Ben Duthler, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1966

157 N.L.R.B. 69 (N.L.R.B. 1966)

BEN DUTHLER, INC. 69
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Amalga-
mated Meatcutters and Butcher Workmen of North America, AFL-CIO, Local
No. 405, or in any other labor organization, by discriminatorily discharging,
laying off, transferring, or refusing to recall employees, or by discriminating
against them in any other manner in regard to their hire and tenure of employ-
ment or any term or condition of employment.
WE WILL NOT refuse to employ or to consider for employment anyone be-
cause of having filed unfair labor practice charges or having caused such charges
to be filed.
WE WILL NOT interrogate employees as to their reasons for wearing union
buttons or for their union attitudes, interests, and support, in a manner consti-
tuting interference, restraint, and coercion within the meaning of Section 8 (a) (1)
of the Act.
WE WILL NOT threaten employees with any economic reprisals because of
their continued union activities, interest, or support.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities foY the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
WE WILL offer immediate and full reinstatement to Paul Williford, Gene At-
kins, James Gough, and Henry Bumpus, without prejudice to their seniority or
other rights and privileges, and make them whole for any loss of earnings each
has suffered as a result of the discrimination against him.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-Notify any of the above-named employees presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161.
Ben Duthler, Inc. and Retail Store Employees Union Local No.
20, Retail Clerks International Association , AFL-CIO
Family Foods , Inc. and Retail Store Employees Union , Local No.
36, Retail Clerks International Association , AFL-CIO. Cases
Nos. 7-CA-1911, 7-RC-6430, and 7-CA-4934. February 24, 1966
DECISION AND ORDER
On September 20, 1965, Trial Examiner John H. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
157 NLRB No. 3.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative
action, a.s set forth in the attached Trial Examiner's Decision. There-
after, the Respondents filed exceptions to the Trial Examiner's Deci-
sion with a supporting brief. The General Counsel filed an answer-
ing brief in opposition to the Respondents' exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. We agree with the Trial Examiner that Local 20 represented a
majority of Respondent Duthler's employees at its Grand Rapids store
in the appropriate unit on August 26 and 27, 1964, when it made its
requests for recognition, and that by refusing to recognize and bargain
with Local 20 as the bargaining agent of the employees, Respondent
Duthler violated Section 8(a) (5) and (1) of the Act.
As more fully set but in the Trial Examiner's Decision, Respondent
Duthler between August 26 and the October 2 election, which the
Union lost, engaged in coercive interrogation of the employees in the
course of which Duthler's supervisors made statements that, if the
Union became the bargaining agent, the number of employees might
have to be reduced, the meat department might be put on self-service
basis, or that there might be a reduction in the carryout service and in
the number of hours worked. These statements constituted a threat to
employees that their employment and working conditions at the store
would or might be adversely affected if the Union became their bar-
gaining agent. The Trial Examiner found, and we agree, that this
unlawful conduct restrained the employees in the exercise of their
right to self-organization and made a free election impossible, and
recommended that the October 2 election be set aside.
In these circumstances, we find that Respondent Duthler's refusal to
recognize Local 20 and its insistence on, proceeding to an election was
not motivated by,a good-faith doubt of Local,20's majority, but that
the real reason for the rejection of the Union's request for recognition
was the desire to gain time within which to undermine the Union's
support.'
'Joy Silk Milla , Inc, 85 NLRB 1263, enfd . 185 F. 2d 732 (C.A.D.C.), cert. denied 341,
U.S. 914.
BEN DUTHLER, INC. 71
2. We do not , however , agree with the Trial Examiner that the Gen-
eral Counsel sustained his burden of proving that Respondent Family
Foods on October 19 and 21 , 1964, refused to recognize and bargain
with Local 36 as the bargaining agent of the employees at the Kala-
mazoo store in violation of Section 8(a) (5) and (1) of the Act.
The facts are not in substantial dispute. Local 36 began its organi-
zational activities on August 27, when Representatives Jarvis and
Whitcomb appeared at the parking lot of the store and began soliciting
authorization cards from the applicants for employment at the store,
which was scheduled for opening on September 1. When President
Duthler objected to this procedure, union representatives agreed to
limit the solicitation to those applicants who had been hired. On
August 31, Jarvis and Whitcomb made a preliminary request for recog-
nition. On October 13, they made a second demand for recognition.
'They told Duthler that they had a majority of 33 cards and asked for
a card check to prove the Union's majority. They also presented to
Duthler an affidavit to be executed in connection with the card check
and a recognition agreement. Duthler testified that he told the repre-
sentatives that he "wanted no part of cards," that the union repre-
sentatives had talked to applicants even before they were hired, and
that he didn't know "whether you got blank cards, filled cards or what
not."' Duthler also said that in any event he would do nothing without
• talking to his attorney. The parties agreed to meet again, at which
time Duthler would let them know whether he would agree to a card
check.
On October 19, Union Representatives Whitcomb and Barry met
Duthler and asked for an answer. Barry testified that Duthler said
that he "didn't want a union in the store and he would not agree to a
,card check." Whitcomb testified that Duthler said that he could not
give them an answer then, but that he would talk to the heads of differ-
ent departments at the store and would give them "a definite answer
one way or the other." The next day Whitcomb talked to Duthler on
the phone and they agreed to meet the next day. Whitcomb testified
that he understood a card check would then be made. Duthler testified
that he agreed only to meet with Whitcomb and Barry on October 21.
On October 21 the parties met again. Among those present was
Father Nadrach who was invited by the Union for the purpose of
checking the authenticity of the signatures on the cards. The union
representatives asked for recognition upon a card check to prove the
Union's majority and produced 33 cards. Duthler said that he would
not agree to a card cheek . According to Whitcomb , Duthler said, "I
don't want a union, I don't want a card check , and I won't recognize
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you as bargaining agent for my employees." Finally, Duthler said
that perhaps he had better talk to his attorney. Duthler left the room.
When he returned, Duthler said that he would not recognize the Union
and that he was demanding a Board election. Duthler testified that he
refused to accept a card check because he did not think it would be a
reliable indication of the employees' desires, and that he offered to let
union representatives hold an election in the store then or at any
other time. Duthler also testified that in the month of August he
was contacted on several occasions by Oskar Mulder of Consolidated
Independent Union about recognition for the Kalamazoo employees,
and that he had observed Mulder talking to employees.
In John P. Serpa, Inc., 155 NLRB 99, the Board, citing Joy Silk
Mills, reiterated the rule that where the General Counsel seeks
to establish a violation of Section 8(a) (5) on the basis of a card show-
ing, "he has the burden of proving not only that a majority of employ-
ees in the appropriate unit signed cards designating the union as the
bargaining representative, but also that the employer in bad faith
declined to recognize and bargain with the union," and that "this is
usually based on evidence indicating that respondent has completely
rejected the collective-bargaining principle or seeks merely to gain
time within which to undermine the union and dissipate its majority."
