s testimony does not reflect any
admission by Cahill that he and Adamsky engaged in any
such conversation on March 29. Brown purportedly decided
to discharge Cahill at that point because he ‘‘admitted to me
that he had made those statements about making a car bomb,
about having a book on making car bombs, and on what
Adamsky had told me and the fact that Adamsky felt fear,
he was scared and so on and so forth.’’ (Tr. 547.) According
to Brown, given the recent Oklahoma City bombing, he took
such matters very seriously. He then instructed Cahill to
punch out and leave the store. Brown did recall hearing
Cahill protest that having such a book was part of his free
speech rights, but denied that Cahill criticized or expressed
opposition to the book.
Cahill’s version of this meeting is slightly different. He
claims that on April 29, Brown and Rinaldi met him in the
lobby of the store, and that Brown told him that he was
being terminated because he had threatened an employee
about a month earlier. When Cahill asked what threat he was
alleged to have made, Brown mentioned that Adamsky had
overheard Cahill discussing the bomb book with another em-
ployee, and that when Adamsky came over to ask Cahill if
he was threatening him (Adamsky), Cahill had not responded
and simply walked away. Cahill explained to Brown that the
incident as described by Adamsky had never happened, and
while admitting he and another coworker had talked about
the car bomb book, Adamsky was not the subject of or took
part in the conversation. According to Cahill, Brown told
him that ‘‘in lieu of the Oklahoma bombing, that such a trag-
edy like this happened, we don’t want it to happen to our
store and our employees here.’’ Brown again repeated that
Cahill was being terminated and was told he was no longer
allowed in any of Respondent’s stores. Rinaldi, according to
Cahill, remained only 4 or 5 feet away during this entire
conversation (Tr. 67–69).
On May 1, Adamsky, accompanied by Zuba and Poltruck,
went to the Tunkhannock state police barracks to report
Cahill’s alleged bomb threat. A complaint was thereafter
filed with state trooper Thomas Jordan accusing Cahill of
having made a ‘‘terroristic threat’’ toward Adamsky (G.C.
Exh. 7). Trooper Filarsky testified he took over the investiga-
tion after the initial report was prepared by Jordan,13 and
continued the investigation by interviewing Cahill and Bur-
roughs and obtaining an affidavit from the Union’s attorney
stating its view on the matter. After reviewing all the infor-
mation, Filarsky concluded there was no evidence to show
that Cahill had threatened Adamsky in any manner, or that
a crime had been committed. In concluding that no threat
had been made, Filarsky took into account Adamsky’s ad-
mission in the incident report that ‘‘he didn’t know if he was
threatened or not,’’ the fact that Cahill and Adamsky contin-
ued working side by side following the March 29 incident,
and the fact that Respondent waited 30 days before reporting
the matter to the state police. For these reasons, as well as
a lack of evidence to support the criminal charge filed
against Cahill, Filarsky concluded that the entire complaint
was ‘‘unfounded,’’ noting that the decision from his point of
view was a fairly easy one to make (Tr. 140).
Adamsky testified that following Cahill’s discharge, he
continued to be harassed and threatened presumably by other
employees. Adamsky, for example, testified to several inci-
dents all of which he claims made him fear for his physical
safety. Thus, he claims that on May 12, he found the phrase
‘‘stupid employees must go’’ written on a sign posted in the
men’s room, and came across a sign in the employee
breakroom on which was placed an article from ‘‘The Citi-
zens Voice,’’ a local newspaper, over which someone had
written ‘‘You’ll pay for your lies’’ with Adamsky’s name
written above it. Adamsky claims Shift Foreman Baliant also
saw the newspaper article, and that he (Adamsky) reported
these incidents, although he did not explain to whom, be-
cause he was convinced someone wanted him out of the
store. Baliant did not testify in this proceeding. Adamsky
claims to have found another threatening message involving
an article from the ‘‘New Age Examiner’’ which discussed
the store’s labor problems and over which someone had writ-
ten, ‘‘Mark, you’ll pay for your lies.’’ He claims he also
found a cash register receipt on which someone had sketched
a crude picture of an explosive, e.g., dynamite, ‘‘cherry
bomb,’’ etc., with the word ‘‘Boom’’ next to it. Adamsky
again took this as a personal threat, and claims that he re-
ported these latter incidents to Kern as well as to an
unnamed security guard. Kern, who testified at the hearing,
was not asked about and consequently did not corroborate
Adamsky’s testimony in this regard. Other incidents men-
tioned by Adamsky as having added to his overall fear that
he might be harmed included his discovery of a calendar
with the date January 18, 1996, encircled with ‘‘D-Day, ha,
ha’’ written next to it; his discovery of a piece of scrap paper
in a store shopping cart containing an inverted star with the
numbers ‘‘666’’ written in it; and a sign placed on an em-
ployee bulletin board on January 30, 1996 (SuperBowl Sun-
day), on which someone had purportedly written, ‘‘the truth,
the whole truth, and nothing but the truth’’ and ‘‘here comes
the judge.’’ Again, Adamsky claims that these latter inci-
dents served to increase his fear of bodily harm.
III. DISCUSSION AND FINDINGS
A. The 8(a)(1) Conduct
1. The evictions and threats to arrest
nonemployee organizers
As noted, on January 23 and 24, union organizers began
leafleting in front of Respondent’s Tunkhannock, Scranton,
and Plains stores. On each occasion, the organizers were or-
dered to leave the property and threatened with arrest if they
did not do so. At the Tunkhannock store, organizers
Chincola and Corasic opted to leave before the police were
called. However, at the Scranton store Chincola did not leave
when asked to do so at which point the police were sum-
moned. After being told he would be arrested if he did not
move his activities to the entrance and exits of the shopping
center, Chincola left. At the Plains store Chincola, accom-
panied by Kessler and Lazur, again refused to leave and the
police were likewise called, but declined to get involved.
The General Counsel contends that the eviction of the or-
ganizers from the stores’ parking lots and the accompanying
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879MR. Z’S FOOD MART
14 The Eighth Circuit upheld the Board’s finding that the em-
ployer, Food for Less, lacked a sufficient property interest to exclude
others from its easement; however, it remanded the matter to the
Board for a reassessment of its finding on the area standards picket-
ing.
15 The Tunkhannock store, like all of Respondent’s stores, is lo-
cated in what is commonly described as a community strip shopping
center. Strip shopping centers are distinguishable from shopping
malls or other larger regional shopping centers in that they are lo-
cated and designed to service local communities, are usually smaller,
and typically have one large store that is considered the ‘‘anchor’’
store.
16 P&S Development was the prior owner of the shopping center.
The Tunkhannock store lease, entered into between P & S Develop-
ment and Weis’ predecessor, IGA Food Mart, was assumed by
Tunkhannock Partners and by Respondent as IGA’s successor, and
remains in effect (G.C. Exh. 13). Exhibit ‘‘D’’ of General Counsel
Exhibit 13 (p. 34) reflects that Zuba executed the lease agreement
on behalf of the landlord, P&S Development, as well as for the ten-
ant, IGA Food Mart. Brown testified that when the lease was exe-
cuted the landlord and the tenant of the Tunkhannock store were one
and the same. However, this fact is of no relevance here for it is
clear that all times material here, Tunkhannock Partners owned the
property, not P&S Development.
17 Exh. ‘‘A’’ referred to in the lease consists of a site plan of the
shopping center (G.C. Exh. 13, p. 4). For reasons unknown, the site
plan, which would have provided a visual description of what the
‘‘demised premises’’ consisted of, was missing from the lease agree-
ment. The site plan is of significance here because of Brown’s asser-
tion that ‘‘from his recollection’’ Exh. ‘‘A’’ showed that the side-
walk area in front of the Tunkhannock store was encompassed with-
in the 154’ x 200’ dimensions of the leased space, presumably giv-
ing Respondent an exclusive right of control over such space. The
General Counsel disputes Brown’s assertion in this regard, and lan-
guage in the lease agreement itself (at p. 11) suggests that the side-
walk areas are part of the Common Areas over which the landlord
retains control and would not have been made part of the leased
space. The Respondent proffered no adequate explanation as to why
Exh. ‘‘A’’ was not attached to the lease received in evidence or why
it could not have been obtained. Respondent’s counsel did indicate
he had conducted an unsuccessful search a year earlier for the docu-
ment at Respondent’s headquarters. It is quite likely, however, that
an inquiry to the Tunkhannock Partners, Respondent’s landlord,
might have produced more positive results. Thus, I do not credit
Brown’s unsubstantiated claim that the sidewalk area was part of the
‘‘demised premises’’ and find that the best evidence, which Brown
seems to be relying on, is the missing Exh. ‘‘A.’’ Accordingly, I
find that the sidewalk was not under the Respondent’s exclusive use
and control during the relevant periods involved here. Giant Food
Stores, 295 NLRB 330, 332 at fn. 8 (1989).
threats to call the police (carried out at the Scranton and
Plains stores) and have them arrested if they did not leave
violated Section 8(a)(1) of the Act, citing as support therefor
the Board’s decisions in Bristol Farms, 311 NLRB 437
(1993), and Food For Less, 318 NLRB 646 (1995), enfd. and
rem. in part O’Neill’s Markets v. Food & Commercial Work-
ers Local 88 (8th Cir. 1996).14 The Respondent
counterargues that under the Supreme Court’s decision in
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), it had the
right to exclude the nonemployee organizers from the prem-
ises, and further claims that given the holding in Lechmere,
the Bristol Farms case was incorrectly decided by the Board.
Alternatively, it argues that even under Bristol Farms, the
eviction of the organizers was justified. A discussion of the
property interests held by Respondent with respect to each of
the stores in question here, and an analysis of and findings
on, the issues, ensues.
(a) The Tunkhannock store
The Tunkhannock store is located in the Village Shopping
Center on route 29, in Tunkhannock, Pennsylvania.15 The
shopping center is owned by Tunkhannock Partners, L.P.,
one of whose partners is Joel Flachs, which leases space to
the Respondent for the operation of its store and to the other
businesses in the shopping center.16 The lease agreement, on
page one, defines the space leased by the owners to Re-
spondent as the ‘‘demised premises’’ ‘‘containing approxi-
mately 30,875 square feet with approximate dimensions of
154’ x 200’ as shown on Exhibit ’A’ attached hereto.’’17
Further, on page 10, the lease agreement provides:
NINE. COMMON AREAS. In addition to the De-
mised Premises, the Landlord shall make available to
the Tenant such Common Areas within or adjacent to
the building of which the Demised Premises is a part
and elsewhere upon the Shopping Center, together with
any Common Areas provided by means of cross or re-
ciprocal easement agreements (herein ‘‘REA’’) as
Landlord shall, from time to time, deem to be appro-
priate for the Shopping Center, and Landlord shall op-
erate and maintain such Common Areas for their in-
tended purposes. Tenant shall have the non-exclusive
right during the term to use (for their intended pur-
poses) the Common Areas for itself, its employees,
agents, customers, and invitees, subject however, to the
provisions of this Paragraph Nine. Landlord shall have
the right, at any time and from time to time to change
the size and/or location and/or elevation and/or nature
of the Common Areas, or any part thereof, including,
without limitation, the right to locate thereon kiosks
and/or other structures of any type. All Common Areas
shall be subject to the exclusive control and manage-
ment of Landlord, and Landlord shall have the right, at
any time and from time to time, to establish, modify,
amend and enforce uniform rules and regulations with
respect to the Common Areas and the use thereof. [Em-
phasis added.]
Paragraph Nine further states that the Landlord is re-
sponsible for maintaining and repairing the Common
Areas including, inter alia, all sidewalks, curbs, shop-
ping center signs, and parking lot, and for the cost of
insurance premiums on the shopping center, and ex-
pressly identifies such common areas as being made
‘‘available’’ to Respondent for its use in common with
other tenants. On March 13, an addendum was added
to the lease authorizing the Respondent to ‘‘use all rea-
sonable lawful means to prevent trespassing, including
the distribution of literature and picketing, on the side-
walk and common areas in front of Weis Markets
store.’’ The Landlord, however, reserved ‘‘the right to
revoke [the] authorization at any time for any reason
immediately upon written or oral notice to you.’’ [See
G.C. Exh. 14.]
Zuba admits that the lease itself, without the March 13 ad-
dendum, does not give Respondent control over any part of
the common area, but claims it has always had authority to
restrict access to such parts of the common area as the side-
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880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Sec. 28 of the lease agreement states: ‘‘It is agreed that neither
Landlord nor anyone acting on its behalf has made any statement,
promise or agreement, or taken upon itself any engagement what-
ever, verbally or in writing, in conflict with the terms of this Lease,
or that in any way modifies, varies, alters, enlarges or invalidates
any of its provisions, and that no obligations of the Landlord shall
be implied in addition to the obligations herein expressed.’’ (under-
scoring added; see G.C. Exh. 13, p. 29).
19 See Great American, 322 NLRB 17 fn. 20 (1996).
20 The Plains lease, like the Tunkhannock lease, recognizes the
landlords’ exclusive right to make such rules and regulations govern-
ing the use of the Common Areas, and make no reference to Re-
spondent’s right to do so (G.C. Exh. 13, p. 11; G.C. Exh. 14, p. 8).
walk and parcel pickup area pursuant to a ‘‘verbal under-
standing’’ with the Landlord (Tr. 239–240). Zuba’s claim to
a ‘‘verbal understanding’’ with Tunkhannock Partners grant-
ing it rights not contained in the lease is inconsistent with,
and flies in the face of, section 28 of the lease,18 which pre-
cludes any such agreements.19 Further, Brown contradicted
Zuba in this regard when he testified that the sidewalk and
parcel pickup areas are part of the ‘‘demised premises’’ and
presumably subject to Respondent’s exclusive control, noting
that without such control the Respondent would not have en-
tered into a lease agreement (Tr. 428–429). Clearly, if Brown
were to be believed and the above areas were deemed to be
part of the ‘‘demised premises,’’ then there would have been
no need for the ‘‘verbal understanding’’ alluded to by Zuba
granting Respondent a right of control over such areas. I find
neither Zuba’s claim of a ‘‘verbal understanding’’ or
Brown’s claim that the ‘‘demised premises’’ include parts of
the Common Area to be credible. Accepting either claim
would necessitate a rejection of express language in the lease
that clearly and unambiguously reserves to the Landlord,
Tunkhannock Partners, ‘‘exclusive control and management’’
over all Common Areas, and would also be contrary to
Board law. Wehr Constructors, 315 NLRB 867, 868 (1994).
