Holyoke Food Mart, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 470 (N.L.R.B. 1971)

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holyoke Food Mart, Inc.' and Local 919, Retail
Clerks International Association , AFL-CIO and
Local33 and Local 371, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, Party to the Contract
Holyoke Food Mart , Inc. and Local 1459, Retail
Clerks International Association , AFL-CIO and
Local 33 and-Local 371, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, Party to the Contract. Cases 1-CA-6431 and
1-CA-6471
June 23, 1971
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On June 18, 1969 , Trial Examiner Thomas A. Ricci
issued his Decision in the above -entitled proceeding
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action , as set forth in the attached
Trial Examiner's Decision . All parties filed exceptions
and supporting briefs to the Trial Examiner's Decision.
Locals 33 and 371, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO,
hereinafter referred to as Meat Cutters , appearing
herein as parties-in-interest, filed cross-exceptions and
a supporting brief. The Respondent filed an answering
brief to the exceptions of the General Counsel and
Locals 919 and 1459 , Retail Clerks International As-
sociation, AFL-CIO, the Charging Parties, hereinafter
referred to as Retail Clerks.
On October 28, 1969 , the Board, having duly consid-
ered the exceptions, cross-exceptions, and briefs of the
parties, ordered that the record in the proceeding be
reopened and that a further hearing be held before the
Trial Examiner for the purpose of receiving evidence on
the question of the appropriateness of the units sought
by the Retail Clerks , and directed that the Trial Exam-
iner file a supplemental decision containing additional
findings of fact and such conclusions and recommenda-
tions as he may deem , appropriate.
On December 17, 1970, Trial Examiner Thomas A.
Ricci issued his Supplemental Decision , attached
hereto , reaffirming his findings of fact , conclusions of
law, and recommendations as made on June 18, 1969.
Thereafter , the Respondent , the Meat Cutters , and the
' Respondent's motion to correct its name from "The Food Marts, Inc "
to "Holyoke Food Mart, Inc."had been referred by the Board to the Trial
Examiner. The motion apparently was not renewed before the Trial Exam-
mer and is still before the Board . In the circumstances , and as no objection
to the amendment is raised , we grant the Respondent 's motion. The name
of the Respondent appears as amended.
Retail Clerks filed exceptions to the Trial Examiner's
Supplemental Decision, and the Respondent and Meat
Cutters filed briefs in support of their exceptions, and
the General Counsel filed a brief.' The Respondent filed
a motion to strike the Charging Parties' exceptions to
the Supplemental Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in.connection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer,made at the hearing'and supplemental hearing
and finds no prejudicial error was committed. The rul-
ings arehereby affirmed. The Board has considered the
Trial Examiner's Decision and' Supplemental Decision,
all, exceptions and cross-exceptions and the parties'
briefs, and the entire record in these cases, and hereby
adopts the Trial Examiner's findings,' conclusions, and
recommendations, as herein modified.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner as modified below and hereby or-
ders that the Respondent, Holyoke Food Mart, Inc.,
Holyoke, Massachusetts, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified:
1. Delete paragraph 2(b) of the Recommended Order
and reletter paragraphs 2(c) and (d) to 2(b) and (c),
respectively.
2 Respondent's request for oral argument is hereby denied, as the record
and briefs adequately present the issues and contentions of the parties
' We do not believe the Charging Parties' failure to appear at the re-
manded hearing, without more, signified an abandonment of their interests
sons to warrant the striking of their exceptions to the Supplemental Deci-
sion. We therefore deny the Respondent's motion to strike such exceptions.
We agree with the Trial Examiner that Respondent violated Section
8(a)(2) 'and (1) of the Act by arrogating to itself the resolution of the
question concerning representation while the issue was properly before the
Board, The Trial Examiner based his finding in this regard on his view that
the Respondent resolved the unit dispute. Our conclusion, however, is
grounded on the fact that the interventions by the various Retail Clerks
locals in the petition for the multistore unit were, contrary to the Trial
Examiner's assumption, tantamount to a request to participate in an election
in the multistore unit, if one were directed therein, absent a clear statement
of desire not to participate in any such election. The Respondent's conduct
attempted to force the Intervenors to a cardcheck, which it could not law-
fully do. In this connection, we note that they could not have been com-
pelled to agree to a consent election under the auspices of the Board and
the cross-check procedure was specifically rejected by Congress in its revi-
sions of the Act Accordingly, the Respondent arrogated to itself a deter-
mination of the majority status among the employees in the multistore unit
of the contending labor organizations by a procedure which would be legally
acceptable only if all parties agreed voluntarily, and the Respondent acted
unlawfully even if, as it contends, only the multistore unit was appropriate.
' In the circumstances of these cases, we are of the view that it would not
be equitable to order the Respondent to reimburse its employees for any
periodic dues, initiation fees, or assessments which it may have deducted
from them for transmittal to the Meat Cutters pursuant to authorization
executed by them.
191 NLRB No. 94
HOLYOKE FOOD MART, INC. 471
2. In footnote 5 of the Trial Examiner's Decision, TRIAL EXAMINER'S DECISION
substitute "20" for "10" days.
3. Substitute the attached Appendix for the Trial
Examiner's Appendix.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or support Local 33 or Lo-
cal 371, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any
other labor organization.
WE WILL NOT give effect to or operate under
any agreement with said Locals 33 and 371 cover-
ing employees of this store, except meat and deli-
catessen department employees, unless and until
the National Labor Relations Board shall have
certified that Union as your bargaining representa-
tive. this does not mean, however, that we will take
away from you any wage increase or change any
condition of your employment merely because it
may have been required under a term of the Meat
Cutters contract.
WE WILL NOT give effect to any dues or
checkoff cards which you may have signed author-
izing us to deduct union dues from your wages and
pay them to the Meat Cutters Union.
WE WILL withdraw and withhold recognition
from Local 33 and Local 371 as your bargaining
representative and WE WILL NOT recognize them
or any other union as your bargaining representa-
tive unless and until such union has been certified
by the National Labor Relations Board as your
representative.
