Acme Markets, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1977

232 N.L.R.B. 219 (N.L.R.B. 1977)

ACME MARKETS, INC.
Acme Markets, Inc. and United Steelworkers of
America, AFL-CIO-CLC, and its Locals 14057,
14309 and 13912. Case 5-CA-7735
September 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 25, 1977, Administrative Law Judge
James T. Youngblood issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions' and
brief and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Acme Markets,
Inc., Tazewell, Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I The Respondent has 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 Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: The
complaint which issued on June 28, 1976, alleges, in
substance, that Acme Markets, Inc. (herein Respondent or
Employer), since on or about November 1, 1975, engaged
in a course of conduct designed to undermine the Union's
status as collective-bargaining representative of the em-
ployees at the Acme Markets stores and facilities, and on
about January 15, 1976, Respondent refused, and con-
tinues to refuse, to bargain in good faith with United
Steelworkers of America, AFL-CIO-CLC, and its Locals
14057, 14309 and 13912 (herein collectively called the
Union), in violation of Section 8(a)(1) and (5) of the Act.
Respondent filed an answer to the complaint denying the
commission of any unfair labor practices and requesting
that the complaint be dismissed in its entirety. A hearing in
this matter was held in Princeton, West Virginia, on July
22, 23, 28, and 29, 1976. All parties were represented by
counsel at the hearing, and the General Counsel and the
Respondent filed posttrial briefs which have been duly
considered.
Upon the entire record, and my observation of the
witnesses and their demeanor, and the briefs filed herein, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a West Virginia corporation, is engaged
in the operation of a chain of retail grocery and variety
stores in various cities in the States of Virginia and West
Virginia. During the 12 months prior to the issuance of the
complaint on June 28, 1976, a representative period,
Respondent had gross revenues which exceeded $500,000.
During the same period, Respondent purchased and
received, in interstate commerce, products and supplies
valued in excess of $50,000, from points located outside the
State of West Virginia.
Upon these admitted facts, I find that the Respondent
has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the United Steel-
workers of America, AFL-CIO-CLC, and its Locals
14057, 14309 and 13912, are, and have been at all times
material herein, labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent is engaged in the operation of a chain of
retail grocery stores known as Acme Markets at locations
in the States of Virginia and West Virginia, with its
corporate headquarters in Tazewell, Virginia. At the
present time, there are six retail markets, three in Virginia
and three in West Virginia, and a warehouse located in
Tazewell, Virginia. The stores are named Virginia Westgate
Acme, Bluefield, Virginia; Tazewell Acme, Tazewell,
Virginia; Richlands Acme, Doran, Virginia; Acme Plaza,
Beckley, West Virginia; Princeton Acme, Princeton, West
Virginia; and Blue Prince Acme, Bluefield, West Virginia.
An additional Acme market was formerly operated in
Beckley, West Virginia, known as the "Valley Drive Store"
until it was closed on November 15, 1975. The employees
232 NLRB No. 25
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the six retail stores (formerly seven) and the warehouse
have been represented by the Union pursuant to a
longstanding collective-bargaining relationship of some 20
years. The most recent contract covering these employees
was effective from February 9, 1973, through February 8,
1976.
Respondent also operates a chain of grocery and variety
stores known as "A-Marts" at Beckley and Princeton, West
Virginia, and at Tazewell, Richland, and Bluefield, Virgin-
ia. The employees at the Princeton and Beckley "A-Mart"
stores were represented by the Union and were covered by
a separate collective-bargaining agreement effective from
February 9, 1972, until February 8, 1975. On January 1,
1975, Respondent closed the Beckley "A-Mart" store and
on February 8, 1975, the contract terminated. Shortly
thereafter, the nine employees in the Princeton "A-Mart"
wrote Cauthen, the president of "A-Mart," asking to get
out of the Union. Cauthen sent this letter to the Union, and
the Union acquiesced and disclaimed interest in the
Princeton store. The Union has made no attempt to
organize the employees at the other "A-Mart" stores and,
at the present time, none of the "A-Mart" employees are
represented by any labor organization. The employees at
the "A-Mart" stores are not involved in this proceeding.
During April and May 1975, at the request of the Union,
the Respondent and the Union engaged in limited
negotiations concerning a cost-of-living increase to the
Acme Markets bargaining unit employees, a management-
rights clause, and a no-lockout-no-strike provision. These
negotiations proved fruitless and were discontinued.
Around July 3, 1975, the employees at the Princeton
Acme store engaged in a work stoppage and began
picketing at the store. This unauthorized strike arose over a
grievance which had been filed on June 10, 1975. The
employees returned to work about July 10, 1975. This
grievance, which precipitated the strike, had not been
resolved as late as January 14, 1976, as reflected in a letter
from James K. Travis, Respondent's personnel manager, to
Mr. Boothe, the Union's international representative.
