Foodland

National Labor Relations Board - Board Decisions

Nov 21, 1977

233 N.L.R.B. 708 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fairland Market, Inc. d/b/a Foodland and Retail
Store Employees Union, Local No. 400, AFL-
CIO. Cases 5-CA-8296, 5-CA-8355, and 5-RC-
9834
November 21, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On August 10, 1977, Administrative Law Judge
Herbert Silberman issued the attached Decision and
Report and Recommendations with Respect to
Objections to an Election in this proceeding. There-
after, Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Fairland Market,
Inc. d/b/a Foodland, Lexington Park and Holly-
wood, Maryland, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that the election held on
November 26, 1976, in Case 5-RC-9834 be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative L.aw Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry) Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
233 NLRB No. 103
DECISION AND REPORT AND
RECOMMENDATIONS WITH RESPECT TO
OBJECTIONS TO AN ELECTION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: These
consolidated proceedings were heard in Washington, D.C.,
on May 16 and 17, 1977. Following the close of the
hearing, briefs were filed with the Administrative Law
Judge on behalf of General Counsel and Respondent.
The complaint in Case 5-CA-8296 was issued on
February 18, 1977, based upon a charge filed by Retail
Store Employees Union, Local No. 400, AFL-CIO, herein
called the Petitioner or the Union, on December 2, 1976;
and the complaint in Case 5-CA-8355 was issued on
February 25, 1977, based upon a charge and an amended
charge respectively filed on January 12 and February 22,
1977, by the Union. The two cases were consolidated by an
order issued on February 25, 1977. In substance, the
complaint in Case 5-CA-8296, as amended at the hearing,
alleges that Respondent Fairland Market, Inc. d/b/a
Foodland, herein called the Company or the Employer, has
engaged in violations of Section 8(aXl1) of the National
Labor Relations Act, as amended, by reason of conduct
occurring from September through November 1976 involv-
ing unlawful interrogation of employees, creating the
impression that the union activities of employees were
under company surveillance, and threatening employees
with reprisals should they select the Union as their
collective-bargaining representative. The complaint in Case
5-CA-8355 alleges that the Company violated Section
8(a)(1) and (3) of the Act by demoting employee Leonard
Francis Drury on January 3, 1977, because of his
membership in and activities on behalf of the Union.
Respondent duly filed answers to the complaints generally
denying that it has engaged in the alleged unfair labor
practices.
With respect to the representation proceeding, Case 5-
RC-9834, a petition for certification of representative was
filed by the Union on September 14, 1976. Thereafter the
parties entered into a Stipulation for Certification Upon
Consent Election which was approved by the Acting
Regional Director on October 14, 1976. Pursuant thereto,
an election was conducted on November 24, 1976, among
the employees in the following collective-bargaining unit:
All regular full-time and regular part-time employees
employed by the Employer at its Lexington Park and
Hollywood, Maryland locations including cashiers,
stockroom employees, bakery and delicatessen employ-
ees, baggers, utility employees, janitors, and clerks, but
excluding office clerical employees, guards, and super-
visors as defined in the Act.
The tally of ballots shows that of approximately 51 eligible
voters 23 votes were cast for, and 23 votes were cast
against, the Petitioner, and 5 ballots were challenged. Both
the Union and the Company filed timely objections to
conduct affecting the results of the election. On March 3,
1977, the Acting Regional Director issued his report on the
challenges and the objections and an order consolidating
708
FAIRLAND MARKET, INC.
Case 5-RC-9834 with Cases 5-CA-8296 and 5-CA-8355
for purposes of hearing, ruling, and decision and providing
that thereafter Case 5-RC-9834 be transferred and
continued before the Board. In summary, the report
directed a hearing with respect to the challenge to the
ballot cast by Terry Crowe and that the other four
challenged ballots be opened and counted. Also, it
recommended that the Employer's objections be overruled
in their entirety and, should the Petitioner win the election
after the challenged ballots have been opened and counted,
that the Petitioner be certified as the collective-bargaining
agent for the above-described unit; but, should the
Petitioner lose the election, then a hearing should be
conducted with respect to Objections I, 2, 3(a), and 5 filed
by the Petitioner, which raise issues similar to those alleged
in the complaint in the unfair labor practice proceedings.
The Employer having filed exceptions to the Acting
Regional Director's report, the Board, on April 7, 1977,
issued a Decision and Order Directing Hearing (not
reported in bound volumes of Board Decisions) in which it
adopted the Acting Regional Director's findings and
recommendations; ordered that the challenged ballots,
other than the ballot of Terry Crowe, be opened and
counted and a revised tally of ballots be prepared and
served on the parties; and ordered that Case 5-RC-9834 be
consolidated with the unfair labor practice proceedings for
purposes of hearing, ruling, and decision with respect to the
issues raised by Petitioner's Objections 1, 2, 3(a), and 5, if a
majority of the ballots counted are not for the Petitioner,
and with respect to the challenge to the ballot of Terry
Crowe if his ballot is determinative of the outcome of the
election. Thereafter, a revised tally of ballots was issued on
April 15, 1977, which shows that of approximately 51
eligible voters 24 ballots were cast for the Petitioner, 26
ballots were cast against the Petitioner, and there is I
undetermined challenged ballot which is not determinative
of the outcome of the election.
