Irv's Market

National Labor Relations Board - Board Decisions

Apr 30, 1969

175 N.L.R.B. 746 (N.L.R.B. 1969)

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irving N. Rothkin d/b/a Irv 's Market and Retail
Clerks International Association, Local 698,
AFL-CIO. Case 8-CA-5096
April 30, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On January 23, 1969, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
he cease and desist therefrom and take certain
affirmative action , as set forth in the attached Trial
Examiner' s Decision . Thereafter, the Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the Trial
Examiner' s Decision, the exceptions and brief, and
the entire record in this case , and hereby adopts the
findings,' conclusions , and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent , Irving N . Rothkin,
id/b/a Irv's Market,' Akron, Ohio, his agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
'We agree with the Trial Examiner that the unit specified in the
complaint was not rendered inappropriate by the inclusion in it of an
employee (Nancy Ross) whose duties included serving as both a meat clerk
and a grocery clerk. However, we do not rely on the inflexible rule
enunciated in Schaeffers Prospect IGA, 124 NLRB 1433, cited by the
Trial Examiner , inasmuch as the rule was modified in Mock Road Super
Duper, Inc., 156 NLRB 983, enfd. as modified 393 F.2d 432 (C.A. 6).
We do not adopt the gratuitous statement in fn . 5 of the Trial
Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner : This proceeding
under Section 10(b) of the National Labor Relations Act
as amended , was heard at Akron , Ohio, on December 3,
1968, pursuant to due notice . The complaint which was
issued on September 5, 1968 (all events herein occurred in
1968), on a charge filed July 24, alleged that Irving N.
Rothkin d/b/a Irv's Market ,' herein called Respondent,
engaged in unfair labor practices proscribed by Section
8(a)(1) and (5) of the Act by certain specified acts of
interference , restraint , and coercion and by refusing, on or
about July 12, to bargain with the Union as the majority
representative of his employees in an appropriate unit.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS; THE LABOR
ORGANIZATION INVOLVED
Respondent operates a retail grocery store in Akron,
Ohio . His gross sales in 1967 exceeded $500,000 and he
received goods valued in excess of $50,000 either directly
or indirectly from extrastate points . I therefore find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
I find further that the Charging Union is a labor
organization within the meaning of the Act. See, e.g.,
Retail Clerks International Association, Local 698,
AFL-CIO (Skormans , Inc.), 160 NLRB 709.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
The events in this case occurred within the brief span of
a few days. Organizational activities began spontaneously
among the employees around the first of July and on July
12 the Union made a demand for recognition , claiming
majority representation. The issues involved (in addition
to a refusal to bargain) certain conduct of Richard
Rothkin, Respondent 's son and admittedly a supervisor,
which occurred within the next 2 or 3 days and an alleged
threat attributed directly to Respondent himself in
August. The refusal-to-bargain issues include unit
questions , the Union's majority, and Respondent's alleged
good-faith doubt.
B. Interference, Restraint, and Coercion
The bulk of the 8 (a)(1) violations concern the conduct
of Richard Rothkin , who was not called to deny the
testimony of the General Counsel ' s witnesses . In brief the
evidence showed that within the next day or so after the
Union' s demand for recognition on July 12, Richard
Rothkin engaged in systematic interrogation of the
employees and solicited them to withdraw from the
Union.
Patricia Ann Taylor testified that Richard Rothkin
called her to the office, asked her if she had signed a card
for the union , why she did so, and whether she had time
to think about it. Rothkin told her that because of the
hours being worked , his father and mother would have to
be replaced and because Respondent could not afford to
do that and pay union wages for Sundays and holidays,
the store would have to close . Rothkin asked Taylor to
write a letter to the union stating that she had changed
her mind , that she did not want the Union to represent
her and would rather bargain for herself . Taylor agreed
and wrote and signed in Rothkin's presence the letter
'As corrected by amendment at the hearing.
175 NLRB No. 121
IRV'S MARKET
which he suggested. Rothkin also supplied the Union's
address, which Taylor wrote on the envelope, and asked
her to leave the letter with him.
Similar testimony was given by Nancy Ross, Cynthia
Hennessey, and Karen Sands, who also wrote and signed
withdrawals in phrasing which Rothkin suggested,
including statements that the employee had changed her
mind and had been promised nothing to do so. In two
cases (Ross and Hennessey) the employees acceded to
Rothkin's urging after first expressing a desire to talk
with their parents. The-employees left the letters with
Rothkin for mailing but supplied no postage. The letters,
postmarked July 15, were mailed to the Union by certified
mail, special delivery, with return receipt requested, at a
total postage cost per letter of 76 cents.
James McDuffee was also interrogated and was asked
to quit the Union but refused to do so because (he told
Rothkin) he was the one who started it. Rothkin also
questioned McDuffee concerning where he had gotten the
cards and what the employees wanted in the way of
wages, hours, and other benefits.