Following the strike, Respondent discharged five employ-
ees who had served as union officers of the Local Union
representing the employees at the Princeton Acme store.
As the result of an arbitrator's award, all of the discharged
employees were reinstated with backpay by the end of
October 1975.
The Respondent offered the testimony of several store
managers and several employees to the effect that the
employees became very dissatisfied with the Union
following the strike at the Princeton store. While a limited
number of employees testified to this dissatisfaction of
employees, they did relate that other employees had
expressed to them their feelings that they would like to get
rid of the Union. These sentiments were apparently
conveyed by these employees to the managers, to which the
managers replied that they could do nothing about this
problem. The record reflects that there was some dissatis-
Initially, the employees were represented by District 50 of the United
Mine Workers of America. In 1971. District 50 merged with the United
Steelworkers of America and three locals were set up to represent the stores
in Virginia and West Virginia. The four facilities in Virginia, including the
faction with the Union among the employees in the several
stores in the States of Virginia and West Virginia.
Around September 15, 1975, James K. Travis was hired
by the Respondent as its new personnel manager. Travis
had no previous labor relations experience. Travis testified
that one of the first problems that he encountered was the
poor communications that existed between the several
stores. This was apparently because of their geographical
seperation. Another problem which was brought immedi-
ately to his attention by the various store managers was the
employees' concern and unrest in the area of labor
relations. He testified that many of the employees were
asking the store managers questions which had to be
answered sensibly and consistently. Thus, he sought to
remedy these problems by implementing a new communi-
cation program and by accepting invitations from the store
managers to attend and speak at their regularly scheduled
store meetings.
On October 28, 1975, Mr. Travis attended his first
employee meeting at Blue Prince Acme store. At this
meeting, Travis explained that he intended to implement a
new communication system and described the various
forms to be used in this system. This was to be called
"Hotline." The hotline concept involved the installation of
bulletin boards in the various stores and the use of certain
standardized colored forms for communication between
the various representatives of management and the em-
ployees. This hotline concept also permitted employees to
present questions to management on these bulletin boards
concerning any problems they might have. Questions could
be signed by the employee or they could be submitted
anonymously. There is no record evidence to establish that,
at the time of this October 28 meeting, Respondent was
aware of any employee petitions being circulated in any of
the stores in either Virginia or West Virginia.
Following the inauguration of the hotline, a letter dated
October 28, 1975, from Respondent's president, Cauthen,
addressed to "All A-Mart Employees" appeared at some of
the Acme Market stores. This letter, which was addressed
to the nonbargaining unit employees at the "A-Mart"
stores, read as follows:
ACME MARKETS, INC.
A - MART STORES
October 28, 1975
To: All A-Mart Employees
From: Charles E. Cauthen, President
Subject: A-Mart Policies, 1976
This is a letter of appreciation to each of you and the
part you played in making your store a success this
year. We still have most of the Christmas season ahead
of us and we know we can count on you as we attempt
for record sales this season.
Tazewell warehouse, are represented by Local 13912; the stores at Beckley,
West Virginia, are represented by local 14309; and the stores at Princeton
and Bluefield, West Virginia, are represented by Local 14057.
220
ACME MARKETS, INC.
With the unsolicited spontaneous petition by the
Princeton store employees to disassociate themselves
from the union last November, we have now had
almost a year of operation as one family and we hope
you share our pleasure with this relationship.
To show our appreciation, I have attached a copy of
our A-Mart policies for the coming year. Due to your
loyalty and due to the freedom we have by not being
restricted by an outside organization, we are in a
position to offer you substantial improvements in
wages, benefits and opportunities. Let me point out
some of these to you:
I. Wage increases averaging over 109% per employee
2. Wage increases 3 months sooner than would have
been possible under a contract
3. Improved vacation policy including 3 weeks'
vacation after 10 years
4. Improved sick leave policy
5. Continued improvement in insurance coverage at
no additional cost to the employees. The company
is doubling your life insurance coverage begin-
ning January, 1976 and is paying the full
premium increase. (The company previously
absorbed a 1.60 premium increase per employee
per month in 1974 and an additional $5.27
increase a few months ago.)
6. Improved individual recognition, consideration, and
promotional opportunities for the deserving em-
ployee as opposed to group treatment imposed by
labor contracts.
In addition to these improvements for the coming year,
you can expect a special gift of our appreciation in
December.
Last, but far from least, we are currently finalizing a
new profit sharing plan for our A-Mart employees that
would have been extremely difficult to do before in a
union situation. Basically, this plan will allow us to give
you a supplement to your regular salary in direct
proportion to the profit in your particular store. It is
our intent to have this plan in effect for the first quarter
of 1976.
Thank you again for your loyalty, and we look forward
to continued growth together.