In the present case there is no evidence that Respondent Family
Foods had completely rejected the collective-bargaining principle or
that it refused to recognize and bargain merely to gain time within
which to undermine the Union and dissipate its majority. As found
by the Trial Examiner, the two instances of unlawful interrogation-
the only other unfair labor practices found at Kalamazoo-occurred
prior to the time the Union secured its majority card showing and made
its demands for recognition on October 19 and 21. The first incident
occurred on August 31, the day before the opening of the store, and
the second incident occurred on October 9. We are not persuaded
that the Respondent's conduct on October 13, 19, and 21, as set forth
above, demonstrated a bad-faith refusal to bargain. To, the contrary,
Duthler's questioning of the reliability of the cards, his offer to con-
sent to an election, and the absence of other substantial unfair or
interfering conduct are more consonant with the conclusion that he
then had a good-faith doubt of the Union's majority.
Accordingly, on the record as a whole, we find that the General
Counsel has not sustained his burden of proving that the refusal to
recognize and bargain with Local 36 on October 19 and 21 was in bad
faith, and we shall dismiss the Section 8 (a) (5) allegation with respect
to the Kalamazoo store.
BEN DUTHLER, INC. 73
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraph 2 (a) and substitute the following :
["(a) As to Respondent Ben Duthler, Inc., it shall, upon request,
bargain collectively with Retail Store Employees Union Local No. 20,
Retail Clerks International Association, AFL-CIO, as the exclusive
bargaining representative of the employees at its Grand Rapids store
in the unit found appropriate herein and embody in a signed agree-
ment any understanding reached."
[2. Delete the last two indented paragraphs from the notice.
[The Board dismissed the allegation of the complaint that Respond-
ent, Family Foods, Inc., has violated Section 8(a) (5) of the Act.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed October 9, 1964, in Case No. 7-CA-4911 by Retail Store
Employees Union Local 20, Retail Clerks International Association, AFL-CIO,
herein called Local 20, against Ben Duthler, Inc., herein called Duthler, and upon
another charge filed October 23, 1964, by Retail Store Employees Union Local No. 36,
Retail Clerks International Association, AFL-CIO, herein called Local 36, against
Family Foods, Inc, herein called Foods (Duthler and Foods will be referred to col-
lectively as the Respondents and Local 20 and 36 as the Unions), and upon an order
of the National Labor Relations Board dated April 8, 1965, directing that a hearing be
held on objections to an election held at Duthler, the General Counsel issued an order
consolidating said cases and objections and issued a consolidated complaint alleging
Respondent engaged in violations of Section 8(a) (1) and (5) of the Act.
The answer of Respondents, in substance, denied the commission of any unfair
labor practices and asserted certain affirmative defenses.
This proceeding, with all parties represented, was heard before Trial Examiner
John F. Funke at Grand Rapids, Michigan, on June 7, 8, 9, and 10 and September 8,
1965. At the conclusion of the hearing the parties were given leave to file briefs and
helpful briefs were received from the General Counsel and Respondents.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF DUTHLER AND FOODS
Duthler admits and I find that it is a Michigan corporation having its principal
place of business at Grand Rapids, Michigan, where it is engaged in the retail sale of
foods and related merchandise. Its revenues from these sales during the calendar
year 1964 exceeded $500,000 and during said year it purchased foods and merchan-
dise valued in excess of $10,000 from Spartan Stores, which foods and merchandise
had been purchased and delivered to Spartan from points outside the State of
Michigan.
Foods admits and I find that Foods is a Michigan corporation having its principal
place of business at Kalamazoo, Michigan, where it is engaged in the sale of foods and
related merchandise. It was reasonably anticipated that Foods, during the year ending
September 1, 1965, would have received revenues in excess of $500,000 and would
have made purchases of foods and merchandise in excess of $5,000 from Spartan
Stores which would have been received by Spartan from points outside the State of
Michigan.
Respondents admit and I find that they engaged in commerce within the meaning of
the Act.
II. LABOR ORGANIZATIONS INVOLVED
Locals 20 and 36 are labor organizations within the meaning of the Act.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
1. Background
In either late July or early August 1964,1 Local 20 began organizational activity
among the employees of Duthler at Grand Rapids. On August 6, Local 20 held its
first meeting of employees at the Kewpee Restaurant. On August 14 a petition for a
representation election was filed and on October 2 an election was conducted by the
Board which Local 20 lost 27 to 43. It was to this election that the Board's order
directing a hearing on Local 20's objections was issued (Case No. 7-RC-6430).
Local 36 began its organizational campaign at the Foods' store at Kalamazoo on
or about August 27 although the store did not open until September 1. On October 13
Local 36 demanded recognition as collective-bargaining representative for the employ-
ees of Foods, a demand which was refused.
2 Violations of Section 8 (a)( I) and objections to the election
The day after the meeting of the employees of Duthler on August 6 Ben Duthler
was told of the meeting by the local manager of the Borden Milk Company. Edward
Hearth, a stockboy, testified that on the morning after this meeting Ronald DeYoung,
store manager for Duthler,2 asked him if he had attended the union meeting the pre-
ceding night and what had happened. Bob Besteman also testified that he was asked
by DeYoung on that morning what happened at the union meeting. According to
Hearth, DeYoung told both of them they were on "shaky ground" and, according to
Besteman, DeYoung told him that the Union might put some of the part-time people
out of work. A few days later Charles McNulty, assistant store manager at Duthler,
asked Hearth about his union sympathies and when he was told that Hearth's father
had been fired shortly after joining a union at his shop he told Hearth, "This could
happen here." DeYoung admitted interrogating the sackboys about a meeting but
stated that he had not known it was a union meeting they had attended. There is no
denial of the implied threats and I credit the testimony of Hearth and Besteman. I
also credit Hearth's testimony respecting his conversation with McNulty 3 (McNulty
did not appear as a witness )
On August 14 a meeting of Duthler employees was called by Ben Duthler at 11 p.m.
The testimony of the employees who attended suffers from some failure of recollection
as to what Ben Duthler said. Henritta Towns testified that he told the employees that
some of them wanted a union and that he was against a union. He told employee
Tony Sturrus (not called as a witness) that he understood Sturrus was the instigator
and Sturrus admitted he had signed a union card. Towns further testified that if the
Union came in Duthler said he would have to eliminate the carryout service and
reduce the meat department by one-half
Willard Dutmers, a poor witness, testified that he attended the meeting and that
Ben Duthler told them that if the Union got in he could not continue with the same
amount of personnel.
Ben Duthler, not a coherent witness, testified that he called the meeting on August 14
"because of all the things we heard that previous week and we felt we should be get-
ting the entire feeling and thinking of every employee in connection with his work
in working for us ...... Duthler's testimony as to what he said runs on with only one
interruption for some six pages in the record .4 It is circumlocutory to the extent that
it is unintelligible.
Sharon McDermott, a cashier, testified that she had a conversation with Store Man-
ager DeYoung in which he told her he hated the Union and would sell out his interest
in the store if it went union. This testimony was not contradicted.
