Ed's Foodland of Springfield, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1256 (N.L.R.B. 1966)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist the International Printing Pressmen and Assistants' Union of North
America, AFL-CIO, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining of other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition
of employment as authoiized in Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
AMERICAN PAPER & SUPPLY COMPANY CONTAINER DIVISION,
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, 609
Railway Exchange Building, 17th and Champa Streets, Denver, Colorado, Tele-
phone 297-3551.
APPENDIX B
The following corrections are hereby made in the transcript of this proceeding:
Page 54, line 5, change "her" to "his'; page 65, line 6, change "Hinckley" to
"Robertson"; page 88, line 10, change "to a raise" to "to get a raise"; page 91, line 10,
change "Phillips" to "O'Connor"; page 91, line 24, change "Phillips" to "O'Connor";
page 101, line 15, change "July 19" to "July 16"; and page 105, line 22, change
"July 19" to "July 16."
Ed's Foodland of Springfield , Inc. and 'L'ocail 1459, 'Retail
Clerks International Association , AFL-CIO. Case 1-CA-5127.
June 24, 1966
DECISION AND ORDER
On May 9, 1966, Trial Examiner Morton D. Friedman issued his
Decision herein, 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Decision
together with a supporting brief, and the General Counsel filed a
brief in support of the Decision.
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 [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
159 NLRB No. 119.
ED'S FOODLAND OF SPRINGFIELD, INC. 1257
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 13, 1-965, and an amended charge filed Septem-
ber 10, 1965, by Local 1459, Retail Clerks International Association, AFL-CIO,
herein referred to as the Union, the Regional Director for Region 1 of the National
Labor Relations Board, herein called the Board, issued a complaint on September 24,
1965, on behalf of the General Counsel of the Board against Ed's Foodland of
Springfield, Inc., hereinafter referred to as the Respondent or the Company, alleging
violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as
amended (29 U.S.C., Sec. 151 et seq.), herein called the Act In its duly filed answer
to the aforesaid complaint, the Respondent, while admitting certain of the allegations
thereof, denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Morton D. Fried-
man in Springfield, Massachusetts, on December 13 and 14, 1965. All parties were
represented and afforded full opportunity to be heard, to introduce relevant evidence,
to present oral argument, and to file briefs. Oral argument was waived. Briefs were
filed by counsel for the General Counsel and the Respondent.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testifying
before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts corporation which maintains its principal of-
fice and place of business in the city of Springfield, Massachusetts, where it is
engaged in the operation of a retail grocery store During the calendar year preced-
ing the issuance of the complaint herein, a representative period, the Respondent, in
the course and conduct of its business, sold and distributed products at its above-
mentioned store of a gross value in excess of $500,000. During the same period,
the Respondent received goods of a value in excess of $50,000 directly from points
located outside the Commonwealth of Massachusetts.
It is admitted, and I find and conclude, that the Respondent is engaged in com-
merce within the meaning of the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. BACKGROUND AND ISSUES
In July 1965 the Union began an organizing campaign among the employees in
Respondent's retail food store. On July 26, 1965, the Union made a demand for
recognition and bargaining after which Respondent's president began to separately
interview a number of the store employees. After some interviews, the Respondent
refused recognition, contending a good-faith doubt as to the Union's majority and
at the same time filed with the Board's Regional Office a petition for an election in
Case 1-RM-549.1 Thereafter, pursuant to a stipulation for certification upon con-
sent election entered into on August 7, 1965, a secret-ballot election was conducted
on August 13, 1965, but the Regional Director, because of the filing of the original
charge in the instant case just prior to the opening of the polls on that day alleging
violations of Section 8 of the Act, impounded the ballots and ordered that they not
be counted. Thereafter, the Regional Director withdrew his approval of the stipula-
tion for certification upon consent election, declared the election null and void,
ordered the ballots destroyed and dismissed the Respondent's petition without
prejudice.
Thereafter, the Regional Director issued the complaint in the instant proceeding
which alleges violations of Section 8(a)(1) and (5) of the Act in that the Respond-
ent unlawfully interrogated employees as to their union activities and desires; threat-
ened to close the store if the employees persisted in their activities; created the
1 Unreported.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impression of surveillance and threatened reprisal against an employee for attending
union meetings . The complaint also alleges that Respondent refused to bargain in
violation of Section 8(a)(5) of the Act.
