El Rancho Market

National Labor Relations Board - Board Decisions

Mar 30, 1978

235 N.L.R.B. 468 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
El Rancho Market and Retail Clerks Union, Local
899, Retail Clerks International Union and Meat
Cutters Union Local No. 556, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Cases 31-CA-5954, 31-CA-602, 31-
RC-3587, 31-CA-5962, 31-CA-6640, and 31-
RC--3588
March 30, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On October 5, 1977, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief.
Respondent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that the record evidence conclusively estab-
lishes numerous violations of Section 8(a)(1) and (3)
of the Act by this Respondent prior to the date of
informal settlement agreements approved by the
Regional Director for Region 31 on August 27,
1976.1 However, based on his further finding that
Respondent did not engage in conduct violative of
the Act after the date of the settlement agreements,
the Administrative Law Judge recommended dismis-
sal of the instant amended consolidated complaint in
its entirety. He also concluded that the Charging
Parties' objections to the elections conducted on
October 6, 1976, lack merit and recommended that
the Board certify the results of the elections.2
Contrary to the Administrative Law Judge, we find
that Respondent violated Section 8(a)(1) of the Act
by its conduct between August 27 and October 6,
1976. Accordingly, we find that the Regional Direc-
tor acted properly in vacating and setting aside the
settlement agreements of the prior unfair labor
practice cases. Inasmuch as we find merit in the
The settlement agreements were reached in connection with a consoli-
dated complaint alleging that Respondent had violated Sec. 8(aXS), (3), and
(I) of the Act.
2 Each of the Charging Parties was defeated by a single vote in the
respective elections.
235 NLRB No. 61
Charging Parties' objections to the October 6 elec-
tions, we shall order that the elections be set aside.
Finally, in light of our examination of the record as a
whole and after careful consideration of all of the
relevant circumstances of this case, we are satisfied
that Respondent's unlawful conduct was so serious
and extensive, and its effects so likely to be lingering,
that there is little possibility of holding a fair election.
Hence, we shall direct Respondent, upon request, to
recognize and bargain with the Charging Parties.
The record in this case includes testimony from a
large number of witnesses concerning numerous
incidents which occurred over a 7-month period,
alleged to be violations of the Act. In view of both
the complexity of this record and the Administrative
Law Judge's failure to discuss fully the factual
background of the case, we shall set forth the record
evidence in detail.
The record shows that on February 27, 1976,
representatives of the Charging Parties went to
Respondent's store, proffered authorization cards,
and demanded recognition in separate grocery and
meat department units. After some brief discussion
of the matter, Respondent's owner, Helmut Holzheu,
agreed that he would check with his accountant and
his attorney and would contact the Charging Parties
in the near future. On March 3, Respondent, through
counsel, rejected the Charging Parties' demand for
recognition and stated its preference for an election.
On the same day Holzheu was presented with the
authorization cards, he insisted to employee Gwen
Templin, over her protests, that he had seen her
name on a card. The next morning Holzheu ques-
tioned employee Fred Golin, a card signer, about
union meetings and asked where the meetings had
been held and the identity of the employees who had
attended. Later that same morning Holzheu's wife,
Doris, approached Golin and commented, "I hope
you're not getting the Union in because you haven't
got your insurance yet." 3 Later that day Holzheu
asked employee Eileen Cherry if she had gone to a
union meeting, and the next day Doris Holzheu
questioned Cherry about the Union and remarked
that it was not too late for Cherry to change her
mind.
Within a few days after receiving the cards Hol-
zheu warned employee Lee Ann Lowry that if the
Unions came in the store would probably go to a
self-service counter and some employees would be let
go. The Sunday after he received the cards Holzheu
engaged employees Dupere, Ames, and Templin in
3 Thereafter Golin was granted insurance. The Administrative Law
Judge found that the grant of this benefit was unlawful but through
inadvertence connected this incident with employee Joe Dupere. We hereby
correct the Administrative Law Judge's error.
468
EL RANCHO MARKET
separate conversations about the Unions. Holzheu
asked Dupere why the latter had signed a card,
remarked that Respondent could not afford a union
and might sell out, and added that a potential buyer
would bring in its own employees. Holzheu also
questioned Ames about signing a card and inquired
what "the problem" was, and whether Ames believed
the store had done enough for him. Holzheu coun-
seled Ames not to have "an outsider talking for him"
and observed that Ames had "a bright future" with
the store. Finally, during several conversations with
employee Templin on that Sunday, Holzheu stated
that he would probably have to close down the meat
counter if the Unions came in and he would get rid
of the counter girls because he could not afford the
Unions. At one point he also stated that he might
close down the store entirely.
Both the Holzheus spoke with employees about the
Unions in March 1976. During the first week of
March, Helmut Holzheu told Ames that he had two
offers to sell the store and if he did sell Ames would
lose his job. Holzheu added that if the Unions won
the elections Ames, at the time an assistant manager,
would be "put back in the ranks."
Holzheu had three conversations with employee
Golin about the Unions in March. About a week
after the card signing, Holzheu told Golin and
another employee, Mark Taylor, that they would get
union wages "whichever way this election goes."
Shortly thereafter Holzheu confided in Golin that
Respondent was considering reinstating a discontin-
ued 10-percent discount on groceries for employees.
About a week after these two conversations, Holzheu
informed Golin and other employees that the store
would be sold if the Unions came in.
Doris Holzheu also had several conversations with
employees in March in which she intimated that the
consequences of union victory in the elections would
be cutbacks in the number of employees or the sale
of the store. She reiterated her statement to Lowry
that the meat department would probably be made
self-service and, after complaining that she could not
4 Although the Administrative Law Judge found the April 26 meeting
violated the Act, he predicated Respondent's responsibility for this incident
on Gene Strausser's position as store manager and statutory supervisor. In
this connection, the Administrative Law Judge found "a serious difference
of opinion as to whether or not Gene Strausser was actually authorized or
told to hold an employees' meeting on April 26" to solicit grievances and
promise benefits. Consistent with his handling of numerous other factual
and credibility conflicts arising from this litigation, the Administrative Law
Judge apparently found it unnecessary to resolve this "serious difference of
opinion."
We are satisfied that the record warrants a finding that Respondent's
owner urged and authorized Strausser to hold the meeting. Not only the
weight of the testimony but also the inherent probabilities of the situation
favor such a conclusion. Thus, Strausser testified that Holzheu directed him
to hold the meeting and furnished him with a list of benefits, including
specific wage increases for named employees, to be presented at the
meeting. Although Holzheu testified that it was Strausser's idea to hold the
meeting, he conceded that he discussed the meeting with Strausser and
handle it anymore "because of all the problems," she
asked employee MacLaren whether MacLaren
would like to buy the store because it was for sale.
Finally, in April 1976, Mrs. Holzheu questioned
employee Cherry about a scheduled union meeting.
Nor did Respondent confine itself to words alone.
Helmut Holzheu conceded that on March I he
changed the work schedules of several employees
who were card signers and cut their hours. Moreover,
Holzheu admitted that the schedule changes and
reductions in hours were related to his employees'
union activity. In fact, when employee Templin
complained about having her schedule changed and
her worktime reduced from 5 to 4 days, Holzheu
remarked: "Well, what we are trying to do is give you
a second chance to have a vote as far as the Union
goes . . . just give people a second chance." Al-
though Holzheu later rescinded the schedule
changes, apparently on the advice of counsel, em-
ployees Pat Strausser and MacLaren, both of whom
were card signers and known union adherents, lost
wages in the interim.
In April 1976 Helmut Holzheu also urged Store
Manager Gene Strausser to hold a meeting with
employees to find out what they wanted and what
the store could do for them. At the meeting held on
April 26 at Respondent's store premises, employees
were presented with Holzheu's proposals for improv-
ing working conditions, wages, and benefits. These
proposals included specific wage increases for vari-
ous named employees, a profit-sharing plan, added
vacation time, and a 10-percent discount for employ-
ees on their groceries. 4 Thereafter, in late June and
early July, a number of employees received substan-
tial wage increases. At the time he granted the
increases, Holzheu told one employee, Eileen Cherry,
that he wanted to put all "this union business" in the
past and did not "want to turn around corners and
find employees talking union."
agreed it was a good idea. Holzheu also claimed that he eventually told
Strausser that he, Holzheu, could not make any promises and could not
make an appearance at the meeting. However, he also conceded that he did
not tell Strausser to cancel the meeting.
In finding Strausser's testimony that Holzheu instigated the meeting
credible, we note that Strausser was himself a union card signer and
supporter and thus it seems highly improbable that he would be the moving
force behind such a meeting. We also note that Strausser's testimony
concerning specific benefits and wage increases presented at the April 26
meeting was corroborated by the testimony of a number of other witnesses.
Again it seems highly improbable that Strausser, on his own motion, would
produce a list of specific wage increases for employees. Finally. it is
significant that within a month of the meeting, and long after Strausser had
left Respondent's employ, Holzheu granted precisely the sort of wage
increases that had been promised at the meeting. Thus, all the relevant
circumstances directly point to the conclusion the Administrative Law
Judge declined to draw-that Holzheu was personally responsible for the
April 26 meeting.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While orchestrating the extensive and unlawful
antiunion campaign outlined above, the Holzheus
struck several recurrent notes.5 First, they repeatedly
threatened adverse economic consequences if em-
ployees selected union representation. Preeminent
among these threats were warnings of store closing or
sale or, at the very least, reductions in the employee
complement. Second, the Holzheus coupled unlawful
threats of economic retaliation and job loss with
promises of increased benefits, including wage in-
creases and expanded participation in various im-
proved fringe benefits, if employees abandoned their
support for the Unions. Finally, the Holzheus swept
away any lingering doubts about their willingness
and ability to make good both their threats and their
promises first by cutting the hours of several known
union adherents and later by implementing substan-
tial wage increases for most employees. What this
record reveals, in short, is a classic example of an
employer's resort to the "carrot and stick" tactic to
thwart its employees' exercise of statutory rights.
