Grandee Beer Distributors, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1980

247 N.L.R.B. 1280 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grandee Beer Distributors, Inc. and Local 1115,
Joint Board-Employees Division. Case 29-CA-
6438
February 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On May 24, 1979, Administrative Law Judge
Michael O. Miller issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Charging
Party filed exceptions and a supporting memorandum.
The Board, on September 28, 1979, issued a Decision
and Order' affirming the Administrative Law Judge's
findings that Respondent had engaged in unfair labor
practices in violation of Section 8(a)(3) and (I) of the
Act, but modifying his recommended Order to include
an affirmative bargaining order.
On November 23, 1979, Respondent filed a motion
for reconsideration of the Board's Decision and Order,
alleging that cross-exceptions and an answering brief
attached to its motion had previously been timely
mailed to the Board and duly served upon and
received by the parties. It is undisputed, however, that
through no fault of Respondent the cross-exceptions
and answering brief were never received by the Board
in Washington, D.C., prior to issuance of its Decision
and Order. In order to afford the Board an opportuni-
ty to consider the cross-exceptions and answering brief
under these unusual circumstances, the Board's Deci-
sion and Order of September 28, 1979, was rescinded
pursuant to an unpublished Order issued on Novem-
ber 18, 1979.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has now considered the record and the
attached Decision in light of the aforementioned
' 245 NLRB No. 99 (rescinded by order dated November 18, 1979).
The General Counsel and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
' The Administrative Law Judge did not make any conclusive findings on
the merits of a charge that Respondent violated Sec. 8(a)( I) of the Act by
threatening to discontinue its employee lending policy. Based on our review of
the record, we find that the General Counsel has failed to establish the making
of such a threat. Accordingly, we conclude that Respondent did not violate
the Act in the manner alleged.
Based on our own careful analysis of this case. we have determined that
247 NLRB No. 163
motion, the exceptions, cross-exceptions, briefs, and
memorandum, and has decided to affirm the rulings,
findings,2 and conclusions' of the Administrative Law
Judge, to the extent consistent herewith, and to adopt
his recommended Order, as modified herein.4
The Administrative Law Judge has concluded that
the facts in this case do not warrant the issuance of a
bargaining order in spite of Respondent's commission
of unfair labor practices subsequent to the Union's
achievement of majority status in an appropriate
bargaining unit of Respondent's employees. We
disagree. We find, for reasons stated below, both that
Respondent has committed serious unfair labor prac-
tices which clearly have had "the tendency to under-
mine majority strength and impede the election
processes" and that "the possibility of erasing the
effects of past practices of an ensuring a fair election
. . . by the use of traditional remedies, though
present, is slight."' Under these circumstances, we
conclude that a bargaining order would best protect
employee sentiment already expressed through autho-
rization cards.
The Administrative Law Judge has implicitly
found, and we expressly state in agreement, that a unit
consisting of all truckdrivers, warehousemen, and
cashiers at Respondent's Lexington Avenue wholesale
and retail beer and soda store in New York City
would be appropriate for collective bargaining. By
May 19, 1978, the Union had obtained authorization
cards for six of eight employees then in the unit
described. Although the Union had clearly established
its majority status in an appropriate unit on May 19,
its representative met on that date with Aaron
Rosenberg, comanager of Respondent's Lexington
Avenue store, and demanded recognition in an inap-
propriate unit of different scope and composition.
After hearing and rejecting the Union's demand,
Rosenberg confronted the six drive-warehousemen in
his store. During the course of the ensuing discussion,
he violated Section 8(a)(1) of the Act by coercively
interrogating the employees about their union sympa-
thies, by promising them benefits, including a wage
increase, in an effort to discourage their support for
Respondent, by the number and extent of its unfair labor practices, has
engaged in such egregious and widespread misconduct as to demonstrate a
general disregard for its employees' fundamental statutory rights. We
therefore find appropriate modification of the recommended Order to include
broad injunctive language against the further commission of any unfair labor
practices by Respondent. See Hickmot Foods, Inc.. 242 NLRB 1357 (1979).
' We agree with the Administrative Law Judge's finding that Respondent
has not violated Sec. 8(a)(5) of the Act because the Union has never made a
proper demand for bargaining in an appropriate bargaining unit. It is well
established, however, that a demand is not a necessary predicate to the
granting of a bargaining order as a remedy for an employer's serious unfair
labor practices in violation of provisions of Sec. 8(a) other than Sec. 8(a)(5)
See, e.g., Beasley Energy, Inc., d/b/a Peaker Run Coal Company. Ohio
Division #1., 228 NLRB 93 (1977).
