Briggs IGA Foodliner

National Labor Relations Board - Board Decisions

Mar 20, 1964

146 N.L.R.B. 443 (N.L.R.B. 1964)

BRIGGS IGA FOODLINER 443
Briggs IGA Foodliner . and Retail Store Employees, Local 655,
affiliated , with Retail Clerks International Association, AFL-
CIO. Case No . 14-CA-3038. March 20, 1964
DECISION AND ORDER
On October 29, 1963, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent'had engaged in and was engaging in certain unfair labor practices
and 'recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended that they be dismissed. Thereafter, the
Respondent, the Charging Party, and the General Counsel filed excep-
tions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Trial Examiner's findings, con-
clusions, and recommendations only to the extent consistent herewith.
1. The Trial Examiner found that the Respondent recognized the
Union's majority status on April 4, 1963, and refused to bargain with
the Union in violation of Section 8(a) (5) and (1) of the Act, "there-
after, and particularly by letters of April 8 and 12." We find merit in
the Respondent's exceptions to, these findings.
On April 3, 1963, all 10 of the Respondent's employees attended a
meeting at which Union Representatives Gunn and Sergeant 1 were
present, and all 10 signed cards. On the following day, Gunn and
Baker, another union representative,. went to the Respondent's
grocery store and asked for 'Briggs,, the Respondent's principal
partner. Briggs was not in the store but, as he was returning, they
met him on the parking lot adjacent to the store. The union rep-
resentatives testified in substance that when they claimed to represent
a majority of the employee, Briggs "didn't seem to be a .bit surprised,"
declined the card check they suggested, and promptly agreed to rec-
' The Trial Examiner 's Decision incorrectly states that the union representatives present
at this meeting were Gunn and Baker, and attributes Gunn's testimony concerning this
meeting to Baker.
146 NLRB No. 52.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ognize the Union and negotiate a contract. As Gunn described it,
Briggs-said, "If you have a majority of the people I have no objec-
tion to setting down and negotiating a contract. . . . If you have
got the people, I will go along with the thing."
Briggs, on the other hand, denied that he granted recognition to
the Union, and testified that, when the union representative told him
that a majority of employees had signed cards, he commented that
"that is awful hard for me to believe . . . I have known these people
for a long time," and said that he could make no promises relative
to negotiating a contract until he checked the Union's claim of ma-
jority with the employees. Briggs also testified that, in the course of
this conversation, Baker said, "If you want an NLRB election to
clarify this, we will arrange it." Carter, one of the Respondent's cus-
tomers, was in the parking lot at the time of this conversation, and
testified that he overheard Briggs say, "I won't do a thing and let you
know nothing until I talk to my employees," and that Briggs then
turned around and walked toward the store.
It is undisputed that, immediately after this parking lot conver-
sations, Briggs entered the store and said to .the employees: "These
guys came out here and said they had a majority of you signed up . . .
I want to verify some of it to see whether he has or not." Briggs then
proceeded to question most of the employees, noting their answers on
a pad. The record shows that some of the employees questioned
acknowledged the fact that they had signed cards the previous even-
ing, but volunteered the information that their signatures were
procured by threats made by Gunn and Sergeant that those who re-
fused to sign could be discharged, and by their representation that
the cards meant nothing until there was an election. It is also undis-
puted that at a meeting of the employees called by Briggs on the
following day, April 5, Briggs said, as employee Harrison testified:
"He didn't care which way we wanted to go. If we want a union
O.K. If we didn't it was O.K. I [Briggs] want everyone, including
myself to get a fair shake and everyone to make up their own mind
and vote likewise."
On April 8, Briggs sent the Union n letter stating that he had a
good-faith doubt that the Union represented an uncoerced majority of
the employees in an appropriate unit, and suggesting that the Union
seek a Board election. On April 12,' the Respondent sent the Union
another letter, reiterating the assertion of a good-faith doubt as to the
Union's majority status; stating that it had filed an employer petition
for an election; s and notifying the Union that wage increases -would
be put into effect after the move to a new store was completed in ac-
3 The Trial Examiner's Decision inadvertently refers to the date of this letter as April 8
3 This petition (Case No 14-RM-351) was dismissed by the Regional Director on
June 13, 1963, because of the pendency of the instant proceeding.
