Dayton Food Fair Stores, Inc.

National Labor Relations Board - Board Decisions

May 31, 1967

165 N.L.R.B. 14 (N.L.R.B. 1967)

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dayton Food Fair Stores, Inc. and Retail
Clerks Union , Local No. 1552 , Retail
Clerks International Association , AFL-CIO.
Cases 9-CA-3909 and 9-RC-6717.
May 31,1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On February 14, 1967, Trial Examiner
Thomas A. Ricci issued his Decision in the above-
entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor
practices alleged in the complaint and
recommending that it cease and desist therefrom
and take certain affirmative action. In addition, he
found that Respondent had engaged in objectionable
conduct prior to the election held in Case
9-RC-6717 and recommended that the election be
set aside and a new election directed, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that the Respondent did not
engage in certain other unfair labor practices alleged
in the complaint. The Respondent filed exceptions to
the Decision and a supporting brief. The General
Counsel filed limited exceptions and a brief in
support thereof, and the Union joined with the
General Counsel's limited exceptions to the Trial
Examiner's Decision. Thereafter, Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 the case, and hereby adopts the
findings, conclusions, and recommendations 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
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Dayton Food
Fair Stores, Inc., Trotwood, Ohio, its officers,
agents, successors, and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
IT IS FURTHER ORDERED that the election held on
April 14, 1966, among Respondent's employees be,
165 NLRB No. 12
and it hereby is, set aside, and that Case 9-RC-6717
is hereby remanded to the Regional Director for
Region 9 for the purpose of conducting a new
election at such time as he deems that
circumstances permit the free choice of a bargaining
representative.
[Text of Direction' of Second Election omitted
from publication.]
i An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 9 within 7 days after the
date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all
parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary
circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections
are filed Excelsior Underwear, Inc , 156 NLRB 1236
TRIAL EXAMINER"S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: These cases,
involving objections to conduct affecting the results of an
election and unfair labor practice charges, were heard by
me at Dayton, Ohio, on October 25, 26, and 27, and
November 28, 1966, pursuant to a complaint issued on
June 30, 1966, and upon a report on objections issued on
August 25, 1966. The two cases were consolidated for
hearing. The complaint, against Dayton Food Fair Stores,
Inc., herein called the Respondent or the Company,
alleges violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended. A brief was
filed after the close of the hearing by the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation engaged in the
operation of a retail food store in Trotwood, Ohio. During
the past calendar year, a representative period, its gross
retail sales exceeded $500,000. During the same period the
Respondent had a direct inflow of goods and materials in
interstate commerce valued in excess of $50,000, which it
purchased and caused to be shipped from points located
outside the State of Ohio to its Trotwood store. I find that
the Respondent is engaged in commerce within the
meaning of the Act and that it will effectuate the policies
of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local No. 1552, Retail Clerks
International Association , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This is essentially a refusal-to-bargain case. In the 7 or 8
days immediately preceding February 15, 1966, the Union
carried on a swift organizational campaign among the
approximately 40 employees of the Company's Trotwood,
Ohio, store. It then demanded recognition and bargaining
DAYTON FOOD FAIR STORES, INC.
rights based on authorization cards signed by a majority of
the employees. The Respondent refused to bargain; it
insisted that the Union first prove its majority status in a
Board-conducted election . The Union filed a petition for
an election , a consent -election agreement was made, and
the election held on April 14. The Union lost. Thereafter,
the Union filed objections to the election and unfair labor
practice charges.
The complaint alleges that between the time of the
demand and refusal and the day of the election, company
representatives engaged in conduct which illegally
interfered with a free expression of choice by the
employees, and coerced them within the meaning of
Section 8(a)(1) of the Act. An employee who had been
active in the union campaign was discharged on
February 26; the discharge is said to have been motivated
by an intent to discourage the organizational activities of
the employees generally. All of the foregoing, still
according to the complaint, proves that the initial refusal
to bargain with the Union was an act of bad faith,
reflecting rejection of the basic principle of collective
bargaining , and therefore a violation of Section 8(a)(5) of
the Act.
The answer denies the commission of any unfair labor
practices. Conceding the refusal to accord recognition on
February 15, or at any time before an election, the
Respondent contends that its sole purpose was to test the
sentiment of the employees through the orderly procedure
of the secret elections held by the Board, and argues that
an employer who does not otherwise misconduct himself,
may lawfully question the validity of signed cards as the
true desire of its employees in the matter.