Postsettlement Conduct
Before discussing Respondent's postsettlement
conduct, some comment on the Administrative Law
Judge's handling of credibility is in order. The
General Counsel excepted to the Administrative Law
Judge's treatment of credibility and urged the Board
to reexamine the Administrative Law Judge's resolu-
tion of credibility issues. The General Counsel notes
that, on the one hand, the Administrative Law Judge
failed to make precise credibility resolutions with
respect to testimony concerning certain incidents
alleged to have violated the Act.6 The General
Counsel maintains that when the Administrative
Law Judge did resolve credibility conflicts, on the
other hand, the basis on which such resolutions were
drawn were either vague or inherently implausible.
5 In a brief conclusionary paragraph, the Administrative Law Judge
found that Respondent engaged in "several acts . . . violative of Section
8(aXl) and in discriminatory conduct violative of Section 8(a)(3)" between
February 27 and July 27. In language more precise than that used by the
Administrative Law Judge, we find that, by the conduct described earlier
herein, Respondent violated Sec. 8(aXl) by interrogating employees about
union activity; by creating an impression of surveillance over union activity;
by threatening to close the store, sell the store, or cut back the number of
employees if the Union won representation rights; by soliciting grievances;
and by promising and granting benefits to employees to dissuade them from
engaging in protected activity. In addition, we find that Respondent
violated Sec. 8(aX3) by altering the work schedules and reducing the work
hours of employees because they signed union authorization cards.
·6 Indeed, the General Counsel argues that the Administrative Law Judge
totally ignored certain allegations of the complaint and either failed to
analyze fully or confused relevant testimony concerning other allegations.
I Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362(C.A.3, 1951).
s W. T. Grant Company, 214 NLRB 698 (1974).
9 Northridge Knitting Mills, Inc., 223 NLRB 230 (1976); Warren L Rose
Castings, Inc. d/b/a V & W Castings, 231 NLRB 912 (1977). See also Gold
Standard Enterprises, Inc., 234 NLRB No. 64 (1978).
l0 The Administrative Law Judge comes closest to predicating a
We find merit in the General Counsel's complaint.
Of course, it is well settled that the Board will not
displace an Administrative Law Judge's credibility
resolutions which are based on his observation of
demeanor unless a clear preponderance of all the
relevant evidence convinces us they are incorrect.7 In
such circumstances, however, the factor of demeanor
is significantly diminished.8 And, as we have had
occasion to point out, in any event the ultimate
choice between conflicting testimony rests not only
on the demeanor of the witnesses, but also on the
weight of the evidence, established or admitted facts,
inherent probabilities, and reasonable inferences
drawn from the record as a whole.9
In the instant case, although the Administrative
Law Judge referred generally to the demeanor factor,
it does not appear that specific credibility resolutions
were based on his observations of the witnesses'
testimonial demeanor.10 Furthermore, the record
sustains the General Counsel's contention that the
Administrative Law Judge ignored, misstated, or
confused much of the relevant record evidence and
testimony presented in this case. Given these circum-
stances, we have found it necessary to examine the
record de novo and to make, where appropriate,
credibility findings that comport with the record
evidence as a whole and with the inferences fairly
drawn therefrom.
We turn now to Respondent's postsettlement con-
duct which we find, contrary to the Administrative
Law Judge, violated the Act and warrants setting
aside and vacating the settlement agreements.
The first such conduct involved employee Eliza-
beth Andrews, who testified that in September Doris
Holzheu told her "if the store went union [Respon-
dent] couldn't afford to keep the girls in the meat
department." Although Doris Holzheu admitted the
substance of this conversation and the Administra-
credibility resolution on demeanor in discrediting employees Wolters and
Hamilton. We shall consider Hamilton's testimony hereafter. As for
Wolters, the Administrative Law Judge stated that Wolters' testimony was
"deliberately contrived in an effort to aid his personal cause." This
apparently was in reference to Wolters' discharge allegedly for stealing from
Respondent. Inasmuch as the discharge was not in issue in this case,
although apparently the subject of a pending unfair labor practice charge,
and Wolters has concededly never been charged with theft, it is not clear
that Wolters had a "personal cause" he hoped to advance by untruthful
testimony here. Be that as it may, the Administrative Law Judge also
indicated that he discredited Wolters because the former's testimony
conflicted with that of other witnesses (although the Administrative Law
Judge gives no particulars of any such conflicts).
It is worth noting that Wolters' testimony was in large part consistent
with, or corroborated by, the testimony of other witnesses. Thus, for
example, the Administrative Law Judge concedes that both Wolters and
employee Ames testified to certain statements made by Respondent.
Apparently the Administrative Law Judge found that the statements,
relating to increased workload and productivity, were made but found it
unnecessary to pass on their lawfulness because of his conviction that they
were uttered by Holzheu prior to the date of the relevant settlement
agreements.
470
EL RANCHO MARKET
tive Law Judge specifically found that such a
conversation took place, he declined to find a
violation. In so doing, the Administrative Law Judge
concluded that a statement "that some reduction in
personnel among the counter girls in the meat
department might result from unionization . . . was
not coercive nor was it intended to be." The
Administrative Law Judge also observed that reason-
able predictions of economic consequences do not
necessarily violate the Act.
At the outset we disavow the implication, inherent
in the approach taken by the Administrative Law
Judge to this and certain other 8(a)(l) allegations of
the complaint, that the touchstone of such a violation
is a determination of intent and effect."I It is too well
settled to brook dispute that the test of interference,
restraint, and coercion under Section 8(a)(1) of the
Act does not depend on an employer's motive nor on
the successful effect of the coercion. Rather, the
illegality of an employer's conduct is determined by
whether the conduct may reasonably be said to have
a tendency to interfere with the free exercise of
employee rights under the Act. 2
Applying this standard to this incident, we are
satisfied that a violation is made out. Thus, the
Administrative Law Judge ignored the fact that the
warning of job loss in the event of unionization made
by Doris Holzheu in September is precisely of a piece
with threats and warnings repeatedly made by the
Holzheus to both grocery and meat department
employees in March, April, May, and June, which
even the Administrative Law Judge would have
found unlawful when uttered at those times.'3
Nor is Doris Holzheu's statement saved from
illegality as a mere prediction based on objective
facts of the likely consequences of unionization.' 4
Indeed, although the Holzheus repeatedly warned
employees that Respondent could not afford the
Unions and would have to close or reduce services or
sell out, at no time did the Holzheus present any
" Thus, for example, in discussing a conversation between Holzheu and
employee Dave Morris shortly before the elections, the Administrative Law
Judge voiced the opinion that "it seems unlikely" that Moms viewed the
conversation as containing a promise of benefit associated with the union
campaign. In this connection, the Administrative Law Judge also appears to
have given weight to the fact that Holzheu never specifically mentioned the
Union during the conversation. (Morris testified that Holzheu told him,
"Those who are in favor of the company could be taken care of by the
company.")
As explained herein, it is clear that the lawfulness of an employer's
conduct does not turn on whether or not a particular employee feels that the
conduct complained of has interfered with, restrained, or coerced him in the
exercise of his Sec. 7 rights. Furthermore, contrary to the tack taken by the
Administrative Law Judge, the absence of a specific reference to the Unions
during the conversation means little. Thus, the cases are legion holding that
a veiled promise or threat violates Sec. 8(a)(l) of the Act just as surely as do
more explicit promises or threats. To hold otherwise would merely reward a
wrongdoer for his circumspection.
12 See American Freightways Co., Inc. 124 NLRB 146 (1959).
objective facts or figures from which such predictions
might reasonably have been made. In fact, Helmut
Holzheu conceded at the time he commenced telling
employees he could not afford the Unions he had not
received any financial reports on the store's opera-
tions and had no idea of the store's actual financial
posture. Respondent's position is also undercut by
the fact that the Holzheus concededly granted
employees substantial across-the-board increases in
June and July to stall the Unions' drives. Given these
circumstances, there is a decidedly hollow ring to any
claim that in telling employees they could not afford
the Unions and might sell out or eliminate jobs the
Holzheus were merely voicing a reasonable predic-
tion "as to demonstrably probable consequences
beyond [their] control."
We also find a violation of Section 8(a)(l) of the
Act predicated on Helmut Holzheu's conversation
with employee Golin in Holzheu's office in Septem-
ber. s5 Golin testified that during this conversation
Holzheu remarked that he would not sign a union
contract. Holzheu also pointed out that if the store
went union Golin's work schedule would probably
be reduced to 40 hours a week.
In connection with Holzheu's statement that he
"wouldn't sign" a union contract, Golin initially
testified that Holzheu's words were that he "didn't
have to sign." Golin's memory was refreshed after
examining his affidavit and he testified that his best
recollection was that Holzheu stated he "would not
sign a contract" even if the Unions won. It is worth
noting that other employees also specifically testified
to statements by Holzheu that he would not sign a
contract. Thus, employee Penca testified to a conver-
sation with Holzheu in late September during which
Holzheu remarked that he would refuse to sign a
contract even if the Unions won the elections. And
employee Ames recounted a similar conversation
13 Nor is there merit to the Administrative Law Judge's suggestion that
no violation can be found because Andrews worked in the grocery section
and the threat related to counter girls in the meat department. As noted
above, threats and warnings of sale, of partial or total closing, and of job
loss had been made repeatedly to both grocery and meat department
employees. One can reasonably infer that reports of such dire consequences
of unionism circulated rapidly throughout the store and had wide currency
among all employees. One can also reasonably infer that Andrews and other
grocery employees would recognize that the Holzheus' opposition to
unionism and their efforts to thwart the employees' protected activity did
not end with their expressions of hostility to the Meat Cutters.