Upon the entire record in these cases' and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a Maryland corporation, operates retail
grocery stores in Lexington Park and Hollywood, Mary-
land. During a representative period of 12 months, the
Company's gross revenues are in excess of $500,000 and it
purchases and receives supplies valued in excess of $50,000
which are shipped to its Maryland stores through channels
of interstate commerce from locations outside the State of
Maryland. The Company admits, and I find, that it is an
employer within the meaning of Section 2(2) engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
I No objection having been filed to the motion of counsel for General
Counsel, dated June 28, 1977. to correct the caption and the transcript in
these proceedings, the same hereby is granted.
2 Unless otherwise indicated all dates refer to the year 1976.
3 In order to reach all the employees. two speeches were made at each
II. THE LABOR ORGANZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
11I. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent operates two food stores in southern
Maryland, one in Hollywood and the other in Lexington
Park. It is a family-owned and -operated business. The
principals are James Manning McKay and his wife
Marilyn Ann McKay, who are respectively president and
secretary-treasurer of the Company. In addition, Respon-
dent's daughter, Betty Johnson, and her husband, Frank
Johnson, work for the Company. These four are admitted
agents and supervisors. McKay's son, Thomas McKay,
who is a student, works for the Company sporadically. The
complaint alleges and Respondent denies that Thomas
McKay is an agent of the Company insofar as his
involvement in an alleged unfair labor practice is con-
cerned. Other admitted supervisors and agents of Respon-
dent are Richard Spencer Hammett, manager of the
Hollywood store; Roger Carroll, manager of the Lexington
Park store; and William Andrew Hebb, meat manager at
the Hollywood store.
In the fall of 1976 the Union was engaged in an effort to
organize the employees in Respondent's stores and in
connection therewith filed a representation petition on
September 142 pursuant to which an election was conduct-
ed on November 24. Respondent is opposed to the
organization of its employees and campaigned against the
Union during the 2 months preceding the election. The
thrust of the complaint in Case 5-CA-8296 is that
statements made by Respondent's agents in that period
exceeded legitimate permissible campaign activity and
unlawfully infringed upon employees' statutory rights.
James McKay testified that the subject of the Union's
organizing campaign was openlygdiscussed between the
employees and management prior to the election. In this
respect his testimony was corroborated by most of the
witnesses who were called to testify for General Counsel.
According to James McKay, prior to the election, "I
walked around in the stores as I normally do, even now,
that I probably devoted a bit more time in contacting or
talking with most of the employees that work for me." In
these conversations McKay sought to dissuade the employ-
ees from voting for the Union in the pending election.
Shortly before the election McKay made a speech to the
employees.3 Also, in late October, James McKay mailed a
letter to the employees in which he sought to explain why a
union would not be in their best interests and, prior to the
election, distributed to the employees a leaflet which
describes the right of employers to replace economic
strikers.4
store. General Counsel does not contend that the content of the speeches
was unlawful.
4 The leaflet merely contains quotations from the Board publication
entitled "A layman's guide to basic law under the National Labor Relations
Act."
709
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Interference, Restraint, and Coercion
The complaint in Case 5-CA-8296 sets forth in subpara-
graphs (a) through (k) of paragraph 5 the conduct which is
alleged to constitute violations of Section 8(a)(1). 5
I. Interrogation
Three witnesses, John Fant, Marylou Manderville, and
Michael Dicus, testified on behalf of General Counsel in
support of the allegation that Respondent unlawfully
interrogated employees "concerning their own and fellow
employees' membership in and activities on behalf of the
Union."
Fant testified that I or 2 weeks before the election during
a conversation with Manager Hammett near the produce
section of the store Hammett "asked me what did I think
about the union, what did I plan to get out of it?" Fant
replied that he would like to make more money. Hammett
did not contradict Fant's testimony. Although Fant further
testified that he had discussed the Union with Hammett
two or three times before and that Hammett knew that
Fant favored the Union, "the seeking out of [John Fant]
and interrogating [him] as to the basis for [his] union
adherence . . . intruded into [the employees'] Section 7
rights and would reasonably tend to have a coercive
effect"6 and therefore constitutes a violation of Section
8(a)(1).
Michael Dicus testified that three or four times following
union meetings Hammett "asked me who was at the
meetings, and I told him, 'You know who were at them,'
and he named the people that were there. .... I told him a
few people, but on one occasion I told him, and he knew
the rest of them. On every one of them occasions we talked
about, he knew everybody that was there." In respect to
these conversations Richard Hammett testified that several
times during the period of the union campaign Dicus came
to his home without invitation and volunteered the
information that Dicus had been at a union meeting and
the names of other porsons who had attended. I credit
Hammett's versions of his encounters with Dicus. None of
the witnesses at the hearing testified at any length.
Although my opportunity to observe the witnesses and to
evaluate their testimony was limited, nevertheless, I gained
distinct impressions regarding the credibility of various
witnesses. Richard Hammett, who testified carefully and
without equivocation, impressed me as being a reliable
witness. I credit Hammett's version of his conversation
with Dicus, rather than Dicus whom I consider an
unreliable witness. Accordingly, I find no violation by
reason of the conversations described by Dicus.