A. Demand and Refusal
On the morning of February 15, 1966, James Huntley
and Frank Vandam, union business agents, came to the
store and received from Norman Lee, one of the
employees who had been active in soliciting authorization
cards, 25 signed cards. The cards read:
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The union officers then spoke to Michael McGee, store
manager, and Charles Porter, vice president and former
manager. Huntley offered to show the men the cards, said
the Union represented a majority of the employees, and
demanded recognition. He made clear the Union wished to
represent all the store employees but excluding the meat
department. The managers said they were not authorized
to respond, and, after conferring in their office, told
Huntley he would have to speak to Jerome Goldman, the
Company's attorney in Cincinnati, whose telephone
number they gave Huntley.
Huntley called Goldman and repeated the same
demand; the two talked for about 20 minutes on the
15
telephone. For the most part they discussed the question
of the validity of authorization cards in such a situation,
Goldman saying there were cases where employees first
signed and then, in secret election, voted against union
representation. Huntley agreed there had been such cases,
but requested recognition nevertheless. Goldman
admitted, at the hearing, that the business agent offered to
submit to a card check, which he refused to accept.
Huntley also again stated the unit he sought to represent
must exclude the meat department. After the telephone
conversation, still on the 15th, Huntley sent a formal
written demand to the lawyer's office. The letter again
offered to submit the cards to a card check by an impartial
observer, and repeated the proposed exclusion of the meat
department. Goldman answered by letter dated
February 17. The three-page letter comments at length
upon the variable influences which cause employees to
sign cards and later repudiate them in Board election. The
burden of the letter is to press the Company's view that:
No one knows what a person thinks he is being asked
to sign or what might influence a person to react at a
particular time, what influence, persuasion or
pressure is brought to bear on a man when he signs a
card or when he refuses to sign a card. That is the
reason for the National Labor Relations Board
election, so as to give the man an opportunity to
understand the significance of what he is doing, and
then in secret, after having given the matter careful
consideration, to decide whether he does or does not
want a particular labor organization to represent him.
Goldman promised to bargain in good faith if the Union
on an election. He also referred to Huntley's warning to
Store Manager McGee 2 days earlier that the Respondent
should not make changes in the store affecting personnel
while the matter was pending. Goldman defended the
Company's right to operate the store as business exigency
required.
Upon receipt of this letter the Union filed its
representation petition. There followed a conference
among all parties with a Board agent on March 10. At this
meeting there was a disagreement with respect to unit
placement of eight employees-five constituting the meat
department, and three (Lila Richardson, Harry Weisman,
and Betty Wollenhaupt) whom the Union wished to
exclude as supervisors. After some talk the Union agreed
with the Company's position that the three disputed
persons should be permitted to vote as nonsupervisory
employees. Because the question of inclusion of the meat
department could not be resolved, the petition was set
down for formal hearing on March 23. When the parties
gathered on the 23d, the matter was discussed anew and
the Union agreed that the meat department employees
should be included. On this basis the Respondent signed a
consent-election agreement. At the balloting, on April 14,
12 employees voted for and 22 against union
representation. The Union later filed objections. The
charge of bad-faith refusal to bargain was filed on April 21.
There is presented here the not uncommon Bernel Foam
type situation, where, in defense to a refusal-to-bargain
allegation the employer asserts that the union never
represented a majority of the employees, and, anyway,
even if it did, the admitted refusal to accord recognition
was not illegal.' In the light of more recent Board
decisions, this second question-whether the refusal to
bargain was an act of bad faith-falls in the area of the
I Bernet Foam Products Co , Inc., 146 NLRB 1277.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Serpa, Aaron Brothers, and H and W Construction cases.2
The rule of these last decisions is that where the union is
in fact authorized by a majority of employees, the burden
is upon the Government to prove that the employer's
refusal to bargain manifested rejection of the statutory
duty to bargain collectively with any labor organization.
The General Counsel's witnesses admitted that lawyer
Goldman's stated reason for his decision at the time was
"no more than a distrust of cards." Does this record
affirmatively show that the Respondent's purpose was,
instead, to undermine the Union's representative strength
and frustrate the employees' desire to bargain
collectively? I think not. Whether or not the 25
authorization cards in the Union's possession on
February 15 were valid, in the light of what evidence was
received as to them, is therefore immaterial in this case.