Allen Stoutjesdyk, a night stockboy, testified that in a conversation with Ben Duth-
ler he asked him what his status would be if the Union came in and was told that
Duthler might have to cut down on the carryout help and have self-service for some
1 Unless otherwise stated all dates refer to 1964
2 It Is admitted that DeYoung was a supervisor within the meaning of the Act.
3 The answer admits that McNulty is a supervisor within the meaning of the Act.
* Among other things Duthler stated:
I do not know anything about a union. I have never been involved and I have never
had to be involved . . . . We have men working in our meat department primarily
who have large families . Some of the boys here have eight or ten children . . .
we believe in overtime . . . we want them to have a living wage . . . I will not
promise . . . I will not lie to you.
BEN DUTHLER, INC. 75
departments and that there could be a reduction in hours. (The brief of the General
Counsel erroneously refers to this conversation as between Stoutjesdyk and DeYoung.)
Duthler made no denial of this specific conversation although he testified that he
always told his employees he wanted a service, not self-service, meat department.
Jerry Blaszak, a meat counter helper, testified that he had a conversation with
Harold Dilley, meat department manager, either the first or second Saturday preced-
ing the election and that Dilley told him that if the Union won the meat department
would probably go on a self-service basis. Dilley was not called as a witness so the
testimony is uncontradicted.
Helen Naperola, another meat counter helper, testified that 2 days before the Board
election she was told by Dilley that Duthler wanted to see her and she went to his
office. Duthler wanted to know how she felt about the Union and how the employees
felt about it He also asked how she intended to vote. On the same day she had a
conversation with Dilley in which he told her that if the Union won the meat depart-
ment would probably go self-service.5
Richard Kik, a clerk, testified that on or about September 18 he had a conversation
with McNulty in which he asked McNulty what his views of the Union were and that
later McNulty asked him if he had signed a union card About 4 days before the elec-
tion Kik was called to Ben Duthler's office and, in the presence of DeYoung, Duthler
asked him why the employees wanted a union and Kik and Duthler exchanged views
on the subject. Duthler told him that if the pay scale went up following a union vic-
tory the number of employees would have to be cut down
Spiro Smigos, employed in the meat department, testified that a few days before the
election Ben Duthler called him into the office and, in the presence of DeYoung, asked
him if he knew the Union was coming in and if he had signed a card for the Union.
When Smigos told him he had signed a card Duthler told him that if the Union came
in he would have to let the packers in the meat department go and self-service the
customers. Duthler also told him that if the Union came in he would not be making
as much as he was then.
3. Violations of Section 8(a)(1) at Foods in Kalamazoo
Angeline Pierce testified that she was employed at Foods at Kalamazoo and that
on or about October 16 when she was shopping in the store she was stopped by Store
Manager Van Klaveren and asked if she had signed a union card She asked him if
she had to answer and he said he already knew the answer but that it would not
affect her job.
On August 31, the day before the store opened, Ben Duthler and DeYoung held
a meeting of the cashiers to instruct them in their duties and in the course of the
meeting Duthler told them he did not like unions. (This testimony was corroborated
by cashier Ruth Mearing )
Stephen Van Den Berg testified that he was employed at Foods from September 1
until December. On August 31, the day he applied for work at Foods, he signed an
authorization card for Local 36 as he was leaving the store. DeYoung came out and
asked him what he was doing and when he told DeYoung that he had signed a union
card DeYoung told him it could jeopardize his job. Later Van Den Berg apologized
to DeYoung for signing the card and DeYoung asked if he could get his card back.
Richard Shingledecker testified that he was employed at Foods as a meatcutter and
that in October the meat manager was Harold Smith. On or about October 9 Smith
asked him if he had signed a card and when he answered that he had Smith told him
he should not have done it. He also told Shingledecker to point out union representa-
tives to him if they were in the store and he would take care of them in his own manner.
(This last incident is not alleged to be in violation of Section 8(a)(1).)
Ruth Mearing, in addition to her corroborative testimony, supra, testified that at
the meeting of the cashiers held August 31, Duthler also told the employees he did not
want them to sign cards. On another occasion, the date of which she could not remem-
ber, Duthler told a group of employees that nothing that had been said (about unions)
would affect their jobs. (Mearing's recollection as to this incident was not clear.)
Mearing testified that Van Klaveren also made the same statement to employees.
After having her recollection refreshed by her pretrial affidavits Mearing stated that
Duthler had told the employees, presumably in his speech on August 31, that if they
had signed cards they did not need to report for work.
5 There is also testimony by Dutmers , not alleged in the complaint as a violation, that
on the day of the election Dilley, speaking in the presence of five employees in the meat
department, told them that if the Union won the meat department would be put on a
self-service basis.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The refusal to bargain at Grand Rapids
a. The appropriate unit
Paragraph 14 of the complaint sets forth the appropriate unit as follows:
All full-time and regular part-time employees of Respondent Duthler employed
at its Grand Rapids store, including all employees in the grocery, meat, and
produce departments and cashiers, excluding professional employees, guards,
the store manager, the assistant manager, and all other supervisors as defined by
the Act.6
The petition filed by Local 20 in Case No. 7-RC-6430 sets forth the unit as:
All full-time and part-time employees and leased departments of the employer's
retail store excluding Store Manager, Assistant Store Manager, All Guards and
other supervisors as defined in the-Act.
Paragraph 14 of Respondents' answer admits the appropriateness of the unit as
described in paragraph 14 of the complaint. However in paragraph 18 of its answer,
in which Respondent Dutbler sets forth its affirmative defenses to the refusal-to-
bargain charge, Duthler points out that the unit described in the complaint differs from
that set forth in Local 20's petition and denies that the unit (presumably the one set
forth in the petition and for which a demand was made) is appropriate.
Except for the fact that the unit defined in the complaint is superior in clarity and
explicitness to that set forth in the petition, I find no significant difference. For the
purposes of this proceeding I shall accept the unit set forth in the complaint appropriate
and I shall not find the deviation from the unit set forth in the petition a factor to be
resolved. As the Board said in Johnnie's Poultry Co., 146 NLRB 770, 772 footnote
5,7 "... we find that the Union's demand was sufficiently specific for establishing com-
munication of a claim of representation and demand for recognition in the appropri-
ate unit of these employees."
b. The demand and refusal
On August 25 Dominic Vanderwerff and Lester Newail, International representa-
tives of the Retail Clerks, met with Ben Duthler at a snack bar adjacent to the Kala-
mazoo store which Duthler was preparing to open. Vanderwerff told Duthler that
Local 20 represented a majority of the employees at Kalamazoo and that he had 25
cards in his possession and that others had been sent to the Board in support of
Local 20's petition for an election. Vanderwerff quoted Duthler's response (in part)
as follows:
Yes, I believe also I asked him if he believed we represented a majority, and he
says, "I don't doubt your word," and then we left, and we were walking over to
the store with him and walked all of the way into the store discussing it, pointing
out that it was important that we meet at this time. We walked into the store,
right by the meat case, and I again pulled the cards out and laid them on the
counter, and he said to me, "That is not enough," and I said, "Just as many as
this, if not more, went in to the Board with our petition for an election, for the law
requires us to have thirty per cent." He said, "That I don't doubt."