All of you are free to join or support, or not to join
or support, any labor organization.
THE FOOD
MARTS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Bulfinch Building, 15 New Chardon Street, Bos-
ton, Massachusetts 02114, Telephone 617-223-3300.
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held -before the duly desig-
nated Trial Examiner on April 29 , 1969, at Springfield, Mas-
sachusetts, on complaint of the General Counsel against The
Food Marts, Inc., herein called the Respondent or the Com-
pany . The issue of the case is whether the Respondent vi-
olated Section 8(a)(2) of the Act when it bargained and signed
a collective-bargaining agreement with Local 33 and Local
371, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, herein called the Meat Cutter.
Briefs were filed by the General Counsel, the Respondent,
and the Meat Cutters.
Upon the entire record and from my observation of the
witnesses , I make the following.
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Food Marts , Inc., is a Massachusetts corporation with
its principal office in Holyoke , Massachusetts . It is engaged
in the retail sale of food products and household items and
operates 14 stores in various communities through Massa-
chusetts and Connecticut. In the course of its business the
Company causes large quantities of food products and
household items to be transported in interstate commerce to
these various stores. Of these imports an amount valued in
excess of $50,000 is received at these locations from out-of-
state sources . The annual gross income of these stores exceeds
$500,000 . I find that the Respondent is engaged in commerce
within the meaning of the Act and that it will effectuate the
policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED ,
Retail Clerks International Association , AFL-CIO, and its
Locals 919 and 1495 , herein together called the Retail Clerks,
are labor organizations within the meaning of Section 2(5) of
the Act. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO , and its Locals 33 and 371 are
labor organizations within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICE
The Question
In the early part of 1968 there was widespread self-organi-
zational activities among the employees of the 14 retail stores
which the Respondent operates in dispersed locations
through Connecticut and Massachusetts . Some joined one
union - the Retail Clerks - and some another - the Meat
Cutters. The meat and delicatessen department employees in
all of these stores were then already represented, under regu-
lar contract, by the Meat Cutters. The unrepresented em-
ployees - consisting of the bulk of the remaining store clerks
- total upwards of 600, and there is no history of collective
bargaining among any of them . In three of the stores, Fair-
view, Agawam, and Belmont Avenue, the move was largely
towards the Retail Clerks, and that Union filed three repre-
sentation petitions with the Board, one for each of the stores
as a separate appropriate bargaining unit . The campaign of
the Meat Cutters was companywide; whether that union had
any success among the employees of the three stores already
mentioned is not known, but it filed one petition requesting
a single election in an overall companywide bargaining unit
embracing all 14 stores.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently satisfied that there was a sufficient showing of
interest to support all of the petitions, the Regional Director
in due course consolidated the four cases and issued a notice
of hearing to consider what questions might require decision
before on election or elections could or should be held. At the
hearing before a Board Hearing Officer the Company, in
agreement with the Meat Cutters, argued only a single, com-
panywide unit was appropriate. The Retail Clerks, of course,
asked for separate elections in the three single stores. The
meeting was adjourned, for some reason or other.
Before the scheduled date for reconvening the Company
determined there should be only one 14-store unit, advised
the unions of its decision, and invited them to prove their
claim to majority by card check. The Meat Cutters satisfied
the Respondent it had enough authorization cards for this
purpose; the Retail Clerks, having no choice, responded it
wished to have the unit question decided by the Board. After
its selected agent looked at the cards submitted by the Meat
Cutters, the Respondent recognized that Union and signed a
contract with it; the contract unit is all 600 employees in all
the 14 stores.
The complaint alleges that in these circumstances the Re-
spondent violated Section 8(a)(2) of the Act when it extended
exclusive recognition to the Meat Cutters and signed a con-
tract with it. The General Counsel argues that, under the
basic principle first enunciated in Midwest Piping and Supply
Co., Inc., 63 NLRB 1060, an employer is not privileged to
usurp the Board's statutory function in the middle of a repre-
sentation case hearing by arrogating to itself authority to
decide the critical issue raised and by its unilateral action to
shut out one of two rival unions and to deny bargaining rights
to significant groups of its employees. Apart from certain
irrelevant arguments, the defense is that the direction in
which the employer determined the unit issue is the way the
Board would have decided it anyway and that therefore no
harm was done and there is nothing to complain about. And
to prove its defense assertion the Company offered to in-
troduce into this record all that evidence which normally is
received during ,a representation hearing when the question
concerning representation is multistore versus single-store
units. The General Counsel objected to receipt of such evi-
dence and the objection was sustained.
The question presented is therefore whether an employer
may suspend a representation case hearing, sign a collective-
bargaining agreement on a unit basis of his preference, and
consequently with a union of his choice, and later, in the
resultant complaint proceeding, ask for resumption of the
Board's investigation and determination of the issues raised
by rival unions via competing petitions filed.
The Facts
The three separate petitions for the Retail Clerks were filed
by its Local 1495; for the store located at Belmont Avenue,
Springfield, on March 21, 1968 (Case 1-RC-9986); for the
store located at Fairview on April 18, 1968 (Case 1-RC-
10042); and for the store located at Agawam on May 21, 1968
(Case 1-RC-10097). The petition for the Meat Cutters was
filed in the name of two locals jointly, Locals 33 and 371, for
a single 14 store companywide unit, on March 27, 1968 (Case
l-RC-9996).
On June 12, the Regional Director issued a notice of hear-
ing, and the hearing started on July 15. All parties par-
ticipated. As a formality the Meat Cutters intervened in the
petitions of the Retail Clerks and Retail Clerks Local 1495
intervened in that of the Meat Cutters, because there was an
overlapping element in the rival claims for recognition.` Dur-
ing the day the hearing was adjourned to August 19, 1968.