Marylou Manderville testified that after she had attend-
ed a union meeting Hammett asked her whether she had
gone to the union meeting and, when she replied in the
affirmative, he asked who else had been there. According
to Manderville's further testimony, "I told him some of the
names that were there, and he added-a few more." I credit
5 In her brief, counsel for the General Counsel states that the record
contains "no evidence in support of paragraphs 5(a), insofar as it relates to
Marilyn McKay, 5(d) insofar as it relates to William Hebb and Richard
Hammett, 5(f), 5(g) and 5(i)." It appears that "5(g)" is a typographical error
and should read "5(h)."
Hammett's denial that he had such conversation with
Manderville.
Manderville further testified that on another occasion
Hammett "asked me if I was for the union or against it,
and I told him I had not made up my mind, and he stated
that if he was working there as an employee, and the union
came in, he would quit because he did not think that they
were helping us. They were just out for our dues." For the
reasons set forth above, I find that this incident, not denied
by Hammett, violates Section 8(a)(1).
Manderville also testified that "[o]n the morning of the
election William [Hebb] asked me if I was for or against
the union, and I told him I had not made up my mind, but
I could not see where it would hurt us any." Hebb denied
having asked Manderville such question, but testified that
on the day of the election he asked her if she had voted
"because I wanted to be sure everybody voted." I credit
Hebb's version of his conversation with Manderville and
therefore find no violation of the Act by reason of the
incident.7
2. Impression of surveillance
The pertinent allegation of the complaint adverts to the
conduct of Richard Hammett, James McKay, and William
Hebb "in creating the impression of surveillance of the
union activities of employees by telling employees they had
attended union meetings and acknowledging they knew
what other employees had attended the union meetings
and that certain statements were made by employees at
these union meetings."
The testimony of Dicus in support of this allegation was
denied by Hammett and I credit the denials. Evelyn Drew
testified that after two or three of the meetings that she had
attended Richard Hammett "asked if we enjoyed the union
meeting we went to the night before." Sandra Bean testified
that in September 1976, as she and Michael Dicus were in
the produce room looking through the glass in the door
which separated the produce room from the selling floor,
she observed Union Representative Ron Reaume enter the
store. Richard Hammett was present and also observed
Reaume. Then, according to Bean, "Mike and I just kind
of laughed a little bit, you know, when Richard [Hammett ]
seen [Ron Reaume] because he started for the door, and
Richard turned around, and he said, you know that I know
who goes to those union meetings."
The testimony of Drew and Bean is not contradicted.
Respondent's defense to this allegation of the complaint, as
expressed in its brief, is that "the identity of the employees
who were attending meetings, the substance of the
discussions at the Union meetings, etc., were fairly and
openly discussed and were matters of common knowledge.
This fact was substantiated by the Respondent's witnesses
such as Mr. Hammett, for example, who testified that
employees often voluntarily told him they had attended
union meetings and what was discussed. The entire thrust
of the General Counsel's case with regard to this allegation
6 CBS Records Division of CBS, Inc., 223 NLRB 709 (1976).
7 While I do-not believe that Manderville consciously testified untruth-
fully, I am of the opinion that she was uncertain in her recollection of some
of the events about which she testified and that her testimony was not fully
reliable.
710
FAIRLAND MARKET, INC.
is that [the Company's representatives] remarked or
implied that they knew the identity of employees who
attended Union meetings. But the General Counsel's own
witnesses admitted that these matters were common
knowledge and openly discussed between themselves and
members of management." The record in this case supports
Respondent's argument that there was free and open
discussion between the employees and management repre-
sentatives concerning the Union; that the names of
employees who attended union meetings were voluntarily
given to company representatives, particularly to Ham-
mett; and that the company representatives generally knew
who attended union meetings and the employees were
aware that the company representatives possessed this
knowledge. In these circumstances, I find that the testimo-
ny of Drew and Bean does not create an impression that
the Company was spying upon the employees' union
activities. 8
William Hebb testified that upon the invitation of
employee Jim Dorn he attended one of the union meetings.
He further testified that when he was invited to attend the
meeting he did not understand that there was any
impropriety involved and also that he did not inform other
members of management of his attendance. Contrary to
General Counsel, I find this incident does not support the
allegation that Respondent created the impression that it
was engaged in the surveillance of its employees' union
activities. 9
Jackie Siebert, who worked in the meat department at
the Hollywood store, testified that "[s omebody had
started the rumor around that [James McKay] was
supposed to buy William [Hebb] a new car, and I don't
know how it got started." On the day of the election, "Mr.
McKay came in the back and he asked William or he told
William that he heard he was supposed to buy him a new
car, and then he said, 'it is a shame we have liars working
back here.' And then before he left he said he had heard
that I was the one that said it that night at the union
meeting, and I told him I was not even at that meeting, and
he said, 'Well, that is how those people operate.' " The
testimony of Siebert is to the effect that the rumor that was
circulating in the store reached McKay and is not fairly
subject to the construction that because McKay was spying
upon the employees' union activities he learned what
supposedly was said at a union meeting.
