Alpha Beta Co.

National Labor Relations Board - Board Decisions

May 25, 1989

294 N.L.R.B. 228 (N.L.R.B. 1989)

228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alpha Beta Company and United Food and Commer-
cial Workers International Union , AFL-CIO,
Local 1179 and Independent Alpha Beta Work-
ers Association , Party to the Contract. Case 32-
CA-3979
May 25, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 20, 1983, Administrative Law Judge
James M. Kennedy issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. The Respondent filed cross-excep-
tions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings,' findings, 2
and conclusions only to the extent consistent with
this Decision and Order.
1. The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to
transfer any of the employees from its San Pablo,
California store, which was being closed, to its
newly opened Pinole, California store. We agree
with the judge's finding. However, we modify the
judge's recommended Order that provided a make-
whole remedy, including backpay and reinstate-
ment offers, for all employees working st San
Pablo as of August 1981. We limit this affirmative
remedy to those San Pablo employees who would
have been transferred to Pinole absent the Re-
spondent's discriminatory conduct. This determina-
tion shall be made at the compliance stage of this
proceeding.
2. The General Counsel excepted, inter alia, to
the judge's dismissal of the portion of the com-
plaint alleging that the Respondent violated Sec-
tion 8(a)(5) and (1) by its refusal to grant recogni-
tion to the Charging Party (Local 1179) at its
Pinole store. When Local 1179 demanded recogni-
tion at the Pinole store on January 8, 1982, the Re-
' The Respondent's motion to admit into evidence photographs depict-
ing its Pinole, California combination store (R Exh 38) is granted
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect 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
The Respondent has requested oral argument This request is denied as
the record, exceptions, and briefs adequately present all the issues and the
positions of the parties
spondent refused to submit to an independent third-
party card check to verify that a majority of Pinole
employees had signed authorization cards designat-
ing Local 1179 as their exclusive bargaining repre-
sentative. The Respondent informed Local 1179
that it declined to recognize Local 1179 as the bar-
gaining agent for the Pinole store employees be-
cause "authorization cards are an unacceptable and
unreliable indicator of employee wishes." The Re-
spondent further informed the Union that if Local
1179 decided not to file for a Board election, the
Respondent would consider any other proposals
the Union might submit.
At all times material, Local 1179 and the Re-
spondent were parties to a multiemployer, multiun-
ion master agreement known as the Food Store
Agreement, effective from January 1, 1980, to Feb-
ruary 28, 1983. Section 1.1 of that agreement, enti-
tled "RECOGNITION AND CONTRACT COV-
ERAGE," provides that Local 1179 is the exclu-
sive bargaining representative for
an appropriate unit consisting of all employees
working in the Employer's retail food stores
within the jurisdiction of the Union except
meat department employees and supervisors
within the meaning of the National Labor Re-
lations Act, as amended.
The General Counsel and Local 1179 contend that
section 1.13 of the agreement is an "after-acquired
stores clause" waiving the Respondent's right to
insist on a Board election when confronted with
the Union's documented claim of majority status.
Section 1.13 reads in pertinent part as follows:
NEW STORES AND REMODELS: .. .
Notwithstanding any language to the contrary
contained in this agreement between the par-
ties , it is agreed that this agreement shall have
no application whatsoever to any new food
market or discount center until fifteen (15)
days following the opening to the public of
any such establishment. . . .
The Employer shall staff such new or re-
opened market with a combination of both
current employees and new hires, in accord-
ance with current industry practices of staffing
such stores with a cadre of current employees
possessing the necessary skills, ability and ex-
perience, plus sufficient new hire 4sic to meet
staffing requirements. . . .
The General Counsel and Local 1179 contend,
by virtue of the above language , that after the 15-
day "window" expires, and on proof of majority, a
new store is automatically incorporated into the
multistore bargaining unit . The judge found that
294 NLRB No. 13
ALPHA BETA CO
the collective-bargaining agreement between the
Respondent and Local 1179 did not contain an
after-acquired stores clause waiving the Respond-
ent's right to demand a Board election, and that,
even if the contractual language did constitute an
after-acquired stores clause, the Pinole store was
not a "food store" within the contemplation of the
parties' contract.
We find' merit in the General Counsel's excep-
tions to the judge' s dismissal of the 8(a)(5) allega-
tion. We conclude that section 1.13 of the Food
Store Agreement does constitute a waiver of the
Employer's right to insist on an election when con-
fronted with the Union's documented claim of ma-
jority status. The judge reasoned that nothing in
section 1.13 refers to waiver of the right to a Board
election or to any alternative means of proving ma-
jority and refused to infer such a waiver. The fact
that section 1.13 does not explicitly waive the Re-
spondent's right to insist on an election is not de-
terminative. The Board has held that the only rea-
sonable interpretation, which saves after-acquired
store clauses from meaninglessness, is as a waiver
of the employer's right to a Board-ordered elec-
tion.3 Thus, the Board has interpreted such clauses
to require, on proof of majority status by a union,
recognition and extension of the current collective-
bargaining agreement to the new operation.
The title of section 1.13 is "NEW STORES
AND REMODELS" (emphasis added). Section
1.13 of the Food Store Agreement delays applica-
tion of the other provisions of the Food Store
Agreement, including section 1.1, the recognition
clause , to new stores for a period of 15 days after
the new store opens. We find that, after the 15-day
window period, the Respondent was contractually
obligated to recognize Local 1179 and extend the
current collective-bargaining agreement to the new
Pinole store on Local 1179's showing of majority
status.4
The judge erred in holding that section 1.13 was
not an after-acquired stores clause because it fails
to specify the method by which the required show-
ing of majority status will be made. Once an em-
ployer has waived its right to insist on a Board
election by entering into a contract containing an
after-acquired stores provision, it is obligated to
recognize the union if the union presented it with
concrete evidence of support by a majority of the
employees in the group to be added to the existing
3 See Jerry's United Super, 289 NLRB 125 (1988), Kroger Co, 219
NLRB 388 (1975)
° In view of the title of sec 1 13 and the references to "new" stores,
we cannot agree with the judge that that section "may simply refer to
remodels where the [Charging Party is] already the representative and
provide a 'window' for bargaining unit work to be performed by nonumt
workers "
229
units Without any evidence of impropriety or mis-
conduct in the solicitation of the authorization
cards, the Respondent flatly rejected the proffered
third-party card check as proof of Local 1179's ma-
jority, and clearly breached its obligation to recog-
nize Local 1179 at its Pinole store on a showing of
majority status.
We also disagree with the judge's conclusion
that, assuming section 1.13 was found to constitute
a valid after-acquired stores clause, the Pinole store
as a combination food store-drugstore was not an
after-acquired store within the contemplation of the
parties' contract. The record establishes that al-
though the Pinole store is larger and stocks larger
quantities and a wider selection of merchandise, the
store is operated and stocked by the Respondent in
much the same manner as the Respondent's smaller
stores. In the Pinole store, as in the Respondent's
other retail food stores, food items and nonfood,
general merchandise are interspersed. All merchan-
dise, food and nonfood, is checked out through the
same cash register area . Food and nonfood clerks,
who work side by side at Pinole and at the Re-
spondent's other stores, perform essentially the
same duties : coding, marking, and stacking mer-
chandise. The difference in the supervisory hierar-
chy of the Pinole store, compared to the Respond-
ent's other stores, appears to be due to the greater
size of the Pinole store rather than to any differ-
ence in employee duties or working conditions. We
further note that the Food Store Agreement de-
fines "non-food and general merchandise" and
"non-food or general merchandise work," in con-
templation that signatory employers would sell
nonfood, general merchandise. There is uncontra-
dicted evidence that other combination stores, simi-
lar to the Pinole store, operated by other employ-
ers within the multiemployer, countywide unit, are
covered by the Food Store Agreement. Under
these circumstances, we conclude that the Pinole
store was an after-acquired store within the mean-
ing of section 1.13 of the parties' contract and that,
pursuant to that provision, the Respondent was ob-
ligated to recognize Local 1179 as the exclusive
bargaining representative of the Pinole store em-
ployees and to extend the Food Store Agreement
to those employees, on a showing of majority sup-
port.
The Respondent's statutory duty to recognize
Local 1179 as the representative of the Pinole store
employees and to apply the Food Store Agreement
to the new operation arises only on presentation by
Local 1179 of concrete evidence of support by a
'Joseph Magnin Co, 257 NLRB 656 (1981), enfd 704 F.2d 1457 (9th
Cir 1983)
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
majority of the Pinole store employees. Therefore,
it is necessary to determine whether Local 1179
had obtained an actual card majority on January 8,
1982, the date the demand for recognition was
made.6 The Respondent and the General Counsel
make various contentions in their briefs as to the
number of unit employees at Pinole and the
number of valid authorization cards. The record in-
dicates that on the date the demand for recognition
was made, Local 1179 had in its possession 87 au-
thorization cards. The Respondent contends that
employee John Bettencourt's card is ambiguous
and should be excluded.? The Respondent further
contends that the Local 1179 authorization cards of
the nine employees who signed the petition circu-
lated by Pinole employee William Purcell should
be excluded because the petition revoked the previ-
ously signed authorization cards.
Local 1179 began to solicit authorization cards
from the Pinole store employees in mid-September
1981, and continued to do so into January 1982.
The Purcell petition, circulated between December
5 and 10, 1981, reads as follows:
We the undersigned believe that we should
have the right to vote on whether or not our
Store Number 591 [Pinole] should be repre-
sented by a Union with the election process
being conducted by the National Labor Rela-
tions Board.
We revoke any union card we signed
before.
The judge concluded that the petition did not
revoke the previously signed Local 1179 authoriza-
tion cards because it had "no legal significance."
We agree with the judge's conclusion that the Pur-
cell petition did not revoke the previously signed
authorization cards but for a different reason." The
record shows that the Purcell petition was never
sent to nor received by Local 1179. It is well estab-
lished that an authorization card cannot be effec-
tively revoked in the absence of notification to the
union prior to the demand for recognition.9 We
also reject the Respondent's assertion that even if
the petition did not revoke the previously signed
authorization cards, "it cast sufficient doubt on
them to render them ambiguous and legally use-
less." In this regard, we note that the authorization
o The judge made no findings regarding Local 1179's actual card ma-
jority
' Bettencourt's signed authorization card contains the following hand-
written notation "This only means I would like a union in this stores
[sic) but that 's all I'm saym "
8 We find it unnecessary to rely on the judge's discussion concerning
the legal effect or "deceitful" nature of the petition
e James H Matthews & Co v NLRB, 354 F 2d 432, 438 (8th Cir 1965),
cert denied 384 U S 1002 (1966) See also NLRB v Southbridge Sheet
Metal Works, 380 F 2d 851, 856 (1st Cir 1967)
card clearly indicated the signer's intent to desig-
nate Local 1179 as his or her bargaining represent-
ative; but it is not at all clear whether an employee
signing the petition for an election was repudiating
his own support for Local 1179 or whether he
simply thought that announcing an intent to revoke
his card within the compass of such a petition
would somehow make it possible for all to vote.
Hence, in relying on the rule, noted above, that
revocations are not effective until received by the
union, we are not disregarding a clearly expressed
employee choice against representation by Local
1179. Accordingly, we conclude that the cards of
the nine employees who subsequently signed the
Purcell petition should be counted toward the
Union's majority. Even excluding the Bettencourt
card, Local 1179 had 86 valid authorization cards
on the date the demand for recognition was
made. 10
In its brief, the Respondent concedes that the
maximum number of potential unit employees at
Pinole as of January 8, 1982, is 163 employees. The
General Counsel asserts that there were no more
than 153 nonsupervisory clerk employees who
would have been represented under the Food Store
Agreement, had the Respondent extended recogni-
tion to Local 1179. The parties' briefs raise issues
concerning whether certain positions should be ex-
cluded from the unit as supervisory or professional
employee positions. In light of our finding that
Local 1179 had 86 valid authorization cards, how-
ever, it is unnecessary to resolve these issues be-
cause the Union would have had a clear majority
even if the number of unit employees was as high
as 163. Accordingly, we conclude that the Re-
spondent violated Section 8(a)(5) and (1) by failing
to recognize the Union on January 8, 1982, when
the Union represented a majority of the Pinole
store employees, and by failing to apply the Food
Store Agreement to those employees.
