Don's Super Valu

National Labor Relations Board - Board Decisions

Jun 24, 1968

172 N.L.R.B. 192 (N.L.R.B. 1968)

192 DECISIONS OF NATIONAL
Bonnie Foods, Inc., d/b/a Don 's Super Valu and
Retail Store Employees Union , Local No. 444, af-
filiated with the Retail Clerks International As.
sociation, AFL-CIO. Case 30-CA-682
June 24, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS , AND ZAGORIA
On February 29, 1968, Trial Examiner John F.
Funke issued his Decision in the above -entitled
proceeding , finding that Respondent had not en-
gaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety , as set forth in the attached
Trial Examiner 's Decision . Thereafter , the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief , and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the
Trial Examiner 's Decision , the exceptions and
briefs, and the entire record in the case , and hereby
adopts the findipgs , conclusions , and recommenda-
tions.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be , and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F . FUNKE, Trial Examiner : Upon a charge
filed October 30, 1967, and an amended charge
filed December 22, 1967, by Retail Store Em-
ployees Union , Local No. 444, affiliated with the
Retail Clerks International Association , AFL-CIO,
herein the Union , against Bonnie Foods , Inc., d/b/a
Don's Super Valu, herein the Respondent, the
General Counsel issued a complaint dated
LABOR RELATIONS BOARD
December 28, 1967, alleging Respondent had un-
lawfully announced and enforced a rule against
union solicitation among employees and had
refused to bargain in good faith with the Union by
unilaterally adopting said rule against union sol-
icitation in violation of Section 8(a)(1) and (5) of
the Act.
This proceeding , with all parties represented, was
heard by me at Milwaukee, Wisconsin, on January
31, 1968 . At the conclusion of the hearing the
parties were given leave to file briefs and briefs
were received from the General Counsel and
Respondent on February 21.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent , a Wisconsin corporation , maintains
a retail grocery store at Hartford , Wisconsin, where
it is engaged in the sale of meats, groceries , and re-
lated products . During a representative year
Respondent 's sales exceed $500 ,000 and its
purchases made from points outside the State of
Wisconsin exceed $50,000.
Respondent is engaged in commerce within the
meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act.
III. THE ALLEGED VIOLATIONS OF THE ACT
A. The Facts
On or about July 14, 1967,1 the Union started or-
ganizing the employees of Respondent's Hartford
store. Michael Gazzana and John Decker, union
representatives , did the organizing and according to
their testimony the organizing was conducted dur-
ing visits to the store and on store premises.
On August 17 an election was conducted among
the employees at the Hartford store and on August
28 the Union was duly certified as the collective-
bargaining agent of the employees by the National
Labor Relations Board . ( Case 30-RC-684.) On
October 12 a union shop election was conducted by
the Wisconsin Employment Relations Committee.
(Wisconsin law provided that at least two-thirds of
the employees vote in favor of a union -security
clause and that at least one-half the employees par-
ticipate in the election .) Following this election the
' Unless otherwise noted all dates refer to 1967.
172 NLRB No. 27
DON'S SUPER VALU 193
Union sent to all employees a letter (G.C. Exh. 3)
which read:
TO EMPLOYEES OF:
DON'S SUPER-VALU STORE:
Dear fellow clerk:
As you know, Local 444 of the Retail Store
Employees Union, AFL-CIO won the
Representation Election conducted by the Na-
tional Labor Relations Board at your store.
You have chosen this union to be your
representative to bargain with your employer
in all matters pertaining to your place of em-
ployment.
In order for this union to most effectively bar-
gain for YOU , we must be aware of how many
employees are backing our efforts to improve
your wages , hours and other employment con-
ditions.
So that we may know the support YOU are giv-
ing us, we request that , if you have not already
done so , you join this union by not later than
November 1, 1967. .
With your vigorous support the union will
know how far it may go in negotiating and
securing improved wages and benefits for
YOU.
Without your support , the union cannot effec-
tively perform the job for YOU and it would be
futile to start negotiations without everyone
pulling together.
Representatives Decker & Gazzana will be in
your store Friday, October 27, 1967 at 2:00
P.M. at which time you will be asked to join
the union and pay November dues.
Yours very truly,
MICHAEL J. BURTAK,
Sec-Treas.
JOHN DECKER, Bus.
Representative
MIKE GAZZANA,
Business Representative
Charles Fuller , at that time store manager, testified
that he received a copy of the letter on either Oc-
tober 25 or 26. Donald Kerr , president of Respon-
dent and sole stockholder since July 1, testified that
he saw the letter about that time, that he and Fuller
discussed it and decided:
Simply that we were going to allow the Union
to come in and bargain . We were going to bar-
gain in good faith with them , but that we didn't
have to bargain during working hours.
