Great Scot of Florida

National Labor Relations Board - Board Decisions

Jun 24, 1981

256 N.L.R.B. 885 (N.L.R.B. 1981)

GREAT SCOT OF FLORIDA 885
Great Scot of Florida, Inc. and United Food and
Commercial Workers International Union,
Local 1636, AFL-CIO. Cases 12-CA-8824, 12-
CA-8903, and 12-RC-5729
June 24, 1981
DECISION AND ORDER
On January 29, 1981, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and brief and has decided to
affirm the rulings, findings, and conclusions' of the
i The Administrative Law Judge recommended that a bargaining
order issue in this case as the most appropriate remedy for Respondent's
unfair labor practices. Respondent has excepted to this recommendation
and argues, inter alia, that the unit previously determined by the Regional
Director is inappropriate for purposes of collective bargaining. Respond-
ent maintains that, after the unit determination made in Case 12-RC-5729
and the Board's denial of review therein, the Board decided Ashcraft's
Market. Inc, 246 NLRB 471 (1979), and that Ashcraf's mandates a con-
trary conclusion regarding the scope of the unit here. Respondent there-
fore urges the Board to rconsider the unit determination in light of subse-
quent case law and to find appropriate a unit of all employees at Re-
spondent's Sarasota retail store, rather than a unit comprised of grocery
employees alone and excluding meat department employees.
Sec. 102.67(0 of the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended. provides that denial of a request for review
shall preclude relitigation of the representation issue in a related subse-
quent unfair labor practice proceeding. Nevertheless, to avoid any confu-
sion our decision may have generated, we observe here that the consider-
ations which prompted us to find appropriate an overall unit in Ashcraft'
are not present in the case at hand.
In Ashcraft's the Board found that the meat department employees did
not have a separate community of interest because their job functions did
not require specialized skills. Two-thirds of the meat sold at the employ-
er's facility was prepackaged and prepriced, and the only task involved
was putting the product on the shelf; the remaining one-third was "boxed
beef," which required only trimming and cutting into smaller pieces. The
employer did not cut to order for its customers. In addition, all employ-
ees at Ashcraft's Market had uniform job and wage classifications,
worked under the same supervision, and frequently interchanged jobs.
Here, Respondent's request for review indicated that, as in Ashcraft's.
Respondent's meat department employees handle precut meat products,
but that they also spend a substantial amount of time cutting, pricing, and
packaging meat. Respondent maintains a meatcutter job classification,
unlike the employer in Ashcrafr's, and Respondent's meatcutters receive
substantially higher wages than employees in other classifications. Meat-
cutters are hired off the street and are not transferred or promoted from
other classifications within the store. They do not perform work in other
areas of the store in addition to their duties as meatcutters nor, with the
exception of the meat manager, are employees in other classifications re-
quired to perform the work of meatcutters. Moreover, Respondent em-
ploys a meat manager who, while not a supervisor, is in charge of ensur-
ing the profitable operation of the meat departments and is capable of
performing the same work as the meatcutters when necessary.
In addition to meatcutters and the meat manager, Respondent also as-
signs service clerks to the meat department to wrap and shelve meat
products and assigns a courtesy clerk to clean the meat department at
night. These employees also work in other parts of the store if necessary,
and occasionally an employee whose primary duties lie elsewhere may be
assigned as a service or courtesy clerk to the meat department.
Based on these factors, most of which were missing in Ashcraft's, the
Regional Director found that the meat department employees have a sep-
arate community of interest from the other store employees, despite limit-
ed interchange among the clerks. Ashcraft's did not compel a different
conclusion when both cases were simultaneously pending before the
Board, and it does not compel a different conclusion now. Accordingly.
256 NLRB No. 126
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Great Scot of
Florida, Inc., Sarasota, Florida, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election in
Case 12-RC-5729 be, and the same hereby is, set
aside, and that Case 12-RC-5729 be dismissed.
we find the unit determined by the Regional Director in Case 12-RC-
5729 to be appropriate for the purposes of collective bargaining, and we
adopt the Administrative Law Judge's recommendation that a bargaining
order issue to remedy Respondent's unfair labor practices
We find that the Union made a demand for recognition received by
Respondent on August 27, 1979, at which time it possessed alid authori-
zation cards signed by a majority of Respondent's employees in the ap-
propriate unit. We conclude that Respondent's obligation to bargain arose
at that time, and we shall therefore date the bargaining order August 24,
1979 See rading Port. Inc. 219 NLRB 298 (1975)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interrogate employees about
their union activities and desires.
WE WILL NOT interrogate employees about
complaints and advise employees to bring their
complaints directly to management without
need of a union.
WE WILL NOT threaten to cut the working
hours of our employees if the Union becomes
the employees' collective-baragining repre-
sentative.
WE WILL NOT threaten to close or impliedly
threaten to close our stores No. 620 and 630 if
our employees select the Union as their collec-
tive-bargaining representative.