14 See, generally, N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969).
~ The Administrative Law Judge analyzed a second conversation which
took place in September in the meat department and involved Golin,
Helmut Holzheu, and the employee of another employer. The Administra-
tive Law Judge found nothing in this conversation which amounted to a
violation of the Act, but he failed to pass on Golin's testimony concerning
his pnvate conversation with Holzheu in the latter's office.
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Holzheu which occurred about a week before
the elections.' 6
Although the Act does not compel an employer to
agree to any specific proposals made by a bargaining
agent,17 and an employer is free to so inform
employees, an employer's announcement to employ-
ees of its disinclination in advance to agree to any
bargaining proposals or to reach any overall agree-
ment with the bargaining agent stands on an entirely
different footing. The Board has long recognized that
statements of this latter kind amount to an anticipa-
tory refusal to bargain and inculcate in employees a
sense of futility about the exercise of free choice in
selecting a representative for collective bargaining.
Hence, the Board has held that such statements
constitute unlawful interference with the exercise of
Section 7 rights.'8
Our examination of the relevant record evidence
convinces us that Helmut Holzheu told Golin and
other employees, including Penca and Ames, that
even if the Charging Parties were successful in the
October elections Respondent would not reach and
execute collective-bargaining agreements with them.
We find that such statements violated Section 8(a)(1)
of the Act.
We turn now to the events which immediately
preceded the October 6 elections. The most impor-
tant of these incidents was the meeting for employees
conducted by the Holzheus on October 4. Although,
as noted by the Administrative Law Judge, there is
considerable conflict in the record over precisely
what was said at the meeting, and although we have
serious reservations over the manner in which the
Administrative Law Judge handled these conflicts,' 9
nevertheless largely uncontroverted testimony does
establish some parts of the scenario. Thus, testimony
by several witnesses indicates, and Respondent
concedes, that the meeting was not limited to the
reading of a written statement by Helmut Holzheu.
Rather, there were off-the-cuff comments by Mrs.
16 The Administrative Law Judge failed to pass specifically on the
credibility of Penca and Ames or even to discuss these alleged incidents.
Employees Wolters, Golin, and Diane Hamilton also testified to remarks by
Holzheu during a meeting with employees held on October 4 during which
Holzheu allegedly stated that he did not have to agree to anything the
Unions proposed and would not sign a contract.
lt See Sec. 8(d) of the Act.
is See Hicks-Ponder Co., A Division of Blue Bell, Inc., 186 NLRB 712,
714-715 (1970); Hart Beverage Co., Inc., d/b/a Pepsi-Cola Bottling Co. of
Sioux City, Iowa, 185 NLRB 785, 790-791 (1970).
19 The Administrative Law Judge's treatment of Diane Hamilton's
testimony is particularly troublesome. Hamilton testified to two incidents in
October. The first was a conversation with Mrs. Holzheu on October 2,
during which Mrs. Holzheu allegedly stated that Respondent could not
afford a union and would close if the Unions came in. The Administrative
Law Judge failed to make specific findings with respect to this conversation.
The Administrative Law Judge discredited Hamilton's testimony con-
cerning the second incident, the October 4 meeting, with the observation
that at the time Hamilton testified she was under "emotional stress" because
of a death in her family. The Administrative Law Judge also concluded that
Holzheu, questions, comments, and interjections by
several employees, and responses by either one or
both of the Holzheus. Doris Holzheu told employees
"if there's a problem we should iron it out ourselves.
We should have better communications and perhaps
it was our fault." When employee Wolters' com-
plained about the amount of money being spent by
the Holzheus to defeat the Unions and urged that
money would be better spent increasing wages, Mrs.
Holzheu replied that if Wolters did not like it he
should leave. Thereafter, according to testimony of
employee Alvarez, which was not discussed by the
Administrative Law Judge, Mrs. Holzheu asked
employees in general "if there was to be changes
what would you like to be changed." Mrs. Holzheu
then went from employee to employee asking them
whether they were "happy with the job" and what
would they like to see changed.
We find that Mrs. Holzheu violated the Act by
soliciting employee grievances and by promising, at
least impliedly, that such grievances would be reme-
died. In this connection, we are mindful that Respon-
dent's presettlement conduct prominently featured
just such solicitation of grievances coupled with
explicit promises of benefits to employees.2 0 It is also
evident from the record that Respondent had no past
practice of soliciting employee grievances and that
the October 4 meeting, which Mrs. Holzheu seized
upon as an opportune time to solicit grievances, was
planned solely in response to the Unions' drives. In
just such cases, the Board has repeatedly found a
violation of the Act.2 1 Furthermore, in view of all the
surrounding circumstances, particularly her admon-
ishment to Wolters to leave Respondent's employ if
he did not like Respondent's opposition to the
Unions' drive, we find that Mrs. Holzheu's question-
ing of individual employees at the October 4 meeting
amounted to interference and coercion proscribed by
Section 8(a)(l) of the Act.2 2
Hamilton's testimony was in "direct conflict" with a statement given by her
to Respondent's counsel on March 4, 1977.
The Administrative Law Judge was plainly entitled to consider that
Hamilton claimed current recollection of events that she formerly could not
recall, even though in our view this falls somewhat short of a "direct
conflict" in her testimony. Be that as it may, we see no reason why any
weight should be accorded a circumstance such as a death in a witness'
family in determining that witness' truth and veracity. We conclude,
therefore, that the Administrative Law Judge's reliance on that factor was
improper.
20 Indeed, the October 4 meeting should be viewed against the backdrop
of the unlawful April 26 meeting which Respondent called to solicit
grievances and to present employees with specific proposals for increased
benefits.
21 See, for example, Hadbar, Division of Pur 0 Sil, Inc., 211 NLRB 333
(1974); Swift Produce, Inc., 203 NLRB 360 (1973); and Reliance Electric
Company, Madison Plant Mechanical Drives Division, 191 NLRB 44 (1971).
22 See Padre Dodge, 205 NLRB 252 (1973); Vincent's Steak House, Inc.,
216 NLRB 647, 650 (1975).
472
EL RANCHO MARKET
Before passing to other matters, some brief com-
ment is necessary concerning the Administrative
Law Judge's treatment of Respondent's announce-
ments about the employee profit-sharing plan. It is
uncontroverted that at the October 4 meeting Hel-
mut Holzheu made several references to such a plan.
Employee Golin testified that Holzheu stated he had
a profit-sharing plan that many employees would
begin to participate in during the next few years.
Golin also testified that Holzheu stated, in reply to a
question, that he and Manager Art Thompson were
working on the profit-sharing plan but he, Holzheu,
could not discuss it yet. Holzheu also referred to
changes in the profit-sharing laws which would affect
the plan and would be explained to employees
thereafter.
The Administrative Law Judge found no violation
in Holzheu's references to the plan. In so finding, the
Administrative Law Judge observed that testimony
by several employees established "knowledge of the
existence of the plan, although they were not familiar
with the details or when one qualified for the plan."
Accordingly, the Administrative Law Judge appar-
ently concluded, albeit his conclusion is not clearly
articulated, that Respondent could not have violated
the Act by making references to a benefit already in
existence.
In fact, the record establishes that a profit-sharing
plan, if one existed, was for all practical purposes
very much a "will o' the wisp." Thus, although the
question of such a benefit was plainly a matter of
much expressed concern by employees,2 3 insofar as
this record shows, there is not a shred of evidence
that any employee had ever been given any details
concerning such a plan. Nor is there any evidence
that any employee had ever received any proceeds
from such a plan even though some employees had
worked for Respondent for several years. Given
these circumstances, we find, contrary to the Admin-
istrative Law Judge, that Holzheu's remarks about
working with Thompson on the plan, about the large
number of employees soon to participate in the plan,
and about other unidentified changes in the plan that
would be explained to employees in the future,
amounted to a veiled promise of benefit which
violated Section 8(a)(1) of the Act.2 4
23 It will be recalled that former Store Manager Gene Strausser testified
that Holzheu suggested that participation in a profit-sharing plan be one of
the benefits proposed at the Apnl 26 meeting with employees.
24 In the absence of exceptions thereto, we adopt pro forrna the
Administrative Law Judge's recommended dismissal of the remaining
8(a)(l) allegations of the consolidated complaint.
25 The parties stipulated to the appropriateness of such units in
connection with the October 6 elections. Moreover, the Board has long
recognized that such units are ordinarily appropriate and nothing in this
record compels a conclusion that such units are inappropriate here. See
Mock Road Super Duper, Inc., 156 NLRB 983 ( 1966).
The Units
Although we agree with the Administrative Law
Judge that separate grocery and meat department
units are appropriate, 2 5 we do not agree with his
suggestion that most of the authorization cards
secured by the Unions were tainted because of Store
Manager Gene Strausser's participation in the
Charging Parties' campaign. Based on the record
evidence that Strausser scheduled grocery depart-
ment employees, possessed authority to direct them
in their work, and had on one occasion hired a clerk,
there is little doubt that he was a supervisor within
the meaning of the Act. Nonetheless, Strausser's
authority was quite limited and his status, both in his
own eyes and in the eyes of other employees, was
uncertain. 26 Thus, it is uncontroverted that at least
one of the Holzheus was present in the store during
nearly all the hours it was open and that the
Holzheus were basically "in charge" when they were
on the premises. 27 Furthermore, the record fails to
evidence Strausser's exercise of many of the powers
commonly recognized as indicia of supervisory sta-
tus.2 8
As for the extent of Strausser's involvement in the
Unions' organizing campaign, the record is clear that
he neither instigated the union activity at the store
nor took a leading part at the initial organizing
meetings. In fact, it appears from the record that
Strausser was approached by rank-and-file employ-
ees who had already made up their minds that they
wanted union representation and who were interest-
ed in Strausser's opinion. Just as clearly, these
employees viewed Strausser's interests as more close-
ly allied to their own interests than to those of
management. Finally, it appears that Strausser's
involvement was limited to passing out three of the
authorization cards relied on by the Unions.
