Hannaford Bros. Co.

National Labor Relations Board - Board Decisions

Dec 18, 1957

119 N.L.R.B. 1100 (N.L.R.B. 1957)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The following employees of the Employer constitute a-unit appro-
priate for the purposes of collective bargaining within the,meaning of
Section 9 (b) of the Act:
All production and maintenance employees at the Employer's New
York City, New York, plant, excluding salesmen, office clerical em-
ployees, watchmen and guards, executives and supervisors as defined
in the Act.
[Text of Direction of Election 3 omitted from publication.]
and that it has since then represented the employees under the terms of the contract. By
its terms the contract provides for an initial 2-year fixed period , from 1952 to 1954, and
for 2 automatic biennial renewals thereafter until 1958 in the absence of written notice
by the Employer to terminate the agreement . The contract contains no provision for the
Union to end the contract . It does not appear that the Employer ever exercised its uni-
lateral privilege to terminate the contract. It thus appears that with respect to the union
party this is a binding contract for a full 6-year period, and with respect to the employer
party it is terminable at will at fixed times after the first 2-year period. However viewed,
either as a contract of unreasonable duration or as one terminable at will, it cannot bar
an election after its initial 2 -year term . Dryden Rubber Division, Sheller Manufacturing-
Corporation, 110 NLRB 1652 ; Rohm and Haas Company, 108 NLRB 1285 . Without
deciding, therefore, whether the Intervenor is in fact the successor in interest to the
contract , we find that the agreement does not bar the present election and we hereby deny
the Intervenor 's motion to dismiss.
3 As some of the employees have signed dues checkoff cards in favor of the Intervenor,
as the Employer has been dealing with officers of this Union , and in view of its colorable
contract claim, we shall accord the Intervenor a place on the ballot in this proceeding.
Hannaford Bros. Co. (T. R. Savage Division) and Truck Drivers,
Warehousemen and Helpers Local Union 340, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America 1
Hannaford Bros. Co. and Truck Drivers, Warehousemen and
Helpers Local Union 340, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America and
The Committee (Truck Drivers ), Party to the Contract and
The Committee (Warehousemen ), Party to the Contract. Cases,
Nos. 1-CA-2069 and 1-CA-2070. December 18, 1957
DECISION AND ORDER
On December 19, 1956, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not violated the Act in certain other respects.
1 Herein called the Union. The Board having been notified by the AFL-CIO that it
deems the Teamsters ' certificate of affiliation revoked by convention action, the identifica-
tion of the Union is hereby amended.
119 NLRB No. 105.
HANNAFORD BROS. CO. 1101
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
our decision herein.
1. In Case No. 1-CA-2070, the Trial Examiner found that Re-
spondent violated Section 8 (a) (2) and (1) of the Act by contribut-
ing financial and other support to the Truck Drivers Committee and
the Warehousemen Committee. In so finding, the Trial Examiner
relied essentially upon the circumstance that Respondent paid the
members of these committees for time spent at Committee meetings
on Committee business and that Respondent permitted the Commit-
tees to meet on company property.' We find ourselves in disagreement
with the findings of the Trial Examiner. In our opinion, the instances
of support cited by the Trial Examiner are not sufficient to constitute
financial or other support proscribed by Section 8 (a) (2) and (1)
of the Act.
Under the circumstances herein, we do not believe that Respondent's
action in allowing the Committees to conduct their business on com-
pany time or property was unlawful. In this connection we note par-
ticularly the following : At the time the Union represented the em-
ployees at the Portland, Maine, branch, Respondent had extended
similar privileges to the Union; although the Committees conducted
meetings on company premises, the Warehousemen Committee usually
confined its meetings to the scheduled coffee breaks,' while the Truck-
drivers Committee meetings were normally held after working hours,
when the drivers returned from their daily runs; s and the Committees
conducted their affairs independently of the Company and vigorously
represented the employees at bargaining negotiations.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers' in connection with this case to a three-member panel
[Chairman Leedom and Members Bean and Jenkins].
8 The . Trial Examiner also referred to the fact, as alleged in the complaint, that
Respondent had entered into new contracts with the Committees in February 1956. It is
clear, however, that unless Respondent's other conduct constituted illegal support to the
Committees, merely entering into new contracts would not constitute a violation of
Section 8 (a) (2) or (1) of the Act.
4 Occasionally, however, these meetings lasted a few minutes beyond these periods,
and 1 lasted about 20 minutes longer.
5 At one part of his Intermediate Report, the Trial Examiner inadvertently stated that
the meetings of the Committees "were on company property and usually on company
time." At a subsequent point of his report, however, the Trial Examiner correctly stated,
as we find, that "the meetings of the truckdrivers, though on company property, were as
usual not on company time."
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, we believe that the General Counsel has:
failed to establish that Respondent violated Section 8 (a) (2) and (1)
of the Act by its conduct in regard to the Committees. We shall,
therefore, dismiss the complaint in Case No. 1-CA-2070.6
2. The Trial Examiner found, in Case No. 1-CA-2069, that Respond-
ent on and after February 20, 1956, refused to recognize and bargain
with the Union as the exclusive representative of its employees work-
ing at its Bangor, Maine, warehouse, in the unit found appropriate in-.
our decision and direction of election (Case No. 1-RC-4366) ' and that
Respondent thereby violated Section 8 (a) (5) and (1) of the Act.
We agree. In this connection, we note that Respondent, in rejecting:
the Union's request to bargain on the ground that a combined unit
for its Portland and Bangor operations constituted the unit appro-
priate for purposes of collective bargaining, did not raise this question
in good faith. At virtually the same time that Respondent rejected'
the Union's request on the ground that a combined unit was appro-
priate, Respondent was engaged in negotiations with the Committees-
for the Portland employees only, and otherwise treated the Bangor-
warehouse as a separate unit. Neither did Respondent entertain a,
good-faith doubt that the Union enjoyed a majority status among the-
employees working at its Bangor branch. Instead, as fully recited
by the Trial Examiner, Respondent utilized the delay in negotiations
to embark upon a campaign to undermine the Union, interrogating the'
employees concerning their union activities, threatening them with,
reprisals for supporting the Union, and promising economic benefits,
to induce them to renounce the Union. Respondent thereby independ-
ently violated Section 8 (a) (1) of the Act.'
Upon the entire record in the case, and pursuant to Section 10 (c),
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the Respondent Hannaford Bros..
Co. (T. R. Savage Division), Bangor, Maine, its officers, agents, sue--
cessors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Truck Drivers, Ware-
housemen and Helpers Local Union 340, International Brotherhood;
8 Cf. Coppus Engineering Co., 115 NLRB 1387, setting aside 240 F. 2d (C. A. 1), where.
the Board , in finding that the employer violated Section 8 ( a) (2) of the Act , relied upon
the fact that , aside from suggesting the formation of a committee and permitting the
committee the use of company time and property as in the instant case, the employer did
the following : printed and distributed material for the committee ; hastily recognized'.
the committee as the employees ' representative , although demanding proof of the com-
peting labor organization ; and paid the members of the committee for time spent at
meetings held after working hours, as well as those during working hours.
7 No election has been held because of the pending unfair labor practice charges herein,-
' However, we do not adopt the Trial Examiner 's finding that the Respondent at a:
meeting of its Bangor employees suggested that they form a shop committee , and thereby
further violated Section 8 (a) (1). Upon the entire record as it concerns this meeting.
we are not satisfied that the Respondent there committed a further violation of the Act:.
HANNAFORD BROS. CO. 1103
of Teamsters, Chauffeurs, Warehousemen and Helpers of America as
the exclusive representative of all its employees working at its Bangor,
Maine, operations, in the unit herein found to be appropriate for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment.
