Chef's Pantry, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1980

247 N.L.R.B. 77 (N.L.R.B. 1980)

CHEF'S PANTRY, INC.
Chef's Pantry, Inc. and Food and Allied Workers
District Union Local 346, United Food and Com-
mercial Workers International Union, AFL-CIO.
Cases 9-CA-13207,' 9-CA-13356, and 9-RC-
12648
January 3, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 21, 1979, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charging
Party filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Chef's Pantry, Inc.,
Columbus, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
IT IS FURTHER ORDERED that the election held on
November 27, 1978, in Case 9-RC-12648 be, and it
hereby is, set aside, and that Case 9-RC-12648 be,
and the same hereby is, remanded to the Regional
Director for Region 9 for the purpose of conducting a
new election pursuant to the following direction.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' The Administrative Law Judge inadvertently lists this case as Case 9-CA-
12307.
Both Respondent and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Productrs Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
247 NLRB No. 18
In view of our agreement with the Administrative Law Judge that
Respondent violated Sec. 8(a)(1) of the Act by granting employees benefits
and adjusting grievances in order to discourage their union activity, and, as
the remedy would not be significantly affected, we find it unnecessary to reach
the issue of whether this conduct also violated Sec. 8(aX3) of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise and grant benefits or
solicit the presentation of grievances and adjust
such grievances to discourage you in the designa-
tion of a representative for the purposes of
collective bargaining.
WE WILL NOT threaten you with the imposi-
tion of more onerous working conditions to
discourage you in the designation of a representa-
tive for the purposes of collective bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
CHEF'S PANTRY, INC.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: On
September 27, 1978,' Food and Allied Workers District
Union Local 346, United Food and Commercial Workers
International Union, AFL-CIO (herein called the Union),2
filed a petition in Case 9-RC-12648 for an election in a unit
of employees of Chef's Pantry, Inc. (herein called Respon-
dent). On October 26 the Regional Director approved a
Stipulation for Certification Upon Consent Election execut-
ed by the parties.3 The Union filed a charge in Case 9-CA-
12307 on November 21, alleging violations of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended,
(herein called the Act). On November 27 the election was
conducted. The Union lost.' The Union filed timely objec-
tions to conduct affecting the results of the election on
November 30.
' All dates herein are in 1978 unless otherwise specified.
'The Charging Party's name, formerly Food and Allied Workers District
Union Local 346, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, has been changed in recognition of the June 7,
1979, merger between the Amalgamated Meatcutters and Butcher Workmen
of North America and the Retail Clerks International Union.
The appropriate bargaining unit set forth in the stipulation is:
All production and maintenance employees including, freezer workers,
shuttle truck drivers and maintenance mechanics but excluding route
salesmen, office clericals, janitors, freezer working supervisor, guards and
supervisors as defined in the Act.
'The official tally of ballots shows that of 12 eligible voters, 5 voted for the
Union, and 7 voted against it.
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union also filed an amended charge in Case 9-CA-
12307 on November 30, alleging violations of Section
8(a)(I), (3), and (5), and a complaint issued on January 12,
1979, alleging violations of Sections 8(a)(1) and (3).
The charge in Case 9-CA-13356 was filed on January 12,
1979, and served on Respondent on January 15, 1979. This
charge alleges violations of Section 8(a)(1) and (5). The same
day, January 15, 1979, the Regional Director approved the
Union's withdrawal of the 8(a)(5) allegation in Case 9-CA-
13207. On February 2, 1979, the Regional Director ap-
proved the withdrawal of several of the Union's objections to
conduct of the election, including Objection 11, which reads:
The Employer unlawfully prevented the holding of a
fair election and unlawfully prevented the employees
from exercising their right of a free choice of a
collective bargaining representative by the foregoing
acts and conduct and by other unspecified acts and
conduct.
On February 2, 1979, the Regional Director also issued
his Report on Objections and consolidated Cases 9-RC-
12648 and 9-CA-13207 for hearing, directing a hearing on
the following objections, as set forth in substance by the
Regional Director:
1. The Employer, in periodic meetings with employ-
ees, solicited grievances which it then remedied.
2. The Employer threatened employees with the
discontinuation of health and welfare benefits if the
Petitioner won the election.
3. The Employer impliedly promised raises if the
Petitioner lost the election.
5. The Employer unilaterally instituted a new educa-
tional benefits program and discriminatorily denied the
benefits of the new program to a known leader of the
Petitioner's campaign.
6. The Employer unilaterally revised its long-stand-
ing policy prohibiting beards, and two weeks before the
election permitted employees to grow beards.
8. The Employer, during the week of November 20,
1978, asked the employees if they had any complaints
which it could remedy.
