Breezway Foods, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1970

183 N.L.R.B. 941 (N.L.R.B. 1970)

BREEZWAY FOODS, INC. 941
'Breezway Foods, Inc. and Retail Store Employees former job or, if that job no longer exists, to a sub-
Union , Local No. 1614, AFL-CIO. Case stantially equivalent position."
19-CA-4457
June 23, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
' While we agree with the Trial Examiner that the authorization card of
Whitehead is valid , we disavow his comment in the penultimate sentence of
the last paragraph of his concluding findings , I, C, 2, (f), which is unneces-
sary to the determination of the validity of the card
The Trial Examiner 's findings and conclusions are based , in part, upon
his credibility determinations to which the Respondent has excepted The
Trial Examiner 's credibility findings are not contrary to the clear prepon-
derance of all relevant evidence Accordingly, we find no basis for disturb-
ing those findings Standard Dry Wall Products , Inc, 91 NLRB 544, enfd
188F2d362(CA 3)
On March 17, 1970, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed a brief in op-
position to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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, the
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Breezway Foods, Inc., Twin Falls, Idaho, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, with the following modifications:
1. Delete from paragraph 2(a) of the Order the
words "to her former or a substantially equivalent
position," and substitute therefor the words "to her
former job or, if that job no longer exists, to a sub-
stantially equivalent position."
2. Delete from the paragraph of the Appendix
that begins "WE WILL offer" the words "to her old
job," and substitute therefor the words "to her
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case
was heard in Twin Falls, Idaho, on November 18
and 19, 1969, upon a complaint issued on Sep-
tember 24, 1969,1 alleging that Respondent had
violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor ' Relations Act, as amended. In its
answer, Respondent denied the commission of the
alleged unfair labor practices.
Upon the entire record, my observation of the
witnesses, and the briefs filed by the parties, I make
the following:
FINDINGS AND CONCLUSIONS2
THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
1. The evidence
Respondent, an Idaho corporation, operates a
store in Twin Falls, Idaho, where it is engaged in
the retail and wholesale distribution of food
products. On June 18, 1969,3 representatives of the
Union, Sullivan and Larsen, went to Respondent's
store, and solicited and obtained authorization
cards from four employees. Employee Morris
testified without contradiction that, when Scholer,
who was manager of the store at that time, learned
of this event on his return from lunch, he stated
that he was not going to have a union in the store;
and that, if the Union came in, wages or worktime
would be cut and some people would be laid off.
Employee Plew testified that on the same day he
was called to the office by Scholer, at which time
the latter stated that union representatives had
signed up employees; that Scholer had telephoned
Respondent's president, Brezina; and that Brezina
stated that the jobs of the said employees and of
anyone else who signed up would not last. Plew
' Based on a charge filed on July 31, 1969, by Retail Store Employees
Union, Local No 1614, AFL-CIO ( hereafter called the Union)
2 No issue of commerce is presented The complaint alleged and the
answer admitted facts which, I find, establish that Respondent is an em-
ployer engaged in operations affecting commerce within the meaning of
the Act I further find that the Union is a labor organization within the
meaning of the Act
3 All dates referred to hereafter relate to 1969 unless otherwise specified
183 NLRB No. 92
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further testified that later that day Scholer again
called him to his office , repeated some of his earlier
statements , stated that the store would not be
unionized as long as he was there, told him that, if
the Union came in , Plew would be the first to go
because he was only a part-time employee, stated
that Brezina had told him that, if the Union did not
come in, he would pay time and a half for overtime
and double time for Sunday work, instructed Plew
not to talk to anyone in the store about the Union,
and threatened to discharge him if he did. Em-
ployee June Johnson testified that during the same
day, June 18, Scholer told her that two employees
had signed authorization cards, that he had talked
on the telephone to Brezina who was very upset,
and that the jobs of the two would not last very
long. Johnson replied that she and employee Saun-
ders had signed cards.
Scholer testified that on June 18 he talked to
Plew and to Johnson twice, and that he told them
how he and Brezina felt about the Union. Scholer
testified that he told Plew that Brezina was trying to
obtain a store insurance policy, and that he sug-
gested to Plew that it was best for the employees to
wait and compare the policy with the Union's pol-
icy to see which was better. Scholer further testified
that, during his first conversation with Johnson, he
similarly advised her that it would be best for the
employees to wait and compare the two insurance
policies; and that during their second conversation
he referred to the cut in hours adopted earlier that
week, stated that there was a limit on his payroll,
and informed her that, if he exceeded the limit,
Johnson would be the first grocery checker to be
fired because she was the least experienced and the
last one hired. Scholer also testified that during that
week he suggested to most of the employees that
they should wait to compare the two insurance poli-
cies.
Johnson testified without contradiction 'that
several days later Scholer told her that a union
would not be good for the store; that Twin Falls
was not a union town; and that, if the Union came
in, two food checkers would be laid off, Johnson
would be the first one because she was the last
checker who had been hired, prices would go up,
and it would be necessary to lay off the majority of
the stockboys.