3. We agree with the judge that the Respondent
violated the Act by recognizing the Independent
Alpha Beta Workers Association on March 2, 1982,
and by executing collective-bargaining contracts
with it on March 11, 1982, but we do not rely on
his rationale. In light of our finding that the Re-
spondent was obligated to recognize Local 1179 on
January 8, 1982, and apply the Food Store Agree-
ment to the Pinole store employees, we further find
that the Respondent's conduct in thereafter recog-
nizing another labor organization and executing
collective-bargaining agreements with it violated
10 The Respondent did not otherwise challenge the validity of the au-
thorization cards relied on by Local 1179 to establish majority status We
do not pass on the validity of Bettencourt's card
ALPHA BETA CO
Section 8(a)(2) and (1) of the Act. See American
Pacific Concrete Co., 262 NLRB 1223, 1226 (1982),
enfd. 709 F.2d 1514 (9th Cir. 1983).
4. The Respondent excepted to the judge's find-
ing that it violated Section 8(a)(1) of the Act by re-
fusing to disavow the antiunion petition circulated
by employee William Purcell which purported to
revoke Local 1179's authorization cards signed by
its Pinole store employees. i i We find merit to this
exception.
There is no evidence that the Respondent knew
of or authorized the circulation of the petition by
Purcell or that the employees might reasonably be-
lieve that the Respondent condoned or had author-
ized Purcell's activities. The record contains un-
controverted testimony by Purcell and Pinole Unit
Manager Danner that the Respondent did not learn
of the petition until sometime after the original
complaint was filed in this case. Purcell had been
referred to as "Bill Brazil" in the original com-
plaint issued on November 27, 1981. In response to
questioning by Danner to determine who "Bill
Brazil" was, Purcell revealed that he had been so-
liciting employee signatures on his petition. Purcell
gave the petition to Danner who then forwarded it
to the industrial relations department. The Re-
spondent did not use the petition for any reason
other than to assert at the hearing that Local 1179
lacked majority status. Under these circumstances,
the acceptance of the petition by the Respondent
does not retroactively constitute Purcell an
agent .12 Accordingly, we reverse the judge's find-
ing of an 8(a)(1) violation based on the Respond-
ent's failure to disavow the Purcell petition.
REMEDY
Having found that the Respondent has engaged
in violations of Section 8(a)(5), (3), (2), and (1) of
the Act, the Respondent shall be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the
Act. The affirmative action shall include an order
requiring the Respondent to offer the San Pablo
employees who would have been transferred but
for the Respondent's unlawful discrimination posi-
tions of employment at the Pinole store, without
prejudice to their seniority or any other rights or
privileges, displacing, if necessary, any Pinole em-
i l The judge concluded that Customer Service Manager Purcell was
an employee, rejecting the General Counsel's contention that the custom-
er service manager had supervisory authority The General Counsel ex-
cepted to the judge's finding We agree with the judge's determination
for the reasons set forth in his decision and find it unnecessary to rely on
the alternative theory that even if Purcell was a supervisor, as a probable
bargaining unit member, the Respondent would not be responsible for his
conduct
"DietzDietz Forge Co , 173 NLRB 19 (1968)
231
ployee in order to provide work for the discrimina-
tees. In addition, the Respondent shall be required
to make the discriminatees whole for any loss of
earnings and other benefits, and any additional ex-
penses they may have incurred as result of the dis-
crimination practiced against them, with interest."
To remedy the 8(a)(5) violation, the Respondent
shall be ordered to recognize and bargain with the
Union, on request, as the exclusive representative
of all Pinole store employees in the appropriate
unit as specified in the parties' collective-bargaining
agreement; on request, apply and extend the 1980-
1983 collective-bargaining agreement to the unit
employees at the Pinole store with retroactive
effect from and after January 8, 1982, the date the
Union attained its majority among the Pinole store
employees; and to make the unit employees at the
Pinole store whole for any loss of pay and benefits
resulting from the Respondent's failure to apply the
terms and conditions of such collective-bargaining
agreement to them, with interest.14
The Respondent shall also be ordered to cease
giving effect to the collective-bargaining agree-
ments it executed with Independent Alpha Beta
Workers Association. However, nothing herein
shall authorize or require the withdrawal or elimi-
nation of any wage increase or other benefits or
terms and conditions of employment that may have
been established pursuant to the performance of
those agreements. The Respondent shall reimburse
all present and former employees, who may have
been coerced into membership in the Independent
Alpha Beta Workers Association by virtue of the
union-security clauses contained in these collective-
bargaining agreements with the Association, for
moneys paid by or withheld from them on or after
March 11, 1982, the date the agreements were exe-
cuted, with interest computed in the manner pro-
vided in New Horizons for the Retarded, supra. 15 In
general, employees who joined or signed authoriza-
tion cards for Independent Alpha Beta Workers
Association prior to the execution of the collective-
bargaining agreements on March 11, 1982, are
13 The Respondent shall pay backpay as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971) Fur-
ther, in accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
14 See fn 13, supra Interest applicable to any trust fund contributions
that the Respondent has failed to make shall be paid in accord with the
criteria set forth in Merryweather Optical Co, 240 NLRB 1213 (1979)
is See Human Development Assn , 293 NLRB 1228 (1989), Unit Train
Coal Sales, 234 NLRB 1265 (1978)
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found not to have been coerced into member-
ship.16
In view of the closing of the San Pablo store, we
shall provide for mailing the notice to the former
San Pablo employees.
CONCLUSIONS OF LAW
1. The Respondent, Alpha Beta Company, is an
employer engaged in commerce within the mean-
ing of Section 2(2) of the Act.
2. United Food and Commercial Workers Inter-
national Union, AFL-CIO, Local 1179 and Inde-
pendent Alpha Beta Workers Association are labor
organizations within the meaning of Section 2(5) of
the Act.
3. In August 1981, the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to trans-
fer any of its San Pablo retail salesclerks to its
newly opened store in Pinole in order to obtain
contractual concessions from Local 1179.
4. All employees working in the Respondent's
retail food stores within the geographical jurisdic-
tion of Local 1179, except meat department em-
ployees and supervisors within the meaning of the
National Labor Relations Act, constitute a unit ap-
propriate for the purposes of Section 9(b) of the
Act.
5. Since January 8, 1982, Local 1179 has been
the exclusive collective-bargaining representative
of the Pinole store employees in the unit found to
be appropriate in Conclusion of Law 4, above, for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
6. By refusing, on or after January 8, 1982, to
recognize and bargain with Local 1179 as the col-
lective-bargaining representative of the employees
at the Pinole store, as part of the appropriate unit,
the Respondent violated Section 8(a)(5) and (1) of
the Act.
7. By refusing, on or after January 8, 1982, to
apply and extend to the employees at its Pinole
store, as part of the appropriate unit, the existing
collective-bargaining agreement it has with Local
1179, the Master Food Store Agreement, the Re-
spondent violated Section 8(a)(5) of the Act.
8. By recognizing the Independent Alpha Beta
Workers Association, on March 2, 1982, and there-
after executing collective-bargaining contracts with
it on March 11, 1982, the Respondent violated Sec-
tion 8(a)(2) and (1) of the Act.
9. The unfair labor practices found above are
unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
I6 Ibid
ORDER
The National Labor Relations Board orders that
the Respondent, Alpha Beta Company, San Pablo
and Pinole, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to transfer employees from existing
stores to newly opened stores in order to obtain
contractual concessions from a labor organization.
(b) Refusing to recognize and bargain with
United Food and Commercial Workers Union,
AFL-CIO, Local 1179, as the exclusive representa-
tive of their employees in their Pinole, California
store, as part of the unit found appropriate herein.
(c) Recognizing or bargaining with the Inde-
pendent Alpha Beta Workers Association as the
representative of the Respondent's Pinole retail
sales employees unless and until that labor organi-
zation has been certified by the National Labor Re-
lations Board as the exclusive bargaining represent-
ative of those employees.
(d) Giving effect to its contracts of March 11,
1982, with Independent Alpha Beta Workers Asso-
ciation or to any extension, renewal, or modifica-
tion of it; provided, however, that nothing in this
Order shall authorize or require the withdrawal or
elimination of any wage increase or other benefits,
terms, and conditions of employment that may
have been established pursuant to the performance
of those contracts.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer those former San Pablo store employ-
ees, who would have been transferred to the Pinole
store in the absence of the Respondent's discrimina-
tory conduct, immediate employment in the same
positions in which they would have been hired
without the discrimination against them or, if those
positions no longer exist, in substantially equivalent
positions, without prejudice to their seniority or
any other rights or privileges and make them
whole for any loss of earnings and other benefits,
and any additional expenses incurred as a result of
the discrimination against them, in the manner set
forth in the remedy section of this decision.
(b) Remove from its files any reference to the
unlawful refusal to transfer and notify the employ-
ees in writing that this has been done and that
action will not be used against them in any way.
(c) On request, recognize and bargain collective-
ly with United Food and Commercial Workers
ALPHA BETA CO.
Union, AFL-CIO, Local 1179, as the exclusive
representative of its employees at its Pinole, Cali-
fornia store, as part of the appropriate unit.
(d) On request, apply and extend to the employ-
ees at its Pinole, California store, as part of the ap-
propriate unit, the parties' 1980-1983 collective-
bargaining agreement, with retroactive effect from
and after January 8, 1982.
(e) Make whole the unit employees at the Pinole,
California store for any loss of earnings and other
benefits that they may have suffered by reason of
the unfair labor practices engaged in by the Re-
spondent in the manner set forth in the remedy sec-
tion of this decision.
(f) Reimburse all present and former unit em-
ployees, except those who joined or signed authori-
zation cards for Independent Alpha Beta Workers
Association prior to the execution of the collective-
bargaining agreements on March 11, 1982, for
moneys paid by or withheld from them on or after
March 11, 1982, for initiation fees, dues, or other
obligations of membership in the Association, with
interest computed in the manner provided in the
remedy section of this decision.
(g) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(h) Post at its Pinole, California store copies of
the attached notice marked "Appendix." 17 Copies
of the notice, on forms provided by the Regional
Director for Region 32, after being duly signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and be maintained for 60 consecutive days in
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(i) Mail a copy of the attached notice marked
"Appendix" 18 to all former San Pablo employees
who were employed by the Respondent immediate-
ly prior to the closing of the store. Copies of the
notice on forms provided by the Regional Director
for Region 32, after being signed by the Respond-
ent's authorized representative, shall be mailed im-
mediately upon receipt.
17 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 Nation-
al 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 "
18 See fn 17, supra
233
(j) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
In recognition of these rights, we notify you
that:
WE WILL NOT refuse to transfer employees from
our San Pablo, California store to our Pinole, Cali-
fornia store in order to obtain contractual conces-
sions from United Food and Commercial Workers
Union, AFL-CIO, Local 1179, at Pinole.
WE WILL NOT refuse to recognize and bargain
collectively with United Food and Commercial
Workers Union, AFL-CIO, Local 1179, as the ex-
clusive representative of our employees at our
Pinole, California store, as part of the appropriate
unit noted below with respect to wages, hours, or
any other terms of conditions of employment:
All employees working in the Employer's
retail food stores within the geographical juris-
diction of the Union except meat department
employees and supervisors within the meaning
of the National Labor Relations Act.
WE WILL NOT recognize or bargain with Inde-
pendent Alpha Beta Workers Association as the
representative of our Pinole, California retail sales
employees unless and until that labor organization
has been certified by the National Labor Relations
Board as the exclusive bargaining representative of
those employees.
WE WILL NOT give effect to our contracts of
March 11, 1982, with Independent Alpha Beta
Workers Association; provided, that nothing in this
Decision and Order shall authorize or require the
withdrawal or elimination of any wage increase or
other benefits, terms, and conditions of employ-
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment that may have been established pursuant to
the performance of such contracts.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of any rights guaranteed by the Na-
tional Labor Relations Act.
WE WILL offer those former San Pablo store em-
ployees, who would have been transferred to the
Pinole store but for our discriminatory conduct,
immediate employment in the same positions in
which they would have been hired absent the dis-
crimination against them or, if those positions no
longer exist, in substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges, and WE WILL make them
whole, with interest, for lost earnings, benefits and
expenses they may have suffered as a result of our
refusal to transfer them in August 1981.
WE WILL notify each of them that we have re-
moved from our files any reference to our unlawful
refusal to transfer and that action will not be used
against them in any way.
WE WILL, on request, recognize and bargain
with United Food and Commercial Workers
Union, AFL-CIO, Local 1179, as the exclusive
bargaining representative of all employees in the
appropriate unit as set forth above.
WE WILL, on request, apply our 1980-1983 col-
lective-bargaining agreement with United Food
and Commercial Workers, AFL-CIO, Local 1179,
the Food Store Agreement, to the employees in
our store located in Pinole, California, as part of
the multistore appropriate unit described above,
with retroactive effect from January 8, 1982.
WE WILL make our employees at our Pinole,
California store whole for any loss of earnings and
other benefits resulting from our unfair labor prac-
tices, plus interest.