B. Violation of Section 8(aXl) and Alleged Discriminatory
Discharge of Norman Lee
The cardinal act of the Respondent said to prove bad
faith in its response to the Union's demand is the
discharge, 10 days later, of Norman Lee. Lee was one of
three-together with Alan Godfrey and Shirley
Knoth-who was shown on the record to have been active
in soliciting signatures. There is indication of one
Mrs. Bolkerth (Judy Folkerth, according to a stipulated list
of employees) having also been an open advocate of the
Union. Lee had been hired in October 1965, and was a full-
time clerk in the produce department. He signed a union
card and identified eight as signed in his presence. The
other solicitors forwarded cards to him and he delivered
them to Huntley on the morning of February 15. The
Company knew he favored the Union. Davis, assistant
store manager, himself wished to see a union in the store;
he spoke to Lee about it more than once. Lee's
uncontradicted testimony is that once, when asking him
"if we could get it [the Union]," Davis added "to watch
our step in the store for the company knew I was the one
and later on ... told me . . . I couldn't tell you what day,
we were going to make an example of Chuck Douglas to be
fired."3 There is a Charles Douglas who was then a part-
time bagger and who voted in the election 2 months later;
there is no evidence of company discrimination against
him.
Lee was discharged without notice on February 26, and
handed a letter signed by the store manager stating the
reason. This is the first time such a letter had been used
for this purpose. The reason given was that the produce
department was overstaffed, the store planned greatly to
increase prepackaging, and efficiency and economy
required reduction in labor costs.
There is much evidence supporting the affirmative
defense that Lee was released as part of an overall plan to
effect needed economies. Indeed it was a storewide
program to tighten the entire operation, resented by the
employees, which provoked the general move toward
joining a union in the first instance. At the end of January
the Respondent hired Malcolm Burnside, an experienced
store manager, as consultant on what changes could be
made on any aspect of the function of the store to reduce
current losses. He arrived on January 31; Porter was then
store manager, and Davis assistant manager. Weisman,
the "leadman" in the produce department, was then on
vacation. Burnside reported to Arthur Beerman, the
company president; he recommended a number of
changes, including much prepackaging in the produce
department, elimination of much overtime labor in the
various departments, and a general reduction of personnel
wherever possible. He found three or four departments
overstaffed.
As a further step to achieve efficiency and economy, the
Company hired a new manager, McGee, who reported on
February 8. He was introduced to the employees and
spoke to them as a group on February 9. The tenor of his
remarks was that he would personally make all decisions
in the store, that there would have to be a greater effort
expended, and that the store would be run much more
strictly than in the past. That same day the employees
started signing union cards; in fact almost all of them are
dated February 9, and a number of employees testified
their reason was because they did not like the working
conditions which McGee intended to impose upon them.
McGee started right off to shift employees among
departments and to reduce the hours of work in the store.
Of special significance here is the fact that, at Burnside's
urgings, McGee increased the amount of prepackaging in
produce, apparently a system which meant less labor in
the department. At that time, while leadman Weisman was
away, there were two full-time men in produce-Lee and
Anastas [Tony] Dane, plus one or two part-time clerks.
Before Weisman left, on January 9, there had been three
full-time clerks, Lee, Dane, and the leadman; all three of
them used to work 50 to 60 hours each week and had two
part-time men in addition.
By mid-February McGee had reduced Lee to only 40
hours; he reduced Dane's hours similarly. Weisman
returned to work on February 16 or 17; he disagreed with
the prepackaging idea, reverted to his old ways, and
McGee had trouble keeping him in line in this respect.
McGee testified he waited for Weisman's return to ask
could he get along minus a full-time man, as Burnside had
recommended, and that Weisman agreed. Lee was
released on the 26th; he has not been replaced.
All of this testimony of economic distress in the store, of
hiring a consultant to remedy a bad situation, of how the
new manager determined to ride rough shod in an effort to
make a good impression, of reduction in hours to
effectuate economies, is not only uncontradicted but fully
credible. Between January 9 and February 15 the produce
department managed with two full-time men, and their
hours were even reduced before there was any talk of a
union. With Lee gone, the department continued with only
two full-time clerks, and it was still getting along on this
two-man basis, with only one part-time clerk, at the time of
the hearing in October. In such circumstances there must
be something very persuasive to prove that the
2 John P. Serpa, Inc., 155 NLRB 99; Aaron Brothers Company
of California, 158 NLRB 1077, H & W Construction Company,
161 NLRB 852.
8 At the hearing the Respondent contended that Davis was not
a supervisor, and that therefore his knowledge may not be
imputed to the Company The contention must fail . When the
election agreement was made in March, the Company agreed with
the Union that Davis should be excluded as a supervisor, he
therefore did not vote There is much testimony, by various
witnesses , to Davis' exercise of authority in the store both before
and after McGee arrived to take charge over everyone on
February 8. The most revealing testimony was by McGee himself,
who said that when he came "I told him and I told each of the
department heads that John Davis was the assistant store
manager and that he would assume that responsibility and that if
he had problems in my absence, he was in charge of the store and,
consequently, he was their immediate superior."