Yours truly,
/s/ Charles E. Cauthen
Charles E. Cauthen
President
Enclosure
Employees Ronald Reeves and Liz Davidson credibly
testified that this October 28 letter (herein called the "A-
Mart" letter) was first seen on a table in the employee
break area at the Blue Prince Acme store and later
appeared on the bulletin board at their store around the
first of November. Davidson brought this letter to the
attention of Charles Hampton, manager of the Blue Prince
store, who told her that he had been told to post the letter.
While Hampton admits that he told Davidson that he had
been instructed to post the letter, he attempted to make it
appear as if he posted it by mistake. He stated that he
received this letter with several other pieces of mail from
the Respondent's main office, with a notation to post them
on the bulletin board, and, in compliance, he posted the
"A-Mart" letter on the board. He later learned from Travis
that that "A-Mart" letter was not to be posted.
Margaret Rutherford, Irene McNeal, David Fuller, and
Karen Allen, all employees of the Beckley, West Virginia,
Acme store which remained in operation, identified the
"A-Mart" letter as having been posted at their store in
early November. Employees Russell Meadows and Drea-
ma Wright testified that this letter was also posted at their
store in Princeton, West Virginia. Union Representative
Boothe removed the letter from the bulletin board at the
Princeton store on November 6, 1975, having learned of its
posting several days before. Mr. Travis testified that on
November 11, he posted this "A-Mart" letter at the
Princeton store, along with a hotline bulletin, in answer to
an employee question about the Christmas bonus. He
explained that he put the "A-Mart" letter on the bulletin
board to explain the Christmas bonus "which we under-
lined in red on the notice and then have the other part
exposed if they wanted more clarification of what was
going on at A-Mart."
Employees Marjorie Simpson and Helen Reynolds each
testified that the "A-Mart" letter was left on the table in the
break area of the Richland, Virginia, store. A former
employee, Lillian Atkins, of the Beckley store on Valley
Drive (which was closed on November 15, 1975), testified
that prior to the closing she was shown the "A-Mart" letter
by Store Manager Kenneth Smith who stated, "Sounds
pretty good, doesn't it?"
The Company offered testimony through its store
managers and several employees to the effect that the "A-
Mart" letter was not posted at the Beckley Acme store.
Specifically, Store Manager Blakenship testified that the
"A-Mart" letter was not posted on the bulletin board in
this store, and Assistant Manager Woods and several other
store employees testified that the "A-Mart" letter was not
posted on the bulletin board in the Beckley store.
Notwithstanding these denials by the company officials
and the employees, it is my conclusion that the "A-Mart"
letter was posted, or in some manner exhibited at the
Beckley Acme store. I make this finding because at least
four employees testified that this "A-Mart" letter was
posted in the Beckley Acme store and because one of the
employee questions in the Beckley Acme hotline (J. Exh. 7,
p. 2), among other things, refers to the new profit-sharing
plan at "A-Mart." The question posed was, "In regard to
the newly instructed program of profit sharing with A-Mart
employees, would a similar program be initiated with
Acme Markets employees? If so, would it be possible to
outline such a program?" As there is no "A-Mart" store in
Beckley, the fact that this employee knew of the profit-
sharing plan at "A-Mart," as set forth in the "A-Mart"
letter, indicates to me that this letter must have been
221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exhibited to the employees at the Beckley store. It is further
my conclusion that the letter must have been circulated or
exhibited at the other stores as testified to by the witnesses
of the General Counsel.
It was shortly after posting of the "A-Mart" letter that
the Employer learned that certain employee petitions to get
rid of the Union were being circulated. The actual dates on
which these petitions were initiated is not clear from the
record but the record does reflect that at least one petition
was circulated as early as October 1, 1975. This petition
was started by an employee named Bob McCrea who left
the employ of Acme Markets and his petition was never
presented to management. Wanda Hager, who works at the
Blue Prince Acme store, started another petition after she
learned that McCrea would not present his petition to
management. On November 12, 1975, Union Representa-
tive Boothe learned of this petition being circulated at the
Blue Prince store, and he contacted Travis to discuss this
problem. On November 13, 1975, Travis met with Hager
and asked her if she had the petition. She gave him the first
page of the petition as it was filed and kept the second
page. Thereafter, she gave the second page of this petition
to Steve Vance, the produce manager, not a member of the
bargaining unit, to get a signature from an employee.
Vance gave this second page of the petition to Store
Manager Hampton, who subsequently gave it back to
Hager, commenting that they could not get involved.
Charles Snodgrass, an employee at the Beckley Acme store,
testified that he circulated a petition in that store. He
testified that management had no knowledge of his petition
until he submitted it to them in mid-November 1975. On
November 8, 1975, a petition consisting of several paper
bags bearing signatures was given to Jennings Lockhart,
the manager at the Tazewell Acme Market store. This so-
called petition which was circulated by Norfolk Thompson,
president of the Local Union, sought to dissolve the Local
Union. On December 8, 1975, a petition was also presented
to the store manager of the Richland store.