BRIGGS IGA FOODLINER 445
cord with a commitment made to the employees months earlier; that
the respondent would not at that time bargain about these increases;
but that, in the event the Union became the employee representative,
the increases might then become the subject of negotiations. The
Union did not respond to either of these letters. When the Respond-
ent moved into its new store a few weeks later, the wage increases
were.put into effect.
The Trial Examiner found that Briggs, as testified by the union
representatives, did agree, in the parking lot conversation, to rec-
ognize the Union 4 However, he also found that, immediately there-
after, Briggs interrogated the employees about their designation of
the Union, and that this interrogation "was a spontaneous result of
its [the Respondent's] surprise upon learning that a majority of them
had joined."
In our view, the Trial Examiner's finding on the basis of disputed
evidence, that Briggs, in an unscheduled chance meeting on a parking
lot, promptly agreed to recognize the Union, accepting its claim of
majority status, is patently inconsistent with the Trial Examiner's
further finding on the basis of undisputed evidence, that Briggs im-
mediately thereafter proceeded to interrogate his employees for the
undisputed purpose of determining the accuracy of the very claim he
had supposedly just conceded. We note, moreover, that Gunn testi-
fied that, during the parking lot conversation, Briggs said that he
would recognize the Union "If you have a majority." [Emphasis
supplied.] We note further that Carter's testimony that Briggs
said he could tell the union representatives nothing until he talked
with his employees is corroboration of Briggs' testimony by an ap-
parently disinterested witness .5 Finally, we consider it significant
that the Union failed to respond to the Respondent's letters advising
the Union of its good-faith doubt as to the Union's representative
status.'' Based upon the foregoing facts and the entire record, we are
convinced, contrary to the finding of the Trial Examiner, that Briggs
did not recognize the Union during the conversation on the parking
lot.6
d The Trial Examiner discredited Briggs in part on the ground that Briggs denied that
Gunn and Baker were seeking recognition . The record shows, however, that Briggs con-
ceded in his testimony that they were seeking recognition, and denied only that the word
"recognition " was used.
5 We do not agree with the Trial Examiner that no reliance can be placed on this testi-
mony because Carter heard only a fragment of the total conversation.
6 As we are convinced that all the relevant evidence in this case preponderates against
the Trial Examiner 's credibility findings regarding the parking lot conversation ; as the
Trial Examiner has discredited Briggs largely upon an objective analysis of his testimony,
and not exclusively on his demeanor as a witness ; and as we do not agree , as indicated
above, with his disposition of the testimony of Carter ; we are impelled to substitute our
credibility findings for those of the Trial Examiner . Valley Steel Products Co , 111 NLRB
1338 ;Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3).
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, whatever occurred in the parking lot, it is clear that
Briggs, immediately thereafter, was told that the employees signed
cards because of the threats and misrepresentations of the Union.
The Trial Examiner did not pass upon the Respondent's contention
that this information created a good-faith doubt that the Union
represented an uncoerced majority. We find, on the basis of all the
evidence, particularly the facts that there is no dispute as to what the
employees told Briggs about the circumstances of their signing the
cards, that the Respondent urged the Union to seek an election, that
the Respondent petitioned for an election when the Union failed to do
so, and that the Respondent committed no contemporaneous unfair
labor practices and demonstrated no union animus, that the Respond-
ent did have a good-faith doubt, as to the Union's representative
status.7
2. The Trial Examiner found that the Respondent did not violate
Section 8(a) (5) by increasing wage rates after moving into its new
store on May 11, 1963. We find no merit in the General Counsel's
exception to this finding as the record shows that the Respondent
had promised its employees, months before the Union appeared on
the scene, that these increases would be made when the move to the
new store took place, and that the amounts of the increases were gen-
erally in accord with the employees' expectations. We find, therefore,
as did the Trial Examiner, that the increases were not unlawful
because they bore no causal connection with the Union's organizing
campaign.8
3. The Trial Examiner also found, and we agree, that Briggs'
interrogation of his employees immediately following the parking
lot conversation was not violative of Section 8 (a) (1) of the Act.
This questioning was conducted for the purpose of ascertaining
whether the Union represented a majority of the employees, which
purpose was communicated to the employees. Further, as indicated
above, the employees were assured that the Respondent "didn't care
which way [they] wanted to go," and the questioning was conducted
against a background free of any evidence of hostility to the Union,
and absent the commission of any unfair labor practices."