The Respondent's answer denies generally the commission of unfair labor prac-
tices. Respondent contends that (1) the Union did not possess majority status at
the time of the demand; (2) Respondent refused to bargain because it had a good-
faith doubt of the Union's majority; and (3) Respondent's interrogation of its
employees and statements made to them were protected free speech under Section
8(c) of the Act. Thus the issues are:
1. Did the Respondent unlawfully interrogate its employees concerning their union
membership, activities, and desires?
2. Did the Respondent unlawfully warn its employees that it would go out of
business if the Union organized its store and if they did not refrain from becoming
or remaining members of the Union or giving any assistance or support to it?
3. Did the Respondent create the impression of surveillance among its employees
regarding their union activities?
4. Did the Respondent threaten an employee with reprisal if he did not refrain
from attending union meetings9
5. Did the Union have a majority when it made its demand for recognition on
July 26, 1965?
6. Was the Respondent's refusal to recognize and bargain with the Union based
upon a good-faith doubt as to the Union's majority9
Other, subsidiary issues are certain inclusions in or exclusions from the agreed
upon unit and the supervisory status of certain individuals employed by the Respond-
ent in its store.
IV. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Edward Stawarz, president of the Respondent, testified that on the evening of
Saturday, July 24, 1965, he heard from his wholesale grocery supplier that the
Union was attempting to organize his store. Soon after receiving this information
on July 24, Stawarz telephoned the home of Joseph Jaskulski, the meat department
manager , and asked the latter if he had heard of any union activity. Jaskulski
denied having any information. Stawarz then stated to Jaskulski that he had heard
it through reliable sources that there was union activity in the Respondent's store.
On Monday morning, July 26, about 9 a.m. Jaskulski asked him if he had heard
anything further and Stawarz said that he had not. Later that day, about 5 p.m.,
Stawarz received from the Union a telegram which stated in effect that the Union
represented Respondent's employees and asked when Stawarz would be available to
meet and negotiate a collective-bargaining agreement for the employees. Beginning
on July 26, 1965, Stawarz engaged in the following conduct which, I find, was for
the purpose of avoiding the designation of the Union as collective-bargaining repre-
sentative of the Respondent's employees.
On July 26, Stawarz called employee Barbara Cook into his office, showed her
the Union's demand telegram, and stated to her, "I suppose you already know that
the Union is going to try to come into the store." Cook answered, "Yes I know."
Stawarz then went on, "Well, do you know that if the Union does get into this store
and I have to give an increase in pay then I will have to close the doors?" Stawarz
then showed Cook a financial statement and indicated that he could not afford to
give the employees pay raises. Stawarz inquired of Cook whether the latter felt that
the majority of the store was for or against the Union. Cook answered, "I really
couldn't say because I really hadn't talked to anyone about it."
On July 27 about 1 p.m. Stawarz engaged employee Charles Wiezalis in conversa-
tion in Stawarz' office. Stawarz asked Wiezalis what he thought about the Union
and Wiezalis answered "Time will tell." Then Stawarz showed Wiezalis financial
statements and told him that the store was losing money and that he would have to
close it if the Union came in.
On July 29 or 30 Stawarz engaged employee Donald E. Trant in a conversation.
This was also in Stawarz' office. Stawarz told Trant that if the Union got in
Stawarz could not afford to keep the store opened. Trant also voluntarily told
Stawarz that he had signed a card.
In a second conversation with Trant, perhaps 3 days later, Trant told Stawarz
that he had changed his mind and would vote against the Union.
About the same time, Stawarz had a conversation with employee David Stebbins.
ED'S FOODLAND OF SPRINGFIELD, INC. 1259
Stawarz showed Stebbins his financial statement showing losses and said he would
gives raises as soon as he could. Stawarz also showed Stebbins the Union's telegram
and asked him if he knew anything about it to which Stebbins answered that he did.
Stebbins further told Stawarz that,- he Stebbins, had been approached by the Union
and was thinking about it.
On the morning of July 30, Stawarz engaged employee Robert E. Dawes in a con-
versation in Stawarz' office. He asked Dawes "Is there going to be a union meet-
ing?" to which Dawes answered "Yes, I am going." During the following week
Stawarz engaged Dawes in another conversation in his office and told him "I can't
afford a union right now . . . if it gets in, I might have to close the store . . . if
things get better, you people may get a raise."
On August 6, Stawarz engaged Barbara McGee in a conversation in his office.