(b) Interrogating the employees working at its Bangor, Maine,
operations, in an unlawful manner, concerning their membership in,
or activities on behalf of, the above-mentioned union, threatening to
discharge the employees, to close its operations in Bangor, Maine, or
to take other economic reprisals, if the above-mentioned Union were
successful, and promising economic benefits if the employees ceased
their activities on behalf of, and renounced, the above-mentioned
Union.
(c) In any other manner interfering with, restraining, or coercing
the employees working at its Bangor, Maine, operations, in the exer-
cise of the right of self-organization, to form labor organizations, to
join, or assist the above-mentioned labor organization or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-mentioned
Union as the exclusive representative of its employees working at
Bangor, Maine, in the appropriate unit, and embody in a signed agree-
ment any understanding reached.
(b) Post at its Bangor, Maine, operations, copies of the notice at-
tached hereto marked "Appendix." 9 Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, this notice shall be amended by. substituting for the words "Pursuant to a
Decision and, Order," the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Decision and Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 1-CA-2070
be, and it hereby is, dismissed, in its entirety, and that the complaint in
Case No. 1-CA-2069, be, and it hereby is, dismissed, insofar as it
alleges that the Respondent has violated the Act otherwise than as
found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that :
WE WILL bargain upon request with Truck Drivers, Warehouse-
men and Helpers Local Union 340, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of all employees in the bargaining
unit described herein for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other
conditions of employment, and embody in a signed agreement any
understanding reached. The bargaining unit is:
All warehousemen, truckdrivers, and helpers employed at
our Bangor, Maine, operations, excluding office clerical em-
ployees, salesmen, guards, professional employees, the plant
manager, and all other supervisors as defined in the Act.
WE WILL NOT interrogate our employees, in an unlawful manner,
concerning their membership in, or activities on behalf of, Truck
Drivers, Warehousemen and Helpers Local Union 340, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, threaten to discharge our employees, to close
our operations in Bangor, Maine, or to take other economic re-
prisals if the above-mentioned Union is successful, or promise
economic benefits if our employees cease their activity on behalf of,
and renounce, the above-mentioned Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist Truck Drivers,
Warehousemen and Helpers Local Union 340, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
HANNAFORD BROS. CO. 1105
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
HANNAFORD BROS. CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations Act
as amended (61 Stat. 136), was heard in Portland and in Bangor, Maine, on various
dates from August 7 to August 23, 1956, pursuant to due notice. Separate com-
plaints were issued on July 6, 1956, by the General Counsel of the National Labor
Relations Board, ' based on charges duly served and filed, and on the same date the
cases were consolidated by order of the Regional Director.
In Case No. 1-CA-2069, which involved the T. R. Savage Division at Bangor, the
complaint alleged in substance that Respondent had engaged in unfair labor prac-
tices proscribed by Section 8 (a) (1), (3 ), and (5 ) of the Act by refusing on or
about February 20, 1956, and since, to bargain with the Union as the representa-
tive of a majority of Respondent ' s employees in an appropriate unit; by stopping,
on or about April 1, the payment of a bonus to truckdrivers because of their union
membership and activities ; and by committing various other specified acts of inter-
ference, restraint , and coercion from September 1955 to April 1956.
In Case No. 1-CA-2070, which involved Respondent 's operations at Portland,
the complaint, as amended at the hearing , alleged that Respondent had engaged in
the following unfair labor practices proscribed by Section 8 (a) (1) and (2):
1. Respondent had in August 1948, formed, sponsored and promoted, and
since August 18, 1955, has assisted, dominated , contributed to the support of,
and interfered with the administration of the Truck Drivers Committee and
the Warehouse Committee by:
(a) granting financial assistance to said Committees by paying the mem-
bers for time spent on Committee business and meetings;
(b) allowing the said Committees the use of plant facilities for meet-
ings in both Portland and Bangor; and
(c) permitting and allowing supervisory employee David Foster to par-
ticipate in the business of the Warehouse Committee on Company time
and property.
2. Respondent , on or about February 13, 1956, modified its existing contracts
and/or entered into new contracts with the Committees , thereby interfering
with, restraining , and coercing its employees in the exercise of rights guaranteed
by the Act.
By its separate answers filed on July 17, Respondent denied all allegations of un-
fair labor practices.
All parties ( except the Truck Drivers Committee ) were represented at the hearing
by counsel or by other representatives , were afforded full opportunity to be heard,
to examine and cross-examine witnesses , to introduce relevant evidence , to argue
1 The General Counsel and his representative at the hearing are referred to herein as
the General Counsel, and the National Labor Relations Board as the Board. Respondent
Company is referred to as Respondent and as Company , and the Charging Party as the
Union and as Local 340 . The two Committees , parties in Case No. 1-CA-2070, are
referred to as Truck Drivers Committee and Warehouse Committee , respectively.
476321-58-vol . 119-71
1106 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
orally, and to file briefs and proposed findings and conclusions . Oral argument was
waived. Briefs have been filed by General Counsel and the Respondent.2
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Maine corporation, with its principal office and place of business
in Portland and a branch or division at Bangor , is engaged in the sale and distribu-
tion of groceries, fruits, meats, and related products. Its annual purchases exceed
$20,000,000 in value, of which approximately 50 percent is shipped to it from extra-
state points. Its annual shipments to extrastate points equal approximately $2,000,000
in value.
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 340, the Truck Drivers Committee, and the Warehouse Committee are all
labor organizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and background; the representation proceedings
Respondent is a wholesale distributor operating in Portland and the surrounding
area. In October 1955 it acquired the assets and business of T. R. Savage Company
of Bangor, and has since operated that business as a branch or division under the
immediate management of Boutelle Savage, formerly with the Savage Company.
Respondent's president is Stewart M. Taylor,3 but Walter F. Whittier, treasurer, has
been in charge of labor relations, and Respondent has been represented in such mat-
ters by its counsel, Mayo S. Levenson. Whittier and Levenson played a prominent
part in the events which are of chief significance herein, as to a lesser extent did
Wallace Sellick, manager of the Portland warehouse.
There was no background of collective bargaining at Bangor, but at Portland the
history of collective bargaining went back several years. Local 340 had represented
the truckdrivers and warehousemen for 1 year, from 1947 to 1948, under collective-
bargaining agreements with Respondent. In 1948, the Union filed representation peti-
tions in separate units (Cases Nos. 1-RC-271 and 1-RC-272), elections were di-
rected by the Board after a hearing (78 NLRB 869) and were held on August 30,
resulting in the defeat of the Union. The General Counsel offered evidence, con-
troverted by Respondent, that shortly before and after those elections, Respondent
had suggested to its employees that they form their own committees to deal with it.
In any event, the truckdrivers and the warehousemen did elect separate committees,
and Respondent has recognized and dealt with those committees since Septem-
ber 1948.
In June 1955 the Union filed a petition covering the warehousemen at Portland
(Case No. 1-RC-4069), and again lost in a consent election conducted by the
Regional Director.
On January 16, 1956, the Union filed a petition covering a single unit of truck-
drivers and warehousemen at Bangor (Case No. 1-RC-4366).4 A hearing was held
on January 27, February 6, and February 16; and on April 12, the Board issued its
Decision and Direction of Election. In the meantime the Union had filed its origi-
nal charges herein on February 17. On July 6, the Board entered its order per-
mitting the withdrawal of the Union's petition in Case No. l-RC-4366, with prej-
2 The complete record was not received in this case until November 13, and briefs were
not filed until November 26.
Respondent 's motion to dismiss the complaint , on which ruling was reserved at the
hearing, is hereby denied except as to certain allegations as hereinafter set forth.