DAYTON FOOD FAIR STORES, INC.
Respondent's motive in discharging him was a purpose
other than appears on the face of things.
Stine, vice president, admitted he knew, before the
discharge, that Lee was an "active participant" in the
union affairs, but not that he was a leader. For proof of
union animus against Lee personally, the General Counsel
relies primarily on Lee's testimony that when Weisman,
the leadman, returned from vacation, he asked Lee "what
about this union ... do you know anything about it and I
said, yes sir, and he said can you stop it and I didn't
answer him ... and he kept pointing his finger and said
stop...." I believe Weisman did say this to Lee, for his
attempted denial is unconvincing. He testified he learned
of Lee's activities when he returned, and that he asked
him "what about this union," but insisted he expected no
answer and asked only "because I wanted to say it." There
is a serious question, however, as to whether such talk
from Weisman is enough to convert what on its face looks
like a proper discharge for cause to an unfair labor
practice. Weisman is the produce manager, and spends
several hours each day at the market, making the
purchases for his department; he is paid $150 a week and
the other full-time clerks only $100. He otherwise devotes
his time to regular manual work like the other clerks; he
has no authority to hire or discharge employees. Dane,
who testified Weisman does assign work and instruct
clerks in the department, also said that when Weisman
needs a man he tells the assistant manager , who brings a
man over. Much was made of the fact Weisman used to
arrange work schedules for the three or four men in his
department ; it is clear this chore was taken over by McGee
on February 9. With the evidence of supervisory authority
so little, the Union's agreement before the election that he
was no more than a rank - and-filer assumes significant
importance. At the first conference after the Union filed its
election petition, all parties agreed Weisman was not a
supervisor and he was permitted to vote without challenge.
If Weisman was a representative of management when
Lee was discharged, he was indeed low in the hierarchy. I
conclude he was not a supervisor within the meaning of
the Act.
As further support for the suggested inference that the
Respondent aimed a particular union animus against Lee
personally are two other items of testimony. Huntley, the
union agent , testified that when he told Porter, the
administrative chief of the store , on the morning of
February 15 , not to take any independent personnel
action, he also specified "Ronnie Lee was our key person
in there and we advised him if he took any action against
Ronnie Lee or any other employee that we would file the
necessary charges." Vandam, who was with Huntley, also
testified Huntley said this: "we wanted to stress that so
that he would not at any time be interfered with by
management in violation of his rights." Porter denied
there was any reference to Lee in that conversation. I
credit Porter's denial. For one thing, Alan Godfrey appears
to have been as active as, indeed more active than, Lee in
soliciting signatures , but there is no claim the union agents
mentioned him that day. And the day following Lee's
discharge, Vandam telephoned lawyer Goldman to ask
that the man be reinstated, and charged he had been
released because of his union activities . Goldman denied
the accusation . Two months later the Union filed its
charge respecting Lee, and on May 18 Vandam signed an
affidavit for a Board investigator telling his story in
support of the charge. The affidavit is silent on the
Company ever having been advised of Lee's particular
interest in the Union. Vandam simply said he "did not tell
17
the field examiner about it," a very unlikely story, had the
union agents in fact held Lee out to be the principal
organizer in the store.
Also said to support an inference of a legal motivation in
Lee's discharge is testimony given by Tony Dane of the
produce department. According to him, at an employee
meeting in the store after Lee was gone, Beerman said
"these unions are very sharp and very smart and they train
men to go ahead with these campaigns and programs ...
as you well know, one of these men are no longer with us
. they have another man to step into his place such as
Tony, right there ... and he pointed his finger at me...."
Dane also said McGee asked him several times "how do
you think its going to go," "is the Union going to get in,"
"how are you going to vote," and that when he refused to
say, the manager added "maybe you are on the wrong side
of the fence," or "you better get on the right side of the
fence." Dane further testified that within a 24-hour period
sometime in February, McGee, Porter, and Weisman each
separately asked him how he intended to vote in the
election.
All three of these denied having inquired of Dane
concerning his union activities and intentions. McGee
expressly denied telling anything to Dane about the right
side of the fence, or which side he should be on. Where
Dane was contradicted by other witnesses, I do not credit
him. He was a pugnacious witness, argumentative , overly
quarrelsome, and very unimpressive. He had been
discharged for cause after the events. There is no
reference in his earlier affidavit to statements by McGee
about being on the wrong side, or about advice to put
himself on the right side. Moreover, Dane told a story of
improper conduct by an observer at the April election; he
was contradicted both by that observer and by Caso
March, the Board attorney who conducted the election.