Moreover, if Respondent, as Zuba would have me believe,
already had a ‘‘verbal understanding’’ with Tunkhannock
Partners, or if the ‘‘demised premises’’ could be construed
to include parts of the Common Area, as professed by
Brown, there would have been no need for Respondent to so-
licit the March 13, addendum granting it rights over ‘‘the
sidewalk and common areas in front of the store.’’ The fact
that it did so leads me to conclude that on January 23, the
Respondent knew quite well it lacked the requisite control
over the sidewalk, parcel pickup zone, and parking lot in
front of its Tunkhannock store to exclude the organizers
therefrom.
(b) The Plains store
The Plains store is located in the Plains Plaza, a strip
shopping center owned by Kenzakoski Brothers, one of
whose partners is Charles Kenzakoski who testified in this
proceeding. The lease agreement for the store was first en-
tered into in 1984 between Kenzakoski Brothers and the ini-
tial lessee, IGA Food Mart (G.C. Exh. 15). The rights under
the lease thereafter transferred to Mr. Z’s as lessee. While a
precise description of the property subject to the lease is not
contained in the agreement, section 5 of the agreement sub-
titled ‘‘Exclusive Use of Premises’’ implicitly defines the
leased area as the actual structure housing the store. Thus,
it states, ‘‘Tenant shall use and occupy the leased property
solely for the purposes of conducting a convention super-
market operation and/or for the sale of any and all items
commonly sold in a conventional supermarket and for no
other purpose whatsoever.’’ The Plains expressly identifies
‘‘automobile parking areas, driveways, entrances or exits,
service drives . . ., pedestrian sidewalks and ramps’’ as
common areas ‘‘for the general use in common’’ with other
tenants, their agents, employees, customers, and invitees.’’
Thus, section 6, in pertinent part, reads:
Parking and Common Areas
(a) Landlord shall provide automobile parking areas,
driveways, entrances or exists (sic), service drives,
lighting, truckway or ways, pedestrian sidewalks and
ramps, landscaped areas and such other areas (as shown
on an attached site plan).
(b) All of the said Common Areas shall be for the
general use, in common of Tenants, their agents, em-
ployees, customers and envitees (sic), are hereby grant-
ed the right to use all of the said common areas for
their intended purposes subject to the fact that the
Landlord shall have the right, from time to time, to es-
tablish, modify and enforce reasonable rules and regula-
tions with respect to said Common Areas; provided,
however, that Landlord shall, at all times, maintain and
have adequate means of ingress and egress to and from
accepted highways and streets.
(d) Landlord shall keep Common Areas in the Shop-
ping Center (including without limitation sidewalks,
driveways, service areas, curbs and parking areas) in
good order and repair, reasonably free of snow, ice and
debris, and reasonably lighted during normal business
hours of the major tenants in the Shopping Center.
Landlord agrees to carry public liability insurance cov-
ering the parking areas and other Common Areas.
As with the Tunkhannock lease, Zuba concedes that the
Plains lease does not expressly authorize the Respondent to
exercise control over areas outside the store, including the
parking lot, and again makes reference to a ‘‘verbal under-
standing’’ with Kenzakoski granting Respondent such author-
ity. Called as a witness by Respondent, Kenzakoski did not
corroborate Zuba’s claim to a ‘‘verbal understanding’’ grant-
ing Respondent control over the common areas adjacent to
the Plains store. He testified he has no rules restricting solici-
tation on his property, and that if a tenant requests permis-
sion to restrict solicitation, he may or may not allow it.20
Again, except for the addendum added to the lease on June
6 (discussed, infra), Kenzakoski gave no indication in his
testimony that Respondent had ever asked for, or that he had
granted it, permission to prohibit solicitation in the common
areas adjacent to the Plains store. In fact, Kenzakoski’s testi-
mony, if anything, undermines, rather than supports, Re-
spondent’s claim to having a greater property interest in such
areas. Thus, he testified that when the organizers began
leafleting in front of the Plains store, he was asked by a store
manager to come to the store to evict the organizers because
the store managers ‘‘did not have the control or the ability
to throw those people off’’ the premises. By the time he ar-
rived, the organizers had already left. According to
Kenzakoski, following this incident, the Respondent asked
Kenzakoski for written authority ‘‘to throw [the organizers]
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881MR. Z’S FOOD MART
21 The addendum was sent to Zuba with an accompanying letter
which read: ‘‘This will confirm that Weis Markets, Inc. is authorized
until further notice to act on behalf of Lone Star Equities, Inc., and
William J. Fennie to use all reasonable lawful means to prevent tres-
passing, including the distribution of literature and picketing either
in or on the sidewalk and common areas in front of Weis Markets’
store.’’ (Tr. 971.)
22 Bishop is with the firm of Hourigan, Kluger, Spohrer, and
Quinn, which advises Lone Star Equities and Fennie on a variety of
legal matters, including real estate.
23 The Respondent introduced into evidence a document labeled R.
Exh. 71, prepared in 1985 or 1986, containing a description of the
various properties at the shopping center which was to serve as a
prospectus for potential buyers of the shopping center. Page two of
R. Exh. 71 purports to show that at that time, IGA, Respondent’s
predecessor, was responsible for maintaining liability insurance on
the entire shopping center, and for maintaining the entire parking lot,
curbs, walks, lighting, and for plowing. The Respondent attempted
to show through this document that Respondent had exclusive con-
trol over the common areas of the shopping center. The document,
however, is entitled to little or no weight. Thus, Bishop, through
whom the document was introduced, had no role in its preparation
and was not certain who prepared the document (testifying first that
it was a real estate agent or broker but adding the property owner
may have done so). Although Bishop testified that the document was
prepared as a form of prospectus for potential buyers of the shopping
center, his lack of involvement in the document’s preparation and his
inability to identify its creator makes clear that he had no way of
knowing how the information contained therein was gathered, wheth-
er it was accurate, or whether it contradicts actual provisions in the
lease agreements held by the various businesses in that shopping
center. In fact, the reference therein to IGA having responsibility for
‘‘all parking areas including plowing, repairs and lighting’’ conflicts
with express language in the Scranton store lease which imposes
such responsibility on the landlord (G.C. Exh. 16, p. 8–9). Further,
the inclusion of a disclaimer regarding the reliability of the informa-
tion contained therein makes clear that the party who prepared the
document was unsure of the document’s accuracy. In light of the
above, and particularly given the apparent discrepancy between the
document and provisions of the Scranton lease, I place no reliance
on Respondent’s Exhibit 71.
off’’ the property the next time without having to call him.
In response thereto, Kenzakoski and the Respondent on June
6, executed an addendum to the lease that was intended to
achieve that goal. The addendum reads: ‘‘Tenant shall have
the exclusive right to the use of the sidewalk, covered porch
and roadway (parcel pickup area) adjacent to its premises for
its employees, agents, customers, and invitees, and to enforce
it [sic] rules against trespassers, any language in this lease
to the contrary notwithstanding.’’ (See G.C. Exh. 15.) De-
spite the above addendum which on its face grants Respond-
ent authority over more than the sidewalk area, e.g., the par-
cel pickup portion of the roadway in front of the store,
Kenzakoski readily admits that Respondent’s rights over this
area remains nonexclusive because it would not, for example,
permit Respondent to interfere with the right of passage by
other tenants’ customers through the parcel pickup area.
Thus, Kenzakoski’s testimony that he controlled the sidewalk
adjacent to the store, that Respondent had to call him to the
store to carry out the eviction of the organizers, and Re-
spondent’s subsequent request for written authority to expel
organizers in the future, belies and renders specious Zuba’s
and Brown’s claim to the existence of a ‘‘verbal understand-
ing.’’ Accordingly, I find that on January 24, when the Re-
spondent evicted Chincola from the parcel pickup area it
lacked the authority to do so.
(c) The Scranton store
The Scranton store is situated on South Washington Ave.
in Scranton, Pennsylvania, in a shopping center commonly
referred to as the IGA Shopping Center. The lease agreement
governing Respondent’s property rights at the Scranton Store
was entered into between Fazio Associates as lessor, and
IGA Food Marts as lessee in 1976. The shopping center was
subsequently assigned to Lone Star Equities (with William
Fennie serving as managing agent for the property), and fol-
lowing Mr. Z’s purchase of the IGA Food Mart store, the lat-
ter as a successor tenant assumed the lease.
Under the lease agreement received in evidence as General
Counsel 16, the Respondent leases space described as ‘‘prop-
erty situated in [Scranton] at the intersection of South Wash-
ington Avenue and Elm Street, being part of the same prem-
ises as are described in Lackawanna County records, together
with a store building and improvements and consisting of
35,526 square feet to be used as an IGA Food Mart Store.
The Scranton lease, unlike the Tunkhannock and Plains
lease, makes no reference to a common area of the shopping
center. It states, however, that the Landlord is obligated to
‘‘maintain and repair the macadam on the exterior of the de-
mised premises,’’ and that the tenant is to ‘‘pay the entire
costs of repairing and maintaining curbs and sidewalks on
the exterior of the demised premises.’’ (G.C. Exh. 16, p. 8–
9.) On June 15, in response to a request from Respondent,
Lone Star Equities executed an addendum, similar to that ob-
tained by Respondent at its Tunkhannock and Plains stores,
giving Respondent exclusive rights over certain common
areas of the shopping center. The addendum states that the
‘‘Tenant shall have the exclusive right to the use of the side-
walk, covered porch and roadway (parcel pickup area) adja-
cent to its premises for its employees, agents, customers, and
invitees, and to enforce it [sic] rules against trespassers, any
language in this lease to the contrary notwithstanding.’’
(G.C. Exh. 16.)21
Richard Bishop, an attorney, was called by Respondent to
explain the extent of Respondent’s property interest in the
Scranton store and common areas.22 Bishop testified that
Lone Star Equities does not have any rules against solicita-
tion at the IGA Shopping Center, and contends that the
Landlord basically treats any requests for solicitation as mat-
ters to be handled by the individual businesses that lease
space from it. He claims that each tenant, including the Re-
spondent, retains exclusive control of the sidewalk and parcel
pickup area in front the stores. Thus, while the Scranton
store lease is silent on the Respondent’s right to control who
may or may not enter into such areas, Bishop, without point-
ing to any supporting documentation, averred that Respond-
ent could exclude noncustomers, including patrons or em-
ployees of other businesses in the shopping center, from en-
tering into the sidewalk and parcel pickup areas in front of
its store.23 However, when pressed by Charging Party’s
counsel, Bishop admitted that prior to the June 15, addendum
there was nothing in the lease which authorized Respondent
to exclude such persons from the sidewalk area in front of
its store.
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882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Thus, the lease agreements of shopping center tenants Rite-Aid
Corporation and Scranton Business and Postal Center, both of which
remain in effect, reflect that such areas of the shopping center as the
parking lot, sidewalks, ramps, and pickup stations are to be used and
shared in common among all tenants (CPX-1, p. 4; CPX-2, p. 11).
It is highly unlikely and frankly illogical to believe that the landlord,
Lone Star Equities, would on the one hand grant to Respondent at
its Scranton store exclusive right to the sidewalk or parcel pickup
areas with the right to exclude everyone else, but at the same time
grant other tenants the contractual right of access to those same
areas.
25 See, e.g., Leslie Homes, Inc., 316 NLRB 123, 126 (1995); Oak-
land Mall, 316 NLRB 1160 (1995).
26 See, e.g., Barkus Bakery, 282 NLRB 351 (1986); Polly Drum-
mond Thriftway, 292 NLRB 331 (1989); Giant Food Stores, 295
NLRB 330 (1989); Johnson & Hardin Co., 305 NLRB 690 (1991);
Great American, supra.
Bishop was not a convincing witness. Despite professing
knowledge of the extent of Respondent’s interest in and con-
trol over the common areas of the shopping center, he read-
ily admits he was not involved in the preparation of the lease
agreement and has had no involvement in the management
of the shopping center. Bishop therefore was hardly qualified
to provide evidence as to the degree of control Respondent
had over the common areas of the shopping center. Further,
his testimony seemed contrived and purposefully slanted to
portray the Respondent as having a greater interest in and
control over the common areas of the shopping center than
can be gleaned from the Scranton lease agreement itself.
Bishop’s claim, for example, that Respondent had the exclu-
sive right to exclude noncustomers, such as other tenants’ pa-
trons and employees, from the sidewalk and parcel pickup
areas adjacent to its store finds no support in the lease and
appears to be based on nothing more than an unsubstantiated
belief on Bishop’s part. While there is no question that the
lease requires the Respondent to repair and maintain the curb
and sidewalk areas adjacent to its store, this fact alone does
not translate into an exclusive right to deny others access to
those areas. Further, although Respondent’s lease is silent as
to the degree of control the Respondent has with respect to
the shopping center’s parking lot, leases entered into between
Lone Star Equities and other tenants make clear that said ten-
ants, and inferentially Respondent, hold at most a nonexclu-
sive easement over the common areas of the shopping cen-
ter.24 Finally, the fact that Respondent felt the need to obtain
an addendum to its lease agreement authorizing it to evict
trespassers from the sidewalk and parcel pickup areas adja-
cent to its store provides in my view compelling evidence
that Respondent had no such authority in the first place and
knew this to be the case. Any suggestion by Bishop that Re-
spondent was simply confirming in writing what it had a
right to do is rejected. Bishop, as noted, was not a credible
witness. He was at times evasive and unwilling to provide
straightforward answers to rather simple questions posed to
him by the Charging Party’s counsel. These factors, as well
as his poor demeanor as a witness, lead me to doubt his
overall veracity.