' N.L.R.B. v. Gissel Packing Co.. Inc.. 395 U.S. 575. 614 (1969).
1280
GRANDEE BEER DISTRIBUTORS. INC.
the Union, and by threatening them with discharge or
changes in their jobs.
The foregoing violations alone were undeniably
serious in nature and tended to dissipate the Union's
majority status. They occurred shortly after the
establishment of that status and involved a series of
unlawful statements made by a high-level official of
Respondent directly to all but two employees in the
small unit. Moreover, these unfair labor practices
must be viewed in conjunction with a prior violation
of Section 8(a)(3) on May 10, 1978, when Respondent
changed an employee's work assignments because of
his union activities, and with a subsequent violation of
Section 8(a)(1) in early July 1978, when Respondent
implemented a wage increase in a further attempt to
dissuade employees from supporting the Union.
We cannot believe that Respondent's conduct af-
fords a reasonable expectancy of erasing its impact
and insuring a fair election through the use of
traditional remedies. The Board has held that threats
directly related to the employment status "are not
easily erased from the minds of employees."' In the
case at hand, Respondent's comanager, Rosenberg,
threatened to discharge all six driver-warehousemen in
the appropriate unit immediately after ascertaining
their support for the Union. The Board has also held
that the commission of such serious unfair labor
practices in a unit of a size as small as the unit
involved herein makes a fair election doubtful, if not
impossible.' Finally, the Board has repeatedly ex-
pressed concern about the difficulty of eradicating the
lingering effects of unlawful promises and grants of
wage increases on union organizational campaigns.'
We must reiterate that concern with respect to the
promise and subsequent grant of a wage increase for
unit employees during the Union's organizational
campaign in this case.
For all of the reasons just expressed, we cannot
agree with the Administrative Law Judge's character-
ization of Respondent's unfair labor practices as "few
and isolated" incidents which do not warrant a
bargaining order. Accordingly, we find a bargaining
order, effective from May 19, 1978, to be an appropri-
ate and necessary remedy.
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 Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Gran-
dee Beer Distributors, Inc., New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph (e):
"(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act."
2. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs accordingly:
"(a) Recognize, effective from May 19, 1978, and,
upon request, bargain collectively and in good faith
with Local 1115, Joint Board-Employees Division,
as the exclusive representative of all employees in the
appropriate nit, with respect to rates of pay, wages,
hours, and other terms and conditions of employment,
and if an understanding is reached, embody such
understanding in a signed agreement. The appropriate
unit is:
"All truckdrivers, warehousemen, and cashiers
employed by the Respondent at its Lexington
Avenue, New York City, store; excluding all
other employees, guards, and supervisors as
defined in the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
' E.g., The Gr,at Atlantric Pacific Tea Company. Inc.. 230 NLRB 766
(1977).
Ibid.
See Peaker Run Coal Company. upra. Chairman Fanning. in the
circumstances ofthis case, would grant only a prospective bargaining order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
concerning their union activities, membership, or
desires.
WE WILL NOT threaten our employees with
discharge or with changes in their jobs in order to
discourage them from joining or supporting the
Union.
WE WILL NOT promise our employees that we
will give them wage increases or health insurance
in order to discourage them from joining or
supporting the Union and WE WILL NOT grant
our employees wage increases in order to discour-
age them from joining or supporting the Union.
WE WILL NOT discriminatorily change em-
ployees' job assignments and WE WILL permit
Howard Hill to drive our large truck as he had
done before the union activity began.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act.
1281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL recognize, effective from May 19,
1978, and, upon request, bargain collectively and
in good faith with Local 1115, Joint Board-
Employees Division, as the exclusive bargaining
representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement. The appro-
priate bargaining unit is:
All truckdrivers, warehousemen; and cashiers
employed by the Employer at its Lexington
Avenue, New York City, store; excluding all
other employees, guards, and supervisors as
defined in the Act.
GRANDEE BEER DISTRIBUTORS, INC.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLIER, Administrative Law Judge: This
case was heard in Brooklyn, New York, on January 18 and
19, 1979, based upon a charge filed on May 30, 1978,' by
Local 1115, Joint Board-Employees Division, herein called
the Union, and a complaint issued by the Regional Director
for Region 29 of the National Labor Relations Board, herein
called the Board, on June 30. The complaint alleged that
Grandee Beer Distributors, Inc., herein called Respondent,
violated Sections 8(a)(1), (3), and (5) of the National Labor
Relations Act, herein called the Act. Respondent's timely
filed answer denied the substantive allegations of the
complaint.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-exam-
ine witnesses, and to argue orally. No briefs were filed.