WE WILL NOT grant employees time and a
half for pay for working on certain holidays
and give them pay raises because the majority
GREAT SCOT OF FLORIDA 85
-
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of them voted against the Union in a Board-
conducted election.
WE WILL. NOT withhold those benefits from
our meat department employees because a ma-
jority of those employees have not voted
against the Union in a Board-conducted elec-
tion.
WE WILL NOT refuse to bargain collectively
with United Food and Commercial Workers
International Union, Local 1636, AFL-CIO, as
the exclusive bargaining representative of our
employees in the appropriate unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed in Section 7
of the Act.
We will make our employees in the meat de-
partment of stores No. 620 and 630 whole for
any losses suffered by them on or after No-
vember 21, 1979, by withholding from them
the same benefits as or provided to the non-
meat department employees.
WE WILL, upon request, bargain collectively
with the above labor organization as the exclu-
sive representative of our employees in the ap-
propriate unit concerning wages, hours, and
other conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement. The bargaining
unit is:
All full-time and regular part-time employ-
ees employed by the Respondent at its stores
located at 200 Lime Avenue (store no. 620)
and 3700 Tamiami Trail (store no. 630),
Sarasota, Florida; excluding all meat depart-
ment employees, guards and supervisors as
defined in the Act.
GREAT SCOT OF FLORIDA, INC.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
proceeding, held pursuant to Section 10(b) of the Nation-
al Labor Relations Act, as amended, herein the Act, was
heard at Tampa, Florida, on March 31 and April 1, 1980.
On January 10, 1980, the Regional Director for Region
12, issued an Order consolidating cases, consolidated
complaint and notice of hearing based on charges filed
by United Food & Commercial Workers International
Union, Local 1636, AFL-CIO (herein the Union), that
Great Scot of Florida, Inc. (herein Respondent), has
been engaging in and is engaging in unfair labor prac-
tices affecting commerce, as set forth and defined in the
National Labor Relations Act, as amended, 29 U.S.C.
§151, et seq. (herein the Act). An Order directing hearing
and consolidating Cases 12-RC-5729 and 12-CA-8824
issued on December 17, 1979.
Respondent's answer denies that it has engaged in any
unfair labor practices as alleged in the complaint. Briefs
have been received from the General Counsel and Re-
spondent.
Upon the entire record, from my observation, and the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Florida corporation engaged in the
retail sale of groceries and allied products at its two
facilities' located in Sarasota, Florida. Respondent is a
wholly owned subsidiary of C.W.C. Corporation, Inc.,
an Ohio corporation with its principal office and place of
business located in Findlay, Ohio. C.W.C. Corporation,
Inc., also has another wholly owned subsidiary, Great
Scot, Inc., another corporation with its principal office
and place of business located in Findlay, Ohio. Carroll
W. Cheek is the chairman of the board of directors of
C.W.C. Corporation, Inc., and is the president of Re-
spondent. The only stores operated by Respondent
which are involved in this proceeding are Respondent's
two stores in Sarasota, Florida. These stores opened in
February 1979.
During the 7 months preceding the issuance of the
Order consolidating cases, consolidated complaint, and
notice of hearing, a representative period of time, the
employer received gross revenues in excess of $500,000
and during that same period of time, purchased and re-
ceived products valued in excess of $50,000 which were
shipped directly to its Sarasota, Florida, facility to points
located outside the State of Florida. Respondent is now
and has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food & Commercial Workers International
Union, Local 1636, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union began an organizing campaign among the
employees at Respondent's stores sometime prior to
August 24, 1979.2 By letter dated August 24, received by
Respondent on August 27, the Union requested that Re-
spondent recognize and bargain with it as the bargaining
representative of a bargaining unit composed of all full-
time and regular part-time employees employed by Re-
spondent at its stores No. 620 and 630 located in Sara-
sota, Florida, excluding store managers, assistant store
managers, meat department employees, casual and sea-
Respondent operates two other stores in addition to the two stores
involved in this proceeding and also operated one other store which was
subsequently closed.
2 All events herein occurred in 1979 unless otherwise stated
GREAT SCOT OF FLORIDA 887
sonal employees, guards and supervisors as defined in the
Act.
Respondent, by letter dated August 27, 1979, denied
the Charging Party's request for recognition, raised cer-
tain issues regarding composition and the appropriateness
of the bargaining unit as described above, and suggested
that the Charging Party invoke the representation proce-
dures of the Board.
The Union filed a petition in Case 12-RC-5729 and on
September 17 a hearing was held with respect to that pe-
tition and a companion case, Case 12-RC-5728, in which
United Food & Commercial Workers International
Union, District Union 282, AFL-CIO, had petitioned to
represent a certain group of Respondent's employees
working in the meat department at Respondent's stores
No. 620 and 630 located in Sarasota, Florida.
