Gerbes Super Markets, Inc.

National Labor Relations Board - Board Decisions

May 21, 1969

176 N.L.R.B. 11 (N.L.R.B. 1969)

GERBES SUPER MARKETS
Gerbes Super Markets, Inc. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO Local 576'
Gerbes Super Markets, Inc. and Retail Store
Employees Union AFL-CIO, Local 655.2 Cases
17-CA-3482 and 17-CA-3508
May 21, 1969
DECISION AND ORDER
CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS, AND ZAGORIA
On November 13, 1968, Trial Examiner Laurence
A. Knapp issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
alleged unfair labor practices. Thereafter, the
General Counsel and Respondent filed exceptions to
the Trial Examiner's Decision and supporting briefs.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the Trial Examiner's findings, conclusions,
and recommendations only to the extent consistent
herewith.
1. The Trial Examiner found that the Union's
majority claim was tainted and therefore deemed it
unnecessary to pass upon the appropriateness of the
grocery unit for which the Union sought recognition.
Although we agree with his conclusion that the
allegation of Respondent's unlawful refusal to
bargain with the Union should be dismissed, we do
so on the basis of the unit issue without reaching the
matter of taint.
By a letter dated March 11, 1968, the Union
claimed to represent a majority of the Columbia,
Missouri, store employees in a unit excluding meat
department' and nonfood (hardware) employees,'
and requested recognition for such a unit. The
General Counsel contended that there were therein
41 employees (checkers, stockers, sackers, and
bakery, produce, and delicatessen personnel), and
rested the majority claim on 22 signed cards
obtained by the Union. Respondent opposed this
unit as inappropriate because of the exclusion of the
hardware employees.'
' Herein called the Meat Cutters.
'Herein called the Union.
'As noted in the Trial Examiner 's Decision , the Meat Cutters sought
recognition for the meat department employees.
'The other proposed exclusions were office clericals , guards, and
supervisors as defined in the Act.
11
The Columbia store is a typical one-floor
supermarket which has meat, bakery, grocery,
delicatessen, produce, and hardware (variety)
departments that are all under the supervision of the
store manager. In contrast to the other departments
where mainly food items are carried,' the hardware
department, which occupies an area adjoining the
grocery department, stocks nonfood items such as
dry goods, greeting cards, cameras, and paint.
The hardware department consists of four
employees' and Billy C. Combs who is contended by
the General Counsel to be a supervisor as defined in
the Act because he assigns work, makes out
schedules, and grants time off to the employees in
the department. Each hardware employee is
responsible for a section of the department and has
to keep it stocked. At least one hardware employee
is on the floor at all times for the purpose of selling
hardware merchandise to customers.
Grocery and hardware employees generally do not
work outside their own area.8 However, all
employees take their breaks in the delicatessen area.
In the absence of Combs, grocery employees about
once a month unload hardware merchandise from
trucks. Customers purchasing hardware items may
have them checked out at registers in the hardware
department or by grocery department checkers.
Although there is evidence that hardware employees
may receive a lower rate of pay than some grocery
checkers, the record shows that all store employees
have the same number of working hours, vacation
rights, profit-sharing privileges, and other benefits.
As the General Counsel conceded, its novel
contention that hardware employees may properly
be excluded from the unit of all other grocery
employees is based in part on the circumstance that
the "Union could generate no interest at all among
the hardware employees." In our judgment, the
hardware employees constitute an artificial and
arbitrary group without the clearly different interests
that would justify their exclusion from the grocery
unit." The General Counsel's argument that
hardware employees are analogous to meat
department employees does not take into account
the fact that hardware employees do not have the
special training or skills that have led the Board to
find separate meat department units appropriate.
As the hardware employees do not possess
distinctive skills, are subject to the supervision of the
store manager, work the same hours and are entitled
to the same benefits as the other store employees,
have stocking and selling duties similar to those of
'For reasons set forth by the Trial Examiner in finding the meat
department at the Columbia store an appropriate unit, we disagree with
Respondent 's additional contention that only a unit of its 10 stores is
appropriate . See Haag Drug Company. Inc., 169 NLRB No. 111.
'The grocery department has a few nonfood items such as light bulbs.
'Eva L . Allen, Eleanor G. Dale , Hazel E . Hardin , and Darrel W.
Winkler.
'There is no evidence that employees in any other department sought by
the Union substantially deviate from this practice.
'Cf. Ideal Super Markets , 171 NLRB No. 1.
176 NLRB No. 1
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other grocery employees, and are not sought by any
other union , we find, despite the lack of interchange
and their apparently lower rates of pay than some
other grocery employees, that hardware employees
have a sufficient community of interest with the
other store employees to require their inclusion in
the unit.
As we agree with Respondent that the grocery
unit must include the hardware employees to meet
the test of appropriateness, we conclude that the
Union's claim, which is based on 22 signed cards,
falls short of a majority of the appropriate grocery
unit as the number of employees therein totals 45 by
virtue of the inclusion of at least 4 hardware
employees.'" Accordingly, we shall adopt the Trial
Examiner's recommendation, albeit for other
reasons, that the allegation of Respondent's
unlawful refusal to bargain with the Union be
dismissed.
2. The Trial Examiner found that employee
Nolan Tritschler, who agreed to be interviewed by
Respondent attorney William G. Haynes on
condition that the latter furnish a copy of
Tritschler's statement, was lawfully discharged for
insubordination when the latter refused to surrender
the statement because of the attorney's failure to
comply with this condition. We disagree with this
conclusion for reasons which follow:
Tritschler, a checker at the Columbia store, after
sounding out a number of employees in early
January 1968, about his proposal to contact a union
representative, arranged to meet the Union's
representative, Louis A. Sachs, at the parking area
of the store at I p.m. on Monday, January 22." We
find in agreement with the Trial Examiner that the
following unlawful conduct was thereafter directed
by Respondent against Tritschler who, prior to his
initiation of the union movement, had been "held in
rather high regard" by Store Manager Duren.'r
On Monday morning, January 22, Duren, after
being apprised by some employees of Tritschler's
forthcoming meeting with Sachs, created an
impression of surveillance in violation of Section
8(a)(I) of the Act by telling Tritschler, "Don't think
we don't know what you are doing." Duren also
made an illegal promise of benefit by saying that
Tritschler would be given a raise in addition to that
recently granted by Respondent.
Bill Phillippe, Columbia's meat manager, and
Walter Roberts, the assistant store manager,
followed Tritschler around the store on Monday
morning . Phillippe made remarks to Tritschler
which were calculated to give him the impression
"In view of this result, we find it unnecessary to determine the
supervisory status of Combs.
"Tritschler informed a number of employees of this plan sometime on
the preceding Friday.
"The Trial Examiner also found , and we agree, the Respondent violated
Sec. 8(axl) of the Act by interrogating other employees , engaging in
surveillance of union meetings or union activities and requesting employees
to do likewise , and threatening employees with the discontinuance of the
profit-sharing plan or with loss of employment.
that Respondent had his union activities under
surveillance and hence violated Section 8(a)(1) of the
Act.
On Tuesday , January 23, Duren spoke to
Tritschler about the Company's plan for another
store in Columbia and declared that he would be
recommended for the position of assistant store
manager . This statement , which was coupled with
the request that Tritschler drop the union movement
violated Section 8(a)(l) of the Act.
In the course of a conversation a few days later,
Duren made an unlawful threat in violation of
Section 8(a)(1) of the Act when he told Tritschler
that Respondent ' s profit-sharing plan would
probably be discontinued if the Union's
organizational campaign succeeded . In the same
conversation , Duren unlawfully stated to Tritschler
that he was disappointed in the way several of the
employees , particularly Tritschler, had let him
down ; that he had allowed Tritschler Saturday as
his day off and had done favors for Tritschler and
other employees; that Duren had enough on them at
one time or another to fire them and had not done
so but now that they had let him down he was going
to make up for lost time.
In early or mid- February , Duren telephoned
Tritschler's home" and in his absence asked Mrs.
Tritschler to talk to her husband "about the store
and what would happen if the Union came in." A
few days later, Mrs. Duren called and told the
Beillers that Tritschler was causing much trouble at
the store and that Duren stood to lose a lot of
money (via Respondent ' s profit -sharing plan) if the
Union got in. Mrs. Duren appealed to Mr. Beiller to
reason with Tritschler because his union activities
were causing disturbance and disruption at the store.
Although the Trial Examiner did not regard these
telephone calls as violative of the Act, they
nevertheless provide further evidence that
Respondent , which had in past weeks made a series
of unlawful statements against Tritschler for his role
as leader of the Union , continued to be hostile on
account of his activities on behalf of the Union.
In the later part of February , while Tritschler was
working as a checker , Duren slammed his fist on the
conveyor and told Tritschler his day off was being
changed from Saturday to Wednesday . As noted
above, Duren had prior to this incident specifically
referred to the favor he had done for Tritschler in
allowing him to take Saturdays off and uttered a
veiled threat against him for letting Duren down. As
the Trial Examiner observed , "Duren ' s previously
declared intention to retaliate became operative on
this occasion ." Accordingly, the Trial Examiner
correctly concluded that Respondent was motivated
by a discriminatory purpose in making this change
in working conditions and thereby violated Section
8(a)(3) and (1) of the Act.
"The Tritschlers were living with the Beillers who were Mrs. Tritschler's
parents.
GERBES SUPER MARKETS
Following the service on Respondent of the
charges filed by the Unions, Respondent attorney
Haynes interviewed a number of employees
including Tritschler.'' At the outset of the interview
with Tritschler on March 21 in the backroom of the
hardware department. Haynes informed Tritschler
of his investigative purpose and assured him that "
You may refuse to cooperate with me if you like
and this will have no affect [sic] on your fob."" As
Haynes began questioning Tritschler about the
Union's charges of March 12, which alleged, inter
alia, that Respondent had discriminated against
Tritschler in changing his day off, Tritschler told
Haynes he wanted a copy of what he told Haynes
during the interview. Haynes replied that he would
give Tritschler a copy of anything he put into a
statement for Tritschler' s signature . However, when
Tritschler demanded a copy of what Haynes had
written down, Tritschler was told that a copy would
be mailed to Tritschler. Upon Tritschler' s insistence
on a copy, Haynes proposed that Tritschler make a
copy as the interview proceeded. Tritschler declined
to do so and when Haynes handed Tritschler the
five-page statement Haynes had prepared, Tritschler
again asked for a copy and Haynes said it would be
mailed. Tritschler renewed his request for the copy
and made the alternative suggestion that Haynes
sign a statement promising that a copy would be
mailed. Haynes told Tritschler that the latter would
have to take his word and asked Tritschler to return
the document if he did not wish to sign it. When
Tritschler started to leave the room with the
document, Haynes grabbed Tritschler's wrist which
he released with the warning that if Tritschler went
out of the room the latter was "through."
Shortly thereafter, Haynes and Ryan approached
Tritschler who refused to return the document unless
his previously stated condition was met. Ryan then
arranged for two top officials of Respondent to
come to the store where Tritschler was told that his
refusal to return the document was a serious
incident, an act of insubordination for which he
could be terminated. Tritschler said he was not
going to help build a case against the Union and
that he could not return the document even if he
wished to because he had given it to the union
representative. After a further conference of
Respondent officials, Tritschler was terminated
when he persisted in his refusal to return the
statement.
Although the Trial Examiner agreed that it is well
established that an employer's pretrial investigative
interrogation must be voluntary and that Tritschler
could therefore set conditions for his cooperation,''
he held that Tritschler's condition that Haynes
"As noted by the Trial Examiner, Harold D. Ryan, the personnel
manager of Respondent 's parent company , was present during significant
portions of the interview with Tritschler.
"Haynes handed Tritschler a written statement to the effect, dated
March 19 , 1968, and Tritschler thereupon added his name to the other
employee signatures thereon.
13
provide him with a copy of the statement became
"academic" because Haynes did not insist that
Tritschler sign the document. As the Trial Examiner
held that Respondent was in these circumstances
entitled to reclaim the unsigned document which
represented Respondent attorney's "work product
and record of the interview", he concluded that
Tritschler's refusal to return or facilitate the return
of the document constituted insubordination for
which Tritschler could lawfully be discharged.
In our opinion, the foregoing holding is not
warranted as Respondent did not fully satisfy the
following safeguards set forth by the Board to
minimize the coercive impact of the interrogation:
(1) The employer must communicate to the
employee the purpose of the action, assure him that
no reprisal ' will take place, and obtain his
participation on a voluntary basis. (2) The
questioning must take place in a context free from
employer hostility to union organization and must
not itself be coercive in nature.
We agree with the General Counsel that an
employee may refuse to be interviewed or, if he so
chooses, may qualify his cooperation by making it
contingent on the reasonable condition that he be
furnished with a copy of his statements as recorded
by the employer. Once Respondent attorney Haynes
agreed to meet this condition and Tritschler
proceeded in good faith with the interview in a
backroom of the store in the presence of both
Haynes and a high Respondent official, it was
understandable for Tritschler to insist on a copy
before returning the original to Haynes. Tritschler,
who as a result of a series of coercive statements by
Respondent officials must have been acutely aware
of Respondent's antagonism to him as the leading
proponent of the Union, had on the advice of union
counsel agreed to the interview subject to a
condition he judged necessary in order to protect
himself and the cause of the Union. Although
Tritschler had not signed the document, which he
refused to return without being given a copy thereof,
the mere absence of his signature therefrom did not
make any less genuine Tritschler's fear that
Respondent might use it against him and the Union.