Accordingly, as we have found that the Respondent did not engage
in any of the alleged unfair labor practices, we shall dismiss the
complaint.
[The Board dismissed the complaint.]
7 The Randall Company, Division of Textron , Inc., 133 NLRB 289, Mitchell Concrete
Products Co, Inc., 137 NLRB 504; Joy Silk Hills, Inc, 85 NLRB 1263, enfd. 385 F. 2d
732 (CAD C.).
s Derby Coal & Oil Go, lite , et al , 139 NLRB 1485.
s Blue Flash Empress, Inc., 109 NLRB 591. See also Edward Fields, Inc v. N.L.R.B,
325 F 2d 754 (C.A. 2).
BRIGGS IGA FOODLINER 447
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 18, 1963, the Regional Director for the Fourteenth
Region of the National Labor Relations Board, herein called the Board, issued ,a
complaint on June 12, 1963, on behalf of the General Counsel of the Board against
Briggs IGA Foodliner, Respondent herein, alleging violations of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151,
et seq.), herein called the Act. In its duly filed answer Respondent, while admitting
certain allegations of the complaint denied the commission of any unfair labor
practice. t
Pursuant to notice, a hearing was held- before Trial Examiner Thomas F. Maher
in Fulton, Missouri, on July 30, -1963. All parties were' represented and afforded
full opportunity to be heard, to present oral argument, and to file briefs with me.
Briefs were filed by all parties on September 3, 1963.
Upon consideration of the entire record in'this case, including the briefs sub-
mitted, and upon my observation of each of the witnesses appearing before me and
my study and consideration of the testimony given by each, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF RESPONDENT'S BUSINESS
Respondent is a partnership doing business under the trade name and style of
Briggs IGA Foodliner, the said partnership consisting of Robert A. Briggs, A. E.
Miller, Siegfried Lensing, Katherine Miller, May Miller, and Martha Petersen.,
It is engaged in the retail sale and distribution of meats and groceries at its retail
store and principal place of business at Fulton, Missouri. In the course and conduct
of its business Respondent annually sells and distributes products, the gross value
of which exceeds $500,000 and of which products Respondent annually receives
meat and grocery products in excess of $50,000 transported to its place of busi-
ness in interstate commerce directly from States of the United States other than
the State of Missouri. Upon the foregoing conceded facts Respondent admits and I
conclude and find that it is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees, Local 655, affiliated with Retail Clerks International
Association, AFL-CIO, Charging Party herein, and hereinafter referred to as the
Union, is conceded by all parties to be a labor organization within the meaning of
Section 2(5) of the Act, and I so find and conclude.
III. THE ISSUES
A. The substantiality of evidence that Respondent recognized the Union but re-
fused to bargain with it.
B. The Union's majority status.
C. Respondent's right to interrogate its employees.
IV. THE UNFAIR LABOR PRACTICES
A.' Sequence of events
1. The organization of the employees
Organizational interest among Respondent's employees developed in early 1963
at which time they sought out an active union member, Wyatt, employed in a
nearby Kroger supermarket, and inquired of him concerning the Union. As a
result of this inquiry ,a meeting of 10 of Respondent's 11 employees 2 was held at
iIn the absence of an appropriate motion before me I do not deem it proper to alter
the official caption of this proceeding to conform with the above detailed composition of
the Respondent partnership
2 The remaining employee, Jean Briggs, is the wife of Respondent's principal partner,
Robert Briggs It is well settled that an employee bearing such relationship to manage-
ment is not to be included in the bargaining unit Automotive Parts Company, 125 NLRB
1280. We will not, therefore, concern ourselves further with Dirs. Briggs as a potential
member of the bargaining unit
744-670-65-vol. 146 -30
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wyatt's home on April 3, 1963. Attending the meeting in addition to the 10 em-
ployees and Wyatt, were Union Representative Walter A. Baker and Donald R.