During this meeting Vanderwerff gave Duthler a copy of a recognition agreement
(General Counsel's Exhibit 11) with the request that he sign it . This agreement
reads:
RECOGNITION AND BARGAINING UNIT
(A) The Employer recognizes the Union as the sole collective bargaining
agent with respect to work, rates of pay, hours, and all other terms and condi-
tions of employment for all employees in the appropriate bargaining unit herein
defined:
The Bargaining unit shall include all employees working in any and all pres-
ent and future retail stores of any type (including each and every department
therein) located within the jurisdictional area of the Union which the Employer
or any subsidiary thereof owns, leases, licenses, operates or controls directly or
indirectly or in which the Employer or any subsidiary thereof has a controlling
interest.
6 This is the unit description used by the parties in the election in Case No . 7-RC-6430.
See General Counsel 's Exhibit 2-B.
7 Reversed on other grounds 344 P . 2d 617 (C.A. 8).
BEN DUTHLER, INC.
Exclusions from the bargaining unit shall be as follows:
77
f
(B) The Employer agrees to hold and exercise full control of the terms and
conditions of employment of all employees within the aforesaid bargaining unit
and pursuant thereto the provisions of this Collective Bargaining Agreement
shall apply in every respect.
Duthler agreed to meet with the representatives the next day when Vanderwerff,
-accompanied by Local 20 Representatives Rehkopf and Anderson, met with Duthler
at Kalamazoo and again requested recognition at Grand Rapids. Duthler refused on
the grounds that his attorney had advised against it and that since Local 20 had
petitioned for an election the parties should proceed and let the employees decide the
..issue. On August 27 Local 20 made a written demand by letter requesting negotia-
tions (General Counsel's Exhibit 12) to which no reply was received.
Testifying in the instant proceeding Duthler expressed doubts as to the validity of
.the cards, stating:
I didn't believe a majority of our employees wanted a union. I didn't think the
signing of a card showed the true feelings of our employees because I had had
numerous complaints of high pressure tactics that were used.
A further reason given by Duthler for his refusal was his belief that another union,
'Consolidated Independent Union Local 951, herein called Local 951, had indicated
to Duthler's attorney, Eugene Alkema, that it represented employees at Grand Rapids
and wished to appear in any Board proceedings. There is no evidence in this record,
however, that Local 951 represented any of the employees at Grand Rapids or that
it offered to submit proof of such representation to Ben Duthler.
I find that Respondent Duthler, through Ben Duthler, refused to recognize Local 20
as the bargaining representative of its employees at the Grand Rapids store on
August 25, 26, and 27.
B. Majority status at Grand Rapids
On August 25 and 26 Duthler employed 79 employees at its Grand Rapids store
concerning whose eligibility there is no dispute. (General Counsel's Exhibit 10.)
Subsequently the General Counsel agreed that another employee, Burgess, should be
added to the list, revised to 80. Duthler claims that three other employees should
be added: Baird, Robbins, and Kooyers. Personnel records indicate that Baird did
not start work until August 27 and that Robbins did not start work until August 28.
They were not therefore working on the dates on which the first demands and refusals
have been found to have occurred (August 25 and 26). Regardless of the dates on
which they may have made application for employment I find they were not "eligible"
employees until the 27th and 28th respectively.
As to Kooyers, it was established that she worked 1 week in June for which she
received a check from Duthler for $13 and did not work at the Grand Rapids store
again until November. She worked the first week in September at Kalamazoo to
assist in the opening of the store. That was her total employment by Respondents
from June to November. I find her employment too casual and sporadic to warrant
inclusion within the unit of August 26.8
General Counsel offered in evidence 46 cards.
Respondent Duthler objected to the computation of cards marked as General Coun-
sel's Exhibits 13 (3), (7), (8), (15), (21), (34), (35), (36), (37), (42), (43),
(44), and (46). It objected to cards (21) Landis, (43) Ver Beek, (44) Norton,
(45) Brouwer, and (46) Gould, for lack of authenticity. These cards were received
upon the testimony of International Representative Vanderwerff, whose testimony
was far from clear or certain. Vanderwerff could not remember who had obtained
the Landis card or under what circumstances it had been obtained and Landis was
not called upon to testify. The same was true with respect to the remaining cards
in this group belonging to employees Ver Beek, Norton, Brouwer, and Gould. (As
to the Brouwer card, Vanderwerff testified that he received it from Sturrus, not called
upon to testify.) Respondent Duthler's objection to the cards did not go to the
authenticity of the signatures but was directed to the absence of any evidence as the
circumstances under which and the date on which they were obtained. In the absence
8 Pggly Wiggly El Dorado Co., 154 NLRB 445.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of evidence to the contrary I can only presume that the cards were signed by the
employees in question on the dates set forth thereon and were obtained under circum-
stances which would not affect their validity. It would appear, absent explanation,
that if the situation were otherwise the Respondent Duthler would have called these
employees as witnesses. I am reluctant on an issue so vital to accept the testimony
of Vanderwerff as binding in the absence of corroboration but where the General
Counsel has made out a prima facie case I shall not indulge in a presumption of
false or improper solicitation.9
The objections to the cards of (3) Meyer, (7) Naperola, (15) Scheer, and (42)
Husted were based on the claim that there had been misrepresentation in soliciting
the cards. All were told that one of the purposes of signing was to obtain an election
at Duthler but there is no evidence that they were told that this was the sole purpose
of the cards. Neither was there any misrepresentation of purpose on the cards them-
selves. Vanderwerff's own testimony as to his method of soliciting cards does little
to establish their authenticity, however. Vanderwerff stated:
When I approach an employee, the first thing I tell them is to get their name
on it, and at this time we have the petition for election and the important thing
for us, many times hurry up and put your name on it.
Nevertheless, but not without some misgivings, I find the Board's decision in Cumber-
land 10 controlling and accept the cards.11
The following cards were objected to as dated after the demand on August 25:
(34) Sarah Meyer, obtained August 25; (35) Bob Velderman, obtained on the eve-
ning of August 26; (37) Marvin DeRuyter, dated September 4; and (39) Pat Townes,
dated August 25. August 25, however, cannot be used as a cutoff date since Local 20
made another demand on August 26 and a written demand (General Counsel's
Exhibit 12) on August 27 to which no reply was received.12 I would therefore
accept the cards of Meyer, Valderman, and Townes in computing the majority status
of Local 20. Excluding the card of DeRuyter and that of Roland Williams (objected
to on the ground the date was indecipherable) Local 20 had a majority of 43 cards
in a unit of 80 employees on August 26 and of 44 in a unit of 81 employees on
August 27. Baird was employed August 27.