On October 12, the Regional Director issued a Deci-
sion and Direction of Election involving both the
Union's petition and the petition filed by District Union
282. Respondent filed a request for review of the Re-
gional Director's decision and, on September 23, the
Board denied it, except to the extent that the Board or-
dered that Assistant Store Manager Richard Arnold be
permitted to vote a challenged ballot. The elections of
both of the units found appropriate in Cases 12-RC-5728
and 12-RC-5729 were held on November 8. The Union
failed to receive a majority of the votes cast in the unit
found appropriate by the Regional Director in Case 12-
RC-5729.3
On November 15, the Union filed Objections I
through 8 to the election held in Case 12-RC-5729. The
Union has withdrawn Objections 2, 3, and 6 and Objec-
tions 1, 4, 5, 7 and 8 have been consolidated with Cases
12-CA-8824 and 12-CA-8903 for hearing and decision
in this proceeding.
The General Counsel's position is that the conduct
prior to the election clearly is sufficient to set aside that
election, and the conduct of the employer both previous
to and immediately after the election is such that it
would not be possible to hold a fair election among the
unit employees. The General Counsel contends that a
bargaining order is necessary to remedy the unfair labor
practices allegedly committed by Respondent.
Respondent's position is, in effect, that the bargaining
unit involved in this proceeding which excludes the meat
department employees, is not an appropriate bargaining
unit in view of a decision of the Board which was issued
after the issuance of the decision of the Regional Direc-
tor in the instant case. Ashcraft's Market, Inc., 246 NLRB
471 (1979). Respondent contends that that case which
supports its position that the following described bargain-
ing unit is the only appropriate bargaining unit at its
Sarasota, Florida, supermarkets and that the unit deter-
minations of the Regional Director are contrary to
Board precedent.
3 The tally of ballots in Case 12 RC-5728 was as follows: Approxi-
mate number of eligible voters, 5; void ballots, 0; votes cast for Petition-
er, 2; votes cast against Petitioner, 2; valid votes counted, 4; challenged
ballots, I; valid votes counted plus challenged ballots, 5. The challenged
ballot was sufficient to affect the results of the election. On December 17,
the Regional Director issued a Supplemental Decision on Challenged
Ballot, Order and Certification of Results of Election in Case 12 RC-
5728.
All employees employed by the employer, Great
Scot of Florida, at its Sarasota, Florida, retail
stores, but excluding all office clerical employees,
guards, professionals, and supervisors as defined in
the Act.
Respondent contends that based on Ashcraft's and the
evidence of record the bargaining units found by the Re-
gional Director are not bargaining units appropriate for
purposes of collective bargaining and that therefore all
allegations in the complaint based on the contention that
such bargaining unit is appropriate must be dismissed.4
In addition to denying that it has committed any unfair
labor practices the Respondent contends that the record
does not contain evidence of substantial unfair labor
practice conduct of the type that would make the issu-
ance of bargaining order an appropriate remedy.
On August 27, from Local 1636, there were 39 em-
ployees in the bargaining unit requested and found ap-
propriate by the Board. Twenty-eight of those employ-
ees had signed cards authorizing the Union to represent
them for collective bargaining. Employee Kathleen
Susan Pack testified that in late August at store No. 620,
while she was working, she was approached by Mr.
Fred Weber who asked her if she or any of the other
employees were having any problems with the Compa-
ny, and, if so, what they were. He also told her that he
felt that the employees did not need a union and that any
problems they had could be discussed with him or a
manager. (Fred Weber was a supervisor in that store at
that time.) She testified that prior to that conversation no
one from the Company had asked her if she had any
problems. On cross-examination she stated that, at an all-
employee meeting which was held immediately after the
store opened, management went over the matters in the
employee handbook "Great Scot of Florida" which pro-
vided in part as follows:
The Employee Way
If something is troubling you or if you feel you
are not being treated fairly, you should express your
feelings. When a group of people are closely associ-
ated in any kind of work, misunderstandings are
bound to occur. If something is bothering you-if
you are discouraged, worried or upset either about
your work or some outside problem, you are not at
your peak of efficiency. Feel free to discuss the
matter with your department manager. They are
sincerely interested in your welfare and will do all
they can to help you. It is part of their job to assist
in keeping every member of their team in top condi-
tion. If they cannot help you personally, they will
be glad to recommend someone who can.
Weber testified that he did not remember whether he
mentioned the word "Union" in this conversation with
4 Counsel for Respondent was informed by me at the hearing that al-
though the Board (in appropriate circumstances) ma) wish to reconsider
its denial of res iew in this case because of ,4shcrafr it was not within my
province or authority to reieu he Board's denial of review with respect
to the unit in questlon
GREAT SCOT OF FLORIDA
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kathleen Pack and may have used the expression "third
party," not needing a third party to solve their problems.
He said in using that term he was referring to a union.
Pack testified that during the time of the union cam-
paign her store Manager, Carl Thorne, said to her that if
the Union was voted in, the store would cut the working
hours of employees and employees would quit.