.3 Not to be confused with Stewart G. (Glenn) Taylor, a witness for Respondent who
testified at Bangor.
*A similar petition, naming the employer as T. R. Savage Co. (1-RC-4355) was filed
on - January 9, 1956, but was later withdrawn by the Union (not reported in printed
volumes of Board Decisions and Orders).
HANNAFORD BROS. CO. 1107
udice, and on the same date the Regional Director issued the complaints herein,
based on the Union's charges of unfair labor practices.
The acts which are charged as unfair labor practices in both cases occurred after
the acquisition of the Savage Division in October 1955. However, the General
Counsel offered a great deal of evidence concerning the formation of the Committees
in 1948, and Respondent's subsequent dealings with them, to support his contentiom
that the Committees were, and continued to be, dominated and assisted organizations
at the time of the occurrences which he contends constituted unfair labor practices.
The evidence was received as relevant to the issues concerning Respondent's alleged
assistance to, and domination of, the Committees since August 18, 1955-a date 6
months prior to the filing of the original charges .5
The evidence concerning the two cases is in part interrelated, and the Portland
situation formed as well the backdrop against which the Bangor events are to be
viewed. For the latter reason the evidence which directly concerns the Portland case
will be first summarized. The complaint in that case is confined to alleged assistance,
support, and domination of the Committees; the sharpest issues, both factual and
legal, concerned the question of domination, as contrasted with assistance and
support on which the evidence is not greatly in conflict.
B. Case No. 1-CA-2070-Portland
1. The formation and functioning of the Committees
The Committees were formed in September 1948, shortly after Local 340 had
lost the elections on August 30. As the events had occurred a full 8 years prior to
the hearing, it is understandable why the testimony on both sides was at best uncer-
tain and unsatisfactory, being based on recollections which were naturally dim and
hazy as to so remote a period. The end result was a confused record as to many
of the early happenings; and it is impossible to reconcile the conflicting testimony
as to what particular meetings were held and when, what group was in attendance,
who was present from management, and who spoke.
Joachim Arsenault testified for the General Counsel that prior to the election
Levenson had stated, in addressing a meeting in Respondent's lunchroom, that if the
employees rejected the Union they could organize their own shop committee and
the Company would bargain with it. That testimony was contradicted by three wit-
nesses for Respondent (Levenson, Whittier, and Phillip Lawson) and by Elmer T.
Welch (called adversely by the General Counsel) on cross-examination by Respond-
ent. Though credibility is not to be resolved on the basis of mere numbers, a
weighty consideration here is that the General Counsel failed to call any corrobora-
tive witnesses from among the persons who attended the meeting. It is also reason-
able to assume that if Levenson had made the bald statements which Arsenault
attributed to him under the circumstances testified to in the midst of an election
campaign , the Union would either have contested the election or have filed unfair
labor practice charges. In any event, the mutually corroborative testimony of
Respondent's witnesses is credited over Arsenault's unsupported testimony.
Arsenault also testified that a week or 10 days after the election, Whittier and
Taylor addressed a meeting of warehousemen during which Taylor congratulated
the men on not having selected the Union, and Whittier stated that the employees
should select a committee and Respondent would bargain with it.6 Robert Powell
gave testimony which apparently related to that meeting, but which was much vaguer
in content and detail. Thus, Powell was unable to state who had attended from
management , but testified that someone from management said something about
6 Though under Section 10 (b), no findings can be based on any unfair labor practices
occurring more than 6 months prior to the filing of the original charges, yet evidence of
prior events is admissible where relevant as background for the evaluation of events
within the period. N. L. R. B. v. National Shoes, Inc., 208 F. 2d 688, 692 (C. A. 2).
And see Federal Trade Commission v. Cement Institute, 333 U. S. 683, 704-705. Here,
the evidence concerning the inception of the Committees and the manner of their earlier
functioning had an obvious bearing upon the question of how they were functioning on
and after August 18, 1955. N. L. R. B. v. Sharples Chemical Co., 209 F. 2d 645, 653
(C. A. 6).
$ Arsenault gave further testimony on redirect examination concerning his demotion by
Taylor in 1951 or 1952, because he had served as the Union's observer. In 1948: Though
that testimony Is credited in the absence of denial by Taylor, it has no direct bearing on
the unfair labor practices charged in the complaint, being relevant only on the question
of Respondent's animus against the Union.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
electing a committee to represent the working men in bargaining with the Company.
Warren H. Shorey testified about a similar meeting of the truckdrivers at which
Taylor spoke briefly and at which Whittier requested that they form a committee
to negotiate with the Company.
The foregoing testimony was again refuted by Levenson, Whittier, Lawson, and
Welch, all of whom denied that Whittier had made the statements attributed to him.
Levenson, who had the clearest recollection of the events, testified that Taylor had
insisted on calling the meeting to express his thanks to the employees for rejecting
the Union, that only warehousemen were present, though there may have been a
sprinkling of truckdrivers in the crowd, that Taylor was the only one who spoke,
and that Whittier was not present. Levenson testified further that he interrupted
Taylor at one point when someone from the audience inquired, "What if we form
our own committee?" and that he replied that that was a matter which the Company
was forbidden to direct or suggest or to have any part of. Lawson and Welch both
gave testimony which corroborated Levenson in these respects, though Welch placed
the latter incident at the preelection meeting.?
Levenson's testimony is credited that the suggestion that an employee committee
be formed emanated from an employee in the audience and that he responded in
the manner to which he testified. I credit in turn the denials by Respondent's four
witnesses that Walter Whittier made the suggestion. It is accordingly found, con-
trary to the allegations of the complaint, that Respondent did not initiate or form
or sponsor the formation of the Committees.
There is no dispute, however, that both Committees were formed shortly after the
Taylor speech, that this was done on company property, and in the case of the
warehousemen at least, on company time. The truckdrivers simply elected three
of their number to serve as a committee, whereas in the warehouse each department
elected a member to represent it on the committee. The elections were made by
secret ballot, and there is no evidence that any supervisor or representative of man-
agement was present. There was no balloting by which the employees voted for the
committee form of representation as such.
The Committees asked for and were accorded immediate recognition, without
offer to prove a majority and without inquiry on that score from Respondent. Nego-
tiations were entered into, with Respondent's old contracts with Local 340 serving
as the base,8 and contracts were arrived at dated September 17 for the warehouse-
men and September 22 for the truckdrivers. Both contracts provided for a 1-year
term to expire August 30, 1949, but also provided that they should continue in effect
"from year to year thereafter, unless written notice of desire to change or modify
the Agreement is served by either party hereto sixty (60) days prior to the annual
date of expiration."
There is also scant dispute either as to the manner in which the Committees
existed and functioned or as to the various types of assistance and support which
Respondent extended to them. There was no formal organization of any kind, no
officers save a chairman, no constitution and no bylaws, no records, no treasury
or other assets of any kind, no membership cards nor other authorizations to the
Committees, no provision for membership dues or fees, and no qualification for
serving on the Committees save employment by Respondent. There were no regu-
lar meetings or elections held either among the employees or among the Committee
members themselves. Such meetings as were held among employees were on ce•m-
pany property and usually on company time, as were most of the meetings of
Committee members themselves. In fact the Committee members were permitted
freely to conduct Committee business on company time and property. Elections
to the Committee were for no designated term, and successors were chosen only
when Committee members resigned or left Respondent's employ.