Analysis
The Respondent argues initially that because the Union
had other reasonable alternative means of communicating
with its employees, a fact which the General Counsel does
not dispute, the eviction of the organizers from the sidewalk
and parcel pickup areas adjoining its stores was proper and
lawful under the Supreme Court’s holding in Lechmere. It
contends that the Board’s holding in Bristol Farms, requiring
that an employer first establish that it has a sufficient interest
in the property entitling it to eject others therefrom, and its
reliance on state law in making that determination, con-
travenes the holding in Lechmere and was improper (R. Br.
30).
Briefly, in Lechmere the Court reaffirmed its earlier hold-
ing in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956)
that an employer may prohibit nonemployee organizers from
coming onto its property to engage in organizational efforts,
except in those rare instances where no reasonable means of
communicating with the employees exists, in which case the
Board must balance the employer’s right to control access to
its property with the Section 7 right of union organizers to
communicate with employees, taking care that the accommo-
dation between these competing interests be obtained with as
little destruction of one as is consistent with the maintenance
of the other. In so doing, the Court rejected a multifactor bal-
ancing test set forth by the Board in Jean Country, 291
NLRB 11 (1988), intended to resolve such issues.25 How-
ever, the Court’s rejection of the Board’s Jean Country anal-
ysis ‘‘did not affect the legality of employer attempts to bar
access to property that is not the employer’s to control.’’
Lechmere, Inc., 308 NLRB 1074 (1992); Loehmann’s Plaza,
316 NLRB 109, 113 fn. 12 (1995) (Lechmere ‘‘did not
change the rule that a property right can be asserted only by
the party who possesses that right.’’); Great American, 322
NLRB 17 (1996). The Board’s view in this regard was re-
cently reaffirmed by the Eighth Circuit in its partial enforce-
ment of the Board’s holding in Food for Less. Thus, the
Eighth Circuit noted that the Lechmere decision left undis-
turbed the Board’s prior holdings26 ‘‘that an employer lack-
ing the right to exclude others from certain property violates
Section 8(a)(1) when it removes section 7 actors from those
areas,’’ and that before a Lechmere balancing of rights be-
comes necessary, the threshold question that must be an-
swered is whether, at the time the employer sought to ex-
clude the organizers, it possessed a sufficient property inter-
est entitling it to do so. Absent such a showing, there is no
conflict between the employer’s property right and the orga-
nizers’ Section 7 right requiring a Lechmere-type of analysis
and accommodation. 95 F.3d at 738.
In assessing the extent of an employer’s interest in the
property from which it seeks to exclude others, the Board
considers such factors as applicable state property laws,
along with relevant documentary and other evidence. Bristol
Farms, supra. The Board’s reason for referencing state law
in making its assessment was made clear in Bristol Farms.
Thus, quoting the Supreme Court in Board of Regents v.
Roth, 408 U.S. 564, 577 (1972), the Board observed that
‘‘property interests are not created by the Constitution. Rath-
er they are created and their dimensions are defined by exist-
ing rules or understandings that stem from an independent
source such as state law.’’ The Board’s recourse to state law
as a factor to be considered in ascertaining the extent of an
employer’s property interest is fully consistent with Supreme
Court precedent. See also 95 F.3d 733. Finally, and as the
Respondent must certainly be aware, I am bound to adhere
to and apply existing Board precedent until such time as they
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883MR. Z’S FOOD MART
27 The court in Weigand found the case distinguishable from Phila-
delphia v. Merchant & Evans, 296 Pa. 126, where a lessee was
found liable for an accident occurring on a driveway adjacent to its
leased premises because the lease agreement clearly conveyed to the
lessee the exclusive use of the driveway. Clearly, if under Weigand
a lessee cannot be held liable for injuries sustained on property over
which it holds a nonpossessory interest, one can reasonably infer that
the lessee would also lack legal standing to bring an action for tres-
pass regarding such property.
28 The Respondent also relies on the Pennsylvania Supreme
Court’s decision in Logan Valley Plaza, Inc. v. Amalgamated Food
Employees Union, 227 A.2d 874 (1967). That decision, however, in-
volved the right of owners of property in a shopping center to pre-
vent a union from entering its property to engage in informational
picketing. The State court in Logan Valley was not asked to decide,
and consequently did not pass, on the question of whether under
Pennsylvania law the right to exclude extends to those who do not
own the property from which exclusion is sought, and who may sim-
ply retain a nonexclusive right to its use. The Logan Valley decision
is therefore factually distinguishable and clearly inapposite to the
facts herein.
29 Wilkinson v. Conrail, 158 Pa. 126 (1893).
are overruled by the Board or the Supreme Court. Ford
Motor Co., 230 NLRB 716 (1977); Prudential Insurance
Co., 119 NLRB 768 (1957). Thus, any disagreement it may
have as to the Board’s holding in Bristol Farms, supra, is a
matter that only the Board can address, and any suggestion
that I somehow ignore or give no weight to the holding in
that case is simply misguided and without legal support.
Alternatively, the Respondent argues that it holds easement
rights to the common areas adjacent to its three stores and
that under Pennsylvania law the holder of an easement is
deemed to possess a sufficient interest in the property enti-
tling it to exclude others, e.g., trespassers, union organizers,
from entering thereon. As found above, the Respondent’s in-
terest in the common areas adjoining all three stores amounts
to nothing than a nonexclusive right to use the areas for lim-
ited business purposes. Thus, any property interest it may be
said to have can at best be described as a nonexclusive ease-
ment, similar to that possessed by the employers in Bristol
Farms, and Food for Less, supra. The Respondent, however,
contends that unlike the California and Missouri property
laws considered by the Board in Bristol Farms and Food for
Less, respectively, Pennsylvania law affords easement hold-
ers greater rights, including the right to evict trespassers
therefrom. In support thereof, the Respondent cites to several
state court decisions, none of which, on review, I find to be
particularly relevant to the issue at hand.
Checker Oil Co. v. Harold H. Hogg, 251 Pa. Super 351
(1977), cited by Respondent, for example, did not involve a
lessee’s right over a nonexclusive easement, but rather, as
recognized by Respondent in its brief (p. 37) dealt with a
landlord’s interference with the premises actually leased to
the lessee. Similarly, Weigand v. American Stores, 348 Pa.
253, 29 A.2d 484 (1943), involved a suit for damages against
a lessee for injuries sustained by a pedestrian on a driveway
over which the lessee held a nonexclusive right of use. The
court found no liability on the lessee’s part because the latter
lacked exclusive control over the easement.27 Ellis v. Acad-
emy of Music, 120 Pa. 608 (1988), another case cited by Re-
spondent, likewise has no bearing on the issue at hand as
that case involved a tenant’s right to bring an action for nui-
sance over property which it held in fee simple with another
co-tenant. The other cases cited by Respondent, e.g., Louis
W. Epstein Family Partnership v. K-Mart, 13 F.3d 762 (3d
Cir. 1994), Trimble Services, Inc. v. Franchise Realty Inter-
national Corp., 445 Pa. 333 (1971), Rusciolelli v. Smith, 195
Pa. Super. 562 (1961), are factually distinguishable and offer
no assistance in determining whether the Respondent was
within its rights under Pennsylvania law to eject the organiz-
ers from property over which it held nonexclusive easement
rights.28
However, Northeast Women’s Center, Inc. v. McMonagle,
670 F.Supp. 1300 (E.D. Pa 1987), cited by the General
Counsel and the Charging Party in their posthearing briefs,
does provide some guidance on this particular question. In
Northeast Women’s Center, the named plaintiff, an abortion
clinic, sought to enjoin certain protesters from entering its
suite of offices leased to it by the lessor, L.P. Partnership.
These offices, located in an office building, were under the
exclusive control of the clinic. The clinic also sought to en-
join the protesters from entering the property immediately
surrounding the office building. While the surrounding area
was not part of the premises leased by the clinic, the latter
claimed it had ‘‘constructive possession’’ of such outside
areas by virtue of a ‘‘NO TRESPASSING’’ sign it had post-
ed on that property, entitling it to bring the trespass action
against the protesters with respect to the outside areas. The
court rejected this latter claim. Thus, the Court recognized
that the clinic was within its right to sue for trespass as to
its office suites because it retained exclusive rights to the of-
fice space under the lease. However, citing Pennsylvania
case law,29 ‘‘the court reasoned that the clinic could not seek
relief for the trespass to property it did not possess, e.g., the
outside areas surrounding the office building, and that even
if the clinic were able to show that L.P. Partnership [did not
consent] to the [protesters] continuing presence on [its] land,
the [clinic’s] recovery—and thus its cause of action—is lim-
ited to land it possesses.’’ 670 F.Supp. at 1312. In light of
the above, it appears that under Pennsylvania law the Re-
spondent did not have the right to exclude the organizers
from either the sidewalk, parcel pickup, or parking lot areas
adjacent to its stores.
The Respondent also cites the fact that it has been per-
mitted to use the sidewalk adjacent to its stores to conduct
sidewalk sales and to store its shopping carts, that it patrols
the common areas to check for misplaced shopping carts and
for hazardous conditions, that it has removed skateboarders
from the area, and that it is required to maintain liability in-
surance, as evidence that it possesses sufficient control over
the common areas entitling it to remove trespassers there-
from. However, the mere fact that the owners of the prop-
erties in question may not have objected to Respondent’s use
of the sidewalk to conduct business and to store its carts, or
that Respondent on occasion may have chased away an er-
rant skateboarder, can hardly be viewed as evidence that it
had the right to prevent others from entering such common
areas, or that the owners had given Respondent a greater
right to the property than the nonexclusive use expressly con-
veyed to it under the leasehold agreements. Indeed, Respond-
ent’s arguments in this regard are similar to those presented
to and rejected by the Board in Food for Less, supra. In re-
jecting such arguments, the Board in Food for Less noted
that the employer had not ‘‘shown that under state law its
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884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 The record fails to establish that the organizers in any way inter-
fered with or obstructed the right of Respondent’s customers to free-
ly use the sidewalk or parcel pickup areas to enter or exit any of
the three stores in question, or with their customers’ right to use the
parking lot adjacent to its stores. Under these circumstances, the
leafleting did not constitute a nuisance. Food for Less, supra at 650,
fn. 7.
31 The Charging Party suggests in its posthearing brief (pp. 35–36)
that Respondent’s no-solicitation rule was not applied in a non-
discriminatory manner, and cites to Brown’s testimony that organiza-
tions seeking to solicit were being told to put their requests in writ-
ing and that Respondent would respond to such requests. Although,
as testified to by Brown, he gave instructions to secretary/-reception-
ist Matthews to tell potential solicitors to put their requests in writ-
ing and that such requests would be responded to, his instructions
hardly constitute evidence that Respondent intended to grant any
such requests. Indeed, Respondent may simply have wanted to po-
litely inform the potential solicitor, in writing, of its new policy
against solicitation.
32 The General Counsel readily acknowledges the clear distinction
long drawn by the Board and the courts between the Sec. 7 rights
afforded to employees versus those granted derivatively to non-
employee organizers. It is this distinction which provides the jus-
tification for allowing an employer to prohibit on a nondiscrim-
inatory basis nonemployees from entering its property even if moti-
vated by antiunion reasons. See Nashville Plastic Products, 313
NLRB 462 (1993).
liability insurance coverage and its repair and maintenance of
the parking lot transformed the easement interest set forth in
the lease into a more substantial property right providing the
legitimate power to expel.’’ A similar finding is warranted
here. Accordingly, as the Respondent on January 23 and 24,
had no legal right to exclude individuals from the sidewalks,
parcel pickup areas, and parking lots adjacent to its stores,
its attempts to eject the nonemployee organizers peacefully
engaged in distribution of union material to employees from
said areas, and its calling of the police to assist in those ef-
forts, interfered with its employees’ organizational rights and
violated Section 8(a)(1) of the Act.30
2. The promulgation of the no-solicitation/no-
distribution rule
The complaint alleges, and the Respondent denies, that the
promulgation of a no-solicitation/no-distribution rule in Janu-
ary was unlawful. The evidence reflects that Respondent in-
stituted the ban in direct response to the Union’s initial orga-
nizational efforts. Thus, although Weis had always restricted
solicitation at its stores, Zuba had maintained an open policy
and continued to do so for 2 years after being bought out
by Weis. Zuba readily concedes, however, that only after
union cards and literature were discovered in one of his
stores in the summer of 1994, and after being pressured by
Weis’ legal counsel, did he decide to adopt Weis’ no-solici-
tation policy, claiming this was done to ensure that a ‘‘Union
would not be able to successfully solicit at [his] stores.’’
Zuba candidly admitted that it was the ‘‘very real prospect
that [his] employees might try to unionize’’ which led to the
change in policy. Significantly, Zuba was not so much con-
cerned with the possibility that solicitation might occur in-
side the stores. Rather, he testified that his real ‘‘concern’’
was that people had been allowed to solicit ‘‘in front of our
stores’’ and that ‘‘we cannot have that happen,’’ presumably
because the Union would likewise be entitled to solicit in
front of his stores (Tr. 256). Thus, Zuba’s testimony, as well
as his directive to Chincola outside the Tunkhannock store
to stop bothering Cahill, makes clear that Respondent’s sole
purpose in posting the cardboard no-solicitation signs at its
stores in January was to prevent union organizers from using
the common areas adjoining its stores to distribute literature
or in some other manner to communicate the Union’s mes-
sage to employees. However, as found above, the Respond-
ent lacked the requisite property interest needed to lawfully
exclude the organizers from the common areas, and as the
holding in Northeast Women’s Center demonstrates, under
Pennsylvania law the mere posting of the no-solicitation sign
by Respondent would not have altered that fact. Thus, the
Babcock & Wilcox principle (supra at 112), that ‘‘an em-
ployer may validly post his property against nonemployee
distribution of union literature’’ does not come into play with
respect to the common areas adjacent to Respondent’s stores
as said areas were someone else’s, and not Respondent’s
property to control. The rule was therefore unenforceable to
the extent it attempted to restrict conduct occurring in the
common areas.