This Board has long recognized that a supervisor's
involvement in organizational activities will taint a
union's card majority only where the supervisor's
participation may be said to have deprived employ-
ees of the opportunity to exercise free choice in
selecting a collective-bargaining representative.2 9 In
explicating this principle, we have pointed out that at
a minimum it must be affirmatively established either
that the supervisor's activity was such as to have
2 Compare Aero Corporation, 149 NLRB 1283 (1964); Heck's, Inc., 156
NLRB 760(1976).
27 Indeed, the Administrative Law Judge tacitly acknowledged Straus-
ser's relatively low-lived status in Respondent's hierarchy by observing that
Strausser could fairly be characterized as a "weak supervisor."
28 Thus, with the exception of the single instance when he hired a clerk.
who was fired the next day by Doris Holzheu, the record fails to show that
Strausser regularly played any role in hiring, firing, disciplining, or
evaluating employees.
29 See Juniata Packing Company. 182 NLRB 934 (1970).
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implied to employees that their employer favored the
union or that there is cause for believing that
employees were coercively induced to sign authoriza-
tion cards because of fear of supervisory retalia-
tion.3 0 As indicated above, based on our examination
of the record as a whole, we are satisfied that neither
of these conditions is present in the instant case.
We are also satisfied that by February 28, 1976,
after the Charging Parties had sought recognition
and Respondent embarked on its course of unlawful
conduct, the Charging Parties held valid authoriza-
tion cards from a majority of the employees in each
of the units we have found appropriate. Thus, the
record warrants a finding that on that date 17
employees could properly have been included in the
grocery unit.31 Of this number, 14 employees had
signed authorization cards. Even though we will not
count the cards signed by employees Hamilton,
Cunningham, and MacLaren, all of which the statu-
tory supervisor, Gene Strausser, solicited, this leaves
a total of I valid cards in favor of the Retail Clerks
Union.
We further find that on the critical date there were
eight employees-Penca, Rosemary Quiroga, Du-
pere, Hughes, Gondolfo, Ramirez, Templin, and
Lowry-who could properly be included in the meat
department unit. Mansfield Turney, a retired butch-
er, and David Reed, a "clean up boy," were not in
the unit. Thus, Turney had no regular work schedule
but was occasionally called in by Helmut Holzheu to
substitute for a meat cutter. It does not appear that
Turney worked any hours during the payroll period
ending February 27, 1976, and, based on the record
as a whole, we conclude Turney was a casual
employee. Reed was a high school student whose
duties included cleaning tables and the meat grinder
in the meat department area. Reed did not wear the
uniform worn by employees in the meat department
and he did not cut or sell meat. The record discloses
that Reed worked for approximately 2 hours after
school on an irregular basis. Helmut Holzheu testi-
fied that Reed was one of several high school
students who worked intermittently for Respondent
during the school year on a schedule which the
students established more or less for their own
convenience. Although Reed's name appears on the
payroll for the period ending February 27, 1976, it is
not clear how many hours he actually worked in that
payroll period. We conclude that the record evi-
dences that Reed was not a regular part-time
employee as that term is used by the Board and that
30 See Orlando Paper Co., Inc., 197 NLRB 380 (1972).
31 This includes employees Andrews, Ames, Cherry, Geer, Jeffrey
Strausser, Hamilton, Golin, MacLaren, Chiopella, Patterson, Taylor, Patri-
cia Strausser, Alvarez, Wolters, Teirs, Cunningham, and Mike Quiroga.
32 See Albers Super Markets, Inc., I 110 NLRB 474 (1954).
he did not share a community of interest with regular
meat department employees sufficient to warrant his
inclusion in that unit.3 2
As indicated above, we have included in the unit
Rosemary Quiroga and Jane Gondolfo. Although the
General Counsel contends that Quiroga was a
statutory supervisor during the relevant period of
time and hence cannot be included in the meat
department unit, the record fails to show that
Quiroga possessed or exercised any indicia of super-
visory authority at any time. In this connection, we
note that the record establishes that any directions
that Quiroga may have given to the other counter
girls were purely routine in nature and were of the
kind commonly given by more experienced employ-
ees to less experienced employees. As for Jane
Gondolfo, the record establishes, contrary to Re-
spondent's contention, that she was on a leave of
absence as of February 17, 1976, but did not lose her
employee status until early March when she gave
Respondent notice of her intention to quit.3 3
Of the eight employees properly included in the
meat department unit six employees-Penca, Du-
pere, Hughes, Gondolfo, Ramirez, and Templin-
signed cards. Respondent contended that Gondolfo's
card was invalid because she was not an employee;
that Hughes' card was invalid because she asked the
Union to return the card; that Templin's card was
invalid because she was not sure of the date she
signed it; and that Ramirez' card was invalid because
of his language difficulties.
Our finding that Gondolfo retained her employee
status until early March 1976 resolves Respondent's
contentions with respect to the validity of her card.
The record reveals that at the time Ramirez was
solicited he looked at the card and in response to his
questions received an explanation of the card's
significance. There is no evidence that Ramirez was
told that the card was solely for an election nor is
there any evidence to support a conclusion that
Ramirez' command of the English language was so
limited that he could not comprehend the meaning of
the card. Accordingly, we find that Ramirez' card
was valid and should be counted. 3 4 We also find no
reason to invalidate Templin's card. Templin testi-
fied that she signed the card but inadvertently put
down the wrong date, February 26. She testified that
she signed on the day the Union made its demand,
February 27, or the following day, February 28. In
33 Gondolfo testified that she requested and was given time off to get
settled in a new home. Uncontroverted testimony established that Gondolfo
and other employees had been granted such leaves in the past.
34 See Gordon Manufacturing Company, 158 NLRB 1303 (1966).
474
EL RANCHO MARKET
any case Templin's confusion as to the exact date she
signed does not invalidate her card.3 5
Finally, inasmuch as we find that as of February
28, 1976, at the latest, the Union held valid authori-
zation cards from five of the nine employees in the
meat department unit, we find it unnecessary to
resolve the testimonial conflicts concerning employee
Lonnie Hughes' alleged withdrawal of her card. The
record establishes that Hughes was solicited by
fellow employee Mark Taylor on February 26, 1976,
and signed an authorization card on that date. The
next day Hughes changed her mind about supporting
the Union and approached Taylor and employee
Don Ames about her card. There is considerable
testimonial conflict concerning the exact details of
this conversation. It is also unclear when the Union
was actually informed that Hughes wished her card
returned. However, as indicated above, we find it
unnecessary to pass on these issues because a card
majority is clearly established without reference to
the validity of Hughes' card at the time of the
demand.
As noted by the Administrative Law Judge, each of
the Charging Parties filed timely objections to con-
duct affecting the elections conducted on October 6,
1976. Inasmuch as many of the objections raised the
same issues as the conduct alleged in the complaint
as violations of Section 8(a)(1), the Regional Director
consolidated the proceedings for purposes of hearing
and disposition. 36
The Bargaining Order
We have found that Respondent violated Section
8(a)(1) of the Act by interfering with, restraining, and
coercing employees in the exercise of their statutory
rights. Much of this unlawful conduct occurred after
August 6 and 8, 1976, the dates on which petitions
for election were filed herein, and thus the cutoff
dates for consideration as to whether to set aside the
elections because of interference with the employees'
exercise of a free choice in the elections. However,
because we find that the nature and extent of the
unfair labor practices committed make it unlikely
that their effect can now be dissipated merely by a
remedial order limited to the specific violations
found, we conclude that the majority employee
sentiment already expressed through authorization
35 See Essex Wire Corporation, 188 NLRB 397, 412 (1971).
36 In addition, the Charging Parties each alleged that Respondent
surveilled the voting area dunng the election period. We agree with the
Administrative Law Judge that Doris Holzheu's brief appearance on a
stairway near the voting area did not, under the circumstances, amount to
surveillance and was not independent ground for setting aside the elections.
37 As detailed earlier herein, Respondent violated Sec. 8(a)3) of the Act
by changing and reducing the work hours of union adherents and Sec.
8(a)(1) by repeatedly questioning employees about union activity and
creating the impression of surveillance over such activity, by soliciting
cards would be better protected by a bargaining
order than by ordering rerun elections. Hence, we
shall set aside the October 6, 1976, elections, and
dismiss the petitions filed in Cases 31-RC-3587 and
31-RC-3588.
In concluding that a bargaining order is necessary
to remedy fully this Respondent's unlawful conduct
and to effectuate the policies and purposes of the
Act, we have been mindful of our obligation to
consider and to weigh carefully all the relevant facts
and circumstances of the case. In meeting this
obligation here, we have considered not only the
number and the seriousness of the violations found,3 7
but also the small size of the employee complement.
Thus, as we noted earlier, when the Charging Parties
demanded recognition and Respondent launched its
unlawful antiunion campaign there were at most 17
employees in the grocery unit and 9 employees in the
meat department unit. Our experience confirms that
the impact of unlawful practices is greatly heightened
and their effect more difficult to eradicate when
targeted against such a relatively small number of
employees. This is particularly the case when, as
here, individual employees are singled out for face-
to-face confrontations, not with some low-level
supervisor but rather with individuals who, like
Respondent's owners, possess both the power and
the inclination to make good their threats and their
promises.3 8
Nor can we ignore either Respondent's tenacity in
pursuing its goal of denying its employees the free
exercise of their Section 7 rights or the demoralizing
effect that such persistence and zeal in an unlawful
cause is likely to have had on employees. In this
connection, it is worth noting that with its very first
knowledge of its employees' organizing efforts Re-
spondent embarked on an unlawful and widespread
antiunion campaign of over 7 months' duration. It is
also worth noting that by breaching its August 1976
settlement agreements with the Charging Parties,
almost before the ink was dry, this Respondent
demonstrated to employees its contempt both for
their statutory rights and for the legal processes
intended to vindicate those rights. Given these
circumstances, we are convinced that employees are
not soon likely to forget either the worthlessness of
this Respondent's promises to "play fair" or this
grievances and promising and granting benefits, and by threatening
employees because of their involvement in union and other protected
activity.