5. The refusal to bargain at Kalamazoo
a. The appropriate unit
The complaint alleges and I find that the appropriate unit at Kalamazoo was: All
full-time and part-time employees of Respondent Foods employed at its Kalamazoo
9 Cf Trial Examiner Maher's decision in Sagamore Shirt Company d/b/a Spruce Pine
Manufacturing Company, 153 NLRB 309, in which he rejected the cards of two employees
who had signed the cards but had not completed the information required to be filled in
on the cards These blank spaces had been filled in by the union representative and the
Trial Examiner rejected them for this reason. The Board found it unnecessary to pass
upon this issue. Not so much because I am in disagreement with Maher but because
I believe present Board policy is one of tolerance toward the acceptance of cards, I
accepted these. I am persuaded that any card that bears the genuine signature of an
employee will be accepted in the absence of fraud, coercion, or other clearly unlawful
means of solicitation . Cumberland Shoe Corporation , 144 NLRB 1268; S.N C. Manufac-
turing Co., Inc, 147 NLRB 809; Lenz Company, 153 NLRB 1399; Aero Corporation, 149
NLRB 1283. The fealty required of Trial Examiners to the policies of the Board (Lenz,
supra, and cases cited) compels the conclusion reached.
11 Id. See also Gotham Shoe Manufacturing Co , Inc., 149 NLRB 862. Cf. Trend Mills,
Inc., 154 NLRB 143, where the Board rejected three cards which the employees had not
read but had authorized other employees to sign on their behalf after having been told
that the cards would be used to obtain an election.
ZZ As to the testimony of the employees themselves respecting their reasons for signing
the cards, I find such testimony insufficient to overcome the overt act of signing Joy
Silk Mills, Inc. v N.L.R B., 185 F. 2d 732, 743 (C.A.D C.) ; The Colson Corp v N.L R.B.,
347 F. 2d 128 (C.A. 8).
12 As the court stated in Irving Air Chute Co., Inc. v. N.L.R.B., 350 F 2d 176, 181:
Although there may be a real doubt that the Company refused to bargain in
violation of section 8(a) (5), nevertheless the Company 's silence after May 6 (the
date a telegram demanding bargaining negotiations was received by the Company]
could justifiably be considered as a refusal of union recognition and bargaining
requests which had been reiterated on that date.
BEN DUTHLER, INC. 79
store, including all employees in the grocery, meat, and produce departments and
cashiers, excluding professional employees, guards, the store manager, and all other
supervisors as defined in the Act.
b. The demand and refusal
A preliminary demand for recognition at Kalamazoo was made by Business Rep-
resentative Jarvis of Local 36 on August 31, the day before the store opened. The
General Counsel does not claim Local 36 represented a majority of the employees
on that day.
On October 13 Jarvis made a second demand of Ben Duthler for recognition at the
Kalamazoo store (Foods) and offered to prove the majority status of Local 36.
Duthler told Jarvis he would do nothing without talking to his attorney first. I do
not find this request for time constitutes a refusal to bargain.
On October 19 Business Representatives Melvin Whitcomb and John Barry met
Ben Duthler at the snack bar adjacent to Foods, told him they represented a majority
of the employees at Kalamazoo, wanted a card check to establish their majority, and
again requested recognition. Barry testified that Duthler told them "he didn't want
a union in the store and wouldn't agree to a card check." The next day Whitcomb
made another appointment to meet with Duthler on October 21. On that day Whit-
comb, Schoffstall, Barry, and Lovall, all of Local 36, met with Duthler in the pres-
ence of Father Adolph Nadrach, a clergyman, for the purpose of checking the authen-
ticity of the signatures on the cards. Duthler again refused, stating, according to
Whitcomb, "I don't want a union, I don't want a card check and I won' t recognize
you as bargaining agent for my employees." Duthler testified that while he did
refuse a card check he offered to let the union representatives hold an election in the
store then or at any other time.
I find a refusal to recognize Local 36 by Duthler on October 19 and 21.
c. The majority status of Local 36
On October 13 there were 45 employees on the payroll of Duthler received by
agreement as Respondent's Exhibit 4. It was later stipulated that four other employ-
ees, Perton, Cory, Frame, and Bates, should have been included making a total of 49.
It was also stipulated that Vernon Hammond should be stricken from the list having
been terminated prior to the crucial dates, reducing the employees to 48.
'Respondent Foods claims that John Mansfield, employed on October 12, but who
started work on October 17, should be included. He will be included in the list of
employees as of October 19 and 21 but not as of October 13. On that date his
employment was only prospective.
The General Counsel contends that Scott Brownell should be included . Brownell
broke either his wrist or his leg (the record is contradictory although it may be
assumed it was his wrist) and the General Counsel contends he was on sick leave
and should be included The General Counsel offered no evidence to support this
conclusion and I agree with Respondent Foods that he was terminated and ineligible.
I therefore find that on October 13 the unit consisted of 48 employees and that on
October 19 and 21 of 49.
Of the 27 cards submitted by the General Counsel to establish the majority status
of Local 36 it was stipulated that Vernon Hammond was terminated by Foods prior
to the crucial dates. (Hammond does not appear on the payroll for this period.)
Eliminating Hammond and Brownell reduces Local 36's presumptive designations
to 25. However, the card of one of these, Gerald Slager 5(16), is dated October 13
and the record does not establish whether it was signed on that date or not . My con-
clusion is that Local 36 had a minimum of 24 authorization cards of a total of 48
employees on October 13 and 25 (counting Slager) of 49 employees on October 19
and 21. It reached majority status on the two latter dates.
Respondent Foods contends that the cards of Mearing, Couch, and Vincent should
not be computed on the ground that they were obtained through misrepresentation.
Mearing testified that she signed to get an election and that she did not want to
join the Union. She did not read the card before she signed it. She had, however,
been informed of union benefits before she signed. Couch testified that he read his
card before signing it but was told that this was just to get an election and that it
did not mean he would be obligated to support the Union. He, too, was told about
the benefits of unionization.
John Vincent said that he was asked to sign a card by three representatives of
Local 36 and said he was not interested. After having been told that the card meant
the employees could have an election he signed for the sole purpose of having an
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election. He admitted that he knew Local 36 was trying to organize the store and
that he had some discussion of union benefits with other employees. Union Repre-
sentative Jarvis stated that he talked to Vincent for 7 or 9 minutes, explained union
benefits, and stated Vincent did not appear unwilling to sign. Jarvis also testified
that he told Vincent the cards could be used for a card check.
The contentions of the Respondent as to these cards must be rejected on the
grounds previously set forth in disposing of similar objections to certain cards at
Grand Rapids on the authority of Cumberland Shoe, supra, and Joy Silk Mills v.
N.L.R.B., supra. In Gotham Shoe, supra, the Board accepted the cards of 18
employees who were told, "The cards are for a vote," or, "Sign the cards so we can
have a vote," or, "You have to have a certain percentage of signed cards in order
to have an election." The Board construed these statements as an assurance by union
solicitors that one purpose of the cards was to secure an election. As the Board
stated in Cumberland, the purpose must be the only purpose, not one purpose.