Finally, on February 15, 1979, an amended consolidated
complaint issued in Cases 9-CA-13207 and 9-CA-13356,
alleging violations of Section 8(a)(1), (3), and (5) consisting
of numerous implied promises and threats, unlawful grants
of new or improved benefits, liberalization of existing
employee policies, and a refusal to recognize or bargain with
the Union.'
This consolidated proceeding was heard before me at
Columbus, Ohio, on June 20 and 21, 1979.
Upon the entire record, including my observation of the
witnesses, and after consideration of the post-hearing briefs
received, I make the following:
Respondent's contention that the withdrawal of Objection II precludes
consideration of the refusal-to-bargain allegation in the amended complaint,
or any conduct alleged in the remaining objections which relates to it, is
rejected. The pleadings set forth the allegations therein with sufficient
particularity to fully apprise Respondent of the matters to be litigated, and the
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, an Ohio corporation, is engaged in the
wholesale distribution of food and beverage products from
its Columbus, Ohio, facility. During the 12 months preced-
ing the issuance of the complaint, a representative period,
Respondent purchased and received goods and materials
valued in excess of $50,000 which were shipped to its
Columbus, Ohio, facility directly from points outside the
State of Ohio. At all times material herein, Respondent has
been, and Respondent is, an employer within the meaning of
Section 2(2) of the Act engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE CONDUCT IN ISSUE
A. Appropriate Unit, Union Organizing, Majority Status,
and Request for Recognition
The complaint alleges, Respondent admits, and I find that
the bargaining unit stipulated to in Case 9-RC-12648'
constitutes a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
Harold McKeever, union business agent, conducted an
organizing campaign among Respondent's employees and, at
a union meeting on September 23, secured signed authoriza-
tion cards from 9 employees in the 12-man unit. The cards
are unambiguous designations of the Union as the signers'
exclusive collective-bargaining representative. Respondent
contends that the cards are invalid because McKeever
obtained the signatures by improper inducements consisting
of an exemption from initiation fees and a promise of legal
counsel. Respondent also alludes to the fact that the signers
did not enter any amount on the cards in the space
denominated "dues."
According to McKeever, he told the employees that there
was no initiation fee for new people who organize them-
selves, that those people who were employed at the time of
the election would pay no initiation fee, and that if
employees needed legal counsel in case of a discharge or
similar occurrence, the Union would provide it. Employee
Michael Slatzer relates that he understood McKeever to say
that "we would be exempt from [initiation fees] because we
were the original petitioners. I don't know what you call it,
whatever we were," and that "we would pay no dues till we
had a contract with the company." Marshall Farmer says
that McKeever told those present at the September 23
meeting that "there was no initiation fees, for us," and they
would not have to pay dues until "the union was put in."
General Counsel opened no "new areas" at hearing which were not covered
by the amended consolidated complaint, the extant charges upon which it was
based (including the 8(a)(5) charge in Case 9-CA-13356), and the objections
to be heard. Cf. Jobbers'Supply Inc., 236 NLRB 112, Fn. 1 (1978).
' See fn. 3, supra.
78
CHEFS PANTRY, INC.
Matthew Allen recalls that McKeever said there would be
no initiation fees and told those present what the monthly
dues were. Elmo Kimbler's answer, in response to the
question, "What if anything was said about initiation fees
and dues; can you recall anything?" was: "No there wasn't
no initiation fee because we all signed union cards at the
same time."
The foregoing does not establish that McKeever condi-
tioned legal counsel or a waiver of union dues on signing an
authorization card.
Turning to the waiver of initiation fees, the sole issue is
whether or not the waiver was limited to those employees
who signed cards prior to the election.' I find that the
testimony of the witnesses on the matter does not warrant an
inference that it was.'
I conclude that the nine signed cards are valid and that
the Union represented a majority in the unit when it
requested recognition on September 24.
On September 24 McKeever telephoned Mel Stauffer,
Respondent's general counsel, and told him that the Union
represented a majority of the employees in a bargaining unit
including warehouse, freezer, and load employees and
shuttle truck drivers and mechanics, but would exclude
driver-salesmen, office personnel, and supervisors.' The
following day, September 25, after consulting with Respon-
dent, Stauffer called McKeever back and told him that he
would have to file a petition for election, because Respon-
dent would not go ahead with a card check and recognize
the Union as the bargaining agent. The Union then filed the
petition in Case 9-RC-12648.
Respondent argues that although McKeever made a
request for recognition, he did not make an express demand
for bargaining, and therefore Respondent did not refuse to
bargain collectively. This argument is without merit. A
request for recognition has long been considered sufficient,'0
and it is plain, from Stauffer's statement that Respondent
would not then recognize the Union as "the bargaining
agent," that Respondent was well aware that the request for
recognition was a prelude to bargaining and that it was
precisely the status of the Union as bargaining agent that it
was rejecting. Moreover, Stauffer had previously negotiated
with this Union on behalf of another employer and can
hardly be said to have been naive and unaware that the
Union was seeking recognition and bargaining on behalf of
Respondent's employees enumerated by McKeever.