After learning of the employee petitions to oust the
Union, and following the posting or the exhibiting of the
"A-Mart" letter, the Employer followed that posting with
numerous hotline news bulletins. Thus, on November 21,
1975, at the Westgate Acme store, it posted the Westgate
hotline statement, November 19, 1975, which read as
follows:
WESTGATE "HOTLINE" STATEMENT 11-19-75:
"At the next negotiation for wage determination, all
employees should participate without fear. A fair wage
should be decided with no penny pinching tactics by
upper echelon."
Company Response:
First of all, employees should never work in an
environment of "fear" - fear of management, fear of
union pressure, fear of coworkers, etc. You have the
right to express you opinions without reprisal. If any
employee is presently afraid for their job security
simply because of a stand they may have taken on an
issue, I would very much like to alleviate those fears.
Job performance and failure to do so is certainly cause
for our superior to take corrective measures.
Employee wages are always of primary concern to
both management and employees. Determination of
these wages is an entirely different process depending
on whether or not a union represents the employees. In
Union labor negotiations, the wage scale is just one
issue of a complex package of issues - seniority,
vacations, holidays, grievance procedure, etc. Both
parties will give in one area to gain in another area.
This may mean high wages at the expense of giving up
retirement benefits, holidays, time off policy, etc., or it
may mean low wages to gain strong grievance rights,
Company wide seniority, etc. In a non-union relation-
ship such as the Company has with A-Mart, wages are
determined as part of an overall compensation package
to fit the individual employee's responsibility and
performance. Wages at A-Mart (non-union) are review-
ed continually by management and increases made
regularly to reflect competition wages, cost of living
increases, store performance, etc. Regarding "penny
pinching tactics by upper echelon", you should be
made aware of the extremely rewarding profit sharing
plan just introduced in A-Marts in addition to the
sizeable increase in basic wages. Also, it should be
noted these wage increases were implemented only ten
months after a previous increase and the Company was
not limited to the normal yearly increase timetable in
most union contracts.
It should also be noted that the Company did offer
an unscheduled .10 cents per hour increase to Acme
employees this past spring. The offer was not accepted
by the international union representative because he
stated he did not want to give up his right to strike the
Company. It has come to our attention that very few of
the rank and file employees were informed of this
proposal by the Company and that the Union leader-
ship made the decision to reject the offer on their own.
One other point you should remember - a "fair"
wage may mean one thing to one employee and
something entirely different to another. In labor
contracts, not only are minimum wages established, but
so are maximum wages. Everyone in the same classifica-
tion is paid the same. The particular employee who
wants to get ahead and displays initiative, works hard,
and applies himself is limited to the same earnings as
the poorer performer in the same classification. To the
hard worker, this is not a "fair" wage.
The Company recognizes the need to pay respectable
wages with or without collective bargaining pressure.
Let me urge you to talk with your A-Mart employee
neighbors as to how they feel about their compensation
package, realizing their wages, etc. were determined
strickly [sic] by management in analysis of employee
contributions and without third party intervention.
222
ACME MARKETS, INC.
/s/ Jim 11/21/75
James K. Travis
Director of Personnel
In the Westgate Hotline Questions (I 1-25-75), the Compa-
ny responds to the question, "If the NLRB accepts the
Company's application to not recognize the Union, will
there be in fact no contract to be negotiated Feb.?" The
Company's response was, "Assuming an election is held
and the majority vote out the union, That is correct. The
company would not negotiate a 'contract,' but would
instead establish new wages, benefits, etc., on its own as
was the case with the A-Marts recently." Similarly on
December 1, 1975, in a document entitled "Beckley Plaza
Hotline Questions," the Employer continued its antiunion
campaign. This document read as follows:
BECKLEY PLAZA "HOTLINE" QUESTIONS
Question I: "When our contract is up and Acme
Plaza employees should vote to strike, if an employee
crossed the picket line to work, could he be dismissed
from the Union? How would this effect his job."
Response: Employees cannot be refused this right to
earn a living. The Company cannot interfere with the
internal affairs of a Union. The law, however, does
protect an employee's right of employment and the
Union cannot refuse this right.
Question 2: "If the employees withdraw from the
United Steel Workers, what might be the long-range
effects in terms of wages?"
Response: Under Federal labor relations regula-
tions, the Company cannot "promise" wages, benefits,
etc. that might influence an employee's decision
regarding Union representation. Historically, the Com-
pany has not been in a position to set wages without
third party intervention and consequently, there is no
evidence to say the Company would be any less
generous than with a Union.
Question 3: "Would withdrawal from the Union
effect job security?"