Stawarz showed McGee the union telegram and McGee stated she was familiar with
it. Then Stawarz said to her "I don't know what you are looking for . . . I can't,
really can't afford, you know, the raises and all that everybody wants . even
though the-Union gets in, I can still fire you." He also showed McGee the profit
and loss statement. Then, he told McGee that if he had to give the employees any
more money he would have to close the store doors.
On the morning of August 10, 1965, Stawarz spoke to employee Joyce J. McKin-
ney. He asked McKinney what she "thought about this union business." McKin-
ney answered "Corn si, com ca" Stawarz then asked McKinney if she knew "if the
Union got in there that he would have to close the door." Then he showed her
some papers and said he owed money to his contractor and to his chief grocery
supplier.
The foregoing events, as related, are based on the testimony of the individual
employees who were interviewed by Stawarz Stawarz' version of the interviews dif-
fered somewhat from that related. He testified that on the advice of counsel each
interview was virtually the same and consisted first of showing the telegram from
the Union to each employee involved, then asking if the employee thought the
Union had majority. Then, according to Stawarz, he showed each employee his lat-
est financial statement and told each, "If the Union were to get in and if their
demands were too high, I might be forced to close."
Stawarz further testified that except for the interview with Joyce McKinney all of
the interviews took place on 2 days, July 29 and 30. He explained that this was so
because it was on Wednesday, July 28, that he spoke to his attorney and they
decided between them what the interview could legally consist of. Stawarz insisted
that the interview contained only the words set forth above. However, I note that
the employees testified that the interviews began as early as July 26, the day the
Union made its demand. While it is undoubtedly true that Stawarz consulted with
his attorney, I find that he did not confine his remarks to the agreed upon language.
Moreover I note that the interviews began before he consulted his attorney. There-
fore, from my observation of the employees who testified and of Stawarz and
because of the discrepancy in the dates, I find and conclude that the versions of the
interviews given by the employees, as heretofore related, were the more credible.
Moreover, the employees differed in their versions of the interviews and I was
impressed with their sincerity and conclude that theirs was not the type of testimony
which normally can be perceived to have been coached and memorized.
At this juncture in the administration of the Act, I deem it unnecessary to cite
numerous authorities establishing the illegality of the interviews. While the Board
has held that inquiry made regarding union status of employees in the unit are law-
ful when made in a context free from threat and coercion and solely for the purpose
of seeking information relative`to the question of whether an employer should or
should not grant recognition to a labor organization,2 I note that in almost every
instance cited above, Stawarz linked the questioning with the threat, overt or
implied, that if the Union were successful the Respondent would close the store.
As can be discerned from a reading of the testimony of the General Counsel's
witnesses, in many instances the threat was overt. It consisted of a flat statement
that if the Union came in the store would be closed. In other instances, and accord-
ing to Stawarz' version, the threat was, perhaps, less apparent because Stawarz
stated that if the Union came in and if he would be forced to pay more than he
could afford, then he might have to close the store. But even if this version were to
be credited and I were to find that this was all that Stawarz told the employees, I
would still be constrained to find that it constituted a threat. The mere fact that it
2 Blne Flash Express, Inc ., 109 NLRB 591.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was conditional does not detract from the coercive effect which it would have had on
the employees. The mere nuances of language, with the insertion of the word "if"
does not make the statement any the less coercive because even under those cir-
cumstances the tendency on the part of employees would be to believe that they
were being threatened.
Moreover, in at least one instance, the threat went beyond the mere closing of
the store. Thus, in, the case of the interview with Barbara McGee Stawarz told her
that even if the Union were successful, he could still discharge her. In another
instance, the interview with Robert E. Dawes, Stawarz directly interrogated Dawes
with relation to whether or not there was going to be a union meeting. This was
not only unlawful interrogation of a classic type, but also contained the inference
that Stawarz was engaging in. surveillance. This impression could not be avoided in
the light of his question 3 I also conclude that the threat to McGee that Stawarz
could still fire her even if the Union came in, was a threat of reprisal for continued
union support.
Thus, I• find and conclude that the Respondent through its president, Edwin
Stawarz, unlawfully interrogated its employees, warned its employees that it would
go out of business if the Union organized its store, created the impression among its
employees that it was engaging in surveillance of their union activities and threat-
ened at least one employee (McGee) with reprisal if she did not refrain from
attending union meetings or continued union activities.