WE WILL reimburse all present and former unit
employees except those who joined or signed au-
thorization cards for Independent Alpha Beta
Workers Association prior to the execution of the
collective-bargaining agreements on March 11,
1982, for moneys paid by or withheld from them
on or after March 11, 1982, for initiation fees, dues,
or other obligations of membership in the Associa-
tion, with interest.
(Bunch & Andrews), of San Francisco, California, for
the Retail Clerks.
Cy Epstein (with Glenn Alex, on brief) and Janet Vales, of
Alameda, California, President of the Independent
Alpha Beta Workers Association, for the Independent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was heard at Oakland, California, on 11 trial days
between April 20 and May 19, 1982, pursuant to an
amended complaint issued by the Regional Director for
the National Labor Relations Board for Region 32 on
March 25, 1982, the original having been issued on No-
vember 27, 1981, and which is based on a charge filed by
United Food and Commercial Workers International
Union, AFL-CIO, Local 1179 (either the Retail Clerks
or Local 1179) on October 6, 1981,1 and twice amended
thereafter. The complaint alleges that Alpha Beta Com-
pany (Respondent) has engaged in certain violations of
Section 8(a)(1), (2), (3), and (5) of the National Labor
Relations Act (the Act)
Issues
1. Whether or not Respondent refused to transfer em-
ployees from its San Pablo store upon its closing to its
new Pinole store because of union representation consid-
erations
2 Whether or not Respondent refused to grant recog-
nition to the Retail Clerks at its Pinole store in breach of
the bargaining obligation.
3. Whether or not Respondent thereafter granted rec-
ognition to the Independent Alpha Beta Workers Asso-
ciation (the Independent) at a time when it was not privi-
leged to do so, and
4. Whether it committed certain acts interfering with,
restraining, and coercing employees in the exercise of
their Section 7 rights independent of the foregoing ques-
tions 2
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of all parties.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
ALPHA BETA COMPANY
David Miller and Raoul Thorbourne, for the General
Counsel.
Henry F Telfeian and Patrick W. Jordan (McLaughlin &
Irvin), of San Francisco, California, for the Respond-
ent.
Thornton C Bunch Jr. (with Anne H. Andrews on brief)
(Nykodym, Epstein & Bonouich), of Pinole, California,
' All dates herein refer to 1981 unless otherwise indicated
2 In fn I of this brief, counsel for the General Counsel has moved to
withdraw par 7(c) and 6(a)(2) of the complaint relating to the discharge
of Ronald Aragon and the alleged encouragement of employees to form
their own union In In 4 he has moved to strike from the complaint the
names of alleged San Pablo employees Serb, Cates, and David Johnson,
conceding they were not employed there when the store closed Those
motions are granted At the hearing, pars 7(b) and (d) were withdrawn
In addition I dismissed from the bench, as unsupported by any evidence,
par 6(a)(1), a portion of par 6(b)(1) relating to September 10, and a por-
tion of par 5 alleging Mike Hendrix to be a supervisor, but letting stand
the allegation regarding his agent status
ALPHA BETA CO 235
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits it is a Delaware corporation which
operates a chain of supermarkets throughout California
It further admits that during the past year, in the course
and conduct of its business its gross volume exceeded
$500,000 and it annually purchases goods and materials
valued in excess of $500,000 from sources outside Cali-
fornia. Accordingly it admits, and I find, that it is an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, both the Retail Clerks
and the Independent to be labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
While the record is not clear regarding the exact
nature of the ownership interests, it appears that Re-
spondent is a division of American Stores. It further ap-
pears that sometime in 1979 Skaggs Drug Company pur-
chased a controlling interest in American Stores and sub-
sequently influenced the creation of the so-called "com-
bination" or "combo" store concept. A "combo" store is
much larger than an ordinary supermarket, even larger
than so-called "expanded" stores. In addition to offering
wider varieties of groceries, a "combo" store incorpo-
rates an entire modern drug store selling a wide variety
of nongrocery items.
The Pinole store, which opened for business in early
August, was the first "combo" store in Northern Califor-
nia. Respondent's oldest Northern California store was
located in San Pablo. The two stores were quite close,
both being adjacent to Interstate 80 and approximately 5
miles, or two freeway exits, apart. Respondent closed its
San Pablo store nearly simultaneously with the opening
of Pinole.
The San Pablo store was part of a multistore collec-
tive-bargaining unit represented by Local 1179. That
union represents Respondent's retail clerks at each of its
stores in Contra Costa County. In addition, sister locals
represent, on a similar multistore basis, the employees at
Respondent's stores located throughout the remainder of
the San Francisco-Oakland-San Jose area.
Collective bargaining here has been described as multi-
employer, multiunion, as well, for Respondent, like other
chains in the area, is represented by Food Employers
Council, On a multiemployer, multiunion basis, the
master agreement reached by the parties in the Bay Area
is known as the "Food Store Agreement." In Contra
Costa County however the only actual signatory parties
are Local 1179 and the Food Employers Council. The
current agreement is effective from January 1, 1980, to
February 28, 1983.
It appears that at least insofar as Respondent is con-
cerned, whenever it has opened a new store in the Bay
Area, it has regularly recognized the appropriate UFCW
local covering the county in which the new store was lo-
cated. Recognition was normally granted without proof
of the union's majority status. Indeed, that appears to
have been the standard practice of all the chains who are
members of Food Employers Council. Not until recent
years, according to the testimony of Food Employers of-
ficials, have a few chains begun asking for proof of ma-
jority status.
The current Food Store Agreement contains a newly
negotiated clause, paragraph 1 13 which reads in perti-
nent part:
NEW STORES AND REMODELS: . . . Not-
withstanding any language to the contrary con-
tained in this agreement between the parties, it is
agreed that this agreement shall have no application
whatsoever to any new food market or discount
center until fifteen (15) days following the opening
to the public of any such new establishment . . . .
. . . The Employer shall staff such new or re-
opened market with a combination of both current
employees and new hires, in accordance with cur-
rent industry practices of staffing such stores with a
cadre of current employees possessing the necessary
skills, ability and experience, plus sufficient new
hire [sic] to meet staffing requirements. .. .
As can be seen, the clause by its title relates specifical-
ly to new stores and remodels. It permits an employer to
ignore the collective-bargaining agreement for the first
15 days the establishment is open. It does, however, re-
quire the employer initially to staff the store with a rea-
sonable number of current employees. In addition, the
employer is permitted to hire new employees.
The Union and the General Counsel contend that after
the 15-day "window" expires, the new store, by virtue of
the clause, and on proof of majority, is automatically in-
corporated into the multistore bargaining unit. Thus they
assert that the clause is a relatively ordinary "after ac-
quired store" clause. Respondent, on the other hand,
argues that the clause does nothing more than to provide
the employer with the opportunity initially to stock the
store and operate it free of the contract obligations for
the first 15 days It argues that the clause should not be
interpreted as being broader than that.
Both parties agree that the clause, in accordance with
good business practice, also requires/permits an employ-
er opening a new facility to bring in experienced em-
ployees from other stores to staff and train new employ-
ees. Whether those transfers are considered temporary or
permanent appears to be discretionary as is the number
of new hires.
The Pinole store had been under construction since
sometime in 1980. It was not, however, until May 1981
that Respondent's officials began concerning themselves
with staffing it. In May, believing the store to be signifi-
cantly different than its ordinary supermarkets, Director
of Labor Relations Rick Hinshaw had a breakfast meet-
ing with Retail Clerks President Bill Henderson at the
Edgewater Hyatt House. Hinshaw explained the concept
of the "combo" store and told Henderson that such
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stores had been opened in Las Vegas, Nevada. He said
there had been a dispute between the UFCW local there
and Respondent lasting for 6 months which had been re-
solved only after that union had made some concessions.
Hinshaw explained that due to the size of the Pinole
store, as well as differences in the chain of supervision,
Respondent, prior to recognizing the Retail Clerks,
would insist on concessions similar to those made in Las
Vegas and that without them some kind of confrontation
would occur. According to Henderson, Hinshaw told
him the needed concessions would be in the area of man-
agement exclusions from the bargaining unit and lower
rates of pay for the employees working on the "drug
side " In addition, according to Henderson, but denied
by Hinshaw, Hinshaw observed that Respondent's labor
relations department was going to take a tougher stance
where necessary as a result of the purchase by Skaggs;
indeed, the Las Vegas dispute supposedly was the result
of that policy change.
Henderson says he replied that because this was the
first store of its kind in Northern California and the first
time an employer had asked for such concessions, he
would not make the decision himself but would refer the
question to the Bay Area Clerks Council, a committee of
UFCW locals which are parties to the Food Store
Agreement.
That meeting occurred in July. Shortly thereafter Hen-
derson advised Hinshaw the Council had taken the posi-
tion that it would not make concessions or deviate from
the Food Store Agreement. He said he was bound to
adhere to that position.
In the meantime , beginning in June, and knowing there
was a dispute developing between the Retail Clerks and
management regarding contract coverage at Pinole, Re-
spondent's district manager, Steve Giordano, together
with the personnel department and the Pinole "unit man-
ager," Monty Danner,3 met for the purpose of determin-
ing which employees would be assigned to open the
Pinole store. The decisional process continued even after
the store opened on August 30.
Simultaneously, the San Pablo store was in the process
of being closed No official announcements were made
until it actually closed although many employees, but not
all, were aware of rumors that the store soon would be
Because of the rumors, a number of employees had filed
transfer requests asking to be sent to Pinole. When Store
Manager Rich Peterson ran out of transfer request forms,
others asked him orally for transfer to Pinole.
When the San Pablo store was actually closed on
August 15 (although a few employees worked in the
closed store, performing merchandise transfer and clean-
up work for a week thereafter), all the employees were
transferred to other stores within the jurisdiction of the
Contra Costa County UFCW, Local 1179.4
On August 30, according to Danner, the Pinole store
opened with approximately 425 employees. He testified
that this complement, which does not total 425, included
40 checkers, 20 bakery clerks, 125 courtesy clerks (as-
signed to the grocery side), 65 drug clerks, 15 meatcut-
ters, and 5 custodians.-'
B. Management 's Statements
1. To San Pablo employees regarding transferring
to Pinole
Because of the rumors that San Pablo would close,
many of those employees began to take steps to ensure
continued employment. The parties stipulated that 10
employees filed transfer requestss and there is testimony
that others were filed but those appear to have been lost
in the shuffle. It should be observed that although it is
Respondent's practice to insist on the finding of a trans-
fer request form, several employees testified that they
have been voluntarily transferred at various times in
their careers without filing one. In addition there is testi-
mony that the San Pablo store's supply of forms became
exhausted. Moreover, bookkeeper Lupe Feliciano testi-
fied that when she filed her transfer request in June with
San Pablo Store Manager Rich Peterson, he told her it
was unnecessary because all the San Pablo store employ-
ees would be sent to Pinole Later, after Peterson had
approved her request, she saw it unsent in his office. She
asked him to send it to headquarters in Milpitas. He told
her he would but repeated that a transfer request was un-
necessary. 7
In June San Pablo Produce Manager Ronald White
asked Respondent 's produce specialist Dana Green,
White's district supervisor, about transferring to Pinole.
Green asked what job White wanted and White asked to
become the head of the produce department. Green told
White that Linda Pastor, the produce department manag-
er in Livermore, had already been selected. White, un-
aware of the pending closure, said he thought he would
stay in San Pablo. A few days later Green informed
White that San Pablo was being closed. White said noth-
ing at that point. On June 20 he suffered an industrial
injury and was off work until late August.
Sometime in July, while still on injury leave, White
had occasion to go to Pinole. He testified he asked
Danner if he could come to Pinole as "second man."
Danner replied the only people he was sure of were the
department heads. He then told White, "They plan to
open th[e] store nonunion , and if they [do] open it non-
union, they wouldn't use any Alpha Beta people or
Retail Clerks to open the store." Although White's quo-
tation of Danner is perhaps imprecise I understand his
testimony to mean that Danner said that no Local 1179-
9 In a "combo" store the unit manager is the highest management bff-
cial in the store Immediately beneath him are the grocery department
and the drug department managers By way of comparison , the grocery
manager 's duties in the "combo" store are the same as those of a store
manager in an ordinary supermarket
4 The sole exception appears to have been bookkeeper Lupe Feliciano
She had only been in San Pablo for 3 - 1/2 months and was transferred to
the San Leandro store , located in Alameda County, whose employees are
represented by UFCW Local 870
5 That it does not total 425 is of no consequence, all agree that this
total is reasonably accurate In addition, there were several pharmacists
and office clericals The meatcutters and custodians are represented sepa-
rately by different labor organizations and are not involved in this dis-
pute Although the Retail Clerks may have initially sought to represent
the pharmacists, there is testimony that that interest was abandoned in
August
6 One, Serb, was transferred long before the store closed
' Peterson was not called as a witness to testify
ALPHA BETA CO
represented individuals would be transferred to the store.