On June 24, Scholer was replaced as store
manager by Cook. On June 25, the employees held
an organizational meeting at which additional
authorization cards were signed. Employee Morris
testified that Cook subsequently asked her what the
employees had decided, and that she replied that all
had signed cards. On or about July 10, the em-
ployees held a second organizational meeting. Em-
ployee Morris testified that on or about July 12,
Cook called her to the telephone to talk to Brezina,
that Brezina asked her what the employees had
signed, that she read to him the contents of the
cards which had been signed by employees, and
that Brezina thereupon said, "it looks like we're
hung then." Morris further testified that about a
half hour later Cook told her that Brezina wanted a
written statement from each employee setting forth
what took place at the meeting. Employee Saunders
testified that Cook asked her for a similar statement
for Brezina. None of this testimony has been con-
tradicted.
That night, Cook called a meeting of store em-
ployees. Employee Morris testified that at the meet-
ing Cook warned that, if the Union came in, work-
time would be cut and there would be some layoffs;
that Cook stated that Brezina wanted to know
which employees were for the Union and which
were against; that Cook requested the employees to
indicate their preference by a show of hands; and
that he then told the employees they were not to
mention the Union in the store. This testimony was
largely corroborated by employees Saunders and
Whitehead. In addition, employee Johnson testified
that at the meeting Cook said that the Union was
not going to get into Twin Falls because there was
no reason for one, and that Brezina could match
anything the Union would do for the employees;
and that, when Johnson inquired whether the em-
ployees would be able to obtain pay for work in ex-
cess of 40 hours a week, Cook replied in the nega-
tive. None of this testimony has been contradicted.
2. Concluding findings
Based on the uncontradicted and credited
testimony and the admissions described above, I
find that Brezina, Scholer, and Cook made the vari-
ous statements and committed the conduct at-
tributed to them, and that such statements and con-
duct constituted interference, restraint, or coercion
violative of Section 8(a)(1) of the Act. Respondent
contends that, if it "advised" any employees against
joining the Union, such a statement was protected
because an employer is entitled to communicate to
his employees his views relating to unionization.
The difficulty with this argument is that Respon-
dent did not merely give advice. It unlawfully
threatened employees with discharge if they joined
the Union. Respondent further contends that the
statements concerning a reduction in worktime
were protected because such reduction had already
been decided on. In support of this contention,
Respondent relies on the testimony of Heaton, who
became store manager about August, that he
reduced the worktime of employees. Such
testimony falls far short of establishing a manage-
ment decision already arrived at before the state-
ments in question were made . In any event, since
the statements were made in the form of threats
which would be carried out if the employees
unionized, they were unlawful.
Contrary to Respondent, the statements relating
to layoffs were not predictions of "demonstrably
probable consequences beyond [Respondent's]
control." N.L.R.B. v. Gissel Packing Company, 395
U.S. 575. There is nothing in the record to show
BREEZWAY FOODS, INC.
that an increase in payroll costs and the resulting
need for a reduction in the labor force were inevita-
ble consequences of unionization. Moreover, the
statements were not phrased as predictions, but
rather were in the form of unlawful threats of
reprisals if the employees should unionize.
I reject Respondent's contention that no unlawful
promises of benefit were made. The record
establishes that Respondent told employees that it
would pay overtime benefits if they did not
unionize . It further establishes that Respondent im-
plied to several employees that it would furnish
them with insurance benefits which were superior
to those which the Union could obtain for them. I
find that, by dangling before its employees the pos-
sibility of superior insurance benefits, Respondent
unlawfully attempted to induce them to refrain
from unionizing. I also reject Respondent's conten-
tion that its request for a showing of hands respect-
ing the employees' union sentiments did not con-
stitute unlawful interrogation because Respondent
allegedly had a good-faith doubt regarding the
Union's majority and the request was not accom-
panied by threats. Although polling of employees
can be lawful, Respondent's poll did not satisfy the
criteria set forth by the Board in Struksnes Con-
struction Company, Inc., 165 NLRB 1062, which
was cited with approval by the Supreme Court in
N.L.R.B. v. Gissel Packing Co., supra; see N.L.R.B.
v. Historic Smithville Inn, 414 F.2d 1358, fn. 10
(C.A. 3), cert. denied 397 U.S. 908. Thus, Respon-
dent did not make clear to the employees that it
had a legitimate purpose in taking the poll, nor did
it reassure them that there would be no reprisals. In
addition, the poll was not taken by secret ballot,
and the record establishes other unfair labor prac-
tices as well as a coercive atmosphere. I therefore
find that the poll was unlawful.