We further agree with the General Counsel that
Respondent's minimal property interest in the paper
and ink, or in the record that these represented,
cannot outweigh Tritschler's right to refrain from
assisting Respondent in its investigation unless his
reasonable term was met." As the record is replete
with instances of unlawful Respondent conduct
directed against Tritschler who was the most active
adherent of the Union, we find that Respondent
seized upon the opportunity presented by
"Johnnie 's Poultry Co.. 146 NLRB 770, Winfield Mfg. Co.. Inc., 173
NLRB No. 103, Standard Fittings Company. 173 NLRB No 9;
Automotive Warehouse Distributors , Inc, 171 NLRB No. 101
"As noted above , Tritschler proposed, as an alternative precondition,
that he be given a written assurance that a copy of his statement would be
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tritschler's refusal to surrender the statement as a
pretext for his removal. As already noted, Tritschler
was the object of a sustained effort by Respondent
to coerce employees into giving up the Union and
had previously been warned by Duren that "he
[Duren] was going to make up for lost time," i.e.,
punish Tritschler for "letting him down." Despite
Respondent's oral and written assurance that
Tritschler's refusal to cooperate would not result in
reprisals, Respondent nevertheless did resort to the
extreme penalty of discharge. Even assuming that
Tritschler, whose work performance was highly
regarded by Respondent, engaged in misconduct by
his refusal to surrender the document, this
"misconduct" was an outgrowth of his exercise of a
protected right and we do not view it as an
"impropriety" of sufficient magnitude to place
Tritschler "beyond the protective shield of the Act.""
Accordingly, we find, contrary to the Trial
Examiner, that Respondent discriminatorily
discharged Tritschler in violation of Section 8(a)(3)
and (1) of the Act. We shall therefore order that
Respondent offer to Tritschler immediate and full
reinstatement to his former or substantially equal
position, without prejudice to his seniority or other
rights and privileges," and make him whole for any
loss of earnings suffered by reason of the
discrimination against him by payment to him of a
sum of money equal to that which he normally
would have earned from March' 21, 1968, the date
of his discharge, to the date of an offer of
reinstatement, less his net earnings during said
period (Crossett Lumber Company. Inc.. 8 NLRB
440), and in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum,
as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Gerbes Super
Markets, Inc., Columbia, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
mailed to him . Particularly under the surrounding circumstances , including
the nature of the interview and Respondent 's clearly evident hostility to
Tritschler's union activities, we find this alternative request likewise to be
not unreasonable . And we further note that this request was of such a
nature that, if Respondent had wished to avoid exacerbation of the difficult
relationship in such an interview , it could easily and quickly have
complied.
"Standard - Coosa Thatcher v. N.L.R.B.. 395 F.2d 512 (C.A. 5).
"This order is designed to remedy not only the discharge but also
Respondent 's unlawful change of Tritschler's day off.
1. Insert the following as new paragraph I (a) and
reletter subsequent paragraphs accordingly:
"(a) Discriminatorily discharging employees or
otherwise discriminating against them in regard to
their hire, tenure of employment, or any other term
or condition of employment because they engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection."
2. Insert the following as new paragraphs 2 (a),
(b), and (c) and reletter subsequent paragraphs
accordingly:
"(a) Offer to Nolan Tritschler immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of pay which he may have suffered as a
result of the discrimination practiced against him, in
the manner set forth in this Decision.
(b) Notify Nolan Tritschler if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay do under the terms of this Order."
3. Delete the following from the last paragraph of
the Trial Examiner's Recommended Order:
including, without limitation, the charge that
Respondent discriminatorily discharged Nolan
Tritschler.
4. Insert in the notice attached to the Trial
Examiner's Decision the following before the first
indented paragraph:
WE WILL NOT discriminatorily discharge
employees or otherwise discriminate against them
in regard to their hire, tenure of employment, or
any other term or condition of employment
because they engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection.
WE WILL offer to Nolan Tritschler immediate
and full reinstatement to his former or
substantially equivalant position without prejudice
to his seniority and other rights and privileges and
make him whole in the manner provided in the
Board's Decision for any loss of pay he may have
suffered as a result of the discrimination against
him.
WE WILL notify Nolan Tritschler if presently
serving in the Armed Forces of the United States
of his right to full reinstatement upon application
in accordance with the Selective Service Act and
the Universal Military Training and Service Act,
as amended, after discharge from the Armed
Forces.
GERBES SUPER MARKETS 15
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner : I heard this case
at Columbia, Missouri, during the period May 20-22 and
June 4-7, 1968, following pretrial procedures in
compliance with the Act.' Briefs submitted to me
following the hearing by counsel for each of the parties
have been fully considered.
Respondent owns and operates nine supermarkets, and
a variety store , located in nine cities in the State of
Missouri .' This case concerns only the Columbia,
Missouri, store which, in addition to carrying the food
and associated grocery items generally dispensed at
supermarkets, has a "variety" department carrying such
items as electric appliances , guns, shells , paint, dry goods,
toys , greeting cards , suitcases , cameras, and film.
Issues Presented
After card authorization activity carried out by each of
the charging unions named in the caption (herein
sometimes called the "Meat Cutters" union and the
"Retail Store" union , respectively ), each union sought
recognition from Respondent for collective bargaining
purposes , the Meat Cutters in behalf of the employees in
the Columbia store ' s meat department , and the Retail
Store union in behalf of the other workers of that store
excluding those in the "variety" department . Respondent
declined these requests for recognition . Broadly speaking,
the case presents the questions whether Respondent sought
to obstruct the Unions' representational efforts by a
variety of alleged coercive conduct; whether its refusals of
recognition were unlawful ; and whether it engaged in
discrimination against certain prounion employees,
including its discharge of an employee who played a
leading role in forwarding the Unions' representational
efforts.
1. THE BUSINESS OF RESPONDENT ; THE LABOR
ORGANIZATIONS INVOLVED
The complaint alleges , the answer admits, and I find
that Respondent is a Missouri corporation engaged in the
operation of retail stores in the State of Missouri which in
the conduct of such business annually receives gross
revenues in excess of $500,000 and annually purchases
from outside the State of Missouri products valued in
excess of $50,000 . Respondent is engaged in commerce
'A charge and an amended charge were filed in Case 17-CA-3482 on
February 8 and March 6 , 1968, respectively ; on March 28 , 1968, a
complaint issued in that case , to which Respondent filed its answer on
April 3, 1968. (All dates used herein refer to the year 1968 unless
otherwise indicated .) A charge and an amended charge were filed in Case
17-CA-3508 on March 12 and 26, respectively . Thereafter , on May 6, the
Regional Director of the Board concerned issued an order consolidating
the two cases and an amended consolidated complaint . Respondent
thereafter filed a motion in opposition to consolidation of the cases which
prior to the hearing was denied by Trial Examiner Schneider and which,
renewed at the hearing , the present Trial Examiner also denied. At the
outset of the hearing Respondent filed its answer to the amended
consolidated complaint.
The General Counsel 's unopposed motion to correct the record, dated
July 31, is hereby granted . I further correct the record as follows : p. 181, 1.
4, the word "be" should read "see."
'Since about 2 years prior to the hearing Respondent has been a wholly
owned subsidiary of The J. S. Dillon & Sons Stores Company, Inc., of
Hutchinson , Kansas.
and in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Likewise the complaint alleges , the answer admits, and
I find that the Meat Cutters Union and the Retail Store
Union is each a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory Matters
As a prelude to consideration of the evidence relevant
to the important events of the case and corresponding
alleged violations, it will facilitate their understanding to
set forth some general description of Respondent's overall
operations and managerial setup, and of the Columbia
store. Respondent operates a chain of 10 stores, 9 of these
being supermarkets (located at Tipton, Versailles,
Windsor, Eldon, Holden, Camdenton, Pleasant Hill,
Jefferson City, and Columbia, Missouri), and the 10th
being a variety store located at Tipton in addition to the
separate supermarket there. Fred M. Imhoff is president
and general manager of Respondent , with his offices at
Respondent's central headquarters in Tipton. On the
record I find that Imhoff has general and broad authority
over and responsibility for Respondent's operations.
Responsible to Imhoff are two subordinates likewise
stationed at Respondent's headquarters, John Hayes and
John Long. Hayes is the "food supervisor" and Long the
"nonfood" supervisor, and they are also, respectively,
personnel manager and assistant personnel manager. In
both these capacities, Hayes and Long have corresponding
authority over the managers of the local stores, which
they visit at frequent intervals.
The Columbia store is a typical one-floor supermarket,
fully open insofar as the sales areas are concerned. In the
larger portion of the sales floor area what may be loosely
called grocery items are stocked on shelves or in display
cases; these items consist of delicatessen , bakery , produce,
meat, and grocery products (including in the grocery area
some associated "hard" and "soft" goods). The balance of
the sales floor area is occupied, with no wall separation,
by the so-called "variety" department, where the items
previously enumerated are displayed. Behind the sales
floor area are enclosed stockrooms where inventories are
stored.'
In general charge of the Columbia store, which has
some 50-55 employees , is its manager , Bill Duren, whom
Respondent unconditionally concedes is a "supervisor"
within the meaning of the Act. Walter Roberts has the
title of assistant manager of the store , and Bill Phillippe is
described in the record as manager of the meat
department. The General Counsel contends, Respondent
denies, and I find that Roberts and Phillippe are
supervisors within the meaning of the Act's definition -
Section 2(11) - of that term. Uncontradicted evidence
establishes that Roberts gives work assignments to
employees when Manager Duren is also present in the
store , reprimands employees for misconduct , grants
employees limited amounts of time off, and is in charge of
the store in Duren's absence . As to Phillippe, the record
establishes that he played a principal role in hiring various
of the meat department employees who testified; that he
makes up the work hour schedules of the meat department
employees, gives them their various and varying work
assignments , and otherwise oversees the operations of that
'For a general floor plan of the store see G . C. Exh. 3.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department; and that in the commission of various acts
alleged to be unfair labor practices (as hereinafter
described) he plainly was playing a role and exercising
authority which only one with supervisory status and
responsibility could have occupied or have exercised.,
Some further clarification regarding the cast of
characters is also desirable at this early juncture. These
include two part-time meat department employees, Gary
Randolph (Randy) Foley, and David Owen, age 18 and
19, respectively. At the times in question , Foley and Owen
were students in the local high school who attended school
in the morning and were employed by Respondent during
the balance of the day, thus putting in over 30 hours per
week in Respondent 's employ.' At the high school, both
boys were enrolled in a vocational agriculture educational
program involving, at some stage prior to graduation,
practical employment experience in their chosen field. In
September 1967, the high school official in immediate
charge of this vocational training program, D. R.
Schneider, reached an agreement with store official
Phillippe and Duren to provide such training in the store
meat department to Foley (already in Respondent's
employ) and Owen, who was employed in September 1967
in furtherance of this agreement. Under this program and
arrangement the boys' hours of 1:15 to 3:15 p.m., at the
store were treated as school study periods at the high
school for which the boys received corresponding school
credit. Further, under this arrangement, Schneider acted
as their teacher-supervisor and Phillippe as their
employer-supervisor, and Phillippe's periodic reports
relative to the quality of the boys' work at the store were
taken into account by Schneider (along with his evaluation
of their regular school work) in determining the boys'
school grades.
In addition, and separately from the foregoing
arrangement for general employment-training for these
two boys, another arrangement existed between
Respondent and the school authorities under which
Respondent made its store facilities available on one
evening a week for a meat-judging class of several local
high school students, including Foley and Owen. This
class was conducted at the store by teacher Schneider.'
I make the foregoing clarification of relationships
between the store and high school officials, involving these
two boys, because the complaint charges that , acting as
agents of Respondent, teacher-supervisor Schneider and a
superior of his at the high school, a Mr. Willows,
subjected these two boys to coercive pressures designed to
put an end to their union activities.
I now approach consideration of the substantive charges
involved in the case, which divide themselves into three
main categories. In one category fall the bulk of the items
of coercive conduct charged against Respondent as
independent violations of Section 8(a)(1) of the Act
(alleged unlawful interrogation, threats of reprisal,
promises of benefit, etc.). Since Respondent's alleged
actions in these respects are associated with the union
'fhe parties also differ as to the supervisory status of certain other
employees but in view of my disposition of pertinent issues I find it
unnecessary to resolve these differences.
'From February until the end of the school year Owen 's hours were
reduced to about 20 per week and the complaint (par. 6(a)) alleges that
this reduction was discriminatory . However, in his brief counsel for the
General Counsel concedes , as I find , that the evidence does not sustain this
allegation and accordingly it should be dismissed.