However, notwithstanding the General Counsel’s Charging
Party’s assertion to the contrary, the rule, in my view, is
valid and enforceable with respect to those areas exclusively
under the Respondent’s control, e.g., the stores themselves.
As stated in Babcock & Wilcox, a rule that prohibits solicita-
tion on company premises by nonemployee union organizers
is ordinarily presumed valid and will be overturned only on
a showing either that the rule discriminates against unions by
allowing other nonunion solicitation, or that no reasonable
means of access to employees exist. See United Food &
Commercial Workers v. NLRB, 74 F.3d 292 (D.C. Cir 1996);
also Big Y Foods, 315 NLRB 1083, 1086, quoting Belcher
Towing v. NLRB, 614 F.2d 88 at 90 (5th Cir. 1980). The
General Counsel readily admits that the Union had other rea-
sonable means of communicating with employees, and that
the no-solicitation rule has been applied in a nondiscrim-
inatory manner to both union and nonunion solicitation.31
Notwithstanding such admissions, he and the Charging Party
contend that the validity of the no-solicitation rule be deter-
mined by looking at the Respondent’s motivation for imple-
menting the rule. Clearly, such an approach would favor the
finding of a violation for the weight of the evidence, more
particularly Zuba’s testimony, reveals that Respondent was
motivated by purely antiunion considerations in enacting
such a rule. However, to accept such an approach would be
to add another dimension to the Babcock & Wilcox test for
deciding whether such a rule can be deemed valid. In fact,
the Court’s holding that except for the two stated conditions
an employer may lawfully post its property against solicita-
tion, in my view, strongly suggests that such a rule would
be considered valid even if the employer’s motives for doing
so were less than altruistic, e.g., to keep a union off its prop-
erty. Thus, a finding that the rule is unlawful because it was
motivated by antiunion considerations would be tantamount
to a rejection of the Babcock & Wilcox test which, by the
General Counsel’s own admission, has been satisfied here.32
In light of the above, I find that the Respondent’s no-solicita-
tion rule is valid under Babcock & Wilcox, but only insofar
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885MR. Z’S FOOD MART
33 I find it unnecessary to pass on the whether the addenda to the
Tunkhannock, Plains, and Scranton store leases entered into between
Respondent and its lessors respectively on March 13, June 6 and 15,
afforded the Respondent any greater right to evict the organizers
from the common areas. As noted, at issue in this case is whether,
when it evicted the union organizers from the common areas adja-
cent to its stores on January 23 and 24, the Respondent had the right
to do so under the terms of the lease agreements then in effect. The
addenda, executed months after the above incidents, clearly would
have no bearing on the above issue and, as found herein, are relevant
only to the extent that they support the reasonable inference that if
Respondent had such authority on January 23 and 24, it would not
have needed to amend the leases to acquire such rights. This is not
to suggest that the Respondent achieved its goal through these
amendments, for it is not all that clear from the wording of the ad-
denda, and other evidence of record, including Kenzakoski’s testi-
mony, that the Respondent now enjoys the exclusive right to control
the common areas entitling it to eject trespassers therefrom. This is,
in any event, an issue that I need not address in resolving the com-
plaint allegations. As noted by the General Counsel in his
posthearing brief, the complaint does not allege that the entering into
these amendments was unlawful, and while there was evidence ad-
duced at the hearing regarding these amendments, absent some alle-
gation or evidence that organizers were denied access on the basis
of the addenda provisions, I decline to speculate on their validity or
effectiveness.
as it applies to the areas over which it has exclusive control,
e.g., the stores themselves.33
3. Threats of store closings, loss of jobs, and other
alleged unlawful statements
(a) The January 23, morning meeting
The General Counsel contends that at the 7 a.m. meeting,
Zuba unlawfully threatened that if the Union came in, it
would not expand the Tunkhannock store as planned, the
store would close, and employees would lose their jobs, and
suggested it would be futile for them to select the Union as
representative because the Union could do nothing for them
or prevent the store from closing, and further urged the
Union’s most ardent supporter, Cahill, to resign by telling
him to go on welfare. In support thereof, the General Coun-
sel cites to the testimony of Cahill, Burroughs, Miller, and
Bonavita all of whom, with some minor and inconsequential
variation, testified to having heard Zuba make some or all
of the above remarks. In turn, the Respondent, in addition to
Zuba’s denials, relies on testimony provided by Rinaldi,
Davis, and Adamsky, and by employees Sherry Metz, John
Swick, Stella Sands, and Shirley Dymond to support Zuba’s
denials and to refute the above allegations. A recitation of
the testimony provided by the above individuals follows.
The General Counsel’s Witnesses
Cahill: Cahill testified that the meeting was held in a back
room of the Tunkhannock store, that Zuba was the only
speaker, and that it lasted approximately 15 minutes. Cahill
claims that Zuba informed employees that the Union had
been trying to get employees to sign cards and that he
thought the employees were doing fine at the store. Zuba
then stated that ‘‘if the Union does get in, that he would
close the store, there would be no expansion, and there
would also be no jobs there at Tunkhannock.’’ He further
commented that the Union ‘‘couldn’t help us, just like they
didn’t help’’ the Acme Warehouse and Insalacos, two other
area stores that had closed down. According to Cahill,
Zuba’s remark about closing the store was made several
times. At one point in the meeting, Cahill asked Zuba ‘‘how
come a person on welfare and public assistance can make
more money than we do working for him’’ to which Zuba
replied, ‘‘Why don’t you go welfare; you can quit and go
on public assistance and welfare.’’ (Tr. 50–52.)
Burroughs: At the time of the hearing, Burroughs was still
employed by Respondent. According to Burroughs, the meet-
ing lasted anywhere from 30-45 minutes. His testimony as to
what was said at this meeting was more limited than that
provided by Cahill, due in all likelihood to the fact that the
General Counsel, for whatever reason, did not pursue this
line of questioning. However, when asked on direct examina-
tion what Zuba said at the meeting, Burroughs testified that
Zuba ‘‘was talking about the Union and if the Union got in
there, they wouldn’t do anything for us, but take our money;
and if the Union did get in there, he would close the store.’’
(Tr. 105.) Burroughs further testified, on cross-examination,
that Zuba told employees that the Union ‘‘wouldn’t do any
good for us; all it would do is take our money’’ and that
‘‘Weis would never allow a union to come into the store.’’
According to Burroughs, Zuba’s store-closing remark was
made only once. He could not, however, recall if Zuba told
employees it was up to them to decide whether or not to sign
union cards, or whether he spoke about the competition in
the supermarket industry. He did not recall any specific men-
tion of the Acme store, or whether Zuba told employees the
Union was unable to protect the jobs of the Acme employees
when the store closed. He did testify, however, that Zuba’s
focus during the entire meeting concerned ‘‘the Union and
the possibility that the store would close if the Union came
in.’’ (Tr. 113–115.)
Miller: Miller, who was also still employed by Respondent
when he testified, recalls the meeting lasting from 20-30
minutes, and testified that during the meeting Zuba talked
about how unions were no good, how all they wanted was
to take your money and would not help or stand by you, and
how he had seen them ruin stores in Wilkes-Barre and Scran-
ton, Pennsylvania. He recalled Zuba stating on at least two
or three occasions that ‘‘there would never be a union in Mr.
Z’s or Weis’ stores, because they would close them down,
and we would all be out of a job.’’ Miller testified to hearing
Cahill tell Zuba that he (Cahill) would be better off and re-
ceive more on welfare than working at the store, and Zuba
responding, ‘‘why don’t you quit and go on welfare.’’ He did
not specifically recall if Zuba mentioned that the Union had
not protected employees of other area chain stores which had
closed. When pressed by Respondent’s counsel to explain
what he understood Zuba was trying to tell employees re-
garding the Union and the closing of area stores, Miller re-
sponded, ‘‘I thought he was trying to get across that if we
wanted to take a vote and try and get a Union in there, that
they would close down and we would all be out of a job.’’
Miller did not recall Zuba stating that the store would not
be expanding if the Union came in. (Tr. 146; 154–156.)
Bonavita: Bonavita voluntarily left Respondent’s employ
in June 1995, but was an employee on January 23, and at-
tended the mandatory employee meeting held that day by
Zuba. She recalls Zuba telling employees at this meeting that
the Union was trying to get into Mr. Z’s, and recommending
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886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Zuba believes the Tunkhannock store meetings occurred on Jan-
uary 21. Given the testimony of other witnesses, I am convinced he
was mistaken and that the meetings actually were held on January
23.
35 On cross-examination, Davis changed his testimony somewhat
by admitting that it was Zuba who brought up the issue of the Union
on his own and not in response to any particular question.
against it because ‘‘it wouldn’t benefit us.’’ Zuba went on
to state that ‘‘if the Union got in, Weis would close the store
down and that the employees that were there would not be
rehired’’ if Weis were to subsequently decide to reopen. She
also recalled Zuba talking about other unionized area stores
closing down, specifically mentioning Acme, and warning
that the same thing could happen to Mr. Z’s. According to
Bonavita, Zuba did not state that the Union could not protect
the employees of those stores that were closing down. When
asked if she could have misinterpreted Zuba’s comments
about other stores closing down, Bonavita emphatically an-
swered ‘‘No,’’ and reaffirmed her testimony that Zuba told
employees that ‘‘the Tunkhannock store could close down,
like other chains, if the Union were successful.’’ Bonavita
claims Zuba did not discuss expansion of the Tunkhannock
store, and did not recall him telling employees that the Union
was unable to guarantee job security for employees at the
Acme and Giant stores. She did recall Cahill addressing his
welfare remark to Zuba, but testified that Zuba ‘‘more or less
brushed him off’’ without really giving him an answer. (Tr.
167–169; 172–177.)
The Respondent’s Witnesses
Zuba: Zuba admits holding employee meetings at the
Tunkhannock store on or about January 23,34 stating that his
purpose for doing so was to ‘‘stress our part of the case; we
wanted [employees] to know exactly how they stand.’’ Ac-
cording to Zuba, he conveyed to employees what unioniza-
tion might mean to them from an employer’s point of view
(Tr. 222–233). He testified that he talked about the nature of
Respondent’s competition, and about union authorization
cards and how the Union needed to obtain a certain percent-
age of cards to obtain an election. He recalls telling employ-
ees that while his stores had never had a lay off, other area
stores, particularly an Acme store in Stroudsburg, had closed
and employees told to commute to a more distant store in
Reading, Pennsylvania to retain their jobs, and that other
Acme stores between Stroudsburg and Reading were consid-
ered ‘‘hardship’’ stores. Zuba claims he told employees that
In contrast to what had occurred at Acme, when his stores
were slow, rather than lay off people, employees were al-
lowed to transfer from store to store every day or two. He
nevertheless emphasized that as with the Acme stores there
were no guarantees or protection. Zuba claims he also men-
tioned that another supermarket chain, Giant stores, once had
23 stores, but that as of the date of the meeting only 1 store
remained, pointing out in this regard that there was no job
security for employees. Zuba testified that his comments
about the other stores and job security for employees was in-
tended as a response to the promise of job security purport-
edly made by the Union in its mailings to employees, and
to further point out to employees that while unions ‘‘can
promise you everything’’ fulfilling that promise is ‘‘some-
thing else’’ and that he himself could make no guarantees ei-
ther as he did not own the store. Zuba claims that by ref-
erencing what had occurred at the Giant and Acme stores,
he was simply trying to convey to employees that ‘‘there is
no such thing as job security’’ because jobs depend on ‘‘vol-
ume’’ and ‘‘business.’’ According to Zuba, he also told em-
ployees that his merger with Weis turned out to be a ‘‘good
marriage’’ because with Weis’ wealth behind them, ‘‘we can
expand our operations.’’ Finally, Zuba recalls Cahill asking
him a question about welfare, and that he simply replied
Cahill was asking the wrong person, and that if he (Cahill)
wanted to go on welfare, ‘‘I’d invite him to do so.’’ Zuba
expressly denied ever telling employees that the
Tunkhannock store would never have a union or threatening
to close the store and putting everyone out of work. When
asked if he ever told employees it would do them no good
to select the Union because it could do nothing for them,
Zuba did not outrightly deny making such remark but claims
he simply told them, ‘‘it was their decision.’’ (Tr. 1027–
1031; 1035–1042.)
Rinaldi: Rinaldi testified that the January 23 meeting fo-
cused in on ‘‘the Unions protecting [employee] job[s]’’ and
that in this regard Zuba mentioned that the Acme and Giant
supermarkets in Stroudsburg had closed without there being
any protection for the employees by the unions in that area,
and how a store’s customer base was the only thing that
could protect employee jobs. Through some insinuative ques-
tioning by Respondent’s counsel, the latter was able to get
Rinaldi to deny that Zuba threatened to close the store if it
became unionized, that he expressed any opinion as to what
would happen if the Union organized the store, that he com-
mented the store would close or not expand if the Union
came in, or said that the Tunkhannock store would never
have a union because Weis Markets would close the store.