Joeanne Auld, a former employee, testified that before
any petition was filed Respondent held several meetings
with its employees in which management representatives
told them of Respondent's policy of encouraging em-
ployees to bring their problems to management before
they became big problems. She also testified that, during
August 1979, her store manager, Carl Thorne, told her
that if the employees voted for the Union, the Company
could not pay union wages and would either close the
store or cut the hours of employees.
On August 30, Respondent sent a letter to its employ-
ees in its Sarasota, Florida, stores, the second paragraph
of which advised employees that two major chains repre-
sented by the Union had closed their stores. The next
paragraph referred to the success of nonunion stores
while noting that "division created by strangers repre-
senting employees many times leads to the closing of
stores," referring to A & P and Pantry Pride. The fourth
paragraph of the letter stated, "Every person joining our
Company did not have a job when they joined our Com-
pany-principally because of union store closings."
Attached to the above letter was a memo to all Sara-
sota employees from Fred Weber, dated August 28, sub-
ject "Unions." The third paragraph of that letter con-
tains the following sentences: "Joining a union does not
guarantee you that you will have any more job security.
If you think it does, just think about all of former A & P
and Pantry Pride employees, who were union members,
who became unemployed, lost wages and jobs when A &
P and Pantry Pride closed their operations in Sarasota."
On September 13, Respondent posted at its Sarasota
store a cartoon with the title "The Great Fight Promot-
er." The cartoon shows a supermarket in the back-
ground, a manager and an employee and the words,
"Once there were two people who worked together to
build a successful business. They were pretty happy until
a stranger, the union organizer (who didn't work to build
anything), said to the employees, 'You poor exploited so
and so! You're not getting enough from the business! Just
sign this card and I'll help you make him give you
more."' That is followed by another cartoon showing the
employee and the manager engaging in fisticuffs with the
caption, "'Then lets you fight him,' he said happily. 'If it
doesn't work out I haven't lost anything."' It shows the
union organizer carrying away a large sack full of union
dues, fees, fines and assessments while the manager and
the employee are shown lying prostrate on the ground.
The supermarket is shown in the background with a
"Closed" sign and spider webs.
On September 18, Respondent posted at its Sarasota
stores a copy of an article from a publication entitled
"The Market Place." The article is captioned, "Is the
Bottom Falling Out of Food Stores?" Underneath the
posted article is handwritten the following: "They all
have one thing in common . . . a Union." The article de-
scribes the closing of many stores by A & P and Food
Fair in the eastern half of the nation.
On September 19, Respondent mailed letters to its
Sarasota store employees, the last paragraphs of which
read: "The Union is saying that you must stick together
and not let the Company divide you. Actually, they are
the ones attempting to divide us by petitioning for elec-
tions." They, they go on to say, "How can you lose?
Why not ask thousands of former employees who are out
of work because of closed stores; and what about all
those former employees in the Sarasota area? Over 5,000
union stores closed and at least 170,000 union members
have lost their jobs. Could that be the reason they are so
interested in you? They need more members to support
their salaries and expense accounts."
On September 21, Respondent passed out a document
in a question-and-answer format to its Sarasota employ-
ees. Among the questions asked is the following:
Q. Can the Union force Mr. Cheek to keep our
stores open here in Sarasota?
A. Of course not. Remember, the only supermar-
kets in Sarasota that were unionized are now
closed. The only people who can guarantee this are
the customers. The union organizers may be talking
about the fact that they will resist any decrease in
operations. The Union simply can't guarantee this!
As we all know, keeping work depends upon keep-
ing customers satisfied with quality products and
service. This is the only guarantee that you will
continue to have good work and job security.
On September 29, Respondent posted a notice at its
Sarasota stores with the title "Hot Line Questions." It
reads as follows:
Q. The Union has been telling us they can force
you to keep both stores open, you can't close them
even if you wanted to. Is that true?
A. That is just another ridiculous statement the
union organizers are making. Any company has the
right to close their stores for any reason. Why, even
the Union has admitted A & P and Pantry Pride
closed unprofitable stores in our area. That is the
key, unprofitable; any time a business cannot make a
profit, it becomes economically impossible to
remain in business. During the past several years
over 5,500 Union (the emphasis is contained in the
document) stores have closed down, many in our
area. Obviously, they were unprofitable, but they all
had one thing in common . . . the Union. You
decide what causes the store closings. How many
nonunion stores have closed in our area? Ask the
union organizers what happened to all those em-
ployees. What kind of job security did they have?
Robert Morse, an employee of a labor relations con-
sulting firm, provided labor relations consulting services
for Respondent and met with Respondent's employees
concerning the union organizing campaign. Morse pre-
sided at meetings held on September 4 with the employ-
ees at each Sarasota store, and spoke to them concerning
GREAT SCOT OF FLORIDA 889
the union campaign. Employees Kathleen Pack, Gina
Capelli, and Joeanne Auld testified that Morse told them
that Pantry Pride and A & P stores were union and had
closed. Morse testified that he told the employees at the
meeting what was happening in the supermarket industry
and explained about union markets closing, the number
of union stores closing, how Pantry Pride and A & P
had closed many stores, and that many other union
stores had closed. He then discussed the percentage of
employees who were union members and talked about
the number of successful nonunion companies, including
retail stores in the Sarasota area which were in business
and were nonunion.