B. The refusal to bargain
1. The appropriate unit
It is alleged in the complaint and admitted in the Respondent's answer that all
employees of Respondent employed at its Springfield. Massachusetts, store, exclusive
of all office clerical employees, professional. employees, guards, and all supeivisors
as defined in Section 2(11) of the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b) of the Act I
so find.
The Respondent contends that Joseph Jaskulski, the meat department manager,
should be excluded from the unit as a supervisor. Stawarz testified that Jaskulski
had the authority to hire and discharge He did all the meat buying and chose the
items to be put on the special list each week. He diiected the meat department
employees in their work and assigned them their work schedules. Although Jaskul-
ski denied that he had the authority to hire and discharge he did admit that he
recommended employees for hire He admitted that he actually passed on
employee Wayne Cincatta before the latter was hired. He further admitted that
he made the primary decision as to the choice of the specials and that practically
all the time he was sustained in his choice by Stawarz He further admitted that
he instructed the employees in the meat department and the delicatessen department
what to do in their work. He also admitted that he did all the meat buying and
that it was his duty and responsibility to see to it that the meat department made a
profit Jaskulski was salaried, whereas all other employees in the department were
paid on an hourly basis.
I find from all of the foregoing, that Jaskulski was a supervisor and that in any
event because of his duties of meat buying and thereby pledging the Respondent's
credit and because of his duties in making up the ads and the specials in the meat
department, he was an employee closely allied with management. Accordingly, I
shall exclude him from the unit.
The General Counsel contends that Barbara Johnston, the office employee, should
be excluded from the unit. Johnston did not testify. Johnston works primauly
in the office where she handles all of the Respondent's correspondence and confi-
dential work. Stawarz testified that Johnston does not have the right to hire,
transfer, suspend, layoff, recall, discharge, discipline, promote or possess any of
the indicia of supervisory authority. However, she together with Jaskulski, hired
Wayne Cmcatta and she also determined, along with Jaskulski, Cincatta's wage
rate Moreover, atter May 1965 there was no manager in the store in Stawarz'
8I have not included in the recitation of events an incident testified to by Joseph
Jaskulski in which as he and employee Scott were leaving the store on the evening of
July 26, Head Cashier Barbara Johnston said that she hoped they had a good time at
Joyce's party, referring to a union meeting which was to be held at the home of em-
ployee Joyce McKinney. I was not impressed with Jaskulski as a witness and employee
Scott, who testified , did not mention this incident in her testimony.
ED'S FOODLAND OF SPRINGFIELD, INC. 1261
absence. In view of the fact that Stawarz was in another store in which he had an
interest much of the time, I credit the testimony of other employees that Barbara
Johnston was in charge of the store during the absence of Stawarz. Moreover,
Johnston is the highest paid female employee in Respondent's store and unlike
the other female employees wore street clothes instead of a smock. Additionally,
Respondent has entrusted Johnston with the combination to the store safe where
the store's office records are kept along with payroll records and the cash for the
registers.
Accordingly, I find merit in General Counsel's contention that Johnston should
be excluded from the unit as a supervisor. Moreover, I also consider Johnston-
in the position of a confidential employee and would exclude her from the unit on
that basi8.4
The Respondent would include and the General Counsel would exclude Albert
Perrault from the unit. Perrault left the Respondent's employ about 10 months
before the hearing herein to enter military service. He was a full-time clerk for
about 1 to 11/2 years prior thereto. The Respondent has made no promises to
Perrault nor is there any agreement with Perrault to rehire him when he returns
from service. Although under the Selective Service Act the Respondent would be
obliged to resume Perrault's employment in the event that he applies for same when
he returns from military service, the Board has held that the number of employees
in the military service are not to be added to the number of employees in the
appropriate unit, who were working at the time of a union's demand for recog-
nition, for the purpose of determining the union's status as the majority representa-
tive. Accordingly, I exclude Perrault from the unit.5
2. The Union's majority status
With the exclusion of Joseph Jaskulski, Barbara Johnston, and Albert Perrault
from the unit, the parties stipulated that as July 26, 1965, the appropriate unit
consisted of 18 employees. The General Counsel submitted 13 signed and dated
union authorization cards. However, inasmuch as I have eliminated Joseph Jas-
kulski from the unit I do not consider his card in determining majority status. With
Jaskulski eliminated, there remained 12 cards out of a unit of 18, which is more
than a bare majority. However, the Respondent would also eliminate the cards of
David Stebbins, Daniel Socha, and Donald LeDue.