Danner denies White's testimony.
Sometime thereafter, while White was still on leave,
he returned to the Pinole store where he encountered
Green He says he asked Green if he was "going to still
get to come to Pinole as second man." He says Green
told him "as soon as they solve `the problem"' White
would be coming to Pinole as second man.
Green generally denies the conversations and has an
entirely different version. He agrees that White asked if
he could be considered as the Pinole produce manager
and agrees that he relayed White's interest to District
Manager Giordano. When Green told Giordano of
White's interest, Giordano chuckled in disbelief. Later,
Green said, after Pastor had been selected, White tele-
phoned him saying he had learned of Pastor's selection
and no longer wanted to go to Pinole as a second man
for he did not wish to work with a woman. He said he
was not impressed with Pastor's "wet rack" in Liver-
more. Green says he relayed that to Giordano. He denies
any other conversations with White and further denies
ever telling White that he could go to Pinole as second
man when the "union problem" was settled.
White rejoins, testifying that he never told Green that
he would not work with a woman, he never mentioned
Pastor's "wet rack" at Livermore and would not have
done so because he had never been to her store. Further-
more, White points out, he has worked for and with
women in the past, including Pinole's current grocery
manager, Cheryl Harrington. Indeed, his then assistant in
San Pablo was a woman.
Elvena Johnson had been employed by Respondent at
San Pablo for 14-1/2 years. She was Local 1179's stew-
ard at that store when it closed. Johnson testified that on
July 27 she saw Distnct Manager Giordano at San
Pablo. By then she knew the store was to be closed and
asked Giordano if "we" were going to Pinole She says
Giordano replied he "didn't think so because they were
having a labor dispute." Giordano went on to say that he
would not let the San Pablo employees "starve" and
they were not to worry. According to her, Giordano
said that the employees would be transferred to other
stores. 11
Similarly, bookkeeper Madeline Riley, on the closure
of the San Pablo store, was transferred to Concord. Her
new manager, McMillan, told her the transfer was tem-
porary. About 2 weeks after Pinole opened, Riley called
Giordano to talk to him about the nature of her Concord
transfer, saying she wanted to work in Pinole. She had
earlier filed a transfer request She says Giordano told
her that matters were still unresolved with Local 1179
regarding Pinole and they were still negotiating. She re-
plied she understood, but the commute to Concord was
bothering her. Giordano told her he would contact her
personally "when matters were settled" and she could
work in Pinole. Giordano denies Riley's testimony,
saying that when they spoke on the telephone in mid-
September she asked about transferring to Pinole but he
8 In a preheating affidavit, Johnson reported Giordano as only saying
he could not tell her whether she was going to Pinole
237
replied that he had decided to send no San Pablo em-
ployees to Pinole.
The other San Pablo bookkeeper, Lupe Feliciano, was
transferred to San Leandro, in the jurisdiction of UFCW
Local 870. The store manager there was Rich Peterson
who had been her manager at San Pablo before it closed.
Feliciano testified that Peterson told her she would only
be at San Leandro for 2 weeks. She, too, had filed a
transfer request. Earlier, while at San Pablo, Peterson
had told her the transfer request was unnecessary as all
the people from San Pablo would be going to Pinole.
Later, in mid-September, several weeks after Pinole had
opened, having heard nothing regarding her transfer, she
telephoned the personnel department in Milpitas. There
she spoke to the individual who had interviewed her for
her initial hire some months before, Personnel Specialist
Mike Hendrix.9
Feliciano asked him when she was going to Pinole.
Hendrix told her that she would not be going to Pinole,
that San Leandro was now her permanent store. She
became upset and began to argue saying she had been
led to believe she would get to go to Pinole. Hendrix re-
plied, "Well, you are in the union and we are sending
nonunion people to that store until we get it settled." Fe-
liciano, angered, hung up the phone. She then tele-
phoned Giordano telling him that if she had known that
San Leandro would be her permanent store she would
not have gone. Giordano replied, "Well, the reason you
are not there [at Pinole] is because we still haven't nego-
tiated a contract with your union and . . . you may get
to go there once they get it settled " She asked what
would happen to her. He told her not to worry about it,
he had not forgotten the San Pablo employees. During
that conversation she referred to the fact that Hendrix
had said San Leandro was her permanent store. She re-
calls Giordano saying Hendrix did not know what he
was talking about. 10
Giordano has a different version of the conversation.
He remembers Feliciano asking if she was going to be
transferred to Pinole and says he replied, she was "lucky
to have a job and that Peterson had taken her." He said
there was no further conversation with her
2. To Pinole employees
a. Charlotte Moore, prior to being assigned to Pinole,
had worked for Respondent for about 9 years. She was
represented by UFCW Local 870 and worked in San
Leandro. She had recently received special training to
program the scanners-a cash register system which
automatically reads the product and records the price.
She was hired in Pinole as the "UPC [Universal Price
Code] coordinator ." She was selected for the job by Dis-
trict Manager Giordano and was interviewed by him
9 At the hearing I ruled that personnel department employees such as
Hendrix were not 2(11) supervisors, but were probably 2(13) agents See
Red Oaks Nursing Home, 241 NLRB 444, 446 (1979) Hendrix, as an
interviewer and counselor would necessarily be seen as someone who
spoke on management's behalf and must be considered Respondent's
agent Red Oaks, supra, J P. Stevens & Co, 247 NLRB 420, 435 (1980)
10 Much later Feliciano filed a grievance over the matter and settled it
on the basis of taking a layoff
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about a month before the store opened She remembers
that during the interview, sometime in July, Giordano
asked her how she felt about working without a union.
She replied she would be concerned about her fringe
benefits. She remembers Giordano telling her that it
would only be temporary, that she would probably have
to withdraw from Local 870, but "as soon as it was set-
tled [she] would be a member of 1179." He also told her
there was a "very real chance that when the store
opened, there will be pickets on the front door." She re-
membered Giordano saying that Retail Clerks President
Henderson was being stubborn, was internationally
known, had a reputation to uphold, and that Henderson
was "the problem."
Giordano testified differently. He said that in June
1981 while at the San Leandro store Moore asked about
the UPC coordinator job at Pinole. He told her that he
did not know about it, that he had to visit the Las Vegas
"combo" store first. Nothing more was said. Later, at his
request, he had a second conversation with her at Pinole
Danner was present. Giordano said she asked about the
UPC job and they discussed its description. She asked if
there would be a union and he replied he did not know.
She also asked if there would be pickets. He replied,
"There may be." He denies saying anything to Moore re-
garding her union membership or about how she felt
working in a nonunion store. He says he neither told her
she could withdraw from Local 870, nor told her that
she would become a member of Local 1179. He denies
referring to Henderson as either internationally known
or as stubborn. He claims he did not know Henderson.
Moore's testimony is offered for two purposes first, to
prove an allegation in the complaint [amended paragraph
6(e)] asserting that it violated Section 8(a)(1) as condi-
tioning Moore's tranfer to Pinde on her abandoning
union representation, second, as evidence of motive for
Respondent's refusal to transfer San Pablo employees to
Pinole.
I conclude that it is good evidence for the latter pur-
pose, but fails as coercion of Moore. According to her,
she and Giordano discussed the fact tht there was no
union at Pinole. He asked if that bothered her. When she
replied she would be concerned about her negotiated
fringe benefits, he said it was a matter of little concern
because "as soon as [the dispute] was settled Local 1179
would become her representative." He did say she would
probably have to withdraw from Local 870, but the
remark is legally insignificant. First, she did not quote
Giordano as conditioning the UPC job on her withdraw-
ing from Local 870. Second , his assessment was couched
in "probable" terms; and third, if Local 1179 had become
the representative she would have, under the union shop
clause, been required to ,loin. i i No doubt that would
have involved a simple transfer from one UFCW local to
another (within the same multiunion bargaining unit), lit-
erally resulting in a withdrawal from Local 870. I find
nothing coercive in the statement, which was relatively
factual.
I I All parties, including Moore, believed the Food Store Agreement or
a close facsimile, would be applied to Pinole
However, it is another instance, see section C, infra,
where Giordano refers to resolution of the Pinole dispute
in favor of Local 1179. It is consistent with remarks
made to several San Pablo employees. To that extent,
therefore, Giordano's denial is not credited.
b. Drug clerk Brenda Gilday testified that on October
13 she spoke with Drug Manager Jack Ault. She was
working in the aisles when Ault asked her for a union
application form saying, "Rumor has it you are passing
applications for the union." Gilday replied she knew ap-
plication forms were being circulated but denied doing it.
She recalls Ault saying to her that if she "got the
chance, vote nonunion." He also told her to tell the
other employees that UFCW benefits were "not that
great" and to tell other employees that initiation fees and
dues were too high.
Ault observed that Gilday had been laid off in January
for lack of work. He denies telling her he knew she was
soliciting for the Retail Clerks. He testified he did not
discuss union dues and fees with her and never told her
they were too high. He simply denies the conversation
occurred.
Gilday also testified that on January 19 or 20, she and
drug clerk Sue Bradshaw went to Ault's office to discuss
a scheduling question. Both had had complaints that they
were working too many evenings. Bradshaw had earlier
resolved her scheduling problem through Danner;
Gilday had asked her to accompany her in dealing with
Ault. Gilday testified that during the conversation Ault
told them "to make sure we voted nonunion; that he
didn't like working in a union store because he had to
work with "stewards and robots." If the Union got in, he
"would leave." She says he also asserted that "because of
the Union there will be layoffs which wouldn't be by se-
niority." She says he told her layoffs should be done "by
lot."
Bradshaw, however, does not corroborate Gilday. She
recalls Gilday asked her to come to the meeting "for
moral support." She remembers Gilday telling Ault that
she was working too many nights. Ault replied he
"would work with her on that." Bradshaw denies Ault
said anything at all about the Retail Clerks, is certain he
did not tell them to vote against it or suggest that he
would quit if Local 1179 came in She further denies
Ault said he did not like unions. She says that the only
time she ever discussed unions with Ault was once in
November when she asked him what was happening
with the Retail Clerks. He replied he did not know.
Again, Ault denies Gilday's testimony.
Frankly, Gilday was unimpressive as a witness where-
as both Ault and Bradshaw were quite sure of them-
selves. Indeed, based on Bradshaw's description of the
January conversation , I must conclude that Gilday, who
may have an ax to grind over her layoff, was fabricating.
If she fabricated the January conversation, there is no
reason to credit her regarding the October conversation,
either. Accordingly, I conclude that the General Coun-
sel's evidence regarding these incidents has been effec-
tively rebutted and fails for lack of credible evidence.
ALPHA BETA CO
C, Respondent 's Asserted Reasons for Not
Transferring Any San Pablo Employees to Pinole
Respondent 's District Manager Giordano admits he
made the decision not to transfer any San Pablo employ-
ees to Pinole This decision was made regardless of
whether or not the San Pablo employees had actually
filed transfer requests . Indeed , all the transfer requests
which were actually filed were approved by Giordano;
some were also approved by Pinole Unit Manager
Danner ; each had earlier been approved by San Pablo
Manager Peterson.
Giordano , explains that none of the approvals were
final, but principally observes that he had only recently
become district manager and did not truly know the
qualifications of the San Pablo employees . He says that
after observing the San Pablo store for a period of
months he decided Peterson 's recommendations were not
to be trusted . He cites statistics regarding business
volume and efficiency at San Pablo and asserts they
demonstrate that "as a group " the San Pablo comple-
ment was unworthy of transfer to Pinole, which he
viewed as a new , flagship store. He says he did not want
to transfer problems from an old store into a brand new
store
Even so, he concedes "as individuals" the San Pablo
employees were probably at least adequate , and some
might even have been good . But, he claims, the San
Pablo employees were imbued with a less than an exem-
plary attitude toward their work. He claims this mani-
fested itself by the fact that the San Pablo store was
dirty, unprofitable , and had poor cash control
Thus, Giordano concedes that at one point he had
made a "tentative decision" to transfer some of the San
Pablo employees to Pinole. He says he reviewed ap-
proximately 50 transfer requests which were then on file
although he needed between 300 and 400 employees
But, approximately the first week in August Giordano
retreated and concluded that he did not wish to transfer
any San Pablo employees to Pinole after all. He says he
and his boss, Bob Braley , Respondent 's director of oper-
ations for Northern California, and Labor Relations Di-
rector Hinshaw had a meeting in Milpitas about that
time. Giordano says he called the meeting asking Hin-
shaw to attend because he wanted to ask Hinshaw's
advice regarding any legal problems he might have if he
did not transfer the clerks from San Pablo to Pinole
Giordano says he informed Hinshaw and Braley of the
problems which he perceived with the San Pablo em-
ployees and told them he did not want to transfer those
clerks to Pinole. He says Hinshaw advised , "Legally
there is no problem if you take clerks from other stores
and put them in there as well."
