Wonder Markets, Inc., 375 (1979)

WONDER MARKETS, INC.

Wonder Markets, Inc. and Retail Employees Union Local 1445,' United Food and Commercial Workers International Union, AFL-CIO. Case I--CA-14041

November 7, 1979 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBFRS MURPHY

AND TRUESDAI.E On November 9, 1978, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authbrity in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.2 and conclusions of the Administrative Law Judge, as modified herein,3 and to adopt his recommended Order, as modified herein.

We agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act by its various acts of granting benefits to, interrogating, surveilling, and threatening employees.

Contrary to the Administrative Law Judge, however, we find that Respondent did not violate Section 8(a)(3) of the Act when it suspended and later discharged employee James Cooney, Jr., inasmuch as Respondent has established that it was unaware of Cooney's union activities when it suspended him, and that it did not consider his union activities when it later discharged him.

We do not question the Administrative Law Judge's conclusion that Respondent harbored animus towards the Union; that conclusion is amply supported by the numerous violations of Section 8(a)(1) of the Act during the organizing campaign. However, we find that the record shows that Cooney's suspenIThe name of the Charging Party, formerl) Retail Employees Union Local 1445, R.C.I.A.. AFL CIO, has been amended to reflect the change resulting from the merger of Retail Clerks International Association and Amalgamated Meatcutters and Butcher Workmen of North America on June 7, 1979.

2Respondent and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr' Wall Products,

Inc, 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings.

3We adopt the Administrative Law Judge's recommended broad ceaseand-desist order because Respondent has shown in this and an earlier case reported at 236 NLRB 787 (1978) a proclivity to violate the Act. See Hlckmoull Foods, Inc., 242 NLRB 1357 (1979).

sion and later discharge were justified by the seriousness of his misbehavior toward his supervisors, particularly his actions with regard to Robert Bachand, and were the actual cause of the action taken against him.

The credited testimony establishes that, on January 10, after a heated disagreement with the meat department manager, Robert Zeena, and the head meatcutter, Bachand, Cooney entered the room holding a knife and told Bachand that 'at a later time I will discuss this incident with you.' Respondent's lower level management issued Cooney a reprimand for this incident: it is not alleged, and the Administrative Law Judge does not find, that this reprimand was unlawfully motivated. A short time later, Respondent's president, David Gould, was informed of Cooney's behavior and reprimand; because of the seriousness of the incident, he directed that Cooney be suspended pending a more thorough investigation.

Cooney testified that, on receiving the reprimand, he notified his immediate superiors that he had recently signed a union card. Respondent's witnesses denied that Cooney made such a statement, and Gould testified that he did not know Cooney had signed a union card when he upgraded the reprimand to a suspension. The Administrative Law Judge credited Cooney's testimony and found that, upon learning Cooney had signed a union card, Respondent reversed its decision on the legitimate reprimand and unlawfully imposed the more severe penalty of suspension.

The Administrative Law Judge further found that, on the next day, while he was on suspension, Cooney's threats toward Bachand escalated. At that time,

Cooney and Union Representative Robert Whitney, in separate vechicles, pursued Bachand in his car.

When Bachand stopped and got out of his vehicle, they engaged in an acrimonious argument with him.

While no blows were exchanged, the argument was explosive enough to prompt others in the area to summon police officers to break up the exchange. Respondent and the police department then investigated the incident and, based on Bachand's account of the incident, apparently conclud...

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