With regard to the card of David Stebbins, the date thereon written in Stebbins'
handwriting, as admitted by Stebbins, is July 21, 1965. However, upon questioning
by counsel for the Respondent, Stebbins was certain that the card was signed on a
Saturday at noon ,when he went home from the store for lunch. The calendar for
the year 1965 shows that July 21 fell on a Wednesday and that the Saturdays -during
July were the 3d, 10th, 17th, 24th, and 31st. The Respondent maintains that the
card was signed on the 31st, because Stebbins admitted that possibly this could
have been so. However Stebbins was not at all sure 'in his testimony as to what
date the card was signed. Under these circumstances, since Stebbins was not' cer-
tain as to the date the card was signed, but he was certain that the card was signed
on a Saturday, it would seem that 'the Respondent's argument is reasonable. How-
ever, in any event, the Union's demand made on the 26th was a continuous one
as evidenced by its later participation in the representation case -heretofore men-
tioned Accordingly, I. find, that even 'if' Stebbins -card was not signed 'until the
31st it can and should 'be counted as a card upon which the Union's 'majority may
be based.6
Daniel Socha testified that he was approached to sign his card to, Tony Malan-
drakis, an organizer for the Union: He stated-that 'before he- sigried the card,
Malandrakis stated to him that before the Union could take a vote it had to have
a majority of the cards. iRespondent contends' that this statement of Malandrakis
was manifestly incorrect as shown by the 'card itself which makes no reference
whatever to the requirement of the majority for the purpose of taking a vote. Such
a statement, argues the Respondent, could very well have influenced Socha to sign
a card, even though he may have had no intention' to do otherwise, and should riot
be counted to determine majority.
A See Winn-Dixie Stores, Inc., 124 NLRB 908, 912; The Eavey Company, 115 NLRB
1779,1781-83; The B. F. Goodrich Company, 115 NLRB 722, 724
5 dlarriello Fabrics, Inc , 149 NLRB 333, 335, footnote 8
6 See American Compressed Steel Corporation, 146 NLRB 1463, 1470
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The card signed by Socha on July 21, 1965, as all of the other cards introduced
by General Counsel, contains the statement that the employee named "hereby
authorizes Retail Clerks International Association, AFL-CIO, or its chartered
Local Union to represent me for the purpose of collective bargaining, respecting
rates of pay, wages, hours of employment, or other conditions of employment in
accordance with applicable law."
There is no evidence in the record that Socha was illiterate. My observation
of him at the hearing was that he was a literate individual. There was no ambigu-
ity in the card. Accordingly, unless the Respondent can show some misrepre-
sentation which induced Socha to sign the card despite the wording on the face of
the card, the overt act of Socha signing the card remains an act of designation.
The representation made by Malandrakis, assuming the accuracy of Socha's testi-
mony, would not'constitute such material representation. There was no representa-
tion by Malandrakis to the effect that the card was to be used only for the purpose
of obtaining a secret Board election.?
Having found that the cards of David Stebbins and Daniel Socha should be
included in determining the Union's majority status, I find that on this basis the
Union had a majority of 11 out of 18 employees. Under these circumstances I
find it unnecessary to determine the validity of the card of Donald W. LaDue
which the Respondent also places in issue.
3. Concluding findings with respect to the refusal to bargain
As set forth above, the Union made its demand on the Respondent on July 26,
1965. Two days earlier, Respondent's President Stawarz learned of the Union's
organizational campaign among the Respondent's employees. Beginning on July 26
and continuing until almost the time of the signing of the consent election
agreement, the Respondent, through Stawarz, engaged in a course of conduct which
included numerous and varied violations of Section 8(a)(1) of the Act, as hereto-
fore found. On July 26 the Union, in addition to the sending of a telegram,
addressed a letter to the Respondent, which the Respondent received within a day
or so later, asking the Respondent to recognize it as bargaining representative of
the Respondent's employees. In this letter, the Union stated that it was willing to
submit its authorization cards to an impartial third party in order to prove its
majority status. After some days, during which the unlawful conduct heretofore
related continued, on August 2 the Respondent rejected the Union's request for
recognition stating that it had a good-faith doubt as to the Union's majority status.