Response: None whatsoever as far as the Company
is concerned. Job security is based on performance -
Union or no Union.
Question 4: "Would paid vacation, sick pay, and
paid holidays be continued or would they cease if
employees withdraw from the Union?"
Response: It is upsetting to me that some employees
feel the Company might withdraw some of the benefits
the employees now enjoy. These are benefits the
Company feels the employees deserve or the manage-
ment would never have written them in the contract in
the first place. Certainly these benefits will be retained
and continually reviewed for improvement as has been
the case in the past.
Question 5: "Would part-time employees continue to
be thrown the "lefl-overs" as has been done in the past
under Union leadership?"
Response: Wages, fringe benefits, job assignments,
etc. for part-time employees would be evaluated on an
individual basis considering experience, education,
seniority, performance, hours available to work, etc.
We want you to know that we highly value our part-
time people, and they are an essential part of our
business.
Question 6: "How often might an employee's wages
be reviewed in terms of performance?"
Response: Historically in non-union relationships
and in many comparative companies, reviews are
conducted between one and two times per year.
Question 7: "In regard to the newly instructed
program of profit sharing with A-Mart employees,
would a similar program be initiated with Acme
Markets employees? If so, would it be possible to
outline such a program?"
Response: I cannot "lead" employees by saying the
Company will implement profit sharing in Acme if the
employees vote out the Union.
I can explain the policy that has been implemented
at A-Mart. Individual store profits are calculated on a
quarterly basis and a percentage of these profits are
distributed back to the employees. Each employee
receives a share in proportion to their regular earnings
for the quarter (the higher paid employees consequently
receiving higher "profit" checks than the lower paid
employees). Last year an average full time employee in
a typical A-Mart store would have received a supple-
mental profit sharing check of over $125.00 every
quarter. (This is equivalent to almost .25¢ per hour.)
James K. Travis
Director of Personnel
Dec 1, 1975
In a bulletin entitled "Richland Hotline," 12-2-75,
Travis refers to the "current contract" which dictates "who
is paid what." He continues by telling the employees how
they may get out of the Union if they so desire. He advised
that an "employee should notify the Company in writing of
their desire to withdraw and the Company will check the
employee's membership records and notify the employee
and the Union the earliest date the withdrawal will be
permitted." In a news bulletin entitled "Blue Prince
Hotline," 12-2-75, and dated December 4, 1975, Travis
states: "Please remember your present wages are fixed by
the union contract as agreed upon by employees. The
Company is well aware of the sharp cost-of-living increases
and has increased A-Mart salaries and is presently
instituting new management salaries which are not deter-
mined by contract requirements."
On November 19, 1975, five RM petitions were filed by
the Respondent with Region 5, covering the four Virginia
locations and the Blue Prince store in Princeton, West
Virginia. On December 4, 1975, the Regional Director of
Region 5 issued a notice of representation hearing in the
original five RM petitions filed by the Respondent in
which he concluded that a question concerning representa-
tion existed. On December 9, 1975, Respondent filed an
additional RM petition covering the Acme Plaza store in
Beckley, West Virginia. Additionally, on December 9, the
Respondent filed three more RM petitions, one covering
all the Virginia locations, one covering all the West
223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Virginia locations, and one covering all locations in
Virginia and West Virginia. About the same time, three
employees filed decertification petitions with Region 5.
On December 10, 1975, the Union filed two separate
unfair labor practice charges which alleged 8(a)(1) and (5)
violations against the Respondent at the Beckley and Blue
Prince stores.
On December 1, 1975, the Union notified the Respon-
dent that the contract was to expire on February 8, 1976,
and that it wished to open negotiations for a new contract.
It does not appear from this record that the Respondent
responded to this request. On December 30, 1975, Boothe
wrote to Travis advising him that the members of Local
Union 14309 were requesting him to attend a union
meeting and explain to the members why Acme Markets,
Inc., was taking a position against the Union as it had in
their most recent attacks on the hotline bulletin board. Mr.
Boothe gave several dates that would be acceptable. On
January 9, 1976, Travis responded indicating that he would
not attend a union meeting, but he would be glad to have a
store meeting with the employees. On January 12, 1976,
Boothe again wrote the Company requesting them to meet
and negotiate a new agreement. On January 15, 1976,
Cauthen, on behalf of the Respondent, informed the Union
that the Company had a good-faith doubt that the Union
represented a majority of the Acme employees and
declined to meet with the Union. On January 26, 1976, the
Union filed the instant charge. The earlier charges were
withdrawn.2 The current contract expired on February 8,
1976, and on February 9, 1976, following a strike vote
taken among the union members of the three locals, a
strike ensued.