On August 10, a meeting was held , apparently at the
Pinole store attended by Giordano and all the other
Contra Costa County store managers , together with per-
sonnel specialist Hendrix. At this meeting virtually all
the San Pablo employees were distributed to other
Contra Costa County stores None were sent to Pinole.
The Pinole store, insofar as transfers are concerned,
was largely staffed with employees from stores whose
employees were represented by UFCW locals other than
Local 1179. Respondent 's Exhibit 29 lists 38 employees
239
who came from UFCW bargaining units at other stores.
Of that number five came from two stores represented
by Local 1179 , Danville and San Ramon . Three of those
employees , Glavaris, Wellbrok , and Kawinski had earlier
filed transfer requests . One, Frampton , had not ; the last,
Gural , was a courtesy clerk who was on layoff status at
San Ramon ; he was a newly hired employee.
All the other transferees assigned to Pinole were rep-
resented by other UFCW locals . Some were drawn from
stores which were great distances from Pinole . One em-
ployee came from Stockton , at least 70 miles away.
Some were drawn from areas north of San Francisco,
such as Petaluma , San Rafael , Novato, and Santa Rosa;
others came from the South Bay near San Jose , such as
Mountain View . One was from 115 miles further south,
Salinas. Still others came from locations on the penin-
sula, between San Jose and San Francisco , such as San
Mateo. Most of the others came from Alameda County
and the greater Oakland area , cities such as Alameda,
Hayward , Fremont, Union City , and Milpitas (the head-
quarters). Two more distant Alameda County stores ac-
counted for the remaining transfers to Pinole. These
were Livermore and Pleasanton . Because of the configu-
ration of the two counties , to commute to Pinole from
the last two cities one must pass through most of Contra
Costa County. Indeed , nearly all the other Contra Costa
County stores are located on or near the same highway,
Interstate 680, which would be the principal commute
route for those going to Pinole from Pleasanton or
Livermore . Of the 38 employees listed on Respondent's
Exhibit 29, 29 did not file transfer requests for Pinole. By
that observation I do not find that they did not want to
go to Pinole, simply that , unlike many of the San Pablo
employees, they did not take the clerical step of filing a
transfer request form . Some of those may have been
asked to go, others may have simply orally mentioned
their interest.
D. The Pinole Store
As a combination food store-drug store, the Pinole fa-
cility is far larger than an ordinary supermarket. A
normal Alpha Beta supermarket runs between 19 ,000 and
23,500 square feet . So-called expanded stores are some-
what larger. Ordinary Skaggs drug stores range between
19,000 and 22,000 square feet. Pinole, unlike them, is
58,000 square feet . It is not physically divided . Both drug
and food items may be stocked in the same areas of the
store. There are obvious department areas, however,
such as meat, produce, deli, sporting goods, clothing, and
cosmetics. 12
Although perhaps not particularly significant , at Pinole
all grocery items are sold by self-service whereas drug
clerks are asked to know more about their products and
do some face-to-face selling. Indeed Pinole employs cos-
metic clerks , sporting goods clerks , and clothing clerks
whose duties require special knowledge of their products
and the use of face-to-face sales techniques . The drug
clerks and grocery clerks wear different color
smocks/vests. The supervisory hierarchy within the store
12 This list is not meant to be all inclusive
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is also different. The drug side of the store is managed
by the drug manager, Jack Ault. At the time of the hear-
ing the food side was managed by Grocery Manager
Cheryl Harrington. Each of them has an assistant and
both of them report to Unit Manager Monty Danner.
E. Respondent's Negotiations with Local 1179
Regarding Pinole
I have earlier described Hinshaw's and Henderson's
discussions occurring in May regarding the opening of
the Pinole store. They did not resume discussions with
any seriousness until early to mid-August when the re-
spective parties met at Local 1179's office in Martinez. It
was at this meeting that Henderson realized Respondent
would not grant recognition absent contractual conces-
sions to which the Retail Clerks could not, for policy
reasons, agree. He insisted on treating the drug clerks as
"nonfood clerks" under the Food Store Agreement
rather than as a new classification as proposed by Re-
spondent. Nor could Henderson agree with Respondent's
request to classify the "lobby" employees as "non-food"
clerks under the contract. He believed they fit the "food
clerk" definition. Finally, Henderson, aware that the
Food Store Agreement bargaining unit included all em-
ployees except the store manager (and meatcutters and
janitors) could not agree to exclude the grocery and
drug managers
F. The Retail Clerks Seek to Organize the
Pinole Store
As a result of his conversations with Respondent's offi-
cials, Retail Clerks President Henderson realized that
before Respondent would recognize Local 1179 it would
have to prove its representative status in some fashion.
Believing that the Food Store Agreement would auto-
matically apply to Pinole once majority status was dem-
onstrated, Henderson directed his staff to begin soliciting
authorization cards from Pinole employees. This began
sometime in mid-September and continued until January
8 when the Union actually demanded recognition, claim-
ing proof of majority. The card solicitation occurred at
the store and at various employee meetings held at a
nearby pizza restaurant and a bowling alley.
While there is no solid evidence that the Retail Clerks
actually engaged in any misconduct regarding a card so-
licitation, Respondent contends that it had received re-
ports that the authorization card solicitations were, on
some occasions, being solicited by means it deemed im-
proper. These included serving liquor to underage em-
ployees, telling employees that signing the cards meant
they would receive union benefits, and telling employees
that Local 1179 already represented the employees so
they might as well sign up
With respect to serving liquor to underage employees,
meaning the high school students who served ,as part-
time courtesy clerks, the evidence before Respondent at
the time was clearly hearsay. Even at the hearing the
evidence was less than persuasive. Union organizer Ron
Stainer admitted that after one of the bowling alley
meetings liquor was served from its bar for which the
Union paid. He denied, however, serving liquor to any
courtesy clerks. He observed that the bowling alley's
owner was the bartender and it was the bartender's re-
sponsibility to check the ages of the drinkers. Thus, al-
though it is certainly possible that a minor may have
been served and may even have drunk too much, no evi-
dence was presented that the liquor had any influence on
the employees' decision to sign the card. Neither is there
evidence that the Union actually intended to provide
minors with liquor.13
Regarding the claim that cards were being solicited by
misrepresentation, Respondent points to the testimony of
Industrial Relations Labor Manager Hinshaw who had a
conversation with union organizer Chuck Matson one
day near the main entrance to the Pinole store. Hinshaw
and Personnel Manager Kent Pembroke had come to the
store to confer with Danner because Matson had asked
to use the breakroom to meet with employees for pur-
pose of soliciting their signatures . According to Hin-
shaw, after he and Pembroke arrived at the store, he was
approached separately by two employees. He does not
know their names. He said one told him she had signed
the card because a solicitor had represented to her that
she had to sign in order to get union health and welfare
and pension benefits. The second employee supposedly
told him that she had signed because she was "intimidat-
ed" by a solicitor who would not let her out of her auto-
mobile until she signed On hearing this, Hinshaw ap-
proached Matson and asked him why the Union was tell-
ing employees they had to sign cards to get their health
and welfare benefits 14 He quotes Matson as replying,
"All is fair in love and war." He is in part corroborated
by Pembroke who did not hear all of the conversation.
Matson denies the incident occurred that way. He says
first Hinshaw laughingly denied him the opportunity to
use the breakroom; then Hinshaw referred to Henderson
as a "hard-headed son-of-a-bitch" saying Local 1179's
bargaining demands were unrealistic. He suggested that
if Matson and he could work together on the subject
they could probably resolve the entire question Matson
says he replied that he and Henderson were of the same
mind and that he doubted he would take a different
stance than had Henderson. Matson says Hinshaw did
not even discuss the solicitation of authorization cards
and did not accuse him of any impropriety or intimida-
tion. He denied saying that "all was fair in love and
war." He also says Hinshaw never accused him or his
fellow organizers of preventing anyone from getting out
of their cars.
There is no evidence that the underlying incidents ac-
tually occurred. Respondent was unable to produce the
individuals to whom the solicitations and/or threats were
made. Moreover, even if Matson said "all is fair in love
and war," the remark hardly constitutes a clear-cut ad-
mission that such conduct was occurring. While it might
be interpreted as an admission of misconduct, it can
equally be interpreted as a flippant statement immediate-
ly following an equally flippant statement of Hinshaw's.
13 Apprentice clerk Henry Chan's testimony fails to establish the con-
tention
14 His omission of the automobile incident tends to corroborate Mat-
son's testimony, infra, that the auto incident was not mentioned
ALPHA BETA CO.
When Hinshaw had denied Matson the use of the break-
room, he had laughed and said something to the effect
that Matson should "get serious." Matson, too, had been
amused for he had not expected permission . Indeed, Hin-
shaw admits to having probably referred to Henderson
as a "son-of-a-bitch," but even that remark was not taken
offensively by Matson. Most likely the entire conversa-
tion was of a semi-serious vein, jocular and facetious. I
conclude it had no significance whatsoever. Matson and
Hinshaw have known each other for a long time and
were likely to have spoken to each other in such a fash-
ion. Thus, even crediting Hinshaw, no admission of mis-
conduct can be inferred.
To the extent that there is actual evidence of misrepre-
sentation, apprentice clerk Henry Chan testified that at
one of the union meetings in December, after the "Pur-
cell petition" (see discussion, infra) had been circulated, a
union meeting was conducted by Henderson at the bowl-
ing alley. Chan says Henderson suggested authorization
cards be signed again because the "Purcell petition" had
apparently revoked them. He remembers Henderson
saying that if a majority signed the cards, the "contract"
would be implemented. With respect to the last state-
ment as being a misrepresentation, I am not persuaded.
In fact, there is case law to the effect that if a union
which represents an existing bargaining unit and seeks to
represent a fringe group the contract may be applied to
the after-acquired group upon showing of majority status
in that group.' a While I recognize that that view may
not be the Board's, nonetheless it hardly qualifies as a
misrepresentation sufficient to imply misconduct in solic-
iting the cards.
The purpose of the foregoing discussion is simply to
demonstrate that Respondent had a belief, approaching
the unwarranted, that the authorization cards to some
extent had not been executed under the best of condi-
tions.
This view is significant only as it affected Respond-
ent's answer to the Retail Clerks' demand for recognition
in January 1982. Henderson's January 8, 1982 wire de-
manding recognition, asked Respondent to submit to a
card check by an independent third party. Hinshaw,
however, did not want to leave the question up to an in-
dependent third party. His reply, while not perfectly
clear, so suggests See section H,1, infra. Henderson
never agreed to any other procedure so a card check in-
volving Local 1179's authorization cards never occurred.
G. The Purcell Petition
Bill Purcell , while employed at the Pinole store, had
the title of customer service manager. He assumed that
title, if not the responsibilities that usually went with it,
when in September his predecessor Cheryl Harrington
became food manager replacing John Smrekar . Purcell
had been customer service manager for about a month at
the Alameda store prior to being transferred to Pinole.
Indeed , he later left Pinole for the store in Fremont
where he also served as customer service manager. De-
15 See NLRB v ABEX Corp, 543 F 2d 719 (9th Cir 1976), declining to
follow the Board majority in Federal Mogul Corp, 209 NLRB 343 (1974),
and adopting the dissents of Members Kennedy and Penello
241
spite the title, it is clear that while at Pinole, he did not
have the same authority which Harrington had had. Cus-
tomer service managers generally throughout Respond-
ent's system serve as assistant store managers. They are
"managers in training" and often have supervisory au-
thority to fire and discipline. Harrington had that author-
ity as Pinole CSM as well as at her previous store, Peta-
luma, where she was customer service manager for a
month prior to coming to Pinole. She had even had such
authority much earlier when she was assistant manager
at San Ramon. While customer service manager at
Pinole she was Danner's first assistant and even dis-
charged one employee, Aragon. When Smrekar left,
Danner asked her to become food manager and she
agreed. The title of customer service manager then de-
volved upon Purcell who had about the same length of
customer service manager experience at Alameda. He,
however, was not as experienced generally. Danner, who
had supervised Purcell sometime earlier, did not trust
him to the same extent as he did Harrington and would
grant him authority to fire or discipline employees. In-
stead, he gave Purcell about the same power as a
"person in charge" or PIC. PIC's were employees of
greater levels of experience to whom operational respon-
sibilities could be entrusted
Generally speaking, the Food Store Agreement covers
all these classifications, if indeed that is what they are.