The evidence indicates that negotiations for contract changes were usually opened
by Respondent and for the purpose of considering benefits which Respondent pro-
7 There was testimony in the record that a nonsupervisory employee also named
Whittier was working for Respondent at the time. It is possible that the inquiries about
which Levenson, Lawson, and Welch testified may have been made by that Whittier and
that faulty recollection of the remote events led the General Counsel's witnesses errone-
ously to attribute the suggestion of an employee committee to Walter Whittier. Though
speculative, such an assumption would go far toward reconciling much of the testimony
concerning Whittier's alleged suggestion, including the conflicting testimony as to whether
he was in fact present.
B Shorey's testimony that certain negotiation meetings were held at the Falmouth Hotel
was overborne by Respondent's evidence that the hotel meetings consisted of safety dinners
for the truckdrivers,
HANNAFORD BROS. CO. 1109
posed to install. There were certain aspects of the negotiations however, which
militated strongly against the General Counsel's claim of domination. Thus the
evidence disclosed that actual negotiation meetings were held and that they were not
mere cut-and-dried affairs held to procure rubber-stamp approval of the Company's
offer. And though the Committees held no formal meetings with the employees
to ascertain their desires for contract changes, they checked informally with the
employees as to their desires, apprised them of the Company's offers, and held meet-
ings during which the employees voted acceptance or approval by majority vote.
In some instances the employees suggested counterproposals which the Committees
submitted to management. Shorey testified, for example, that in 1950, he and the
other members of the Truck Drivers Committee resigned during negotiations con-
cerning the Company's proposed hospitalization insurance plan in protest of the
Company's failure to grant in lieu thereof a 5-cent wage increase which the drivers
preferred. The drivers then elected a successor Committee which later accepted
the company plan. There was also undenied testimony that on one occasion during
negotiations Lawson, a member of the Warehouse Committee, threatened to attack
Taylor, and had to be restrained.
2. Functioning of the Committees since August 18, 1955
The evidence concerning the statutory period may be briefly and adequately sum-
marized in the finding, here made, that the Committees continued to exist and to
function as before, and that Respondent continued to extend the same kind of assist-
ance and support. Thus Welch expressly admitted that he was paid for all his time
spent on Committee business on company property at Portland, and that he had
conducted such business on company time in September, October, and November
1955. The evidence also established that both employees and Committee members
were paid for at least part of the time 9 spent in meeting and in considering and ap-
proving certain proposals which culminated in the negotiation of new contracts in
February 1956 (to be later more fully adverted to). Additional evidence concern-
ing a meeting at Bangor will be summarized here since the complaint in Case No.
1-CA-2070 specifically charges that Respondent gave assistance to the Committees
at that meeting.
a. The Bangor meeting-October 1955
The Bangor meeting was called by Respondent shortly after the acquisition of
the Savage Company so that the employees might meet the officials of their new em-
ployer. Some of the clerical employees at Portland requested, and were allowed,
permission to attend, as did the members of both the Warehouse and Truck Drivers
Committees. Transportation to and from Bangor was furnished by Respondent
to Committee members without charge. Welch, for example, rode up with Levenson
and returned with Whittier. The Committee members also partook of the dinner
which preceded the meeting.
Though considerable testimony was offered concerning the events at the meeting,
the facts which are relevant to the allegations of the complaint may be briefly sum-
marized. There was general agreement that Levenson, among other things, in-
formed the employees that the warehousemen and truckdrivers in Portland were
represented by shop committees and that the Company had a contract with those
Committees, which he exhibited and which he stated could be inspected. Levenson
also stated that the Company proposed to equalize the wages and working condi-
tions in general with those in Portland, and he made specific reference to a number
of benefits which would be extended to Bangor. He also introduced the several
members of the Committees, but none of them spoke.
What is sharply disputed is whether Levenson expressly suggested that the em-
ployees should elect their own representatives to serve with the Portland Commit-
tees. That conflict is resolved by accepting and crediting Whittier's testimony in
which he acknowledged as substantially correct his previous sworn testimony on
the point given in February during the representation hearing. That testimony,
which covered several pages, was best summarized by Whittier himself in the
following answer:
They were informed of the existence of a contract. They were informed that
there were rights under that contract. They were informed that there were
representatives of the shop committee there who were identified. And. they
6 The evidence showed that meetings between the Committees and the employees usually
began during coffee break, but ran over into working time.
1110, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were informed that they had the privilege of electing representatives, if they so
wished, of electing representatives to join with that shop committee.
Whittier added at a subsequent point:
It was our belief that they naturally would join with the Portland group.
Though this did not add up to an express suggestion that the employees elect a
Committee representative, the meeting was so staged and handled, and the matter of
Company-Committee-employee relationships was so presented, that the suggestion
was implicit from the entire arrangement . Furthermore , though the Committee
members took no active part in the meeting as such, they were alert to the oppor-
tunities which had been made available to them. Thus Welch testified that either
before or after the meeting 2 men (1 of whom he learned later was Omar Wright,
warehouse manager) questioned him about the Warehouse Committee and about
whether the Bangor employees could be represented by it. Welch informed them
that it was up to them , that they could elect two members and send their names in to
Mr. Pheneuf (Respondent's office manager at Portland). Welch also volunteered
to send them a copy of the contract; and he testified that he did so after returning
to Portland, though he was unable to recall how he addressed the envelope, other
than to the T. R. Savage Company.
Though Respondent's efforts were without fruition (see section C, infra) the evi-
dence shows that the equalizing benefits were granted as promised, thus establishing,
as Respondent contends , that they were not conditioned in any manner upon the
employees' acceptance of Committee representation.
b. The February negotiations; the new contracts
Though the Warehouse Committee had requested a 15-cent wage increase in
October or November 1955, no answer was given by the Company and no negotia-
tions were held until sometime in February 1956, and then at the instance of the
Company. Welch testified that the negotiations occurred around February 8 or
12, and Whittier's testimony was in general accord.10 The Company offered 121/2
cents per hour, stating that was all it could offer. There was no reference to the
Committee's earlier request for a 15-cent raise, though Welch testified that he in-
formed Whittier the Committee would like to have 20 cents instead of 121 cents.
The evidence showed that the Committees apprised the employees of the Company's
offer and that they held meetings at which the employees voted in favor of accepting
it, Contracts were actually signed on February 17, to be effective on February 20,
except that the wage increase was not to take effect until February 27.11 On February
22 the Warehouse Committee held a further meeting of the employees, during which
the provisions of the signed contract were read and discussed. This, as well as the
former meeting, was held on company time and property. However, the meetings of
the truckdrivers, though on company property, were as usual not on company time.
Though not specifically pleaded as a form of assistance, there was also testimony
by some of the General Counsel's witnesses that Warren Brown, a warehouse fore-
man at Portland, was present during both meetings of the warehouse employees.
Respondent's evidence, however, established conclusively that Brown was in Bangor
at the time of the first meeting. The second meeting had begun during a coffee
break, and was held in a lunchroom where both employees and supervisors custom-
arily went for coffee and doughnuts. The evidence showed also that Brown's duties
required him occasionally to enter the room to assemble grocery orders. Brown testi-
fied that he went into the room for coffee and doughnuts and that he may also have
gone in and out in getting up orders, but he denied that he was present during the
reading of the contract. That testimony received some corroboration from Llewellyn
Swett, a witness for the General Counsel, who testified only that Brown was in and
out" of the department at the time. Brown's testimony is credited and it is found
that he was not present and did not participate in the meeting.
One negative facet of the February negotiations remains which is of relevance to
the refusal-to-bargain issue in Case No. 1-CA-2069. Welch testified that there was
no reference to the Bangor employees during those negotiations, that no question
was raised by or with management concerning whether the increase was to apply to
10 Whittier 's testimony at the representation hearing on February 16, indicated that the
negotiations were concluded earlier that week, i. c., around February 13 or 14.