It is clear that the unit question - whether there should
be a single 14-store unit or whether there should also be 3
separate units in each of the stores which the Retail Clerks
sought - was a major issue, if not the only one. From the
transcript of the representation hearing that day:
HEARING OFFICER: And is it the position of the Em-
ployer, Mr. Marshall, that the Employer declines to
grant recognition with respect to the Petitioner in any of
the four cases unless and until the Petitioner is certified
by the National Labor Relations Board in an appropri-
ate bargaining unit
MR MARSHALL: No. That is not the position of the
Employer. The position of the Employer is that the Em-
ployer will grant recognition to a labor organization
which satisfies the Employer that the labor organization
does in fact represent a majority of the employees in
what the Employer considers to be an appropriate unit.
On August 10, the Company wrote to all four of the unions
involved - Locals 33 and 371 of the Meat Cutters and the
Locals 1459 and 919 of the Retail Clerks - its letter reading,
in pertinent part, as follows:
During the past few months we have received requests
from various labor Unions for recognition as the collec-
tive bargaining representative of certain of our em-
ployees. In addition, these Unions have filed Petitions
seeking certification which are now pending before the
National Labor Relations Board.
The Company is willing to recognize any labor organi-
zation which demonstrates that it has been designated or
selected by a majority of our employees in an appropri-
ate bargaining unit. Accordingly, we intend that a cross
check of authorization cards against employee W-4
forms be conducted in what we consider to be an appro-
priate bargaining unit consisting of all employees of the
Food Mart in Massachusetts and Connecticut, excluding
all meat department and delicatessen employees, office
and store clerical employees, department managers,
professional employees, guards and supervisors as
defined in the National Labor Relations Act.
The letter added the Company had arranged to place cer-
tain of its records, containing employee signatures, in the
hands of a local priest and invited all of the unions to submit
to him their authorization cards for a check of numerical
representation. The Meat Cutters did this, but the Retail
Clerks Union did not. The priest looked at cards and com-
pany records and, on August 16, told the Company that in
his opinion the Meat Cutters represented a majority of the
employees in the unit as defined by the employer. Relying on
that determination, the Respondent then extended recogni-
tion to the Meat Cutters, bargained with it, and on November
22, 1968, signed a 2-year contract covering the employees of
all 14 stores in a single unit and containing compulsory union
membership provisions and a checkoff arrangement.
There was an earlier contract made in 1967 with the Meat
Cutters Union covering the meat and delicatessen depart-
ment employees of all of the stores in a single unit. The
November agreement mentioned above is in the form of an
amendment to the 1967 contract, merging the meat and deli-
' Another local of the Retail Clerks, Local 919, also appeared at the
hearing and was permitted to intervene in all four petitions . Local 919 had
previously advised the Company by letter that it represented a number of
its employees It did not file any petition. The record transcript of the
hearing was not placed in evidence here. The appearance of Local 919 that
day in no way affects consideration of the question presented here for
decision.
HOLYOKE FOOD MART, INC.
catessen employees together with the remaining clerks in all
of the stores, resulting in a single 14-store unit of all em-
ployees, with specific exclusions not of a moment here, such
as clerical employees, administrative employees and super-
visors.
Analysis and Conclusions
If the Respondent has a valid defense in this case it means
any employer can walk out of a representation case hearing
involving more than one union, decide all questions as he
thinks right, contract with the union he believes is deserving,
and then ask for resumption of the representation case hear-
ing. The Respondent's insistence that the company-wide unit
it liked is also what the Board would have found appropriate,
coupled with its offer to prove its assertion now by evidence,
is the same as a request to the Regional Director to continue
the representation hearing which was interrupted only be-
cause of the intervening unfair labor practice charge. In fact,
this must be the Respondent's position because, as it candidly
admitted, it is only by making the representation case record
now and sending it to the Board that the necessary defense
assertion can be established. I do not believe this view com-
ports with the scheme of the statute. And it is this very exact
course of conduct by the employer - putting execution of a
contract in front of the representation proceeding and ahead
of the Board's decision on how the existing question concern-
ing representation must be resolved - that the General
Counsel claims is unlawful and on which he based the com-
plaint. He was entitled to have this question tried and not any
other.
All things start with the statute. Section 9(b), in pertinent
part, reads: "The Board shall decide in each case whether, in
order to assure to employees the fullest freedom in exercising
the rights quaranteed by this Act, the unit appropriate for the
purpose of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof.... " Section
9(c)(1) reads, also in pertinent part: "Wherever a petition
shall have been filed ... the Board shall investigate such peti-
tion and if it has reasonable cause to believe that a question
of representation affecting commerce exists shall provide for
an appropriate hearing upon due notice." These provisions
are precisely applicable to the case at bar. There was no
contract in effect applicable to the employees sought by any
of the unions. Commerce was not in issue . The Meat Cutters
wanted an election among 600 employees and the investiga-
tion satisfied the Regional Director its showing of interest
sufficed for a hearing. The Retail Clerks petitions each sought
the employees in a single store, and the investigation presum-
ably showed sufficient showing to support each petition. The
documents in evidence indicate, and no contrary claim is
advanced, that the principal question to be decided was
whether single-store units were appropriate. That an overall
companywide unit could also be appropriate was not disputed
then and is not disputed now. If these plain facts are joined
to the statutory provisions quoted above, there is presented
the most common situation in which the Board's exclusive
authority to determine the appropriate unit comes into play.
It is also unquestionably clear that the decision on the
question whether the employees working in the three isolated
stores had a right to be represented by, the Retail Clerks and
not by the Meat Cutters directly effected their "exercising the
rights guaranteed by the Act." Resolution of the question as
the Respondent saw fit not only deprived them of any right
they may have to be represented by the Retail Clerks, but
immediately saddled them, against their will, with member-
ship in the Meat Cutters as a condition of employment. If the
basic purpose of this statute and the very establishment of the
National Labor Relations Board as a specialized governmen-
473
tal agency to administer it has any meaning it is that this is
the classic situation where the employer may not supplant the
Board.