The record reflects that 141 union members voted to
strike and 49 members voted not to strike. There is much
testimony in the record concerning the Union's majority
status during the crucial period between October 1975 and
February 9, 1976. The checkoff records for January 1976,
covering all locations, indicate that 191 employees were
paying union dues. Also, the strike vote shows that there
were 190 members who participated in the strike vote. The
RM petition filed by the Company on December 9, 1975,
covering all locations in both Virginia and West Virginia,
lists the number of employees in the unit as 310. Therefore,
if 190 union members voted in the strike vote, and 191 were
on checkoff, it would appear that the Union had a
substantial majority in January 1976.
IV. DISCUSSION AND CONCLUSIONS
A. The Appropriate Unit
The complaint, as amended at the hearing, alleges that at
all times material herein, Respondent has recognized and
executed a series of collective-bargaining agreements with
the Union as exclusive bargaining representative of a unit
consisting of all general store labor, inexperienced helpers,
stock clerks, floor salesmen or saleswomen, apprentice
salesperson, second butcher, apprentice butcher, delivery
persons, shipping clerk, warehousemen, checkers, truck-
drivers, tractor-trailer drivers, bag and carryout persons,
2 All of the representation petitions were either withdrawn or dismissed
upon the issuance of the instant complaint.
and any workers or combination workers employed full or
part-time; except supervisors, buyers, office clerical, and
store manager, assistant managers, produce manager, meat
manager (head butcher), deli-bake shop manager and
office manager. The most recent collective-bargaining
agreement between Respondent and the Union was
effective from February 9, 1973, through February 8, 1976.
This most recent agreement covered all eight locations in
both Virginia and West Virginia. In November 1975, one
of the stores was closed in Beckley, leaving three stores in
West Virginia and three stores in Virginia, and the
warehouse in Tazewell, Virginia. The Respondent admitted
the allegations of the complaint, as amended. Because of
the 20-year bargaining history between the Union, its
predecessor, and Acme Markets, I find that this bargaining
unit is certainly an appropriate unit.
B. The Alleged Refusal To Bargain
On January 12, 1976, the Union submitted its last request
to the Company for negotiations and bargaining. On
January 15, 1976, by telegram, the Company responded to
the Union's bargaining request stating that at the time they
could not bargain with the Union because they had a good-
faith doubt as to the Union's majority status within the
bargaining unit. There has been no bargaining. On
February 8, 1976, a strike vote was taken and on February
9, 1976, a strike began against the Acme Markets.
In response to the General Counsel's charge of a refusal
to bargain on and after January 15, 1976, the Respondent
contends that its refusal to bargain was based on a good-
faith doubt of the Union's majority status which was based
on objective considerations. The General Counsel does not
concede the loss of majority by the Union, or the fact that
Respondent had any good-faith doubt as to the Union's
majority status, but on the other hand contends that if such
factors existed, they were tainted by the Employer's
independent unfair labor practices which were designed to
undermine the Union's majority status.
The law seems to be settled that to justify the withdrawal
of recognition from, or the refusal to bargain with, an
incumbent union, the employer must have a good-faith
doubt of the union's majority status at the time of the
withdrawal of recognition or refusal to bargain, based on
objective grounds affording a rational basis for doubting
the union's majority status. See Terrell Machine Company v.
N.L.R.B., 427 F.2d 1088 (C.A. 4, 1970), and Taft Broadcast-
ing, WDAF-TV, AM-FM, 201 NLRB 801 (1973). It is also
well settled that if the employer engages in independent
unfair labor practices in the context of the objective
considerations, this taints the objective considerations and
removes any good-faith doubt which the employer might
otherwise have had. Idaho Fresh Pak-lnc., 215 NLRB 676
(1974).
It is my conclusion that the Employer engaged in
independent unfair labor practices beginning in early
November 1975, prior to its learning of any employee
petitions, and its reliance on any alleged objective consid-
224
ACME MARKETS, INC.
erations is misplaced. Therefore, it is my conclusion that
the Respondent has violated Section 8(a)(5) of the Act.
In this connection, it is noted that in mid-September
1975, the Respondent obtained the services of a new
personnel director. Travis was new to labor relations, and
although not employed by Acme Markets at the time he
did sit through the arbitration proceedings involving the
employees at the store where the strike occurred in July
1975. Almost immediately upon taking over as personnel
manager, Travis instituted the so-called hotline. This was
accomplished by November 4, 1975. One of the first items
that appeared in the stores after this was the letter to the
"A-Mart" employees. This letter was addressed to the "A-
Mart" employees and dealt with their "unsolicited sponta-
neous" petition to disaffiliate with the Union, and the
results therefrom, which the Employer stated was due to
freedom it now had by not being restricted by an outside
organization, and, therefore, "It is in a position to offer
substantial improvement in wages, benefits and opportuni-
ties." When the Employer disseminated, posted on the
bulletin board, or otherwise circulated or exhibited this
letter to the Acme Market employees, it could foresee the
natural consequences that would flow from the contents of
this letter. The showing of this "A-Mart" letter to the Acme
employees clearly was for the purpose of planting in the
minds of the Acme employees that they would be better off
without a union. This was designed to undercut the Union
and to diminish employee support for the Union.