'One incident of the meat judging program was its objective of selection
each year of a team of three members to enter into a statewide
meat-judging competition with teams from other schools.
organizational activity which developed among the store
employees, it is possible in a single initial section to
describe the main features of the employees' organization
activity and much of Respondent's corresponding allegedly
coercive opposition measures. Thereafter, I deal with the
alleged refusals to bargain and the charges of
discrimination, under respectively, Section 8(a)(5) and (3)
of the Act.
B. The Employees' Union Organizational Activity
and Respondent's Allegedly Coercive Responses
Thereto
About the first week of January, employee Nolan
Tritschler sounded out about 10 employees concerning his
proposal to contact a union representative to see "what
the union could offer us, not necessarily just to jump into
it . . . ." The concensus was that he should proceed,
whereupon, prior to going to work on the morning of
Friday, January 19, Tritschler endeavored to reach by
telephone at St. Louis, Mr. Louis A. Sacks, representative
of the Retail Store union . Later in the morning Sacks
called Tritschler back at the Columbia store, and in the
ensuing conversation the two agreed to meet at the
parking area of the store at 1 p.m., on Monday, January
22. During the course of Friday Tritschler informed a
number of employees that he had talked to Sacks and had
made the Monday engagement . (Tritschler did not work
on Saturday, that being his day off.)
Shortly after the store opening at 9 a.m., on Monday
morning , Manager Duren initiated a conversation with
Tritschler, in the course of which the complaint charges,
Duren made an unlawful "promise of benefit" to
Tritschler and, in addition, made a statement calculated to
create the impression that Respondent was engaged in
surveillance of Tritschler's union activities, all in violation
of Section 8(a)(1) of the Act.
As background to consideration of some of the evidence
relating to what Duren said in this conversation, about
mid-December 1967 Duren had proposed to Hayes,
presumably in the latter's capacity as personnel manager,
individual proposed wage increases for each employee in
the Columbia store. Duren received notice of the head
office action on these proposals on Friday afternoon,
January 20, by means of the weekly paychecks received in
the store earlier that day. Apparently in most cases the
raises granted were less than Duren had proposed;
Tritschler 's raise was 10 cents rather than the 20 cents per
hour Duren had recommended. Duren immediately called
Imhoff to express his dissatisfaction with the company
action and Imhoff had Hayes proceed immediately to
Columbia that afternoon to confer with Duren. Hayes had
a further conversation with Imhoff at Tipton the next
(Saturday ) morning , following which Imhoff or Hayes, or
both called Duren. Duren testified that in this
conversation he was told that the Company was
reconsidering the matter; that the results would be
reflected in the next week's paychecks; and that the
Company was going to "finish out" the raises (meaning, I
infer, carry out Duren's initial recommendations).
Sometime prior to the noon "dinner" hour on that
Saturday, Duren called Tritschler's home (but did not
speak to Tritschler, who was away for the weekend) to tell
Tritschler that he would receive the additional 10 cents
per hour.
Turning now to Duren's conversation with Tritschler on
the morning of Monday, January 22, Duren approached
Tritschler and told him that he had tried to reach him on
GERBES SUPER MARKETS
Saturday. Duren went on to say that he was not happy
over the raise Tritschler had received the previous Friday,
that he had talked to Imhoff and Hayes on Saturday and
had been informed that Tritschler would receive the
additional 10-cent raise and that other employees would
likewise receive further increases (in the next week's
checks, Tritschler did receive the further 10-cent raise and
at the same time "about all" other employees received
further increases).
Following these remarks, according to Tritschler,
Duren started to walk away and then turned to say that
several employees had told him on Saturday that
Tritschler had arranged to meet with a union
representative; Tritschler acknowledged that this was true;
Duren then told Tritschler "Don't think we don't know
what you are doing" and asked Tritschler what made him
think the employees wanted union representation; and
Tritschler replied that he had talked to various employees,
some of whom wanted to at least talk to a union
representative. When later called as Respondent's witness,
Duren was not directly questioned as to whether he had
made the foregoing specific statements attributed to him
by Tritschler. What he did testify is that he first heard
about union activity shortly before noon on Monday, the
22d, when Roberts, his assistant manager, told him that
Tritschler was going to meet with a union representative
during Tritschler's 1-2 p.m., lunch hour that day; that he
immediately informed Mr. Imhoff of this development;
that he saw Tritschler sit in a car with someone in the
store parking lot during that period; and that he had not
learned during the preceding weekend that some employee
had contacted a union. I credit Tritschler's testimony and
find that at some point on Saturday morning (the store is
open on Saturdays) Duren was informed by one or
another of the employees that Tritschler had arranged to
meet with a union representative on Monday; and further
find that in this Monday conversation with Tritschler
Duren told Tritschler "Don't think we don't know what
you are doing."
Duren's statement to Tritschler, just referred to, was
plainly calculated to cause Tritschler to understand,
indeed, to warn him, that Respondent was in possession of
means enabling it to keep watch over his union
organizational activities, and as such created the
impression of surveillance in violation of Section 8(a)(1) of
the Act. I further conclude that Duren's assurance to
Tritschler that he would receive the further 10-cent raise
was an illegal promise of benefit. For even if Duren took
steps on Friday to register his dissatisfaction with the
wage increases Tritschler and others had been accorded,
he knew when he was dealing further on this subject with
his superiors on Saturday that Tritschler 's union
organizational activities were under way and undoubtedly
so informed Imhoff and Hayes that day. (Duren admitted
that he informed Imhoff of Tritschler's union activity as
soon as he learned about it, as he claimed, on Monday. I
accept Duren' s assertion that he reported Tritschler's
activities immediately but I place the date as Saturday
when, as I have found, Duren had this information.) As
my Decision unfolds, it will be seen that Duren and other
of Respondent's officials were strongly opposed to the
unionization of the employees. Moreover, the speed with
which Respondent acted, more or less on an overnight
basis, to grant Tritschler and other employees further
raises seems out-of-character, bearing in mind that
Duren's initial proposals had been under consideration for
a month and a half and, after such extensive pendency and
eventual partial denial, should have suddenly become
17
acceptable. I also consider it significant that neither Hayes
or Imhoff, both of whom testified as witnesses for
Respondent, gave any testimony bearing upon this
incident in which they were directly and authoritatively
involved. Finally, Duren's efforts to reach Tritschler on
his day off to inform him of the further raise seems hardly
the course a store manager would follow in the ordinary
course of events. I think it more logical to believe that
Duren had some special reason for thus wanting to inform
Tritschler of Respondent's beneficient action toward him
and other employees. On this record, that reason would
appear to have been Respondent's knowledge of the step
toward possible unionization Tritschler had simultaneously
taken. I believe, and find, that Respondent did what it did
when it did it to forestall unionization, and, accordingly,
that Duren's representations to Tritschler were assurances
of benefit violative of Section 8(a)(1) of the Act.
Following this conversation between Duren and
Tritschler, and in the further course of the morning,
Assistant Store Manager Roberts and Meat Department
head Phillippe followed Tritschler around the store.
Sometime before the noon hour, Tritschler encountered
Phillippe in a backroom and asked him why he was
following Tritschler. Phillippe replied "Don't think we
don't know what you are doing, we know you are going to
see a union man" - "we know a lot more than you think
we do." Tritschler replied that he was not trying to hide
his activities and stated that he had talked to several
employees (referring, I infer, to his earlier canvassing of
employees relative to his contacting a union .) Phillippe
responded by asking Tritschler why he thought he had a
right to do this and why he thought other employees
wanted to be in a union . Tritschler replied that he was
merely acting as a spokesman. Phillippe then told
Tritschler to leave "his" (meaning , I infer, the meat
department) employees "out of it" - that they were
happy with what they had and he wanted Tritschler not to
bother them.' As in the case of Duren 's similar statement
considered above, Phillippe's remarks that Respondent's
representatives knew about Tritschler's union activities
and more than Tritschler thought, were calculated to give
Tritschler the impression that Respondent had his union
activities under surveillance and hence violated Section
8(a)(1) of the Act.
During Tritschler's lunch hour meeting with Sacks, the
Retail Store union representative, it was agreed that
Sacks should meet with interested employees that evening
at his room in the local Holiday Inn and that Tritschler
should spread word of the arrangement among store
employees that afternoon, which to some extent he did.
Shortly after Tritschler returned to work he was called
into the store office for a talk with Duren and Roberts.
Tritschler testified that in the course of the conversation
"they" told him not to talk to employees about the Union
on company time; that he agreed to this admonition and
that he further explained that he had talked to several
employees and they merely wanted to meet with a union
representative. After some further conversation,
according to Tritschler, he was asked, I infer by Duren,
whether a meeting was planned for the near future, which
inquiry he answered by disclosing the time and place of
the meeting scheduled for that evening. In the same
conversation, according to Tritschler, Duren inquired
whether the employees would not hold off for a time, for
'I find the facts stated in the foregoing paragraph on the basis of
Tritschler 's uncontradicted testimony ; neither Roberts or Phillippe
testified.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the reason that he had been assured by President Imhoff
that when the Dillon company "took over" there would be
improvements in wages and other working conditions.
Duren testified that he called Tritschler to the office
because of a report from Roberts that Tritschler was
talking to other employees so much that he was
endangering completion of his work (stocking the dairy
case ); that he asked Tritschler why he was talking to the
employees; and that Tritschler, referring to his lunch hour
talk with a union official, said he was spreading word
among the employees concerning that evening's meeting.
Admittedly during this conversation Duren, under the
impression from what Tritschler said that the meeting
would begin at 8 p.m., told Tritschler that he would
permit interested employees to leave work prior to the 9
p.m., closing time in order to attend the meeting, and in
fact did so in the case of various employees.
With regard to this incident, the complaint charges that
Duren unlawfully interrogated Tritschler concerning a
prospective union meeting . On Tritschler's version of what
took place, Duren made an outright inquiry concerning
any projected meeting. On Duren's version, Tritschler
volunteered the information concerning that night's
planned meeting and explained that this was why he was
talking to various employees, the matter which brought
the conversation about. But I do not consider it necessary
to decide which of these versions is correct since, in either
case, it is clear that Duren facilitated the attendance of
the employees at the meeting, as he told Tritschler he
would do. In these circumstances, even if as part of a
lengthy conversation Duren made the inquiry Tritschler
attributed to him, it could scarcely be regarded as having
had any noticeable coercive effect on Tritschler.
Employers' inquiries concerning their employees' union
activities, including union meetings, are normally coercive
because of their improper intrusive nature and natural
inhibiting effect. In this instance, however, Duren's
cooperation in facilitating attendance at the meeting had a
disabusing and countervailing effect. At most, what was
left could only be regarded as so minimal a violation as to
warrant dismissal of this charge, which I will recommend.
About 17 employees met with Sacks that night at the
Holiday Inn, including Mrs. Joy Duren, the store
manager's wife who is also, as the evidence establishes, an
occasional employee of the store. Present also were
"Randy" Foley and David Owen, the two part-time meat
department employees previously described.'
During that day, Meat Manager Phillippe asked meat
department employee Randy Foley if he knew there was
to be a union meeting for the grocery (i.e., nonmeat
department) employees. Foley replied in the affirmative.
Phillippe asked Foley if he intended to go and Foley said
he had not planned to do so. Phillippe then asked Foley
and Owen, if they would attend the meeting and see what
went on and who was there, which they agreed to do. The
next day, January 23, Phillippe talked both to Foley and
'The complaint alleges that Mrs. Duren's presence at this meeting
constituted unlawful surveillance on Respondent 's part , a matter I deal
with later . No other issue is present concerning the events of this meeting
but for general background it may be noted that they consisted of
distribution by Sacks of a copy of a contract between the Retail Store
union and a local Kroger chain store , of material concerning that Union's
health and welfare program, and of the representation authorization cards.
Sacks made some explanations concerning the Kroger contract and the
health and welfare program . He also read the text of the authorization
card , invited card signatures , and made explanations relative to two
possible uses of the cards , i.e., for an election , or for recognition by the
card check method if that were agreeable to Respondent.
Owen. He asked Foley if any department heads were
present. Foley replied in the affirmative, naming them,'
and went on to inform Phillippe that Mrs. Duren was at
the meeting taking notes and that Phillippe was "right,"
i.e., that Tritschler was the employee behind the union
movement. In Phillippe's talk with Owen, Owen told him
(contrary to Phillippe's prediction to him the day before)
that the Union (i.e., Sacks), had not painted a "rosy
picture" and had not promised anything.10
The complaint alleges that Phillippe's inquiries of Foley
concerning his knowledge of that night's meeting and his
intentions regarding attendance constituted unlawful
interrogation . This they clearly did, and I so find. The
complaint further alleges that Phillippe requested the two
boys to engage in surveillance of the meeting when he
asked them to attend and report back particulars to him.
The facts I have found sustain this charge.