The Respondent, on the same day that it rejected the Union's request, filed a repre-
sentation petition with the Board. Thereafter, as noted, a stipulation for certifica-
tion upon consent election was signed by the parties. However, when the Union
filed the instant unfair labor practice charges the Regional Director, as heretofore
related, set the election aside.
It is well settled that an employer may in good faith insist upon a Board election
as proof of a union's majority, but that it unlawfully refuses to bargain if its
insistence on such election is motivated not by any bona fide doubt as to a union's
majority but rather by a rejection of the collective-bargaining principle or by a
desire to gain time within which to undermine the union. The respondent's initial
refusal to recognize and bargain with the union must be examined in the light of
all other relevant facts of the case including the conduct of the respondent, the
sequence of the event, and the time lapse between the refusal and the unlawful
conduct.8
As noted above, the unfair labor practices commenced on the date that the Union
made its demand and continued almost until the consent election agreement was
signed. The antiunion campaign was embarked on by Respondent's President
Stawarz who strongly opposed the Union and in doing so overstepped the bounds of
permissible conduct. I conclude, therefore, from the Respondent's entire coercive
course of conduct herein, which occurred both before and after it refused to recog-
nize the Union, that its refusal to bargain with the Union on October 10 was moti-
vated, not by any good-faith doubt as to the Union's majority, rather both by desire
to gain time in which to dissipate the Union's majority status and bargaining posi-
tion and by a rejection of the collective-bargaining principle. Where, as here, a
union, in fact, represents a majority of the employees, as shown by the union's
T See Englewood Lumber Company, 130 NLRB 394, Cumberland Shoe Corporation, 144
NLRB 1268, Boot-Stec Manufacturing Company, Inc., 149 NLRB 933, 947.
8 Joy Silk Mills, Inc, 85 NLRB 1263.
ED'S FOODLAND OF SPRINGFIELD, INC. 1263
majority showing of authorization cards, and the employer thereafter engages in
unfair labor practices which tend to undermine the union 's majority and which pre-
vent the holding of a fair election , despite the fact that it was the employer who
originally filed the representation petition , the Board may appropriately remedy the
unfair labor practices and restore the status quo by directing the employer to bargain
with the union.9
Accordingly, I find that by refusing to bargain with the Union and insisting upon
an election , the Respondent did not act in good -faith and that its refusal to bargain
with the Union constituted a violation of Section 8(a) (5) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON " COMMERCE
The conduct of the Respondent set forth in section IV, above, occurring in con-
nection with the operation described in section I, above, have a close, intimate, and
substantial relation 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
It having been found that Respondent has engaged in and continues to engage in
certain unfair labor practices , it will be recommended that the Board issue an order
requiring that it cease and desist therefrom , and take certain affirmative action,
including the posting of appropriate notices designed to effectuate the policies of the
Act, as amended.
It having been found that the Respondent by threats, interrogation, and creation
of the impression of surveillance , interfered with, restrained , and coerced employ-
ees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respond-
ent cease and desist therefrom.
It having been further found that the Respondent refused to and continues to
refuse to bargain collectively with the Union, thereby interfering with, restraining,
and coercing employees, I shall recommend that the Respondent cease and desist
therefrom and also, upon request, bargain collectively with the Union with respect to
wages, hours , and terms and conditions of employment and embody in a signed
agreement any understanding reached.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case I make the following: ,
CONCLUSIONS OF LAW
1. Ed's Foodland of Springfield , Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 1459, Retail Clerks International Association, AFL-CIO, is a labor
organization as defined in Section 2(5) of the Act.
3. By threatening its employees with economic reprisals because of their union
activity, by interrogating them concerning union affiliations and activities, and by
creating the impression of surveillance of union activities , thereby interfering with,
restraining , and coercing its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act.
4. All employees of Respondent at its Springfield , Massachusetts, store, exclusive
of all office clerical employees , professional employees, guards, and all supervisors as
defined in Section 2(11) of the Act, constitute the unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
5. At all material times herein the Union , above named , has been and now is the
exclusive representative of all the employees in the appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(a) of the Act.