Gunn . During the course of the meeting the purposes and objectives of the Union
were outlined, as were the terms of the collective -bargaining contract in force with
the local Kroger store. Employees were then given cards authorizing the Union
to bargain in their behalf, which cards they signed and returned to the union
representative .3
2. The request to bargain
On the following day, April 4, Baker and Gunn appeared at Respondent's estab-
lishment and conversed with the principal partner , Robert Briggs, in 'the adjacent
parking lot. Baker first reminded Briggs of an earlier conversation wherein he
had agreed that if ever a majority of his employees evidenced a desire to be repre-
sented by the Union he would then bargain with it. After Briggs had indicated
that he recalled the earlier discussion Baker then informed him that a majority of
his employees had signed authorization cards and that he was requesting Briggs'
recognition of the Union as their majority representative . Baker also suggested
that if Briggs had any doubt as to this claim the Union would welcome a check
of the cards by a disinterested third party. After indicating that a card check
would not be necessary Briggs agreed that "if you have a majority of the people
I have no objection to sitting down and negotiating a contract." He then inquired
as to what kind of a contract the employees would want. And when told that it
would undoubtedly be the contract in force at the nearby Kroger store, he asked
the union people if they would leave a copy of that contract with him. The
possibility of changes in this contract and of changes in certain methods of Respond-
ent's operations after moving into new quarters were discussed briefly at this time,
but detailed discussion was deferred , at Briggs' suggestion , until April 15. Baker
then suggested that Briggs sign a recognition agreement , to which Briggs replied,
"I trust you and you trust me." Whereupon, Baker, with Briggs' permission, went
into the store and informed the employees of Briggs' recognition of the Union
and the forthcoming bargaining meeting.
The foregoing findings are a composite of the credited testimony of Baker and
Gunn and is substantially denied or contradicted by Briggs. I do not rely, how-
ever, upon Briggs' contrary version of what transpired, nor upon his specific denials
of statements attributed to him. Having observed him at the hearing I am not
persuaded of the accuracy of his testimony, a judgment best illustrated by his un-
realistic responses to questions asked . Briggs admitted to membership in Local
88 of the Meat Cutters for a year while previously employed by Kroger in St.
Louis; and he was "sure" that his wife, when previously employed as supermarket
checker in St. Louis, was a member of the Union herein. With this in mind
Briggs' description of the encounter in the parking lot is significant . This when
asked by his counsel if he had recognized the Union and if an election had been
agreed to he stated:
I did not. In fact they never mentioned the word recognition. They didn't
ask me to recognize them. They told me they had the cards twice and they
didn't ask me, do you recognize the Union. All they wanted to do is get to-
gether and sit down and talk . they told me the cards, they were probably
interested in getting together and arranging a meeting . [ Emphasis supplied.]
A persistent denial that recognition was not, under such circumstances, being sought
attributes to Briggs a lack of understanding not justified by his background. Briggs'
testimony concerning the copy of the Kroger contract which the union representa-
tives gave him as they requested recognition and bargaining, is similarly lacking in
3 Certain aspects of this meeting and of the signing of the cards are disputed by Re-
spondent. That the meeting was held as described Is not disputed. Respondent contends
in its brief to me that my ruling admitting certain of the authorization cards was in
error. Upon my review of the entire record, including the attending circumstances, I am
satisfied with the propriety of niy iuling and reaffirm it. In any event employees Inch,
Cloud, Harrison. and Gene and Neil Bezler each testified to signing cards, and employee
Harrison testified to being present when employee Palmer admitted his membership to
Briggs. On either basis a majority of the 10 eligible employees have been established as
union members.
The conduct of the meeting, the alleged misunderstanding on the part of some of the
employees attending, and the circumstances under which the employees' signatures were
procured will be considered in detail in section IV, B, infra, entitled "Respondent's
defenses."
.
BRIGGS IGA FOODLINER 449
the degree of understanding expected, at least, of a former union member. Thus,
he testified that Baker "handed me a blue book which I don't consider to be a
contract." He was referring to the printed contract between The Kroger Com-
pany and the Union, bound with a blue cover on which was printed "Outstate
Agreement-Retail Store Employees' Union Local No. 655 and The Kroger Com-
pany-1962-1963," which copy was properly identified and admitted into evidence
by me as General Counsel's Exhibit No. 2. I cannot accept Briggs' appearance of
artlessness in such matters as the true measure of his understanding but deem it
sufficient to warrant my rejection of his testimony, except as it constitutes an
admission against his interest, or an undisputed explanation of a routine operation
or event, or is corroborated by the testimony of credible witnesses .4
In summary I conclude and find that recognition was requested by the union repre-
sentatives in the manner credibly described by them as set forth above.