I regard the entry of "Not applicable" by the Union in
space 7a" of the petition filed September 27 as irrelevant to
the questions of whether or not a request for recognition was
made or suffices.
'N.LR.B. v. Savair Manufacturing Ca. 414 U.S. 270 (1973).
' Respondent's reference to a lack of evidence of waiver for all employees
after the election misses the point. Where there is no prima facie showing of
limited waiver, there is no requirement on General Counsel to affirmatively
prove universal waiver, before or after the election.
' This is consistent with the unit description ultimately agreed on for
election purposes and found appropriate herein.
" See, e.g., Burton-Dixie Corporation. 103 NLRB 880 (1953), enfd. 210 F.2d
199 (10th Cir. 1954).
" Space 7a requests the entry of the date whereon "Request for recognition
as Bargaining Representative" was made.
" Federal Stainless Sink Div. of Unarco Industries. Inc.. 197 NLRB 489, 491
(1972).
" Ackley, conceded by Columbus Distribution Center Manager Donald T.
Craine to be plant supervisor, did not testify. Allen recalled that the refusal of
Respondent's secondary contention that Stauffer is not a
representative of Respondent is belied by its admission that
Stauffer is Respondent's general counsel, a patently repre-
sentative capacity. Stauffer's actions of receiving the request
without protest, consulting with Respondent on it, and
replying thereto on behalf of Respondent confirm this
representative status.
Summarizing, the Union secured valid authorization
cards from a majority of the employees in the appropriate
unit on September 27, requested recognition as the unit
employees' bargaining agent on September 24, and was
rebuffed by Respondent on September 25 with the sugges-
tion that the Union file an election petition.
B. Meetings and Other Matters
Most of the conduct complained of by the General
Counsel occurred in meetings Respondent conducted with
employees in August, before the union organization effort,
and on October 3, 11, and 26 and November 16, 21, and 25,
during the period between the filing of the petition and the
election.
In reconstructing the facts I have noted comparative
demeanor of the witnesses, obvious failures of recall,
inconsistencies in individual and collective testimony, logical
probability in the context of surrounding events, lack of
corroboration or controversion in some instances, and the
fact that all employees testifying are still working for
Respondent and thus not likely to deliberately fabricate false
testimony contrary to that of their superiors, who still
control their working conditions."
When Matthew Allen was first hired, in July 1976, he was
told by Supervisor Bill Ackley that he could not grow a
beard. '
During the August meeting called by Craine to quell
"bickering" among employees, Craine stated that employees
could not grow beards.' It appears that this ban was based
on Craine's personal aversion to such facial adornment. In
November" Craine gave Allen permission to grow a beard,
which he did.
Whether or not the no-beard policy was formally promul-
gated by Respondent, which I doubt, the opposition of
Craine, the highest operating official at Columbus, had the
same effect as a written rule of the shop which employees
must abide by. That the basis of the prohibition was Craine's
esthetic judgment does not diminish its effect. At first blush,
it would seem that the Act is not concerned with such
hirsute matters, but it is shown by the evidence that Craine
succumbed to Allen's entreaties during Respondent's pree-
permission to grow a beard was made by Craine or Ackley. In view of
Marshall Farmer's recollection that he heard Ackley make the refusal, I
conclude it was Ackley who refused permission on this occasion.
" This finding is based on the composite testimony of Farmer, Michael
Slatzer, and Allen. Allen's recollection of what was said at which meeting is
somewhat fuzzy, whereas Farmer and Slatzer impressed me as possessing
better recollection. Craine's assertion that he recalls no discussion of beards
with employees other than with Allen in September may well be true, but his
failure of recollection, if indeed it be, does not controvert the testimony of the
three employees. To the extent Craine's lack of memory may be construed as a
denial, it is discredited.
" Craine says late September. Allen says 2 weeks before the election.
Farmer says Allen grew the beard in mid-November. I credit the mutually
corroborative versions of Farmer and Allen.
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lection campaign designed to dissuade employees from
voting for the Union. In these circumstances, and in the
absence of any good explanation for Craine's sudden
abandonment of his adamant stance contra beards, I
conclude that the General Counsel has erected an unrebut-
ted prima facie case that Craine departed from the ban in the
case of Allen in order to help create a kindly feeling in Allen
toward Respondent which might supplant or diminish any
prounion tendencies he might have. Whether or not permis-
sion to grow a beard is a benefit is, I suppose, debatable. It
suffices that Allen viewed it so, as evidenced by his pursuit
of that permission, and it is plain that Craine's deviation
from the announced policy represented a change, at least in
degree of enforcement, of the no-beards rule.