Respondent sent to its employees at the Sarasota stores
the following letter dated November 21:5
It is our company policy to maintain an equitable
and competitive position in the marketplace; there-
fore, we are making the following improvements in
our compensation program for our employees. The
election by our non-meat department employees
conclusively affirmed our position that these em-
ployees are capable of representing themselves, al-
though the meat department is still in controversy.
We hope to end the era of divisiveness and
expect our collective efforts to bring our stores to a
profitable basis so we may justify continuing our
operations in Sarasota. We appreciate your support
and cooperation.
Effective immediately, November 21, 1979, time-
and-one-half will be paid to all employees, exclud-
ing the meat department, who are scheduled and
working on the following holidays: (The exclusion
of the meat department is directed to us by the
N.L.R.B. until the controversy in that department is
resolved.)
New Years Day, Memorial Day, July 4th, and
Labor Day.
Should any of our stores be open on Christmas,
Easter, or Thanksgiving, the employees working
those holidays will also receive time-and-one-half
their regular wage rate.
Every non-meat employee has been reviewed by
our Salary Committee, and those employees receiv-
ing merit raises will be notified of their increase in
wages individually. The wage increase shall become
effective on December 7, 1979.
Another additional change we wish to announce
is that all employees scheduled and working on
Sunday, excluding the meat department, shall be
paid at time-and-one-half their regular rate of pay
for any hours worked on Sunday between 12:01
a.m. and 11:59 p.m. This policy we feel is necessary
and equitable to attract grocery department employ-
ees, as we are competing with many other seasonal
employers for personnel at this season of the year.
At the time this letter was issued the election among the meat depart-
ment employees resulted in a tie vote with I challenged ballot being de-
terminative, while in the other bargaining unit. Local 1636 had filed ob-
jections to that election on November 15.
A very heartfelt "Thank You" is extended to
each and every one of you for your cooperation
and loyal support during the recent challenges made
toward you and our company. Only through your
continued dedication and loyal support can our
company continue to grow and offer future oppor-
tunities for all our employees.
Very truly yours,
GREAT SCOT OF FLORIDA, INC.
Carroll W. Cheek
President
On December 7, 22 of the 32 employees whose votes
were counted in the election among the nonmeat depart-
ment employees received pay raises. Two of those voters
had resigned from the company before December 7.6
Discussion and Conclusions
As previously stated the Regional Director in Case
12-RC-5729 found that all full-time and regular part-
time employees employed by Respondent at its two
stores in Sarasota, Florida, excluding meat department
employees, guards, and supervisors constituted a unit ap-
propriate for collective bargaining. The Board denied
Respondent's request for review except with regard to
the status of one individual, and thereby approved the
Regional Director's decision. Accordingly, since it is the
decision of the Board that the unit requested by Local
1636 is appropriate for collective bargaining, I have no
alternative but to find the same.
The parties to this proceeding have stipulated that at
the time Respondent denied the request for recognition
there were 39 employees in that unit. The evidence
shows, and I find, that 28 of those employees had signed
union authorization cards and that such cards are valid.
Accordingly, when Respondent denied the Union's re-
quest for recognition, a substantial majority of the unit
employees had authorized the Union to represent them
for the purpose of collective bargaining.
The alleged solicitation of grievances
There is no dispute that Fred Weber asked Kathleen
Pack whether she or any other employee had had any
problems with the Company. Although there is also no
dispute that Respondent had a policy of encouraging em-
ployees to bring their questions and dissatisfactions to
management, there is no evidence that Respondent's
policy included management's solicitation of grievances
from employees. The fact that Weber coupled his solici-
tation of Kathleen Pack's grievances with the statement
that the employees did not need a union and could bring
their problems to management raises the reasonable infer-
' Respondent has a merit review policy. Store managers review the
performance of their employees and submit their reviews to a salary com-
mittee. That committee considers the reviews and gives discretionary pay
raises. During the period between the filing of petitions and the elections
herein, the committee did not consider merit pay raises because they
were discretionary After the electlion,is ere held, the committee granted
merit pay increases The committee did not consiider merit pay increases
for meat department employees hecaluse their election had not been deter-
mlnatlve
GREAT SCOT OF FLORIDA
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence that management is promising the employees that it
will resolve their grievances and that union representa-
tion is unnecessary. In the circumstances, I find that such
is a violation of Section 8(a)(l) of the Act. Reliance Elec-
tric Company, Madison Plant Mechanical Drives Division,
191 NLRB 44 (1971), enfd. 457 F.2d 503 (6th Cir. 1972).
Alleged threat that employees' hours would be cut
Kathleen Pack and Joeanne Auld testified that during
the Union's campaign Carl Thorne, store manager, told
them that if the employees voted for the Union their
working hours would be cut. I find such a statement to
be a threat and an interference with the employees' Sec-
tion 7 rights and accordingly a violation of Section
8(a)(1) of the Act.