He similarly denied having heard Zuba tell employees it
would do them no good to select the Union as bargaining
agent because it could nothing for them, or tell them that if
the Union came in the stores would close and everyone
would be out of a job. He was able to recall, without any
prompting from Respondent’s counsel, Cahill’s welfare re-
mark, and Zuba’s response thereto, that he did not have an
answer for Cahill but that if Cahill could make more money
on welfare, ‘‘go ahead and try it.’’ Finally, on cross-exam-
ination, Rinaldi recalled Zuba telling employees that Union
could not give them job security and making reference to the
closing of the Acme and Giant supermarkets (Tr. 868–870;
880–882).
Davis: Davis testified he attended both the morning and
afternoon meetings at the Tunkhannock store, and that the
meetings were intended as a morale booster for employees
and not to discuss the Union. Davis claims that Zuba dis-
cussed such things as Respondent’s competition and the Blue
Cross/Blue Shield medical plans. He recalls, however, that
the issue of the Union came up only when Zuba was asked
whether employee jobs would be secure if there was a union
in the store. Zuba purportedly responded ‘‘No’’ and pro-
ceeded to tell employees that while a union might make a
promise, it may not be what employees get because ‘‘the last
word would come from the store owners.’’35 Davis also re-
called that Cahill asked Zuba why someone on welfare could
make more money than someone who worked for a living,
and that Zuba replied he could not answer that but if Cahill
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887MR. Z’S FOOD MART
36 Adamsky’s willingness to volunteer information before even
being asked a question is indicative of an attempt by him to tailor
his testimony to support the Respondent’s case. Best Western Motor
Inn, 281 NLRB 203, 207 (1986).
felt he could make more money on welfare, then he should
go on welfare. Davis had no further independent recollection
of what else Zuba might have said at the meeting. However,
as he did with his other witnesses, Respondent’s counsel led
Davis through a series of leading questions resulting in Davis
expressly denying that Zuba ever told employees that if the
Union came in the stores would close and there would be no
jobs, or telling them there would never be a union in the
store because Weis would close the store and everyone
would be out of work. He further denied that Zuba told em-
ployees it would be futile for them to select the Union as
the Union could do nothing for them (Tr. 259–260; 924–927;
944–948).
Adamsky: According to Adamsky, during the morn-
ing meeting Zuba expressed his concern for employees
at all the stores, and specifically mentioned how the
Acme and Giant supermarkets had gone out of business
and were no longer in the area, and suggested that em-
ployees consider what happened to these stores before
considering ‘‘any type of representation or anything
like that.’’ Further, without being asked Adamsky vol-
unteered that Zuba did not discuss such things as
‘‘raises or benefits or anything like that.’’36 Adamsky
claims that Zuba told employees the store would be re-
main open whether there was a union, but reminded
employees that they should nevertheless think before
doing anything in light of what had happened at other
area stores. As occurred with Rinaldi, Davis and several
other employee witnesses, Adamsky had little or no
independent recollection of what else Zuba may have
said during the meeting, and it was only when prompt-
ed with leading questions did Adamsky deny that Zuba
told employees the store would close if the Union came
in; or that the Tunkhannock store would never have a
union because Weis would close the store, or that it
would do the employees no good to select the Union
as bargaining agent because it could do nothing for
them.
Metz: Metz recalls that the meeting lasted no more than
10 minutes, that about 20 employees were in attendance, and
that Zuba began by informing employees that ‘‘there’s Union
activity in our store and that the Union might be sending out
cards to our homes.’’ She recalls Zuba saying the store could
become unionized if 35 percent of the people signed cards,
and that it was up to the employees to decide whether or not
to sign a card. Zuba also discussed the fact that the Acme
store in Stroudsburg had closed, that the Union did not help
the employees and some of them lost their jobs or got laid
off. She claims Zuba also told employees that despite the in-
creased competition, with Weis’ backing he was able to ex-
pand the stores, something he was not able to do when the
stores were independently own. Like the other witnesses,
Metz heard Cahill ask Zuba why people on welfare could
make more money than employees at the store. She claims
Zuba asked Cahill how long he had been employed at the
store, and when Cahill responded six months, Zuba told him
he couldn’t resolve Cahill’s problem and that Cahill should
go on welfare if he thought he could make more money. Fi-
nally, through a series of leading questions put to her by at-
torney Lewis in what took on the appearance of a well-re-
hearsed script, Metz answered, with a simple ‘‘No’’ when
asked if she had heard Zuba threaten to close the store if it
became unionized, give an opinion on what would happen if
the Union organized the store, tell employees that the store
would not expand and would close if the Union came in, say
that the Tunkhannock store would never have a union be-
cause Weis would close the store, tell employees it would do
them no good to select the Union as their bargaining agent,
or say that if the Union came into any of the stores, they
would close and everyone would be out of a job (Tr. 680–
683).
Swick: Swick, A receiving clerk at the Tunkhannock
store, heard Zuba basically talk about a competitor su-
permarket, Insalacos, how Respondent had to stay sharp
as a result, and about plans to remodel the store. He
claims Zuba discussed how the unionized competition
was doing, and ‘‘just might have mentioned’’ that the
Acme and Giant stores in the area ‘‘were union and
weren’t doing well at the time.’’ The highlight of the
meeting, according to Swick, was when Cahill men-
tioned he could make more money on welfare, and both
Zuba and Cahill ‘‘sort of started arguing.’’ Zuba then
told Cahill ‘‘to go on welfare.’’ Beyond this, Swick
could recall little else of what Zuba may have said. De-
spite the leading questions posed to him by attorney
Lewis, Swick testified he could not recall if Zuba com-
mented on what would happen if the Union came into
any of Mr. Z’s stores, if he mentioned the store would
close and there would be no jobs if it became union-
ized, or whether he told employees it would do them
no good to select the Union as their bargaining agent
because the Union could do nothing for them. Swick,
however, expressly denied that Zuba told employees
there would be no expansion of the store because of the
Union. On cross-examination, Swick suggested that the
discussion of the Union was only a minor part of the
meeting, and that the principal focus of the meeting
was Respondent’s competition. However, while claim-
ing that he paid close enough attention to what was
being said, he admitted he could only remember ‘‘bits
and pieces.’’
Sands: Employed as an assistance produce manager
at the Tunkhannock store, Sands testified Zuba talked
about unions at the meeting, and made reference to the
fact that other area stores like Acme and Giant which
were unionized had closed. She also recalled hearing
Cahill ask a question on welfare, and heard Zuba re-
spond, ‘‘If you feel that way, you can go on welfare.’’
She further stated that she ‘‘thinks’’ someone else
might have asked a question but could not recall who
it was or what was asked. Through a series of leading
questions put to her by Attorney Lewis, Sands, with
simple ‘‘yes’’ or ‘‘no’’ responses denied that Zuba told
employees the Tunkhannock store would close if the
Union came in, telling them what would happen if the
Union organized the store, saying it would do employ-
ees no good to select the Union as their representative
because it could do nothing for them, saying that Weis
would never have a union and would close the store,
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888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 I find no basis for drawing an adverse inference from the fact
that Cahill and Miller, who testified to having taken notes at the Jan-
uary 23, morning meeting, discarded the notes shortly thereafter, as
the Respondent has requested I do (R. Br. 60, fn. 33). MK Railway
Corp., 319 NLRB 337, 341 (1995), relied on by Respondent to sup-
port such an adverse inference is factually distinguishable. Thus, in
MK Railway, unlike here, there was no evidence to indicate that the
notes in question no longer existed. Further, unlike the witness in
MK Railway, who relied on his recollection of what was contained
in the missing notes to furnish testimony, Cahill and Miller here pro-
vided testimony based on what they remembered of the January 23,
meeting, and were not relying on what they may have recorded in
their notes. Accordingly, Respondent’s reliance on MK Railway as
a basis for having me discredit either Cahill or Miller is misplaced
and without merit.
or telling them that the Tunkhannock store would not
expand if the Union came in. On cross-examination,
she recalled Zuba saying that just because ‘‘you’re
union don’t mean you have job security.’’ She further
admitted she had difficulty recalling much of the meet-
ing (Tr. 754–757; 760–761).
Dymond: The last of the Respondent’s witnesses re-
garding the morning meeting, Dymond, the Tunk-
hannock store’s bakery manager, had absolutely no
independent recollection of what transpired at that
meeting. As he did with Sands, Metz, and several other
witnesses, Respondent’s counsel, through a series of
leading and suggestive questions, solicited negative re-
sponses from Dymond to questions on whether Zuba
made threats to close the store if it were unionized,
whether he said the store would close if the Union
came in, whether he mentioned that the Tunkhannock
store would never have a union because Weis would
close the store, and whether he told employees it would
do them no good to select the Union as bargaining
agent because it could do nothing for them. She further
denied Zuba told employees that if the Union came into
any of Mr. Z’s stores, they would close and everyone
would be out of a job. Indeed, the only thing she re-
called without any prompting from Respondent’s coun-
sel was Cahill’s welfare query to Zuba, and the latter’s
reply that ‘‘he wasn’t the person to ask because he
didn’t know the answer.’’ Dymond, however, claims
that Cahill asked Zuba another question about welfare,
and that Zuba responded by telling him if he thought
people on welfare make more money, he (Cahill) was
free to go on welfare.
(b) The January 23, afternoon meeting
At approximately 4 p.m. on January 23, Zuba held another
mandatory meeting at the Tunkhannock store, presumably for
those employees who did not attend the morning meeting. As
with the morning meeting, the subject matter pertained to the
Union and Zuba claims he followed basically the same script
as previously testified to by him. However, Zuba claims that
during the afternoon meeting, an employee asked him about
the status of employee raises, and that he responded he had
already submitted a request for raises to Weis, and that the
request was made either on January 19 or 20, in accordance
with past practice. Davis also attended this meeting. He testi-
fied to hearing Zuba tell employees he was recommending
to Weis that employees be given a raise, and admit that he
should not be telling them about the raise. Davis testified
that employees usually got raises once a year, but that Zuba
had to first put in for such raise. Dudek also attended this
particular meeting, but testified that he could only remember
bits and pieces of what Zuba said. In fact, he claims that for
the most part he recalled that Zuba talked about wages.
When asked by Respondent’s counsel what Zuba said about
wages, Dudek responded, ‘‘Well, he said he was just going
to try to get us a raise.’’ In response to a leading question,
Dudek modified his response by claiming that Zuba told
them he had put in a wage request for employees. Judy
Saylor, an assistant manager at the Tunkhannock store bak-
ery department also attended the meeting and heard Zuba re-
mark that he ‘‘was putting in for a raise for everybody, ‘‘
but did not hear him say who he had addressed the raise to.
Saylor recalled that the comment about the raise was in re-
sponse to a question which she says came ‘‘out of the blue.’’
Credibility Resolutions
Regarding the January 23 Meetings
As noted, there is a clear discrepancy between the General
Counsel’s and the Respondent’s witnesses as to what Zuba
said or did not say during the morning meeting, with the
former asserting that certain threats were made, and latter de-
nying the same. From a demeanor standpoint, I was more
impressed by the testimony of the General Counsel’s wit-
nesses and am convinced they testified in an honest and
forthright manner. Their testimony was more spontaneous
and detailed, and, unlike the Respondent’s witnesses, not
elicited through leading questions. Further, two of them, Bur-
roughs and Miller, were still employed by the Respondent as
of the date of the hearing, entitling their testimony to greater
weight, Sam’s Club, 322 NLRB 8 (1996); Van Vlerah Me-
chanical, 320 NLRB 739, 744 at fn. 8 (1996), and Bonavita,
who, as noted, had voluntarily left the Respondent’s employ
by the time of the hearing, was a disinterested witness with
nothing to gain from the outcome of this hearing, making her
testimony that more reliable.37
The Respondent’s witnesses, on the other hand, were not
very convincing and, at times, provided conflicting testi-
mony. Thus, Davis’ testimony, for example, that the meeting
was intended as a morale booster rather than a discussion on
the Union is clearly at odds with Zuba’s admission that the
meeting was intended to give employees Respondent’s side
of the story regarding unionization, conflicts with Rinaldi’s
claim that the focus of the meeting was to discuss the
Union’s ability to protect employee jobs, and was implicitly
disputed by Metz who testified that Zuba began the meeting
by advising employees that the Union had begun an organiz-
ing campaign. Davis also initially denied that Zuba told em-
ployees that Weis did not want a union in the store. How-
ever, when confronted with his own affidavit, Davis was
forced to concede that Zuba had indeed made such a remark
to employees. Further, except for Swick who testified he
could not ‘‘recall’’ whether Zuba made any threatening re-
marks, all of the Respondent’s witnesses denied hearing the
threatening remarks attributed to Zuba by the General Coun-
sel’s witnesses. These denials, which for the most part were
simple ‘‘yes’’ or ‘‘no’’ answers to a series of very sugges-
tive, leading questions posed to them by Respondent’s coun-
sel, often without so much as a pretense that the witness’
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889MR. Z’S FOOD MART
38 My finding in this regard in no way diminishes Cahill’s overall
trustworthiness and reliability as a witness, for nothing is more com-
mon than for a trier of fact to believe some, but not all, of a witness’
testimony. Farmer Bros. Co., 303 NLRB 638, 649 (1991).
independent recollection of events had been exhausted, are in
my view entitled to little or no weight. Laser Tool, Inc., 320
NLRB 105, 109 (1995) (‘‘The essential bare denial that
events occur or that any specific statements were made is not
a persuasive or helpful aid to an evaluation of credibility’’).
Overall, the testimony of Respondent’s witnesses was not
persuasive and to the extent it disagrees with that of the Gen-
eral Counsel’s witnesses is not credited.