The hearing transcript consists largely of inconclusive ar-
gument; the documents received in evidence, however, estab-
lished as clear as can be that a question concerning represen-
tation existed when the Respondent extended exclusive
recognition to the Meat Cutters. There was no history of
collective bargaining among the employees involved. The
Board could well have found, on consideration of the usual
pertinent factors, that a companywide unit was appropriate;
indeed the statute itself says such a grouping is proper. It
could as well have found that single-store units are also ap-
propriate. The law is clear here; only recently in Haag Drug
Company, Incorporated, 169 NLRB No. 111, the Board re-
stated its rule that such a limited unit in retail chain opera-
tions is "presumptively appropriate." Of course the question
in this particular factual situation could only be resolved by
the Board after a full hearing on the RC petitions, but this
is only implementation of the scheme of the statute, which
explicitly says "the Board shall decide in each case.... "
Everybody knew all this, certainly including the Respond-
ent's representatives, for there had already been two actual
Board findings, in earlier proceedings, that a one-store unit
is appropriate in this company. In one proceeding, Case 1-
RC-9441, the Meat Cutters wanted the meat department
employees in only the Agawam store, and the Respondent
argued only a companywide unit should be established. The
Regional Director agreed with the Meat Cutters and the
Company's appeal to the Board failed. In another, 162 NLRB
1420, the Board found appropriate, again over the Respond-
ent's objections, a single-store unit at the Fairview store.
A comparable situation was presented in Allied Supermar-
kets, Inc., 169 NLRB No. 135, where another Retail Clerks
Union petitioned to represent only grocery and food depart-
ment employees in a retail store while the Meat Cutters
wanted to group all store employees - including also meat
department personnel - in a wall-to-wall unit. The employer
ignored the Retail Clerks, hired an outsider to check the Meat
Cutters cards in the wall-to-wall unit, and contracted with
the latter union . The Board found a violation of Section
8(a)(2), in part because the employer had "entered into a
collective-bargaining agreement covering such employees
[the grocery and food department persons] at a time when a
question concerning their representation for purposes of col-
lective bargaining existed." From Shea Chemical Corpora-
tion, 121 NLRB 1027: "We now hold that upon presentation
of a rival or conflicting claim which raises a real question
concerning representation, an employer may not go so far as
to bargain collectively with the incumbent (or any other)
union unless and until the question concerning representation
has been settled by the Board."
Again, in Maryland News Company, 138 NLRB 215, union
A petitioned for a unit of 32 employees and at the hearing on
its petition before a Board Hearing Examiner, the Company
insisted only a more inclusive unit of 60 persons could be
appropriate. While the Board's decision on the unit issue was
being awaited, an independent union B was formed, and the
Company recognized it as exclusive agent for the larger unit
of 60 and signed a contract with it. In finding a violation of
the Act under the rule in Midwest Piping, the Board held
there was "pending before the Board a question concerning
what would constitute an appropriate unit, the determination
of which the Company also arrogated to itself."
The Respondent's position can perhaps be better under-
stood if stated in plainer language. In asking for resumption
and completion of the representation case now, it says that if
it guessed wrong it should be found guilty of an unfair labor
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice; if it guessed right, the complaint should be dis-
missed. In arguing that decisional precedent gives an em-
ployer the right to take this chance to gamble with the statu-
tory right of its employees, the Respondent relies on
out-of-context language in earlier decisions and misreads
their true import. On occasion the Board has said, in other
cases, that the employer acted "at its peril" in recognizing one
of two competing unions. All this started with William Penn
Broadcasting Company, 93 NLRB 1104, where the Board
spoke of whether or not there existed, at the time of the
employer's recognition of one of two competing unions, "a
real question of representation." There are other cases in
which the complaint was dismissed for the reason that there
did not exist such a "real" question concerning representa-
tion. The true predicate for all these holdings, however, is the
ultimate finding in each of them that the rival claim which
purportedly gave rise to a question concerning representation
was "clearly unsupportable or specious ... not a colorable
claim."'
The fundamental error underlying the defense argument is
that it merges into a single idea two concepts that are distinct
and separate as revealed in Board decisions. One is that the
claim for representation of the rival union which the em-
ployer choses to ignore and to exclude from consideration
must in fact raise a question concerning representation if it
is to be found that the unilateral act of recognition violates
Section 8(a)(2). The other is that when the rival claim does
raise a question concerning representation, it is for the Board,
and only for the Board, to decide it, as provided by the
statute, and the employer acts illegally in presuming to decide
himself which union is the bargaining agent. And this is the
basic principle of Midwest Piping. Whether or not there is a
question to be decided-and the manner in which the question
that exists is resolved by the Board are not one and the same
thing. In the first case the Board has said, as the Respondent
points out, that an employer acts "at his peril" if he proceeds
as though there existed no question.' In the second situation
the Board says the employer may not arrogate to itself the
privilege of resolving the question in place of the Board.
It is true that when the employer believes the claim of
union A is plainly false, outlandish, unsupported by any ra-
tional predicate, and goes right ahead to contract with union
B, it is not until after his unilateral recognition and the trial
of an unfair labor practice complaint that the Board decides
whether the ostensible claim of union A raised a question
concerning representation at all. The Respondent here calls
this a guessing game, where the employer guessed right be-
cause the Board later agreed with it, and the complaint was
dismissed. This analogy, urged as reason, for dismissal here in
the event it should develop that after further investigation the
Board found only a 14-store unit appropriate, is unpersua-
sive. Were the Board now to receive the Respondent's proof
respecting the unit - the very same evidentiary matter that
would have been given the hearing officer in; August in the
processing of the four petitions -and decide on the merits
that only the company wide unit is appropriate, it would not
be deciding that there did not exist a question concerning
representation. Rather, its holding would be that the petitions
of the Retail Clerks did raise such a question,' that it required
resolution,, and that on the basis of the facts of the case this
was the Board's statutory finding. And thus, 'still in accord-
ance with the statutory scheme, a secret election would fol-
low, tinder conditions assuring a reliable expression of opin-
ion by the employees, as distinguished from the employer's
2 The Boy's Markets, Inc., etc., 156 NLRB No 105.
' Intalco Aluminum Corporation, 169 NLRB No 136.
unilateral use of signature cards which in two union situa-
tions are "notoriously unreliable." See, Sunbeam Corpora-
tion, 99 NLRB 546, and Novak Logging Company, 119
NLRB 1573.