Upon the entire record, including my careful observations
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE; UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF
LAW
Respondent, a New York corporation, is engaged in the
wholesale and retail sale and distribution of beer, soda, and
related products in the New York city area. Jurisdiction is
not in issue. The complaint alleged, Respondent admitted,
and I find and conclude that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The complaint alleged, the parties stipulated, and I find
and conclude that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
All dates hereinafter are 1978, unless otherwise stated.
The cards were clear and unequivocal applications for union membership.
II. THE UNIAIR LABOR PRACTICES
A. Background-Description of the Business
Respondent is a family-owned corporation which operates
two wholesale and retail beer and soda outlets in the New
York City area, approximately 2 miles apart. One is on
Grand Avenue, the other on Lexington. Each store is
separately licensed and separately managed; Aaron Rosen-
berg and Charles Rosenberg, referred to herein as Aaron and
Charles respectively, each owning 25 percent of the corpora-
tion, manage the Lexington Avenue store. Sam Rosenberg
(Sam) and Henry Brouton, similarly each owning 25
percent, manage Grand Avenue. Each store hires its own
employees. There is no interchange of employees and,
apparently, no common determination of labor relations
policy. Each has its own small fleet of trucks and each makes
its own purchases of both capital equipment and inventory.
On occasion, one may purchase more of a product than it
needs for its own sales and sell the excess to the other (as it
might do with other distributors in the area). Occasionally,
the Grand Avenue store borrows the large truck owned by
the Lexington Avenue store.
Notwithstanding the separation of the two locations,
Respondent maintains a single payroll record. According to
that record and Aaron's testimony, between April 30 and
May 28 the Grand Avenue store employed three driver-
warehousemen and three cashiers and the Lexington Avenue
store had six driver-warehousemen and two cashiers. The
driver-warehousemen stock the warehouses and stores, put
up orders, load the trucks, and make deliveries. They do not
operate the cash registers. The cashiers take orders, bag
small retail sales, and operate the cash registers. Their hours
are the same or overlap. The cashiers are all female; the
remaining employees are male.
B. Organizational Activity
The union organizational activity began some time prior
to May 9 with discussions among the employees. On May 9,
Charles Diffenbach, an employee at Lexington, secured
authorization cards from the Union's representative, Joel
Schweidel. He brought them to that store on May 10.2
On May 10, Diffenbach signed one card. He distributed
the others and observed Howard Hill and Lewis Dyson sign
their cards. Diffenbach also received signed cards from Jerry
Smith, Archie Morrison, and Eddie Hood. All of these
employees work at the Lexington Avenue store.
At Diffenbach's request, Hill took some authorization
cards to the Grand Avenue store, leaving them with one
employee. Some time later that day, Diffenbach overheard
one side of a telephone conversation between Aaron and a
person unknown in which Aaron stated: "[Y]ou're sending
Howie Hill back down with an envelope, with a card from
the Union." At Grand Avenue, Hill was given an envelope
by Henry Broutman with instructions to give it to Aaron.
Upon his return, he did so. Aaron opened the envelope and
authorizations of the Union to act as collective-bargaining representative, and
authorizations for the checkoffof union dues.
1282
GRANDEE BEER DISTRIBUTORS. INC.
asked Hill and then Diffenbach if they knew anything about
the card or the Union. Both feigned ignorance.'
No signed authorization cards were obtained from among
the Grand Avenue store employees.
C. Demand and Refusal
On the morning of May 19, two representatives of the
Union, Schweidel and a Mr. DeLaurentis. came to the
Lexington Avenue store. They told Aaron that they repre-
sented a majority of Respondent's employees and requested
recognition. They flashed a folder, apparently containing the
authorization cards, in front of Aaron, but did not give him
an opportunity to examine them.' Aaron told them that he
had nothing to say at that time, but would have to talk to his
attorney. Schweidel and DeLaurentis left the store and then
confirmed their demand by telegram.
The record does not contain the Union's telegram. The
only indication of the scope of the unit sought by the Union,
other than as reflected in the oral demand, is contained in
the unfair labor practice charge, filed on May 30. That
charge, listing both locations of Respondent, alleged a
refusal to bargain with the Union "for a unit of warehouse-
men, truck drivers and helpers excluding office clericals,
cashiers, guards and supervisors as defined in the Act. . ."
There have been no further contacts between Respondent
and the Union, other than through the filing of the unfair
labor practice charge, since May 19.