Kerr then instructed Fuller to post a notice which
had been prepared by Fuller after consultation with
Respondent 's attorney , Patrick Brigden . Handwrit-
ten in broad crayon strokes the notice (G.C. Exh.
2) read:
There will be positively
NO solicitation from
magazine salesmen,
insurance men and other
salesmen unless permission
is granted.
Charlie
It was posted about 8 a.m. near the timeclock and
adjacent to the area where the employees took
their coffeebreaks . Although the notice was
restricted by its language to salesmen there is no
doubt that it was inspired by and directed at the
union organizers. Calling attention to the last para-
graph of the letter , counsel asked Kerr:
Did you give Mr. Fuller any instructions with
respect to the prospective visit of the union
representatives?
A. Yes, I did, I instructed him to post the
notice that has been admitted here in evidence.
TRIAL EXAMINER: General Counsel's Num-
ber 2.
A. Yes.
0. (By Mr. Brigden ) Did you give him any
oral instructions?
A. Yes.
Q. What were they?
A. That he was to post this. He was not to
argue or fight with anybody but our policy
would remain as it had been in the past, that
these things had to be handled other than dur-
ing working hours.
Just why the notice was drafted in terms which con-
cealed its real purpose and why Fuller in his
testimony chose to be evasive on this issue is not
readily discerned . In any event , Kerr's testimony
resolved such doubt as might exist.
On Friday the 27th Gazzana and Decker went to
the store and Gazzana and Fuller had a conversa-
tion in the parking lot as Gazzana was leaving the
store and Fuller was entering . Gazzana 's testimony
reads:
A. Well, the first conversation we had he
was going back inside the store after I had left
and he didn 't say anything to me when I said
"hello" to him. That 's what precipitated the
conversation . As I said , he was going in the
store and after I said "hello" to him he turned
around and came back out and he started to
inform me that the employees couldn 't talk to
us, by "us" meaning John Decker and myself,
you know, I thought-
354-126 O-LT - 73 - pt. 1 - 14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER: YOU were outside the
store in the parking lot or the entrance?
THE WITNESS: Yes, standing alongside the
entrance to the store.
TRIAL EXAMINER: All right.
THE WITNESS: SO, like I said, he started
telling us we couldn't bother the employees in
the store anymore and we couldn't come in to
see them until we had a definite provision in
the contract stating that we could. I told him
that I wasn't positive legally at the time if we
could go in and talk to them the way we had
been, so I told him it was for that reason that I
left before any of the employees there would
get themselves into trouble for talking to me
because it seemed like they would. And then
he mentioned, like I said, about us not having a
provision in the contract.
As to what he had done in the store, Gazzana
testified:
Q. Now, just backtracking for a moment,
you had been in the store prior to that conver-
sation?
A. Yes, I had.
0. All right. What happened when you went
into the store?
A. Well, on the way in I was talking to Gene
Derge, an employee there, this was just on the
way into the store, and then immediately after
entering the store I went to the bakery depart-
ment and I inquired from the woman there if
the baker was there, Mr. Steenbergen. She in-
formed me that he'd gone for the day. I asked
her if the employees there had gotten together
at all to determine if they wanted to become
union members or anything like this, you
know, if they were going to sign up and join
the union which I think we made it clear in our
note that we sent to them that that was just
about the reason we were coming up there for,
and she told me that they hadn't gotten
together or anything like that. So I asked her
how she personally felt about it and she said
she didn't know, and she mentioned that she
wasn't supposed to be talking to us anymore in
the store or anything like that. I got the impres-
sion from her that she was-
MR. BRIGDEN: Objection.
TRIAL EXAMINER: Sustained.
0. (By Mr. Selby) Just tell us what you re-
member being said?
A. Well, without being definite I think she
made mention to Charlie telling her that they
weren't supposed to talk to us in the store or
anything like that anymore.
Fuller's version of their conversation is that he
had seen Gazzana in the store and that he asked
2 The General Counsel offered some entirely irrelevant testimony in-
dicating the employees engaged in soliciting for various causes , but Respon-
dent placed no restrictions upon its employees
him, on the parking lot, not to bother the em-
ployees on a busy Friday afternoon and added that
if Gazzana would play ball with him he would play
ball with Gazzana.