It will not do for the Meat Cutters, now enjoying a union-
shop contract only because the Respondent bypassed the
Board, to sweep away the clearest adverse precedent with the
phrase "the case is bad law." In Swift and Company, 128
NLRB 732, this same Meat Cutters Union charged the com-
pany with a Midwest Piping violation because the very day
after a Board hearing on the Meat Cutters' petition closed,
and of course before any decision was made by the Board,
Swift contracted- with the rival union. I doubt the Meat Cut-
ters argued in that case, as it does in its brief here: "We must
avoid becoming emotionally attached to the `neutrality' as-
pect of Midwest Piping so that we do not apply it indiscrimi-
nately to all fact situations because of a passion for order and
procedure that makes the National Labor Relations Board's
role in resolving representational disputes into an exclusive
and sacred task that may not be encroached upon any citcum-
stances."
In Swift the Board found a violation of Section 8(a)(2).
And in the same case it explicitly rejected what is essentially
the major defense urged here now. The Swift contract con-
tained a saving clause that if, in the eventual processing of the
simultaneous representation case, the outside union should
prevail, the contract would no longer apply to those em-
ployees as to whom there were rival claims. This is exactly
the same as Food Mart's proposal that the hearing on the four
pending petitions be held now and that, if it should develop
- by later Board determination - that the Respondent
guessed wrong , an unfair labor practice finding should be
made,, the contract scrapped so 'far as the three individual
stores are concerned and everything be considered fine. To
this the Board said, in Swift: "We find this contention also
without merit, as the effect of assistance to the contracting
union in the face of a rival claim is not dissipated by the mere
inclusion in the contract of such a, provision. Moreover, such
a provision does not allay the fact that Respondent has con-
cluded for itself which of two competing unions the em-
ployees desire as their representative. As previously noted,
the Board has held that this is not the employer's preroga-
tive."
Since a question concerning representation existed at the
time the four petitions were pending among the employees of
the Respondent's Fairview, Agawam, and Belmont Avenue
stores, except for meat and delicatessen department em-
ployees, the Respondent was obligated under established le-
gal principles to maintain a position of neutraility with re-
spect to the representation claims of the two rival unions
pending a resolution of the representation question by the
Board. Accordingly, by recognizing the Meat Cutters union
as the bargaining representative of these employees and ex-
ecuting the November 1968 contract with the Meat Cutters
with respect to these employees, the, Respondent breached its
obligation of neutrality and unlawfully assisted and sup-
ported the Meat Cutters Union within the meaning of Section
8(a)(2) and (1) of the Act.
Amendment to the Complaint
Three months after its issuance the General Counsel
amended the complaint to add minor allegations of independ-
ent acts of coercion by management. The sole evidence in
support of all this is testimony by Pauline DesPlaines, a
former part-time cashier at the Respondent's Boston Road
store. She said, without contradiction, that one day in Sep-
tember 1968 the store manager there asked would she "sign
HOLYOKE FOOD MART, INC.
a card as a favor to the management ." She said he spoke of
the Amalgamated Meat Cutters Union.
There is strong indication in the witness' recollection that
the manager did not order her to sign the card or otherwise
intimidate her. Rather, it would appear that he gave her to
understand that if she did not care to sign, she should feel free
to do as she pleased. The isolated incident took place at a
store really unrelated to the issue of this case. Moreover, it
injects a distracting element into what is purely a question of
law on which the true thrust of this complaint must turn. This
is not a case bottomed on union animus in the classic out-and-
out straight coercion sense. All things considered, I believe it
best to ignore what is at most very questionable proof of an
independent violation of Section 8(a)(1) of the Act. Certainly
if the facts and rationale set out above do not suffice to
establish a violation of the Midwest Piping principle, addition
of so minor an incident would hardly swing the balance the
other way.
THE REMEDY
It having been found that Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(2) and
(1) of the Act, my Recommended Order will require that
Respondent cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
Since it has been found that Respondent has unlawfully as-
sisted and supported the Meat Cutter Union, the latter can-
not be considered the free and uncoerced choice of the desig-
nated employees at the three named locations. It follows that
to the extent the Respondent's November 1968 contract with
the Meat Cutters purported to cover these employees it must
be set aside and that Respondent must be required to with-
hold recognition from the Meat Cutters as the representative
of these employees until that labor organization has been
certified by the Board as the employees' bargaining represent-
ative. In view of the assistance and support given by Respond-
ent to the Meat Cutters Respondent will also be required to
cease and desist from recognizing and giving effect to all dues
checkoff authorizations in behalf of the Meat Cutters ex-
ecuted by employees in any of the three stores affected. Noth-
ing herein contained, however, shall be construed as requiring
Respondent to vary any wage or other substantive feature of
its relations with employees of the three stores as established
in the performance of the contract with the Meat Cutters.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with the operations of the Respondent as set
out in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAw
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act.
2. The Meat Cutters and the Retail Clerks Unions and their
respective locals are labor organizations within the meaning
of Section 2(5) of the Act.
3. By recognizing the Meat Cutters as the exclusive bar-
gaining representative of employees of the Respondent's
stores at Fairview, Agawam, and Belmont Avenue, all in
Massachusetts, exclusive of meat and delicatessen depart-
ment employees, and by executing its November 1968 con-
475
tract with the Meat Cutters for such employees , at a time
when a genuine question concerning representation existed
with respect to those employees , Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(2) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law, I recommend that the Respondent, The Food
Marts, Inc., Holyoke, Massachusetts, its officers , agents,
successors, and assigns, shall:
1. Cease and desist from: -
(a) Furnishing assistance and support to the Meat Cutters
Union or any other labor organization of its employees in
question at the three stores in Massachusetts.