D. Response to the Union Activity
Immediately upon the departure of the union representa-
tives, Aaron went to the back of the store, where all of the
men were working. According to his own testimony, Aaron
asked the employees, as a group, whether they wanted a
union. Some, he said, replied "Yes." Others did not reply.
He then asked them why and they told him they wanted
greater benefits. Aaron told them that Respondent was
working on a health insurance plan for them, was trying to
work out a sick leave plan, and intended to give them all
wage increases on the first payday in June.'
As is frequently the case, the employees remembered the
meeting in a somewhat different light. Each of those who
testified, Hill, Diffenbach, Dyson, and Morrison, recalled
that Aaron polled each employee individually as to his desire
for union representation and that each employee so ques-
tioned replied affirmatively. Each of them also recalled,
although only after being prodded by the General Counsel,
that Aaron threatened to close the store if the Union came
Although I note a minor inconsistency between the testimony of
Diffenbach and that of Hill, in that Diffenbach did not hear Aaron question
Hill about the contents of the envelope. I find their testimony otherwise
consistent and mutually corroborative and I credit it. Aaron testified that he
had no recollection of the events of May 0. although he did state that his first
knowledge of the union activity was on May 19. Broutman did not expressly
deny participating in the above-described events, but claimed that he first
learned of the union activity in a telephone conversation with Aaron. some
time in the spring.
' Aaron's credibly offered testimony to this effect was corroborated by that
of Charles. Scheidel's testimony was uncorroborated. Noting the corrobora~
tion, and further noting that Aaron did not mention having seen the cards
when he spoke to the employees shortly thereafter. I credit Aaron and
Charles.
Aaron's testimony was essentially corroborated by that of Charles. The
in. This threat was denied by Aaron and his denial was
corroborated by Charles. As to these two matters, I am
constrained to credit Aaron and Charles. In so doing, I note
Aaron's apparent candor. His willingness to admit to
conduct clearly unlawful is, to some extent, inconsistent
with a conclusion that he would prevaricate about other
aspects of the same incident. A more probable scenario is
that he addressed his question generally to the employees,
each then deemed it addressed to himself, and each replied
to it. Further, I cannot credit the testimony in regard to the
alleged threat; none of the employees freely recalled it. Each
had to be helped to do so by the General Counsel's
questions. A threat of this magnitude, uttered at this
meeting, I believe, would have been more readily remem-
bered by at least some of those to whom it was allegedly
addressed.
I do find, however, that Aaron asked Charles to contact
the unemployment compensation office for some new em-
ployees and to put Seth Rosenberg, Barry Rosenberg, and
Tom Fritz on the payroll as each of the employees testified.
Their testimony is corroborated by the fact that the three
named individuals were, in fact, placed on the payroll as of
May 28.
Additionally, the employees all recalled Aaron calling
Diffenbach a "[expletive deleted] liar", telling Dyson that he
was the biggest loser, telling Hill that he would no longer be
driving Respondent's big truck, telling Hood that he could
be taken off of his driving duties and made to sweep the
floors, and telling all of the employees that he would deduct
the moneys they owed the Employer from their paychecks. I
credit their mutually corroborative testimony."
Hill testified to a conversation with Aaron in early June in
which, he claimed, Aaron promised him a S20 raise and
other benefits if the men would drop the Union. According
to Aaron, however, Hill told Aaron that he would like to
make more money and asked what Aaron could do for him.
Aaron said that he could do nothing at that time. Consider-
ing Aaron's candor in regard to other alleged implied
promises, and noting that Hill's testimony in a number of
areas was inconsistent with or was contradicted by the
testimony of other employees and by documentary evidence
(as examples, his denial that he attempted to deal with
Aaron for greater benefits in January of 1979 as contradicted
by the testimony of Dyson and Morrison and by Respondent
Exhibit 1, and his testimony regarding when he began
driving the Schaefer Mack truck), I credit Aaron.
Prior to May 19, Respondent had a practice of lending its
employees money which it would collect from them by
latter statement. regarding a pay raise, was also corroborated by employees
Diffenhach and Dyson. Generally. however, the employees recalled Aaron
making these statements not in the group meeting of May 19, but in individual
meetings shortly thereafter and in a group meeting on May 25. As it makes no
meaningful difference when in that week he made these statements, I find it
unnecess,.ary to resolve the credibility conflict. Hill's recollection, that Aaron
told the employees that a raise had been planned, but would not he granted
since they had become involved with a union. and that he subsequently offered
the employees medical coverage on the express condition that that they cease
their union activity. is inconsistent with that of all the other witnesses and is
not credited.