The alleged threats to close the stores
The Supreme Court case, N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969), established certain stand-
ards for determining whether an employer's statements
about the effects of unionization are permissible. The
Court stated that any evaluation of employer's state-
ments, "must take into account the economic dependence
of the employees on their employers, and the necessary
tendency of the former, because of that relationship, to
pick up intended implications of the latter that might be
more readily dismissed by a more disinterested ear.7
The Court further stated that:
. . an employer is free to communicate to employ-
ees any of his general views about unionization or
any of his specific views about a particular union so
long as the communications do not contain a
"threat of reprisal or promise of benefit." He may
even make a prediction as to the precise effects he
believes unionization will have on his company. In
such a case, however, the prediction must be care-
fully phrased on the basis of objective facts to
convey an employer's belief as to demonstrably
probable consequences beyond his control and to
convey a management decision already arrived at to
close the plant in case of unionization. . . . If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only
to him, the statement is no longer a reasonable pre-
diction based on available facts but a threat of re-
taliation based on misrepresentation and coercion
and as such without the protection of the First
Amendment. 8
Judged by those standards Respondent's campaign lit-
erature and the speech of Robert Morse to the employ-
ees on September 4, that stores that were union were
being closed and the employees were out of jobs, both
nationwide and in Sarasota, Florida, area (referring often
to the closing of Pantry Pride and A & P stores) and
noting the success of nonunion operations, contains an
implication that Respondent may or may not take action
Gissetl supra at 616.
Id. at 618.
solely on his own initiative for reasons unrelated to eco-
nomic necessities and known only to him and therefore
the statement is no longer a reasonable prediction based
on available facts, but a threat of retaliation based on
misrepresentation and coercion and as such without the
protection of the first amendment as referred to above in
Gissel. The employer's campaign against the Union defi-
nitely gave the impression that the election of the Union
would cause the plant to be closed, in the circumstances
of Respondent not presenting any evidence to support its
prediction of closing if the Union won the election and
made unreasonable demands or demands that Respondent
could not afford, were unlawful. There is no support for
Respondent's assumption that the Union, which had not
up to that point presented any demands, except recogni-
tion, would present demands that were unreasonable or
which Respondent could not meet. Respondent present-
ed no facts in regard to what kind of a wage or other
demand it considered reasonable or as to what economic
concessions it could afford to make. Respondent clearly
created the impression that it would make a judgment
unilaterally on the reasonableness of the Union's de-
mands on the basis of undisclosed facts and having so de-
cided, closing would inevitably follow.
Moreover, the statements do not contain a manage-
ment decision already arrived at to close the plant in the
event of unionization, but contained threats to make that
decision after the employees had voted in the election
and even before collective bargaining ever got started.
The statements of Respondent were "a misrepresentation
designed to deceive the employees, and not a carefully
phrased prediction based on objective facts of how
unionization would result in a plant closure."9
I therefore conclude that Respondent, by Morse's
statements and by the literature referred to above about
closing the stores, violated Section 8(a)(1) of the Act.' o
The granting and withholding of benefits
As previously stated Respondent sent a letter to em-
ployees dated November 21 in which it thanked the em-
ployees for voting against the union representation and
announced that it was making a change to pay its non-
meat department employees time-and-one-half for work
performed on Sunday and certain holidays and that it
was recommencing its program of granting merit wage
increases for employees. In that same letter Respondent
did not make such changes for its meat department em-
ployees, indicating that it could not because of the Na-
tional Labor Relations Board.
Respondent now contends that its representatives were
confused by advice which had been given by its advisors
on that subject and that the letter it sent to its employees
on January 10, 1980, admitted its confusion and ex-
Jimmy-Richard Co.. Inc., 210 NLRB 802, 805 (1974).
'O Having concluded that Respondent's message constitutes a predic-
tion that selection of the Union would result in Respondent's closing the
Sarasota stores for economic reasons. I do not consider Respondent's No-
vember 5, 1979, letter to employees as having removed that prediction.
That letter as distributed only 3 days before the election and according-
ly I cannot conclude that it constituted a reversal of Respondent's con-
tinuing message that selection of the Union ould result in closing the
Sarasota stores.
GREAT SCOT OF FLO)RIDA 891
plained to all employees that it had totally misunderstood
the information it had received from its attorneys and
others who counseled him in those matters; that he was
under the impression that no matter what changes were
made in the nonmeat department he was prohibited from
making any change whatsoever in wages or benefits in-
volving meat department personnel until the labor matter
was settled. In the letter of January 10, 1980, Respondent
announced that wage adjustments announced on Novem-
ber 21 for nonmeat department personnel would also be
adjusted for meat department personnel and that the im-
provements would be effective retroactive back to De-
cember 7, the same date used for the other employees.
That letter also extended the merit wage program bene-
fits to its meat department employees.