1. The August meeting
Most of the August meeting was taken up by employees
airing their complaints, with Craine's encouragement, 6
about their pay, poor freezer clothing, equipment breakdown
and maintenance, the conveyor belt system, etc. Craine
concedes that he opined that the problems were internal and
did not require a third party to solve them and that he
reminded employees they had unions in the branch before,
and employees who had initiated the union had left of their
own volition, and whether or not they liked working for the
union he did not know. Farmer recalls that Craine said 2
dockworkers quit several years ago because they did not like
working with a union. Slatzer's version is that Craine stated
that if employees were thinking about going union, 2 union
dockworkers were no longer with Respondent. The record is
barren of any evidence indicating why Craine brought up
unions at the August meeting, prior to any activity on behalf
of the Charging Party.
I believe that Craine's version of his comments about the
Union and the employees who left is the more accurate.
Slatzer's version is merely an incomplete summary. Farmer's
version corroborates Craine to the extent that Craine said
the employees had quit. I conclude that Slatzer and Farmer
understandably recall only portions of Craine's statements
because there is no evidence that a union or urtions were of
any particular pressing interest to them in August, and the
major thrust of the meeting was an airing of employee
complaints as requested by Craine. I do not credit Allen's
claim that Craine told them not to get a union up. I conclude
Allen was expressing his perception of what Craine meant,
rather than what he said.
The General Counsel has not shown that Craine made any
unlawful threats at the August meeting.
"I credit Farmer that Craine asked the employees to state their problems.
"Slatzer or Von Ville, according to Smith. Farmer recalls Slatzer raising
the question at a meeting.
Foster did not testify.
'This account is a synthesis of the credible testimony of all witnesses
testifying about the meeting.
"o Whether he said "problems" or "complaints" or "feelings" is of no
consequence. He was obviously asking them to report their dissatisfactions
which gave rise to union organization.
2. Educational benefits
Slatzer credibly testified, and Craine did not deny, that he
asked Craine about Respondent's educational benefits policy
in mid-August. Craine told him that the Company would
not pay for anything other than job-related courses and that
Slatzer had to supply his own books. The issue of education-
al benefits was again raised at the October 3 meeting by
Slatzer," who asked Director of Planning and Personnel
Richard Smith whether Respondent had an educational
reimbursement policy. Smith said it did, and Donald
Whitmer asked to see it. Smith promised to get him a copy
and later brought one to the October 11 meeting and
explained it to those employees present.
The educational reimbursement policy, dated March 15,
1978, sets forth, inter alia:
A. As a matter of policy, individuals will be reimbursed
only for those courses/credit hours that directly relate
to the objective or job, mutually agreed upon by the
subordinate and his/her manager.
Bill Foster, corporate manager of training and development,
came to Columbus in early October from Respondent's
Sandusky, Ohio, headquarters and met with several employ-
ees, including Slatzer. According to Slatzer, who is uncon-
tradicted and credible on the topic," Foster told him that
since the Company had little response to its educational
program, it would now pay all expenses and would not
require the education to be job related until after the first 2
years of college, after which it need only be job related to the
extent that the final subject he majored in be job related.
Foster's explanation to Slatzer, upon which Slatzer could
reasonably rely in view of Foster's relatively high position in
the corporate structure and the certainty with which Foster
gave his explanation, is plainly at odds with both the written
policy and the prior statement of Craine. Foster's version is
much more lenient and gives employees greater educational
benefits than those previously enjoyed.
3. The October 3 meeting
The October 3 meeting was conducted by Don Welschen-
bach (assistant manager of branch distribution centers), Jack
Jenks (manager of distribution centers), and Smith.'9 Wel-
schenbach opened the meeting by informing employees that
he could not promise or guarantee employees anything, and,
since the employees had become involved with a union, he
wanted to know what their problems ° were. He further
stated that he felt the employees did not need a union, but
Respondent would cooperate in a fair election and negotiate
a contract if the Union got in. The employees complained
about their wages, unsafe conveyors, freezer uniforms,2' and
equipment in need of repair.
" I do not credit Smith's claim that freezer uniforms were not mentioned.
Slatzer was more believable on the subject. Further, the employees had
complained of them in August, they had not yet been replaced, it is agreed
that they needed replacing, and it is not likely employees would omit to bring
up a matter of such long concern. Moreover, Whitmer's remark to Smith,
when Smith later personally observed the poor condition of freezer coats,
80
CHEF'S PANTRY, INC.
After the meeting Smith went to the freezer and dock area
to examine conditions firsthand. He found that the freezer
coats needed replacement and that the conveyor needed
repair.
The following day, October 4, Smith told Craine about the
need for new freezer clothing and conveyor repairs. Within a
few days the conveyor was bolted to the floor, and sharp
ends were removed from it. Two new freezer uniforms were
purchased on October 10. The last prior purchases of freezer
uniforms had been made on April 20, 1977 (one uniform),
and September 21, 1977 (one uniform).