3. The appropriate bargaining unit
The complaint alleges, the answer admits, and I accordingly find and conclude
that all store employees at Respondent's Fulton, Missouri, retail store, exclusive
of supervisors as defined in the Act,5 constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. The refusal to bargain
Following the meeting with Union Representatives Baker and Gunn on
April 4 Briggs wrote to the Union on April 8 as follows:
This letter is in reply to your visit on Thursday, April 4, 1963, in which you
claimed to represent my store employees and requested the store to bargain
with your union relative to such employees.
You are advised that the store has a sincere and good faith doubt that your
union represents an uncoerced majority of the employees in a. unit appropriate
for collective bargaining. Therefore, the store declines to recognize your union
as the representative of its employees, and suggests that you take this matter to
the National Labor Relations Board for an election under that agency.
The store does not intend to allow your union to disregard the rights of its
employees under the National Labor Relations Act to have a secret election
conducted by the National Labor Relations Board.
Thereafter Respondent's counsel, by letter dated April 8, wrote to the Union,
reiterating Briggs' position as follows:
We represent the above company in connection with your efforts to unionize
its store.
As you were advised during your meeting of April 4, and by Mir. Briggs'
letter of April 8, 1963, the Company has a good faith doubt that your union
represents an uncoerced majority of its employees in a unit appropriate for
collective bargaining.
However, since your union has requested recognition, and since the store
has this date filed an RM petition with the NLRB, the store is of the opinion
that your union is entitled to notification of the following proposed change.
Several months ago notice was given to the employees that they would receive
pay raises effective on the date the store moved into its new building. The
following employees are entitled to raises under this program: Robert E.
Fisher, Albert Salmons, Dick Cloud, Neil Bezler, Gene Bezler, Leo Clevinger,
4 Respondent called Lindell Carter, a customer of longstanding, who testified to over-
hearing the parking lot conversation, and that it ended by Briggs saying, "I won't do a
thing and let you know nothing until I talk to my employees " He stated he heard no
other part of the conversation, did not know what the men were talking about when he
heard the snatch of conversation quoted above, did not hear enough of it to determine if
it were friendly, and actually drove away before the group of three men broke up-"Bob
hind of turned around like he intended to go ahead and I went off in the car." Without
reference to the accuracy of Carter's hearing or recollection it is obvious that such, a
fragment as Respondent offers can hardly be viewed as supporting Briggs' discredited
and coiitradictory version of the account. I therefore do not rely on Carter's attempted
corroboration. I "1 n
5It was stipulated that Assistant Manager Robert Fisher and Head Meatcutter,Albert
Salmons were supervisors within the meaning of the Act and that employee Jean Briggs
was the wife of the principal partner, Robert Briggs.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenneth Irick, Ted Harrison Jerry Palmer, Bob Murphy, Melissa Maupin,
Larry Safire, and Jean Briggs.
We intend to move into the new store in about two weeks, and give you this
notification so that there will be no misunderstanding of our motives in granting
this pay raise. It is our opinion that our employees should not be made to
suffer because of your union's recognition request. If your union has objection
to this wage increase notify us in writing by Wednesday, April 17, 1963..
Since the store has a good faith doubt that your union represents an un-
coerced majority of its employees in a unit appropriate for collective bargaining,
we do not intend to negotiate with you relative to this change; however, if the
union objects to the change, the wage increase will not be put into effect. In
the event your union is successful in representing our employees, the wage issue
should not be considered closed, but may become a part of later negotiations .6
Respondent has not since that date recognized,the Union as the employees' rep-
resentative nor has any further demand been made.
5. Alleged interference, restraint, and coercion
a. Wage increases
As indicated it would in its letter, Respondent moved into the new store shortly
after May 1; and at this time'each of the employees received a substantial wage in-
crease. Because these increases follow so closely Respondent's refusal to accede to
the Union's request for recognition and bargaining, they bear further scrutiny.
Briggs testified without contradiction that wage increases were given to his em-
ployees on the occasion of the move into the new store. His stated reason for this
was that raises had been long overdue, had been promised for some time, and had
been the result of an effort on Respondent's part to provide better serving at its
new location with sharper personnel and modernized equipment. In this regard
a stipulation of the parties establishes that the wage increases were in fact sub-
stantial. Moreover, it was stipulated that prior to May 1, 1963, wage increases had
not been given, with several exceptions, for at least a year previously?