There is no merit to Respondent's contention
that it acted lawfully in soliciting from employees
written statements respecting what took place at
their meeting of July 10. In the context of Respon-
dent's other unfair labor practices, such solicitation
was coercive. For the same reason, I reject Respon-
dent's contention that it was lawful for Scholer to
tell Plew that the store would never be unionized as
long as Scholer was there. Finally, I reject Respon-
dent's contention that it was lawful to forbid discus-
sion of the Union during store hours. The prohibi-
tion was not confined to worktime, but extended to
nonworktime. Absent a showing of special circum-
stances requiring such a prohibition, I find that it
was unlawful.
B. The Discharge of June Johnson
1. The evidence
Johnson was hired by Respondent as a grocery
checker in April 1969. As noted above, Johnson in-
943
formed Store Manager Scholer on June 18 that she
had signed a union authorization card; and he sub-
sequently told her that, if the Union came in, she
would be the first checker to be laid off because
she was the least experienced and the last one
hired 4 Cook, who replaced Scholer as store
manager, testified that, at the time he received his
appointment, Respondent's, district manager, Ed-
wards, informed him that the store was going
downhill and that the payroll was too high; that Ed-
wards instructed him to reduce the payroll and lay
off two female and several male employees who
"were not doing the work"; and that Johnson was
one of several employees whom he was instructed
to terminate. At another point, he testified that he
was told to lay off two employees, that one of them
was not doing her job at the checkstand, that one of
them was smoking at the checkstand, and that he
"was told-to replace." Young, the manager of
Respondent's store in Idaho Falls, testified that dur-
ing the second week of June he heard Edwards tell
Cook that the Twin Falls store was overstaffed and
give instructions to eliminate unneeded employees
in order to reduce the payroll; that Edwards told
Cook to lay off Johnson and another checker; and
that Edwards stated that the two checkers "just
weren't up to par." Young admitted, however, that
he was not certain whether Edwards had made the
latter statement regarding Johnson. Cook testified
that he did not let Johnson go when he took over
the store because employee Ethel Johnson quit, as
a result of which the store was "not up to full
strength" and he "had to have a checker to fill her
place."
Johnson testified without contradiction that her
work had not been criticized, and that on three
separate occasions Store Manager Cook told her
that she was a good worker and that her job was
safe. On July 19, she was discharged by Assistant
Manager Sour. Cook testified that he had been
watching Johnson, that she was very slow in
checking out customers and he had had complaints
about her checking, that he decided that the time
was right to release her, and that he instructed Sour
to tell Johnson that Respondent would no longer be
able to use her because of business conditions and
because she was one of the last employees hired.
Johnson testified that at the time he discharged her
Sour told her that Cook had instructed him to let
her go but had given him no reason; that she
inquired whether she had done something to
prompt the discharge; and that Sour replied in the
negative and stated that she was a "good worker."
Cook testified that he did not replace Johnson,
and that, instead of discharging the second checker,
he kept her on as a bookkeeper-checker. Heaton,
who replaced Cook as manager in August, testified
that, since he became manager, he has reduced the
number of hours worked by the checkers.
4 Johnson testified without contradiction that , although she was the
newest employee at the time of that conversation , two employees were
hired thereafter
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Concluding findings
The General Counsel contends that Respondent
discharged Johnson because of her union activity.
Respondent contends that, before Cook was ap-
pointed store manager, Respondent had decided to
reduce its overhead by discharging at least two em-
ployees at the Twin Falls store, that Cook was in-
structed to discharge Johnson and another checker,
and that she was the logical choice because she was
the least experienced and the last checker to be
hired. I find that Respondent's explanation for
discharging Johnson is unpersuasive.
Cook gave conflicting evidence as to whether he
was told to reduce payroll costs through layoffs or
merely to replace certain employees. Moreover,
neither Young nor Cook testified that the latter was
instructed to include Johnson as one of the dischar-
gees because she lacked seniority. Instead, they
testified that Cook was instructed by Edwards to
discharge two checkers whose work was unsatisfac-
tory. Young was uncertain as to whether Johnson
was one of those named; and, although Cook
testified that she was named by Edwards, his con-
tradictory testimony, poor memory, and demeanor
lead me to conclude that Cook was an unreliable
witness and I do not credit his testimony.'
In addition , there is nothing to explain why, if
Cook was instructed to discharge Johnson, he told
her that her job was safe, or why he found it neces-
sary to watch her. There is also no explanation for
Cook's delay in following the alleged instructions to
discharge Johnson . Since Ethel Johnson resigned,
such instructions required him to discharge one
more checker. But Cook's testimony is that, with
Ethel Johnson gone, his work force was below par
and he needed June Johnson. Accordingly, I am not
convinced that Cook received such instructions.