March was the truly objective witness at the hearing, and,
on the basis of his demeanor if nothing else, gave
testimony credible beyond question.
There is no credible direct evidence, therefore, of an
intent in the Company to select Lee for discrimination to
give vent to a broad union animus. The General Counsel
did not file a brief, and there is no clear statement of his
theory of illegality. From his examination of witnesses,
however , there is suggested a contention that because in
this instance the Respondent for the first time took the
precaution of putting the stated reason for discharge on
paper , because it did not also discharge employees to
effectuate needed economies in other departments, and
because there was one other man-stock clerk
Penwell junior to Lee at the time, it follows that there
existed a hidden and improper objective. These are
tenuous grounds for finding an unlawful purpose and for
ignoring the direct and plausible explanations offered by
the Company. Management had never before been
threatened with litigation if it took any personnel action
without union approval , and this could well explain the
precaution of writing a discharge letter . It is true there
were no other outright discharges, but there is also much
evidence of reduction in hours worked by the total
complement, and shifting of clerks from one part of the
store to another. As to the comparative seniority against a
single other employee, Lee had openly announced he was
planning to leave the Company soon for unrelated reasons,
in itself a possible basis for selection.
By the time of the election, almost 2 months after Lee's
discharge, it had become clear the Respondent was
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposed to having a union in the store and tried to
convince the employees to its view. Aside from this matter
of general attitude, all that directly relates to Lee is
President Beerman's reference to him at a later date that a
"smart " man of the Union was no longer in the store, the
testimony of Patricia Willis, which I credit, that when Lee
visited the store McGee said he should be followed lest he
talk "union " to the employees, and Assistant Manager
Davis' statement before the discharge that Lee should be
careful because the Company knew he was the "one."
By the time Beerman referred to Lee as the Union's
"smart" man, Business Representative Vandam had
already accused the Company of discharging the union
leader, and Lee had been seen visiting the store in
company of Huntley, the now known president of the local.
McGee may not have wanted Lee to talk of the Union with
the employees, but the record shows, by the testimony of
the General Counsel's own witnesses, that he was
permitted to wander about, and even to sit in the lounge
drinking Coca-Cola while chatting with employees and
supervisors on the very subject. Davis was a supervisor,
and although he favored the Union "I would like to see you
fellows get it [the Union] ... in the capacity I serve I just
can't commit myself," his statement that the employees
"should watch their steps," and that the Company was
aware of Lee's particular union interest were nevertheless
coercive upon them, and therefore constituted improper
interference with their self-organizational rights, in
violation of Section 8(a)(1) of the Act, an unfair labor
practice chargeable to the Respondent.
All this notwithstanding, if the record as a whole is to be
considered, it cannot be said that a preponderance of the
substantial evidence in its entirety proves an unfair labor
practice in the discharge of Lee. The affirmative defense
of discharge for cause is in this instance too persuasive to
be deemed a pretext. I shall therefore recommend
dismissal of the complaint as to him.
C. Good or Bad Faith in the Refusal to Bargain
With the discharge of Lee no longer a factor in the case,
the evidence of bad faith in the initial refusal to bargain is
reduced to Assistant Manager Davis' one statement to
Lee, in all probability heard by others also, that the
employees should be careful in their union activities, and
the incorrect statement later appearing in company
election literature that employees could lawfully be
discharged in the event of a strike. Virtually all references
to Davis' activities show he was friendly with the
employees, sympathetic to their program, and, indeed,
desirous himself of joining the Union. He even called the
union hall one evening during a meeting to inquire how
matters were progressing. In these circumstances, any
interrogation from him as to how the campaign was
proceeding can hardly be called coercion by the Company.
The pinpointed unfair labor practice finding that the
assistant manager told the employees to watch their step,
therefore, serves little to prove that Goldman, and the
higher officials, questioned the validity of signed cards in
bad faith.
If, as the more recent Board decisions say, an employer
may with impunity call for an election if he distrusts
signed cards, and if, as I understand these holdings, it is
the General Counsel who must prove, by affirmative
evidence, a contrary and illegal motive behind the stated
reasons for refusing to bargain on presentation of cards,
the evidence in this record as a whole fails to prove a
violation of Section 8(a)(5).
This is an area of Board law where no two cases are
alike, and it cannot be said that any one precedent
predetermines a later situation. "In determining whether
the employer's action was taken to achieve ... invalid
purposes, the Board considers all the surrounding
circumstances, as well as direct evidence of motivation.