Likewise on January 23, according to Tritschler, Duren
spoke to him concerning the Company's plans for the
addition of a second store at Columbia, and described to
Tritschler how he, in the light of certain eventualities,
would be in line for and would receive Duren's
recommendation to fill an assistant manager position in
one of the two stores. According to Tritschler, Duren then
asked him to "hold off" until they saw how the Dillon
company's acquisition of Respondent would affect things,
adding that he was sure the Dillon ownership would help
Imhoff who, Duren said, could see that there was unrest
among the employees and that various changes would
have to be made if the Union did not come in. In this
same conversation, according to Tritschler, he told Duren
that he would find out from Sacks how the card
signatures were coming along , that he did not see any
sense in having the matter drag out if only a "minimum"
of cards had been signed and if this was the case he would
see whether the employees he had originally contacted
were agreeable to asking Sacks to abandon the union
organizational movement." According to Tritschler he and
Duren also agreed on this occasion that neither would talk
to the employees relative to the Union during work time.
Duren admitted that around the time specified by
Tritschler he called Tritschler into a back room to talk
"about the progress" [of, as I infer, the union movement]
and that in this conversation he informed Tritschler of the
Company' s expansion plans and the resulting possibilities
of Tritschler's promotion. I credit Tritschler's testimony
and find that Duren made to him the statements described
in Tritschler's testimony relative to his promotion
possibilities.' I
rrhe matter is of no particular importance but a list given by Sacks of
the 17 employees includes George Cornell , loosely described in the record
as the produce "department" head , and Ima Jean Lewis, the so-called head
of the delicatessen "department ." The complaint raises no issue relative to
the attendance of Cornell and Lewis, whom the General Counsel contends
are not supervisors. Foley's reference to them is significant only as a
response made to Phillippe 's interrogation of Foley relative to what took
place at the meeting, which the complaint does charge as violative of Sec.
8(ax l )
"I make the foregoing findings on a composite of the testimony of Foley
and Owen , which I credit . As previously noted , Phillippe was not a witness
at the hearing.
"It is clear from both the testimony of Tritschler and Duren that early
in the organizational period Tritschler told Duren he would keep the latter
informed relative to the progress of the organizational effort and I
conclude that this was the pertinent occasion when this understanding was
reached.
"Duren also testified that in this conversation he declined to agree to
Tritschler's proposal that each of them refrain from talking to employees
about the Union on work time , but it is unnecessary to decide whether
GERBES SUPER MARKETS 19
The complaint charges that what Duren said to
Tritschler regarding promotion possibilities for Tritschler
constituted illegal promises of benefit. While strictly
speaking not promises, certainly Duren was projecting
promotion possibilities while at the same time
importuning Tritschler to drop the union movement.
Inducements held out for such a purpose plainly violate
the Act and are within the fair intendment of the
complaint.
On January 25, the Company called and President
Imhoff addressed a meeting of all the store employees (in
terms not reflected in the record), following which he
invited questions. Someone asked what would happen to
the profit-sharing plan if a union became the employees'
representative, a question answered by Personnel Manager
Hayes who stated that it would become a "negotiable"
subject and there was no way of knowing what the
outcome of such negotiations would be. A few days later,
however, according to Tritschler, in the course of a
conversation he had with Duren ," Duren referred to his
and Mrs. Duren's plans to build a house but said that if a
union came in the profit-sharing plan (where, Duren
added "my money is") would almost certainly be cut out
and his house plans "go down the drain." Tritschler
further testified, on cross-examination , that Duren did not
on this occsaion mention "negotiation" as the cause of the
probable plan termination, and that when Tritschler had
himself told Duren in the course of earlier conversations
that the plan was negotiable, Duren had said Tritschler
could not make him believe this was the case. I credit
Tritschler's testimony as to what Duren said on this
occasion. Duren admitted that he talked to Tritschler
about the plan and its advantages on this occasion and
that, among other things , he told Tritschler that he would
hate to see anybody lose the plan. But his testimony
concerning what he said on this specific occasion contains
no declaration that he tied possible loss of the plan to
union negotiations. What remains of his testimony is his
broad assertion that in telling other employees on other
occasions the plan could be discontinued he referred to its
"negotiable" character, testimony I consider inadequate to
create a direct conflict with the testimony of Tritschler as
to what took place on this specific occasion . Having
credited Tritschler's testimony, I find that Duren made an
unlawful threat when he told Tritschler the profit- sharing
plan would most probably be discontinued if the Union
organizational activity succeeded."
In this same conversation, according to Tritschler,
Duren said he was disappointed in the way several of the
employees, and Tritschler in particular, had let him down;
that he had let Tritschler have Saturday as his day off and
had done other favors for Tritschler and others; that he
such an agreement was clearly arrived at or not.
"Tritschler first gave Wednesday , January 24, as the date of this
conversation but on cross-examination stated it could have taken place
some other day. From other evidence , I find the conversation occurred
subsequent to January 25 and either on Monday , January 29, or Tuesday,
January 30.
"Tritschler' s testimony refers to two earlier occasions (January 22 and
23), upon which, according to ban , Duren similarly expressed his fear that
the profit-sharing plan would be terminated if the Union came in.
However, these instances are not charged in the complaint , which alleges
January 20 and 30 as the dates of such threats. Since I find violations on
the occasions alleged , I do not consider the question whether , if it was the
intention of the General Counsel to litigate the earlier instances referred to
by Tritschler without moving to amend the complaint, these items could be
said to have been fairly put in issue and tried , in the absence of some
notice of intention to litigate given by counsel for the General Counsel.
had had enough on them at one time or another to fire
them and had not done so but now that they had let him
down he was going to make up for lost time. Duren
admitted that in one of his conversations with Tritschler
he had reminded Tritschler that he had done him a favor
in giving Tritschler Saturday as his day off so that he
enjoyed a full weekend off and that he told Tritschler that
he could or might have to change this arrangement and
Tritschler should feel lucky. On the other hand, he denied
making the other statements Tritschler's testimony
describes. I believe Tritschler to be the more credible
witness and find that Duren on this occasion made the
threatening statements Tritschler attributed to him,
statements plainly violative of Section 8(a)(1) of the Act.
In the meantime, the Meat Cutters Union had entered
the picture to obtain representation of the Respondent's
meat department employees, all six of whom attended a
meeting conducted on the night of Monday, January 29,
at the local Labor Temple by Theodore Wolff, a Meat
Cutters' business representative." These six were Larry
Nelson, Joy Carlos, Mary McMinn, Bill Paxson, Randy
Foley, and David Owen. Also present were Owen's father
and Tritschler. Phillippe, manager of the meat
department, likewise put in an appearance.
On the day of the meeting Phillippe asked Foley if he
knew of the meeting and whether he was going to attend,
questions which Foley answered in the affirmative.
Phillippe likewise told Foley he would probably be given a
union authorization card but not to sign it because there
was nothing requiring him to do so.16 The complaint
charges that Phillippe's inquiries of Foley relative to the
meeting and his telling Foley not to sign a union card
violated the Act. The facts support these charges and I so
find.
During the meeting, in). identified himself, and
expounded upon the benefits provided in Meat Cutters'
contracts with other Columbia stores. During this phase,
Phillippe made two inquiries, one relative to Respondent's
profit sharing plan (if, I infer, the Union got in.)"
Phillippe's other question was whether if the Union got in
this would prevent Respondent from installing
meatwrapping machines, to which Wolff replied by stating
that this also was a matter subject to collective-bargaining
negotiations. The complaint alleges that Phillippe's inquiry
relative to installation of wrapping machines constituted a
threat of such installation and consequent job loss
(employees Carlos and McMinn wrap meat by hand,
among other duties) if the Union became the employees'
representative. I conclude that this allegation of the
complaint should be dismissed. On its face, Phillippe's
inquiry seems a natural one and there is no evidence of
any further remark on his part which would lend a
threatening import to his query.
The complaint further charges that Phillippe's
attendance at this meeting represented unlawful
surveillance of the union activities of Respondent's
employees. This charge must be sustained. Phillippe had
previously, on the occasion of the Retail Clerks' meeting
"Alerted by Sacks, the Retail Store union representative , to the presence
of meat department employees Foley and Owen at the January 22 meeting
conducted by Sacks, Wolff promptly obtained the names and addresses of
the meat department employees from one of them , Larry Nelson, and sent
them samples of union contracts . On January 29, upon request of Nelson,
Wolff agreed to meet that night with meat department employees.
" I make these findings on the basis of Foley's uncontradicted testimony.
As previously stated , Phillippe was not a witness at the hearing.
"As to this query, not challenged in the complaint , Wolff stated that the
plan was a negotiable matter.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of January 22, sought to ascertain information concerning
employee attendance at and other particulars of that
meeting, and, as other earlier and later events show,
deployed himself on many fronts to set at naught the
self-organizational desires of Respondent's meat
department (and other) employees. That he came to this
meeting (uninvited so far as the record shows) to acquaint
himself on Respondent's behalf with what took place
cannot be doubted.
As the meeting progressed, Wolff passed out Meat
Cutters' authorization cards and spoke of two routes to
obtain recognition, i.e., a card check or an election. One
employee, Nelson, then signed a card and Wolff left the
employees to themselves for a while. When he returned,
Phillippe departed and then, at the employees' suggestion,
Wolff joined them for coffee at a nearby bowling alley.
While at the alley, Foley, Owen, McMinn, and Carlos
decided to sign cards and did so. Thus, in the end five of
the six meat department employees signed authorization
cards that evening.
The next day, Tuesday, January 30, Phillippe asked
Foley if he had signed a Meat Cutters' card and Foley
replied that he had. Phillippe then asked Foley if Owen
had signed and Foley said, untruthfully but
understandably, that he did not know. That same
morning, Phillippe asked Joy Carlos if she had signed a
Meat Cutters' card and she replied that she had. Phillippe
also asked her if Foley and Paxson had signed, and in
response she told him Foley had but she did not know
whether Paxson had." These inquiries of Phillippe as to
employee signatures of union cards violated the Act, as
charged in the complaint.
Later that morning, at Duren's instructions, Phillippe
called Carlos, Nelson and Paxson into the meat cooler
where Duren talked to them for about an hour concerning
the profit-sharing plan. (Phillippe was in and out of the
meeting.) Carlos and Nelson testified concerning what was
said during this gathering but without purporting to recall
all that transpired in such a lengthy meeting . So much as
they recalled, however, is not in conflict. Combining their
accounts, Duren said he had with him his own, Phillippe's,
and employee Sullivan's profit-sharing books and
explained how much employee Sullivan would accumulate
over some period of years. Nelson said he would rather
join a union and have his money now, instead of waiting
until he was elderly. Some heated argument then
developed between Duren and Nelson over the union vs.
profit-sharing plan issue , in the course of which Duren
asked Nelson why if he liked a union so much he had not
stayed with National ( a union store in Columbia where
Nelson had previously worked); Duren said, in reference
to a union coming in , that the Company could, if it
wished , terminate the plan ; that he did not care about
himself but would hate to see other employees lose; and
further said that he was having a $45,000 house built but
not with union money, and that he had never belonged to
a union and never would. At the end of the discussion
Duren asked the three employees to think over what he
had said. Under cross-examination, both Carlos and
Nelson firmly adhered to their direct testimony that
Duren had said the Company could, if it wished,
terminate the plan , and Carlos denied that Duren
described the plan as terminable because of its negotiable
character."
"I make these findings on the basis of the uncontradicted testimony of
Foley and Carlos. As previously stated , Phillippe did not testify.
"Nelson 's testimony on cross-examination is implicit with such a denial
Duren's account of what transpired at this gathering,
which admittedly he caused to be assembled, generally
conforms in many aspects to the testimony of Carlos and
Nelson as to what transpired. But he denied that he said
the plan "would" be discontinued if the Union came in30
and asserted that what he told the employees with respect
to termination of the plan was that "this profit sharing is
a negotiable item, that we could lose it or we could not."
I credit the employee witnesses and find that Duren
described the plan as terminable at the Company's
volition if the Union came in without ascribing this
possible termination to the negotiable character of the
plan. I make this credibility resolution in part because of
Miss Carlos' uncontradicted testimony that during that
afternoon she did think over what Duren had said and
that night called her coworker in the meat department,
Mary McMinn, who I find had not been present," and
told McMinn that Duren had said the Company could
drop the plan if "we went union " and that she hated to
see this happen to the older employees; that she and
McMinn then discussed the matter further and agreed that
Carlos would call Duren that night to tell him they would
vote against the Union in any election; that she did
telephone to Duren's house that night and, in his absence,
gave this message to Mrs. Duren; and that the next
morning Duren admitted receiving this message and
thanked her and McMinn for this action on their part"
Moreover, I was more impressed from a credibility
standpoint by the demeanor of the two employee witnesses
than by that of Duren.
Duren 's discussion of the profit-sharing plan with the
three employees obviously was arranged and conducted as
part and parcel of his and Phillippe's manifold efforts
during this period to prevent the unionization of
Respondent's employees, and in this context Duren's
proclamations that Respondent could, if the employees
became organized , terminate the profit-sharing plan was
calculated to pressure the assembled employees into
abandoning the union movement. That it had such an
effect, in fact, is not an essential element of the General
Counsel's proof but the fact that it had such an effect, as
established by the ensuing conversation between and
action of employees Carlos and McMinn, is strong proof
of the veracity of the General Counsel 's witnesses as to
what Duren said and the effect such statements do have
on employees. Duren' s statements represented threats
violative of Section 8(a)(1) as charged in the complaint."
also, because, having his attention called to the company statement at the
employees ' meeting on January 25 that the plan was negotiable, he testified
that Duren made no reference to this statement in telling the employees
that the Company could if it wished (that is , of its own volition ) terminate
the plan.