Even persons who serve as customer service managers
or assistant managers have traditionally been included in
those bargaining units despite any supervisory status they
may have enjoyed. Thus Harrington was a bargaining
unit member both as an assistant manager and as a cus-
tomer service manager prior to her arrival at Pinole.
Likewise, Purcell had been a bargaining unit member
while a customer service manager at Alameda Only the
store managers were excluded from coverage under the
Food Store Agreement.
As customer service manager in Pinole, but without
supervisory authority, Purcell can only be seen as little
different from other senior employees. All the employees
were interested in the union representation question.
Most had been solicited by Local 1179 and most were
aware that some sort of ongoing negotiation was occur-
ring between that union and Respondent over the status
of the Pinole store. In this regard, it should be observed
that Respondent had officially opposed union organiza-
tion of the Pinole store. To this end it had, sometime
early in September, posted a notice. The notice asserted
that Retail Clerk organizers were, in some cases, obtain-
ing signatures under false pretenses, including a state-
ment that they were gathering "pledge cards" with the
company's approval, something which the notice assert-
ed was not true. It asked employees, before signing any
cards, to consider, inter alia, that by signing the card the
Union may call upon the signer to engage in a strike, ob-
serving that this very Union had caused a 6-week strike
somewhat earlier in the year and suggesting that employ-
ees did not get their money's worth from the dues they
paid. It concluded saying, "We don't think we need the
union."
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On September 18 a company vice president issued a
letter which purported to answer questions regarding
Local 1179's organizing techniques. It stated that it was
Respondent's position that the Retail Clerks had no right
to immediate recognition or the collection of monthly
dues without the employees having approved representa-
tion via an election. The letter also advised employees
how to revoke their authorization cards.
On November 27, that same vice president issued an-
other letter. The first paragraph announced a wage in-
crease. The second paragraph, however, warned employ-
ees not to be misled into signing authorization cards,
saying that by signing a card an employee was "really
signing away [the) right to cast a free vote." It went on
to say that Respondent "wants an election so you'll have
an opportunity, without being pressured and harassed by
salesmen who want your money, to vote on whether you
need this kind of Union."ts
Aware of these communications, in December Purcell,
together with some other bargaining unit employees, cir-
culated a petition for the employees' signatures. The
wording of the petition was:
We the undersigned believe that we should have
the right to vote on whether or not our Store
Number 591 [Pinole] should be represented by a
Union with the election process being conducted by
the National Labor Relations Board.
We revoke any union card we signed before.
This petition was signed by at least 95 employees be-
tween December 5 and 10 17
UPC coordinator Charlotte Moore testified that some-
time earlier, either in October or November, Purcell in-
vited her to have coffee with him in the drug receiving
room. She said Purcell told her he knew she was "a
leader of the union movement" and said he wanted her
to know that unionization would result in loss of jobs for
some employees, specifically mentioning one of Moore's
friends. He said he had learned she was passing out au-
thorization cards. He also said he was aware that Local
1179 had a large number of people on its layoff list and
that Moore had no seniority with that Local and would
be "bumped" if Local 1179 got in. He also said he knew
Hamngton was aware of the card, but would try to keep
that information from Danner.
Moore told him she doubted his claim that there was a
large number of people on Local 1179's layoff list. Later
that afternoon Purcell returned and admitted the list was
not as large as he had thought.
In general Purcell agrees with Moore's testimony. He
said that he was afraid of "bumps" and was aware that
the Food Store Agreement required certain ratios of
courtesy clerks and apprentice clerks to full-time clerks.
From his analysis, adoption of the Food Store Agree-
ment at Pinole would mean that the ratios would become
applicable and a large number of courtesy clerks and ap-
16 None of the notices or letters are alleged to be unlawful
17 The petition took the form of multiple pages each providing for 21
signatures There was some testimony that additional pages were in exist-
ence at one time, having been signed by a number of employees, but have
since disappeared
prentice clerks would lose their jobs. Whether that is in
fact what would occur is unclear. However, Local
1179's president Bill Henderson later explained the ratio
provisions of the Food Store Agreement to large num-
bers of employees and the fact of their existence is not
open to question. Whether those employees would have
lost their jobs immediately or through attrition is un-
clear. Purcell does deny saying to Moore that he thought
she was the leader
In December, Purcell's petition came to Moore's atten-
tion via employee Hand At first she refused to sign it.
Later, after conferring with Local 1179, she decided it
would be best for her job protection if she went ahead
and signed it. On December 12 she did so.
When the petition came to Local 1179's attention,
President Henderson at one organizing meeting, and per-
haps more, asserted that the petition was illegal, but if it
had the effect of withdrawing an authorization card, a
new card could be signed which would be valid. He sug-
gested that course to employees who feared for their
jobs if they did not sign Purcell's petition.
Purcell says he prepared the petition on his own and
without any company participation. There is no evidence
to dispute his testimony. He also says it was not until the
original complaint was filed in this case that he became
aware that something might be amiss with his petition
and he immediately turned it over to Danner, who then
learned of it for the first time. Danner concurs.
H. The Demands for Recognition and Respondent's
Reply
1 Local 1179
By telegram of January 8, 1982, Local 1179 President
Bill Henderson wired Respondent's labor relations direc-
tor, Rick Hinshaw, in Milpitas. Henderson asserted that
the Retail Clerks represented a majority of employees in
the Pinole store and demanded that Respondent adhere
to the terms and conditions of employment as specified
in the Food Store Agreement. The wire stated that the
Union expected the agreement to apply on the 15th day
after commencement of store operations at Pinole [mean-
ing retroactive application to approximately September
15, 1981]. He concluded saying, "If you have any ques-
tions concerning the Union's claim of majority status,
please be advised that the union is willing to verify said
status through a mutual impartial party, by a cross-check
of authorization cards."
By letter dated January 12, Hinshaw replied saying he
had received the telegram on January 11 but Respondent
declined to recognize Local 1179 as the bargaining rep-
resentative at Pinole. He asserted that the cards were un-
acceptable and an unreliable indicator of employee
wishes. He concluded saying, "If you decide not to file
for an NLRB election so our employees may vote, we
will consider any other proposals you may submit."
Hinshaw explained that it was his understanding, as
previously discussed herein, that some of the cards had
been solicited in an improper manner and that he was
willing either to undergo an NLRB election or to con-
ALPHA BETA CO
duct the card check himself. He did not want a third
party to do it.
2 The Independent
Sometime in late January a number of employees, un-
happy with both Local 1179 and with Respondent decid-
ed to form their own labor union. The General Counsel
has stated on the record that he has no evidence that Re-
spondent was in any way responsible for the formation
of the Independent.18 Indeed, its president Janet Vales,
testified that she sought assistance from the NLRB Re-
gional Office and ultimately retained counsel. She asked
Danner if she could solicit signatures and he replied that
she was free to do so, as long as she followed the same
rules any other labor union must follow, i.e., soliciting
employees in their off-duty hours and off the floor of the
store. Accordingly, Vales and some fellow employees so-
licited authorization cards. On February 26 she wrote
Danner a letter demanding that Respondent recognize
the Independent as the representative of the drug and
food employees at Pinole asserting that she had a majori-
ty of pledge cards for both departments.
Her letter caused Hinshaw to send mailgrams to both
Vales and Henderson in which he stated-
243
sistance to the Independent and threatened to file appro-
priate charges.
On March 2, as scheduled, the card check was con-
ducted. The Independent's officials presented authoriza-
tion cards demonstrating that it represented a majority of
employees in each of the two proposed units. The Retail
Clerks did not appear and did not participate in any way.
Vales testified that there were, in early March, 120 em-
ployees at the Pinole store, about 20 in the drug depart-
ment and over 100 in food. She said she had two more
than the majority in the food department and had over
70 cards altogether.
Recognition was granted and shortly thereafter negoti-
ations took place over a 4-day period. Two contracts
were ratified by the employees on March 11. Those two
collective-bargaining agreements are in evidence as Gen-
eral Counsel's Exhibits 98 and 99 and by their terms do
not expire until February 28, 1985. Currently the Pinole
clerks, together with some miscellaneous employees, are
covered by one of those two agreements.
IV ANALYSIS AND CONCLUSIONS
A. The Refusal to Transfer the San Pablo Employees
to Pinole
Conflicting demands have been made by your re-
spective unions for recognition as the exclusive bar-
gaining representative of our Pinole store employ-
ees. Alpha Beta is prepared to recognize any union
which can prove it has the uncoerced majority sup-
port of our employees in the appropriate unit.
You are invited to prove that your union has
such support by attending a meeting in the office of
unit manager, Monty Danner, at 11 a.m., on Tues-
day, March 2, 1982, in our Pinole store. At that
time you should be prepared to prove your majori-
ty, by a reliable method, in either or both of the
units described below. If you intend to use "authori-
zation cards" to prove your majority status, you
must produce for us the original signed cards so
that we can both authenticate the signature and be
sure it is uncoerced.
The mailgram concluded by describing two units, a
drug department unit and a grocery department unit,
both of which would exclude the unit manager, the de-
partment managers, their assistants, meatcutters, janitors,
the confidential secretary, guards, and office clericals.
On March 1, Henderson replied that Local 1179 was
not willing to participate in the meeting. He asserted
however that the Retail Clerks stood ready to verify its
majority status as of January 8 through a "mutual third
party." He said he did not believe that it could be deter-
mined from a review of the original signatures whether
or not any were coerced. He concluded with an asser-
tion that the Food Store Agreement applied to Pinole
and the attempt to split the Pinole store into two units
violated that agreement and was inconsistent with "fed-
eral law." He accused Respondent of giving unlawful as-
18 Complaint allegations to this effect have been withdrawn
Much of the analysis with respect to Respondent's
treatment of the San Pablo employees is simply one of
fact. Considering that the San Pablo store was closed
only 2 weeks before the Pinole store opened, at a time
when the Pinole store was being stocked and could use
experienced employees, it appears quite odd that not a
single San Pablo employee would have been selected for
Pinole. This fact becomes even more odd with District
Manager Giordano's admission that at least some of the
individuals who worked at San Pablo were good enough
to have been selected for Pinole. Indeed, the transfer re-
quests of most of the San Pablo employees which were
on file were approved not only by their transferring
manager, Peterson, but by Giordano himself as well as
by Danner, the Pinole unit manager. What, then, moti-
vated Respondent to change its mind and to deny Pinole
to all the San Pablo clerks?
Giordano says it was his assessment of the San Pablo
employees that they simply were not good enough-that
as a group they had attitude problems, cash flow prob-
lems, and failed to keep the store in good shape.
I do not believe Girodano's reasons for deciding to bar
all San Pablo employees from coming to Pinole to with-
stand careful scrutiny. It may well have been that some
San Pablo employees would have been inappropriately
assigned to a "flagship" store like Pinole. Perhaps his as-
sessment of individual employees, such as Produce Man-
ager White, was accurate. It may have been that White
was not capable of handling a large produce department
such as Pinole's He had only worked in smaller stores
before where he had only one assistant. The Pinole store
required seven or eight produce employees. Yet, White
must have been regarded as a reasonably good employee
for when he came off disability he was immediately
made produce manager in San Ramon. Clearly he was
not so bad as to bar him from Pinole altogether and his
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
request for consideration as second man should not have
been looked upon with total disfavor. i 9
Giordano also claimed that as "a group" the San Pablo
complement displayed an attitude problem which he
could not accept. Yet, he conceded that "as individuals"
some were perfectly good employees. Why did not he
pick out those he knew to be good? He knew White had
a good attitude ; he was made produce manager in San
Ramon after his disability ended. Giordano's saying he
distrusted Peterson's recommendations can only be seen
as an abdication of his district manager duties and is not
an acceptable explanation.
Moreover , Giordano 's assessment of the cash handling
question is subject to strong disagreement. In fact, the
San Pablo store was fourth best of the nine nonscanner
stores in Giordano's district. Finally, Giordano had no
difficulty transferring the meatcutters and custodial staff
to Pinole. These individuals were in large part responsi-
ble for the appearance of the San Pablo store.
There is an additional oddity which may be inferred20
from this record, the geographic treatment given both
the San Pablo and Pinole staffs. For example, San Pablo
steward Elvena Johnson lived so close to the store that
she went home for lunch on a regular. basis. She was
transferred to Concord which, given her lack of trans-
portation, was nearly intolerable. Similarly, bookkeeper
Riley lived 10 miles from San Pablo but only 3 from
Pinole. Yet she was sent to Concord and Walnut Creek.
Likewise, Feliciano lived in Rodeo, quite near both
stores, but was transferred to San Leandro, a distance so
great she could not endure it and was forced to resign.