Other unexplained discrepancies include Cook's
testimony that, although he received instructions to
discharge Johnson, he made the decision to
discharge her; and his testimony that, although the
reason for his decision was Johnson's slowness in
her work and customer complaints, he told Sour to
notify Johnson that she was selected for discharge
because she lacked seniority. Johnson testified
without contradiction that Sour told her that Cook
had given him no reason for the discharge, and
there appears to have been no reason why Sour
should have lied to Johnson. Finally, it does not ap-
pear that Johnson had the least seniority at the time
of her discharge. She testified without contradiction
that two other employees were hired by Respon-
dent subsequent to June 18, and there is no
evidence that the two were no longer in Respon-
dent's employ at the time of Johnson's discharge.
For the above reasons, I find that the reason for
discharge asserted by Respondent is a pretext
s There is nothing to show that any complaints had been made to Ed-
wards regarding Johnson's work It seems unlikely that any such complaints
had been made in view of Johnson 's uncontradicted testimony that her
work was praised by Cook and by Assistant Manager Sour
designed to conceal its true motive. I further find
that Johnson's discharge was motivated by the fact
that Respondent wished to eliminate a known union
adherent in a small unit in order to prevent the
Union from becoming the majority bargaining
representative of its employees. I base that conclu-
sion on Johnson's admission to Scholer that she had
signed a union authorization card, the unlawful
threats of discharge made to her and other em-
ployees, the absence of a persuasive reason for her
discharge, Respondent's other unlawful conduct in
opposing the Union, and the timing of the
discharge, i.e., some 2 weeks after Respondent was
told that a cross-check of authorization cards
showed a union majority, 1 week after the conver-
sation of July 12 between employee Morris and
Respondent's president, Brezina, which led the
latter to believe that the Union might represent a
majority of the employees, and 5 days after a
further demand for recognition was made by the
Union on July 14 (see infra). I therefore find that
Respondent discriminated against Johnson in viola-
tion of Section 8(a)(3) and (1) of the Act.
C. The Refusal To Bargain
1. The evidence
On June 25, Union President Sullivan met with
District Manager Edwards and told him that the
Union represented a majority of the employees at
Respondent's Twin Falls store, i.e., 9 out of 14. Ed-
wards replied that Respondent would not object to
signing a contract if the Union could prove its
majority. Sullivan replied that he had only three of
the authorization cards with him at the time, and
they agreed to meet again the following day. When
they met on June 26, Sullivan again had only three
cards with him,' and Edwards again stated that he
would not object to signing a contract if the Union
could prove a majority. Sullivan asked whether Ed-
wards would consent to a cross-check of the cards.
Edwards agreed and stated that, if he were not
available, he would arrange to have the store
manager take care of the cross-check.
The Union then inquired of the Idaho State
Labor Commissioner whether he would conduct
the cross-check, and was informed that he would if
the Union would furnish Respondent's written con-
sent thereto. Thereafter, Sullivan sent to the labor
commissioner a letter dated June 27, reading as fol-
lows:
Please use this letter as your authority to con-
duct a card cross-check as pertains to Union
Representation for the employees in the above
named location for period ending June 28,
1969. Exluded from the bargaining unit are-
one store manager and one assistant manager.
6 Sullivan testified that additional cards were in the Union's office in
Boise, Idaho, that they had been mailed to him , but that they had not yet
reached Twin Falls when he met with Edwards
BREEZWAY FOODS, INC. 945
The commissioner's office received the letter on
June 30, a representative of that office, Jones,
telephoned Sullivan, and they agreed that the cross-
check should be held on July 3. On that date, Jones
went to the Twin Falls store, and Sullivan arrived
shortly thereafter. When Jones requested Store
Manager Cook to countersign the letter authorizing
the cross-check, Cook telephoned Edwards and
then signed the letter. Jones asked Cook whether
he had a list of signatures of the store employees
for use in the cross-check, but was told that he had
none. Cook and Sullivan thereupon agreed that in
making the cross-check Jones would regard as eligi-
ble to vote only those employees whose signatures
could be obtained that day.
Cook furnished Jones with a list which purported
to include the names of the employees on the
payroll as of June 28. The list contained 12 names,
and a 13th name (Bowman) was added. In addition,
he informed Jones that 5 of the 13 employees were
no longer on the payroll as of June 30 and that the
remaining 8 employees on the list, plus another
hired on the latter date, or a total of 9, were still on
the payroll on July 3. Jones then requested availa-
ble employees to sign their names on a sheet of
paper, and obtained 9 signatures. However, he did
not obtain Bowman's signature, but did obtain that
of employee Jardine, whose name was not on the
list furnished to him by Cook. Jones next
proceeded to compare the signatures with those on
the approximately 13 authorization cards furnished
by Sullivan, and determined that there were
genuine cards from 6 of the 9 employees whose
signatures he had obtained. Accordingly, Jones in-
formed Cook and Sullivan that he was satisfied that
the Union had a majority. By letter dated July 14,
the Idaho Labor Commissioner certified the Union
as the ma ority bargaining agent in the unit set forth
in the authorization for the cross-check.