The last purchase of freezer clothing was more than a year
prior to October. When the employees complained of their
condition in August, Respondent neither bought new ones
nor, so far as the record shows, investigated the condition of
the ones being used. In sharp contrast, after the employees
voiced their complaint on October 3 in response to Respon-
dent's request for their complaints, Smith immediately
checked the uniforms, on October 3, and told Craine on
October 4 of their condition, and new ones were purchased
on October 10. This prompt response to solicited complaints
which had been ignored 2 months prior suggests an effort by
Respondent to ingratiate itself with its employees in the
midst of the preelection campaign. I find that the purchase
of new uniforms was a conferral of a remedy in response to a
grievance voiced, and a benefit affecting working conditions.
4. The October 11 meeting
The October 11 meeting was devoted to a comparison of
the wage progressions and insurance and other benefits at
Columbus and Sandusky. Respondent's Sandusky employees
are represented by a union, and there is a collective-
bargaining agreement at that location.
During an explanation of a comparative wage progression
chart, Jack Jenks commented that the comparison showed a
narrowing of the gap between Columbus and Sandusky
wages, from $1.25 to 75 cents, over a 3 year period and that
it would seem that the Columbus employees should be
happy with this 50-cent gain.2
5. The October 26 meeting
The October 26 meeting commenced with a continuing
comparison of Columbus and Sandusky health insurance
benefits by Personnel Manager Saferstein.
Farmer testified that employee John Yoder asked Smith,
who was at the meeting, if health care benefits continued
during negotiations, and Smith answered that holidays, sick
pay, and health care would stop when the Union was voted
"Yeah, you see what it is that we have to work with," fairly implies that the
matter had been earlier brought to Smith's attention.
' I do not believe Smith's assertion that his visit to the work area was
routine and something he customarily does on visiting a branch. He was
unable to recall the last time he had done so at Columbus, and his repair to
the work area immediately after hearing employees' complaints about
conditions in that area strongly suggests that those complaints were the reason
for his prompt inspection.
" Respondent furnished unambiguous invoices for the 1977 purchases, and
any testimony that new freezer uniforms were not purchased in 1977 is
discredited.
' The comparison chart does show a 50-cent decrease in the differential
since 1976, and I credit the mutually corroborative testimony of Jenks and
in, with the exception that health care would continue until
the end of the election month, because the employees would
have voted out everything they worked for. Kimbler testified
that Yoder's question received an answer from Smith that "if
we had a contract voted in," there would be no more
insurance. Kimbler further avers that Smith held up a blank
sheet of paper and said it would start all over again like that,
with no benefits whatsoever. Matthew Allen remembers
that, at a meeting where John Yoder said something about
health benefits, Smith said that if the Union got in, there
would be no health benefits between the time the Union
came in and the time the contract was signed. Slatzer recalls
that Saferstein said there would be no insurance coverage at
the end of the election month if the Union won and that
Saferstein held up a blank sheet of paper while saying that
this was what employees started with. Slatzer further states
that Saferstein gave an example of a Sandusky employee who
was caught without insurance during negotiations, went to
the hospital, and had to pay his bill out of pocket.
Saferstein testified that it was his recollection that Al
Nicolini, not Yoder, asked, at the October 26 meeting, what
would happen to health insurance benefits if there was a
work stoppage. Saferstein claims he replied that Respondent
only paid monthly premiums for employees working that
month, and neither premiums nor claims would be paid for
those not working for a month. He also related that
premiums were not paid during a work stoppage at San-
dusky because the striking employees were not actively
working.
Smith denies that he, or other management people, said
that benefits or wages would be cut off if a union was voted
in. He testified that it was during the November 16 meeting
that Saferstein stated there was no provision for the
Company paying for health and welfare benefits while
Sandusky employees were striking, and the Company did
not pay for them.
Smith, who was inclined to expand beyond answers to
questions posed, was vague when queried on cross-examina-
tion regarding an employee question and his answer on the
subject of what would happen to benefits if a union was
voted in."
The meetings of October 26 and November 16 were
somewhat different in general content. The October 26
meeting was primarily concerned with a comparison of
benefits, whereas the November 16 meeting was largely
devoted to a discussion of wages and the possibilities and
content of negotiations with a union. Given these general
contexts as reference points and the credible testimony of
Saferstein, who impressed me as a careful and conscientious
witness on those matters about which he was queried,
Smith with respect to Jcnks' comment. I find their version reasonable and
persuasive, and it appeared to me that Slatzer, who testified that Jenks asked,
"How would 50q do?" in response to a complaint from Farmer about low pay,
was uncertain and hesitant when he so testified. Farmer made no such claim
and did not attend this second employee meeting. I place no reliance on
Kimbler's vague assertion that Jenks said "something" about what would
employees do if they had a raise in their checks. I am convinced that Jenks did
not say this at the October II meeting, and there is no allegation that he said
anything similar at any other time.