The amount of the increase was dictated in part by the necessity of meeting the
minimum wage prescribed by an amendment to the Fair Labor Standards Act, which was
to take effect March 1. The increase to truckdrivers was only 10 cents, since they had
received a 2y_,-cent raise in October to equalize with the rates at Bangor.
HANNAFORD BROS . CO. 1111
the Bangor employees, and that there was no discussion of .the matter among the
Committee members themselves or with the Portland employees. This matter will
be more fully adverted to in section C, 3, b, infra.
3. Concluding findings
The foregoing evidence plainly establishes, and I find, that Respondent has, as
alleged in the complaint, assisted, contributed to the support of, and interfered with
the administration of the Committees by granting financial assistance to the said
Committees by paying employees and Committee members for time spent on Com-
mittee business and meetings,12 and by allowing the said Committees the use of plant
facilities for meetings in both Portland and Bangor, and that Respondent, by entering
into new contracts with the Committees in February 1956, further interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed by the
Act. Coppus Engineering Corp., supra; Corson Manufacturing Co., 112 NLRB 323.
It is further found that the General Counsel failed to establish that David Foster
was a supervisory employee at the time of his participation in the affairs of the
Warehouse Committee, and also failed to establish that Warren Brown was present
or participated in the February meetings of that Committee.
Though Respondent attempted to defend the showing of assistance and support
by general testimony that Local 340 had enjoyed some of the privileges during the
period of its incumbency and that the Company had agreed to give the Committees
all benefits which that Union had enjoyed,13 it does not constitute a defense to a
current unfair labor practice to infer or show that the conduct complained of is
only a continuation of practices which may have constituted an unfair labor practice
in the past. Furthermore, the evidence is undisputed that the Committees possessed
many of the indicia of company-assisted unions which are not normally found in
affiliated locals and which were not here attributed to Local 340 during the period
of its incumbency.
When we turn to the question of domination, however, it cannot be found that
the General Counsel has established by a preponderance of the evidence that Respond-
ent in fact dominated the Committees. The earlier finding that Respondent did
not initiate, form, or sponsor the Committees weighs heavily in the scales against
the General Counsel's claim. And though no case has been cited where domination
has been found in the absence of that factor (and I am aware of none),14 it is unnec-
essary to rest the negative finding on such absence here, since the record discloses
other supporting indicia. These include the holding of actual negotiation meetings,
the execution of formal, written contracts, the approval of those contracts by
majority vote of the employees, the resignation of the Truck Drivers Committee in
1950, following their failure to negotiate Respondent's acceptance of the employees'
counterproposal, and the threatened fisticuffs during the 1949 negotiation meeting
between the Company and the Warehouse Committee.
It is therefore concluded and found, on the basis of the entire evidence, that the
General Counsel failed to establish the allegation of domination.
C. Case No. 1-CA-2069-Bangor
The complaint in this case charged a refusal to bargain on or about February 20,
1956, a discriminatory termination of a bonus to truckdrivers around April 1, and
various acts of interference, restraint, and coercion from September 1955 to April
1956. These subjects will be covered in inverse order.
1. Interference, restraint, and coercion
The first allegation was that Respondent had, through its agent and attorney, sug-
gested to its employees the formation of a shop committee. The evidence which is
-in view of the proviso to Section 8 (a) (2), the foregoing finding is not based on any
payment to members of the Committees for time spent during regular working hours in
meetings with management. Axetson Manufacturing Company, 88 NLRB 761, 776;
Coppus Engineering Corporation, 115 NLRB 1387, at footnote 9 of Intermediate Report.
13 Significantly, the single privilege granted in the contracts was the use of a bulletin
board "for the posting of notices of mutual interest."
1¢ The law on the subject has been recently and exhaustively reviewed in such cases as
Corson Manufacturing Co., and Coppus Engineering Corporation, supra, to which refer-
ence is here made.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relevant to that allegation has been summarized under section B, 2, a, supra.15 As
there found, though Levenson did not expressly suggest that the employees form a
shop committee, the meeting was so arranged, staged, and handled that the sugges-
tion was implicit from all the circumstances. The consequent interference with and
restraint of the employees in their right freely to select representatives of their
own choosing as guaranteed by Section 7, was as clearly calculated as if the suggestion
had been made directly.
Other allegations concerned instances of interrogation, threats, and promises by
Wallace Sellick (manager of the Portland warehouse), Omar Wright (manager of
the Bangor warehouse), and Glenn (Stewart G.) Taylor (a supervisor at Bangor),
most of which involved Sellick. Thus, seven witnesses for the General Counsel
(Earl L. Elsemore, Paul Veinote, Robert L. Adams, Arthur Dinsmore, Roy J. Brans-
combe, Melzar W. McGlaughlin, and Marshall B. Graham) attributed to Sellick a
number of coercive statements made to them on various occasions at Banger from
late January to April 17, 1956. According to their testimony, most of such state-
ments were made to the witnesses singly, though on 2 occasions Elsemore and Veinote
were together, and on 1, Adams and Dinsmore were together. All seven attributed
to Sellick statements which were to the substantial effect that if the Union should
come into the Bangor warehouse, Respondent would close it and would operate
out of Portland.
Graham testified that in the same conversation in which Sellick made the threat
to close the Bangor warehouse he had also stated that if the employees would drop
what they were carrying on, he would pay the same as at Portland.
Elsemore and Veinote testified that about a week after the February layoff (which
was around February 15), Sellick called them into the produce department, asked
them if they knew that the Portland employees would receive a raise effective March
1, and stated that it was too bad that the Bangor employees could not get their raise
also, but that it would be an unfair labor practice to give it. He concluded by stating
that, "If you fellows get together and get up a paper saying you didn't want a union
and send it to the union, we could get this trouble straightened out." 76
Branscombe testified that about a week after the February layoff Sellick told him
that, "It would be to bad if the union came in because the older men would have to
get through such as Nels Nelson, Arthur Dinsmore and-. . . you are not so young
yourself." Dinsmore testified to a similar statement which Sellick made to him on
April 17, i. e., "If the union does come in we'll have to lay you and Nelson off
because you're getting too old and slow and there is nothing the union can do
about it." 17
Sellick admitted that he had many conversations with the Bangor employees, but
he denied that the content was such as testified to by the above witnesses. As to the
closing of the warehouse, he testified that rumors were circulating in February of an
impending strike and that Elsemore and Veinote asked him whether if there were a
strike and picketing the warehouse would be closed, and that he told them that it
would not, and that Respondent would operate the plant, if possible, and haul out of
Portland. Sellick also denied mentioning the subject of the Portland raise until
after March 1, and testified that after that date he was questioned about it by a number
of the Bangor employees. He testified that after checking with Levenson he
informed the employees they would not be given a raise because it would be "an
unfair labor charge" to do so in view of the pending election proceedings. He
denied telling Elsemore that if he got up a petition and got rid of the Union he
would be given a raise. He also denied the statements attributed to him by Dins-
is Following the October meeting , there were no developments of note until after the
Union filed its representation petitions in January . Though the General Counsel offered
evidence that Levenson made a trip to Bangor shortly thereafter and that he made an
antiunion speech to the employees , there is no allegation of an unfair labor practice
based thereon.
19 Veinote testified that Vernon Toothaker later prepared a petition which he only
glanced at . The General Counsel offered what purported to be the Toothaker petition,
but it was rejected for lack of adequate identification.
17 Another witness , Thomas N. Kenney, testified to a conversation with Sellick in
January or February during which Sellick had made a casual inquiry about whether the
witness was affiliated with a union and had mentioned the fact that he himself was a
merchant seaman. Kenney's testimony , which was substantially admitted by Sellick,
showed that the conversation was innocuous and not of a coercive character.