Analysis
I. ZUBA’S STORE CLOSING, JOB LOSS, AND FUTILITY OF
SELECTING A UNION REMARKS
The standard for determining the legality of Zuba’s com-
ments was set by the Supreme Court in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). The Court (at 618) stated:
[A]n employer is free to communicate to his employ-
ees any of his general views about unionization or any
of his specific views about a particular union, so long
as the communications do not contain a ‘‘threat of re-
prisal or force or promise of benefit.’’ He may even
make a prediction as to the precise effect he believes
unionism will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer’s be-
lief as to the demonstrably probable consequences be-
yond his control or to convey a management decision
already arrived at to close the plant in case of unioniza-
tion.
The credited testimony of the General Counsel’s witnesses
establishes that Zuba implicitly told employees it would be
futile to select the Union as their bargaining representative
because it could do nothing for them, and further warned that
if they selected the Union to represent them Respondent
would close the store and employees would lose their jobs.
I do not doubt that Zuba also made reference to the fact that
other unionized stores in the area had closed, and that he
may have done so partially in response to what he claims
was the Union’s promise of job security contained in the lit-
erature distributed to employees. If Zuba had limited his re-
marks to simply pointing out the effect unionization has had
on other area stores, I would have no difficulty finding his
comments to have been protected under Section 8(c). Blue
Grass Industries, 287 NLRB 274, 275 (1987). However,
Zuba did not restrict his remarks to what had happened at
other stores, but instead proceeded to threaten that his own
store would close and jobs would be lost if the Union were
brought in. Nothing in his latter comments suggest that Zuba
intended his store closing remark as a mere prediction, based
on objective factors, of the likely economic consequences be-
yond the Respondent’s control the Union would have on its
operations. Even assuming, arguendo, that Zuba may have
had a good faith belief (which I sincerely doubt) that union-
ization will or may result in store closings, the expression of
his views was hardly a statement of fact based on objective
evidence. In short, Zuba’s threat to close the store was made
contingent on the success or failure of the Union’s organiza-
tional campaign, not on economic necessities. The message
to employees at this particular meeting was quite clear: sup-
port the Union and risk losing your jobs. In these cir-
cumstances, Zuba’s threat to close the store and put employ-
ees out of work, and that the Union could do nothing for
them, exceeded the bounds of permissible conduct under
Section 8(c), and violated Section 8(a)(1) of the Act, as al-
leged. See Farris Fashions, 312 NLRB 547, 556–557 (1993).
II. COMMENTS REGARDING EXPANSION OF
TUNKHANNOCK STORE
It is also alleged that Zuba unlawfully threatened not to
expand the Tunkhannock store if the Union came in. The
evidence relied on by the General Counsel consists of
Cahill’s testimony that he heard Zuba make such a remark.
Zuba’s testimony reflects that he discussed expansion of the
stores, but only in a broad and positive sense (e.g., ‘‘we can
expand our operations’’) and not in the specific manner de-
scribed by Cahill. Cahill’s testimony in this regard was not
corroborated by any other witness. While I believe Cahill
may have heard Zuba make a reference to the expansion of
the stores, I am not persuaded, particularly given the lack of
corroboration, that Cahill actually heard Zuba mention he
would not expand the Tunkhannock store. Rather, I believe
Cahill simply misinterpreted what Zuba was saying on the
question of expansion. As there is insufficient credible evi-
dence to support this allegation, it shall be dismissed.38
III. ENCOURAGING AN EMPLOYEE TO QUIT
HIS EMPLOYMENT
The General Counsel further alleges that Zuba’s comment
to Cahill, that he should go on welfare, was also unlawful
and violative of Section 8(a)(1). I disagree. Initially, there is
no disputing that such an exchange occurred, for witnesses
on both sides testified to hearing, in one form or another,
Cahill ask why persons on welfare could make more money
than employees working for Mr. Z’s, and Zuba respond that
if Cahill believed that he should quit and go on welfare. The
evidence, however, fails to establish that Zuba knew or had
reason to suspect that Cahill was somehow involved with the
Union when this exchange occurred. Indeed, the earliest such
knowledge can be attributed to Zuba was immediately after
the meeting, when Zuba observed Cahill outside the store
talking to Chincola while the latter distributed Union lit-
erature to employees. The General Counsel contends that
knowledge of Cahill’s support for the Union can be imputed
to Zuba because the views expressed by the latter regarding
low employee wages purportedly echo the position set forth
in the union literature sent to employees’ homes. Clearly,
any employee in attendance at the meeting, whether or not
predisposed to the Union, may have had a similar concern
about the alleged state of Respondent’s low wages. To as-
sume, therefore, as the General Counsel would have me do,
that Zuba could have known or suspected from a simple
query regarding employee wages that the employee asking
the question was somehow involved with the Union would,
in my view, be unreasonable and highly speculative, and
would constitute too slender a thread on which base a finding
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890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Stoody Co., 312 NLRB 1175 (1993); McDonald’s Land & Min-
ing Co., 301 NLRB 463 (1991); and House Calls, Inc., 304 NLRB
311 (1991), cited in the General Counsel’s posthearing brief (p. 42),
are factually distinguishable in that, unlike here, the employer’s re-
marks in those cases were made with knowledge that the employee
to whom they were directed was a union supporter or was otherwise
engaged in protected concerted activity.
of a violation. Accordingly, I find that Zuba’s response did
not contravene any provision of the Act.39
IV. PROMISE OF A WAGE INCREASE
Finally, it is alleged that during the January 23, afternoon
meeting, Zuba unlawfully promised employees a wage in-
crease to induce them into rejecting the Union. I find merit
in this allegation. There is no question that Zuba told em-
ployees that he was putting in for a raise, for Zuba readily
admits having said so, a fact confirmed by Davis, Dudek,
and Saylor. However, Zuba’s claim that a request for yearly
raises was submitted every year around January 19 or 20,
was unsubstantiated by oral or documentary evidence. Davis,
who testified that employees received yearly raises and that
Zuba often had to put in for them, did not state when such
a request was normally made. Consequently, assuming that
employees received yearly raises, the only evidence as to
their timing was Zuba’s unsubstantiated claim that such re-
quests were normally submitted on or about January 19 or
20. Clearly, one would expect that Respondent would have
some documentation to support Zuba’s above claim. In fact,
Zuba’s testimony that he had put in a similar request in writ-
ing to a Mr. Richard Ready for the upcoming year makes
clear that if such a request had been made on or about Janu-
ary 19 or 20, it would have been memorialized in writing
(Tr. 1046). Thus, Respondent’s failure to produce such docu-
mentation convinces me that none exists. Eddyleon Choco-
late Co., 301 NLRB 878,898 (1991). In the absence of such
corroboration, I give no credence to Zuba’s claim that he had
an established practice of submitting requests for employee
raises on January 19 or 20 of every year.
Nor am I convinced that Zuba in fact submitted such a re-
quest on January 19 or 20, just prior to the January 23, meet-
ing, as claimed by Respondent. Davis, for example, did not
state that such a request had been made, and testified only
that Zuba told employees ‘‘he was trying to get them a
raise.’’ His further testimony that ‘‘we usually get them like
maybe once a year’’ is somewhat ambiguous and could be
read to mean that either requests for raises are not made
every year, or that the actual raises are not approved every
year (Tr. 262). Dudek, who admitted to having a poor recol-
lection of what was said at that particular meeting, initially
testified that Zuba told employees ‘‘he was just going to try
to get us a raise,’’ and made no mention of hearing Zuba
state that such a request had already been made. Only when
Respondent’s counsel prompted him by asking him, ‘‘He put
in a wage request to Weis Markets?’’ did Dudek respond,
‘‘Right.’’ (Tr. 888.) I place no credence on Dudek’s latter re-
sponse. Likewise, Saylor’s testimony, that Zuba told employ-
ees ‘‘he was putting in for a raise for everybody,’’ gives no
indication that Zuba had already done so and, if anything,
suggests some future, rather than past, conduct on his part
(Tr. 282). Nor does the evidence persuade me that Zuba’s
discussion of the wage increase came in response to an em-
ployee question. Neither Dudek nor Davis testified that Zuba
was responding to a question and make no claim to having
heard any question being asked. Saylor initially testified that
Zuba ‘‘just commented’’ on the raise question, but subse-
quently added, ‘‘I think somebody asked him. That was it.
He didn’t . . . it didn’t have anything to do with the con-
versation, somebody asked.’’ Indeed, her further testimony
suggests that Zuba’s mention of the wage increase came in
response to a totally unrelated question posed to him by an
employee. Thus, while she could not recall what question
was asked by the employee, she claims that ‘‘this thing about
raises comes out of the blue and in response to a question
by an employee.’’ Saylor’s testimony as to how the topic of
the wage increase was raised is in my view too confusing
and ambiguous to be reliable. Accordingly, I give it no
weight.
In summary, the Respondent has not demonstrated that
Zuba’s January 23, promise of a wage increase for employ-
ees was consistent with any established past practice. As was
noted by the Supreme Court in NLRB v. Exchange Parts, 375
U.S. 405 (1964):
The danger inherent in well-timed increases in bene-
fits is the suggestion of a fist inside a velvet glove. Em-
ployees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged.
Here, Zuba’s promise of a wage increase during the
afternoon meeting followed a morning meeting during
which a concern over the purportedly low wages by Re-
spondent was raised by at least one employee, Cahill,
at the end of that meeting. Clearly, Zuba’s rather acer-
bic response to Cahill’s query regarding wages, that he
should go on welfare, corroborated by witnesses on
both sides, could hardly have been the answer Cahill or,
for that matter, other employees in attendance expected
or indeed wanted to hear. While I have no way of
knowing what went through Zuba’s mind following this
exchange, given Zuba’s concern that his stores might
become unionized, and his opposition thereto as evident
from his threats to close the store and put people out
of work if the Union came in, it would not be unrea-
sonable to believe that Zuba may have concluded his
welfare comment to Cahill did not go over well with
employees and might, if anything, encourage rather
than dissuade employees from supporting the Union.
Absent any credible evidence of a past practice as to
the timing or grant of yearly wage increases, or to show
that Zuba had indeed put in for such a raise on or about
January 19 or 20, I find that Zuba’s promise of a wage
increase during the January 23, afternoon meeting may
have been designed to remedy any harm his morning
comments may have done to his antiunion message, and
was intended as an inducement to discourage employ-
ees from supporting the Union. Accordingly, the Re-
spondent’s promise of a wage increase was unlawful
and violative of Section 8(a)(1).
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891MR. Z’S FOOD MART
40 Kern testified, credibly and without contradiction, that following
his meeting, Miller and employee Richard Colinowski volunteered to
train as checkers or cashiers (Tr. 812). Miller’s description of his du-
ties as a ‘‘stock person, deli, cashier’’ supports Kern’s testimony in
this regard.
V. TELLING UNION ORGANIZERS NOT TO BOTHER
AN EMPLOYEE
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) when Zuba told Chincola and the organizers not
to bother Cahill. Zuba, as noted, admits having so instructed
the organizers. It is not totally clear whether his comment
was made before or after he asked Cahill if the organizers
were bothering him. In any event, the order in which the re-
marks were made is of no consequence. What is significant,
however, is that Zuba must have known that Chincola and
the others were union representatives given that they were
openly distributing union literature to other employees. Noth-
ing in his testimony suggests otherwise. In fact, Zuba made
no effort to ask who they were or whether Cahill knew them,
nor indeed did he have a right to do so, as the organizers
were not on Respondent’s property and Cahill, who was off
work at the time, was free to talk to whomever he pleased.
Rather, Zuba’s abrupt intrusion into the Cahill/-Chincola con-
versation to inquire if Cahill was being bothered by the orga-
nizers and to direct Chincola not to bother him, followed im-
mediately thereafter by his unlawful attempt to eject the or-
ganizers from the property, was clearly an attempt by Zuba
to keep the Union from conveying its message to employees
and from having the latter learn more about the Union, and
further interfered with Cahill’s right to freely talk to and as-
sociate with Union organizers on his own time. Accordingly,
I find, in agreement with the General Counsel, that Zuba’s
remarks violated Section 8(a)(1) of the Act.
(c) The threat to reduce employees’ work hours
The complaint alleges that on January 27, the Respondent
unlawfully threatened to reduce employees’ work hours be-
cause of their union activity. This allegation, as noted, is
based on testimony from Miller, who claims to have heard
Kern say that ‘‘if we didn’t start working harder, he was
going to hire more people and cut our hours,’’ and on
Cahill’s testimony that he heard Kern remark aloud to
Adamsky, ‘‘If this crap doesn’t stop, we’re going to cut the
hours and bring in our own guys.’’ It is patently clear, first
of all, that Cahill and Miller were describing different inci-
dents. Cahill, for example, states that Kern made his remark
during a conversation between Kern and Adamsky in the
‘‘juice’’ aisle, and that while Miller was nearby he did not
hear Kern’s remark. Miller, on the other hand, overheard
Kern’s remark presumably during Kern’s meeting with em-
ployees in which he discussed both the condition of the store
and the shortage of checkers. Miller, as noted, could not re-
call if Cahill was at the meeting. While there is no question
that Kern at some point stated that ‘‘this crap has to stop,’’
I am convinced that his comments in this regard related to
what he perceived was the night shift’s inability to work
harder to ensure that the store maintained an orderly appear-
ance and that shelves were properly stocked. Although Miller
testified that on the morning when Kern found the store in
disarray the new freight had been shelved, he admits that
employees were still working on shelving the old freight that
was in the storeroom, raising the likelihood that Kern’s dis-
satisfaction was directed at the employees’ failure to have
completed the job of shelving the old freight. Further, al-
though Miller did not testify to hearing Kern discuss other
matters at this meeting, such as the shortage of checkers on
the night shift, his failure to do so was due to the fact none
of the parties saw fit to ask him what else, if anything, Kern
may have said, and not from any specific denial that Kern
discussed the shortage of checkers. Thus, I credit Kern’s ac-
count, which is undisputed, that at this meeting he discussed
both the messy condition of the store and the need to obtain
additional checkers.40 Further, I have no doubt that Miller
may have heard Kern say something to the effect that em-
ployees had to work harder and that hours would be cut.