As a result of the bargaining negotiations in the spring of
1975 when the Union attempted to get a cost-of-living
increase for the Acme employees, the Employer necessarily
was acutely aware of the fact that the employees were
vitally interested in increased wages. Additionally, the
Employer was aware of the wage scales as set forth in the
contract and that these wages were locked in for the
duration of the contract. Therefore, when the Employer
sent out its letter of appreciation to the "A-Mart"
employees, and made sure that this letter was seen by the
Acme Market employees, it knew this would have a
detrimental effect on their association with the Union. I
have concluded that this letter was posted or exhibited at
several of the Acme stores and, in my view, this was not a
mistake, but a calculated risk on the Employer's part, and
was certainly done in an attempt to interfere with the Acme
employees' rights guaranteed under Section 7 of the Act,
and, therefore, violative of Section 8(a)(1) of the Act.
The Respondent did not stop at this point, but continued
to bombard the Acme employees with similar material.
Thus, the Westgate hotline statement of November I I,
1975, which is alleged in the complaint as also being
violative of Section 8(a)(1), instills in the minds of the
employees a lack of leadership on the part of their Union,
in that it states that the Employer offered a 10-cent wage
increase, but the Union rejected this offer, and inferred
that very few of the rank-and-file employees were ever
informed of this proposal by the Company and its rejection
by the Union. This notice was silent on the concessions the
Respondent wanted in return for the 10-cent increase. This
notice also refers to collective-bargaining agreements as
setting wages, and that any employee who wants to get
ahead cannot, because he is limited to the same earnings as
the poorer performer. This notice ends with urging Acme
employees to talk to their "A-Mart" neighbors about how
they feel about their compensation packages which "were
arrived at without third party intervention." There is no
question that this message was designed to undermine
employee support for the Union by suggesting that without
the intervention of the Union, the employees can do better
with their Employer; that because of the union contract,
their wage levels and other benefits are kept at a minimum.
Similarly, the news bulletin, "Blue Prince Hotline," dated
December 2, 1975, carries a similar statement advising the
employees that their present wages are fixed by union
contract. Mr. Travis goes on to state in this bulletin that the
salaries for "A-Mart" employees and management salaries
have been increased, while noting that these are not
determined by contract requirements. In a document
entitled "Beckley Plaza Hotline Questions," dated Decem-
ber 1, 1975, Mr. Travis again implicitly promised future
benefits, including wages, and also described how the
recently implemented profit-sharing plan at the nonunion
"A-Mart" stores has resulted in profit-sharing checks of
$125 per quarter. Additionally, in the "Westgate Hotline
Questions," November 25, 1975, dated November 20, 1975,
Travis notes that should a majority vote out the Union,
Respondent would establish new wages and benefits as was
the case with "A-Mart" stores. In a notice entitled
"Richlands Hotline," December 2, 1975, dated December
4, 1975, Mr. Travis again refers to the current contract
"which dictates who gets paid what." He goes on to advise
employees who wish to get out of the Union to notify the
Company in writing of their desires and the Company will
check the employee's membership record and notify the
employee and the Union the earliest date withdrawal will
be permitted.
This bombardment of hotline bulletins, advising the
employees of the various benefits which had been given to
the nonunion "A-Mart" employees, who recently deth-
roned the Union, clearly, at least in my view, shows that
this Employer was engaging in obvious interference with
the Acme employees' rights guaranteed under Section 7. In
my view, in posting the "A-Mart" letter, and the various
hotline bulletins, which I have made reference to, the
Company has openly and flagrantly interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act.
In view of my findings of independent 8(aX)(1) violations,
I deem it unnecessary to evaluate the objective consider-
ations as alleged by the Employer, for any loss of majority
would necessarily be attributable to the Employer's unfair
labor practices. Moreover, it is my conclusion that at no
time did the Union have a loss of majority, as the petitions
which were circulated in the four stores have only 132
employees' signatures, and this is less than 50 percent in
the overall unit of 310 people. Additionally, the checkoff in
January 1976, which was readily available to the Employer,
indicates that 191 unit employees were union members.
Also this figure of 191 union members is drastically similar
to the number of union members who voted in the
February 8, 1976, strike vote.
It is also my conclusion that any good-faith doubt of the
Union's majority that the Respondent might have had was
225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tainted by the 8(a)(1) conduct engaged in between the
period October 28, 1975, and January 15, 1976, and
therefore, its reliance thereon is misplaced.