"This denial does not contradict the employees ' testimony , which was
that he said the Company could, if it wished , terminate the plan.
"Duren testified that McMinn was present and had entered into the
discussion , but Carlos excluded McMinn from her list of those present. At
the close of the hearing , counsel stipulated that McMinn , if called, would
testify that she did not work that day and had never had a conversation
with Duren relative to the profit plan.
"Duren admitted that his wife had told him Miss. Carlos had called and
left a message that she and McMinn had changed their minds.
"On February 22, Respondent posted in the store a notice to the
employees stating that a "rumor has been circulating that the
Profit-Sharing Plan will be discontinued " if the employees obtained union
representation ; that this rumor was untrue; and adding that if a union
became their bargaining representative the plan would be a topic of
collective-bargaining discussions (Reap. Exh . 3). The posting of this notice,
after Duren 's various discussions of possible termination of the plan, has
no tendency to corroborate Duren 's testimony in regard to the various
GERBES SUPER MARKETS
About this same time, Duren and Phillippe drew Foley
and Owen into the meat cooler where they talked to these
teenagers at some length. In the course of the discussions,
according to a composite of the boys' testimony, Duren
said that the Company might have to close the store
because it could not afford to pay union wages, and
Phillippe said if the Union came in the two boys would be
laid off and their places taken by an apprentice meat
cutter because the Company could not afford to pay union
wages to part-time boys such as they. As previously noted,
Phillippe did not testify. Duren admitted talking to the
two boys in the cooler on one occasion and had a rather
hazy recollection of the subjects discussed but denied he
had ever told them the store would close if the Company
had to pay higher wage rates." Under all the
circumstances of the case, including some immediately
referred to below, it is clear that Duren and Phillippe were
intent on putting considerable pressure on these young
men and in observing the two boys on the stand I felt
each was endeavoring to tell the truth. I credit their
testimony and find that Duren and Phillippe made on this
occasion the statements respectively attributed to them in
the boys' testimony. Duren's statement regarding closing
the store and that of Phillippe concerning their layoff, if
employees became organized, were threats violative of
Section 8(a)(1) of the Act as charged in the complaint.
On what I conclude was a day or so later (that is,
about February 1),2' Phillippe went to the high school
where he had a talk with Schneider, the teacher-supervisor
over Foley and Owen as vocational trainees at the store
under the arrangement Schneider had made with Phillippe
and Duren the previous fall and under which Phillippe was
the boys trainee-supervisor. Present on this occasion at
Phillippe's request, but participating little in the
discussion, was a high school teacher named Braden who
had nothing to do with the boys' high school instruction
or their store training. On the basis of the testimony of
Braden,26 some of Schneider's testimony27 and that of the
boys (as to what Schneider told them Phillippe had said in
talking to Schneider and Braden), I set forth in the
following paragraph my findings as to what Phillippe said
on this occasion.
instances involving his discussion of the plan , if that was Respondent's
objective in offering the document , but rather tends to support the General
Counsel's evidence.
"Duren likewise denied having told the boys that they would be laid off
or their jobs abolished if the Company had to pay union wages , but these
remarks had been attributed to Phillippe , not to him.
"In this instance , as in the case of many other events dealt with in this
record , the evidence does not permit of a finding as to the exact date of its
occurrence , due primarily to the witnesses ' use of approximations or
guesses and to conflicts among these time estimates . By the same token,
and because little corresponding effort was made by counsel , it is not
possible to erect into clear chronological order various events having some
possible common factor.
"Braden testified as a witness for the General Counsel and by his
demeanor impressed me as an honest witness , so far as his recollection
extended.
"Schneider expressed an inability to recall having met with Phillippe on
this occasion but in other portions of his testimony referred to statements
by Phillippe which I conclude from all the evidence were made by Phillippe
on this occasion . By his demeanor , and by the nature of his testimony in
general , Schneider made a most unfavorable impression on me. He
repeatedly asserted a lack of recollection about meetings he undoubtedly
was deeply involved in (even as to matters about which he previously had
given some particulars ), frequently gave vague , unresponsive, or
roundabout explanations in response to simple questions, engaged in some
contradictions , and all- in-all, appeared intent on obscuring the record as to
what actually had happened on occasions when he was an important
participant . In short , in general I consider him an unreliable witness.
21
Phillippe said that he wanted to discuss the union
activity of the two boys and cautioned Schneider and
Braden not to repeat the conversation to the two boys. He
expressed dissatisfaction because the boys had gone union
and said, or said he thought, that the boys would be better
off without a union. He also said that he was certain he
would have to terminate one and might have to terminate
both of the boys if the Union got in, that is, if
Respondent should have to pay them the union wage
scale. He further said that it might be impossible to
continue the meat-judging class at the store if the Union
got in, referring to unionized stores which he asserted did
not permit such classes.
Immediately following the conclusion of this meeting
(which Owen had observed taking place from another
room), Schneider took Foley and Owen into the nearby
shop for a talk. Based on the testimony of the boys and
some admissions of Schneider," I make the following
findings concerning Schneider's remarks on this occasion.
He told the boys that Phillippe had complained because
they had gone union and thus had showed a lack of faith
in Phillippe. In similar vein, he told the boys that he was
disappointed in them because they had signed union cards
without first consulting him or Phillippe. He further stated
that if the Union got in Phillippe would probably drop the
school program and hence the boys would probably have
to return to school for the corresponding 2 hours, and that
Phillippe would or might cut out the meat-judging class,
because such programs were not allowed in union stores.
On the next day, Phillippe and Store Manager Duren
came to the school for a further talk with Schneider, at
which teacher Braden was also present, again more or less
as an observer. i9 Braden, Schneider, and Duren were
interrogated concerning what happened at this meeting.
From Braden's demeanor and the nature of his testimony
I believe that Braden endeavored to testify honestly
concerning what took place at this meeting so far as his
recollection went. From his testimony, and that of
Schneider and Duren, it is clear that the conversational
exchanges were mainly between Phillippe and Schneider.
Schneider set the agenda for discussion by referring to the
union activities of the two boys (their having signed union
cards) and inquiring of Phillippe and Duren what effect
their union activities might have on the boys and the
school programs being conducted at the store. With
reference to this central topic of conversation (it is not
possible from the testimony I have to depict either the
entire discussion or the order of statements made) in the
course of the meeting Phillippe said he did not know what
a union wage scale would be (i.e., if the Union got in) but
he was sure it would be such that he would have to let one
boy go and might be unable to retain either. With
reference to the meat judging class, Phillippe said the class
might not be able to continue meeting at the store,
pointing to a local unionized store where, he said, such
classes were not allowed to meet. As to the vocational
training program, Phillippe or Duren, or both, said that so
far as he (or they) then knew they would continue the
program. Further in the course of the meeting Phillippe
and Duren expressed the view that the two boys were
better off if the store remained as it was (meaning, I infer,
Nevertheless , he did make some admissions supporting the General
Counsel 's case and these I credit.
"Schneider expressed an inability to recall having talked to Foley and
Owen on this occasion but admitted making to them some statements
which I conclude from the other evidence he made on this occasion.
"This meeting was the result of Schneider 's telling Phillippe the previous
day that he wanted to talk both with Duren and Phillippe.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without a union ); in this connection, Phillippe referred to
the profit-sharing plan, the characteristics of which Duren
then explained further to Schneider.3°
A day or so later, Foley and Owen were called in to
meet with Schneider and Schneider's superior, the school
director of vocational education, Jay Willows. I credit
Foley's testimony that in the course of this meeting
Schneider criticized the boys for getting involved in the
Union without first consulting Schneider and further told
them that Phillippe had said he did not think he could
retain both boys if the Union got in because of an
asserted inability to pay them the union scale.
There is further testimony (primarily of Foley and
Willows) which, despite Willows' various assertions that
he was merely instructing the boys not to engage in
picketing or other union activities during the 2
school-credit hours, would warrant findings that he did
not so limit himself but, in fact, criticized the boys
broadly for having gotten involved in union activities, told
them (or Owen) not to attend more meetings without
letting him know first, and told them to remain neutral
and keep out of further union activity. But the record does
not warrant holding Respondent responsible for what
Willows may have said along these lines. I see no reason
to discredit Willows' testimony that he had never talked
to Phillippe or any other store official prior to talking to
the boys. Moreover, even if Schneider had told him that
prior to this meeting Schneider had been in touch with
Phillippe and Duren (which Willows first denied and then
had an uncertain recollection), there is no evidence
indicating that Schneider had portrayed to Willows what
had transpired in Schneider' s meetings with the store
officials." Nor is there evidence contradicting Willows'
testimony that his first knowledge of the boys' union
activities was imparted to him when Schneider called him
down to speak to the boys (whom he did not know). In
these circumstances, I consider the evidence insufficient to
warrant a finding that Willows was acting at the
instigation or behest of Respondent in making whatever
statements he did on this occasion.
I reach the opposite conclusion as to Schneider, who
repeated to the boys statements to the following effect
which Phillippe had made to him:
1. That they had incurred Phillippe's displeasure in
signing union cards; and
2. That their union activities, if successful (that is, if the
Union got in) might lead to loss of one or both of their
jobs, and to termination of the meat-judging class.
That Phillippe was intent on severing these boys from
any union attachments is blatently evident from the many
coercive pressures he rather continuously applied to them
before (see supra), and after (see infra), his meetings with
Schneider. And that this was his purpose in approaching
Schneider is evident, and must have been evident to
Schneider, from the expression of dissatisfaction with the
boys' union involvement and the predictions of dire
consequences likely to flow from that involvement which
he made to Schneider at both their meetings, i.e., that the
boys' employment (and thus their vocational training at
the store) and the continuation of the meat-judging class
of which they were members, were being put in jeopardy
by their union activities. By the same token, Phillippe was
placing strong pressure on Schneider to act in line with
"Philippe had made some such reference to the plan in his initial talk
with Schneider and Braden the day before.
"There was no interrogation of Schneider on this important question.
Phillippe' s wishes, for discontinuation of these programs
would have represented a serious blow to the school.
I am satisfied, and find, that Schneider understood that
this was why Phillippe had come to him and that it was in
response to this implicit appeal that Schneider said what
he did to the boys. For a few days earlier Foley had
broached the matter of union activity at the store to
Schneider and, in response, Schneider said he knew about
it (from Duren) and did not think it was anything Foley
should worry about. When Phillippe later approached
him, however, Schneider's attitude changed. He went
directly from his first meeting with Phillippe to talk to the
boys, and in his two talks with the boys repeated to them
statements Phillippe had made to him. In short, Schneider
did exactly what Phillippe obviously wanted him to do. To
conclude that when Schneider did thus sound the alarm he
did so on his own would require ignoring surrounding
circumstances which show all too clearly that his action
represented a consensual response on his part to
Phillippe 's importuning ." I conclude that, in making to
the boys the statements previously enumerated, Schneider
was knowingly and willingly acting at the behest and in
the interests of Respondent and hence was an agent of
Respondent, for whose conduct Respondent may be held
responsible. Since the statements made were plainly
coercive, by Schneider's conduct Respondent violated
Section 8(a)(1) of the Act.
Along in this same period, Owen (and, apparently, the
other meat department employees) received a
communication from Wolff enclosing a sample of a union
contract. Encountering Owen in the parking lot the next
day Phillippe asked Owen if he had yet received this
material . Since Owen did not want to admit having
received it, he engaged in various ruses in the ensuing
conversation. He first denied having received it yet but
added that he did not know whether it might have arrived
at his home in the day' s mail . Phillippe then offered to
give Owen time to go home to inquire but Owen begged
off doing so and offered instead to telephone his mother
which he did. He then told Phillippe the material had not
come. Some days later, he told Phillippe that his father
had said he did not have to give the material to Phillippe,
which ended the matter." Phillippe's inquiries of Owen
concerning union literature he may have received
constitutes unlawful interrogation concerning Owen's
union activities, plainly violative of Section 8(a)(1) of the
Act as the complaint charges.
In what must have been this same general time period
(early February, I infer), Phillippe told Foley that Mary
McMinn and Joy Carlos had changed their minds (see
supra), and were going to write the Meat Cutters Union
to get back the authorization cards they signed , and asked
Foley if he would like to do likewise. Foley said he would.
Phillippe then asked Foley if he knew what to write and,
when Foley said he did not, Phillippe wrote out the text of
a letter and provided Foley with a stamped envelope. With
only an insignificant change in the Phillippe draft, Foley
prepared the letter in duplicate (G. C. Exh. 7), sending
"I so find despite the fact that at both meetings the school officials were
asked not to "relate this conversation" or "mention anything about this"
to the boys (Braden 's testimony ). For these cautions appear to have meant,
not that the school officials should say nothing to the boys, but merely that
they should make no attributions to the store officials in whatever they
said to them . Viewed merely as attempts at concealment, such cautions do
not counteract the evidence predominantly indicating that Schneider did
what he did in response to implicit appeals made in behalf of Respondent.