2. Concluding findings
The General Counsel contends that there were
14 employees in the appropriate unit on June 28,
and that the Union had valid authorization cards
from 10 of such employees; that, if July 3 is
deemed to be the correct date for determining
majority, there were 12 employees in the ap-
propriate unit and the Union had valid cards from 8
of such employees on the latter date; and that,
since the record thus establishes the Union's
majority, Respondent's refusal to bargain with the
Union was unlawful. Respondent contends that the
Union's majority should be determined as of June
28, that there were 14 employees in the appropriate
unit on that date, that the cross-check disclosed
authorization cards from only 6 employees, and
hence that the record fails to show a majority.
Respondent further contends that there were 12
employees in the appropriate unit on July 3 and,
' Although the answer denied that the Union's majority had ever been
properly determined in accordance with Idaho law, Respondent has ap-
parently abandoned reliance on Idaho law and , as noted more fully below,
therefore, that the 6 cards determined to be valid
during the cross-check were insufficient to establish
a majority even on the latter date. Finally, Respon-
dent raises a question as to the validity of 2 of those
6 cards, asserting that they were obtained by the
Union through misrepresentations.
Where a union makes a request for bargaining
and agrees with the employer to permit a state
tribunal to determine whether the Union has
majority status, the determination of the tribunal
following a secret election will ordinarily be
respected, provided that the election contained no
substantial irregularities and was sheltered by
procedural safeguards of secrecy and fairness.
N.L.R.B. v. Western Meat Packers, Inc., 350 F.2d
804 (C.A. 10); Screen Print Corporation, 151
NLRB 1266. If, following a proper determination of
majority by the tribunal, the employer refuses to
bargain with the union, he commits an unfair labor
practice. Where, however, deference cannot be
given to the tribunal's determination, some other
means of determining majority status must, of
course, be used. The preferred method is a Board
election. But if the employer engages in unfair
labor practices which are so substantial as to make
the holding of a fair and free election unlikely, still
other methods of determining majority may ap-
propriately be used. And if such majority status is
established, a finding that the employer violated his
obligation to bargain and the issuance of a bargain-
ing order are warranted. N.L.R.B. v. Gissel Packing
Co., supra.
Assuming, without deciding, that similar respect
should be accorded to the determination of a state
tribunal based upon a cross-check of authorization
cards, I find that no deference can be given to the
certification of the Idaho State Labor Commis-
sioner respecting the Union's majority status, that
Respondent's unfair labor practices have made it
unlikely that a free election could be conducted by
the Board, that the record establishes that the
Union had a majority at a time when it requested
Respondent to bargain , that Respondent 's refusal to
bargain with tha,,Union was thus unlawful, and that
a bargaining order is required to effectuate the poli-
cies of the Act.
(a) The complaint alleged that from and after
June 27, and particularly on July 3 and on or about
July 14, the Union requested Respondent to bar-
gain; and that since the latter date Respondent has
continued to refuse to bargain. In its answer,
Respondent denied that it has ever refused to bar-
gain with a duly and properly designated bargaining
agent.7 I construe the answer as an admission of
fact. I accordingly find that the Union has
requested Respondent to bargain since June 27,
and that the latter has continued to refuse to bar-
gain since July 14.
argues in its brief merely that the record fads to establish the Union's
majority
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) I find that Respondent's numerous unfair
labor practices were so coercive as to destroy the
likelihood of holding a free election among Respon-
dent's Twin Falls employees. As found above, such
unfair labor practices included threats of discharge,
layoffs, and cuts in worktime, as well as promises of
benefits, in order to prevent unionization, unlaw-
fully polling employees regarding their union senti-
ments, unlawfully soliciting written statements from
them regarding what had occurred at an organiza-
tional meeting, an invalid prohibition against
discussion of union matters during nonwork as well
as worktime, and the unlawful discharge of John-
son. This conduct was even more serious than that
which was found to justify a bargaining order in the
Sinclair case, one of the cases covered in N.L.R.B.
v. Gissel Packing Co., supra. It follows that if the
record establishes that the Union had majority
status at a time when it requested Respondent to
bargain, the latter violated its obligation to bargain
with the Union and the issuance of a bargaining
order is appropriate.