C. Conclusions
1. Violations of 8(a) (1) and objections to election at Grand Rapids
Based on testimony which is largely uncontradicted or which I credit, I find
Respondent Duthler violated Section 8(a)(1) in the following respects:
(1) DeYoung's interrogation on August 7 of employees Hearth and Besteman
respecting what had happened at the union meeting the night before; and his state-
ments that they were on shaky ground and that the Union might put some part-time
employees out of work.
(2) McNulty's interrogation of Hearth accompanied by his response when told
that Hearth's father had been fired for joining a union that "it could happen here."
(3) Ben Duthler's interrogation of Helen Naperola in his office 2 days before the
Board election in which he asked her how she felt about the Union, how the employ-
ees felt about it, and how she intended to vote.
(4) Ben Duthler's interrogation of Kik in his office about September 27 as to why
the employees wanted a union accompanied by the statement that if wages went up
the number of employees would have to be cut down.
(5) Duthler's interrogation of Sinigos a few days before the Board election in
Duthler's office in which he asked him if he had signed a card and told him that if
the Union came in he would have to let the meat packers go and put the meat depart-
ment on self-service.
(6) Meat Department Manager Dilley's statement to Jerry Blaszak , about 1 week
before the election, that if the Union won the meat department would probably have
to go on self-service.
(7) Ben Duthler's statement to Stoutjesdyk about a week before the election that
if the Union came in Duthler might have to cut down on the carryout help and have
self-service in some departments and that there could be a reduction in hours.
It is true that the interrogation of Hearth and Besteman , (1) and (2) above, does
not meet the requirements of coercion set by the Second Circuit in Bourne,13 in that
it did not take place in the owner's office. It was, on the other hand, accompanied
by clearly implied threats of reprisal against the employees. Whether one holds that
under such circumstances the interrogation is merely a part of the coercive conduct
or constitutes an independent violation is drawing, a thin line. When coercion runs
through an entire conversation breaking it down into its component parts to find
separate violations may seem an indulgence in legalistic pedantry but it may be
required for the drafting of an effective remedial order. I believe the interrogation
set forth in paragraphs (3), (4), and (5) meets the standards of Bourne and con-
stitutes a violation of the Act although the interrogation of Naperola was unaccom-
panied by any threat.
Quite clearly the repeated statements made by various supervisors to the employees
to the effect that the number of employees might have to be cut down, the meat
department might be put on self-service, and there might be a reduction in the carry-
out service and in the number of hours constituted a clear threat of worsened condi-
tions. I do not believe that the tense used by an employer in alerting employees to
the possible and even likely consequences of unionization is a realistic criterion.
I think that a prediction of dire consequences , unless clearly attributed to the effect
of union demands, has the same impact as a direct threat, particularly when accom-
13 Bonnie Bourne, an Individual d/b/a Bourne Co. v. N.L.R.B.,
332 F. 2d 47, reversing
on this point, 144 NLRB 805. This decision has been "tentatively
" followed by the
Board in Cannon Electric company , 151 NLRB 1465.
BEN DUTHLER, INC. 81
panied by evidence of union animus and hostility. I do not think that the distinction
previously made by the Board in such cases as Nash-Finch 14 is current Board law.15
I do not regard the testimony by Towns with respect to Ben Duthler's speech on
August 14 sufficient for the making of a finding. She was the only witness to testify
with any clarity to the speech and after hearing Duthler give his own version I do
not believe any witness could testify with conviction as to what he actually said.
(Duthler's speech was extemporaneous ) In any event Towns' testimony that he
stated he would eliminate the carryout service and reduce the meat department by
one-half is cumulative and would not add to the scope of the remedial order.
Since the unlawful conduct found in paragraphs (3), (4), (5), (6), and (7) are
established to have taken place during the period shortly before the election, I find
that it prevented the exercise of a free and untrammelled expression of the wishes
of the employees and shall recommend that the election be set aside.
2. Conclusions as to violations of Section 8 (a) (1) at Kalamazoo
I find Respondent Foods violated Section 8(a) (1) by the following:
(1) DeYoung's statement to Van Den Berg that his signing of a union card could
jeopardize his job and his inquiry as to the chances of getting his card back.
(2) Smith's interrogation of Shingledecker and his statement to him after Shingle-
decker admitted signing that he should not have done it.
I do not find Van Klaveren's interrogation of Pierce, the only unlawful conduct be
is accused of, as coercive in view of his accompanying statement that it would not
affect her job. If accompanying coercive statements are to be used to establish
interrogation as coercive statements which serve to mute the coercive nature should
be entitled to equal weight.16 I do not find DeYoung's statement to the employees
that he did not like unions unlawful. I believe employees as a class indulge them-
selves the presumption that employers do not like unions. As to Mearing's testimony,
I find it too confused to serve as the basis for any finding. -
Under ordinary circumstances it might be found that the two instances of unlawful
conduct found herein were both isolated and too trivial to warrant a remedial order,
but in view of the proclivity shown by Ben Duthler and his supervisors for violation
of the Act at Grand Rapids and in view of his ownership and control of Foods, I
think an order is required to prevent the commission of further unfair labor practices
which may reasonably be anticipated.
I find no evidence that the wage increases given by Duthler to its employees were
given, as alleged in the complaint, to induce them to refrain from union activity.
In each case the increase was given in accord with past company policy. As to other
allegations of the complaint as to which no finding has been made there was either
insufficient evidence to support the allegation or the allegation, if found, would not
constitute a violation of Section 8(a) (1).
3. The refusal to bargain at Grand Rapids
I have already found that Local 36 represented a majority of the employees in an
appropriate unit on August 26 and that Respondent Duthler refused recognition on
that day. In making this finding I am not including the failure of Respondent to
sign the so-called recognition agreement (General Counsel's Exhibit 11) as an unfair
labor practice. This agreement, as drafted, is so ambiguous and unintelligible as
to be worthless. No responsible employer could sign such an agreement and why
any labor organization, after 35 years' experience under the Labor-Management Rela-
tions Act and its various amendments, should ever have drafted such an agreement
passes comprehension. I have, however, found that the petition filed defines the
appropriate unit with reasonable clarity and that the minor contentions advanced
by Respondent to the unit could properly have been settled in the bargaining process
which Duthler arbitrarily rejected.17 I think it is clear from the testimony of the
It Nash-Finch Company, 117 NLRB 808.
15 See The Newburgh Steel Company and Imperial Steel Products Co., Inc, 146
NLRB 1115.
1e See Struksnes Construction Co., Inc., 148 NLRB 1368, where the Board held that
assurance against reprisal was a factor to be considered in evaluating the coercive effect
of interrogation.
17 These contentions refer to the alleged supervisory status of certain employees and
the question of confidential employees . Both of these questions were resolved in drafting
the stipulation for certification upon consent election in Case No. 7-RC-6430. There is
nothing to indicate Respondent ever employed any confidential employees.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties that each knew Local 36 was demanding recognition for employees as Grand
Rapids only.