I find that General Counsel has not proved by a
preponderance of the evidence the allegation that Respon-
dent unlawfully created the impression that it was engaged
in surveillance of its employees' union activities.
3. Threats to close stores
It was "generally known" that the Lexington Park store
had been losing money for some period of time. Testimony
was adduced by General Counsel purporting to establish
that employees were threatened that if they selected the
s Ohmite Manufacruring Company., Subsidiar, of North American Philips
Corporation, 217 NLRB 435 (1975). enfd. 557 F.2d 577 (C.A. 7. 1977);
Deringer Mfg. Company, 201 NLRB 622, 626-627(1973).
9 Fraley di Schilling, Inc., 211 NLRB 422 (1974).
'° The complaint in Case 5-CA 8355 refers to the individual as Leonard
Francis Drury. The transcript of record refers to Leonard Drury as the
Union as their representative the Company would close
that store. William Hebb testified that one day as he was
leaving the Lexington Park store one of the checkers asked
him "something or other about it." According to Hebb, "I
never said that if the union won the election the Lexington
Park store would close. It is common knowledge and has
been for two years that the Lexington Park store is losing
money. Employees have asked me if I thought the
Lexington Park store would stay open if the union won. I
told them that it was my personal opinion that I did not
believe the Lexington Park store would be able to make it.
This is based on my 13 years experience in the meat
business."
Counsel for the General Counsel in her brief argues that
"Hebb's statement that the Lexington Park Store might
close should the Union win the election would violate
Section 8(a)(1) of the Act." However, contrary to General
Counsel, all forecasts that a business establishment might
close following unionization are not unlawful. As the
Supreme Court stated in N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 618 (1969):
[An employer's prediction about the consequences of
unionization] must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his con-
trol .... in case of unionization.
Hebb's carefully phrased response to an inquiry directed to
him by an employee does not exceed the bounds of
permissible prediction as defined in Gissel.
Leonard Drury' 0 testified that "before the election in
October. . . I was working back in the produce room, and
[Store Manager Roger Carroll] walked up and asked me
what did I think of the union. I had told him that I had
relatives working at Safeway, and I was listening to what
they had said and I would make my own decision. .... He
said that if it got in they would have to lay off one cashier,
two cashiers, one bag boy and one stock person to pay my
salary. .... That the Hollywood stores or either Lexington
Park would have to close down or cut their hours."
Roger Carroll testified that he had one or two conversa-
tions with Drury about the organizing campaign. Accord-
ing to Carroll, Drury asked if there could be a strike and
Carroll answered that that was a possibility. Drury asked
whether the Company would be forced to sign a contract
and Carroll replied that the Company could not be forced
to sign a contract, that there was collective bargaining,
which "was something that went between just the union
representatives and the company, and in the event they did
not reach settlement there could be a strike .... " Also,
according to Carroll, Drury asked if the store would be
forced to close and Carroll answered that there had been
no discussion about closing the store. I believe that
Carroll's testimony in regard to the conversation in
question was more reliable than Drury's and accordingly
individual who was called as a witness. However, when asked to state his
name, the witness answered that his name is William Drury. In her brief,
counsel for the General Counsel continues to refer to this individual as
Leonard Drury. I am unable, on the record before me, to resolve the
question as to what is Mr. Drury's given name. I shall refer to him as
Leonard Drury.
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that no violation of the Act is established by reason of
the described incident.
Michael Dicus testified that about 2 weeks before the
election James McKay in a conversation with him said, "If
we would go on strike we would lose our jobs if we come
back. Him and his family could take care of the store if we
did go on strike, and they could hire people off the street to
come in and take our jobs, and we couldn't get them
back. ... If the union came in, he would have to close
Lexington Park Store and maybe bring his employees from
there over to this store and cut some of our hours back."
James McKay denied Dicus' testimony. As I am of the
opinion that Dicus was an unreliable witness, I do not
credit his testimony.
On the day of the election, before reporting for work,
Evelyn Drew distributed sample paychecks outside the
Company's Hollywood store. The paychecks purportedly
represented what the employees would be earning if they
worked for Jumbo Food Company. According to Drew,
after she reported to work Marilyn McKay said to her that
"the sample paychecks I was passing around would have
nothing but zeros on it if Foodland stores were forced to
close down." 11
Marilyn McKay testified that she spoke to a majority of
the employees at the Hollywood store about the sample
paychecks. According to Mrs. McKay, she told the
employees that "those paychecks look mighty nice but that
we were not no Jumbo store and if the union came in and
there happened to be a strike that those paychecks may
have zeros on them." I credit Marilyn McKay. Not only
did she impress me as being a truthful witness but the
attendant circumstances lend plausibility to her testimony.
First, it was the Lexington Park store, not the Hollywood
store, that was losing money so that it would not be logical
to threaten that the Hollywood store would be closed.
Second, her husband, James McKay, in his efforts to resist
the Union's organizing campaign emphasized to the
employees in his speeches to them and in personal talks
with them that in the event of a strike permanent
replacements could be hired which might mean that the
strikers would not have jobs to which to return immediate-
ly upon the termination of the strike. It is more likely that
Marilyn McKay would follow her husband's campaign
tactics rather than those of her own devising, particularly
as Respondent was using the services of experienced labor
counsel. Accordingly, I find that the incident described by
Drew (and also by Bean) does not establish a violation of
the Act.