(b) Recognizing the Meat Cutters Union as the representa-
tive of any of the employees in its Fairview, Agawam, and
Belmont Avenue stores in Massachusetts, except for meat
and delicatessen department employees, for the purpose of
dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other terms or condi-
tions of employment, unless and until the National Labor
Relations Board shall certify the Meat Cutters as such repre-
sentative.
(c) Giving effect to its agreement with the Meat Cutters
covering employees at its Fairview, Agawam, and Belmont
Avenue stores, except for meat and delicatessen department
employees, or to any extension, renewal, modification, or
supplement thereof, or to any superceding agreement, unless
and until the Meat Cutters Union shall have been certified by
the Board as the representative of said employees; but noth-
ing herein shall be construed as requiring Respondent to vary
or abandon any wage or other substantive features of its
relations with said employees, which it has established in the
performance of such agreement or prejudice the assertion by
said employees of any rights they may have thereunder.
(d) Giving effect to any checkoff authorizations heretofore
executed by any of such employees in those three stores,
authorizing the deduction of periodic dues, initiation fees, or
assessments from wages for remittance to the Meat Cutters
Union prior to the date of compliance with this order.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the three said stores in the
exercise of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Withdraw and withhold all recognition from the Meat
Cutters Union as the exclusive bargaining representative of
employees at its Fairview, Agawam, and Belmont Avenue
stores, except for meat and delicatessen department em-
ployees, as the exclusive bargaining representative of said
employees, unless and until said labor organization shall have
been certified as such representative by the Board.
(b) Reimburse said employees for any periodic dues, initia-
tion fees, or assessments which it may have deducted from
said employees' pay for transmittal to the Meat Cutters
Union pursuant to authorization executed by them.
(c) Post at its stores in Fairview, Agawam , and Belmont
Avenue, Massachusetts, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms provided by the
' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
(Cont)
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 1, being signed by an author-
ized representative of Respondent , shall be posted immedi-
ately upon receipt therof and maintained by it for 60 - consecu-
tive days thereafter in conspicuous places including all places
where notices to employees are customarily posted . Respond-
ent shall take reasonable steps to insure that said notices are
not altered, defaced , or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision , what steps
it has taken to comply herewith.'
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals the words in the notice reading "Posted by Order of the National
Labor Relations" shall be changed to read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
5 In the event that this Recommended Order is adopted by the Board, this
provision shall, be modified to read. "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the Respond-
ent has taken to comply herewith."
SUPPLEMENTAL REPORT
A Trial Examiner's Decision in this proceeding issued on
June 18, 1969, when the case was transferred to the Board
pursuant to its Rules and Regulations . Thereafter the Re-
spondent, as well as the other parties, filed exceptions, in part
based on a ruling of the Trial Examiner respecting an offer
of proof by the Respondent made in the course of the hearing.
On October 28, 1969, the Board issued an Order Granting
Motion and Remanding Proceeding, sending the case back to
the Regional Director for the purpose of holding a further
hearing and to receive additional evidence.
A hearing on remand was held at Springfield , Massa-
chusetts , on October 26 and 27 , 1970, before the same Trial
Examiner . All parties were afforded full opportunity to call
witnesses and to present evidence . Memoranda were received
after the close of the hearing from the General Counsel and
the Respondent.
The Question Presented
Appreciation of the specific question now presented re-
quires explanation of the basic legal issue pervading this en-
tire litigation . The broad facts are reported in the original
decision and need not be restated here; this Supplemental
Report is to be read together with that decision.
This is a so-called Midwest Piping type case, 63 NLRB
1060. Faced with conflicting claims for recognition and bar-
gaining by rival Unions in 2 of the 14 retail grocery stores,1
the Respondent , Company arrogated to itself the right to
resolve the unit determination question of whether single-
store bargaining units are appropriate among its employees or
only a single companywide 14-store unit is appropriate. The
Meat Cutters Union had filed a petition seeking to represent
all the store employees in the companywide unit, and the
Retail Clerks Union, through two of its locals, had filed sepa-
rate petitions seeking with each to represent a single-store
unit of employees . During the recess of a representation hear-
ing being held before a Board Hearing Officer , after the three
petitions had been consolidated for single hearing, the Com-
pany recognized the Meat Cutters as bargaining agent for its
employees in the 14-store unit and entered into a collective-
bargaining agreement with it on that all inclusive unit basis.
The representation case hearing was discontinued and the
General Counsel issued a complaint against the Respondent
alleging a violation of Section 8(a)(2) of the Act-unlawful
assistance to the Meat Cutters Union.
While evidence was being received by the Trial Examiner
in support of the complaint , the Company offered to prove
that the 14-store unit is appropriate and that only such a unit
is appropriate for collective -bargaining purposes among its
employees . It was the then stated position of the Respondent
that if its unilateral unit determination proved wrong-if a
virtual resumption of the representation proceeding should
end with a Board finding that single-store units could be
appropriate-it, the Respondent , could be found guilty of
having commited an unfair labor practice , but that if its
independent determination of the unit issue proved correct,
the complaint must be dismissed . In opposition, the General
Counsel 's theory of complaint is that between an employer's
view , agreeing with that of one claiming union , that a compa-
nywide unit is appropriate , and the view of another union
claiming on behalf of only some employees for smaller than
companywide units, the employer is not privileged, in the
midst of a regular Board representation hearing, to trench
upon the Board 's statutory duty to make unit determinations
and to gamble with the rights of employees to be free of
coercion in their choice of unions. The Trial Examiner re-
jected the Respondent 's offer of proof.
It was this ruling which prompted the Board's order re-
manding the case for further testimony . The critical language
of that order reads: "The Board finds therefore that the Trial
Examiner erred in his ruling which excluded testimony off-
ered by the Respondent in this proceeding in support of its
allegations that the units sought by the Clerks were inappro-
priate."
The Remand Hearing and Contentions of the Parties
No one appeared at the remand hearing on behalf of the
Retail Clerks Union , either officers or legal representatives.
There is, therefore, no evidence offered by that union on the
question of appropriate unit or units.