. Whether the conduct involved reflects on the good
faith [or the bad faith] of the employer, requires an
evaluation of the facts of each case."4 The mere fact that
there may have occurred some limited and minor
violations of Section 8(a)(1) of the Act, cannot alone serve
to prove a pervasive determination to avoid collective
bargaining in any circumstance.5 The improper conduct
may not be so flagrant that it must necessarily have had
the object of destroying the Union's majority status. Here,
against the warning of Assistant Store Manager Davis
must be considered the assurances given to all the
employees by President Beerman that they had nothing to
fear if they wished to vote for the Union. Patricia Willis, a
clerk called by the General Counsel, testified that at a
meeting of employees Beerman said, "We were to make
up our own mind ... if we voted the Union in he would
accept it," "He said we were not to listen to anyone-that
no members of management were to talk to any of the
employees about the union or any of their activities."
According to Willis, Beerman said this at "several
meetings." And Dane, antagonistic to the Respondent at
the hearing, admitted that Beerman said ". . . none of his
employer's [sic] would talk for or against the union to any
member in the store, you know, to any employee, let's put
it that way." And while Beerman may have spoken of the
union training expert organizers, and even have referred to
Lee as to one such who was no longer with the Company,
all that came after Lee's separation, by which time his
activities had not only continued, but may have been much
publicized because of the discharge. So far as direct
evidence is concerned regarding motivation, all it consists
of is Goldman's repeated explanations of why he doubted
the validity of signed cards.
Quite apart from the paucity of evidence pointing to
antiunion or other improper motive, there is the dispute
which existed between the parties respecting the
appropriate unit , whether the meat department employees
should or should not be included. There had been a
separate election in a unit limited to the five employees in
the meat department in the prior November. Those
employees had voted against union representation;
apparently another union had then attempted to organize
them. It was the Respondent's position, although not
directly expressed in the lawyer's letter of February 17,
that those employees too should be included and vote in
the election. It is a close question on the record evidence
in this case whether, under the pertinent facts, the unit
sought by the Charging Union in the first
instance-excluding the meat department-would be
found appropriate under Board precedents
' Hammond and Irvtng, Incorporated, 154 NLRB 1071
' Cosmodyne Manufacturtng Company, 150 NLRB 96,
Clermont's Inc , 154 NLRB 1397.
6 Compare Clermont's Inc , supra.
DAYTON FOOD FAIR STORES, INC. 19
That this position of the Respondent , at odds with the
initial demand of the Union , was a further cause of
disagreement between them is clear . Moreover , that this
disagreement was a reasonable position for the Employer
to take, is virtually admitted by the format of the
complaint . There are two separate allegations as to the
appropriate unit set out there ; one defined the bargaining
unit as including the meat department , and the next
simply excludes it. In turn , the refusal -to-bargain
allegation is phrased in the alternative , charging the
Company with having refused to bargain in either one or
the other. What all this means is that even in the mind of
the General Counsel, when it came time to proceed with
the case at all, there existed a rational element of
uncertainty as to which is the appropriate unit. In these
circumstances , the least that must be said is that
disagreement with a partial aspect of the Union's demand,
if indicative of anything in this case , points to a greater
likelihood of an honest question raised by the Company,
instead of a deceptive fraud to cover illegal inner
motivation.
A rather complex question of majority status was
extensively litigated at the hearing. Are all of the cards
received in evidence to be counted in view of the fact that
one or two employees were told by certain other soliciting
employees that their purpose was to hold an election?
Does it follow that because the immediate objective of the
move toward unionization was to dampen the ardor of the
newly arrived and very energetic store manager, all the
cards are invalid ? Should the overall complement against
which valid cards must be counted to measure majority
include or exclude the meat department ? Should it include
or exclude three employees whose supervisory status is
disputed ? The failure of the General Counsel to prove that
the refusal to accept a conclusive presumption of validity
concerning authorization cards masked an illegal intent to
deny self-organizational rights to employees , makes of
these only academic questions . Include or exclude the
meat department , count or discount a few of the cards in
evidence , and the dismissal of the refusal -to-bargain
allegation of the complaint must nevertheless stand. I
therefore deem it pointless to burden this report by
repeating the evidence relating to these no longer
consequential matters.7 Were it necessary to decide these
questions now, I would find that the Union did represent a
majority on February 15, regardless of whether the meat
department be included.