4. Threat to change or reduce hours
In support of this allegation of the complaint, counsel for
the General Counsel in her brief points to testimony of
Michael Dicus and Leonard Drury, which testimony is
discussed above and which I have discredited.
Hi Sandra Bean testified that she overheard a conversation between
Marilyn McKay and Marylou Manderville during which Mrs. McKay said,
"I don't care who wins this election. I am just sick of it, but if the union
comes in, I hope the people that want this learn their lesson, those sample
5. Threats of loss of jobs
In support of this allegation of the complaint, paragraph
5(e), General Counsel relied upon the testimony of
Leonard Drury and Sarah Downs. Drury's testimony upon
which General Counsel relies was discussed above and was
discredited.
Sarah Downs testified that during an employment
interview with James McKay on September 24, "[hle said
that if he had a union problem and if the union came in
that he would-most likely the last people to be hired
would be the first to lose their jobs." James McKay
testified more fully about the conversation. According to
McKay, he told Downs substantially what he tells all
employees during their employment interviews, that the
last employee who is hired if there is a layoff will be the
first to leave. He also told Downs that there was some labor
activity in the stores, that at some point in time he would
talk to all the employees, and he hoped that she would not
let the labor activity distract her from her job. I believe
James McKay was a more reliable witness than Sarah
Downs and I credit his version of their conversation.
Accordingly, I find General Counsel has not proved by a
preponderance of the evidence the allegations set forth in
paragraph 5(e) of the complaint.
6. Threat to eliminate holiday benefits
The only witness who testified in support of this
allegation of the complaint was Michael Dicus who
testified that 2 or 3 weeks before the election he had a
conversation with Richard Hammett and "[w e got to
talking about the union and I asked him. I said, 'Richard,
what do you think about the union.' He. . . told me that if
the union came in that we would lose a lot of our paid
holidays." Dicus was unable to recall anything else about
that conversation and Hammett was not questioned about
the subject. However, during the preelection period both
James McKay and Richard Hammett in their discussions
with the employees compared the benefits the employees
were then enjoying with those set forth in a written
agreement, a copy of which they had with them and
showed to the employees, between Pappas Food Markets,
Inc., and Retail Store Employees Union, Local 962, AFL-
CIO, covering a food market located in Baltimore,
Maryland. Respondent argues in its brief that "Richard
Hammett engaged in a legitimate comparison of Respon-
dent's holiday benefits with those of another employer
which had negotiated a collective-bargaining agreement."
While I do not disagree with this argument, as the only
evidence in the record concerning the conversation in
question is the testimony of Dicus and as Dicus' version of
the conversation was simply that Hammett said that in his
opinion if the Union came in employees would lose a lot of
paid holidays, I find that this testimony supports the
allegation set forth in paragraph 5(g) of the complaint and
constitutes a violation of Section 8(aX 1).
checks you received this morning, after the union comes in, if the union
comes in, your checks will read zero, zero. zero." Manderville did not testify
to any such conversation.
712
FAIRLAND MARKET, INC.
7. Threats to change work schedules
The only testimony offered by General Counsel in
support of the allegations in paragraph 5(j) of the
complaint that Respondent unlawfully had threatened
employees with changes in their work schedules should the
employees select the Union as their representative was by
Marylou Manderville concerning remarks made to her and
Michael Dicus by Thomas McKay on the afternoon of the
election. Thomas McKay is the son of James and Marilyn
McKay. General Counsel does not contend that Thomas
McKay was a supervisor.
Manderville testified that she was hired in September
1976 so that on the day of the election she had been
working for the Company less than 3 months. The
pertinent testimony regarding the status of Thomas
McKay was the following testimony by Manderville:
Q. When you were hired you were assigned directly
to produce?
A. Uh-huh.
Q. And Tommy McKay was in produce at that
time?
A. Yes. He was supposed to train me because he
was leaving to go to school.
Q. Did Tommy McKay punch a timeclock, do you
know?
A. He did.
Q. He did?
A. Yes.
Q. In and out every day just like you?
A. Yes.
Q. What in that period of time did he show you
how to do?
A. How to wrap and how to package the things,
price them, how to order some things, just a general
idea of what was to be done.
Q. And how long was it until he left? How long
were you there?
A. I think I was there two or three weeks before he
was supposed to go to school.