Witnesses called by both General Counsel and Respondent lend support to Briggs'
testimony and to the statement in counsel's letter to the Union that well in advance
of the Union's advent plans had been made to raise employee wages upon moving
into the new store and that the employees were promised these increases as much
as 6 months, previously.8 I accordingly accept so much of Briggs' undenied testi-
mony as-is thus supported and conclude and find that the wage increase has not been
established as having any causal connection with the organizing campaign of the
Union.
b. Employee interrogation
Immediately upon learning that a majority of his employees had joined the Union
Briggs set out to verify the fact by questioning them. Thus he concedes that he
spoke to at least five or six and asked if they had joined the Union and the circum-
stances under which they had done so. Included among these were employees Neil
Bezler, Leo Clevinger, Kenneth Irick, and Ted Harrison, the latter two having also
testified to Briggs' questioning of them.
B. Respondent's defense
In support of its position that it has not unlawfully refused to bargain, Respondent
relies upon two related contentions, namely, that it had never agreed to recognize
the Union, as claimed, and that in any event the Union did not represent an un-
coerced majority of the employees.
B Reference is made in this letter to an RM petition for an election filed by the Respond-
ent This refers to the petition in Case No. 14-RM-251 (formerly 18-RAT-227) on
April 12, 1963, and thereafter on June 13 dismissed by the Regional Director in accord-
ance with Board policy in the matter, for the reason that unfair labor practice charges
against the petitioner, Respondent herein, were outstanding and unresolved. Cf. New York
Shipping Association, etc., 107 NLRB 364, 375.
4 Employees Murphy, Maupin. and Safire had received increases in January 1963, at the
same time employee Irick was reduced in salary. Employee Clevinger received an increase
in September 1962
B The testimony of employees Harrison, Irick, Cloud, and Neil and Gene Bezler
BRIGGS IGA FOODLINER 451
With respect to the first contention the findings set forth above, based upon the
credible testimony before me , establish that Briggs in fact agreed on May 4 to
recognize the Union and also agreed to bargain with it at a meeting set for May 15.
The claim of a coerced majority raises a more substantial issue, for it is claimed
that the Union procured authorization cards under irregular and coercive circum-
stances. Thus Respondent introduced testimony that employee signatures were
solicited with the understanding that they were merely being asked for an election;
that unless they signed the cards they would be fired; and that at the meeting at
which the signatures were procured beer was served. Having heard this testimony,
observing the witnesses as they testified, and carefully studying the record there-
after I reject each of the claims and the testimony supporting them. On the con-
trary, I am persuaded that there is much less evidence of coercion at the employee
meeting than there appears to have been as each employee witness testified on the
subject before me.
Respondent called three employees, Neil and Gene Bezler and Richard Cloud,
and it cross-examined on the subject the two employees called by General Counsel,
Ted Harrison and Kenneth Irick. Each of these is a high school graduate, one a
college student . However , their answers to questions asked them concerning the
purpose of the authorization cards, the meeting, and the Union itself were so
fantastic as to belie their educational status Thus, for example, each testified
he was told at the meeting that unless he signed the card he would be fired; whereas
Union Representative Baker credibly testified that he told the employees that
union membership would protect them in the event they were discharged, and
those not joining would not merit such union help. No employee testifying could
recall Baker 's explanation . Instead they each repeated several incoherent versions
of their understanding that they would be fired unless they signed , albeit no em-
ployee indicated that anyone other than Briggs had the authority to fire him or
could any one of them otherwise explain how their discharge would come about.
Their testimony that the cards were merely to secure an election was equally
garbled.
As a consequence of a review of the testimony covering the subject of being
fired and of obtaining an election, I am persuaded that each witness was deliberately
seeking to disavow his previous association with the Union. Because of this un-
reasoned and unexplained resort to incoherence on the subject, by young men of
apparently normal intelligence and education, rather than to admit to their under-
standing of what was intended by their signed union authorizations, and of what
the Union's purpose was in organizing them, I reject the testimony of the two
Bezlers, Cloud, Harrison, and Irick on this subject and conclude and find that
their admitted signatures on the union authorization cards were a more accurate
gauge of their understanding and intent than was their garbled testimony given in
the presence of their employer.