" Neither Craine nor Welschenbach, who were present at both the October
26 and the November 16 meetings, nor Ackley nor Jenks, who were present at
the November 16 meeting, testified with regard to the employee question or
Smith's alleged answer, nor did Yoder.
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
logically consistent and probable findings of fact are possi-
ble. This is not to say that other conclusions are not
arguable, but the findings I hereinafter make on these
meetings are, in my view, those best supported by the
credible evidence before me.
I find that Saferstein's version of what he said in response
to a question by an employee at the October 26 meeting is
reliable and credible. I therefore credit Slatzer that it was
Saferstein who spoke on insurance on October 26, but I do
not credit Slatzer that Saferstein said there would be no
insurance coverage if the Union won" or that Saferstein held
up a blank paper with the comment that this was what
employees started with." Slatzer's recollection of Saferstein's
example of what happened to a Sandusky employee, not
alluded to by Saferstein in his testimony, is credited with the
exception that I am convinced Saferstein mentioned it as
something that happened because the employee was on
strike, not merely because negotiations were under way, in
response to Yoder's question."
I do not credit Smith that Saferstein gave his example on
November 16.
Saferstein and Slatzer did not speak to any comments by
Smith on Yoder's question, and Smith was vague on the
topic. Yoder's question related to health care benefits during
a work stoppage, and it reasonably follows that any remarks
by Smith should relate to that question. However, Farmer
and Allen agree that Smith said benefits would be suspended
when the Union got in, and Kimbler says Smith conditioned
the benefit cessation on having "a contract voted in."
Throughout the proceeding it was apparent to me that the
employee witnesses had confused recollections of the dates,
sequence, and content of the preelection meetings. It further
appeared to me that in many instances they were testifying
to their conclusions as to what speakers meant, rather than
what they said. It is no reflection on the employees' honesty
to conclude, as I do, that the weight to be given their
testimony is diminished by their recollective failures and
conclusory assertions. A prime example is Farmer's testimo-
ny that Smith said benefits would cease because employees
would have voted out everything they worked for. This
forcefully struck me as Farmer's characterization, rather
than Smith's statement, when Farmer uttered it, and I find
that Smith did not say this.
In addition to the questionable quality of the employees'
somewhat conflicting testimony, it does not seem likely to
me that Smith would make, in the midst of a carefully
' I find it was Yoder, not Nicolini, because the employee witnesses had a
closer familarity with Columbus employees than did Saferstein, who is
quartered in Sandusky.
" I am persuaded that this was Slatzer's misconception of what Saferstein
actually said.
" I believe that Slatzer was confused and that his mention of a blank paper
referred to Smith's act of holding up a blank sheet at the November 16
meeting.
", Farmer's testimony that Saferstein said Sandusky strikers lost out on their
health claims supports this conclusion.
' Respondent's objection to the receipt of evidence on the Purcell affair is
hereby overruled, and its motion to strike is denied. The incident is cognizable
under the Union's Objection I, which is set forth by the Regional Director in
his report, in substance, as follows:
1. The Employer, in periodic meetings with employees, solicited
grievances which it then remedied.
The Regional Director, in setting Objection I for hearing before me, did not
orchestrated election campaign, an overt threat to suspend
health care benefits if the Union got in.
I am convinced, considering the demeanor of the wit-
nesses and the confused testimony in its entirety, that
Saferstein's statements on health care benefits on October 26
and Smith's statements on November 16 with regard to
negotiations became intertwined in the memories of Farmer,
Allen, and Kimbler, giving rise to ominous conclusions
which they then quite naturally recited as their recollections
of statements made by Smith. In the circumstances, I cannot
in good conscience accept their recitations as accurate
reflections of statements by Smith. I therefore find that the
General Counsel has not shown by a preponderance of the
credible evidence that Smith threatened that health care
benefits would cease if the Union got in or "a contract [was]
voted in."
Still at the October 26 meeting, Farmer complained that
new employee Patrick Purcell, hired on October 23, had
been hired in at a higher wage rate than those of employees
already working. Saferstein checked and found that Craine
had hired Purcell at an unreasonably high rate. He reported
to Welschenbach that Craine had made a mistake and that
review of the wage rate was necessary to place it at the
proper entry level. As a result, Purcell's wage rate was
reduced.' °
6. The November 16 meeting
Saferstein told employees that his wage survey of other
food-processing companies with a union showed wages
ranging from $4.33 to $5.56 or $5.57 an hour and that
Columbus wages were equal to or higher than union wages.
(Farmer's wage was $5.60 at the time.) There is no showing
that Saferstein's data were incorrect. Saferstein further
stated that there was no great disparity between the wages at
different union plants, and that it might be that unions tried
to maintain similar wages in similar industries in a geo-
graphical labor market. I consider this comment to be
speculation easily recognized as such by the employees.