Q. Then he left?
A. Yes, and he came down on weekends.
Q. Did you do all those things in his absence?
A. To the best I could.
Based upon the foregoing testimony General Counsel
makes the following argument: "Tommy McKay worked
in the Hollywood store full time until he went to school 12
and then he worked on weekends, Moreover, he had
trained Manderville and given her directions as to how to
display items, etc. As a member of the McKay family,
employees would obviously look upon what he said as
representing the views of his father. Accordingly, Respon-
dent should be held accountable for such statements made
by Tommy McKay because he would have the apparent
authority, at least in the employees' eyes, of speaking for
Respondent." General Counsel's argument comes to
nothing more than that the relationship of Thomas McKay
12 There is no testimony that Thomas McKay ever worked in the store
full time. Manderville's testimony is that when she was hired he worked in
the store 2 or 3 weeks before he left for school.
to the principals of the Company automatically makes him
an agent of Respondent so that his statements regarding
the consequences of unionization are attributable to the
Company. I do not believe that that is the law. According-
ly, as there is no evidence that Thomas McKay occupied a
position that caused employees to believe that he was
speaking for the Company,'3 or that his alleged incrimina-
tory remarks were made in the presence of either of his
parents or with their knowledge and approval,l 4 I find that
Thomas McKay was not an agent of the Company, as
alleged in the complaint, and therefore I shall dismiss this
allegation of the complaint.
8. Threats of stricter working conditions
Margaret Briscoe, who had worked as a cashier in the
Lexington Park store, testified that about a month before
the election she had the following conversation with Betty
Johnson:
I was eating a cupcake, and she said, "Margaret, you
know, if the union comes in you won't be able to eat on
the job anymore. . . [b]ecause in the union you cannot
eat, and you always have to be busy at all times." And
then she said to me that if we went out on strike that
her father could get replacements for us and would not
have to hire us back, and we would lose our job, and
then she went and got this . . . National Labor
Relations book, I think that is what it was, and she tried
to show me in the book where it was saying that if we
went out on strike that he could get replacements for us
and would not have to hire us back, and I said, "Betty,
well, I cannot look at the book because you told me I
had to keep busy." So, I went and started putting up
cigarettes in the cigarette case.
According to Briscoe, Betty Johnson was not joking and
sounded serious to her.
Betty Johnson's version of the incident is that on a
Saturday morning she was talking to another girl and
Margaret Briscoe interrupted, "but kiddingly," and she
said, "Oh, you don't know what the hell you are talking
about." Johnson replied in the same kidding fashion,
"Margaret, enjoy your cupcake." Betty Johnson denied
telling Margaret Briscoe that she would not be allowed to
eat a cupcake.
Although Margaret Briscoe's testimony was brief I was
favorably impressed by her manner on the stand and by
her apparently thoughtful effort to answer the questions
put to her exactly as she remembered the events. I believe
Briscoe was a reliable witness and I credit her version of
the conversation rather than Betty Johnson's version. I find
that Johnson's statement to Briscoe that if the Union came
in she would not be able to eat on the job anymore
constitutes an unlawful threat of reprisal in violation of
Section 8(aX 1).
a3 See Whiting Corporation, 188 NLRB 500, 502 (1971).
4 See N.L.R.B. v. Chanmpa Linen Service Company, 324 F.2d 28, 30 (C.A.
10, 1963).
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Demotion of Leonard Drury
The complaint alleges that on January 3, 1977, Respon-
dent unlawfully demoted Leonard Francis Drury because
of his membership in, assistance to, and activities on behalf
ofthe Union.
Drury's activities in support of the Union's organization-
al campaign consisted of passing out 3 or 4 authorization
cards among the Lexington Park store's 22 employees,
attending all of the approximately 10 union meetings, being
I of 2 employees who wore a "vote yes" button on the day
of the election, and acting as the Union's observer during
the balloting at the Lexington Park store.
Drury was hired in May 1972 as an assistant in the
produce department where he worked until May 1975,
when he was transferred to the meat department as a
meatcutter. In September 1975, according to Drury, "[t]he
manager from the produce department had quit, and I
asked Mr. McKay if I could take over in that department."
His request was granted and he assumed the new position
during the last week in September 1975.15 There is no
contention that in the new position Drury was a supervisor
or a managerial employee, although while Drury headed
the produce department Thomas Kohut, a part-time
employee, whose primary duties were in the dairy depart-
ment, assisted Drury. Store Manager Carroll directed
Drury in the performance of his duties in the produce
department.
During the time that Drury had charge of the produce
department, its profitability showed a substantial decline.
Thus, prior to Drury's accession to the position the gross
profit percentage of the produce department for the first
three quarters in 1975 was 25.83, 26.84, and 21.21,
respectively. Thereafter, while Drury was in charge of the
produce department, the quarterly gross profit percentages
fell substantially. For the respective quarters ending as
follows they were:
December 27, 1975
March 27, 1976
June 26, 1976
September 25, 1976
19.38 percent
17.95
14.19
13.88
Drury testified that about a month before the election
James McKay spoke with him about the profit figures for
the produce department.'6 According to Drury, McKay
"said that the profits weren't too high. It was low and that
something was going to have to be done to bring the
produce department back up to par, and we were losing too
much money." McKay instructed Drury to remove
damaged produce from the display racks, "go over it,
rewrap it and put it out in the special display bin at a
reduced price." After this conversation, according to
t5 While Drury testified that he had become the produce manager, this
appears to be a title he attributed to himself because Drury did not testify
that at any time he was informed by James McKay or anyone else in
authority that he had the title of produce manager.
it James McKay testified that on several other occasions he told Drury
that unless there was an improvement in the profitability of the produce
department he would have to take some action. According to McKay, he
tried to encourage Drury and to show him how to sell some of the
deteriorated merchandise.