The commuting distances were even worse for Pinole
transferees. One commuted from Stockton, 70 miles
away, and others came from as far away as Santa Clara,
San Mateo, and Mann counties. The natural drawing
area would have been western Contra Costa, northern
Alameda and southern Solano and Napa counties. It
makes no sense to have barred all of the San Pablo em-
ployees, at least some of whom who lived near Pinole,
from working at Pinole while at the same time requiring
some of the transferred employees to commute from dis-
tant cities such as Stockton, San Mateo, Mountain View,
Santa Rosa and the like.21
In addition, I cannot help but notice the effect of the
transfer of the Local 1179 members from San Pablo to
other stores in Contra Costa County. The decision dis-
persed a closely knit group of about 30 Local 1179 mem-
bers, trading them for four full-time employees represent-
ed by Local 1179.22
19 Regarding the dispute between White and Green regarding White's
supposed declaration of opposition to working with women, Green is not
believed I was not impressed with Green , both on the basis of his de-
meanor and on the inherent improbability that White resented working
for a woman He had worked for a woman in the past , Harrington, and
his assistant at San Pablo was a woman
20 I recognize that many of these observations are subject to possible
explanation Nonetheless , Respondent ' s actions here are curious enough
to be pondered in the factual mix
21 I have not concerned myself with the two transfers who came from
Las Vegas, Nevada, or the one from Salinas Clearly those involved per-
manent residence moves , they did not commute daily from those cities
22 The fifth Contra Costa County transferee is also strange He was a
part-time courtesy clerk (probably a high school student), newly hired
but on layoff status at San Ramon Why did Giordano prefer him over
Beyond that, this transfer policy had the effect of sub-
stituting for the San Pablo Local 1179 employees a large
number of employees who were members of UFCW
locals, but who were not as closely knit yet for whom
Local 1179 could not lay an immediate claim. And, the
policy did not violate paragraph 1 13 of the Food Store
Agreement but tended to reduce the likelihood that the
selections would be seen as discriminatory.
This treatment can be contrasted with the geographi-
cal consideration given management officials . Danner
lives in Emeryville, a short distance down Interstate 80
from the Pinole store John Smrekar, the original food
manager, lives in Richmond, the city immediately adja-
cent to Pinole. Harrington, at first Pinole's customer
service manager and later Smrekar 's successor , lives in
San Pablo itself.23 Obviously Respondent was giving
consideration to its management officials with respect to
their daily commute. Had it been treating the San Pablo
employees benignly as it claims, the same consideration
would have been given them.
Thus it is clear that Respondent was not acting in a
way that is commensurate with ordinary business prac-
tice and its explanations cannot be believed. It therefore
must have had another motive. What was the real pur-
pose behind Giordano's decision? On this record, the
only credible explanation is that given by employees
Elvena Johnson, Madeline Riley, Ron White, Lupe Feli-
ciano, and Charlotte Moore to the effect that transfers to
Pinole would be made as soon as "the problem" was cor-
rected, i.e., resolution of the disagreement between Retail
Clerks President Henderson and Respondent over the
nature of the collective-bargaining contract at Pinole. I
can only conclude therefore that Respondent somehow
believed its refusal to transfer these employees to Pinole
would exert leverage against Local 1179 in order to
obtain the contract concessions it sought. Had those con-
cessions been made, given Respondent 's past practice of
immediate recognition, I have no doubt that such recog-
nition would have been granted to Local 1179. Without
the concessions, Respondent decided to make it difficult
for the Retail Clerks to organize the Pinole store. One of
the tools to accomplish that end was to hold hostage the
transfers of those San Pablo employees who could have
worked effectively at Pinole.24 The timing of the deci-
sion so suggests Apparently, Respondent believed the
Pinole store was a significantly different sort of oper-
ation, and as will be seen below, I tend to agree. But that
does not justify affecting the hire and tenure of employ-
ees in order to obtain those concessions. Such a motiva-
tion is violative of Section 8(a)(3) and (1) and I so find.
experienced courtesy clerks from San Pablo who, presumably, lived
much closer to Pmole'i
23 Jack Ault , the drug manager , was transferred from a Skaggs facility
in New Mexico He located in Vallejo, near Pmole, but I do not regard
his situation as similar to those of the other management officials
24 I do not mean to suggest that each and every San Pablo employee
would have been transferred to Pinole had matters gone according to Re-
spondent's expectation No doubt some of those employees would not
have been transferred to Pinole and would have been absorbed else-
where However, I am unable on this record to determine who they were
or how those employees would actually have been treated In any event
it is the way all of them were actually treated which is significant here
ALPHA BETA CO
B. Purcell's Conduct at Pinole
Aside from Respondent's declination of recognition to
the Retail Clerks in January the only remaining miscon-
duct alleged to have occurred at Pinole involves Cus-
tomer Service Manager Bill Purcell. As noted, in stores
where the Food Store Agreement applied, persons in
that position were bargaining unit members , whether or
not they had supervisory authority.
At Pinole, Purcell's predecessor, Harrington, had su-
pervisory authority for she had the power to fire which
she in fact had exercised. When Purcell became custom-
er service manager that power was not granted him. His
duties were not dissimilar from those of a PIC. He was
principally "in charge of the front end" during the after-
noon and early evenings , when Danner , Harrington and
Harrington 's assistant , Mike Porter, were absent Howev-
er, even then Purcell's duties were limited as he was
under orders, as were the PIC's, to communicate with
Harrington if some incident occurred requiring decision
making. He did some scheduling, but so did some PIC's.
Scheduling did not involve independent judgment and
was reviewed by higher supervision.
As previously noted, Harrington, as customer service
manager, had the power to fire. Indeed there is testimo-
ny that the customer service manager in other stores was
a manager in training ; those stores did not have assistant
managers and the customer service managers performed
those duties. There is no evidence that Danner ever told
any rank-and-file employee that Purcell's authority was
circumscribed, but Danner did require Purcell to report
to Porter, the assistant grocery manager, instead of him-
self as had Harrington. That change was known to the
clerks. Yet, he was, or would have been, a bargaining
unit member under either the Food Store Agreement or,
later, the Independent's contract. In the November-De-
cember issue of Respondent's in-house publication, The
Vanguard, Respondent announced the opening of the
Pinole store to its entire system. In the article Purcell
was listed as a customer service manager. The article
also listed at least two nonsupervisory "managers,"
Louise Cunningham, the service/deli-bakery manager,
and Linda Pastor, the produce manager . Thus, the article
does not clearly hold Purcell out as a person who spoke
for management, for knowledgeable employees reading
the article would know that neither Pastor nor Cun-
ningham were anything other than PIC's in charge of a
given area . Likewise, Purcell was treated like a PIC and
had duties quite similar to the PIC at the front end.
In those circumstances I am unable to conclude that
the General Counsel has proven Purcell to have been a
supervisor within the meaning of Section 2(11) of the
Act. Even if he was, however, he was a probable bar-
gaining unit member. Certainly the Retail Clerks claimed
his job. Such an individual, even if imbued with supervi-
sory authority, is generally free to engage in unauthor-
ized antiunion activity. The Board has said:25
25 Montgomery Ward & Co, 115 NLRB 645, 647 (1956), enfd 242 F 2d
497 (2d Or 1957), cert denied 355 U S 829 (1957)
245
Statements made by a supervisor violate Section
8(a)(1) of the Act when they reasonably tend to re-
strain or coerce employees When a supervisor is in-
cluded in the unit by agreement of the Union and
the Employer and is permitted to vote in the elec-
tion, the employees obviously regard him as one of
themselves. Statements made by such a supervisor
are not considered by employees to be the represen-
tations of management, but of a fellow employee.
Thus they do not tend to intimidate employees. For
that reason, the Board has generally refused to hold
an employer responsible for the antiunion conduct
of a supervisor included in the unit , in the absence
of evidence that the employer encouraged, author-
ized, or ratified the supervisor's activities or acted
in such manner as to lead employees reasonably to
believe that the supervisor was acting for and on
behalf of management. [Footnote omitted.]
Purcell was a young man with ambition. He was
aware of Respondent's announced opposition to the
unionization of the Pinole store. He also viewed his se-
lection as customer service manager to be a promotion
and a step toward upper management. To further his
career, he was willing to do whatever he thought Re-
spondent would approve of with respect to opposing the
unionization of the store. Accordingly, he attempted to
frighten Charlotte Moore from engaging in organization-
al activities, suggesting that Danner would disapprove if
he found out that Moore was soliciting cards, and telling
her he could keep the information from Danner but only
if she would cease card solicitation. He also told her that
her conduct would result in the job loss of her friends
and other employees.
Later, he solicited the signatures of nearly 100 employ-
ees on a petition which can only be described as bizarre.
The petition stated that the signers wanted an NLRB
election in order to choose whether or not to be repre-
sented by the Retail Clerks Yet in the same breath, it
sought to revoke the very authorization cards which that
union could use to support an election petition Obvious-
ly, something is wrong here. If Purcell wanted an NLRB
election, why did he seek to revoke Local 1179's cards?
Without answering that question, one thing which is
unassailable is that Respondent did not know Purcell was
pursuing his petition. Purcell had been referred to as
"Bill Brazil" in the General Counsel 's original complaint
issued on November 27. When Danner, trying to deter-
mine who "Bill Brazil" was, settled on Purcell as a possi-
ble candidate, Purcell revealed that he had been solicit-
ing signatures on his petition . He immediately turned it
over to Danner who sent it to the industrial relations de-
partment. Although it is clear that Purcell had not been
specifically authorized to circulate such a petition, by the
same token, it appears that Respondent thereafter did
nothing to disavow it once it had been discovered. Ac-
cordingly, I conclude that Respondent was willing to
take advantage of Purcell's petition to the extent that it
was consistent with its posture of opposing unionization.
I conclude, therefore, that Respondent adpoted the peti-
tion as its own and that Purcell therefore must have
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
beenseen by employees as Respondent's agent for that
purpose.
What, however, was the significance of the petition? I
conclude that Purcell, not having been specifically au-
thorized by Respondent, to engage in the conduct was,
as he claims, on a misguided mission . He wanted to have
an election to resolve the representation question, prob-
ably in the belief that the Union would lose. Yet Local
1179 had not sought one; indeed it believed it did not
have to. Neither had management. The lead line of his
petition, which an employee would read first, clearly
seeks such an election. It is not until the last line were
the cards are revoked that the petition becomes self-de-
feating. In these circumstances, I conclude that the peti-
tion itself is of no legal effect. In a sense , it is deceitful
for it says it has one purpose, when it actually results in
the opposite.
As the signatures were solicited upon a false premise, I
conclude that the Union's authorization cards were never
revoked and that the petition has no legal significance.
Be that as it may, there remains a question whether or
not the solicitation of the petition had a coercive effect
within the meaning of Section 8(a)(1). I have already
concluded that Respondent, by failing to disavow the pe-
tition and choosing to take advantage of it, has adopted
Purcell's conduct as its own. Clearly, then, Purcell's so-
liciting signatures which sought to trick employees into
revoking union authorization cards is an interference
with employees' right to join a union as protected by
Section 7 of the Act. I therefore find that conduct to
have violated Section 8(a)(1).
However, I cannot find Purcell's earlier statements to
Moore to be violative. Respondent was unaware of. these
statements, and to some extent Purcell's statement that
people would lose their jobs in the event the Food Store
Agreement was adopted was correct. That contract did
contain employment ratios for courtesy and apprentice
clerks which Pinole was then exceeding. It was not un-
reasonable of Purcell, who was familiar with that agree-
ment, to make such a surmise . Indeed, Moore was equal-
ly aware of the ratios. Neither knew, nor can anyone
know, what actually would have happened had the Food
Store Agreement been adopted.26 To that extent, there-
fore, the statements are not as coercive as it would
appear on first blush. In any event, there is no evidence
that Respondent knew what Purcell was saying or con-
doned any of it. As a bargaining unit member he was en-
titled to express his opinion to another bargaining unit
26 Appentice Clerk Ann Kollewe and Courtesy Clerk Kim Johnson
both testified that Purcell induced them to sign his petition by telling
them, in addition to saying the petition's purpose was to obtain an elec-
tion, that if the Union came in they would lose their jobs Purcell says
that he was simply referring to the apprenticeship ratios and never said
layoffs were a certainty Moreover, he contends that he told them the
petition was neither for or against the Retail Clerks In view of the actual
existence of the ratios and in view of Johnson's partial corroboration of
Purcell saying she heard him say nothing regarding layoffs, I conclude
that Purcell was reasonably accurately describing the contract's ratios
and their possible effect Indeed, Local 1179 President Henderson admits
describing those ratios to the courtesy clerks and apprentice clerks at var-
ious organizing meetings, conceding that he told them some jobs might
be lost upon application of the Food Store Agreement at Pmole Under
these circumstances, I cannot find Purcell's conduct to have been viola-
tive of the Act
member and if he couched it in coercive terms, such
conduct is not imputable to Respondent.