"Since Philippe did not testify, I find the facts stated above on the basis
of Owen 's testimony.
GERBES SUPER MARKETS 23
one to Wolff at his Kansas City address and the other to
the International office of the Meat Cutters Union in
Chicago. 7°
Phillippe's importuning of Foley to withdraw, and
assistance to Foley in withdrawing his card authorization,
were acts of coercive conduct violative of Section 8(a)(1)
of the Act.
I also find that on three occasions, in February and
March, Phillippe interrogated Foley as to whether he had
been interviewed by a Board agent. Although Foley had
not yet talked to a Board agent when Phillippe first
interrogated him on this matter, over Foley's denial
Phillippe insisted that Foley had talked to a Board agent
the preceding night and said the agent's name was Carter.
36 On about March 10, Phillippe asked Foley if the Union
(apparently meaning the Meat Cutters), had contacted
him any more. In response, Foley said he had that day
received from the Union some union contract. Phillippe
asked to see the document, Foley agreed to this request,
and the two drove to Foley's home where he obtained the
document and gave it to Phillippe.16 Phillippe's inquiries of
Foley as to whether he had been interviewed by a Board
agent and concerning his contacts by the Meat Cutters
Union were coercive interrogation violative of Section
8(a)(1).
On February 12, the two unions held a joint meeting
for Respondent's employees at a local Holiday Inn, which
some 27 employees attended as did Union Representatives
Sacks and Wolff and Mr. Kimbrough, counsel for both
unions. Before the actual opening of the meeting, those
arriving foregathered in a lounge adjacent to the
downstairs meeting room, and among these was Meat
Department Manager Phillippe. At this juncture, Attorney
Kimbrough spoke to Phillippe, objecting to his presence
on the ground that he was a supervisor (that is, asserting
that Phillippe had the right to hire and fire). Following
this conversation, Phillippe went from the downstairs
lounge and meeting area to the first floor lobby (area near
the stairs to the lower meeting area) where he sat for
some appreciable portion of the time the meeting
consumed.
The complaint charges that Phillippe was engaged in
surveillance on this occasion, a charge which I find
sustained by the evidence. The record establishes that
Phillippe was an ardent opponent of unionization who
applied, particularly to meat department employees, a
stream of coercive acts to smother their desire for and
attempts toward self-organization. Attempts, largely
successful, to ferret out information concerning those
allying themselves with the organizational movement were
an important segment of his coercive conduct, as
evidenced by his interrogations of various employees. That
such a purpose motivated him in putting in an appearance
at the February 12 gathering is an inescapable inference
on the record as a whole, and, as one occupying
supervisory status, his conduct is chargeable to
Respondent. J7
The complaint further charges surveillance of the
"I find these facts on the basis of Foley's uncontradicted testimony.
"Carter, in fact , was the Board field examiner who later interviewed
Foley.
"Since Phillippe did not testify , I find the above facts on the
uncontradicted testimony of Foley.
"Mrs. Joy Duren, wife of Store Manager Duren, attended the actual
February 12 meeting and the complaint likewise charges that her presence
constituted surveillance on Respondent 's behalf. I deal with this charge
later.
February 12 meeting, and that of January 22, through
Mrs. Joy Duren, wife of Store Manager Duren, whom the
complaint alleges to be an agent of Respondent. Mrs.
Duren did not testify.
Mrs. Duren works at the store on occasions, that is,
during some pre-Christmas periods and otherwise on
random occasions when needed to replace sick or
vacationing employees. As to the January 22 meeting, the
General Counsel's evidence shows nothing more than her
presence throughout the meeting. As to the February 12
meeting, his evidence shows that just after the meeting
began Mr. Kimbrough made to Mrs. Duren a polite
suggestion that she leave because she was the store
manager's wife but also indicated that whether she stayed
or left was a matter for her choice." Mrs. Duren then
chose to stay and during her stay took some written notes.
She remained at the meeting until about 10 minutes prior
to its end when she announced that she was leaving and
went on to say that others who wished to remain could do
so because "no one will ever know," and that those who
wished to sign cards could do so because "no one,"
including herself, would ever know.
The remaining direct evidence is that of husband
Duren, who on direct examination testified that he told his
wife that a meeting was to be held (I infer from his
testimony that Duren was referring to the February 12
meeting), but did not ask her to attend it or report what
transpired, that he did not ask her to name and she did
not give him a list of those who attended; and that she
told him "very little" of what was said at the meeting
(merely that the meeting was not long and it looked lily'
there was not much interest); and that she told him sly
had left when it was indicated to her that her presence
would inhibit employees present from signing
authorization cards. On cross-examination, however,
Duren, while still attaching the "very little" label to the
discussions he and his wife had after the meetings,
admitted that his wife told him what was said, and, "in
general" who was present, at each of these meetings. In
short, rather than "very little," Duren's admissions show
that Mrs. Duren gave him extensive information
concerning who attended and what transpired at these two
meetings. Considering these admissions, and the marital
status of the two, I think it most likely, and find (contrary
to Duren's assertions) that Mrs. Duren attended these
meetings and reported to Duren what took place pursuant
to an understanding between the two that she would do
so. Because of the existence of such an understanding,
Mrs. Duren became Respondent's agent, since what she
was doing for her husband she was doing for Respondent's
representative.
This conclusion is supported, if need be, by Mrs.
Duren's conduct on another occasion when she put herself
in the service of Respondent's program of coercion in
response to the unionization movement. At a time not
fixed in the record but which I conclude must have been
in early or mid-February, Mr. Duren initiated a telephone
conversation with the wife of unionization leader Nolan
Tritschler, in whic:i Duren asked Mrs. Tritschler to talk
to Nolan "about the store and what would happen if the
union came in."" A few days later, Mrs. Duren called the
home of Mrs. Tritschler's parents (with whom the
"In apparent explanation to Mrs. Duren as to what he meant by
"choice," Mr. Kimbrough indicated that while the Union might be
agreeable to including her among represented employees he thought this
would not be acceptable to Respondent.
"Duren was attempting to reach Tritschler in placing this call and spoke
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tritschler's were living ) and spoke to each of Mrs
Tritschler's parents, Mr and Mrs Beiller Mrs Duren
opened the conversation by explaining that she felt she
should talk to Tritschler's parents-in-law since Tritschler's
own parents were abroad In the course of the
conversations, Mrs Duren, referring to Tritschler's union
activities said that Tritschler was causing much trouble at
the store and that they (apparently the Durens) stood to
lose a lot of money (via Respondent's profit-sharing plan)
if the Union got in, which, she said, Tritschler was trying
to achieve Mrs Beiller then turned Mrs Duren over to
Mr Beiller, to whom Mrs Duren spoke in similar terms
but more extensively Mrs Duren appealed to Beiller to
reason with Tritschler because his union activities (which
Mrs Duren said she felt were `wrong' ), were causing
disturbance and disruption at the store and if the store
went union this would jeopardize continuation of the
profit-sharing plan in which the Durens and other
employees participated
Mrs Duren's conversations with the Beillier's manifest
both her antiunion disposition and her taking
corresponding action running exactly parallel to that of
her husband, who was making extensive use of the threat
of termination of the profit-sharing plan in the various
interviews he was having with employees at the store
These circumstances throw light on Mrs Duren's
attendance at the two union meetings and tend to fortify
the conclusion that she attended by arrangement with her
husband and with knowledge that in doing so she was
lending herself to Respondent's service just as her
husband was 00
I also find Respondent in violation of Section 8(a)(1) of
the Act because it uses an employment application form,
question 14 of which calls upon applicants to name
among other types of organizations, the ' labor unions
to which you belong " That such a questionnaire violates
the Act is axiomatic 41
Finally, the complaint alleges that Respondent, through
Phillippe, caused the meat-fudging class not to be held on
to Mrs Tritschler in her husband s absence
"The complaint charges that Duren s conversation with Mrs Tritschler
violated the Act as an attempt to induce relatives to put pressure on
Tritschler to abandon his union activities I do not consider this charge
sustained because Duren s request that Mrs Tritschler speak to Trttschler
`about the store and what would happen if the Union came in is
altogether too vague and general to sustain the more specific charge that
Mrs Tritschler was being implored to get her husband to desist from his
union activities which Duren denied
The complaint contains no such charge referable to Mrs Duren s
conversations with the Beilliers nor did counsel for the General Counsel at
any time indicate that he was without attempting to amend the complaint
nevertheless litigating the issue as one of violation in Mrs Duren s case In
the circumstances , I do not deal with any such issue of violation but
consider the evidence of Mrs Duren s conversations for the purposes stated
in the text
411 granted the motion of counsel for the General Counsel to include this
charge in the complaint by amendment on the next to the last day of the
hearing Counsel for Respondent objected to the amendment unless the
hearing were postponed to allow Respondent an opportunity to determine
whether the application form had been in use during the statutory
limitations period ie within the period beginning 6 months prior to filing
the charge and at the close of the hearing the next day counsel for
Respondent moved for a continuance on the ground that further
investigative time was needed Since there were present at the hearing
officials of Respondent who must have known or merely by a quick trip to
Respondents nearby head office could have ascertained the simple
information Respondent's counsel thought necessary I now rule that a
continuance was not necessary and hence in effect that the amendment
was not prejudicial to Respondent and should stand
one evening, in violation of Section 8(aXI) There is no
evidence to support this charge, which I will recommend
be dismissed
C The Alleged Refusals To Bargain
I With the Retail Store Union
By a letter dated March 11, this Union claimed to
represent a majority of the store employees in a unit
excluding the meat department and the variety department
employees along with other customary exclusions,02 and
requested recognition as the bargaining representative for
such a unit On Respondent's behalf its attorney, Mr
Haynes, replied to the Union's letter on March 14,
asserting Respondent's good faith doubt that the Union
represented a majority of employees "in an appropriate
bargaining unit" and suggesting that the Union file an
election petition with the Board for resolution of the
majority claim, including the question of the appropriate
unit and the related question of employee eligibility in the
unit found appropriate With no further communications
between the parties, the complaint issued in this case
alleging that the partial store unit asserted by the Union is
an appropriate one and that Respondent refused to
bargain with the Union as the majority representative of
the employees in that unit At the hearing, the General
Counsel contended that there were 41 eligible employees
in the unit he asserts is appropriate and rested his
majority claim on 22 cards signed by employees he
considers eligible
Respondent resists the bargaining charge on various
grounds, i e , that only Respondent's chain of stores is,
and the partial store unit defined by the General Counsel
is not, an appropriate bargaining unit that a partial store
unit excluding the variety department employees is not an
appropriate one, that certain card -signing employees
whom the General Counsel classifies as eligible should be
determined, on supervisory grounds, to be ineligible, and
other nonsigning office employees whom the General
Counsel classifies as ineligible should be included in those
making up the unit in which event the Union would fail
of a majority " and that Respondent had a good-faith
doubt of the Union's majority in the claimed unit 41 Over
and above all of the foregoing defenses, Respondent
asserts that, in any case, the Union's representative claim
is vitiated in its entirety because of certain representations
made to employees by employee Tritschler and others in
the course of the card-signing campaign
I deal first with the latter contention In this regard,
Tritschler testified that in handing out Retail Store Union
cards to employees for signature, he told employee Philip
Smith and "approximately a half-dozen or more" other
"That is office clerical employees and guards and supervisors as
defined in the Act
"At the hearing Respondent sought but faded to establish that certain
cards should be disregarded because signed as a result of
misrepresentations concerning the purpose of the card or because not
sufficiently authenticated
"In this connection Respondent relies on a document signed by some 34
employees including many who had previously signed cards disclaiming
any desire to be represented by the Retail Store Union which Respondent
(Attorney Haynes ) received more or less simultaneously with the Union s
representation claim The General Counsel does not contend that there was
anything illegal in the circumstances immediately surrounding the
circulation of this document but does contend that these purported
defections should be disregarded as the product of Respondent s
intervening unfair labor practices
GERBES SUPER MARKETS
employees that they would have to join the Union if it got
in (that is , if it attained majority status ); that in that case
everybody would have to join because there would be a
"closed shop ." He further testified that "approximately"
what he told the employees he spoke to was "to sign the
card now because , after the Union came in, they would
have to become a member ." He further testified that he
was present when some other solicitor made such
statements to employees other than the ones to whom he
had made them ." He further testified that Smith signed
his card about a week after he had made these statements
to Smith . 16 As to the others to whom Tritschler made such
statements , he testified that "several" did not sign, thus
indicating , as I find, that several did sign after Tritschler
made these statements to them . Thus , looking only at
those to whom Tritschler spoke, the record requires a
finding that these statements were made to at least three
of the card signers (Smith and at least two others). On
these facts alone the Union ' s majority was destroyed if the
statements were coercive misrepresentations since the
Union's card designations would be reduced to 19 out of a
unit total of 41. But these same statements were made to
an indefinite number of other employees by some solicitor
or solicitors other than Tritschler . Thus the statements
were directly made to such a considerable number of
employees that they serve to taint the Union ' s entire
vote-soliciting procedure and majority claim , if they were
of a vote-vitiating character."