i7 Drury testified that when he worked in the produce department prior
Drury, he made efforts to improve the performance of the
produce department. Instead of throwing away damaged
merchandise, as instructed by McKay he rewrapped it and
sold the merchandise at reduced prices. He then was able
to sell approximately half of such merchandise. Also,
according to Drury, he discontinued purchasing merchan-
dise that did not sell well and brought new items into the
department.l7
Leonard Drury testified that he was informed of his
demotion on Monday, January 3, 1977. Present were
himself, James McKay, Frank Johnson, Roger Carroll, and
Thomas Kohut. James McKay said that the profits in the
department were not as high as they should have been, too
much merchandise was being thrown away, too much
rotten produce was in the case, and all the merchandise
was not being checked off the trucks and properly
accounted for. He then said that "[h]e was going to put
Frankie Johnson in charge and with my help to help
Frankie on any problems he had with the produce. I was to
help him out in that, the orders or anything else that came
up." Frank Johnson is the McKays' son-in-law and has
had 8 to 10 years' successful experience as produce
manager of the Company's Hollywood store.
Although Frank Johnson took charge of the produce
department on January 3, 1977, no one informed Leonard
Drury that his title had been changed (if he officially ever
had any title).18 Further, Leonard Drury did not suffer any
reduction in his wage rate or earnings, and so far as the
record shows he did not suffer any change in his fringe
benefits. Thus, the only changes that occurred were that
Johnson assumed responsibility for the performance of the
produce department, Drury was relieved of such responsi-
bility to the extent that he had exercised that responsibility
prior to January 3, 1977, and Drury's primary work
activities thereafter were in the dairy department. t
On cross-examination, James McKay testified that his
son-in-law, Frank Johnson, who had been ill for a long
period of time, in the fall of 1976 had informed McKay
that he was prepared to return to work. In a prehearing
affidavit which James McKay gave to a Board agent he
stated: "After the third quarter figures came out I decided
to replace Drury. The union campaign was going on and I
was not paying as much attention to the figures as I
normally would. Also, I knew if I replaced Drury during
the campaign there would be problems. I did not have the
profit figures for the last quarter of 1976, until the middle
of January 1977. So, when I replaced Drury I did so based
on the first three quarter figures. Johnson indicated to me
in the fall of 1976 that he was ready to come [back to
to May 1975 most of the damaged produce was reworked, but this was not
done after he returned to the produce department in September 1975 until
McKay spoke with him in October 1976.
18 Employees do not wear tags which identify their position in the store
and there is no evidence that titles as such have any meaning or purpose in
the store's operation.
19 On cross-examination, Drury testified that he spoke with Store
Manager Roger Carroll about his demotion and Carroll advised him that it
was "lb ]ecause of the profits and loss and of merchandise." Drury testified
that he did not disagree with Carroll's judgment.
714
FAIRLAND MARKET, INC.
work]. I was preoccupied at the time and did not do
anything about it." 20
On the record before me I believe there is serious doubt
whether Respondent discriminated against Leonard Drury
within the meaning of Section 8(a)(3). However, it is
unnecessary to decide that question because I find that the
Company decided to place Frank Johnson, a qualified and
experienced produce manager whose performance for
many years at the Hollywood store had been good, in
charge of the produce department at the Lexington Park
store in order to improve the profitability of that depart-
ment which during the prior year and a half under Drury's
aegis had been performing poorly and that General
Counsel has failed to prove by a preponderance of the
evidence that this action was taken in reprisal against
Drury because of his union membership or union activities.
Other than acting as the union observer for the
Lexington Park store at the election there is no evidence
that Drury had a prominent role in the Union's organiza-
tional campaign. The alleged reprisal against Drury
consisted merely of reducing his responsibilities with no
change in pay or other employee benefits. This is not such
a retaliatory action as would discourage union membership
or activities. The fact that James McKay deferred taking
the action objected to prior to the election, when he had
decided that something had to be done to improve the
profitability of the produce department and when Johnson
became available to return to work, cannot fairly be
twisted to mean that the delay was prompted by an effort
to conceal an unlawful motive as counsel for the General
Counsel contends in her brief.2t I shall recommend that the
allegations of the complaint with respect to the demotion
of Leonard Drury be dismissed.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Company has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
20 At another point during his examination, James McKay testified that
Frank Johnson "indicated about Thanksgiving 11976] he was able to come
back to work, just prior to lhanksgiving. but I did not take him back at that
time . . Simply because the fact of the matter is that I wanted to make
sure that he was ready to come back. and I wanted to talk to him, and he
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
The Representation Proceeding
In its Decision and Order Directing Hearing, the Board
ordered a hearing "on the issues raised by Petitioner's
Objections I, 2, 3(a) and 5." These objections read as
follows:
I. The Employer unlawfully interrogated employ-
ees as to how the employees would vote in the election
and as to their union activities, such as, for example,
whether they attended union meetings.
2. The Employer unlawfully threatened and
coerced employees when supervisory personnel un-
truthfully and falsely told employees that: (a) if the
Union won the election, the Employer would probably
have to cut hours or cut the available working hours for
employees; (b) if the Union won the election, the
Employer would have to institute lay-offs.