(c) The complaint contained the following al-
legation:
The following unit is now, and at all times al-
leged herein has been, a unit appropriate for
purposes of bargaining within the meaning of
Section 9(a) of the Act: All employees at
Respondent's Twin Falls location, excluding
office clerical employees, guards, professional
employees, and supervisors as defined in the
Act. Since the answer failed to deny that al-
legation, it is admitted. In addition, the parties
expressly stipulated at the hearing that the said
allegation was correct. Despite the fact that the
unit described in the authorization for the
cross-check did not exclude clerical em-
ployees, I find that the unit set forth above is
an appropriate unit and should be utilized in
determining whether the Union had a majori-
ty.8
(d) The parties stipulated at the hearing, they
agreed in their briefs, and I find, that there were 14
employees in the above unit on June 28, and that
they-were as follows:
Judy Saunders Terry Pierce
Hazel M. Morris Doug Gilbert
June W. Johnson Jay Ulrich
Jerilyn Whitehead Roger Krueger
Vaila M. Kinney Andy Bristol
David Plew Ethel Johnson
'Shortly before the close of the hearing , Respondent raised some
question regarding the unit alleged in the complaint It appears , however,
that the burden of Respondent 's assertion was that employee Jardine
should be included in that unit despite her clerical duties , and not that the
unit should be amended to include clerical employees In its brief, Respon-
dent no longer asserts that Jardine was in the unit ( See fn 10, infra )
" After the close of the hearing, the parties entered into stipulation relat-
ing to Sharp 's employment history at the Twin Falls store That stipulation,
which is in the form of a letter dated December 16, signed by counsel for
the General Counsel and countersigned by counsel for Respondent, is
hereby marked Joint Exh 1 for identification , and it ordered that the said
exhibit be , and it hereby , is made a part of the record herein
David Pinkston Donald Bowman
Although there appears to have been some dis-
agreement at the hearing regarding the number of
employees in the unit as of July 3, the parties now
agree in their briefs that there were 12 employees
in the unit on that date. At the hearing, it was stipu-
lated that the following 11 employees were in the
unit on July 3:
Saunders Plew
Morris Gilbert
June Johnson Ulrich
Whitehead Krueger
Kinney Bowman
Duane Bolman
Respondent contends, and the General Counsel
now concedes in his brief (p. 8), that employee
Cliff Sharp should also be included in the unit as of
July 3.9 The record thus establishes, and I find, that
there were 12 employees in the appropriate unit as
of July 3.10
(e) With respect to the issue of the Union's
majority, Respondent argues that the cross-check
disclosed only six valid authorization cards, and
that this represented less than a majority of the 14
unit employees on June 28, and of the 12 unit em-
ployees on July 3. But Respondent cannot have it
both ways. If it wishes to rely on the results of the
cross-check, it must also accept the agreement
between Cook and Sullivan that the unit would be
deemed to include only the nine employees whose
signatures were readily available. If, however,
Respondent takes the position that the unit con-
sisted of 14 on June 28 and 12 employees on July
3, it cannot properly insist on using the card count
made at the cross-check because Jones, although
given approximately 13 authorization cards by the
Union, disregarded those signed by employees
other than the 9 who were deemed to be the eligi-
ble voters. The question is whether the Union's
majority should be governed by the results of the
cross-check or determined by some other method.
I find that the certification of the Idaho Labor
Commissioner does not constitute satisfactory
evidence of the Union's majority if for no other
reason than that the cross-check was seriously de-
fective in several respects. It was made in a unit dif-
ferent from that which the parties now agree, and
which I have found, to be appropriate." In addi-
tion, the unit was deemed to include only 9 em-
ployees for purposes of the cross-check, although
10 As noted above, Respondent contended at the heanng that employee
Jardine should be included in the unit as of July 3 However , Respondent
now asserts in its brief ( p 9) that the unit on that date consisted of 12 em-
ployees, i e , the I i employees included in the aforementioned stipulation,
and employee Sharp it thus appears that Respondent has abandoned its
contention respecting Jardine
11 Whereas the unit found appropriate excluded clerical employees, the
unit agreed on in the cross-check authorization did not contain such an ex-
clusion it is probable that for that reason employee Jardine was included
as an eligible voter for purposes of the cross -check , although the parties
now agree that she should not be included in the unit
BREEZWAY FOODS, INC. 947
the parties have stipulated, and I have found, that
there were 14 unit employees on June 28 and 12
unit employees on July 3. Finally, some of the
authorization cards given by the Union to Jones
were not counted. It follows, and I find, that these
irregularities are so substantial that it would not ef-
fectuate the policies of the Act to defer to the
findings of the Idaho State Labor Commissioner.
Accordingly, we must look to other evidence to
determine whether the Union had a majority.
(f) The record shows that four unit employees
signed union authorization cards on June 18,12 that
one signed a card on June 19,13 and that three
signed cards on June 25.14 In addition, the parties
stipulated that Gilbert was a member of the Union
in good standing on June 28. Such membership
constituted authorization to the Union to represent
him for purposes of collective bargaining. Nashville
Lumber Co., 162 NLRB 1027, 1030, fn. 10. Thus,
on that date, the Union ostensibly represented 9 of
the 14 employees in the unit."
Of the 12 unit employees on July 3, 6 signed
cards on or before June 25.16 In addition, Ulrich
signed a card on July 3, and the parties stipulated
that Gilbert was a member of the Union in good
standing on that date. Thus, the Union ostensibly
represented 8 of the 12 employees in the unit as of
July 3.
Respondent attacks the validity of the authoriza-
tion cards signed by employees Kinney and
Whitehead on the ground that they were obtained
through misrepresentations made by union
representatives. Since representation of these two
employees is crucial to the Union's majority,
Respondent's contention must be considered. For
the reasons noted below, I find that the Union
represented Kinney and Whitehead and, therefore,
that it represented a majority of the unit employees
on both June 28 and July 3.