At the start of the hearing the General Counsel filed a
written statement, received as an exhibit, entitled "Position
of General Counsel on Remand Order." The core of his
contention is that he takes no position with respect to what
is or is not an appropriate unit arrangement among the Re-
spondent's employees . "The General Counsel is completely
indifferent to the ultimate unit determination ... " [emphasis
in original .]' He offered no evidence whatever on the ques-
tion , either at the start of the hearing or in rebuttal after the
Respondent had introduced testimony and certain exhibits.
The General Counsel made clear that under his view of the
law there rests no burden of proof at all on him on this
question of unit.
The Respondent started by arguing it was incumbent on
the General Counsel to come forth with evidence respecting
the appropriate bargaining unit. It construed the language of
the Board 's order as enunciating a rule of law that in a
Midwest Piping case the prosecution bears the burden of
proving affirmatively that the unit or units, in which the
respondent employer, in effect, refused to bargain-by virtue
of its favored treatment of the rival union when it entered into
a contract with it on another unit basis-is or are in fact
From the transcript:
MR ROSEMERE: Your honor , I would have a few questions of this
witness I would want the record to be perfectly plain that the General
Counsel is not taking a unit position in this case My only purpose in
examining the witness , if I elect to do so, is merely to expand on matters
which able counsel has already brought out. I am not advocating a unit
position This is one thing I want to make plain for the record because
so far as the General Counsel is concerned this is not the floor for
litigation. I would not want to compromise the General Counsel's posi-
tion by conducting an examination on the unit facts.
HOLYOKE FOOD MART, INC. 477
appropriate under Board law. With the General Counsel
holding firm to his basic view of the case, the Respondent
then offered the evidence originally rejected by the Trial Ex-
aminer.
Analysis and Report to the Board
In the present circumstances of this case, and on the record
as made, I am unable to make either "Findings of Fact" or
"Conclusions of Law," as the Board order, in conventional
language, directs.;
There is a certain logic in the General Counsel's assertion
that the total language of the remand order leaves unan-
swered the very disagreement between the opposing ' parties
which led to the Trial Examiner's rejection of the Company's
offer of proof in the first instance. His theory was, and still
is, that a final unit determination may not, under the scheme
of the statute, be made in a complaint hearing before a Trial
Examiner. In contending that the necessary import of the
remand is that the Trial Examiner must in fact make such a
final unit determination, the General Counsel relies on the
Board language which reads: "It was essential to a finding
that the Respondent violated Section 8(a)(2) and (1) of the
Act for the Trial Examiner to find the units petitioned for by
the Clerks were appropriate ...." As between a direct finding
that a single-store unit is in fact appropriate, and a finding
that, as claimed by the Retail Clerks, such a unit could con-
ceivably be found appropriate by the Board, there is a differ-
ence of considerable importance. It may be a fine distinction,
but it was enough to create total confusion in this proceeding.
The General Counsel professed inability to understand how
a regular representation proceeding could take place inter-
twined with pure litigation. And it was exactly such a purpose
the Respondent intended when it offered evidence on unit at
the original hearing. It saw no reason why the old representa-
tion hearing could not be resumed.
It appears that the Board order threw both parties off stride
-at least the way they read it. If was a ruling on evidence,
rejecting an offer of proof by the Respondent, that brought
about the remand. Yet at the remand hearing the Respondent
argued it was not obligated to prove anything; it at first
refused to reoffer its original evidence on units. Instead it
contended that it is the General Counsel's obligation to prove
an appropriate unit and that, absent convincing evidence on
that subject produced by the Government, no prima facie
case of a Midwest Piping violation is made out. And, like the
General Counsel, the Respondent was not without reasonable
basis in so reading the Board's remand. If it is "essential to
finding that the Respondent violated Section 8(a)(2) ... to
find the units petitioned for by the Clerks were appropriate
." the General Counsel's failure to come forth with unit
evidence, his decision to stand mute at the hearing, could
mean literal abandonment of the complaint.
But it is by no means clear that the Board intended to
clarify the law in this area by placing the burden of proof so
squarely on the General Counsel. Those allegations which the
prosecution must prove by convincing evidence are the ones
essential to the complaint, where they always are set out. At
a more critical point of the remand order, the Board speaks
of the Trial Examiner's improper exclusion of "testimony
offered ... in support of its allegation" pertaining to units;
but the word its here clearly means the Respondent' s allega-
tion. The obvious meaning of this language is that what is
involved is an affirmative defense, an allegation by the Com-
pany supposedly sufficient, if proved, to defeat the complaint;
in short, a burden of proof resting on the Respondent and not
on the General Counsel. If this language of the remand be
kept in mind, it would appear that the Respondent missed,
or sought to evade the point of the remand, when it argued
it no longer was obligated to prove anything.
As this resolving question keeps turning, another facet of
the case appears, possibly a more significant view, at least so
far as this particular case is concerned. The Company says
only a companywide unit is appropriate, and it can be stated
virtually as a matter of law under this statute that any compa-
nywide unit is appropriate; that is, it is appropriate absent
some extraordinary reason , advanced by somebody, that it is
not, as, for example, an established bargaining history on a
narrower basis. There is no such suggestion in this case. In
contrast, assertion by a party that any unit smaller than a
companywide one is appropriate cannot be accepted at face
value but must be accompanied by some objective evidence
always relevant to appropriate unit determinations, before
the Board can find the smaller unit correct. Here the Com-
pany offered evidence pointing to the appropriateness of its
companywide unit , as well as some evidence indicating single-
store units might not be appropriate. But there was no neces-
sity for proving the larger unit correct, that fact stands re-
gardless of the Company's offer of proof. All that its proffered
evidence could do is shift the burden, if such be the law, to
the General Counsel to come forth with countervailing evi-
dence. In that case the question would always be: "How
much evidence by the employer need the Government over-
come" Sometimes more, sometimes less, but in any case it
would always be enough to shift the burden to the General
Counsel if the Company does no more than merely assert that
its larger unit is appropriate or that its alleged Midwest Piping
contract covers a companywide unit. If the present case be
viewed in this light, the end result would be that whenever
a company usurps the Board's function by contracting on a
companywide basis, it becomes the instant burden of the
General Counsel, a beginning essential of his case-in-chief,
that he must prove that a single- store unit is in fact appropri-
ate. Had the Respondent here recognized the Retail Clerks
instead and signed contracts each for a single-store, would the
Board accept its offer to prove that a companywide unit is in
fact inappropriate?