HANNAFORD BROS. CO. 1113
more,18 but made no specific reference to testimony given by Branscombe , Graham,
or Adams.
The testimony of the General Counsel 's witnesses, much of which was cumulative
and mutually corroborative , is accepted and credited ; it clearly outweighs Sellick's
uncorroborated testimony . Sellick's threats that Respondent would close the Bangor
warehouse if the Union came in and that the older men would be laid off were
obviously coercive and violative of the Act . Similarly , his promises of a wage raise,
made in relation to the union activity and the pending representation proceedings,
including his suggestion that the raise could be arranged by a petition to renounce
the Union , constituted interference , restraint , and coercion within the meaning of
the Act. For " interference is no less interference because it is accomplished through
allurements rather than coercion.. " Joy Silk Mills, Inc. v. N. L. R. B ., 185 F.
2d 732, 739 ( C. A., D. C. ), and cases there cited.
Statements attributed to Wright and Taylor were few and far less serious. Edwin
Barnet testified that in late April he asked Wright why he had not received his quar-
terly safety bonus and that Wright replied that as far as he knew it was on account
of the labor dispute between the Union and the Company . McGlaughlin testified
that about 3 weeks before the hearing in this case he had spoken to Wright about
the safety bonus and that Wright replied, "Unfair labor act. They couldn't pay it."
Ronald P. Nason testified that about a week after the February layoff at a time when
rumors were going around that if the Union got in the warehouse would be closed
and the Company would operate out of Portland, he inquired of Wright if Wright
thought the Company would close down the warehouse if the Union came in and
Wright replied, "Yes , I think they can. They can operate out of Portland just as
easy."
Wright denied making the statement concerning the bonus and testified that he
did not in fact know why the bonus was discontinued . He testified further that he
had answered Nason's inquiry in the negative , but that Nason inquired further what
effect a strike or a picket line might have on the Bangor warehouse and that he re-
plied that the Company would then have no alternative but to operate out of Portland.
The Barnet-McGlaughlin testimony is accepted , being to an extent corroborative
and cumulative in that both testified to statements by Wright which were to sub-
stantially similar effect . 19 But what their testimony shows is that in response to their
inquiries , Wright simply expressed his opinion , in inartificial language, that it would
constitute an unfair labor practice to pay the bonus during the pendency of the
representation proceedings . That apparently was no more than his attempt to put
in his own words the reason which the Company had given in a letter written to the
employees on April 16 (see footnote 20, infra ), that it was impossible to make
adjustments at Bangor during the union activities because, "To have done so might
well have subjected the Company to an unfair labor charge ." It is concluded, there-
fore , that Wright 's statements were not of coercive effect.
Nason's testimony as to Wright 's statements is to be appraised in the light of
Sellick's contemporaneous course of conduct, particularly his repeated threats that
the warehouse would be closed if the Union came in. Nason apparently was seeking
confirmation of rumors which may well have been inspired by Sellick's very threats.
Wright admitted Nason's inquiry and admitted answering it, but gave , significantly,
the same explanation as had Sellick , i. e., that his reference to the closing of the
warehouse was related to the possibility of a strike or a picket line. That explana-
tion , discredited in Sellick's case , is here also discredited ; and it is found that Wright
in fact stated , as had Sellick on numerous occasions , that the Bangor warehouse
"Dinsmore had fixed the date of one of such statements rather positively as April 17
Sellick denied that he was in Bangor on that date and produced an expense voucher which
appeared to corroborate him. He admitted , however, that he could have been in Bangor
on the 3 . 6th. It is concluded that Dinsmore was mistaken in fixing the date positively
as the 17th.
There was also an inference from Sellick 's testimony that he could not have discussed
the Portland raise until after -larch 1, because it did not go into effect until that date.
However , the raise had been negotiated prior to February 16, and the new contracts were
actually signed on February 17. Furthermore the record in the representation case shows
that those negotiations were referred to at the hearing on February 16, at which Nason
appeared and testified.
19 Wright ' s denial that lie knew the reason why the bonus was stopped seemed confirmed,
however , by Barnet 's testimony , as well as by that of Whittier , Levenson , and Savage
(see section 2, infra ), which showed that Wright was not privy to the councils which made
the decision.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be closed if the Union came in and that the Company would operate out of
Portland.
Veinote testified that a couple of days after the February 15 layoff Glenn Taylor,
who was his foreman, approached him, pointed to a Local 340 button and badge
which Veinote was wearing and stated, "Why don't you take them things off? .
I'll take up a collection of them.... Stop acting so foolish. You fellows like to
work here." Taylor admitted that he had seen Veinote wearing a union button but
denied making such statements as Veinote testified to. Veinote's testimony, which
was corroborated in other aspects by other witnesses for the General Counsel as
above found, is credited, and it is found that Taylor made the statement in question.
It is also found, in the light of Sellick's contemporaneous course of conduct in the
warehouse as set forth above, that Taylor's statements constituted interference,
restraint, and coercion within the meaning of the Act.
2. The safety bonus to truckdrivers
Respondent had had in effect at Portland for some 4 years a drivers' safety bonus
which was payable quarterly to truckdrivers who had no avoidable accidents. At
the October meeting at Bangor, Levenson had referred to that bonus as one of the
benefits which would be granted in equalizing conditions with those at Portland.
Savage testified that actually the bonus was made retroactive for the third quarter,
the first payment being made shortly after the merger to drivers who qualified. The
second and last bonus was paid in January, or later, for the fourth quarter of 1955.
There is no dispute under the evidence that Respondent thereafter discontinued the
payments at Bangor without notice or explanation to the employees.
The complaint alleged that the bonus was stopped because of the union activities
at Bangor, and assigned the act as a violation both of Section 8 (a) (3) and Section
8 (a) (1). The General Counsel offered only the testimony of Barnet and Mc-
Glaughlin concerning Wright's statements, as summarized in the preceding section.
As there found, Wright was simply stating his opinion that it would constitute an
unfair labor practice to pay the bonus during the pendency of the election proceeding.
Wright in fact denied knowing why the bonus was stopped, and Respondent offered
evidence which showed that Wright had nothing to do with the discontinuance.
That evidence showed that the decision was made by Whittier, acting on Levenson's
advice, and that it resulted from complaints by Portland drivers that the Bangor
drivers were enjoying an unfair advantage through payments for their meals while
on the road, contrary to the custom at Portland.
Levenson testified that the Bangor custom was unknown to Respondent at the
time the bonus plan was extended to that division, and he explained in some detail
his reasons for recommending discontinuance of the bonus there. It would have
been too expensive, he testified, to equalize by paying for meals at Portland and he
feared repercussions if he discontinued the long-standing custom at Bangor. He felt
that less danger was involved in taking away the bonus, which had been in effect
for only a short time, and that the meals' allowance at Bangor would balance off
against the bonus at Portland. Levenson also testified that the failure to notify the
employees emanated from fear of a strike and from his attempt to seek the easiest
way out of a difficult situation, and that though feeling that the bonus would even-
tually have to be explained,20 he was, in effect, seeking to temporize pending the out-
come of the election.
There is no evidence that the problem did not in fact arise as testified to by Leven-
son, Whittier, and Savage; and, of course, it is immaterial whether Levenson's choice
of methods for resolving the problem was wise or unwise, so long as discriminatory
considerations did not motivate the selection of the method which was chosen. The
evidence does not establish that there were any. Though the failure to notify the
employees was a suspicious circumstance concerning which Levenson's explanations
were not entirely persuasive, suspicion is no substitute for proof, and it is inadequate
here to establish the discriminatory motive for which the General Counsel contends,
even when considered in conjunction with the Barnet-McGlaughlin testimony.
w In some of the examination there was reference to Respondent's letter of April 16 to
the Bangor employees (which followed the Board's Decision and Direction of Election
issued on April 12) as containing notice of the withdrawal of the safety bonus. The
letter contains no such notice and no reference to that bonus. It does contain the follow.
ing statement : "It has been impossible to make any adjustments in Bangor while this
union activity has been taking place. To have done so might well have subjected the
Company to an unfair labor charge."