Nor am I persuaded that the authorization cards were signed as the aftermath
of a beer party. No one disputes that beer was served at the meeting, as were soft
drinks. But unlike Respondent, and with all due respect to the virtues of tem-
perance and sobriety, I am not disposed to view the consumption of beer in mod-
eration by young adults as a milestone on the road to degradation. In the first
place it must be remembered that this was more than a meeting-the employees
were guests in the home of Wyatt. Bounded though I may be to the limits of
the record, I am not so circumscribed that I cannot recognize the rules of hospital-
ity to permit the serving of liquid refreshments to one's guests . Nor am I to con-
clude without further proof that those who accept such hospitality-do so with
gluttonous intent, and that, in this instance, in their addled state they authorized
the Union to represent them. I am not unmindful, of course, that employee
Richard Cloud, age 19 and recently married, testified that he consumed "two
beers" that evening, that be had done so previously "once in a while," that as a
result of the beer he consumed he "was kind of dizzy, I guess," and that this
influenced his signing of the card. Quite apart from the credence I place upon
Cloud's testimony, all that it establishes is that one of Respondent's emnloyees,
by his own admission, indulged beyond his capacity. It would fall far short of
proving that the Union was plying the employees with liquor. - Nor would it estab-
lish the uncomplimentary - conclusion that Respondent's argument seems to suggest,
namely, that all, of his employees were intoxicated. In any event, as I do not
credit Cloud on other matters, I am not disposed to rely upon his self-condemnation
here, seasoned' as it appears to be by the same unreasoned desire to -disavow
the Union that I observed in much of the employee testimony throughout the
hearing. I accordingly conclude and find that nothing in the manner in which
the cards were procured suggests that it was done by undue influence or misrepre-
sentation either in the manner in which their purpose was described . to the. em-
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees or in the social circumstances under which the employees met. For these
reasons I reject Respondent's defenses to its admitted refusal to bargain.
C. Conclusions
1. The refusal to bargain
Based upon the foregoing I would find and conclude that on April 3, 1963, an
uncoerced majority of Respondent's employees in a bargaining unit conceded to be
appropriate designated the Union as their majority representative, that on April 4
a proper demand for recognition and bargaining was made upon Respondent by
representatives of the Union, that at that time Respondent recognized the Union's.
majority status and agreed to bargain with it, and that thereafter, and particularly
by letters of April 8 and 12, Respondent has consistently refused to bargain with
the Union as representative of its employees. It is well established that such
conduct constitutes a clear violation of Section 8(a)(1) and (5) of the Act and
I so conclude and find here.
2. Interference, -restraint, and coercion
Respondent insists that Briggs' admitted interrogation of its employees as to
their union membership was a spontaneous result of its surprise upon learning
that a majority of them had joined. This, it is claimed, is a permissive form of
activity under the Board's Blue Flash 9 analysis of employee interrogation, wherein
it was held that questioning conducted under circumstances which do not carry
an implied threat of reprisal is not unlawful . I find merit in Respondent 's position.
Although I have found that Respondent has unlawfully refused to bargain with
the Union, having learned by questioning its employees that each had signed a
union authorization card, there is no substantial proof of union animus on the part
of Respondent's principal partner, or any other officer or supervisor, at the time
the questioning concededly took place. In view of this condition I would conclude
that the inquiry directed to the employees, limited as it was to their joining of the
Union, does not constitute interference, restraint, or coercion.i°
While it was evident to me that each employee testifying before me consciously
equivocated and hedged to a fault, I cannot, without evidence other than that which
was gleaned by my observation of these witnesses, conclude that they had been
actually interfered with in the exercise of their statutory organizational rights.
Certainly, then, I cannot conclude that someone might have intimidated them. Such
being the state of my findings, to now translate the conduct of these witnesses as
they testified on July 3 into evidence of Briggs' hidden motivation for questioning
them on April 3 would stretch the doctrine of nunc pro tunc to the breaking point.
I will therefore recommend that so much of the complaint as alleges that Respond-
ent's interrogation of employees constitutes a violation of the Act be dismissed..
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action which I find will effectuate the policies of the Act.
[Recommended Order omitted from publication.]
9 Blue Flash Express, Inc., 109 NLRB 591.
10 Mitchell Standard Corporation, 140 NLRB 496.
New York Central Transport Company and Sidney Schwartz.
Case No. 7-CA-3344. March :?0, 19641
SECOND SUPPLEMENTAL DECISION AND ORDER
On April 9, 1963, the Board issued its Supplemental Decision and
Order in this case 1 finding that Respondent had discriminatorily dis-
1141 NLRB 1144.
146 NLRB No. 56.