It has already been found that Local 951 offered no evidence to support its claim
to recognition at Grand Rapids. (It did not, according to this record, appear or
intervene in Case No. 7-RC-6430.) In referring to the so-called neutrality doctrine
as to competing labor organizations set forth in Midwest Piping 18 the Board in
Burke Oldsmobile, Inc., 128 NLRB 79, 86, stated:
It is the underlying factual situation which controls the question of whether rec-
ognition of a union by an employer in the circumstances of any given case
violates the duty of neutrality.
Where the claim asserted is only a naked claim it cannot be said that any real
question of representation is raised or that Respondent is obligated to preserve a neu-
tral posture.ls
Respondent Duthler's final contention is that the election results (Local 36 lost the
election 27 to 43) established that Local 36 did not in fact represent a majority of
the employees. But it has already been found that this election should be set aside
due to the unfair labor practices of Duthler which occurred between the filing of
the petition and the date of the election. Under such conditions the rule of the
Board in Bernel Foam Products Co., Inc., 146 NLRB 1277,20 clearly requires that
the results of the election be set aside and that Duthler be required to bargain with
Local 36.
4. The refusal to bargain at Kalamazoo
Findings have been made that the unit sought by Local 36 at Kalamazoo was
appropriate, that a demand and refusal took place on October 19 and 21, and that
Local 36 represented 25 of 49 employees on these dates. I do not find, however,
that the unfair labor practices committed by Foods Supervisors DeYoung and Smith
served to dissipate the majority status of Local 36. DeYoung's threat to Van Den
Berg occurred on August 31 and Smith's implied threat to Shingledecker occurred
on October 9. Since the Union attained its majority of October 19 and no unfair
labor practices were committed thereafter the situation does not come under the
scope of the Joy Silk rule. (Joy Silk Mills v. N.L.R.B., supra.) 21
I find, rather, that the legality of Respondent's conduct in refusing to recognize
Local 36 is determined by whether Duthler had a good-faith doubt of the Union's
majority of October 19 and 21.22
In N.L.R.B. v. Elliott-Williams Co., Inc., 345 F. 2d 460 (C.A. 7), the Respondent
specifically raised the contention that there was no refusal to bargain and no 8(5)
violation since it was not shown that the refusal was to gain time to dissipate the
Union's majority, citing N.L.R.B. v. The Bedford-Nugent Corp., 317 F. 2d 861
(C.A. 7). The court rejected this argument stating that the law was clear that:
The employer acts at his peril in refusing to recognize a duly selected bargain-
ing agency of an appropriate unit of his employees unless the facts show that
in the exercise of reasonable judgement he lacked knowledge of the appropriate-
ness of the unit or the selection of the majority representative. (N.L.R.B. v.
Piqua Munising Wood Prod. Co., Inc., 109 F. 2d 552, 556 (C.A. 6).) 23
Is Midwest Piping .& Supply Co., Inc., 63 NLRB 1060
19 Shea Chemical Corporation , 121 NLRB 1027.
20 The Board's rule in Bernet Foam has been approved in International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO v. N.L R B. (S N.C. Manufacturing Co.,
Inc.), 352 F . 2d 361 (C.A.D.C.).
21 The rule is stated by the court at page 741:
It has been held that an employer may refuse recognition to a union when motivated
by a good faith doubt as to the union's majority status. [Citations omitted l
When, however , such refusal is due to a desire to gain time to take action to dissipate
the union 's majority , the refusal is no longer justifiable and constitutes a violation of
the duty to bargain set forth in section 8(a)(5) of the Act.
$' Celanese Corporation of America, 95 NLRB 664, 673
zi See also N.L.R.B. v. Winn-Dixie Stores, Inc., 341 F 2d 750, 755 (C.A. 6) ; N L.R.B.
V. Phslamon Laboratories , Inc., 298 F. 2d 176, 179 (CA. 2) ; N.L.R.B. v. Daniel Crean
and Joseph . Messore d/b/a The Grand Food Markets , 326 F. 2d 391, 396-397 (C.A. 7) ,
Bernard S . Happach d/b/a 14th Street Market, 151 NLRB 560. Cf , N.L R B. v. The
Great Atlantic and Pacific Tea Company, 346 F. 2d 936 (C A. 5), reversing 144 NLRB 1571.
BEN DUTHLER, INC. 83
Nor does the fact that an employer has offered or requested an election relieve
him from the duty to bargain in the absence of a good-faith doubt. N.L.R.B. v.
Trim fit of California, Inc., 211 F. 2d 206 (C.A. 9).
In the instant case Ben Duthler made no effort to check the authenticity of the
cards despite the fact that the union representatives were accompanied by a clergyman
for that purpose. The Union was not obligated, under such circumstances, to accept
Duthler's offer to hold an election in the store under conditions which were not speci-
fied. N.L.R.B. v. Trim fit of California, supra.
It can reasonably be argued that a demand for recognition on the basis of authori-
zation cards, particularly where, as here, the union's majority is bare, places the "
employer in triple jeopardy. If he recognizes the union and it does not represent an
uncoerced majority he is in violation of Section 8(a)(2) of the Act.24 If he refuses
and the union does represent its claimed majority he is in violation of Section 8(a) (5)
of the Act.25 If he has reasonable doubts as to the authenticity of the cards or the
validity of the designations and undertakes his own investigation he must exercise
scrupulous care or he will be in violation of Section 8 (a) (1) of the Act 26 It is small
wonder that so firm a friend of labor as Senator Javits attempted to amend the bill
repealing Section 14(b) of the Act by relieving employers of the obligation to recog-
nize unions on the basis of card checks.27 Before too many crocodile tears are shed
on behalf of the employer, however, it must be noted that none of the remedies
imposed is punitive in nature . If he is guilty of a violation of Section 8(a)(2) he is
merely to cease and desist from giving recognition to the union and from giving effect
to any contract until the union has established its majority at an election and has been
certified by the Board. If he is found to have violated Section 8(a) (5) he will only
be ordered to fulfill his statutory obligation to bargain. (In such instances the issu-
ance of an enforcing decree may come several years after the obligation was incurred
and the passage of time may have so eroded the union's strength that it can no longer
exercise leverage at the bargaining table.) Finally, if, in the course of his investiga-
tion , he is found to have exceeded permissible bounds he will only be ordered -to
refrain from such conduct in the future. The law may seem to favor unions but the
odds, realistically appraised, favor the employer. The consequences as to employees
are dubious.
On both Board and court decisions I find Respondent Foods refused to bargain in
good faith with Local 36 in violation of Section 8(a) (5) of the Act.
IV. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices it
shall be recommended that they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
It has been found that Respondents refused to bargain in good faith with the
Unions herein and engaged in unfair labor practices designed to destroy the Unions'
majorities at Grand Rapids. It has further been found that the objections to the elec-
tion filed by Local 20 in Case No. 7-RC-6430 have ment and it shall accordingly be
recommended that the election be set aside and all proceedings therein be vacated.