However, I am inclined to believe Kern’s remarks in this re-
gard were separately made in addressing the issues of the
messy store and the checker shortage, and not as the com-
bined statement purportedly heard by Miller. Thus, I find that
Miller simply misheard what Kern actually said. Miller, as
noted, was not sure if Cahill was present at this meeting, and
Cahill was not questioned on whether he attended any such
meeting. Cahill, as noted, also claims to have heard at some
other time Kern make his ‘‘crap’’ remark. Again, I am con-
vinced that to the extent such a remark was overheard by
Cahill, it reflected Kern’s ongoing concern about the condi-
tion of the store and the shortage of checkers. I am, in any
event, somewhat skeptical as to Cahill’s testimony in this re-
gard. His claim, for example, that Miller was standing nearby
but did not hear Kern make the remark is difficult to accept,
as he could have no way of knowing what, if anything, Mil-
ler might have heard. Miller, on the other hand, was not
asked to corroborate Cahill’s account. Given these facts, I
find the evidence insufficient to support the allegation that
Kern threatened to reduce employees’ work hours because of
their support for the Union, and shall, accordingly, rec-
ommend dismissal of this allegation.
(d) The union button incident
The complaint, as noted, alleges that the Respondent vio-
lated Section 8(a)(1) when Davis directed Cahill to remove
the union button he was wearing. While not denying the alle-
gation, the Respondent contends that any violation that may
have occurred from this incident was effectively cured when
Cahill was allowed to continue wearing the button without
incident, citing Atlantic Forest Products, 282 NLRB 855
(1987). Generally speaking, the wearing of union insignia to
work is a right protected by Section 7 of the Act and unless
an employer can show the existence of ‘‘special consider-
ations’’ justifying a restriction on that right, the interference
therewith will be found to be unlawful. Albertson’s, Inc., 319
NLRB 93, 103 (1995). As no such argument or showing has
been made here by the Respondent, Davis’ conduct in asking
Cahill to remove the button is found to be violative of Sec-
tion 8(a)(1). The Respondent’s reliance on Atlantic Forest
Products to show that the violation was effectively cured is
without merit. In the instant case, unlike in Atlantic Forest
Products, where the restriction on the wearing of union but-
tons was removed soon after employees were told they could
not wear such buttons, e.g., within 30 minutes to 2–3 hours
later, Cahill was not allowed to wear the button until the fol-
lowing day, presumably after Davis had consulted on the
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892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 Enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
42 Although Adamsky sought to portray Cahill as a less than satis-
factory worker (Tr. 307), the only two evaluations prepared on him
during the first several months of his employment show that Cahill
was a satisfactory worker. Further, there is no evidence to indicate
that prior to his discharge Cahill had ever had problems at the work-
place or been disciplined or warned for misconduct. Adamsky’s at-
tempt to portray Cahill as a poor employee detracts further from his
overall credibility.
matter with Respondent’s counsel. Further, despite being al-
lowed to wear the button the next day, Cahill was again ap-
proached by Assistant Manager Dudek and told to remove
the button. Dudek’s behavior in asking Cahill to remove the
button after Davis had authorized Cahill to wear it makes
clear that Respondent made no effort to communicate to su-
pervisors that employees were free to engage in such conduct
and in all likelihood, with the exception of Cahill, did not
notify employees of their right to do so without interference.
Given these facts, I cannot find that the Respondent’s repudi-
ation was unambiguous, done in a timely fashion, or effec-
tively communicated to employees. Accordingly, I find that
the alleged repudiation does not meet the criteria set forth in
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
See Comcast Cablevision, 313 NLRB 220, 253 (1993).
B. The 8(a)(3) and (4) Allegations
1. Cahill’s discharge
The General Counsel contends that Cahill was discharged
on April 29, because of his Union activities and for having
given an affidavit to the Board in support of the charges filed
by the Union in this matter. The Respondent denies the alle-
gations, claiming Cahill was lawfully discharged for having
threatened his supervisor Adamsky.
Under Wright Line, 251 NLRB 1083 (1980),41 the General
Counsel has the burden of establishing a prima facie case
that is sufficient to support the inference that protected con-
duct was a motivating factor in an employer’s decision to
discipline or discharge an employee. To do so, the General
Counsel must show that the affected employee was engaged
in union activities, that the employer had knowledge of such
activities, and that it harbored antiunion animus. Once this is
established, the burden shifts to the employer to demonstrate
that the action taken against the employee would have oc-
curred even in the absence of protected conduct. If the em-
ployer’s explanations for its actions are found to be
pretextual—that is, they either do not exist or were not in
fact relied upon—the employer will not have met its burden
and the inquiry is logically at an end. Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982).
The credible evidence of record reveals that the General
Counsel has made a strong prima facie showing that Cahill’s
discharge was motivated by antiunion considerations. Cahill
was the prime mover behind the Union’s attempt to organize
Respondent’s employees, having first made contact with the
Union in November 1994 at which time he signed an author-
ization card. Thereafter, he solicited other employees to do
the same. Cahill also was responsible for notifying the Union
about the January 23 meetings which led to the leafleting by
union organizers in front of Respondent’s stores, and further
openly displayed his prounion stance by wearing a Union
button to work. It is also undisputed that Respondent was
fully aware of Cahill’s involvement with the Union before
discharging him on April 28. Thus, both Davis and Brown
admit knowing as early as January 23, of his activities, and
both Kern and Adamsky sometime in January began refer-
ring to Cahill as either ‘‘Mr. Union’’ or ‘‘Union boy.’’ Fur-
ther, Davis and Dudek both saw Cahill wearing his union
button within a month prior to his discharge. Finally, Zuba’s
threat to close the store and that employees would lose their
jobs if the Union were brought in, and his suggestion that
it would be futile for employees to select the Union as their
bargaining agent, provides clear evidence of Respondent’s
antiunion animus. Given the above, I find that the General
Counsel has satisfied his initial Wright Line burden of proof.
The burden now shifts to the Respondent to demonstrate that
Cahill would have been discharged on April 29, even if he
had not engaged in any union activity.
The Respondent defense rests for the most part on a claim
that Brown’s decision to discharge Cahill was made follow-
ing Brown’s investigation of Adamsky’s claim that Cahill
had threatened him with a car bomb, and on Brown’s good
faith belief that Cahill had indeed threatened Adamsky. Ini-
tially, a determination needs to be made on whether or not
Cahill in fact threatened Adamsky on March 29. While there
is clearly a difference in the versions of the March 29 inci-
dent provided by Adamsky on the one hand, and Cahill and
Burroughs on the other, I find that even if I were to accept
Adamsky’s version as accurate, which I do not, the evidence
would not support a finding that a threat was made.
Adamsky’s version reflects only that while looking at him
(Adamsky) in a mad way, Cahill told Burroughs that he and
his brother had gotten a book on how to make car bombs
and described what happens to the body after such a bomb
goes off. According to Adamsky, he then asked Cahill if the
latter was threatening him, and asserts that Cahill simply
walked away without saying anything. Thus, by Adamsky’s
own account, there was no threat made. Adamsky’s claim
that he took Cahill’s remarks to Burroughs as a personal
threat to him is premised not on any particular words di-
rected at him by Cahill but rather on his claim that Cahill
gave him a ‘‘mad look’’ (subsequently recharacterized by
Adamsky as ‘‘upset,’’ ‘‘annoyed,’’ ‘‘ a grimace,’’ and ‘‘a
frown’’) when he made his remarks. It is patently clear
therefore from Adamsky’s own testimony that Cahill never
actually threatened him and that the latter simply assumed it
to be so from his rather dubious interpretation of Cahill’s fa-
cial expression (Tr. 315; 317).
Adamsky, in any event, was not a credible witness. His
overall demeanor was poor and his account of what tran-
spired on March 29, confusing and contradictory. He was at
times evasive, as when he was asked about Cahill’s overall
job performance (Tr. 307),42 and feigned an inability to un-
derstand the fairly straightforward and simple questions
posed to him by the General Counsel (Tr. 1012). While
Davis may have been told by Adamsky about what occurred
on March 29, Adamsky’s claim that he reported the incident
first to Kern and subsequently to Baliant was not corrobo-
rated by Kern, who as noted, testified at the hearing, or by
Baliant, who was not called as a witness. Nor was there any
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893MR. Z’S FOOD MART
43 Burroughs, as noted, was still employed by Respondent at the
time of the hearing and has no discernible interest in the outcome
of this proceeding. These factors obviously enhance his overall
credibility. Van Vlerah Mechanical, 320 NLRB 739, 744 at fn. 8
(1996); Stanford Realty Associates, 306 NLRB 1061, 1064 (1992).
44 Interestingly, Respondent’s counsel cut Rakoskie off in mid-sen-
tence before the latter could finish what he had to say. I am con-
vinced attorney Lewis cut him off intentionally as Rakoskie’s testi-
mony was clearly pointing to the fact that the discharge decision was
made before the matter had been fully investigated or even discussed
with Cahill, and in this regard contradicted Brown’s assertion that
the decision to discharge Cahill was made on April 29, following
his investigation of the incident.
45 The cases cited by Respondent, e.g., Evans St. Clair, Inc., 278
NLRB 459 (1986); Power, Inc., 311 NLRB 599 (1993); Tri-City
Fabricating & Welding Co., 316 NLRB 1096 (1995), are factually
distinguishable from the instant case. In those cases, unlike here,
there was evidence of actual threats having been made justifying the
discharges of the employees in question.
corroboration of many of the subsequent incidents of threats
and harassment which Adamsky claims were directed at him
following Cahill’s discharge, leading me to further doubt
whether these incidents actually occurred or were simply a
figment of what I am inclined to believe was Adamsky’s
overly active and possibly paranoid imagination. In contrast,
Cahill and Burroughs came across as sincere, honest, and
straightforward witnesses. While Cahill clearly had an inter-
est in the outcome of this proceeding which might tend to
color his testimony, I believe, especially in view of Bur-
roughs’ corroborative testimony,43 that Cahill provided an
accurate and truthful account of the March 29, incident.
Thus, while I am inclined to believe Adamsky may have
overheard Cahill’s ‘‘car bomb’’ conversation with Burroughs,
his assertion that Cahill was staring at him when he made
his remarks has been credibly denied by Cahill and is re-
jected. Assuming arguendo that Adamsky honestly felt
threatened by what he overheard Cahill and Burroughs dis-
cussing, such fears clearly were not based on any words or
conduct directed at him by Cahill but was, as suggested
above, the product of an overactive imagination.
Thus, when Brown discharged Cahill on April 29, he did
so based on alleged misconduct by Cahill that did not occur.
The Respondent, however, suggests that because Brown hon-
estly believed, based on his investigation, that the threat was
in fact made, the discharge cannot be found to have violated
the Act. I disagree. First, Brown’s own testimony indicates
that he was never told of an actual threat having been made
by Cahill, only that Adamsky perceived one had occurred.
Thus, when asked what he had been told, Brown testified
that Adamsky ‘‘had said that [Cahill] had a book on making
car bombs, and Mr. Adamsky took that as a threat.’’ (Tr.
537.) According to Brown, at the management meeting held
on April 27, Cahill’s alleged threat, along with other inci-
dents that had occurred at the store, was discussed and on
Attorney Lewis’ advice, Brown agreed that he and Lewis
would meet with Adamsky to confirm that the alleged threat
had been made. Brown testified he had previously discussed
the incident with Adamsky but wanted to confirm it one
more time. If confirmed, Brown then would confront Cahill
and his discharge would be effectuated if Brown were con-
vinced that the incident in fact occurred.
There are two problems with Brown’s testimony in this re-
gard which cause me doubt his overall veracity. Initially,
Adamsky makes no mention in his testimony of having dis-
cussed the incident with Brown prior to April 28. Thus, he
testified only that he informed Kern, Davis, and Baliant of
Cahill’s alleged remarks, and that he discussed the matter
with Brown on April 28. Brown’s claim that he had dis-
cussed the matter with Adamsky prior to April 28, and that
he simply wanted to confirm the latter’s story, is therefore
at odds with Adamsky’s testimony and is not credited (Tr.
545; 996). More importantly, Brown’s claim that he waited
to make his inquires from Adamsky and Cahill before decid-
ing to discharge Cahill is contradicted by Rakoskie, whose
testimony strongly suggests that the discharge decision had
already been on made on April 27, before Brown even met
with Adamsky or Cahill, and that the decision was based not
only the alleged threat but on other unrelated matters as well.
Thus, testifying as to what occurred at the April 27, meeting,
Rakoskie stated that he ‘‘participated in the decision to ter-
minate Mr. Cahill,’’ and that it was a ‘‘consensus decision
. . . based on the threats to the store, threats to the super-
visor, and the incidents at the store.’’ (Tr. 329.)44 Given
Brown’s inconsistencies, I credit Rakoskie and find that the
decision to discharge Cahill was in fact made at the April
27, management meeting, and that the subsequent interview
of Adamsky and Cahill was simply a charade aimed at lend-
ing an air of legitimacy to an otherwise unlawful discharge.
But even if I were to credit Brown’s assertion that Cahill
was discharged on April 29, after being interviewed by
Brown, the result would be the same inasmuch as neither
Adamsky’s or Cahill’s version of what occurred establishes
that a threat was made. In fact, all evidence relating to this
incident support a finding that Cahill’s discharge for alleg-
edly threatening Adamsky was simply a pretext used by Re-
spondent to rid itself of the Union’s leading adherent. Brown,
for example, never bothered to interview Burroughs, the only
other person present during the March 29, incident. Further,
despite the alleged seriousness of the threat, no action was
taken against Cahill until 1 month later, during which time
Cahill and Adamsky worked side by side. If, as Adamsky
claims, he had this overwhelming fear for his life stemming
from the threat, it is highly unlikely that he would have
wanted to, or been allowed to, work together with Cahill.