It is further my conclusion that by its refusal on January
15, 1976, to bargain with the Union, the designated
majority representative of its employees, Respondent has
engaged in conduct violative of Section 8(a)(5) and (1) of
the Act.
V. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and a free flow of
commerce.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Acme Markets, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Steelworkers of America, AFL-CIO-CLC,
and its Locals 14057, 14309, and 13912, are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By posting notices which promise benefits to its
employees should they reject the Union as their collective-
bargaining representative; by posting notices which solicit
its employees to withdraw their membership from the
Union; and by posting notices which disparaged the Union
by asserting that Respondent could not agree to increased
remuneration for its employees because of the Union's
intervention and the collective-bargaining agreement with
the Union which created fixed or maximum wages above
which raises could not be granted, Respondent has
attempted to undermine the Union's majority status and
has interfered with its employees' rights guaranteed under
Section 7 of the Act, and has engaged in unfair labor
practices within the meaning of Section 8(aX)(I) of the Act.
4. All general store labor, inexperienced helpers, stock
clerks, floor salesmen, floor saleswomen, apprentice sales-
person, second butcher, apprentice butcher, delivery
persons, shipping clerk, warehousemen, checkers, truck-
drivers, tractor-trailer drivers, bag and carryout persons,
and any workers or combination workers employed full- or
part-time; except supervisors, buyers, office clerical, and
store manager, assistant managers, produce manager, meat
manager (head butcher), deli-bake shop manager, and
office manager, employed by Acme Markets, Inc., at its six
retail grocery stores in Virginia and West Virginia and its
warehouse in Tazewell, Virginia, constitute a unit appropri-
ate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
5. At all times material herein, the United Steelworkers
of America, AFL-CIO-CLC, has been, and is now, the
exclusive representative of all employees in the aforesaid
bargaining unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
6. Since January 15, 1976, by refusing to meet with the
United Steelworkers of America, AFL-CIO-CLC, for the
purpose of negotiating a collective-bargaining agreement
covering the bargaining unit employees, Respondent has
violated Section 8(aX5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent has refused to meet and
bargain with the Union in violation of Section 8(a)(5) and
(I) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and, upon request, bargain collective-
ly in good gaith with the Union as the exclusive representa-
tive of all employees in the appropriate unit and, in the
event that an understanding is reached, embody such
understanding in a signed agreement.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
The Respondent, Acme Markets, Inc., Tazewell, Virgin-
ia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Posting notices which promise benefits to its employ-
ees should they reject the United Steelworkers of America,
AFL-CIO-CLC, or any other labor organization as their
collective-bargaining representative.
(b) Posting notices which solicit its employees to
withdraw their membership from the United Steelworkers
of America, AFL-CIO-CLC, or any other labor organiza-
tion.
(c) Posting notices which disparage the United Steel-
workers of America, AFL-CIO-CLC, by asserting that
Acme Markets could not agree to increased remuneration
for its employees because of the Union's intervention and
the collective-bargaining agreement with the Union which
created fixed or maximum wages above which raises could
not be granted.
(d) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, and other conditions of
employment with the United Steelworkers of America,
AFL-CIO-CLC, as the exclusive bargaining representative
of its employees in the appropriate unit.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
226
ACME MARKETS, INC.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the United
Steelworkers of America, AFL-CIO-CLC, as the exclusive
representative of all of its employees in the appropriate unit
concerning rates of pays, wages, hours of employment, and
other conditions of employment and embody any agree-
ment reached in a signed contract.
(b) Post at its seven Acme Markets locations in Virginia
and West Virginia, including the Tazewell warehouse,
copies of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by the Respondent's
authorized representative, shall be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
4 In the event that this Order is enforced by a Judgment of the 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
As a result of a hearing before an Administrative Law
Judge of the National Labor Relations Board, it was found
that we violated the act in the respects set forth in its
Decision, and to remedy this unfair labor practice, we will
abide by the following:
WE WILL NOT post notices which promise benefits to
our employees should they reject the United Steelwork-
ers of America, AFL-CIO-CLC, or any other labor
organization, as their collective-bargaining representa-
tive.
WE WILL NOT post notices which solicit our employ-
ees to withdraw their membership from the United
Steelworkers of America, AFL-CIO-CLC, or any other
labor organization.
WE WILL NOT post notices which disparage the
United Steelworkers of America, AFL-CIO-CLC, by
asserting that Acme Markets, Inc., could not agree to
increased remuneration for its employees because of
the Union's intervention and the collective-bargaining
agreement with the Union which created fixed or
maximum wages above which raises could not be
granted.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them under Section 7 of the Act.
WE WILL, upon request, bargain collectively with the
United Steelworkers of America, AFL-CIO-CLC, as
the exclusive representative of all our employees in the
appropriate unit concerning rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and WILL embody any agreement reached
in a signed contract.
ACME MARKETS, INC.
227