HANNAFORD BROS. CO . 1115
It is therefore concluded and found that the General Counsel failed to prove that
the bonus was stopped at Bangor because of union activities , and it is further found
that the discontinuance did not constitute interference , restraint, or coercion within
the meaning of the Act.
3. The refusal to bargain
a. The appropriate unit; the Union's majority representation
All warehousemen, truckdrivers, and helpers of Respondent employed at its
Bangor, Maine, operations, excluding office clerical employees, salesmen, guards,
professional employees, the plant manager, and all other 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. See Decision and Direction of Election,
Case No. 1-RC-4366, supra.
Stipulations were entered into in which the parties agreed upon the 37 employees
who were in the above unit during the workweek from February 16 to 22, 1956.
To establish the Union's majority representation, the General Counsel introduced 25
applications for membership which contained on the reverse side an unequivocal au-
thorization to Local 340 to represent the signatory in matters of collective bargain-
ing. A total of 23 witnesses identified their signatures on front and back, and 1,
Samuel Morin, identified his signature only on the face of the application. The ap-
plication and authorization of Charles F. Tibbetts was received on stipulation of the
parties as to the authenticity of the signature; and 1 witness, Arthur T. Dinsmore,
testified to his membership in the Union though no formal written authorization
was introduced for him.
Though five of the signatories, including Morin, gave testimony which reflected
somewhat on the circumstances under which their signatures had been obtained,
none of them had made any attempt to revoke the authorizations, to recall the ap-
plications once delivered, or to withdraw from membership. Furthermore, even ex-
cluding the 5 authorizations in question, a clear majority remained of 21 out of the
37 employees in the unit, making it unnecessary to make ad hoc determinations of
the 5 cases in question. It is therefore concluded and found that during the work-
week of February 16-22, 1956, the Union represented a majority of the employees
in the above unit,
b. The request and the refusal to bargain
On February 18, 1956, the Union wrote Whittier that it represented a majority of
the truckdrivers and warehousemen at Bangor and made a demand for immediate
recognition and for bargaining. The letter concluded:
Regardless of the fact that a petition for election is presently pending, this demand
for recognition and-collective bargaining is made and asserted because of infor-
mation forthcoming at the election hearings and from other sources, which
reveals clearly that the Company is engaging in improper activities designed
and tending to destroy the union's majority and also to make a mockery and
futility of any election seeking to disclose the free choice of the employees.
On February 20, Levenson replied for the Company, in Whittier's absence from the
city, stating two reasons why the Company "must refuse to recognize [the Union]
as the bargaining Agent of our employees at Bangor," as follows:
First we seriously question whether you do represent the majority of our em-
ployees in Bangor and , second , we do not consider Bangor as a separate unit but
as part of the Company and we certainly know that you are not representing
the majority of all our employees. Under the circumstances, we prefer to
wait for the decision of the National Labor Relations Board who now have that
problem before them.
The Unit Question
Respondent's position during the course of the representation proceeding was that
"a multiplant unit of employees at all of its operations is the only appropriate unit."
See footnote 1, Decision and Direction of Election, Case No. 1-RC-4366, supra.
Levenson testified, in supporting the doubt as raised in his letter of February 20,
that he had a great deal of confidence in his position in that proceeding. The fact
that the Board later rejected his contention does not, of course, establish that he
had not in good faith advanced it, for otherwise any losing litigant might stand
charged with bad faith. The entire evidence must be examined to, determine whether,
in refusing the request to bargain in this proceeding, Respondent raised the unit
question in good -faith.
1116 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
The relevant evidence on that score was supplied mainly by the contemporaneous
negotiations with the Portland Committees as summarized under section b, 2, b, supra.
What that evidence shows is that during the very course of the representation hearing
(which was concluded on February 16) in which Levenson was advancing his con-
tentions as to a single multiplantunit, Respondent was. engaged in negotiating with
the separate Committees for the warehousemen and truckdrivers at Portland without
reference to the Bangor employees. Thus Welch's testimony showed that there was
no reference to the Bangor employees during those negotiations, that no question was
raised by or with management concerning whether the increase was to apply at
Bangor, and that there was no discussion of the matter among the Committee mem-
hers themselves or with the Portland employees.21 Even more significant are the
facts, established by the record, that Levenson advised Respondent to grant the
increase at Portland during the pendency of the representation proceeding despite
his position that both warehouses constituted the only appropriate unit, and that
the negotiations had been concluded with the separate Committees and separate
contracts had been executed just prior to rejecting the Union's request to bargain
on Levenson's claim that only a multiplant unit was appropriate.
Absent some refutation or adequate explanation, the foregoing circumstances
plainly establish that Levenson, in rejecting the Union's request, did not raise the
unit question in good faith. But Levenson offered no persuasive explanation. Indeed,
his testimony was explicit that his reasons for advancing the multiplant unit in the
representation proceeding were (1) to defeat if possible the requisite showing of
interest of 30 percent representation in the combined unit, and (2) to forestall an
election prior to June under the 1-year rule, since an election had been conducted
at Portland on June 23, 1955. The remainder of Levenson's explanations related
specifically to his alleged doubt of majority; he attempted no justification whatever of
the fact that the February negotiations had proceeded, as customary in the past,
with representatives of the separate units of Portland employees only, and in com-
plete disregard of Respondent's alleged claim that the Bangor employees belonged
in a single multiplant unit of employees at all its operations.
It is therefore concluded and found on the entire evidence that Respondent, in
rejecting the Union's request to bargain, did not raise the unit question in good
faith. N. L. R. B. v. Charles R. Krimm Lumber Company, and Northern Pine
Corporation, 203 F. 2d 194, 196, affirming 97 NLRB 1574; Graham County Electric
Co-operative, Inc., 96 NLRB 684, 685, 709.
The Majority Question
Levenson's majority doubts as stated in his letter extended both to Bangor as a
separate unit and as part of an overall unit. Since it has been found above that
Respondent did not raise the unit question in good faith, the alleged doubt of
majority in a multiplant unit constitutes no defense to a refusal to bargain in the
Bangor unit. The alleged doubt of majority in the latter unit was supported mainly
by testimony by Savage and Wright as to conversations during the month of Feb-
ruary with a number of the employees (including Nason, who was known to be the
leader in the union activity), concerning their dissatisfaction with the Union, their
desire to defect, their intention to vote against it in the election, and their statements
that other employees entertained similar views. Those conversations were reported
to Levenson and Whittier, and according to Levenson's testimony they formed the
basis of the doubts of a majority at Bangor which he expressed in his letter.
It must be found on the record that such reports were made to Savage and Wright
and were in turn relayed to Levenson and Whittier (though the testimony relating
to Nason cannot be accepted for reasons which are stated in the margin) 22 But
those facts constitute no defense here, where the evidence established the actual fact
21 Though Whittier had given testimony at the representation hearing which is in
conflict with Welch's, he did not repeat it at the present hearing. Furthermore, Whittier
had concluded his earlier testimony on the point by conceding that the Company, in con-
ducting the February negotiations, considered the Committees to be representatives of only
the Portland warehouse.
22 Savage testified to a conversation with Nason around mid-February, in which Nason
coupled expressions of regret for having led the union movement and intent to lead a
-defection movement with a request for a $900 loan from the Company. Under Savage's
version, Nason's approach appeared to constitute a thinly veiled solicitation of a bribe
to lead a movement to drop the Union.