Clearly, Cahill could have been transferred to another shift,
or store, for that matter pending further review of the inci-
dent. Respondent’s willingness to allow the matter to sit for
a month until its labor counsel, Lewis, returned from a pur-
ported vacation simply strains credulity. Finally, the inclu-
sion of the March 29, incident in Respondent’s ‘‘Union Ac-
tivity’’ log, suggests to me that Respondent intended to use
this incident as a pretext to discharge Cahill. In summary, I
find that the asserted reason for discharging Cahill was
pretextual, that Respondent in fact discharged him because of
his union activities, and that in doing so, the Respondent vio-
lated Section 8(a)(3) and (1) of the Act, as alleged. Beaird
Industries, 311 NLRB 768 (769); Gamewell Mfg., 291 NLRB
702, 705 (1988).45
There remains the allegation that the discharge also vio-
lated Section 8(a)(4) and (1) of the Act. I find no evidence
to support this particular allegation. The General Counsel
readily concedes that there is no explicit evidence to estab-
lish that Respondent knew that Cahill was assisting in the
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894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 He testified that while a private individual may file a complaint,
the latter would first have to file an affidavit with the district attor-
ney. If approved, the matter is submitted to a local magistrate after
which a criminal complaint is filed and a summons issued. Poltruck
stated said procedure was not followed in this case.
47 it does not appear that Respondent is disavowing responsibility
for the filing of the complaint. Thus, when referring to the com-
plaint, the Respondent in its posthearing brief frequently makes ref-
erence to how it and Adamsky were entitled to file such a complaint.
Thus, at 74 of its brief, the Respondent states, ‘‘Adamsky and Re-
spondent were lawfully entitled to report Cahill’s threats’’ because
‘‘they had a good faith belief that he had committed a crime,’’ and
at 75 asserts that ‘‘at the time the incident was reported to the state
police, Respondent was unaware of any determination by the law en-
forcement officials,’’ and that it was therefore ‘‘not per se unlawful
for Adamsky or Respondent to report the incident to the police.’’ It
further claims that its conduct here is analogous to that of an em-
ployer in Goldtex, Inc., 309 NLRB 158 (1991), again suggesting im-
plicitly that it was responsible for the filing of the complaint against
Cahill. Finally, Adamsky’s claim that Brown told him he should file
a complaint with the state police convinces me that Adamsky was
simply complying with Respondent’s request and that the latter, not
Adamsky, was responsible for initiating the complaint process.
Board’s investigation of the charges filed by the Union
through the submission of affidavits. He claims, however,
that the fact that Respondent created a ‘‘Union Activity’’ log
in response to the charges filed, and that the log was relied
on to support the discharge, creates a logical nexus between
the filing of the charges and Cahill’s discharge, sufficient to
support a finding of a 8(a)(4) and (1) violation. Such an ar-
gument is tenuous at best, and, in my view, insufficient to
warrant an inference that Respondent acted against Cahill be-
cause it somehow knew or suspected he had assisted in the
Board’s investigation of the charges filed by the Union. Ac-
cordingly, I shall recommend dismissal of this allegation.
2. The filing of criminal charges against Cahill
The General Counsel alleges, and I agree, that the Re-
spondent further violated Section 8(a)(3) and (1) by causing
criminal charges to be filed against Cahill in retaliation for
his union activities. The Respondent’s defense to this allega-
tion is twofold: (1) while a report was made to the state po-
lice regarding Cahill’s threat, no actual complaint was ever
filed; (2) Adamsky and Respondent were lawfully entitled to
report Cahill’s threats based on a good-faith belief that Cahill
had committed a crime. Both arguments are without merit.
As to the former, the Respondent relies exclusively on testi-
mony from Poltruck, who is employed by Weis as director
of security and is a former Pennsylvania state police officer,
that only a report was filed, not a complaint. He testified that
a report formally becomes a complaint only after it has been
investigated by the state police and a determination made
that a crime may have been committed.46 Poltruck’s testi-
mony as to whether or not a complaint was filed was dis-
puted by State Trooper Filarsky who testified that while la-
beled an ‘‘incident report’’ the writeup prepared by trooper
Jordan in fact constitutes a complaint. I credit Filarsky’s tes-
timony that a complaint was indeed filed. In this regard I
note that as an active duty state police officer, Filarsky
would have had greater familiarity with current police policy,
procedure and terminology than Poltruck, who last worked
for the state police in 1991. Further, unlike Poltruck, who be-
cause of his continued employment with Respondent would
have been partial to its position, Filarsky, who testified under
subpoena, was an unbiased witness lacking any predisposi-
tion for one side or the other. Accordingly, Respondent’s
claim that no complaint was filed against Cahill is rejected.
Respondent’s good-faith defense is equally without
merit.47 Under Board law, an employer’s filing of a criminal
complaint will violate Section 8(a)(1) if the complaint lacks
a reasonable basis in law and fact, and had a retaliatory mo-
tive. See Johnson & Hardin Co., supra at 691, relying on
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983). If
a criminal complaint is found to be without merit, the ‘‘rea-
sonable basis in law and fact’’ prong of this test will be
deemed to have been met. Control Services, 315 NLRB 431,
455 (1994). Here, the criminal complaint filed by Respond-
ent against Cahill was fully investigated by the Pennsylvania
state police and dismissed because, according to investigating
officer Filarsky, it was found to be ‘‘groundless.’’ While the
finding that the complaint was without merit came at the
conclusion of the investigative stage, rather than at the end
of a state court proceeding, the state police determination
was tantamount to a final adjudication of the issue. As the
complaint was therefore found to be without merit, I find
that it lacked a reasonable basis in law and fact.
There is also no question in my mind that the complaint
was retaliatory in nature. Indicators of a retaliatory motive
include, inter alia, threats that may have been made, as well
as the demeanor and credibility of witnesses. Control Serv-
ices, supra at 456. Here, the credible evidence establishes
that Adamsky was never threatened by Cahill on March 29,
and in fact was not even a participant in the latter’s discus-
sion with Burroughs. Indeed, Adamsky’s own testimony indi-
cates that he was never actually threatened, and that he only
perceived such to be the case. Moreover, Brown’s own testi-
mony indicates that Adamsky never told him Cahill had
threatened him. At a minimum, Adamsky’s description of the
incident to Brown, which does not make reference to a threat
having been made, and Cahill’s denial to Brown that he ever
threatened Adamsky, should have caused Brown to inquire
further into the matter, such as by interviewing Burroughs,
the only other witness to the March 29 incident. His failure
to do so convinces me that he had no interest in ascertaining
the truth of what occurred, and provides clear evidence of a
lack of good faith in instituting the criminal charges against
him. Further, I have no doubt that Respondent believed
Cahill may have been responsible for the Union’s organiza-
tional efforts at its stores. During the January 23 meeting,
Cahill, as noted, expressed his feelings about the low state
of employee wages to Zuba and while, as found above, Zuba
was unaware at the time of his exchange with Cahill of the
latter’s involvement with the Union, that fact soon changed
immediately after the meeting when Zuba observed Cahill
talking to the union organizers in front of the Tunkhannock
store. I am convinced that Zuba put two and two together
and equated Cahill’s outspokenness during the meeting with
union activism. Further, Cahill’s decision to wear a Union
button to work, and his resistance to having to remove it
when asked to do so by Davis, clearly must have convinced
Respondent that Cahill was not a mere passive union sup-
porter, and may in fact have played a role in the Union’s ef-
forts to organize its stores. As found above, the Respondent
was certainly not shy in summoning the police to evict
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895MR. Z’S FOOD MART
48 See Indian Hills Care Center, 321 NLRB 144 (1996).
49 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
and/or arrest the organizers for engaging in lawful protected
activity. When it filed the criminal complaint against Cahill,
the Respondent was simply following the same pattern. Thus,
the criminal charges resulted not from any threat made to
Adamsky, which as found above was simply a pretext, but
like the discharge itself was in retaliation for his activities on
behalf of the Union. Accordingly, I find that by filing a
criminal complaint against Cahill, the Respondent further
violated Section 8(a)(3) and (1) of the Act. However, like the
discharge, I find insufficient evidence to support a finding
that filing of the criminal complaint also violated Section
8(a)(4) of the Act.
CONCLUSIONS OF LAW
1. The Respondent 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. By telling employees it would close its stores and em-
ployees would lose their jobs if they brought the Union in,
telling them it would be futile to support the Union because
it could do nothing for them, promising employees a wage
increase to induce them into not supporting the Union, telling
employees they could not wear union buttons to work, and
prohibiting nonemployee organizers from distributing leaflets
in front of its Tunkhannock, Plains, and Scranton stores on
January 23 and 24, without having a property right in the
premises entitling it legitimately to do so, and threatening to
call, and in fact calling, the police to evict them, the Re-
spondent violated Section 8(a)(1) of the Act.
4. By discharging Tom Cahill on April 28, for his Union
activities, and thereafter filing a criminal complaint against
him with the Pennsylvania state police in retaliation for such
activities, the Respondent violated Section 8(a)(3) and (1) of
the Act.
5. The above unfair labor practices have the affect of bur-
dening commerce within the meaning of Section 2(6) and (7)
of the Act.
6. Except as specified herein, the Respondent has not en-
gaged in any other unlawful conduct.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(3)
and (1) by discharging Tom Cahill on April 28, I shall rec-
ommend that within 14 days of the Order,48 Respondent
offer him immediate and full reinstatement to his former po-
sition or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make him
whole for any loss of wages and benefits he may have suf-
fered as a result of the unlawful discharge. Additionally, the
Respondent shall be required to reimburse Cahill for any ex-
penses he may have incurred responding to the criminal com-
plaint filed against him, with interest. Backpay shall be com-
puted in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987). The Respondent
shall also be required, within the above-described time pe-
riod, to expunge from its files any and all reference to the
unlawful discharge and to notify Cahill, in writing, that it has
done so and that the discharge will not be used against him
in any way. I shall also recommend that Respondent be or-
dered to petition the Pennsylvania state police to expunge
from files any and all references to the criminal complaint
filed against Cahill, and to notify Cahill in writing that it has
done so.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended49
ORDER
The Respondent, Weis Markets, Inc. t/a Mr. Z’s Food
Mart, Tunkhannock, Plains, and Scranton, Pennsylvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to close its stores and to put employees
out of work if they were to select United Food and Commer-
cial Workers Local 72 as their bargaining representative, tell-
ing them it would be futile to select the Union to represent
them because it could do nothing for them, trying to prevent
employees from talking to Union organizers by telling the
organizers not to bother employees, promising employees a
wage increase in order to induce them into not supporting the
Union, and prohibiting employees from wearing Union but-
tons to work.
(b) Prohibiting representatives of the Union from engaging
in the distribution of literature on the sidewalk, parcel pick-
up, and parking lot areas adjacent to its Tunkhannock, Plains,
and Scranton stores, and threatening them with arrest if they
did not leave said areas, so long as such activity is conducted
in a peaceful manner, is conducted by a reasonable number
of persons, and does not unduly interfere with the normal use
of the facilities or operation of businesses not associated with
Respondent’s stores.
(c) Discharging, filing a criminal complaint, or otherwise
discriminating against Thomas Cahill or any other employee
for supporting, or engaging in activities on behalf of, the
Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Thomas Cahill full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights and
privileges previously enjoyed.
(b) Make Thomas Cahill whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of
this decision.
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896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
50 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Thomas Cahill on April 29, 1995, and petition the Pennsyl-
vania state police to expunge from their files any reference
to the unlawful criminal complaint filed against him, and
within 3 days thereafter notify him in writing that this has
been done and that the discharge will not be used against
him in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
stores in Tunkhannock, Plains, and Scranton, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’50 Copies
of the notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the stores in-
volved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all cur-
rent and former employees employed by the Respondent at
any time since February 16, 1995.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten that our stores will close and tell
you that you will lose your jobs if you were to select United
Food and Commercial Workers Local 72, or any other union,
as your exclusive bargaining representative.
WE WILL NOT tell you that it would be futile to select the
Union to represent you because it could nothing for you.
WE WILL NOT try to prevent you from engaging in discus-
sions with nion organizers by telling the organizers not to
bother you,
WE WILL NOT promise you a wage increase in order to in-
duce you into not supporting the Union, and
WE WILL NOT interfere with your right to wear Union but-
tons to work.
WE WILL NOT order representatives of United Food and
Commercial Workers Local 72, who are engaged in peaceful
handbilling protected by the Act to leave the sidewalk, parcel
pickup, and parking lot areas adjacent to our stores located
in Tunkhannock, Plains, and Scranton, Pennsylvania.
WE WILL NOT call the police to have the Union representa-
tives removed that property, so long as the handbilling is
conducted by a reasonable number of persons and does not
unduly interfere with the normal use of the facilities or oper-
ation of businesses not associated with our stores.
WE WILL NOT discharge, file a criminal complaint, or oth-
erwise discriminate against Thomas Cahill or any other em-
ployee because he supports or engages in activities on behalf
of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Order, offer
Thomas Cahill full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights and
privileges previously enjoyed.
WE WILL make Thomas Cahill whole for any loss of earn-
ings and other benefits resulting from his unlawful discharge,
less any net interim earnings, plus interest.
WE WILL reimburse him for any expenses he may have in-
curred, with interest, resulting from the criminal complaint
unlawfully filed against him.
WE WILL, within 14 days from the date of the Order, re-
move from our files any reference to Thomas Cahill’s dis-
charge, and petition the Pennsylvania State Police to remove
from its files any reference to the criminal complaint filed
against him, and
WE WILL, within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not be
used against him in any way.
WEIS MARKETS, INC. T/A MR. Z’S FOOD
MART
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