I note that Aaron's reference to Diffenbach as a liar appears to be related
to Diffenbach's earlier denial of knowledge about the cards when Aaron
interrogated him on May 10.
1283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deductions from their weekly pay. This practice did not
change after May 19.
Respondenit did not give its employees a wage increase in
early June, as Aaron had told them was due in his remarks
of May 19. Rather, the raise was given in early July.
According to Aaron, that was the time of year when
Respondent normally gave raises to its employees. This
assertion was not corroborated by the testimony of the
employees; they acknowledge receiving some raises in the
past, but did not recall any set time for raises to be given.
Moreover, Charles testified that while raises were given each
year, there was neither a set time nor a set amount for such
raises. And, Respondent did not bring forward the payroll
records which would have shown when raises had been given
in prior years and in what amounts. I may, and do, infer
from that failure that, if produced, the records would not
have supported Respondent's contention. Martin Luther
King. Sr. Nursing Center. 231 NLRB 15 (1977).
Hill testified that he began driving the Lexington Avenue
store's large truck, a 10-bay Mack with a Schaefer Beer
emblem, in the fall of 1977 and continued as its regular
driver until the meeting of May 19, after which he was never
reassigned to that vehicle. He acknowledged that others,
including Seth and Charles Rosenberg, also drove it and
that, when he was not needed on that truck, he drove one of
the vans or did other warehouse work. Documentary
evidence supports Aaron's testimony that the Schaefer Mack
was not purchased until January Il 1. Thereafter it was out of
service for about 2 months. During May it was driven twice
by Charles Rosenberg, and the last day on which Hill drove
it was May 10, when he went to Grand Avenue and received
the envelope from Brouton. Aaron testified that Hill was not
reassigned to the big truck because he was taking too long in
driving it and because they attributed some of the mechani-
cal problems of the truck to his driving.
The May 19 meeting was the first time Respondent's
employees learned that they might receive health insurance
coverage from Respondent. Thereafter, some time about
July or August, Respondent's insurance agent, Morris
Apsel, came out to the Lexington Avenue store and
explained the terms of the health insurance plan available to
the employees at the company's expense. He repeated this
message at Grand Avenue about 2 weeks later. The
coverage, for Respondent's management, cashiers, and other
employees who elected to be covered by it, became effective
on November 1. It had been in the works, however,
according to the testimony of Aaron and Apsel, since the
prior September or October (1977), when Respondent
approached Apsel about finding a suitable plan.
E. Conclusions Regarding the Alleged 8(a)(l) Violations
I. Interrogation
On May 10 and again on May 19, Aaron questioned some
or all of the male employees at Lexington Avenue concern-
ing their knowledge of the union activity and their desires in
regard to union representation.
In Struksnes Construction Co., Inc., 165 NLRB 1062
(1967), the Board held:
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
generally tends to cause fear of reprisals in the mind of
the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights. As
we have pointed out, "An employer cannot discriminate
against union adherents without first determining who
they are."' That such employee fear is not without
foundation is demonstrated by the innumerable cases in
which the prelude to discrimination was the employer's
inquiries as to the union sympathies of his employees.
'Cannon Electric Company, 1IS NLRB 1465, 1468.
In that case the Board held that a violation would be
found in a polling situation unless the purpose of the poll
was to determine the truth of the union's claim of majority;
that purpose was communicated to the employees; assur-
ances against reprisal were given; the employees were polled
by secret ballot; and the employer had not engaged in unfair
labor practices or otherwise created a coercive atmosphere.
The Board has applied these Struksnes criteria to interroga-
tion cases where no poll was taken. CBS Records Division of
CBS, Inc., 223 NLRB 709 (1976); Lorraine Urbauer d/b/a
Kimmel's Shop Rite. 213 NLRB 440, 446 (1974). Even
"friendly" interrogation can be coercive. Quemetco, Inc., 223
NLRB 470 (1976).
In the instant case, the employees were questioned by the
highest ranking member of management with whom they
dealt. Their answers, initially, were untruthful. No valid
purpose for the questions was communicated to the employ-
ees; indeed, none existed. Aaron's questioning of May 19 was
prefaced by expressions of hostility and was accompanied by
other conduct violative of the Act, as discussed infra. And
there was no element of secrecy involved in the questioning.
Under all of these circumstances, I find that Aaron's
questioning of the employees on May 10 and 19 coerced
those employees in the exercise of their Section 7 rights and
violated Section 8(a)(l) of the Act. See Bourne v. N.L.R.B.,
332 F.2d 47 (2d Cir. 1964); Chauffuers, Teamsters and
Helpers. Local 633 of New Hampshire v. N.L.R.B., 509 F.2d
490 (D.C. Cir. 1974).