Nason testified that the mid-February conversation was concerned with his appearance
under subpena at the representation hearing in Portland on February 16, and his request
to hold a meeting of the employees in the warehouse after his return so that he might
HANNA'ORD BROS. -CO. 1117
of the Union's Majority-at the time of the request and established further, as found
under section C, 1, supra, that Respondent-was contemporaneously engaged, through
Sellick, Wright, and Glenn Taylor in a course of unfair labor practices which was
obviously designed to procure, the very renunciations and disavowals upon which
Levenson purported to predicate his doubts. Normally an employer who in good
faith questions the union's claim of majority status is entitled to have the matter
determined by an election since that is a conclusive (though not exclusive) method
of determining the extent of the union's strength. But having embarked upon a
campaign to destroy employee support for the Union through means proscribed by
the Act, Respondent was no longer entitled to await the outcome of an election,
since by its unlawful conduct it had prevented the election from resolving the very
issue on which Respondent purported to entertain doubts. Stated differently, Re-
spondent's illegal conduct destroyed the efficacy of the very method whose outcome
it insisted on awaiting.
The law is well settled that "the right of employees to bargain collectively through
an exclusive bargaining representative, is not conditioned upon an antecedent certi-
fication by the Board where, as here, the majority status of the union is clearly es-
tablished otherwise, and the employer has no bona fide doubt of such majority status,
but seeks to delay bargaining negotiations while resorting to various coercive tactics
designed to dissipate the union majority support." N. L. R. B. v. Samuel J., d/b/a,
Korbitz Star Beef Company, 193 F. 2d 8, 14 (C. A. 1) and cases there cited; N. L.
R. B. v. Ken Rose Motors, Inc., 193 F. 2d 769, 771 (C. A. 1); and see Joy Silk
Mills, Inc., v. N. L. R. B., 185 F. 2d 732, 741 (C. A., D. C.) cert. denied 341 U. S.
914; Frank Bros. Company v. N. L. R. B., 321 U. S. 702, 704-706; N. L. R. B: v.
Federbush Company Inc., 121 F. 2d 954, 956 (C. A. 2); N. L. R. B. v. Everett Van
Kleeck & Co., Inc., 189 F. 2d 516 (C. A. 2); N. L. R. B. v. Consolidated Machine
apprise them of happenings at the hearing. He testified that Savage consented and that
he (Nason) actually held such a meeting. Nason testified that Savage asked him during
the conversation how he felt about the general situation and that he referred to the "dis-
turbance" in the warehouse and characterized it as "quite a mess." He denied, however,
that he had stated (as Savage testified) that either he or other employees were "fed up"
or were unhappy with the Union
Nason testified further that some 3 or 4 weeks later he inquired of Savage the procedure
for obtaining a loan of $900 Mona the credit "ion for the purpose of buying some-new
furniture and that Savage later informed him he should apply to Pheneuf (who was the
credit union representative) an Pheneuf's next visit to Bangor. Nason testified that some
days later he applied to Pheneuf in Bangor and was informed that he could not qualify
because he was of draft age and was not a good risk for a loan of that size. Nason denied
that he sought a loan from the Company either before or after his application was rejected
by Pheneuf.
Respondent did not call Pheneuf at the reconvening of the hearing in Portland though
it had indicated its intention of doing so. "The failure under the circumstances to call
as witnesses those . . . who were in a position to know . . . is itself persuasive that
their testimony, if given, would have been unfavorable. -... ' Interstate Circuit, Inc. v.
U. S., 306 U. S. 208, 226; cf. 1s Is. R B: v. Ohio Calcium Company, 133 F. 2d 721, 727,
(C; A. 6) ; and see Kirby v. Tallmadge, 160 U. S. 379, 383, quoting Lord Mansfield in
Blatch v . Archer (Cowper, 63, 65}. The circumstances thus impel the acceptance of
Nason's testimony, which was otherwise straightforward and unevasive, particularly since
Pheneuf was in position to have refuted Nason's testimony on several crucial points,
including the date of Nason's application.
Wright testified that prior to February 16, Nason informed him he was sorry he had
started the union movement, that he was fed up with the Union, and that some of the'
other men were also. Wright testified that he reported that conversation to Savage and
Levenson, and they also testified that he did
Nason testified that his conversation with Wright followed after his conversation with
Savage concerning the loan from the credit union and before Pheneuf came to Bangor,
He testified'that he was seeking a raise at the time, and that though he praised his jobs
as Wright claimed and referred to his part in starting the Union, he denied expressing
regret or stating that he or others were fed up with the Union.
Nason's testimony is again credited over Wright's both as to the time and the content
of the conversation. The time again is the most significant point. Wright may well have
interpreted some of Nason's remarks as indicating disillusionment with the Union and may
well have sq reported to Savage and Levenson as they testified. - Such reports, having
been made subsequent to Levenson's rejection of the request to bargain, obviously formed
no part of the basis on which Levenson purportedly acted. Furthermore, even a eentrarX
' finding would not avail Respondent for reasons hereafter stated in the text.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tool Corporation, 163 F. 2d 376, (C. A. 2) cert. denied 332 U. S. 824. It is there-
fore concluded and found upon the record as a whole that on or about February
20, 1956, and at all times thereafter, Respondent, in violation of=Section 8 (a) (5)
of the Act, failed and refused to bargain collectively with the Union as ,the duly
designated representative of the majority of the employees, in the unit hereinabove
found appropriate, thereby also interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 340, the Truck Drivers Committee, and the Warehouse Committee are
labor organizations within the meaning of Section 2 (5) of the Act.
2. By assisting, contributing to the support of, and interfering with the adminis-
tration of the said Committees, Respondent has engaged in unfair labor practices
proscribed by Section 8 (a) (2) and (1) of the Act.
3. All warehousemen, truckdrivers, and helpers of Respondent, employed at its
Bangor, Maine, operations, excluding office clerical employees, salesmen, guards,
professional employees, the plant manager, and all other 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.
4. At all times on and after February 18, 1956, the Union has been and now is the
exclusive bargaining representative of Respondent's employees in the aforesaid unit.
5. By failing and refusing to bargain with the Union on and after February 20,
1956, Respondent has engaged in unfair labor practices proscribed by Section 8 (a)
(5) and (1) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices having occurred in connection with the
operations of Respondent's business, as set forth in section I above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
states and substantially affect commerce within the meaning of Section 2 (6) and (7)
of the Act.
8. Respondent did not engage in unfair labor practices by stopping payment of the
safety bonus to truckdrivers at Bangor or by permitting and allowing David Foster
to participate in the business of the Warehouse Committee.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act as more fully outlined in the
section below, which action I find necessary to remedy and to remove the effect of
the unfair, labor practices.
I shall recommend, among other things, that Respondent not only withdraw and
withhold all recognition from the Committees in the respects' specified below, but that
it also terminate, cancel, and cease giving effect to its contracts with said Committees
dated February 17, 1956, as well as any extensions or renewals thereof and any
amendments thereto.
I shall also recommend that Respondent, upon request, bargain collectively with
the. Union as the exclusive representative of its Bangor employees in the, appropriate
unit herein found.
[Recommendations omitted from publication.]
Westinghouse , Air Brake Company (Air Brake Plant) and West-
' inghouse Air Brake Office and Technical Union. Case No. 6-CA-
1082. December 19,1957
DECISION AND ORDER
On July 18, 1957, Trial Examiner Louis Libbin issued his Inter-
mediate, Report in the above-entitled proceeding, finding that the Re-
119 NLRB No. 135.