IV. THE OBJECTIONS
On the basis of his investigation the Regional Director
found no evidence to support certain of the objections filed
by the Union . In his recommendation for a hearing, he
itemized the following as subjects for inquiry: (a) An
"innuendo" in certain election literature distributed by the
Employer that union representation would automatically
result in a strike and that strikers would be released;
(b) the discharge of Norman Lee; and (c) the "humiliation"
of Anastas Dane by the Employer at an employee meeting
and his later suspension and discharge . The Regional
Director also referred for hearing a matter brought to his
attention apart from the objections filed: Was Rita
Richardson , who acted as observer for the Company at the
election, a supervisor and therefore acting improperly as
election procedure participant?
There is no evidence concerning any suspension from
work of Dane. He was discharged after the election; there
is no allegation in the complaint that his release was
illegally motivated , and there is no evidence indicating his
separation from the Company was for reasons other than
proper cause. The objection relating to Lee parallels the
complaint allegation , already found without merit , that he
was discharged for union acitivities.
Richardson is called " manager" of the delicatessen
department, where she works with three other employees.
So far as the Regional Director is concerned, and to the
extent that the objections filed by the Union complained,
the vice in her having acted as company observer is to be
seen in her supervisory status, asserted by the Union, but
disputed by the Respondent . The Board has held that a
management representative acting as observer exerts an
improper influence upon the employees as they cast their
ballots.
Richardson spends more than half her time doing the
cooking of delicatessen products; the store is open about
90 hours weekly but she works only 40. She also waits
upon customers , washes utensils, and cleans up. She is an
hourly worker, earning about $200 weekly, while the other
three clerks start at $1.25 per hour. She has no authority to
hire or discharge employees , and added she never "really"
recommended personnel action . When the store opened,
in April 1965, she recommended two girls, who were hired.
On one occasion, Porter, who had recently taken charge of
the store, asked whether the regular periodic increases
had been received by the other clerks in delicatessen;
Richardson said they had not , and "recommended" that
they receive it. She also testified the clerks were eligible
for this raise because it was the "fixed time ... 30 or 90
days after hiring" for them to get it . There is also
testimony that Richardson "orders" or "buys" produce for
resale in her department . The record as a whole shows this
function is almost entirely a matter of her telling the
various managers what is needed-such things as
potatoes , beef, chickens, all sorts of vegetables-for
cooking, and that it is simply a transfer from one
department of the store to another , with a record made of
the interdepartmental charges. She used to prepare the
work schedule for her department , but when Manager
McGee arrived in early February he took this
responsibility upon himself . The election came in April.
All this is very weak evidence of supervisory status or
managerial function . When the consent arrangement was
made in March , the Union agreed with the Company that
Richardson should be included in the bargaining unit as a
rank-and-file employee ; she voted without challenge. More
significant here is the further fact that Bill Douglas, the
meat department "manager," was also included in the unit
and voted freely, by stipulation in advance of the election.
As to Douglas there does not appear to have been any
question ever raised by the Union as to his nonsupervisory
status. But what orders Richardson received to carry out
her duties came from Douglas , a very persuasive
indication that she was not herself empowered to exercise
any significant authority over others. I cannot find on this
record that she was in fact a supervisor as defined in the
Act, or that the employees in her department looked upon
7 Compare Hammond and I ruing, l nc., supra
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her as the spokesman of management. The fact that she
acted as company observer at the election, an activity to
which the Union did not then and there object, cannot
serve, therefore, as grounds for setting aside the election.
There is a cumulative assertion advanced by the Union
for upsetting the election, a ground expressly disavowed
by the General Counsel on behalf of the Regional Director.
The Union offered the testimony of Dane, who acted as
union observer, that Richardson spoke to a number of
employees to influence their votes as they entered the
polling place. According to Dane, when Shirley Vineyard
came to vote Richardson said, "This is my niece, she
knows how to vote"; to Willie Reynolds, "Here is my
sweetheart, now he knows what to do.... Where have you
been"; to Bill Douglas, "Here comes my honey, he's going
the right way"; to Bill Browder, "You know what to do ...
do it right away." Dane said Richardson said things like
this "half a dozen times," always in violation of the
express instructions given by the Board agent in charge of
the election. At the hearing Richardson denied having
made any of these statements or anything like them. In
support of her denials, the Respondent called Caso March,
the Board agent who conducted the election. He recalled
no such statements and denied they were made. March is
very experienced in holding Board elections; he said
unequivocally that his instructions were followed
throughout and. that no report of improper conduct was
brought to his attention at the time. The demeanor of the
witnesses leaves no doubt in my mind that March must be
credited. I find that Richardson did not speak out of turn
to any of the employees.