There is still another aspect of the immediate problem that
merits comment. Fair and intelligent determination of the
appropriate unit under the statute, whether made by the
Board in the first instance or by a Trial Examiner subject to
Board review, requires evaluation of relevant criteria perti-
nent to each side of the question presented. Normally, at a
representation hearing, the conflicting views, with supporting
facts, whether between competing unions or between com-
pany and a single claiming union, are heard. There is no
representative of the General Counsel as such to urge a view
one way or the other; the only representative of the Regional
Director or of the Board is a hearing officer. And to assure
that the necessary information is received, he is authorized,
indeed obligated, to take on himself the responsibility of gath-
ering, and placing into the record, the necessary data.' But a
hearing on complaint is a litigated proceeding, with burdens
of proof resting on each of the parties according to law. And
unlike the hearing officer in a representation case, the Trial
Examiner is not authorized, indeed he may not, assume the
burden of making that comprehensive record of facts requi-
site for a fair and correct unit finding. Were he to investigate
the pertinent facts and himself call witnesses he would fail in
the cardinal duty of absolute impartiality. And this would be
S Section 102 64 of the Board's Rules and Regulations reads in part as
follows: "It shall be the duty of the hearing officer to inquire fully into all
matters in issue and necessary to obtain a full and complete record upon
which the Board or the regional director may discharge their duties under
Section 9(c) of the Act."
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no less true were the Trial Examiner to assume the authority
to prove, on his own initiative, only that a particular unit
could be appropriate.
What the position of the Retail Clerks Union may be with
respect to the remand order, what its interest in the entire
proceeding-old representation petitions and charges filed-
now is remains unknown because it did not appear at the last
hearing. If that hearing be viewed in essence as resumption
of an interrupted representation hearing, absence of the Re-
tail Clerks would be tantamount to abandonment of any
interest hereafter to represent the employees in the single
stores for which it originally filed petitions, and the whole
case would be simply discontinued. If the case is still, as on
its face appears, complaint litigation, as charging party the
Retail Clerks would not be required to attend; instead what-
ever burdens of proof do exist would fall on the General
Counsel. Whatever the intended truth of the matter, the ulti-
mate reality is that the record now contains no more than a
one-sided, slanted, argumentative view of what logically re-
quires a look from both sides before any intelligent unit deter-
minations can be made. Unhampered by opposing counsel,
free in the face of the indifference of the General Counsel and
the absence of the Retail Clerks Union, the Respondent
placed into evidence such oral testimony and exhibits as to
reduce the function of each store manager, and of his assist-
ants, virtually to the status of nonentities, almost automatons.
With an average of 75 employees in each store, the distance
between at least two, one from the other, 100 miles, and all
14 ruled from a single central location, the personnel manager
went so far as to say that the first thought of'a raise for any
one of the 1,000 employees arises from a machine, the com-
puter data processing gadget. If all this testimony is taken at
face value the only real person in any kind of authority on any
aspect of labor relations are six roving directors or super-
visors, who spend part of their time in the main office and part
traveling from one store to another.
Justice demands that past Board determinations respecting
these very stores not be ignored. In February 1967, after a
formal hearing where the Respondent offered all evidence
available to it, presumably consisting of the same set of facts
now reoffered at the remand hearing here, the Board found
a unit limited to the Fairview store appropriate, albeit is also
said the companywide one could as well be correct. 162
NLRB 1420. Later that same year the Regional Director
found a unit limited to the Agawam store also appropriate,
and the Board, after considering an appeal from the Respond-
ent, refused to upset the Regional Director's finding. Case
1-RC-9441. There is no claim methods of operations have
since changed; rather, much of the proffered evidence shows
the structure of the Company to be the same. More reason,
therefore, for not permitting the Respondent, now in an un-
fair labor practice case, to relitigate the same representation
issues it has twice lost. If anything, this history of Board
proceedings among the Company's stores shows a continuing
determination to flout the statutory scheme whereby the
Board makes unit determinations. The Respondent made it
a point to emphasize on the record at the remand hearing that
it deliberately ignored the Board's earlier unit findings regu-
larly decided. And this is the very point of the complaint, that
this Company refuses to abide by the Congressional intent
that the Board "shall decide in each case" what is the appro-
priate bargaining unit and the employees have a right to
self-organization free of employer interference and coercion.
No useful purpose would be served by restating here the
facts relative to the Respondent's method of operations as
pictured in infinitesimal and repetitive detail in the documen-
tary evidence received on remand. They show, of course, that
a companywide unit is appropriate. They also indicate
strongly that single-store units may not be appropriate, but
this is only because none of the evidence was subjected to the
usual critical cross-examination and because it cannot be
evaluated against what countervailing facts undoubtedly
would be produced did any other party choose to offer them.
In these circumstances there can be no factual finding that the
single-store units sought by the Retail Clerks are in fact inap-
propriate. And perhaps the ultimate answer to the case as a
whole turns not on the classic unit determination, but rather
on whether or not the respective burdens of proof, wherever
as a matter of law they fall, have been sufficiently satisfied.
As I appraise the total import of the General Counsel's
theory of the case now it is that he wants the initial question
of law as set out in the Trial Examiner's Decision to be
answered either affirmatively or negatively. I do not read the
remand order as definitely responsive to the complaint allega-
tion as to what constitutes a statutory violation of the Mid-
west Piping rule of law. I have no choice, therefore, but to
reaffirm my findings of fact, conclusions of law, and recom-
mendations as made on June 18, 1969.