In conclusion, I find that the only unfair labor practice
which occurred at Pinole was Respondent's failure to
disavow the Purcell petition.
C. The Refusal to Recognize the Retail Clerks and the
Subsequent Recognition of the Independent at Pmole
The complaint asserts that the appropriate unit is the
countywide unit as set forth in the Food Store Agree-
ment. While both the General Counsel and the Charging
Party disavow that they are seeking to add Pinole to
Local 1179's multistore unit by accretion, they nonethe-
less claim Pinole has been bound to the agreement since
at least January 8, 1982, when the recognition demand
was made. Local 1179 argues for an even earlier date, 15
days after Pinole opened, relying on paragraph 1.13 of
that agreement
Clearly the question of whether Respondent had a bar-
gaining obligation to the Retail Clerks is different than
whether the Retail Store Agreement applies to Pinole.
The bargaining obligation must exist independent of the
contract. I think therefore, that the General Counsel and
Local 1179 have confused the two concepts, probably
because they grant excessive weight to the meaning of
paragraph 1.13, which they term an "after-acquired
store" clause
If I assume that it is such a clause, it does not follow
that it merges Pinole into the countywide unit. Under
the Kroger doctrine27 an after-acquired store clause is
only an employer's waiver of the right to insist upon an
NLRB election That case did not also hold that recogni-
tion automatically applied the contract to that store,
though as a matter of practice parties commonly do
so.28 Because of their insistence that the Food Store
Agreement is in effect at Pinole, I can only conclude
that the General Counsel and the Charging Party are ac-
tually attempting, despite their disavowals, to "accrete"
Pinole into the countywide unit. Such an effort is con-
trary to the Board's policy set forth in Federal Mogul
Corp., supra, fn 15.
Aside from that, however, are two separate, but relat-
ed questions: 1. Does paragraph 1.13 constitute a waiver
by Respondent of its right to a Board election? 2 Even
if it does, is Pinole an after-acquired store within the
contemplation of that clause? Frankly, I think both ques-
tions must be answered negatively. An employer's right
to an election is a statutory right. Linden Lumber Co.,
419 U.S 301 (1974). As such, a waiver of that right must
be clearly and unequivocally expressed. Timken Roller
Bearing Co. v. NLRB, 325 F 2d 746 (6th Cir. 1963).
Nothing in paragraph 1.13 refers to waiving an NLRB
election or to any alternative means of proving majority.
Indeed, one of the problems which arose in this case is
the appropriate method of proof. Absent a resolution of
that issue by language in the clause, I cannot infer a
27 Kroger Co, 219 NLRB 388 (1975), following a remand from the
Court of Appeals from the District of Columbia Circuit, Retail Clerks
Local 455 v NLRB, 510 F 2d 802 (D C Cir 1975)
28 At least one court has disagreed, saying the contract applies immedi-
ately NLRB v ABEX Corp, supra, fn 15
ALPHA BETA CO
waiver. Even if that was the intent, the language does
not rise to the clear an unequivocal level. It may simply
refer to remodels where the Retail Clerks are already the
representative and provide a "window" for bargaining
unit work to be performed by nonunit workers.
Moreover, is Pinole a "food store" as paragraph 1.13
specifically contemplates? I do not think so. Pinole is not
simply a supermarket. It is a combination supermarket
and super-drug store. It closely approximates a small de-
partment store. It even has its own clothing center. The
work tasks outside the grocery department are somewhat
different. At least some drug clerks must utilize face-to-
face techniques and the lines of supervisory authority are
different. Thus, assuming paragraph 1.13 is an after-ac-
quired store clause, it does not encompass a store of this
kind.
Even if Pinole were an ordinary supermarket within
the meaning of paragraph 1.13, however, it would clear-
ly constitute a separate appropriate unit-one in which
the employees not only should have a free choice in se-
lecting a bargaining representative, but a voice in deter-
mining how that representative should proceed In such
a situation the Board has said:29
Assuming that both [multi-store and single store]
units may be appropriate . . . it does not follow
that the Board should permit the employees of the
Orchard Park store, in the circumstances of this
case, to be'subject to a contract between their em-
ployer and a union without their having had the op-
portunity to determine for themselves whether or
not they wish to be represented by the contractual
bargaining representative.
The Board, here, must examine fundamentals and
put the Section 7 rights guaranteed the employees
and the appropriate unit concept of Section 9(b)
into proper perspective. Excessive preoccupation
with "appropriate unit" in the circumstances of this
case leads to the abrogation of those rights. Section
7 of the Act is not subordinate to Section 9(b). As
the Board indicated in Haag Drug [169 NLRB 8771
quite the opposite is true. Section 9(b) directs the
Board to select units to "assure to employees the
fullest freedom in exercising the rights guaranteed
by this Act"-which rights, of course, are those set
out in Section 7. If the Board were to permit the
extension of the contracts covering other stores to
the employees of this store (thereby very effectively
disenfranchising them) on the ground that this store
(although an appropriate unit in itself) may be part
of that unit also, it would, in our opinion, do serious
violence to the mandate that employees' rights are
to be protected and that appropriate unit findings
under Section 9(b) must be designed to preserve
those rights.
It is of paramount importance to protect both interests
here, particularly as neither Respondent nor the Retail
Clerks have shown great interest in doing so. The Retail
Clerks early on sought to represent the Pinole employees
29 Melbet Jewlery Co, 180 NLRB 107, 109 (1969)
247
without any concern whatsoever for their desires. Re-
spondent, if the Retail Clerks had granted the contract
concessions it wanted, would have permitted it. The past
history of both parties clearly demonstrates that would
have occurred.30 Given the initial size of the Pinole em-
ployee complement, over 400, more than three-fourths of
whom were new employees, guaranteeing their free
choice is a substantial concern.
Accordingly, I am unable to give any meaning under
Section 8(a)(5) of the Act to paragraph 1.13 of the Food
Store Agreement. It follows, therefore, that the General
Counsel's original theory cannot be sustained.
Yet, lurking in the background are two not insubstan-
tial, unremedied unfair labor practices-the refusal to
transfer the San Pablo employees and the implied adop-
tion of Purcell's petition.
The Purcell petition had a direct coercive impact at
Pinole; the refusal to transfer, while serious, was less
direct. With regard to Purcell's petition, it ultimately had
no effect on the validity of the cards, for deceit was used
to obtain their revocation. Thus, it did not serve to
revoke any Local 1179 card It did, however, have an in-
timidating effect within the store People who did not
wish to sign it, did so anyway out of fear. Yet the fear
must have been overcome for not only did employees
continue to sign Local 1179's cards, a majority also
signed the Independent's cards shortly thereafter. The
General Counsel concedes no evidence of coercion exists
to have caused that
The San Pablo situation is of greater concern. Normal-
ly numerous 8(a)(3) violations, usually discharges, to-
gether with a demonstrated majority, will be enough for
the Board to declare the election atmosphere to be such
that a fair election cannot be conducted and will issue a
bargaining order under either the first or second Gissel
category.31
Local 1179 did not, in early September, represent a
majority of Pinole employees. This would have been true
even if the 26-30 San Pablo clerks had been transferred.
It did, however, claim majority as of January 8, 1982,
over 4 months later. Certainly its organizing job was
made more difficult by Respondent's treatment of the
San Pablo complement, but it was not impossible. Indeed
Local 1179 appears to have succeeded despite that handi-
cap.32 Shortly thereafter the Independent also succeded.
Those very successes demonstrate, in my opinion, that
the San Pablo discrimination did not so undermine the
atmosphere at Pinole as to render a fair election impossi-
ble. If anything, it seems to have had the opposite effect,
galvanizing employees into seeking representation.33
I therefore do not believe that a bargaining order is
the appropriate remedy. It would, contrary to the Melbet
policy, tend to disenfranchise the employees from
30 It did occur at Pmole with the meatcutters and janitors
31 NLRB v Gissel Packing Co, 395 U S 575, 602 (1969)
32 In view of my recommendation below I make no findings regarding
Local 1179's actual majority on January 8, 1982
a' Since both unions apparently had obtained the signatures of a major-
ity of Pinole employees, I must assume that some employees signed cards
for both As the Independent's cards are not in the record I cannot de-
termine who these individuals are or how many did so
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
making a free choice.34 This is not to say" that Respond-
ent was free to recognize the Independent. Its unfair
labor practices were unremedied and the atmosphere had
not yet cleared. In that situation an employer should not
be permitted to recognize a rival union. That recogni-
tion, too, equally deprives employees of their chance to
make a free choice.
This factual situation is thus somewhat different from
the Board's recent decision in Bruckner Nursing Home,
262 NLRB 955 (1982), in which the Board modified the
Midwest Piping35 doctrine. There the Board found an at-
mosphere free of any unfair labor practices and held that
no 8(a)(2) violation was committed in rival organizing
situations where the employer recognized one union over
another absent a Board petition being filed. In one sense
this case is similar to Bruckner for there is no evidence
that the Independent was assisted in any traditional way.
Yet there are unfair labor practices yet to be remedied.
Neither unfair labor practice, however, has polluted the
atmosphere to the extent that an election could never be
conducted. Thus, I do not find Bruckner to be control-
ling.36 Instead, I find that Respondent's recognition of
the Independent any subsequent contractual relationship
with it violated only Section 8(a)(1).37 A disestablish-
ment order will remove any restraints on free choice
which that recognition may have caused. Thereafter,
upon completion of a remedial period any party may
seek an election and the employees will be able to cast
ballots in a free atmosphere.
THE REMEDY
Having found that Respondent has engaged in viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mend that it be ordered to cease and desist therefrom,
and to take certain affirmative action designed to effectu-
ate the policies of the Act. The affirmative action shall
include an order requiring Respondent to offer the San
Pablo employees positions at Pinole. I recognize that had
Respondent been acting in a nondiscriminatory fashion,
some of the San Pablo employees would not have been
34 The instant fact pattern may be contrasted to Pace Oldsmobile, 265
NLRB 1527 (1982), in which the Board on a court remand, found the
unfair labor practices including four 8(a)(3) violations (one discharge,
three unreinstated unfair labor practice strikers), so pervasive that they
were unlikely to be erased, justifying a bargaining order See the case
with which the court was concerned, J J Newberry Co v NLRB, 645
F 2d 148 (2d Cir 1981)
3s Midwest Piping & Co, 63 NLRB 1060 (1945)
36 Even Bruckner reiterates that Board elections are "the optimum ve-
hicle for ascertaining employee preferences " 262 NLRB at 958
31 It is unnecessary to concern myself with Sec 8(a)(2) here The Inde-
pendent's majority status was not "assisted" by Respondent, it cannot be
said that it was ever a minority union
sent to Pinole. However, in view of'the confusion caused
by Respondent in this regard, it is impossible now to de-
termine who those employees would have been. Accord-
ingly, each and every employee working at San Pablo
during August 1981 shall be offered an equivalent job at
Pinole, displacing any Pinole employee if necessary. In
this regard the order shall specifically include Feliciano
despite the fact that she later accepted a voluntary layoff
from San Leandro. Had she not been discriminated
against by being sent to San Leandro, she never would
have been laid off.
In addition, Respondent shall be required to make the
San Pablo employees whole for any loss of pay they may
have suffered as a result of the discrimination against
them, or because of any additional expenses they may
have been caused as a result of Respondent's failure to
transfer them to Pinole.38 Interest on those amounts
shall be computed as set forth in Florida Steel Corp., 231
NLRB 651 (1977) See generally Isis Plumbing Co., 138
NLRB 716 (1962).
On the foregoing findings of fact and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent, Alpha Beta Company, is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers International
Union, AFL-CIO, Local 1179, and Independent Alpha
Beta Workers Association are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent, in August 1981, violated Section 8(a)(3)
and (1) of the Act by refusing to transfer any of its San
Pablo retail sales clerks to its newly opened store in
Pinole in order to obtain contractual concessions from
Local 1179.
4 Respondent in December 1981 violated Section
8(a)(1) of the Act by refusing to disavow the antiunion
petition circulated by employee William Purcell which
purported to revoke Local 1179's authorization cards
signed by its Pinole store employees
5. Respondent, by recognizing the Independent Alpha
Beta Workers Association on March 2, 1982, and by
thereafter executing collective-bargaining contracts with
it violated Section 8(a)(1) of the Act.
6. Respondent did not in any other respect violate the
Act.
[Recommended Order omitted from publication ]
3s The Pinole wage rate at least, as negotiated by the Independent, was
actually higher than that in the Food Store Agreement Fringe benefits
may have been less