3a No fewer than 10 employees were so singled out and on one or more
occasions found themselves the butt of coercive questions or of threats from
either Doris or Helmut Holzheu. And, in addition to these incidents,
Respondent arranged the meetings on April 26 and October 4, 1976, dunng
which employees as a group were exposed to unlawful promises of benefit
and to coercive threats related to the Charging Parties' campaign.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's willingness to resort to unlawful means
to frustrate employees' exercise of free choice.
Finally, we must remark on the predominant
theme of Respondent's antiunion campaign-the
certainty of job loss and the likelihood of store
closing or sale if the Charging Parties were successful
in the elections. Thus, from the day they first learned
of their employees' interest in a union until nearly the
eve of the elections, Respondent's owners, addressing
themselves both to individual employees and to
groups of employees, repeatedly returned to the
theme of the inevitability of such adverse conse-
quences of union victory.
This Board has long recognized that such warnings
and threats of job loss and of closing if employees
select union representation are among the most
serious and flagrant forms of interference with
employees' Section 7 rights.3 9 And the Supreme
Court has expressed its view that such threats are
among the less remediable unfair labor practices.4 0
For, when all is said and done, the specter of job loss
and of closing once conjured up is not easily interred.
On the record before us, we think it safe to conclude
that not a single employee here could have been
unaware or unmindful of these threats. Moreover,
given this Respondent's track record of unswerving
hostility to employee rights and to the purposes of
the Act, we think it unlikely that our traditional
remedies will dispel the coercive atmosphere this
Respondent has labored so assiduously to create.
Hence, we conclude that this is one of those cases in
which "employee sentiment once expressed through
cards would, on balance, be better protected by a
bargaining order." 41
In accord with our findings above and upon
consideration of the entire record, we make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Clerks and Meat Cutters are labor
organizations within the meaning of Section 2(5) of
the Act.
3. By engaging in the following conduct, Respon-
dent committed unfair labor practices in violation of
Section 8(a)(l) of the Act:
(a) Threatening employees with loss of jobs, store
closing or sale, and other reprisals if they selected
union representation.
3a Irving N. Rothkin d/b/a Irv's Market, 179 NLRB 832 (1969); General
Stencils, Inc., 195 NLRB 1109 (1972).
(b) Interrogating employees about their reasons for
signing union authorization cards and about their
involvement in union and other protected activity.
(c) Creating an impression of surveillance of
employees' protected concerted activity.
(d) Soliciting employee grievances and impliedly
promising to rectify such grievances.
(e) Promising and granting benefits to employees to
dissuade them from engaging in protected concerted
activities.
4. By discriminating in regard to the terms and
conditions of employment by changing and reducing
the work hours of employees who supported the
Unions, Respondent has engaged in an unfair labor
practice in violation of Section 8(a)(3) and (1) of the
Act.
5. The following described employees of Respon-
dent constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
Unit A: All grocery department employees, but
excluding meat department employees, of-
fice clerical employees, professional employ-
ees, guards, all other employees, and super-
visors as defined in the Act.
6. On or about February 28, 1976, and at all
material times thereafter Charging Party Retail
Clerks Union, Local 899, Retail Clerks International
Union, represented a majority of employees in the
above appropriate unit (designated Unit A) and has
been the exclusive representative of all said employ-
ees for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act; and Respon-
dent was on that date, and has been since, legally
obligated to recognize and bargain with that Union
as such.
7. The following described employees of Respon-
dent constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
Unit B: All meat department employees, but
excluding grocery department employees,
office clerical employees, professional em-
ployees, guards, all other employees, and
supervisors as defined in the Act.
8. On or about February 28, 1976, and at all
material times thereafter Charging Party Meat Cut-
ters Union Local No. 556, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, represented a majority of employees in
the above appropriate unit (designated Unit B) and
4 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 611 (1969).
41 Gissel, supra at 615.
476
EL RANCHO MARKET
has been the exclusive representative of all said
employees for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act; and
Respondent was on that date, and has been since,
legally obligated to recognize and bargain with that
Union as such.
9. By refusing to recognize and bargain collec-
tively with Retail Clerks Union, Local 899, in regard
to employees in Unit A on or about and after
February 28, 1976, Respondent violated Section
8(a)(5) and (1) of the Act.
10. By refusing to recognize and bargain collec-
tively with Meat Cutters Union Local No. 556 in
regard to employees in Unit B on or about and after
February 28, 1976, Respondent violated Section
8(a)(5) and (1) of the Act.
11. The above-described unfair labor practices
affect commerce within the meaning of Section 2(6)
and (7) of the Act.
12. Respondent did not engage in any unfair
labor practices other than those found herein.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1),
(3), and (5) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Inasmuch as Respondent altered employee work
schedules and cut the hours of employees because of
their union adherence, thereby causing two employ-
ees to lose pay, we shall order it to reinstitute the
former work schedule and to make said employees
whole for any loss of earnings suffered by them by
reason of Respondent's discriminatory conduct.
Such backpay is to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon to be computed in
accordance with Florida Steel Corporation, 231
NLRB 651 (1977).42
We shall also order that Respondent preserve and
make available to the Board and its agents, upon
request, all pertinent records and data necessary to
determine the amount of backpay due, and we shall
order Respondent to post appropriate notices.
As indicated previously, we have found that Re-
spondent interfered with the exercise of a free and
untrammeled choice in the October 6, 1976, elections
by its commission of numerous and serious unfair
labor practices. Inasmuch as the nature of these
unlawful practices was such as to foreclose the
possibility of now holding a fair election, we con-
42 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
4' Nothing herein is to be construed as requiring Respondent to revoke
any pay increase or other benefit already granted.
clude that issuance of a bargaining order is warrant-
ed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
El Rancho Market, Solvang, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Clerks
Union, Local 899, Retail Clerks International
Union; Meat Cutters Union Local No. 556, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO; or any other labor organiza-
tion, by changing employee work schedules and
cutting hours or otherwise discriminating in any
manner in respect to employees' tenure of employ-
ment or any other term or condition of employment.
(b) Refusing to recognize and bargain with the
above-named Unions as, respectively, the exclusive
bargaining agents of employees in the above-de-
scribed appropriate units.
(c) Threatening employees with job loss, sale or
closing of the store, or other reprisals if they select
union representation.
(d) Questioning employees about their reasons for
supporting a union and about their involvement in
protected concerted activity generally.
(e) Creating an impression of surveillance of
employees' protected concerted activity.
(f) Soliciting employee grievances and implying
that such grievances will be rectified.
(g) Promising and granting benefits, including
wage increases, to employees to dissuade them from
engaging in protected concerted activity.4 3
(h) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with
Retail Clerks Union, Local 899, as the exclusive
representative of all employees in the appropriate
unit previously designated Unit A, and, if an under-
standing is reached, embody such understanding in a
written signed agreement.
(b) Upon request, recognize and bargain with Meat
Cutters Union Local No. 556 as the exclusive
representative of all employees in the appropriate
unit previously designated Unit B, and, if an under-
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing is reached, embody such understanding in a
written signed agreement.
(c) Reinstitute the employee work schedules altered
on March 1, 1976, and make employees Patricia
Strausser and Joanne MacLaren whole for any loss
of pay they may have suffered by reason of Respon-
dent's alteration of the work schedule, plus interest,
in the manner set forth above in the section entitled
"The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(3) Post at its premises in Solvang, California,
copies of the attached notice marked "Appendix." 4 4
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the consolidated
complaints herein be dismissed insofar as they allege
violations not found herein.
IT IS FURTHER ORDERED that the elections conduct-
ed on October 6, 1976, in Cases 31-RC-3587 and 31-
RC-3588 be, and they hereby are, set aside.
44 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Retail
Clerks Union, Local 899, Retail Clerks Interna-
tional Union; Meat Cutters Union Local No. 556,
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO; or any other
labor organization, by changing the work sched-
ules or reducing the work hours of our employees
or in any other manner discriminating against
them in regard to their tenure of employment or
any other term or condition of employment.
WE WILL NOT refuse to recognize and bargain
with Retail Clerks Union, Local 899, as the
exclusive representative of the employees in Unit
A, described below.
WE WILL NOT refuse to recognize and bargain
with Meat Cutters Union Local No. 556 as the
exclusive bargaining representative of the em-
ployees in Unit B, described below.
WE WILL NOT threaten our employees with job
loss, store closing or sale, or other reprisals if they
select union representation.
WE WILL NOT interrogate employees about their
reasons for signing union authorization cards or
about their involvement in union and other
concerted protected activity.
WE WILL NOT create an impression of surveil-
lance of our employees' union or other concerted
protected activity.
WE WILL NOT solicit grievances from our
employees or promise to rectify such grievances.
WE WILL NOT promise and grant wage increases
or other benefits to employees to induce them to
abandon their union or other concerted protected
activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act.
WE WILL, upon request, bargain collectively
with Retail Clerks Union, Local 899, as the
exclusive bargaining representative of all the
employees in the bargaining unit described below
with respect to rates of pay, wages, hours of
employment, and other conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a written signed
agreement. The bargaining unit is:
Unit A: All grocery department employees, but
excluding meat department employees, of-
fice clerical employees, professional employ-
ees, guards, all other employees, and super-
visors as defined in the Act.
WE WILL, upon request, bargain collectively
with Meat Cutters Union Local No. 556 as the
exclusive bargaining representative of all the
employees in the bargaining unit described below
with respect to rates of pay, wages, hours of
employment, and other conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a written signed
agreement. The bargaining unit is:
478
EL RANCHO MARKET
Unit B: All meat department employees, but
excluding grocery department employees,
office clerical employees, professional em-
ployees, guards, all other employees, and
supervisors as defined in the Act.