Smith commented that Respondent could only pay what it
was willing and able to. At this point Craine interjected that
a Midwest company had negotiated a union contract and
had to close down because it could not afford the wages.
Smith then assured the employees that Respondent was not
threatening to close the plant if the Union got in and would
specifically mention this incident, but his order directing hearing does not
purport to forbid the hearing of any evidence fairly encompassed by Objection
I.
Although the Purcell incident is properly reviewable under Objection 1, it
may not be found to be an unfair labor practice in this proceeding. General
Counsel stated that the Purcell incident was not alleged in the complaint and
declined to amend it to so allege. I agree with General Counsel that the matter
is not alleged in the complaint, but it is alleged in the charge and amended
charge in Case 9-CA-13207. Since the General Counsel has exercised his
statutory authority to decline to issue a complaint on the Purcell issue, which
was clearly before him, and maintained that posture at hearing, it is not before
me as an unfair labor practice.
For the same reasons, it was an error to reject the proffer of evidence by the
Union purporting to show that Respondent posted a job in response to
employee complaints. The Union's offer of proof convinces me, however, that
the receipt of this evidence would not materially affect my decision or remedy
in the case, and it is unnecessary to reopen the hearing to take the proffered
testimony.
82
CHEF'S PANTRY, INC.
bargain and contract with the Union if the employees
wanted one."' Smith continued that although some people
thought wages, benefits, and working conditions remained
the same when a union was voted in and were then
negotiated upward, this was not necessarily so and there are
no guarantees that it is so. He further explained, while
displaying a blank sheet of paper, that bargaining starts with
a blank sheet of paper, and everything has to be negotiated
from that point." Smith explained that there are trade-offs in
negotiations and no guarantees that wages, hours, and
working conditions agreed on would be the same as those
that previously existed. I credit Smith that he told employees
that Respondent would bargain and contract with the Union
if they selected it.
I do not agree with the Charging Party that Smith's
explanation of negotiations, accompanied by the display of a
blank sheet of paper as a starting point for negotiations,
violated the Act. Accepting the Charging Party's contention
that the display of the paper was equivalent to a "a
bargaining from scratch" statement, and noting that Smith
made no threats other than those the Charging Party seeks
to infer, I find that "the clearly articulated thrust of the
[paper display and accompanying] statement is that the mere
designation of a union will not automatically secure in-
creases in wages and benefits, and that all such items are
subject to bargaining,"" and no violation here exists. Nor do
I agree that Respondent's wage comparisons or explanations
of its wage structure and other existing benefits contain any
element of unlawful threat or promise.
7. The November 21 meeting
Welschenbach credibly testified that the November 21
meeting was a summary of previous meetings to make sure
everyone was clear on what had been said and to give them
opportunity to ask more questions, if they had them.
8. The November 25 meeting
No relevant evidence was adduced with regard to this
meeting except testimony by Slatzer that Don Craine stated
that if the Union were voted in the Company would have to
be more strict, and employees would no longer have warmup
" These comments of Saferstein, Smith. and Craine are derived from a
composite of the credible portions of testimony of the three and Slatzer and
Farmer.
" Farmer corroborates this.
"Coach and Equipment Sales Corp., 228 NLRB 440, 441 (1977).
'His testimony so reflecting reads in pertinent part:
Q. Did you give a statement to Kenneth J. Oliver, a Regional
Attorney, or a Field Attorney, for the National Labor Relations Board?
A. Yes.
Q. Then you said, quote "I never instructed Ackley to order freezer
coats" close quote. Did you say that also?
A. Yes.
Q. As a matter of fact, you did instruct Ackley to order freezer coats.
didn't you?
A. If I remember right, I ordered those freezer coats.
Q. You ordered them probably, you said?
A. Yes.
Q. You didn't say it in your statement to the NLRB that you ordered
freezer coats, did you? [Objection sustained.]
breaks. The existing policy is that in addition to 15-minute
breaks before and after lunch, employees are permitted to
come out of the freezer to warm up as necessary.
Craine denies Slatzer's accusation and testifies that Mat-
thew Allen approached him on the dock, stated that Craine
had said employees would not get warmup times, and asked
if Craine meant employees would get no warmup times.
According to Craine, he replied, "I know nothing of that,"
and that ended the conversation. Allen does not mention this
incident.
I have placed little weight on Craine's testimony regarding
his beard statements, and he was evasive and incredible
when he testified on cross-examination about the freezer
coats." Although I have not always credited Slatzer's
recollections in this Decision, I do credit his recitation of
Craine's statement on warmup time and specifically do not
credit Craine's denial.