I hold that the statements described by Tritschler were
coercive misrepresentations . They were misrepresentations
because a union 's attainment of representative status does
not create a "closed shop" (unlawful under the Act) or
otherwise impose upon employees an obligation to join, as
was plainly portrayed to the employees by these
statements . They were coercive because their plain
implication was that those who declined to join once the
Union "came in" would lose their jobs. For any
obligation implies some concomitant penalty or prejudice
for noncompliance , and the customary penalty for failure
to comply with a "closed shop" or other requirement to
join a union is loss of employment . In short, the
employees must have understood from these statements
that their jobs would be in jeopardy if, once the Union
"came in ," they then declined to join it . It is true, of
course , that the threat was conditional upon the Union's
attaining majority status, but the signing employees
affected may well have decided that their interests would
be better served by signing up with the Union earlier
rather than later, lest there be some other penalty for late,
or some advantage for early , adherence. Construing the
situation as involving implicitly a threat of job loss, the
Union ' s majority claim must be considered wholly tainted
68 and, therefore , the charge of refusal to bargain with the
Retail Store Union should be dismissed ." With this basis
dispositive of the matter, I do not pass upon Respondent's
other defenses to this bargaining charge.
"Tritschler was not called upon to identify what other person or persons
made these same statements but it is clear that it was someone soliciting
signatures on behalf of the Retail Store Union.
"The record shows that Smith signed his card on February 15. G. C.
Exh. 2-s.
"See N.L.R.B. v. James Thompson d Co.. 208 F.2d 743, 748 (C.A. 2);
Puerto Rico Food Products Corp., Ill NLRB 293, 295.
"See The James Thompson d Co., and Puerto Rico Food Products
Corp.. cases , supra, Fn. 46.
"The General Counsel concedes that the statements shown on the record
were made but , obviously looking only at their bare words , asserts, on the
one hand , that they contain no threat of job loss, and , somewhat
2. With the Meat Cutters Union
25
At the times in question there were six nonsupervisory
employees" in the meat department , and, as has been
seen, five of these six (those other than Paxson ) signed
Meat Cutters cards on the evening of January 29, when
the matter was first presented to them. By letter dated
January 30 , this Union sent copies of the signed cards to
Respondent, asserted its majority representation status,
and asked Respondent to communicate its stands" On
February 8 Respondent, replying through Attorney
Haynes, wrote the Union asserting its preference for a
Board election in line with the Union ' s petition, its
good-faith doubt of the Union's majority , and reservations
relative to unit , and voter eligibility questions . On that
same day, the Union filed its charges with the Board.
The evidence establishes that these cards are valid
designations of this Union . 32 Hence , the essential questions
presented are (1) whether the meat department employees
constitute a unit appropriate for collective bargaining, and
(2) whether or not Respondent 's rejection of the Union's
demand for recognition was, in fact , based on a good-faith
doubt of the Union ' s majority.
contradictorily on the other , asserts that employees disinclined to join the
Union would refuse to sign , in an attempt to prevent the Union from
attaining a majority and thus in the hope of avoiding being "forced" into
becoming a member . For the reasons previously indicated I hold that the
statements embodied a threat of job loss . As to counsel ' s alternative
argument, it tacitly recognizes , in referring to threatened "forced"
membership , that job loss or some such prejudice was embodied in the
statements.
Moreover , even if a threat of "forced" membership could somehow be
denuded of any threat of job loss or similar prejudice , the statements were
incorrect and coercive because under the Act employees are not obliged
and cannot be required to join a union merely because it attains majority
status. Indeed , they cannot be required to do so under valid union shop
agreements , but can only be required to pay ordinary initiation fees and
dues. With the Act expressing and protecting the right of employees to
refrain from joining a union , contrary assertions could well induce
employees, not versed in the Act 's niceties in this regard, to abandon
contrary inclinations and sign up . And finally , if the authors of these
statements were merely attempting to describe the Act 's provisions in this
regard , they should have done but did not do so . On the contrary,
Tritschler's testimony indicates that he understood a union majority would
automatically produce an obligation to join , and this is, in fact, what was
told to the employees.
"Nelson, Paxson , Carlos, McMinn , Foley, and Owen . The seventh,
Department Manager Phillippe, was a supervisor within the meaning of the
Act. Respondent has contended that Nelson is likewise a supervisor but the
evidence does not sustain this contention . Nelson, who called himself
assistant manager or "second man" in the department, in fact spends
practically all his time in the performance of such physical tasks as
unloading, carrying, cutting, packaging and otherwise handling meat
products , cleanup operations, etc., as do the other nonsupervisory
employees. On occasion , and apparently in Phillippe 's absence, he "prices"
meat according to "the mark-up table" and gives work assignments to
other employees, but the evidence shows that these responsibilities are
routine in character not involving the exercise of independent judgment.
There is no suggestion that he is endowed with any of the other supervisory
authorities enumerated in Sec. 2(11) of the Act.
In his opening statement , counsel for Respondent referred to Owen as a
"student" employee . But the evidence shows that both Owen and Foley
work many more than their 2 hours per day of student status and
otherwise are indistinguishable from Respondent's other regular part time
employees . Hence, they are properly included in the unit.
"The letter also stated that the Union was filing for an election unless
Respondent were agreeable to a "card check ." Apparently the petition was
filed but was later abandoned when the Union filed its unfair labor
practice charges.
"In his brief, counsel for Respondent asserts that these cards should be
disregarded on the ground that the signers were among the employees who
were told they would have to join if the Union got in. But a careful
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the meat department constitutes a unit
appropriate for collective bargaining is clear. Here, as in
other cases determining meat department employees to
constitute appropriate units separate from other store
departments, there are marked differences between the
duties and skills of the meat department employees from
those of other store employees, there is a long history of
bargaining on the basis of such units in the retail food
industry, there is no evidence of interchange or transfer of
personnel between the meat and the other departments of
the Columbia store, the meat department employees work
in a self-contained area distinct from the other
departments, the employees concerned plainly desire a
separate unit, there is no claim of any competing union to
a larger unit including the meat department, and, as I
read the record, Meat Department Manager Phillippe
runs the meat department with almost plenary authority,
that is, only in limited consultation with Store Manager
Duren. Under applicable decision, these factors establish
the appropriateness of the meat department unit."
Respondent's second main defense, that it entertained a
good-faith doubt of the Meat Cutters' majority and
declined recognition on this ground, has a hollow ring, for
the record shows that from the very moment it learned of
the Meat Cutters' entry into the picture, Respondent set
about, first, to prevent that Union from receiving
bargaining authorizations and, once those authorizations
were given, to nullifying them. This is the obvious
explanation for Phillippe's telling Foley not to sign a card
at the first meeting, for his inquiries as to who had signed
cards, for the many pressures exerted on Foley and Owen
thereafter and resulting eventually in Foley's attempts to
regain his card, and for the corresponding coercive
statements made to Nelson and Carlos, resulting in the
purported defection of Carlos and McMinn. Plainly, by
manifold coercive activities along these lines , Respondent,
aware that various of these employees had signed up with
the Meat Cutters, set out to undermine the employees'
attachment to that Union and to prevent a fair election
initially sought by that Union. In these circumstances,
under principles uniformly followed by the Board and the
appellate courts, Respondent cannot be heard to assert
that it entertained a good -faith doubt of the Meat Cutters
majority. On the contrary, the facts previously found
demonstrate that insofar as Respondent rejected the Meat
Cutters recognition demand in purported reliance on a
doubt as to majority, it acted in bad faith. Accordingly, I
find and conclude that Respondent's denial of recognition
violated Section 8(a)(5) and (1) of the Act.
scrutiny of Tritschler 's testimony shows that he was being interrogated
specifically about what was said to employees solicited to sign cards of the
Retail Store Union (see is ., pp. 314-317). The circumstances under which
the meat department employees signed their cards on the evening of
January 29 were explored by counsel without producing any indication that
any such statements were then made by Union Representative Wolff,
Tritschler (who was present ) or anyone else.
"Respondent refers to elements of centralized administration of all its
stores in asserting that only its entire chain constitutes an appropriate
bargaining unit. The short answer is that while these centralization factors
are entitled to and have received my consideration , and lend some support
to a claim that the entire chain is an appropriate unit, they do not
outweigh or cancel out the other circumstances of this case establishing
that the meat department is an appropriate unit also . That is all that is
necessary to decide.
D. The Charges of Discrimination
1. The change in Tritschler's day off
Tritschler testified that at an approximate time which,
according to his description must have been in the latter
half of February, and when Tritschler was working as a
"checker," Duren came up, slammed his fist on the
conveyor, and told Tritschler his day off was being
changed from Saturday to Wednesday; and that, after
starting to walk off, Duren returned and told him the
reason for the change was that he needed another checker
because two girls were leaving (Respondent's employment,
I infer). The complaint charges that Respondent (Duren)
thus shifted Tritschler to a less desirable day off in
retaliation against him because of his union activities. On
the record before me I conclude that this charge should be
sustained.
Various aspects of Tritschler's testimony previously
described indicate that Duren held Tritschler in rather
high regard prior to his initiation of the union movement,
but that thereafter Duren's attitude toward Tritschler
changed to one of hostility. Indeed, about a week prior to
this incident Duren had specifically referred to the favor
he had done Tritschler in allowing him Saturdays off,
while uttering a veiled threat to retaliate against him for
having let Duren down. Duren's slamming his fist down
on the conveyor when announcing the change to Tritschler
certainly was indicative of his anger toward Tritschler.
The General Counsel's evidence thus warrants an
inference that Duren's previously declared intention to
retaliate became operative on this occasion, and
Respondent was obliged to come forward with evidence
explaining the change on nondiscriminatory grounds if
that were the case. This it did not do since Duren made
no reference to this incident in his testimony.6°
Accordingly, I find that Respondent was motivated by a
discriminatory purpose in making this unfavorable change,
in violation of Sections 8(a)(3) and (1) of the Act.63
2. The discharge of Tritschler
William G. Haynes, Respondent's attorney, interviewed
at the store various of Respondent's meat department and
nonmeat department employees following the service on
Respondent of the respective charges filed by the Unions.36
There is no charge that these interviews were conducted in
a manner violative of the Act.
Haynes interviewed Tritschler on March 21, in the back
room of the variety department. Present during the
significant portions of this interview was Harold D. Ryan,
personnel manager of the parent Dillon Company. At the
outset of the interview, Haynes informed Tritschler of the
investigative purpose of the interview and asked for
Tritschler's cooperation, but informed Tritschler of his
right not to be interviewed if he so chose. Haynes then
handed Tritschler a handwritten sheet67 expressing these
and other points, which Tritschler signed, as had other
employees previously interviewed by Haynes. As Haynes
'ffritschler 's testimony that Duren told him the change was necessary
because two girls were leaving is not the equivalent of testimony by Duren
demonstrating a need to make the change for such reasons.
"Tritschler admitted on cross-examination that he had worked on some
previous Saturday because of a personnel shortage but Respondent's
asking Tritschler merely to fill in on one day is not the equivalent of
permanently changing his day off.
"See Resp . Exh. 2 and 6.
"See Reap . Exh. 2.
GERBES SUPER MARKETS
began questioning Tritschler about the Retail Union's
charge of March 1268 (which alleged, inter alia, that
Respondent had discriminated against Tritschler in
changing his day off and in revoking a previously
approved leave of absence) Tritschler told Haynes that he
wanted a copy of what he told Haynes during the
interview. Haynes replied that he did not yet know
whether he would take any statement from Tritschler, and
when Tritschler repeated his demand, Haynes told
Tritschler he would give Tritschler a copy of anything he
put in a statement for Tritschler's signature. The interview
then proceeded, and when Haynes engaged in some
writing following Tritschler's answers to the initial
questions, Tritschler demanded that Haynes make a copy
for him. Haynes replied that he would mail a copy to
Tritschler. Tritschler insisted on receiving a copy "then"
(presumably as the interview proceeded), and Haynes then
handed Tritschler a tablet and proposed that Tritschler
make a copy as they went along . Tritschler declined,
telling Haynes to write the statement; the interview then
proceeded with Haynes engaging in further writing. At the
end of the interview Haynes handed to Tritschler a
five-page statement (Resp. Exh. 4) which Haynes had
written up and which Haynes asked Tritschler to read and
to sign if he was satisfied that it correctly reflected what
he had said in response to Haynes' questions. Tritschler
read about half of the proposed statement and then asked
Haynes for a copy. Haynes replied that he would send
Tritschler a copy in the mail. Tritschler rejected this
proffer, insisting either that he then be given a copy or
that Haynes give him a signed statement to the effect that
he would receive a copy by mail. Tritschler still had the
proposed statement in his hands at this juncture and
asserted that he would retain the document unless one of
these conditions was met. Haynes replied that Tritschler
would have to take his word that Tritschler would receive
a copy by mail and told or asked Tritschler to leave the
document there unsigned if he did not wish to sign it. In
response Tritschler said he would keep the document. An
undoubtedly acrimonious argument then developed
between Tritschler and Haynes as to whether Respondent
or Tritschler was entitled to possession of the document
following which Haynes walked over to Tritschler, who
had then started to leave the room with the document,
and said he was not going to let Tritschler leave the room
with it. Tritschler asked who was going to stop him
whereupon Haynes said he was and grabbed Tritschler's
left wrist. (Tritschler, taller than Haynes, was then holding
the statement in his right hand held above his head.)