2. Promises and grants of benefits
While not entirely free from suspicion, the uncontradicted
record evidence established that Respondent had begun
planning to implement a health insurance plan some months
before the advent of the Union. However, no mention of this
was made to the employees until the Union appeared and
demanded recognition. The announcement of that plan and
the announcement of a wage increase, which I have found
was not previously planned, immediately after the demand
was made, in a context of unlawful interrogation and implied
threats, was, I find, "part and parcel of Respondent's
unlawful effort to discourage the employees from joining a
union." General Cinema Corp. d/b/a Renton Village Cine-
ma, 228 NLRB 377 (1977). In that case, the Board found
the announcement of a wage increase to be unlawful
notwithstanding the fact that the increase was required by
state law since the employer had known that it was required
for some months, had not mentioned it previously, took
1284
GRANDEE BEER DISTRIBUTORS, INC.
credit for granting the raise, and announced it at the outset
of the union activity and in the context of other unfair labor
practices.
As the institution of the medical insurance plan was
planned prior to the beginning of the union activity and was
ultimately instituted 6 months after that activity began, at
both stores, for unit and nonunit employees as well as
supervisors, without further mention of or connection to the
union activity, I find that the implementation of that plan
was not violative of the Act. However, the wage increase
stands on a different footing. I have found that Respondent
had no firm practice of granting wage increases at any set
time or in any specific amounts. As the Board stated in
Litton Dental Products Division of Litton Industrial Products,
Inc., 221 NLRB 700 at 701 (1975):
When the timing of the granting of benefits coincides
with the origination of employee union activity, then,
absent an affirmative showing of some legitimate
business reason for the timing, it is not unreasonable to
draw the inference of improper motivation and improp-
er interference with employee freedom of choice.
The granting of the wage increases herein, following as it
does the unlawful promise that they would be granted, in the
absence of evidence that they were granted pursuant to a
regular pattern or for some other legitimate business reason,
raises an inference of improper motivation. See Somerset
Shirt d Pajama Company, 232 NLRB 1103 (1977).
Accordingly, I find that by announcing and promising
both a medical insurance plan and a wage increase on May
19, and by granting a wage increase in early July, Respon-
dent has interfered with its employees' exercise of their
freedom of choice in regard to unionization and has thereby
violated Section 8(a)(1) of the Act.'
3. Threats
The credited evidence establishes that Aaron, in the
course of the May 19 meeting, told Charles to arrange for
the hiring of new employees through the unemployment
compensation office and to place three additional family
members on the payroll. In the context of that meeting, and
without some further explanation of these requests by the
employer, such statements would reasonably be taken to
imply that the employer was intending to replace some or all
of the existing employees. Thus, I find that these statements
constituted thinly vieled threats of discharge because of the
employees' union activities, in violation of Section 8(a)(1) of
the Act.
Further, I find that by telling employees Hill and Hood
that the former would no longer drive the big truck and the
latter would be restricted to janitorial duties in the ware-
house, Respondent threatened to change the nature of their
jobs and the conditions under which they were employed.
' The complaint also alleged a rescission of a wage increase on or about May
19, because of the employees' union activities. As I have not credited the
evidence upon which this allegation was apparently based, i.e., the testimony
of Hill, I shall recommend that this allegation be dismissed.
' Other than an indication from Aaron that Hill might have received a raise
if he had continued to drive the Schaefer Mack truck, the record does not
reveal in what way driving the vans was any less desirable than driving the
truck.
Such threats, arising out of their union activities, violate
Section 8(a)( 1) of the Act.
F. 8(a)(3) Conclusions
The General Counsel contended that Respondent reas-
signed Howard Hill to less desirable work on May 19 and
thereafter failed to reassign him to his original job, because
of his union activities. The record reveals that until May 10,
Hill occasionally drove the large truck in addition to
performing the same duties as all other employees. After
May 10, he never drove that truck. Respondent contends
that it stopped assigning Hill to drive the large truck because
Aaron was dissatisfied with his performance while doing so.
There was no evidence of a basis for such dissatisfaction.
Absent such evidence, and in view of the threat to take such
driving duties away from him, I must conclude that, as
alleged, Hill was denied his occasional assignments to drive
the Schaefer Mack truck because of his union activities.'
Such conduct violates Section 8(a)(3) of the Act.