Respondent claims that Cheek's letter of January 10
totally explained what occurred and totally dissipated
any improper conclusion that might have been made
from the mistake which Respondent made. In addition,
the meat department employees did receive merit re-
views and appropriate merit increases retroactive to De-
cember 7, 1979. Although Respondent claims that there
is not a scintilla of evidence which indicates or estab-
lishes that Respondent's actions in this regard were to
"reward" the employees in one unit and "punish" the
employees in the other unit, I do believe that Respond-
ent's actions whether intentional or unintentional or by
mistake or design or indeed bad advice, did create the
impression that it was "rewarding" the nonmeat depart-
ment employees who voted against the Union and "pun-
ishing" the meat department employees who did not vote
against the Union.
Although the letter of January 10 was an attempt by
Respondent to remedy its violation of the Act, it did not
succeed in removing the initial impression conveyed by
its letter of November 21, and the followup increases to
its nonmeat department employees that they indeed were
being thanked and rewarded for voting against the Union
at a time when Respondent was aware that the Union
had filed objections to the election filed in Case 12-RC-
5729 and therefore had knowledge that employees in that
unit might possibly vote again concerning union repre-
sentation.
I agree with the General Counsel that the letter dated
November 21, and the actions taken by Respondent as
noted in that letter, violated Section 8(a)(1) and (3) of
the Act and that a misunderstanding of the law is not a
defense to conduct which clearly is a violation of the
Act. The Great A & P Tea Company, 166 NLRB 27
(1967).
In The Great A & P Tea Company case, the respondent
sent a letter to its employees announcing and granting
holiday benefits to unorganized employees and, at the
same time, withheld such benefits from employees about
to vote on union representation. That letter told the em-
ployees that but for the union they too would have re-
ceived an additional holiday. It also had an additional
comment as follows: "We are . . . just as tired of this
union business, as we are sure you are and we regret that
we are unable to give you this additional holiday."
The Board held that the additional gratuitous com-
ment, "illustrated that the letter was more than a mere
informational notice but was intended to exploit and
bring home to the employees that the Union was respon-
sible for their being deprived additional benefits." The
Board concluded that the respondent's letter announcing
its withholding of benefits as well as its actual withhold-
ing of such benefits and its exploitation of such action
was a tactical maneuver designed to discriminate against
employees and to interfere with the employees' freedom
of choice in violation of Section 8(a)(3) and (1) of the
Act.
The Board found further that, "in the context present-
ed, the discriminatory treatment of employees was viola-
tive of Section 8(a)(l) and (3) whether or not there is
proof that Respondent was motivated by an unlawful
purpose as it was 'inherently destructive of employee in-
terests,' and no persuasive evidence of a legitimate pur-
pose appears therefor." The Great A & P Tea Company,
supra at 29.
The refusal to bargain
As previously stated the Union requested to be recog-
nized as a collective-bargaining representative of employ-
ees in a bargaining unit found appropriate by the Board
and at the time of that request a substantial majority of
employees in that unit had designated the Union as their
collective-bargaining representative. Respondent refused
recognition and the Union filed a petition, Case 12-RC-
5729, seeking an election in the unit for which it had re-
quested recognition. The Union failed to receive the ma-
jority of the votes cast in that election and filed objec-
tions to the election.
There remains before us the question of whether under
N.L.R.B. v. Gissel Packing Co., supra, a bargaining order
is an appropriate remedy for the 8(a)(5) refusal to bar-
gain. As in Gissel the employer has committed independ-
ent unfair labor practices which have made the holding
of a fair election unlikely or which have in fact under-
mined the Union's majority requiring the election to be
set aside. I consider the bargaining order an appropriate
remedy for the unfair labor practices because they are
"such a nature that their coercive defects cannot be
eliminated by the application of traditional remedies,
with the result that a fair and reliable election cannot be
had." IV.L.R.B. v. Logan Packing Co., 386 F.2d 562, 570
(4th Cir. 1967); see also NL.R.B. v. Heck's Inc., 398 F.2d
337, 338 (4th Cir. 1968). The Board has held that a threat
to close business and put the employees out of their jobs
is conduct which prevents a fair election and requires a
bargaining order. Guardian Ambulance Service, 228
NLRB 1127 (1977); C & T Manufacturing Company, 233
NLRB 1430 (1977).
The granting of overtime pay and pay raises after the
election coupled with thanks to employees for voting
against the Union is conduct which prevents the holding
of a fair rerun election. Employees, who have received
benefits after voting against the Union with a message
thanking them for their votes, would certainly be hesi-
tant in voting for a union with knowledge that another
group of employees who did not vote against another
union were being denied those same benefits.
GREAT SCOT OF FLORIDA !
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union requested recognition in an appropriate
bargaining unit in which it had authorization cards from
a majority of the unit employees. Inasmuch as Respond-
ent's unlawful conduct has apparently destroyed the
Union's majority status and thus prevented the holding
of a fair second election, I agree with the General Coun-
sel that the remedy in these cases must include the set-
ting aside of an election held in Case 12-RC-5729 and
ordering that Respondent recognize and bargain with the
Union as the representative of its employees in the bar-
gaining unit found appropriate in Case 12-RC-5729.