WE WILL reinstitute the work schedule changed
on March 1, 1976, and WE WILL make employees
Patricia Strausser and Joanne MacLaren whole
for any loss of pay they may have suffered by
reason of a reduction of their work hours, with
interest thereon.
All our employees are free to become or remain, or
refuse to become or remain, members of said Local
899 or Local 556, or any other labor organization.
EL RANCHO MARKET
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard before me in Solvang, California, on May 3, 4, 5,
10, 11, and 12, 1977. The charge in Case 31-CA-5954 was
filed by the Retail Clerks Union, Local 899, chartered by
Retail Clerks International Association, AFL-CIO (herein
Retail Clerks), on March 4, 1976.1 The charge in Case 31-
CA-5962 was filed by the Meat Cutters Union Local 556,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO (herein called Meat Cutters) on
March 8. On April 29 a consolidated complaint was issued
based on the aforementioned charges, alleging that Re-
spondent El Rancho Market had violated Section 8(aX5),
(3), and (1) of the Act. On July 27 all parties entered into
informal settlement agreements which were thereafter
approved by the Regional Director on August 27; a copy
of the settlement agreement with each of the Charging
Parties may be found in the formal file. 2 Subsequent to the
informal settlement agreement by the parties, Respondent
entered into stipulations for certification upon consent
election agreements with each of the Charging Parties
herein.3 Elections were held in each of the appropriate
units (one unit being the grocery clerks, the other being the
meat department workers) at Respondent's premises on
October 6 as provided for in the stipulated consents. With
all of the eligible voters voting in each of the respective
units, the tally of ballots apparently reflected that the
Petitioner in each unit had lost the election by one vote. 4
On October 7 and 11, respectively, each of the Petitioners
filed timely objections to conduct affecting the results of
I Most of the relevant and significant events herein occurred during the
year 1976 and (unless otherwise specified) all dates hereinafter shall refer to
the year 1976.
2 The settlement agreements are marked E(I) and E(2) and were
attachments to Respondent's answer to the final amended consolidated
complaint which was heard by me and is marked G.C. Exh. I(s).
3 While there is nothing indicated in the settlement agreements or in the
consent election agreements indicating that the latter agreement was part
and parcel of the settlement agreements, comments by counsel at the
hearing would indicate this to be the fact. The election agreements were
the elections, copies of which were duly served on the
Employer. On November 16, the Retail Clerks filed a new
charge against Respondent alleging violation of Section
8(aX5), (3), and (1) of the Act (Case 31-CA-6602). 5 On
November 30, the Meat Cutters filed a new charge against
Respondent alleging violations of Section 8(aX5), (3), and
(1) of the Act.6
On January 28, 1977, the Regional Director issued a
consolidated complaint in Cases 31-CA-6602 and 31-CA-
6640, alleging certain violations of Section 8(a)(3) and (I)
of the Act. On February 11, 1977, Administrative Law
Judge Gerald A. Wacknov, at the request of the Regional
Director, remanded Cases 31-CA-5954 and 31-CA-5962
to the Regional Director. On February 18, 1977, the
Regional Director vacated and set aside the settlement
agreement in the earlier cases and on March 4, 1977, issued
an amended consolidated complaint in Cases 31-CA-5954,
31-CA-5962, 31 -CA-6602, and 31 -CA-6640, and an order
consolidating these unfair labor practice cases with the
objections to conduct of elections filed in Cases 31-RC-
3587 and 31-RC-3588.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after giving due consider-
ation to the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and at all times material herein has
been, a corporation duly organized under and existing by
virtue of the laws of the State of California, with its office
and principal place of business located in Solvang, Califor-
nia, where it is engaged in the operation of a grocery
market. In the course and conduct of its business opera-
tions, Respondent annually purchases and receives goods
valued in excess of $50,000 from suppliers located within
the State of California, which sellers and suppliers receive
such goods in substantially the same form directly from
outside the State of California. In the course and conduct
of its business operations, Respondent annually derives
gross revenues in excess of $500,000. On the basis of these
admitted facts, I herewith find that Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits and I herewith find that the Retail
Clerks and the Meat Cutters, respectively, are, and at all
times material herein have been, labor organizations within
the meaning of Section 2(5) of the Act.
signed by the Employer on August 20. which probably accounts for the I
month's delay in the approval of the settlement agreement by the Regional
Director. The election agreements appear in the formal file as Exhs. G(1)
and G(2) attached as a part of Respondent's answer to the final amended
consolidated complaint heard by me which is G.C. Exh. I(s).
4 See Report on Objections, G.C. Exh. 1(k).
I This charge was amended on January 27, 1977. alleging only 8(aX3)
and (I) violations.
6 On January 28, 1977, the Meat Cutters filed an amended charge against
Respondent alleging only 8(aX3) and (1) violations.
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On February 26, a meeting was held at the Retail Clerks
union hall in Goleta, California, attended by approximate-
ly 12 to 15 of Respondent's employees. This was a jointly
arranged meeting and was attended by both employees
from the grocery department as well as the meat depart-
ment of Respondent. Most of the employees who did not
attend the meeting were contacted either that evening or
early the following morning by fellow employees and
signed union authorization cards as had those who attend-
ed the meeting. In the early afternoon of February 27,
representatives of the Retail Clerks and the Meat Cutters
called on Respondent's owner, Helmut Holzheu, where
they exhibited the authorization cards to him and checked
them against the names and timecards that were in the
timecard rack.7 Holzheu's reaction to the authorization
cards which he had an opportunity to see and examine was
one of disbelief. At that time each of the Unions submitted
a letter to Holzheu demanding recognition and asking that
he recognize each of the Unions and begin to bargain with
them.8 Holzheu refused to sign the letters and stated that
he would have to discuss the situation with his accountant.
In the weeks that followed Respondent committed a
number of transgressions of the employees' rights and, in
March, unfair labor practice charges were filed by each of
the Charging Parties. The consolidated complaint which
issued on April 29 alleged Respondent to have violated the
Act by failing and refusing to bargain collectively with
each of the respective unions who represented a majority of
Respondent's employees; that Respondent had unilaterally
granted insurance benefits; reduced working hours of
employees; imposed more onerous working conditions on
employees; threatened employees with closure of the
market should Local 899 be successful in organizing the
employees; told an employee that he had considered selling
the market; promised wage increases and grocery discounts
if the Unions were unsuccessful; interrogated an employee
concerning his reasons for signing an authorization card;
threatened an employee with discharge should Local 556
be successful in organizing the employees; and created the
impression of surveillance. Additionally, the General
Counsel gave Respondent notice prior to the first hearing
set for July 27, of his intent to amend by alleging additional
promises of wage increases on or about April 7 and actual
granting of increases on or about June 1.9
This record is replete, and in most instances with
undenied testimony, of numerous violations of the Act by
Respondent between February 26 and the date of the
settlement agreement.
On February 27, Helmut Holzheu accused Gwen Temp-
lin of having signed her name to a union authorization card
at a time before she had done so. On the same day,
Holzheu told Fred Golin that he had heard there was a
7 There was no timecard in the timecard rack for Jane Gondolfo and the
Meat Cutters had a union authorization card signed by her. There is a
conflict in the testimony as to what was said by the parties at that time and
there is a basic dispute as to whether or not on February 26 Jane Gondolfo
was on a leave of absence with some expectations of returning to work or
had quit and no longer expected to return to work.
union meeting and on two occasions asked him where the
meeting was and who had attended. On February 27, Doris
Holzheu asked Eileen Cherry, "What's going on with this
union thing?" On or about Sunday, February 29, Holzheu
told Joe Dupere that, if the store went union, he might sell
because he couldn't afford it and he mentioned Scolari as a
potential buyer who might bring in its own employees.
During this conversation Holzheu asked Dupere why he
had signed the authorization card. On or about the same
day Holzheu also asked Don Ames, an employee of the
produce department, why he had signed the authorization
card and whether or not he felt the store was doing enough
for him. During March, Holzheu had another conversation
with Don Ames in which he indicated that he might have
to sell the store - that he had had two offers to sell and if
that was done, Ames would probably lose his job. On
another occasion Holzheu told Fred Golin he was thinking
about restoring the 10-percent discount on groceries to the
employees. (Respondent had had a 10-percent discount on
groceries policy for all empioyees prior to moving into the
new store.) Holzheu admitted that on Monday, March 1,
he made numerous reductions in the employees' working
schedules by cutting their hours because he had panicked.
Although the hours were restored later in the day, it does
not detract from the fact that changes because of the
employees' affiliation with the Union were actually made,
and in at least two instances - Pat Strausser and Joanne
MacLaren - some wages were lost before the normal
schedule was restored.
While there is a serious difference of opinion as to
whether or not Gene Strausser was actually authorized or
told to hold an employees' meeting on April 26, because he
was the store manager and a supervisor,y Respondent is
responsible for what was done and said at that meeting by
Strausser. There is no dispute that the purpose of the
meeting was to see if the employees could get together and
work out their differences with management and dispense
with the Union. Suggested increases in salaries or hourly
rates were exhibited to a number of the employees and
there was some discussion of improved benefits. The
employees rejected the suggestions, saying they were not
equivalent to the union wages and benefits and they were
unwilling to accept them in favor of dropping the Union.
Joe Dupere was promised and received insurance (life).
The parties stipulated that Roy Wolters received an
increase in wages the latter part of May which was
reflected in his paycheck received in June. This increase
was from $3.50 an hour to $4.80 an hour. Wolters testified
that both he and Mark Taylor were given raises at the same
time and each were given some additional responsibilities,
such as being given keys to the front and back door and
keys to the safe, with responsibility of counting the money
in the mornings, putting the money away, clearing the
machine, and setting the dates on the machines." These
increases were defended by Respondent as necessary
because of the added duties in view of the fact that Gene
8 See G.C. Exhs. 10 and I 1.
9 See G.C. Exh. 17.
io The basis of this finding shall be discussed in greater detail infra.