Kinney testified that she is a union member and
had taken out a withdrawal card; that she was given
the authorization card at the Twin Falls store, took
it home, signed it, and mailed it to the Union; that a
union representative told her that she could be
"blackballed" from the Union if she did not sign the
card; but that she was not certain whether the state-
ment was made before or after she had signed the
card. Union President Sullivan testified that the
card was for the purpose of a cross-check; that he
pointed out to her that she was a union member
who had taken out a withdrawal card; and that he
informed her that, under the Union's constitution,
the withdrawal card would be revoked if she failed
to "deposit" the card or " sign up" with the Union
and failed to pay dues within 30 days after she ob-
tained employment in any establishment within the
Union's jurisdiction.
Respondent contends that Kinney's card is
tainted because union representatives told her that
the card was for the purpose of a cross-check and
that she could be blackballed from the Union if she
did not sign the card. I credit Sullivan's testimony
regarding the remarks be made to Kinney. Such re-
mi'rks did not amount to misrepresentation or coer-
cion which invalidates her card. They merely
pointed out the possible consequences to her under
the Union's constitution if she failed to reactivate
her union membership. Moreover, since Kinney
took the card home and then signed it, she had
ample time to read the card which, on its face,
clearly authorized the Union to represent her for
purposes of collective bargaining. As a union
member, she undoubtedly understood the sig-
nificance of such authorization. And, by signing the
card, she indicated her desire to avoid revocation
of the withdrawal card and to remain a member of
the Union. I accordingly find that there is no basis
for rejecting Kinney's authorization to the Union to
represent her for purposes of collective bargaining.
Whitehead testified that Union President Sullivan
told her that the card was for the purpose of a
cross-check, i.e., "to see if the store wants to go
Union or not"; that she inquired whether he "had
O.K.'d it" with Respondent's district manager and
the store manager; that he replied in the affirma-
tive; and that he further stated that he had also
talked to Brezina, Respondent's president, that
"everything was A.O.K.," and that all she had to do
was sign the card. She further testified that she
signed the card without reading it, that she did not
know what the card was for, and that she had
completed high school and 1 year of college. Sul-
livan testified that Whitehead had been a union
member for some time; that, when he solicited her
signature, he asked her whether she would like to
see the store go union and wanted overtime pay
and certain other benefits; and that he pointed out
that the Union had organized other stores on the
basis of a cross-check and could do the same at the
Twin Falls store if she signed the card.
Respondent argues that Whitehead's card should
not be counted because she was told by union
representatives that it was for the purpose of a
cross-check, that she did not know the effect of a
cross-check, and that she signed the card on the
Union's misrepresentation that Respondent's pre-
sident had stated that he had no objection. I find
that Whitehead's membership in the Union con-
stituted sufficient authorization to the Union to
represent her for purposes of collective bargaining.
Nashville Lumber Co., supra. I do not credit
Whitehead's testimony that she did not know what
the authorization card was for. Her failure to read it
is immaterial, since there is nothing to show that
12 Saunders, Moms, Johnson, and Whitehead
13 Kenney.
1' Plew, Pinkston, and Pierce
15 In asserting a majority of 10 on that date, the General Counsel may
have incorrectly included the card which , the parties stipulated , was signed
by Ulrich on July 3
16 Saunders , Morris, Johnson , Whitehead , Kinney, and Plew
427-258 O-LT - 74 - 61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was prevented from doing so. McEwen Mfg.
Co., 172 NLRB 990, fn. 33. Moreover, Sullivan's
explanation clearly informed her that it would be
used to determine whether the store should be
unionized . By signing the card, she indicated her
desire to remain a member of the Union. As for the
implied misrepresentation (which Sullivan did not
expressly deny) that Brezina had no objection to
her signing the card, I find that it was not the kind
of misrepresentation which prevented Whitehead
from exercising a free choice. If Whitehead had
refrained from signing the card because of a belief
or fear that Brezina disapproved, her decision
would not have been an unfettered one. The effect
of indicating to her, albeit untruthfully, that Brezina
had no objection was to enable her to exercise a
choice unaffected by the irrelevant wishes of her
employer. I find that there is no basis for rejecting
Whitehead's authorization to the Union to
represent her for purposes of collective bargaining.
(g) Since the record establishes that the Union
had a majority on June 2 and July 3, it is immaterial
which of the two dates is used for determining the
Union's majority. For, as already stated, it is ad-
mitted that the Union has continued to request
Respondent to bargain since June 27, and that it
made a specific bargaining request on July 3. Thus,
the Union had a majority status at a time when it
requested Respondent to bargain. Because Respon-
dent's conduct has made the holding of a free elec-
tion unlikely, I find that such majority status was
sufficient to establish Respondent's obligation to
bargain and that its refusal to fulfill that obligation
violated Section 8(a)(5) and (1) of the Act. For
the same reason, I find that a bargaining order is
the appropriate method to remedy the refusal to
bargain.