3. The Employer unlawfully threatened and
coerced employees when supervisory personnel told
employees that: (a) if the Union won the election, the
stores or the Lexington Park store may, or would be,
closed.
5. The Employer unlawfully threatened and
coerced employees by engaging surveillance of employ-
ees in the exercise of the Section 7 rights, such as
attendance at Union Meetings, and by threatening
employees with the appearance of surveillance by
telling employees that the Employer knew who attend-
ed Union Meetings and what was said at the meeting.
I have found hereinabove that Respondent unlawfully
interrogated employees John Fant and Marylou Mander-
ville during the period between the filing of the representa-
tion petition and the election. However, the other objec-
tions were not proved. On the other hand, I have found
that during the critical period preceding the election
Respondent threatened Michael Dicus that the employees
would lose a lot of their paid holidays if the Union should
win the election and threatened employee Margaret
Briscoe that if the Union came in she would not be
permitted to eat on the job and would have to be busy at all
times. Although these last two incidents are not referred to
in the objections, nevertheless, they may be considered in
determining whether or not the election should be set aside.
"It is well settled . . . that the Board may properly
consider evidence discovered during a postelection investi-
gation, and that such evidence alone may be used to set
aside an election. The Board has held that. . . an election
may be set aside ... where objections to the election were
had simply called and said he was ready to go back to work, and I wanted to
talk to him prior to that.... I wanted to be sure that he was ready."
21 In her brief, counsel for the General Counsel asserts, "McKay must
have felt that if he waited a respectable time after the election, his real
reason would be overlooked."
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found to be without merit, but where the employer had
engaged in various unfair labor practices which were
discovered during the postelection investigation." 22
The issue thus becomes whether the unlawful conduct
engaged in by Respondent during the critical period
preceding the election was sufficiently egregious to warrant
setting aside the election. As stated in N.L.R.B. v. Golden
Age Beverage Company, 415 F.2d 26, 32 (C.A. 5, 1969):
[The proper test for setting aside an election] is not
whether any improprieties occurred during the cam-
paign, but whether, in the circumstances, the particular
conduct complained of "created an environment of
tension or coercion such as to preclude employees from
exercising a free choice. For conduct to warrant setting
aside an election, not only must that conduct be
coercive, but it must be so related to the election as to
have had a probable effect upon the employees' actions
at the polls." N.L.R.B. v. Zerlich Company, 344 F.2d
1011, 1015 (5th Cir. 1965).
In this case the business establishment involved has two
sites, one in Hollywood and the other in Lexington Park.
Of the 51 employees who were eligible to vote, approxi-
mately 29 worked in the Hollywood store and 22 in the
Lexington Park store. The four incidents occurred at the
Hollywood store. While Hammett's questioning employees
Fant and Manderville may not have been serious impinge-
ments upon the employees' protected rights, the threat to
Dicus that if the Union prevailed in the election the
employees would lose a lot of paid holidays and the threat
to Briscoe that stricter working conditions would be
imposed upon the employees if the Union won the election
cannot be considered trivial. The final tally of ballots
shows that the vote was 26 against the Union, 24 for it, and
I ballot was challenged. A change of one or two votes
could have affected the results of the election. In these
circumstances, I find that the unlawful conduct engaged in
by the Company was so related to the election as to have
had a probable effect upon employees' actions at the polls,
and I shall recommend that the election be set aside and a
new election directed.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in these
proceedings, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 23
Respondent Fairland Market, Inc. d/b/a Foodland,
Lexington Park and Hollywood, Maryland, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully questioning employees concerning their
desires for union representation or their attitudes towards
or reasons for supporting Retail Store Employees Union,
Local No. 400, AFL-CIO, or any other labor organization.
(b) Threatening employees with the elimination of
existing holiday benefits or with the imposition of more
strict working conditions or with other reprisals should the
employees select Retail Store Employees Union, Local No.
400, AFL-CIO, or any other labor organization, as their
collective-bargaining representative.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its places of business in Hollywood and
Lexington Park, Maryland, copies of the attached notice
marked "Appendix." 24 Copies of said notice, on forms
provided by the Regional Director for Region 5, 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 thereafter, in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations in the
complaint of violations of Section 8(a)(l) and (3) of the Act
be dismissed except insofar as specific violations of Section
8(a)(1) are hereinabove found.
IT IS FURTHER RECOMMENDED that the election conducted
on November 24, 1976, be set aside and a second election
be directed in accordance with the Rules and Regulations
and practices of the Board.
22 Pure Chem Corporation, 192 NLRB 681(1971).
23 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
24 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 question our employees concerning
their desires for union representation or their attitudes
towards or reasons for supporting Retail Store Employ-
ees Union, Local No. 400, AFL-CIO, or any other
labor organization.
WE WILL NOT threaten our employees with the
elimination of existing holiday benefits or with the
imposition of more strict working conditions or with
other reprisals should they select Retail Store Employ-
716
FAIRLAND MARKET, INC.
ees Union, Local No. 400, AFL-CIO, or any other
labor organization, as their collective-bargaining repre-
sentative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
FAIRLAND MARKET, INC.
D/B/A FOODLAND
717