Il The record is less definitive as to just when Mark Taylor received
increases but he testified and it was undenied that in February he was
making $4.15 an hour and is currently making $5.75 an hour.
480
EL RANCHO MARKET
Strausser, the former manager, had quit and at the same
time these raises were given because of the increased
responsibilities placed on them in the absence of a store
manager. In the latter part of June or early July, Eileen
Cherry and Joanne MacLaren each received substantial
raises. (MacLaren from $3.65 per hour to $6 and Cherry
from $4.50 per hour to $6.) Each was given a few miner
added duties and told they were being promoted. In view
of the size of the raises compared to the minimal additional
duties and responsibilities that were added, I am disposed
to find that these acts were violative of Section 8(aX)I) of
the Act. Clearly during the period between February 27
and July 27, Respondent engaged in several acts of
wrongful interrogations, threats, and promises violative of
Section 8(a)(1) and in discriminatory conduct violative of
Section 8(a)(3).
Although there were other allegations in the consolidated
complaint which was set for hearing on July 27, the
incidents I have set forth above are the only ones I would
have been able to find based on the evidence presented to
me. The other allegations either were not proven, did not
occur, or, in my opinion, were not coercive and did not
restrain or interfere with the employees' Section 7 rights.
B. Postsettlement Conduct
As has heretofore been indicated, on the date set for the
original hearing - July 27 - the parties respectively
agreed to informal settlements. These settlements were
signed by the parties in mid-August and finally approved
by the Regional Director on August 27 after election
petitions by each of the parties had been filed and
stipulations for certification upon consent election agree-
ments had also been signed by each of the respective
parties.
Section 101.9(e)(2) of the Board's Statement of Proce-
dures, Series 8, as amended, provides: "In the event the
Respondent fails to comply with the terms of an informal
settlement agreement, the regional director may set the
agreement aside and institute further proceedings." It
seems well established that a settlement agreement may be
set aside by a Regional Director where independent
evidence of subsequent or continuing unfair labor practices
reveal a breach of the agreement. Tompkins Motor Lines,
Inc., 142 NLRB 1, 3 (1963), enforcement denied on other
grounds 337 F.2d 325 (C.A. 6, 1964). Accord: United Dairy
Co., 146 NLRB 187, 189 (1964). Thus, if the Respondent
has committed unfair labor practices of the same or related
type, then it may be found to have violated the terms of the
settlement agreement and the Regional Director may be
deemed to have acted properly in setting it aside. The
12 A serious question could be raised as to whether the critical date
should be July 27, the date the informal settlement agreements were agreed
to, or August 27, the date they were finally approved by the Regional
Director. In the instant case the date is not crucial because nothing of
significance happened between July 27 and August 27, which has been
alleged as a new violation of the Act. I am of the opinion that the critical
date should always be the date an agreement is approved by the Regional
Director because the Board's Rules and Regulations clearly provide that
settlement agreements are subject to approval of the Regional Director. (See
Sec. 101.7.) Conceivably, agreements could be reached that would not meet
with the Regional Director's approval.
13 Northern California District of Hod Carriers and (Common Laborers of
threshold question to be resolved is whether Respondent
committed any subsequent or continuing violations after
the settlement agreement was affirmed by the Regional
Director on August 27.12
We shall turn then to a more detailed consideration of
any post settlement conduct alleged by the General
Counsel to be violative of the Act. Consistent with Board
policy, I shall consider the presettlement conduct of
Respondent only as background evidence in appraising
Respondent's motives and objectives.13
I. The issues
Allegations of events purportedly occurring after approv-
al of the settlement agreement as set forth in the consoli-
dated complaint include threats and promises to employees
by Helmut Holzheu and his statement that he would not
sign a union contract and allegations that Doris Holzheu
threatened store closure in the event either of the unions
should be successful in organizing the employees, and that
she engaged in a surveillance of the election conducted on
October 6.
The objections to election, as set forth in summary form
by the Regional Director, track the alleged unfair labor
practices and are as follows: In Case 31-RC-3587 (Retail
Clerks): The employer surveilled the voting area; promised
economic benefits; and threatened that it would not
bargain with the Union if the Union won the election. In
Case 31-RC-3588 (Meat Cutters) the objections are similar
and are set forth as: Employer surveilled the voting area;
employer observer was a supervisor; employer advised
employees that he would not sign a union contract; and the
employer distributed coercive campaign literature.
2. The evidence
Esther Andrews testified that in September in a private
conversation with Doris Holzheu in the upstairs area in
which they were discussing personal matters, Doris Hol-
zheu told her "that if the store went union, they couldn't
afford to keep the girls in the meat department." Mrs.
Holzheu acknowledged that a conversation with Andrews
had occurred but that what she had said was "whatever the
outcome would be we would still have to keep going . . .
and . . . we would probably have to go self-service if the
Union would come in." t4 It should be noted that there was
no testimony to indicate that this conversation was heard
by any of the other employees; it was not related by Esther
Andrews to any of the other employees; and Andrews was
a part-time grocery clerk and would not have been affected
by changes in the meat department.
America, AFL-CIO, et al. (Joseph Mohamed, Sr., an Individual, 4db/a
Joseph's Landscaping Service), 154 NLRB 1384 (1965), fn. 1, enfd. 389 F.2d
721 (C.A. 9 (1968)); Sieves Sash & Door Company v. N. LR. B., 401 F.2d 676
(C.A. 5 (1968)); Globe Gear Company, 189 NLRB 422 (1971), fn. 1.
14 Respondent's operation provided a more personalized service than
that generally found today in supermarkets where the meat is all prepack-
aged and the customer has no contact with the butcher. Respondent's
operation exhibited the various cuts of meat in a glass counter and the
customer was able to individually select his choices or order meat cut to his
specification. Of necessity, this individual wrapping and waiting on
customers required a greater number of "countergirls" than would ordinari-
ly be found in a supermarket meat section where everything is prepackaged.
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diane Hamilton (Aguayo) testified that she had a
conversation with Doris Holzheu on October 2 during
which Holzheu said that they would have to close the store
if the Union came in because they couldn't afford it.
Holzheu denied that she ever had such a conversation with
Diane Hamilton. Hamilton also testified Helmut Holzheu
had said he would not sign a union contract.
Lee Ann Lowry testified that in October she had a
conversation with Doris Holzheu in which Holzheu stated
that "they just didn't know what they would do if the
Union was voted in, because of the costs of the benefits
and everything, that they would just have to close the store,
or whatever." Lowry thought that Gwen Templin or Rosey
Quiroga had possibly been present during this conversa-
tion. Neither Gwen Templin or Rosey Quiroga testified to
such a conversation. Doris Holzheu denied having had
such a conversation with Lowry after the settlement
agreement but did acknowledge that she had had a
conversation with Lowry and Rosey Quiroga prior to the
settlement agreement in which she had expressed some
concern about what would happen if the employees
selected the Union because they could not afford the union
wages.
Don Ames testified that he had a conversation with
Helmut Holzheu about a week before the election, in which
Holzheu had said that he did not want the store organized,
that there was no reason why managers could not make as
much as $7 per hour, but he should not have to pay
everybody union scale, and that Holzheu said that he was
not going to sign a contract with the Union. Holzheu
testified and denied that he made the statements attributed
to him by Don Ames but acknowledged that he had had a
long conversation with Ames on the Saturday before the
election because of Ames' failure to cooperate and commu-
nicate with Art Thompson, the new store manager.
On October 4, a meeting attended by most of the
employees from each of the two bargaining units was held
at the store and a speech was read by Helmut Holzheu (see
G.C. Exh. 3). Several witnesses testified that Holzheu
appeared to be reading from the text of his speech. I was
impressed, however, with the testimony of Vince Salazar,
who testified that he had a copy of Holzheu's speech before
it was read, that he followed Holzheu's reading of the
speech at the meeting, and that Helmut Holzheu stayed
with the text. While there were interruptions from various
employees for the purpose of making comments or asking
questions, I am not of the opinion, based on all of the
testimony from the various witnesses, that any of the
"extra" remarks were of a type that tended to restrain,
coerce, or interfere with the employees' Section 7 rights.
Holzheu's response to Golin, who inquired concerning the
poor conditions of the produce dock, was not, in my
opinion, a promise of changing working conditions, but
was a mere revealing to the employee of a change in
method of operating which had been planned some time
prior to the asking of the question.
There is no question that Holzheu came to the grocery
store on the afternoon of the election - October 6 - and
15 Mrs. Holzheu testified, without contradiction, that they have no mail
delivery at their home and both their personal and business mail is delivered
at the store.
walked up the backstairs where the Respondent's office is
located. The election was being conducted in a large open
area adjacent to the office where the employees' lounge
area is located. As she reached the top of the stairs, she was
seen by the observer for the Meat Cutters who exclaimed,
"What the hell is she doing up here?" Whereupon the
Board agent conducting the election promptly walked over
and advised her that she should not be in the area. Holzheu
explained that she was merely on her way to the office in
order to get her mail.15 All witnesses agreed that Holzheu
turned around and promptly went down the stairs without
going into her office and that the entire incident lasted
between I and 2 minutes.