6. By refusing to bargain collectively with the Union, above named , as exclusive
bargaining representative of its employees in the appropriate unit named above, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
9 See e.g. N.L .R.B. v. The Model Mill Company, Inc., 210 F 2d 829 (C .A. 6) ; N.L.R B.
v. Armco Drainage & Metal Products , Inc., 220 F .2d 573, 577 ( C.A. 6), cert. denied 350
U.S. 838.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings, of fact and conclusions of law and upon
the entire record in this case, I recommend that Respondent, Ed's Foodland of
Springfield, Inc., its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Threatening its employees with economic reprisals should the Union be
chosen by the employees as their bargaining representative, interrogating its employ-
ees with regard to their union activities and affiliations, and creating the impression
of surveillance of employees union activities, in a manner constituting violations of
Section 8(a)(1) of the Act.
(b) Refusing to bargain collectively with Local 1459, Retail Clerks International
Association, AFL-CIO, as the exclusive representative of all its employees in the
following appropriate unit: all employees employed at the Respondent's Springfield,
Massachusetts, store, exclusive of office and clerical employees, professional employ-
ees, guards, and all supervisors as defined in Section 2(11) of the Act.
(c) In any like or similar manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or any other labor organization, to
engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to 'the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a) (3),
as guaranteed in Section 7 thereof.
2. Take the following affirmative action which it is found will effectuate 'the poli-
cies of the Act:
(a) Upon request bargain collectively with aforesaid Union as the exclusive repre-
sentative of its employees in the aforesaid unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its store in Springfield, Massachusetts, copies of the attached notice
marked "Appendix." 10 Copies of the notice, to be furnished by the Regional Direc-
tor for Region 1, shall, after being duly signed by representatives of the Respondent,
be posted immediately upon receipt, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
these notices are not altered, defaced, or covered by any other material.
(c) File with the Regional Director for Region 1, within 20 days of the date of
this Decision, a written statement' setting forth the manner and form in
which it has complied.ii
101n the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" Shall"be substituted for"the words "the Recommehded Order of a
Trial Examiner" in the notice. If the Board''' Order is enforced by a decree of a United
States Court of Appeals, the notice will be'fiirthei amended by the substitution of the
words "a Decree of the United States Court of Appeals, 'Eiiforcing an 'Order" for the
words "a Decision and Order."
In the event that this ReCommended-Oidei is adopted by the 'Board, this provision
shall'be modified to read: "Notify the Regional Dliector for Region 1, In writing, within
10 days from the date of this Order,' chat steps the Respondent 'ha`s takeh to comply
hereinith." - '' -
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 Rela-
tions Act, as amended, we hereby:notify our employees that:
WE WILL NOT threaten our employees with economic reprisals in the event
the Union is selected as bargaining representative of our employees.
WE WILL NOT interrogate our employees Concerning their union activities in a'
manner constituting interference, coercion, and restraint in violation of Section
8 (a)( 1 ) of the Act.
WE WILL NOT in any manner create the impression of surveillance of our
employees union activities in a manner constituting interference, coercion, and
restraint in violation of Section 8(a)(1) of the Act.
THURSTON MOTOR LINES, INC . 1265
WE WILL, upon request , bargain collectively with Local 1459 Retail Clerks
International Association , AFL-CIO, as exclusive bargaining agent of the
employees in the appropriate unit with respect to rates of pay, wages, hours of
employment , or other conditions of employment , and if an understanding is
reached , embody such understanding in a signed agreement . The appropriate
unit is:
All employees employed at our Springfield , Massachusetts , store, exclusive
of office clerical employees , professional employees , guards, and all super-
visors as defined in Section 2(11) of the Act.
WE WILL NOT in any like or similar manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join, or
assist Local 1495 , Retail Clerks International Association , AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their
own choosing and to engage in other concerted activity for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a) (3), as guaranteed in Section 7
thereof.
All our employees are free to become , remain , or refrain from becoming or
remaining , members of any labor organization.
ED'S FOODLAND OF SPRINGFIELD, 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 pro-
visions, they may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building , 24 School Street , Boston, Massachusetts 02108,
Telephone 223-3353.
Thurston Motor Lines, Inc. and Teamsters, Chauffeurs , Helpers
and Taxicab Drivers Local Union 327, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America . Cases 26-CA-2078,2,3,4,5,2118,2133,
and 2157. June 24,1966
DECISION AND ORDER
On March 14, 1966, Trial Examiner David S. Davidson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision, and the Intervenor, Transportation
Employees Association, filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and a supporting brief, and
the Intervenor filed a reply brief to the General Counsel's cross-
exceptions.
159 NLRB No. 120.
243-084-67-vol. 159-81