Respondent's meat department employees at its Sara-
sota, Florida, stores were not given the same benefits as
were given the nonmeat department employees because a
majority of them had not voted against a union. As pre-
viously indicated, regardless of the reasons for Respond-
ent's actions, that conduct is discrimination within the
meaning of Section 8(a)(1) and (3) of the Act and the
remedy will include an order to make whole the meat
department employees for any loss of wages, including
overtime pay, they may have suffered as a result of such
discrimination.
Upon the foregoing findings of fact and upon the
entire record in this proceeding, I make the following:
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that it cease and
desist therefrom; that it make the meat department em-
ployees whole for the loss they have sustained as a con-
sequence of the unlawful conduct by granting benefits to
the other employees and not to the meat department em-
ployees with interest computed as set forth in Isis Plumb-
ing & Heating Company, 138 NLRB 716 (1962), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). I shall also
recommend that, upon request, Respondent bargain col-
lectively with the above-named labor organization as the
exclusive representative of the employees in the appro-
priate unit concerning wages, hours, and other condi-
tions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
I. Great Scot of Florida, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Food & Commercial Workers International
Union, Local 1636, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interrogating an employee about the employees'
complaints and advising that the employees bring their
complaints directly to management, without need of a
union; by telling an employee that if the Union became
the employees' collective-bargaining representative Re-
spondent would cut the working hours of its employees;
by interrogating an employee about the employees' at-
tendance at a union meeting; and by threatening to close
its stores No. 620 and 630 if its employees selected the
Union as their bargaining representative through employ-
ee meetings, and correspondence, and posting of notices,
Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby is engaging in
unfair labor practices within the meaning of Section
8(a)(l) of the Act.
4. By granting employees at its stores No. 620 and 630
except for meat department employees time-and-one-half
for working on certain holidays and Sunday; by giving
pay raises to employees at its stores No. 620 and 630,
except for meat department employees, because a major-
ity of its employees in the bargaining unit described
below had voted against the Union in an election held by
the Board, Respondent has engaged in conduct preclud-
ing the holding of a fair rerun election among the em-
ployees in the unit described below, Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
5. All full-time and regular part-time employees em-
ployed by the Respondent at its stores located at 200
Lime Avenue, store No. 620 and 3700 Tamiami Trail
(store No. 630) Sarasota, Florida; excluding all meat de-
partment employees, guards and supervisors as defined in
the Act, constitutes a unit appropriate for collective bar-
gaining.
6. Since August 24, 1979, the Union by virtue of Sec-
tion 9(a) of the Act has been and is the exclusive repre-
sentative of employees in the unit described above for
the purpose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment.
7. Since August 27, 1979, Respondent has failed and
refused and continues to fail and refuse to recognize and
bargain with the Union as the exclusive collective-bar-
gaining representative of its employees in the unit de-
scribed above.
8. By the acts and conduct described in paragraph 7
above, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
9. The acts of Respondent described above constitute
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (5), and Section 2(6)
and (7) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER '
The Respondent, Great Scot of Florida, Inc., Sarasota,
Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
and desires.
(b) Interrogating employees about complaints and ad-
vising employees to bring their complaints directly to
management without need of a union.
I' 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.
GREAT SCOT OF FLORIDA 893
(c) Threatening to cut the working hours of its em-
ployees if the Union became the employees' collective-
bargaining representative.
(d) Threatening or impliedly threatening to close its
stores No. 620 and 630 if employees selected the Union
as their collective-bargaining representative.
(e) Granting employees in stores No. 620 and 630,
except for meat department employees, time-and-one-half
pay for working on certain holidays and giving said em-
ployees pay raises because a majority of those employees
voted against the Union in a Board-conducted election.
(f) Withholding benefits described above from its meat
department employees at said stores because the majority
of employees have not voted against United Food &
Commercial Workers International Union, District 282,
in a Board-conducted election.
(g) Refusing to bargain collectively with United Food
& Commercial Workers International Union, Local 1636,
AFL-CIO, as the exclusive bargaining representative of
its employees in the appropriate unit.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make its employees in the meat departments of
stores No. 620 and 630, whole, in the manner described
in the portion of this decision entitled, "The Remedy,"
for any losses suffered on or after November 21, 1979,
by virtue of the withholding of time-and-one-half pay for
working on certain holidays and Sunday, and pay raises
given to its nonmeat department employees on Decem-
ber 7, 1979.
(b) Upon request, bargain collectively with the above
labor organization as the exclusive representative of em-
ployees in the appropriate unit concerning wages, hours,
and other conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(c) Post at its stores in Sarasota, Florida, copies of the
attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that copies of said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
3. The election held on November 8, 1979, in Case 12-
RC-5729 is set aside.
12 In the event that this Order is enforced b a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relation, Board" shall read "Posted P'ursu-
ant to A Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
GREAT SCOT OF FLORIDA