Analysis
While there is no doubt in my mind that Doris Holzheu
made some comment to Esther Andrews, that in effect
indicated that some reduction in personnel among the
counter girls in the meat department might result from
unionization, I am equally sure it was not coercive nor was
it intended to be. Andrews was the most senior employee
and worked in the grocery department. She would not have
been affected by any such change. Moreover, reasonable
predictions of economic consequences of unionization are
not necessarily violative of the Act.16
Wolters' testimony is not to be credited. It conflicted
with the testimony of other witnesses and struck me as
being deliberately contrived in an effort to aid his own
personal cause. Testimony of both Ames and Wolters
regarding the case handling requirements in unionized
markets as allegedly made by Helmut Holzheu were, in my
opinion, made prior to the settlement agreements and may
not be considered here. Moreover, I have some doubt that
mere comparison of working conditions in the Union vis-a-
vis nonunion shops is violative of the Act. The conversation
in which Golin may have been involved, I believe to have
been a discussion largely between a deliveryman (Larry -
the milkman) and Helmut Holzheu regarding the change in
working conditions and the constantly improving produc-
tivity standards. There was no threat to reduce Golin's
hours. A statement regarding different working conditions
prevailing in other shops or areas is not threatening or
coercive unless made in a context that clearly exhibits an
intent to institute similar conditions in the event of
unionization. No such intent can be inferred from that
conversation with Golin. The alleged conversation with
Dave Morris is suspect. Holzheu acknowledges having had
a conversation with Morris after returning from his
vacation (September 16), but said that the conversation
related to his latest report from Certified Grocers showing
that the meat department profits were slipping. Holzheu
told Morris to be more careful when trimming the meat
and then added, "If you take care of the Company as far as
this part of it, the Company can take care of you." Morris
testified that the Union was never mentioned in the
conversation and he acknowledged that he had informed
Respondent's counsel that he "hadn't talked about the
Union" with Holzheu after Holzheu returned from his
i6 See B. F Goodrich Footwear Company, 201 NLRB 353 (1973), and
Birdsall Construction Company, 198 NLRB 163 (1972).
482
EL RANCHO MARKET
vacation. In view of Morris' own testimony, it seems most
unlikely that he regarded the comment (regardless of which
version is accepted) as any kind of promise associated with
the union campaign.
A careful review of the speech given by Helmut Holzheu
at the employee meeting on October 4 reveals nothing of a
coercive, threatening, or restraining nature violative of the
Act (G.C. Exh. 3). 1 find it to be nothing more than typical
campaign rhetoric of the type frequently found by the
Board to be protected under Section 8(c) of the Act.'7
General Counsel's argument that the speech referred to a
nonexisting, profit-sharing plan is inaccurate. Testimony of
Taylor, Golin, and MacLaren clearly indicates the employ-
ees had knowledge of the existence of the plan, although
they were not familiar with the details or when one
qualified for the plan. The speech makes nothing more
than a passing reference to the fact that Respondent had
such a plan.
The more important question, however, is the extent and
degree which Doris or Helmut Holzheu may have strayed
from the text, either intentionally or in response to
questions.
Wolters testified that Helmut Holzheu said, "Art
[Thompson] and him had come up with a plan, if we were
to vote the Union out. This plan had various raises and
benefits that were close to what the Union had to offer."
Wolters testified that this was just something Helmut had
said and was not in response to a question or comment
from the employees. Other witnesses - Taylor, MacLaren,
and Salazar - testified that, except for interruptions for
questions or comments from the employees, Helmut stayed
with the text of his speech. As previously indicated, I do
not regard Wolters as a credible witness. Holzheu denied
that any such promises were made. Several witnesses said
that Holzheu specifically stated he could make no prom-
ises.
There is testimony accusing Helmut Holzheu of saying
that he would not sign a union contract. This testimony I
cannot credit. Diane Hamilton (Aguayo) was under a great
deal of emotional stress because of a death in her family at
the time she was testifying, and her testimony is in direct
conflict with a written statement given on March 4, 1977,
to Respondent's counsel, in which she states she had "no
independent recollection of anything that was said during
that meeting." Golin was confused at to what he thought
Holzheu had said even after reading his affidavit to refresh
his recollection. Joanne MacLaren, who was a mature,
stable, experienced person that had signed an authorization
card, and was called to testify by the General Counsel,
specifically denied that Holzheu had said he "wouldn't sign
a contract." Doris and Helmut Holzheu were credible
witnesses.
While the testimony is conflicting, and not entirely free
from some doubt, I am not of the opinion that Respondent
committed any transgressions of the Act after the settle-
ment agreements were approved. Mere suspicion cannot
substitute for proof of unfair labor practices. 8
17 See The Singer Company,. 176 NLRB 1089 (1969); Ludwig Motor Corp.,
222 NLRB 635 (1976).
18 Kings Terrace Nursing Home and Health Related Facility. 229 NLRB
1180(1977).
19 Components, Inc.. 197 NLRB 163. 173 (1972).
I regard the brief appearance of Doris Holzheu within
view of those in the voting area to have been totally
without impact or influence on any of the voters and
certainly not a deliberate or intentional act of surveillance.
Doris Holzheu testified that she had just come to the store
and had gone directly to her office for the purpose of
getting her mail. That was the reason she gave immediately
to the Board agent when asked why she was there. She
departed immediately as requested. She had no conversa-
tion with any employee. Other than Eileen Cherry there is
no credible testimony that she was even seen by any other
employees except the election observers. Under all the
circumstances, I cannot conclude that her brief appearance
within sight of the voting area was such as to disturb the
laboratory conditions of the election. 19
IV. MISCELLANEOUS ISSUES
A. The Appropriate Units
While the analysis should make clear my obvious
conclusions of law with regard to the alleged unfair labor
practices and the objections to the elections, I feel some
comment should be made regarding the appropriate units
and the authorization cards.
Respondent argued that the two units were inappropriate
and that the only appropriate bargaining unit was a single
storewide unit. While I think such an argument might have
had validity at an election hearing,2 0 nevertheless it is too
late to raise such an issue. The stipulation for consent
elections signed by Respondent's counsel clearly sets forth
the appropriate units and I regard that issue as having been
settled by mutual agreement.
B. The Authorization Cards
I regard most of the authorization cards as tainted
because of the conduct of the store manager, Gene
Strausser. Gene Strausser was without question a supervi-
sor under the Act. Strausser was hired as manager of the
grocery department. He was in general charge of the
grocery department; he was the only employee on a salary
and did not receive overtime; he established a system of
reordering in which he delegated responsibility to other
section or department heads (i.e., produce, bakery, canned
goods), but the actual purchase orders were signed by
either Strausser or Holzheu. He had the combination to the
safe and the keys to the store. He scheduled the employees
in the grocery department and he wrote the ads for the
newspaper. When hired, Holzheu told him he would have
"free run" of the department. On at least one occasion, he
hired a clerk and he and Holzheu had weekly breakfast
conferences at which the general store condition was
discussed. There is not the slightest doubt that his recom-
mendations regarding personnel and their performance
would have been effective. While it might be said that
Strausser was a weak supervisor, that in no way detracts
20 Employees of both the meat and grocery departments maintained the
same working hours, had similar working conditions, used the same
restrooms, timeclock, lounge, and coffee areas, had similar rates of pay, the
same fringe benefits, and same interchange of employees all under the same
roof.
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the authority and responsibility that he actually
possessed.
Strausser played a key role in influencing a number of
people to sign authorization cards. 21 The campaign was
only a 1- or 2-day affair. Joe Dupere had contacted the
Meat Cutters and then asked Gene Strausser if he (Straus-
ser) would back the employees if they tried to get the
Union in. Strausser went to the joint organizational
meeting at the Retail Clerks union hall in Goleta. He sat
around a table with the other employees and, according to
the testimony of Joe Dupere, he told the employees "it
would be to the employees advantage to belong to the
Union." According to his own testimony, he signed his
authorization card at that meeting (G.C. Exh. 32) and took
three additional cards "because I'd see the checkers when
they came in in the morning." Eileen Cherry testified that
Gene Strausser told her about the meeting of February 26
and assured her that the Holzheus weren't "laying awake at
night worrying whether you can pay your bills or not."
Rosey Quiroga testified that when Joe Dupere was talking
to her about the benefits of the Union, Strausser ap-
proached her and said, "Rosey, that's the best thing for
you."
Exactly how many cards Strausser may have influenced
may be in doubt, but his active role and strong endorse-
ment of the Union in a relatively small family operation
was substantial. I find that a sufficient number of the cards
were tainted by supervisory intrusions to cast a serious
doubt as to whether or not the unions ever had a majority
in either unit.22
No one other than the store manager and the Holzheus
qualified as supervisors. Efforts by the Charging Parties to
make a supervisor of Rosey Quiroga of the meat depart-
ment were ineffectual. She was nothing more than an
experienced employee (she had worked for Respondent for
4 years) who was reliable and dependable. While her
experience enabled her to observe routine tasks that
needed to be performed which she frequently suggested to
the inexperienced help, she had no real authority to hire,
fire, or effecively recommend personnel actions. Her
21 The exact number is difficult to determine because there was no roster
or testimony of exactly who or how many attended the organizational
meeting in Goleta on February 26.
supervisory stature was certainly far less than Eileen
Cherry, the head cashier, Don Ames, the assistant grocery
manager, Joe Dupere, the head butcher, or even Fred
Golin, the produce manager. No contention was made that
these employees were supervisors
V. SUMMARY
When one carefully views the events of some 12 to 18
months ago as reflected by the evidence and testimony
presented before me and with the 20 - 20 wisdom that
comes with hindsight, they might be characterized as
fraught with tactical errors. At one point in time, the
Unions involved might have obtained a majority in an
election because, as has previously been indicated, Respon-
dent was responsible for a number of unfair labor prac-
tices. However, the parties voluntarily elected to cure those
transgressions by executing voluntarily settlement agree-
ments. Thereafter, Respondent's conduct and actions were
within the bounds of free speech and campaign rhetoric as
permitted by Section 8(c) of the Act and Board and court
decisions. The Charging Parties cries of "foul" are all
predicated on conduct occurring before the settlement
agreements. This consolidated complaint and objections to
elections should be dismissed in their entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Retail Clerks and Meat Cutters are, and each of
them is, labor organizations within the meaning of Section
2(5) of the Act.
3. Respondent has not engaged in postsettlement con-
duct as alleged in the complaint.
4. Charging Parties' objections to elections are without
merit.
[Recommended Order for dismissal omitted from publi-
cation.]
22 See J. J. Newberry Company, 202 NLRB 420, 431 (1973); Dexter IGA
Foodliner, 209 NLRB 369, 373 (1974).
484