B. Conclusions
The General Counsel has stated the issues as:
A. Whether Respondent, on October 27,
violated employee Section 7 rights because it
discriminatorily promulgated a rule prohibiting
union solicitation among employees?
B. Whether such promulgation constitutes a
refusal to bargain as it was accomplished
without notice to or consultation with the
Union?
A great deal of testimony was taken as to
whether Respondent had a rule against solicitation
by outside solicitors prior to October. Although the
testimony is confusing and contradictory, I find it
did not. Certainly no such rule had been reduced to
writing nor had it been made known to all the em-
ployees. There is no evidence that such a rule had
been enforced prior to October 27. On that day the
rule was posted and, as has been found, it was
directed against union activity by union organizers
on store premises.
The U.S. Supreme Court has agreed upon the
right of an employer to restrict solicitation by
nonemployee organizers on company premises in
N.L.R.B. v. Babcock & Wilcox, 351 U.S. 105. This
rule respecting nonemployee organizers has been
stated by the Board in Walton Manufacturing Com-
pany, 126 NLRB 697, 698, as follows:
3. No-solicitation or no-distribution rules
which prohibit union solicitation or distribu-
tion of union literature by nonemployee union
organizers at any time on the employer's pro-
perty are presumptively valid, in the absence of
a showing that the union cannot reasonably
reach the employees with its message in any
other way, or a showing that the employer's
notice discriminates against the union by al-
lowing other solicitation or distribution.
It seems therefore clear that the rule posted by
Respondent was proper and lawful even though its
manifest intent was to include nonemployee or-
ganizers within its proscription. The sole question is
whether it was discriminatively applied to the or-
ganizers. As to this there is no evidence for neither
Gazzana nor Decker requested permission to enter
the premises after that date and there is no
testimony that any salesmen or other nonemployee
solicitors were given or denied permission.' There
is Kerr's testimony, self-serving and therefore
suspect but nevertheless uncontradicted,3 that had
the union organizers asked for permission to speak
8 I did, however , find Kerr a credible witness.
DON'S SUPER VALU 195
to the employees during slack or break periods it
would have been granted. The organizers never put
him to the test.
Prior to October 27 the organizers were never
denied access to the store or its employees so no
claim of discrimination can be raised despite the
amount of testimony taken on this irrelevant issue.'
The posting of the notice was prompted by the
union letter dated October 24 when Respondent
was put on notice that the organizers would visit
the store for the purpose of soliciting memberships
and collecting dues. The visit was to take place not
only during working hours but during a peak work-
ing period.' If the General Counsel contends that
Respondent was prohibited from protecting its
legitimate interests and uninterrupted service of its
customers because it had not previously interfered
with the organizers he seeks to impose another
limitation upon the no-solicitation rule. I do not
find it within the province of a Trial Examiner to
extend the rule for the purpose of finding a viola-
tion on these facts absent any indication that the
Board would so extend or apply it.
As to the second issue, Respondent admittedly
posted the notice without consultation with the
Union. This raises the question of whether union
solicitation of employees by nonemployees during
working hours constituted a "condition of employ-
ment" on which the Respondent was required to
bargain.' I would say that the answer to that
question was provided by Babcock & Wilcox, supra,
and by that hallowed cliche of labor law that
"working time is for work." I am not going to hold
that an employer must bargain as to whether the
public area of a retail store be turned over to union
organizers during working hours to assist the
union's recruitment campaign. There are questions
which arise in the field of labor-management rela-
tions which can be answered by the application of
common sense , however heretical that may seem,
and this appears to be one of them. To hold other-
wise would be to put the Union in a position to de-
mand a quid pro quo at the bargaining table if it
acquiesced in an employer's assertion of his right.
Based on the foregoing findings and conclusions
and upon the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent has not violated Section
8(a)(1) of the Act.
2. Respondent has not violated Section 8(a)(5)
of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be
dismissed in its entirety.
' For what it is worth , Gazzana and Fuller had a conversation in a
backroom of the store in which union benefits were discussed and which
lasted 15 or 20 minutes . This was at a time when Fuller was assistant store
manager and took place at his request
' There is no denial of the testimony of Respondent 's witnesses that
Friday afternoons and evenings constituted a peak period and it is certainly
a matter of common knowledge among those who market
6 It might be noted that the foreclosure of union solicitation was not ab-
solute- it was qualified by the "permission " language As has been stated,
the Union made no request to speak to the employees at a "reasonable"
time Nor was there any showing that the usual means of access to the em-
ployees were not available to the Union See N L R B v. Avondale Mills,
357 U S. 359, 363,364