G. Conclusions as to the Alleged Refusal to Bargain
1. The appropriate bargaining unit
The unit in which the Union demanded recognition (as
evidenced by the unfair labor practice charge and DeLauren-
tis' broad-based request) and which was alleged to be
appropriate by the complaint is a unit consisting of all of
Respondent's truckdrivers and warehousemen, at both
Lexington and Grand Avenue, excluding cashiers, guards
and supervisors as defined in the Act.'
Respondent operates two retail and wholesale stores. The
basic rule as to such stores is that a single store unit is
presumptively appropriate. See Haag Drug Company, Incor-
porated, 169 NLRB 877 (1968). Nothing herein rebuts that
presumption. The stores are separately managed, there is no
interchange of employees between them, and there is no
common determination of labor relations policy. Other than
being employed and paid by the same corporation, the
employees of the two stores herein share no community of
interest. The single store unit is appropriate. While more
than one unit may be appropriate among the employees of a
particular enterprise (Packard Motor Car Co. v. N.L.R.B.,
330 U.S. 485 (1947)), the evidence of record herein,
establishing a lack of any community of interest, does not
warrant a conclusion that a unit consisting of the employees
of the two stores would also be appropriate.
I further conclude that both the Union and the General
Counsel would improperly exclude the cashiers from any
appropriate unit. Those cashiers work in close proximity to
the driver-warehousemen, under common supervision, dur-
ing the same periods of time, and have other common
conditions of employment. They serve the same customers,
'In his oral argument after both parties had rested, the General Counsel
moved to amend the complaint to allege, as an alternatively appropriate unit,
a unit of drivers and warehousemen excluding cashiers, employed at
Lexington Avenue. That motion was denied as being untimely. Inasmuch as
this alternative unit is. except for the exclusion of the cashiers, identical to the
unit urged as appropriate by Respondent, there appears to be no prejudice to
Respondent and I hereby reverse my ruling and grant the motion to amend.
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taking wholesale orders on the telephone and transmitting
them to the warehousemen, making sales and bagging small
retail orders. That the cashiers are all female and the driver-
warehousemen are all male is immaterial. The Board has
held that units based solely on the sex of employees are
inappropriate. Land Title Guarantee and Trust Co., 194
NLRB 148 (1971). Additionally, cashiers are generally
included in units of retail store employees. See, for example,
Buehler's Food Markets, Incorporated, 232 NLRB 785
(1977).
2. The Union's majority status
The Union had valid authorization cards signed by the six
driver-warehousemen employed at the Lexington Avenue
store. Employed at that store on May 19, at the time of both
the demand and the unfair labor practices, were eight
employees.'" As noted, the Union's demand was for the
employees of both stores. In the two-store unit there were 14
employees. The Union fell short of majority status in that
unit.
3. The bargaining obligation
The General Counsel's principal contention is that Re-
spondent, upon receipt of the Union's demand for recogni-
tion, systematically polled the unit employees and, having
done so and determined that a majority of them desired
union representation, was bound by the results of that poll.
Sullivan Electric Company, 199 NLRB 809 (1972), enfd. 479
F. 2d 1270 (6th Cir 1973). This contention must fail for two
reasons. First, the Union sought a unit consisting of the
employees of both stores. The alleged poll did not establish
that a majority of the employees properly included within
that unit desired to be represented by the Union. Second, the
Union's requested unit was inappropriate for the purposes of
collective bargaining and the variation from what would be
appropriate was substantial. Therefore, Respondent was
relieved of its obligation to bargain. Cf. The Hamilton Plastic
Molding Company, 135 NLRB 371 (1962); Mrs. Homer E.
Ash, et al., d/b/a Ash Market & Gasoline, 130 NLRB 641
(1961).
The General Counsel further contended that even if the
two-store unit were deemed inappropriate or if the Union
were found to be lacking a majority in that unit, a bargaining
order covering the Lexington Avenue store would be
appropriate to remedy the unfair labor practices herein.
General Counsel's apparent, though unarticulated, reliance
is upon N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), and such cases as Ludwig Fish & Produce, Inc., 220
NLRB 1086 (1975). The Supreme Court, in Gissel, stated at
pages 614 and 615:
The only effect of our holding here is to approve the
Board's use of the bargaining order in less extraordi-
nary cases marked by less pervasive practices which
nonetheless still have the tendency to undermine
majority strength and impede the election processes.
' Barry Rosenberg. Seth Rosenberg, and Tom Fritz were not on the payroll
at that time, and their addition to the unit would not, in any event, affect the
majority status.