There is a final objection that is supported by the
evidence and a sufficient reason for setting aside the
election results and holding a new one. The Company
embarked upon a literature distribution campaign
designed to persuade the employees to vote no. Letters
and leaflets were distributed and mailed to the homes of
employees. While much of what is stated there falls within
the permissible scope of the free speech proviso of the
statute, in its total picture the literature instills fear in the
employees that selection of the Union would be a futile act
and surely bring suffering in the future. Thus, again and
again , the statement is repeated that in all likelihood the
Union would make unreasonable demands and strike, that
the employees would lose money never to be recovered,
that the Company would not be obligated to agree with
"any" demands that might be made-"not even
one"-that the Union would "spoil your life," result in
"phony contracts," and such phrases. At one point, the
Union is called the harbinger of "bitterness, tension,
friction, headaches, uncertainty and trouble."
A leaflet distributed shortly before the election sets out
in bold type a union dues checkoff form, calling for a $5.50
monthly payment, and announces, in still heavier type: "If
you vote for a union, this is what you may be required to
sign ." And below all this, in the same leaflet, appears the
prominent statement : "If you don't want to give the Union
the right to demand that you be fired, vote no." Here the
Respondent grossly misled the employees as to the very
point of the imminent election.
One of the leaflets twice repeats the threat that if the
Union did. call a strike "the Company can fire you,"
"Whose pay stops? Whom does the. law allow the company
to fire and permanently replace? You know who. Not the
organizers !" And at the end, just before the election, a
final bulletin again repeated emphatically the Company's
prerogative not to concede to any demand whatever which
the Union might make and which could likely lead to
strike. Toward its close this leaflet reads:
The only recourse the Union would have if their
demands were not met would be to strike. Why
doesn't the Union play fair with you and tell you that
under the law and National Labor Relations Board
decisions, if the Union calls an economic strike every
employee who leaves his or her job can be fired at once
and permanently replaced.
This was not temperate talk in the proper exercise of the
privilege to express views concerning the desirability of
collective bargaining or union representation. Rather,
such repeated promises of discharge to follow any attempt
to exercise the right to engage in concerted activities,
particularly so effectively coupled with constant refrain
equating a vote for the Union to a step toward strike,
constituted a wrongful interference with the laboratory
conditions necessary for the exercise of a free and
untrammeled choice in the election. Accordingly, I shall
recommend that the result of the election be set aside and
a new one held, when, in the opinion of the Regional
Director, it becomes timely.
I also find that by misleading its employees with the
statements that they could lawfully be discharged in the
event they should engage in a strike, the Respondent
unlawfully coerced them in their free exercise of the right
to engage in concerted activities, and thereby violated
Section 8(a)(1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon
the entire record of the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in
Section 2(5) of the Act.
3. By telling the employees they should conceal their
union activities , by telling them the Company is aware of
the identity of prounion employees , and by telling them
they may lawfully be discharged for engaging in strike
action , the Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices ' affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
DAYTON FOOD FAIR STORES, INC. 21
Act, I recommend that the Respondent, Dayton Food Fair
Stores, Inc., Trotwood, Ohio, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from telling employees they should
conceal their union activities, that the Company is aware
of the identity of prounion employees, that employees may
lawfully be discharged for engaging in strike action, or in
any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its store in Trotwood, Ohio, copies of the
attached notice marked "Appendix."8 Copies of said
notice, to be furnished by the Regional Director for Region
9, after being duly signed by the Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including places where notices to employees are
customarily posted. Reasonable 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 receipt of this Decision, what steps
have been taken to comply herewith.9
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges the commission of unfair
labor practices other than those found in this Decision.
On the basis of the above findings of fact and
conclusions of law, it is hereby recommended that the
objections filed by the Union to the April 14, 1966, election
be sustained, and that the results of the election be set
aside. It is further recommended that the Regional
Director hold a new election when in his opinion the
effects of the unfair labor practices found shall have been
dissipated.
6 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read : "Notify said
Regional Director, for Region 9, in writing , within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT tell our employees that they should
conceal their union activities, tell them that the
Company is aware of the identity of prounion
employees, or tell our employees that they may
lawfully be discharged for engaging in strike action.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form,
join, or assist any labor organization, to join Retail
Clerks Union, Local No. 1552, Retail Clerks
International Association, AFL-CIO, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining, including strike
action, or other mutual aid or protection, or to refrain
from any or all such activities.
All our employees are free to become or remain, or to
refrain from becoming or remaining members of any labor
organization.
DAYTON FOOD FAIR STORES,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.
299-352 0-70-3