IV. SUMMARY
One of the purposes for the preelection meetings was the
solicitation of employee grievances, and Respondent
promptly purchased new freezer uniforms, repaired convey-
ors, and lowered the wage of Purcell in response to
complaints so solicited. This action "undoubtedly conveyed
to the employees the message that Respondent, in its effort
to defeat the Union, was now willing to look much more
favorably on any request they might make."" This message
was further confirmed by Respondent's relaxation of its no-
beard rule, on which it had been inflexible prior to the union
campaign, and its increase in employee educational benefits
over those enumerated in its written policy and previous
statements to employees. I therefore find that Respondent
impliedly promised benefits at the meetings in an effort to
discourage the Union's support, in violation of Section
8(a)(1) of the Act. I further find that by granting all the
above benefits, except for the Purcell wage cut," in order to
discourage union activity, Respondent violated Section
8 (a)(3) and (1) of the Act.
Objections 1, 5, 6, and 8 are supported by this conduct
found to be unfair labor practices, as well as the Purcell
wage cut, which is also a remedy of a grievance voiced at a
meeting, and should be sustained. Objections 2 and 3 are not
supported by the evidence and should be overruled. The
Q. (By Mr. Sigall) what you did say, Mr. Craine, is quote "I never
instructed Ackley to order freezer coats" close quote. You do admit that,
don't you?
A. Yes.
Q. You also admit that it may have been Mr. Ackley who ordered the
freezer coats in this case?
A. Yes.
Q. Pursuant to your instructions, right?
A. It was probably brought up after Mr. Smith showed me the coats,
on October 4th, and he just ordered the coats. That is his responsibility to
see that they have freezer uniforms.
Q. When you say it wa probably brought up, what you mean is
you-
A. I probably showed Bill Ackley the coats.
Q. You did?
A. Yes.
" The Stride Rite Corporation, 228 NLRB 224, 225 (1977).
" I have not found the Purcell wage cut to be an unfair labor practice for
the reasons set forth in fn. 30, above.
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objectionable conduct found herein disrupted the laboratory
conditions that the Board has long held necessary to assure a
fair election, tended to inhibit the employees in the exercise
of their right to freely choose or reject union representation,
and requires that the election in Case 9-RC-12648 be set
aside.
The threat by Respondent's Distribution Manager Craine
that the Respondent would have to be more strict and would
no longer give freezer employees warmup breaks if the
Union were voted in violated Section 8(a)(1) of the Act.
I find no unfair labor practices or instances of objection-
able conduct other than those set forth in this summary.
* I am persuaded that the effect of the unfair labor practices
found herein may be easily dissipated by the Board's
standard remedies. I am further persuaded that a new
election, after these remedies are invoked, will be likely to
fairly reflect the true desires of the employees, and I do not
believe that the violations found are sufficiently severe to
warrant a finding of a violation of Section 8(a)(5) of the Act
with an accompanying bargaining order."
CONCLUSIONS OF LAW
I. Respondent Chef's Pantry, Inc. is an employer
engaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Food and Allied Workers District Union Local 346,
United Food and Commercial Workers International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees, including
freezer workers, shuttle truck drivers, and maintenance
mechanics, but excluding route salesmen, office clericals,
janitor, freezer working supervisor, guards, and supervisors
as defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union represented a majority of the employees in
the above-described unit on September 24, 1978, when it
requested recognition from Respondent.
5. Respondent, on September 25, 1978, refused to recog-
nize the Union as the exclusive collective-bargaining repre-
sentative of its employees in the above-described unit.
6. By threatening employees with the imposition of more
onerous working conditions if the Union were voted in,
Respondent violated Section 8(a)(1) of the Act.
7. By promising and granting benefits and soliciting the
presentation of grievances and adjusting such grievances, to
discourage its employees' designation of a representative for
the purposes of collective bargaining, Respondent violated
Section 8(a)(1) of the Act.
See Joint Industry Board of the Electrical Industry and Pension
Committee, et. al.. 238 NLRB 1398 (1978).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 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.
8. By granting benefits and adjusting grievances, to
discourage its employees' designation of a representative for
the purposes of collective bargaining, Respondent violated
Section 8(a)(3) of the Act.
9. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
10. Except as found above, Respondent has not engaged in
the other unfair labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERs
The Respondent, Chefs Pantry, Inc., Columbus, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising and granting benefits or soliciting the
presentation of grievances and adjusting such grievances to
discourage its employees' designation of a collective-bargain-
ing representative.
(b) Threatening employees with the imposition of more
onerous working conditions to discourage their designation
of a collective-bargaining representative.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which will
effectuate the policies of the Act:
(a) Post at its Columbus, Ohio, facility copies of the
attached notice marked "Appendix."'9 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the
consolidated complaints found to be without merit are
hereby dismissed.
IT IS FURTHER ORDERED that the election held on
November 27, 1978, in Case 9-RC-12648 be, and it hereby
is, set aside, and said case is hereby remanded to the
Regional Director for Region 9 to conduct a new election.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
84