Tritschler then told Haynes that an employee outside the
room was observing what was going on. Haynes then let
go of Tritschler's wrist and as Tritschler proceeded out the
room, Haynes told him that if he went out the door he
might as well keep going right out of the store because he
was "through." Tritschler then left the room with the
document in his possession and went back to work.
Shortly thereafter, Haynes and Ryan approached
Tritschler, who refused successive requests of Haynes and
Ryan that he return the document to them, unless he was
either given at that time a copy or signed statement that
he would receive one in the mail. On these occasions
Haynes told Tritschler that if he would hand over the
statement the whole incident would be forgotten but that
if he refused he was engaging in insubordination which
Haynes would have to report to Imhoff and Hayes.S9
"G. C. Exh. I-E.
27
Ryan then arranged for Imhoff and Hayes to come
immediately to Columbia and upon their arrival a
conference took place among them and Haynes, Ryan,
and Store Manager Duren, at which Ryan recounted what
had taken place during Haynes' interview session with
Tritschler. Tritschler then was called in to meet with this
group (but with Haynes absent). Ryan then recounted
again what had happened in the interview session, an
account which, with some addition made by Tritschler,
Tritschler confirmed was correct. In the further course of
this meeting, Personnel Manager Hayes told Tritschler
this was a serious incident - an act of insubordination -
for which Tritschler could or would be terminated unless
he gave the statement back. For his part, Tritschler again
said that he was not going to help build a case against the
Union and that he could not return the document even if
he wished to because, as was the fact, he had given the
document to Union Representative Sacks during the
preceding lunch hour.60 Hayes again emphasized to
Tritschler the seriousness of the incident and the
Company's unwillingness to tolerate this type of action by
any employee; Tritschler inquired whether he was
discharged; and Hayes told Tritschler to return to his
work and he would let Tritschler know. There then took
place a further conference between Imhoff, Haynes, Ryan,
Hayes, and Duren, following which (but with Haynes
absent) Tritschler was again called in, On this occasion
Hayes again gave Tritschler an opportunity to change his
mind - to return the document - and when Tritschler
declined Hayes notified Tritschler that he was terminated.
While the complaint broadly charges that Respondent
discharged Tritschler because of his "union and/or
protected and concerted activities," in his brief counsel for
the General Counsel makes no contention that
Respondent discharged Tritschler because of his
instigation of and leading role in the Union's
organizational campaigns . Rather, counsel for the General
Counsel concedes in his brief that Respondent discharged
Tritschler because of his refusal "to surrender the
statement" and, asserting that Tritschler was privileged
under the Act to retain the document, contends that on
this basis the discharge violated the Act. Counsel's theory
is that since, as is well established under Board decision,
an employee's participation in an employer's pretrial
investigative interrogation must be voluntary," Tritschler
could impose upon his cooperation any conditions he saw
fit and thus could, even after the interview was concluded,
retain possession of the statement counsel for Respondent
had prepared unless the demands he had previously made
- that he be immediately given a copy of the proposed
statement or written assurances that he would receive a
copy - were met." In short, the General Counsel asserts
that compliance with such a demand is required by the
Act as an incident of the employer's duty to procure the
employee's cooperation with employer-conducted
investigative interviews only on a voluntary basis.
"In this conversation , when Haynes remonstrated with Tritschler for his
lack of cooperation , Tritschler replied that he was not going to "build any
case for you guys."
"In the ensuing discussion , Hayes asserted that Tritschler's giving the
document to Sacks was the same as theft, i.e., that the document was
company property because written on company paper , or company time,
by a company attorney , with a company pen.
"See Johnnie 's Poultry Co., 146 NLRB 771, 775.
"In his brief, counsel for the General Counsel also asserts that at some
point in the interview Attorney Haynes had agreed to Tritschler 's demand
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of course, in accord with this principle, Tritschler could
have withdrawn from the interview at any time prior to its
completion. And I will assume, without deciding the issue
since it is not presented, that Tritschler could have refused
to sign the proposed statement (if, having fully read it,
which in this case he did not do, he considered it correct)
unless he were forthwith given a copy or written
assurances that he would receive a copy of the statement
as signed. But this is not what happened. What did occur
is that after the interview was concluded and after Haynes
had rejected Tritschler's conditions, Haynes first and later
Ryan and Hayes requested Tritschler to return the
document unsigned, which Tritschler refused to do unless
his conditions were met. With Respondent then not
insisting that Tritschler sign the document his conditions
had become academic; his only choice in these
circumstances was to return the document, which
represented merely the work product of Respondent's
attorney - his record of the interview - to which
Respondent was certainly entitled and which it must be
presumed was of value to Respondent. Tritschler's refusal
to return or to attempt to facilitate the return of the
document was unjustifiable conduct which Respondent
could fairly characterize under the "unsubordination"
heading, and for which Respondent could and, as I find,
did discharge Tritschler. Accordingly, I will recommend
that this allegation of the complaint be dismissed.
THE REMEDY
Having found Respondent in violation of the Act in
numerous particulars as charged in the complaint, various
of which represent serious infringements upon the rights of
its employees under the Act and manifest a propensity in
that direction, the injunctive portions of the order I
recommend, as set forth below, contain a broad cease and
desist provision coterminous with Section 7 of the Act. As
affirmative relief which I find necessary to remedy
Respondent's violations, my proposed order requires
Respondent, upon request, to bargain with the Meat
Cutters Union as the representative of the meat
department employees. Such a requirement is required by
Respondent's violation of Section 8(a)(5). But in the
circumstances of this case, I also consider such an order
necessary to remedy Respondent's other serious
infringements of the Act, aimed as they were at
undermining and obstructing the employees' desire for
collective-bargaining representation. Hence, the bargaining
order should issue even if no violation of Section 8(a)(5)
were found. The order likewise requires the posting of
notices and similar customary provisions necessary to
effectuate the policies of the Act.
Upon the foregoing findings and conclusions, and upon
the entire record, I recommend pursuant to Section 10(c)
of the Act that the Board issue the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed to them
in Section 7 of the Act, all as more particularly found
above, Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
2. By changing employee Tritschler's day off from
Saturday to Wednesday, as more particularly found
above, Respondent engaged in unfair labor practices in
violation of Section 8(a)(3) and 8(a)(1) of the Act.
3. All full time and regular part time meat department
employees employed at Respondent's store in Columbia,
Missouri, excluding all other employees, office clerical
employees, and supervisors within the meaning of the Act
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times since January 29, 1968, the Meat
Cutters Union has been the exclusive representative of all
employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about February 8, 1968, to
recognize the Meat Cutters Union as the exclusive
bargaining representative of Respondent's employees in
the aforesaid unit Respondent engaged in unfair labor
practices in violation of Section 8(a)(5) and 8(a)(1) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Except as found in the preceeding portions of this
Decision, Respondent has not engaged in unfair labor
practices charged in the complaint.
early in the interview that he be given a copy of the statement "then." But
there is no evidence that Haynes concurred in this demand ; indeed, the
evidence is to the contrary.
ORDER
Respondent, Gerbes Super Markets, Inc., its officers,
agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Discouraging membership in Local 655, Retail
Store Employees Union, AFL-CIO, or any other labor
organization by discrimination in regard to hire or tenure
of employment or any term or condition of employment.
(b) Coercively interrogating employees relative to their
knowledge of or their attendance at (or their plans
concerning attendance at) union meetings, or relative to
occurrences at union meetings, or relative to their receipt
or possession of union literature, or otherwise relative to
the union affiliation, activities, or sympathies of any of its
employees.
(c) Coercively interrogating employees relative to
whether employees of Respondent have been in contact
with or have been interviewed by agents of the National
Labor Relations Board.
(d) Requesting employees to attend union meetings for
the purpose of supplying Respondent with corresponding
information.
(e) Engaging in surveillance of the union meetings or
union activities of its employees, or creating the
impression among employees that it has their union
activities under surveillance.
(f) Promising or holding out to its employees the
prospect of granting them wage increases or other benefits
for the purpose of encouraging them not to designate a
union as their bargaining representative.
(g) Threatening its employees with discontinuance of
Respondent's profit-sharing plan, or with loss of
employment, or with discontinuance of the meat-judging
class, or with closing the store, or with any other reprisal
if they designate a union as their bargaining
representative.
(h) Telling employees not to sign union cards.
GERBES SUPER MARKETS
(i) Utilizing an employment application form which
questions applicants for employment concerning their
membership in labor unions.
(j) Soliciting employees to withdraw their union
representation authorization cards or rendering
corresponding assistance to employees so solicited.
(k) Refusing to recognize Local 576, Amalgamated
Meat Cutters and Butcher Workmen of America,
AFL-CIO, as the exclusive representative of all its
employees in the unit described in paragraph 3 of the
above "Conclusions of Law" for the purposes of collective
bargaining.
(1) In any other manner interfering with, restraining or
coercing employees in the exercise of the right to
self-organization, to form labor organizations, to join or
assist the above-named labor organizations or any other
labor organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
National Labor Relations Act as modified by the
Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Local 576, Amalgamated Meat Cutters and Butcher
Workmen of America, AFL-CIO, as the exclusive
representative of all its employees in the unit described in
paragraph 3 of the above "Conclusions of Law" with
respect to wages, rates of pay, hours of employment and
other terms and conditions of employment, and embody in
a signed contract any agreement reached.
(b) Post at its store in Columbia, Missouri, a copy of
the attached notice marked "Appendix."6' Copies of said
notice, to be furnished by the Regional Director for
Region 17, after being signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous 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.
(c) Notify said Regional Director, in writing, within 20
days after receipt of this Decision, what steps have been
taken to comply herewith.61
IT IS HEREBY FURTHER ORDERED that the complaint
herein be and it hereby is dismissed in respect to
violations charged but not specifically found herein,
including, without limitation, the charge that Respondent
discriminatorily discharged Nolan Tritschler.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
29
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in Local 655,
Retail Store Employees Union, AFL-CIO, or any other
labor organization by discrimination in regard to hire
or tenure of employment or any term or condition of
employment.
WE WILL NOT coercively interrogate employees
relative to their knowledge of or their attendance at (or
their plans concerning attendance at) union meetings, or
relative to occurrences at union meetings, or relative to
their receipt or possession of union literature; or
otherwise relative to the union affiliation, activities, or
sympathies of any of our employees.
WE WILL NOT coercively interrogate our employees
relative to whether agents of the National Labor
Relations Board have been in contact with or have
interviewed any of our employees relative to charges
filed against us under the National Labor Relations
Act.
WE WILL NOT request employees to attend union
meetings for the purpose of informing us concerning
what takes place at such meetings.
WE WILL NOT engage in surveillance of the union
meetings or activities of our employees, and WE WILL
NOT create among or give to our employees the
impression that we have their union activities under
surveillance.
WE WILL NOT promise or hold out to our employees
the prospect of granting them wage increases or other
employment benefits for the purpose of encouraging
them not to designate a union as their bargaining
representative.
WE WILL NOT threaten our employees with
discontinuance of our profit-sharing plan, or with loss
of employment, or with closing our Columbia store, or
with discontinuance of the meat judging class, or with
any other reprisal, if they designate a union as their
bargaining representative.
WE WILL NOT tell employees not to sign union cards.
WE WILL NOT use an employment application form
which questions applicants for employment concerning
their membership in labor unions.
WE WILL NOT solicit any of our employees to
withdraw their union representation authorization
cards.
WE WILL NOT in any other manner interfere with,
restrain, or coerce any of our employees in the exercise
of their rights to join or assist Local 576, Amalgamated
Meat Cutters and Butcher Workmen of America,
AFL-CIO, or Local 655, Retail Store Employees
Union, AFL-CIO, or any other labor organization, or
to designate any such labor organization as their
collective bargaining representative.
WE WILL, on request, recognize and bargain with
Local 576, Amalgamated Meat Cutters and Butcher
Workmen of America, AFL-CIO, as the exclusive
bargaining representative of all our employees in the
following described appropriate bargaining unit:
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All fulltime and regular parttime meat department
employees employed at our Columbia, Missouri,
store , excluding all other employees, office clerical
employees , and supervisors within the meaning of the
National Labor Relations Act.
Dated By
GERBES SUPER MARKETS,
INC.
(Employer)
All our employees are free to become , remain, or
refrain from becoming or remaining , members of any
labor organization , except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the National Labor
Relations Act, as amended.
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri
64106, Telephone 816-374-5282.