It shall also be recommended that Respondent Duthler bargain , upon request, with
Local 20 and that Respondent Foods bargain, upon request, with Local 36 as to the
respective units ' found appropriate and, that any understandings reached shall be
embodied in a written agreement in either case.28
2 International Ladies' Garment Workers' Union, AFL-CIO ( Bernhard-Altmann Teeae
Corp.) v. N.L.R.B., 366 U.S. 731. '
25 Frank Bros . Company v. N.L.R.B., 321 U.S. 702.
26 Joy Silk Mtiils v. N.L.R.B., supra.
2759 LRRM 61 . See also the ' address of Chairman ' McCulloch before the American
Bar Association in 1962 ' citing statistics which establish that the number ' of authorization
cards signed by employees will be in excess of the number of votes which a union will
obtain at a Board -conducted election.
28 In its brief Respondents request that If it is recommended that the'election'at Duthler
be set aside and Duthler'be found guilty of an unfair labor practice the purposes of the
Act'by the direction of a second election rather than a bargaining order where the majority
status is admittedly meager. In Flomatio 'Corporation, 147 NLRB 1304; the Board found
respondent guilty of violations of Seotion ' 8(a)(1) and issued*an order directing iespond-
ent to bargain' with the union as is proper remedy where the unfair labor, practices had
destroyed the union's majority status. In N.L.RB. v. Flomatic Corp.,- 347.F. 2d 74
(C.A. 2), the court modified the order and denied enforcement of the order to bargain
221-374-66-vo l. 15 7- 7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondents Duthler and Foods are employers engaged in commerce within
the meaning of the Act.
2. Locals 20 and 36 are labor organizations within the meaning of Section 2(5)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act, as herein found, Respondents Duthler and
Foods engaged in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By refusing, upon request, to bargain in good faith with Local 20 as the repre-
sentative of its employees in the unit found appropriate herein Respondent Duthler
engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1)
of the Act.
5. By refusing, upon request, to bargain in good faith with Local 36 as the repre-
sentative of its employees in the unit found appropriate herein Respondent Foods has
engaged in an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect interstate commerce within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions and the entire record, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, I
recommend that the Respondents, Ben Duthler, Inc., and Family Foods, Inc., their
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Interrogating their employees, in a context of restraint and coercion, respecting
their union membership or sympathies and threatening their employees with reprisals
because of their union membership or sympathies.
(b) In any like or related manner interfering with , restraining , or coercing their
employees in the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) As to Respondent Ben Duthler, Inc., it shall, upon request, bargain collectively
with Retail Store Employees Union Local No. 20, as the exclusive bargaining repre-
sentative of the employees at its Grand Rapids store in the unit found appropriate
herein and embody in a signed agreement any understanding reached; as to Respond-
ent Family Foods, Inc., it shall, upon request, bargain collectively with Retail Store
Employees Union, Local No. 36, as the exclusive bargaining representative of the
employees at its Kalamazoo store in the unit found appropriate herein and embody in
a written agreement any understanding reached.
(b) Post at their stores in Grand Rapids and Kalamazoo, Michigan, copies of the
attached notices marked "Appendix A" and "Appendix B." ae Ben Duthler, Inc., shall
post the notice marked "Appendix A" and Family Foods, Inc., shall post the notice
marked "Appendix B." Copies of such notices, to be furnished by the Regional
Director for Region 7, shall, after having been duly signed by authorized representa-
tives of Respondents, respectively, be posted immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
but directed the Board to conduct a new election. Substantial weight was given in its
decision to the fact that no violation of Section 8(a) (5) was alleged in the complaint
and the court referred to the Section 8(a) (1) violation as "borderline" and "unaggravated."
The General Counsel, presumably with the acquiescence of the Board, has petitioned the
court for a rehearing in bane so it does not appear that such a remedy is acceptable
to the Board. (Cf. Irving Air Chute Co., Inc. v. N.L.R.B., supra, where the same
court enforced a bargaining order, distinguishing Flomatio. In Irving Air the Board and
the court found a violation of Section 8(a)(5) as well as (1) and the court refused to
modify the Board's order as requested by respondent, to conform to the order in Flomatic.)
In the event that this Recommended Order Is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision
and Order."
BEN DUTHLER, INC. 85
(c) Notify the Regional Director , within 20 days from "the receipt of^this Decision,
what steps have been taken to comply therewith 30
It is further recommended that the election held at Respondent Duthler's Grand
Rapids store in Case No . 7-RC-6430 be set aside and proceedings therein be vacated.
It is further recommended that allegations of the complaint not found to constitute
violations of the Act be dismissed.
80 In the event that this Recommended Order Is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that.
WE WILL NOT ask our employees about their union membership or sympathies.
WE WILL NOT threaten our employees with less hours of work; with putting the
meat department on a self-service basis; cutting down on the carryout service or
with possible discharge if our employees select the Union as their bargaining
representative.
WE WILL, upon request, bargain collectively with Retail Store Employees
Union Local No. 20, as the exclusive bargaining representative of all employees
in the unit described below with respect to rates of pay, wages, hours of employ-
ment, and all other terms and conditions of employment, and, if understanding
is reached, embody such understanding in a written agreement.
The bargaining unit is:
All full-time and part-time employees employed at our Grand Rapids
store, including all employees in the grocery, meat, and produce departments
and cashiers, excluding professional employees, guards, the store manager,
the assistant store manager, and all other supervisors as defined in the Act.
BEN DUTI-ILER, INC.,
Employer.
Dated------------------- By------------------------ -------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3200.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT ask our employees about their union membership or sympathies.
WE WILL NOT tell our employees that the signing of a union card could jeop-
ardize their jobs.
WE WILL, upon request, bargain collectively with Retail Store Employees
Union, Local No. 36, as the exclusive bargaining representative of all employees
in the unit described below with respect to rates of pay, wages, hours of employ-
ment, and all other terms and conditions of employment , and, if agreement is
reached, embody the terms of such agreement.
The bargaining unit is:
All full-time and part- time employees employed at our Kalamazoo store,
including all employees in the grocery, meat, and produce departments and
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cashiers, excluding professional employees , guards, the store manager, the
assistant store manager, and all other supervisors as defined in the Act.
FA1. u.Y Foons, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3200.
Randall 's and Retail Clerks International Association, Local 455,
AFL-CIO. Case No. 23-CA-1908. February 24, 1966
DECISION AND ORDER
On November 15, 1965, Trial Examiner Harry H. Kuskin issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending dismissal of the complaint in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner. Accordingly, we shall dis-
miss the complaint.
[The Board hereby adopted the Trial Examiner's Recommended
Order dismissing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Reeves R . Hilton at Houston,
Texas, on March 22 , 23, and 24, 1965, pursuant to a charge and an amended charge
filed on September 21 and October 27, 1964, respectively, and a complaint issued on
December 4.1 It presents the questions of whether Randall's,2 herein called Respond-
1A11 dates referred to herein are in 1964 , except where otherwise indicated.
2 The name of Respondent appears as amended at the hearing.
157 NLRB No. 6.