This National Labor Relations Board (NLRB) decision reviews exceptions filed by the General Counsel, the Charging Party, and the Respondent to the decision of Administrative Law Judge (ALJ) David L. Evans. The core of the dispute concerns alleged violations of the National Labor Relations Act (NLRA) stemming from an organizational campaign by the United Food and Commercial Workers Union, Local 400, AFL-CIO, at Farm Fresh, Inc. grocery stores.

NLRB Decision:

The NLRB disagreed with the ALJ's finding that the discharge of employees Warren Carter and Walter Kent did not violate Sections 8(a)(3) and (1) of the Act. The Board found that the General Counsel had established a prima facie case that Carter and Kent were unlawfully discharged due to their union activity.

The Board applied the Wright Line framework. First, it found that the Respondent, through Store Manager Angelo Fasciocco's observation of Carter and Kent delivering union authorization cards, had knowledge of their union activity. Second, the Board adopted the ALJ's findings of unfair labor practices that demonstrated the Respondent's antiunion animus, specifically the unlawful surveillance of Carter and Kent, and other instances of unlawful interrogation and ejection of union organizers at different stores. Coupled with the timing of the discharges, this established the prima facie case of discriminatory discharge.

Under Wright Line, the Respondent then had the burden to prove it would have discharged Carter and Kent even in the absence of their union activities. The Board found that the Respondent failed to meet this burden. For Carter, the ALJ found the stated reason for his discharge to be a "complete sham," a finding the Board affirmed. Thus, the Respondent failed to rebut the prima facie case for Carter's discharge.

Similarly, the Board rejected the Respondent's stated reason for Kent's discharge as pretextual. The Respondent claimed Kent was terminated for violating a "one no-show" rule. However, the General Counsel presented credible evidence, which the ALJ credited, that at least two other employees who engaged in union activity violated this rule but were not terminated. The Board found that Kent was treated disparately compared to these employees, especially considering he had never missed work before. Therefore, the Respondent failed to rebut the prima facie case for Kent's discharge.

Consequently, the Board concluded that the Respondent violated Section 8(a)(3) and (1) by discharging both Carter and Kent in reprisal for their union activity.

Regarding the settlement agreement signed by the parties on December 24, 1986, the NLRB, contrary to the ALJ, found that the Regional Director properly set it aside. The Board reasoned that a settlement agreement can be vacated if there is a failure to comply with its terms or if subsequent unfair labor practices occur. The Respondent's post-settlement conduct, including illegal surveillance, interrogation, and the discriminatory discharges of Carter and Kent, clearly violated the terms of the settlement agreement. Therefore, the agreement was properly vacated, and the case was remanded to the ALJ to consider the allegations predating the settlement.

The Board amended its conclusions of law to reflect that the Respondent violated Section 8(a)(3) and (1) by discharging Kent and Carter due to their support for the Union. The amended remedy included reinstatement, backpay, and expunction of records for Carter and Kent.

Administrative Law Judge (ALJ) Decision:

The ALJ found that the Respondent's discharge of Warren Carter and Walter Kent did not violate Section 8(a)(3) and (1) of the Act. He concluded that the General Counsel had not established a prima facie case under Wright Line because the record failed to show that antiunion animus motivated the discharges. The ALJ found the pretextual nature of the stated reasons for the discharges but ultimately determined the General Counsel had not proven the necessary antiunion animus.

The ALJ also addressed numerous alleged Section 8(a)(1) violations, including denials of access, threats of arrest, surveillance, and impression of surveillance, as well as interrogation. He dismissed most of these allegations.

Key findings by the ALJ included: * Denials of access and threats of arrest: The ALJ found violations in some instances, such as the ejection of Union Representative Dixon from the Wards Corner store and the interrogation of employee Bement involving a polygraph. However, he dismissed other allegations, finding that union organizers engaged in unprotected "table-hopping" or were not witnessed by management in a manner that would create a coercive impact. * Surveillance: The ALJ dismissed allegations of unlawful surveillance, including the maintenance of a logbook at Oyster Point, finding that management observed open and obvious union activity to which union representatives and employees should have no cause to complain. He also found that much of the observed activity was unprotected. * Discharges of Carter and Kent: As noted above, the ALJ found these discharges did not violate the Act. He concluded that the "absolute liability for shift-replacements" rule was a sham but that the General Counsel failed to prove antiunion animus for the discharges. He suggested the real reason for the discharges might have been personal dislike and viewed the union activity as minimal and not the motivating factor. * Settlement Agreement: The ALJ concluded that the post-settlement violations were isolated and minor, arguing it would best effectuate the policies of the Act to reinstate the settlement agreement. He recommended dismissing the discharges and most other allegations, leaving only a few minor 8(a)(1) violations.

Distinction between ALJ and NLRB Decisions:

The primary divergence between the ALJ and the NLRB lies in the findings regarding the discharges of Warren Carter and Walter Kent. While the ALJ found insufficient evidence of antiunion animus to prove an 8(a)(3) violation, the NLRB found that the Respondent's knowledge of union activity, coupled with other proven unfair labor practices and the pretextual reasons for the discharges, established the necessary prima facie case and rebuttal failure. The NLRB also overruled the ALJ on the issue of the settlement agreement, finding that the subsequent unfair labor practices warranted its rescission.

Significant Cases Cited:

• Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): This case establishes the framework for analyzing discriminatory motive in unfair labor practice cases, requiring the General Counsel to show a prima facie case and placing the burden on the employer to prove the action would have been taken even without the protected activity.
• Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951): This case sets forth the Board's policy of not overturning an administrative law judge's credibility resolutions unless the clear preponderance of all relevant evidence demonstrates they are incorrect.
• NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956): This Supreme Court decision addresses the rights of nonemployee union organizers to access an employer's property, balancing the employer's property rights with employees' Section 7 rights.
• Active Transportation, 296 NLRB 431 (1989): This case, along with Holo-Krome Co., is cited for the principle that a pretextual reason for discharge is further evidence of illegal motivation.
• Chemtronics, Inc., 236 NLRB 178 (1978): This case, quoting Milco, Inc., establishes that union representatives and employees engaging in union activities on employer premises should not complain of management observing them, implying lawful observation is permissible.

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