CONCLUSIONS OF LAW
A. By interfering with , restraining , and coercing
its employees, as found herein , Respondent en-
gaged in unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act.
B. By unlawfully discharging employee June
Johnson , as found herein , Respondent engaged in
unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
C. By unlawfully refusing to bargain with the
Union, as found herein, Respondent engaged in un-
fair labor practices in violation of Section 8(a)(5)
and (1) of the Act.
THE REMEDY
I shall recommend that Respondent cease and
desist from its unfair labor practices, and that it
take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, I shall
recommend that Respondent offer to June Johnson
immediate and full reinstatement to the position
which she held at the time of the discrimination
against her or to a substantially equivalent position,
without prejudice to her seniority and other rights
and privileges. I further recommend that Respon-
dent make Johnson whole for any loss of earnings
she may have suffered by reason of the discrimina-
tion against her, by paying to her a sum of money
equal to that which she would have been paid by
Respondent absent such discrimination, less net
earnings during the said period. The loss of
earnings shall be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716. In ad-
dition, for the reasons already noted above, I shall
recommend that Respondent bargain with the
Union as the majority representative of Respon-
dent's employees in the unit found herein to be ap-
propriate.
RECOMMENDED ORDER
Respondent, its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating, polling, or
threatening its employees, unlawfully promising
them possible benefits in order to induce them to
vote against unionization, or unlawfully prohibiting
discussion of union matters during nonworktime.
(b) Unlawfully discharging employees or other-
wise unlawfully discriminating in regard to their
hire, tenure of employment, or any term or condi-
tion of employment.
(c) Unlawfully failing or refusing to bargain col-
lectively with Retail Store Employees Union, Local
No. 1614, AFL-CIO, as the exclusive representa-
tive of the employees in the following appropriate
unit:
All employees in Respondent's Twin Falls loca-
tion, excluding office clerical employees,
guards, professional employees, and super-
visors as defined in the Act.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of any right guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to June Johnson immediate and full
reinstatement to her former or a substantially
equivalent position, and make her whole for any
loss of earnings she may have suffered by reason of
Respondent's discrimination against her, in the
manner set forth in the section herein entitled "The
Remedy."
(b) Preserve and make available to the Board or
its agents , on request, for examination and copying,
all payroll records and reports and all other records
necessary to analyze the amount of backpay due
and the right of reinstatement under the terms of
this Recommended Order.
(c) Notify the above-named employee, if
presently serving in the Armed Forces of the
United States of her right to full reinstatement upon
application in accordance with the Selective Ser-
BREEZWAY FOODS. INC.
vice Act and the Universal Military Training and
Service Act, as amended , after discharge from the
Armed Forces.
(d) Upon request , bargain collectively with
Retail Store Employees Union , Local No. 1614,
AFL-CIO, as the exclusive representative of the
employees in the unit found herein to be ap-
propriate , and embody in a signed contract any un-
derstanding reached.
(e) Post at its stolre _ in Twin Falls , Idaho, copies
of the attached notice marked "Appendix."17 Co-
pies of said notice , on forms provided by the Re-
gional Director for Region 19, after being duly
signed by Respondent 's representative, shall be
posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by it to insure that said notices are not altered,
defaced , or covered by any other material.18
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
19 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 19 , in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees these rights: _
To engage in self-organization
To form, join, or help unions
To bargain collectively through a
representative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these
things
WE WILL NOT do anything that interferes
with these rights.
949
WE WILL NOT unlawfully discharge em-
ployees or otherwise discriminate against them
because of their union activities.
WE WILL NOT unlawfully question, poll, or
threaten our employees__
WE WILL NOT unlawfully offer possible
benefits to employees to induce them to vote
against unionization. - -
WE WILL NOT unlawfully prohibit employees
from discussing union matters during nonwork-
time.
WE WILL offer to take back-June Johnson to
her old job and pay her for all the wages she
lost because of her discharge.
WE WILL, upon request, bargain collectively
with Retail Store Employees Union, Local No.
1614, AFL-CIO, as the exclusive representa-
tive of all our employees in the following unit
with respect to rates of pay, wages, hours of
work, and other terms and conditions of em-
ployment, and embody in a signed agreement
any understanding reached. The bargaining
unit is:
All employees in Respondent's Twin
Falls location, excluding office clerical
employees, guards, professional em-
ployees, and supervisors as defined in
the National Labor Relations Act, as
amended.
Dated By
(Representative ) (Title)
Note: We will notify June Johnson if presently
serving in the Armed Forces of the United States of-
her 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 is an official notice and must not be defaced
by anyone-.-
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Republic Building, 10th Floor, 1511
Third Avenue, Seattle, Washington 98101,
Telephone 583-7473.