" This, of course, does not make the conduct any less violative, as the
The Board's authority to issue such an order on a lesser
showing of employer misconduct is appropriate, we
should reemphasize, where there is also a showing that
at one point the union had a majority; in such a case, of
course, effectuating ascertainable employee free choice
becomes as important a goal as deterring employer
misbehavior. In fashioning a remedy in the exercise of
its discretion, then, the Board can properly take into
consideration the extensiveness of an employer's unfair
practices in terms . . . of their recurrence in the future.
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order, then such an
order should issue ....
We emphasize that under the Board's remedial power
there is still a third category of minor or less extensive
unfair labor practices, which, because of their minimal
impact on the election machinery, will not sustain a
bargaining order.
And, in Ludwig Fish, the Board pointed out that "[t]here is
nothing in Gissel which conditions the bargaining order
remedy upon a demand for bargaining."
Thus, treating this case as one in which no demand for
bargaining had been made, the question becomes whether
the unfair labor practices herein tended to undermine the
Union's majority strength (in the appropriate unit), would
impede an election, and were such that the possibility of
erasing their past effects and insuring a fair election by the
use of traditional remedies is slight. Careful consideration of
the record herein leads me to conclude that these critical
questions must be answered in the negative. Thus, while the
small size of the appropriate unit and the fact that the unfair
labor practices reached a majority of the employees would
normally militate in favor of a bargaining order remedy (see,
for example, El Rancho Market, 235 NLRB 468 (1978)), I
note that the unfair labor practices herein occurred, almost
completely, very shortly after the demand was made and did
not recur. They appeared to be for the most part, an
implusive and unsophisticated response to the surprise of
receiving a demand for recognition." The one violation
which I have found to have occurred subsequent to the
period surrounding the demand, the pay raise, occurred 1-
1/2 months later, with no mention of the Union and no
overt effort by the employer to garner antiunion support
from the granting of it. In short, the violative incidents were
few and isolated. There was no extensive antiunion cam-
paign. All of this would suggest that there is little likelihood
that the unfair labor practices will recur in the future and
that there is a reasonable expectancy of "erasing the effects
of [the] past practices and of ensuring a fair election ... by
the use of traditional remedies . ." Gissel, supra.
Accordingly, I shall not recommend herein that Respon-
dent recognize and bargain with the Union as the representa-
tive of its employees at the Lexington Avenue store.
appropriate test for the illegality of an employer's conduct is not his motive
but "whether the conduct may reasonably be said to have a tendency to
interfere with the free exercise of employee rights under the Act." El Rancho
Market, supra at p. I I.
1286
GRANDEE BEER DISTRIBUTORS, INC.
Ill. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it be required to
cease and desist therefrom and to post the usual notice to
employees. While I have found that Respondent granted a
wage increase in order to discourage its employees from
joining the Union, and will recommend that Respondent be
ordered to cease and desist from engaging in such conduct,
nothing contained herein should be construed as directing or
requiring Respondent to revoke the wage increase previously
given. As I have found that Respondent violated Section
8(a)(3) of the Act by denying to Howard Hill the opportuni-
ty to occassionally drive the employer's large truck, I shall
recommend that Respondent be required to permit him to
drive that truck as he had done prior to May 19, 1978.
ADDITIONAL CONCLUSIONS OF LAW
I. All employees of Respondent at its Lexington Avenue
store, including drivers, warehousemen and cashiers, but
excluding all guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. By interrogating employees concerning their union
activities, by promising and granting improved benefits in
order to discourage union activities, and by threatening
employees with discharge or changes in their work assign-
ments because of their union activities, Respondent has
violated section 8(a)(1) of the Act.
3. By refusing to assign Howard Hill to drive the
employer's large truck because of his union activities,
Respondent has discriminated against Hill in violation of
Section 8(aX3) and (1) of the Act.
4. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Except as found above, Respondent has not engaged in
the other unfair labor practices alleged in the complaint.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, Grandee Beer Distributors, Inc., New
York, New York, officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their union
activities.
(b) Threatening its employees with discharge or changes
in their work assignments in order to discourage them from
engaging in union activities.
(c) Promising or granting them wage increases or insur-
ance coverage in order to discourage them from engaging in
union activities.
(d) Discriminatorily denying employees the opportunity
to drive its large truck because of their union activities.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer Howard Hill the opportunity to drive the
employer's large truck as frequently as he did before May
19, 1978.
(b) Post at its Lexington Avenue store copies of the
attached notice, marked "Appendix."" Copies of this notice,
on forms provided by the Regional Director for Region 29,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be liken by Respondent to insure that the notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.
'" In the event that this Order is enforced by a judgement of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court Of Appeals Enforcing an Order of the National
Labor Relations Board."
1287