In addition to the foregoing, Respondent stipulated
when Nancy McDuffee was called to the stand that
Richard Rothkin would admit if called that he also had
conversations with Nancy McDuffee, Charles Everly, and
Rodney Sands similar to those to which the other
witnesses testified, that he also inquired whether they
would withdraw from the Union and if they would write a
letter to that effect, that such letters were written in his
office and that the contents were similar to those which
were written by the other witnesses.
A final incident involved Irving Rothkin himself and
occurred some time in August. James McDuffee testified
that Rothkin began berating him for "corrupting his
family . . . because of the union guys coming in," and
stated in part that he had more help than he needed and if
he had to pay the wages that Miracle Mart (a competitor)
paid, he would have to lay people off and shut the store
down. Rothkin admitted the conversation with McDuffee
but denied that the Union was mentioned and made a
general denial that he ever made a statement to any
employee that if the Union came in he would close the
store down . Karen Sands, called in rebuttal, testified that
she overheard the conversation and heard Rothkin ask
McDuffee why he brought the Union in and heard
Rothkin say he could not afford to pay union wages. I
credit McDuffee's testimony in view of that corroboration.'
Concluding Findings
As is seen, Richard Rothkin did not tell the employees
the purpose of his interrogation concerning the signing of
union cards, he gave no assurances against reprisals, and
the polling was not by secret ballot. Furthermore, his
statement about the closing of the business and his
solicitation of the withdrawal letters preclude any finding
that the interrogation occurred in a noncoercive
atmosphere. I therefore conclude and find that by
interrogating the employees concerning the signing of
cards and their reasons for doing so, Respondent
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed in Section 7. Struksnes
Construction Company, 165 NLRB No. 102.
'Rothkin 's testimony elsewhere was confused and his recollection shown
to be faulty as in the request to bargain interview on July 12 See section
C, 3, infra
747
The solicitation of withdrawals and the direction and
assistance given the employees in preparation of the
letters, which extended to payment of postage and mail
fees and the actually mailing, was similarly a violation of
Section 8(a)(1) of the Act. N.L.R.B. v. Priced-Less
Discount Foods, Inc., 405 F.2d 67 (C.A. 6); N.L.R.B. v.
H W. Elson Bottling Co, 379 F.2d. 223, 225 (C.A. 6).
Indeed the Board has found violations in cases where the
employees requested help and the employer was merely
assisting employees in carrying out their desires to
withdraw. Neil Amana Food Service, 163 NLRB No. 27;
Flambeau Plastics Corp., 167 NLRB No. 102. In any
event Rothkin's conduct here went beyond all permissible
limits.
I find a further violation of Section 8(a)(1) in Richard
Rothkin's statement that if the Union came in they would
have to replace his mother and father, which they could
not afford to do, and consequently would have to close the
store Such statements have been held by the Board to be
thinly veiled threats and violative of the Act. Marsellus
Vault & Sales, 170 NLRB No. 99; Mt Read
Volkswagon, 168 NLRB No. 100; Alco Mining Co., 169
NLRB No. 69. I find a similar violation in Rothkin's
statement to McDuffee in August that he had more help
than he needed and if the Union came in he would have to
lay people off and shut down the store.
C. Refusal To Bargain
1. The unit and its constituency
The complaint specifies as an appropriate unit all
regular full-time and regular part-time employees, but
excluding professional employees, guards, and supervisors
as defined in the Act. Respondent's answer did not deny
that such unit is appropriate but averred that there were
only four employees who qualified for inclusion and that
five other employees were summer part-time employees
and therefore not regular part-time employees.
The General Counsel agreed to the exclusion of
temporary summer employees (students) and a stipulation
was reached at the hearing that the regular full-time and
part-time employees were Nancy Ross, Patricia Taylor,
James McDuffee, and Karen Sands,' reserving an issue as
to Cynthia Hennesey, whom Respondent contended
belonged in the student group. As the hearing proceeded
however, other issues arose concerning the inclusion in the
unit of Nancy Ross, a meat clerk (on the theory that a
unit of grocery clerks and meat clerks is inappropriate),
Karen Sands on the ground that she was a probationary
employee when she signed the card, and Hennessey
because she was a minor under 18 years of age when she
signed the card.
On the unit issue proper I find the unit specified in the
complaint to be an appropriate one within the meaning of
Section 9(b) of the Act. The inclusion of Nancy Ross,
whose duties included in part serving as a meat clerk, did
not render the unit inappropriate, for the Board 's policy is
not to exclude meat department employees from a
storewide unit of other employees except when another
union seeks to represent them separately. Schaeffers
Prospect IGA, 124 NLRB 1433, 1434, and cases there
cited.
'The stipulation also identified the summer part -time employees as
Rodney Sands, Daniel Everly, Nancy McDuffee, Gerald Garson, and Betty
Harrison
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hennesey 's inclusion was contested both on the ground
of age and on the ground she belonged among the
excluded students . Respondent advanced no reason and
cited no authority for his position that Hennesey's age
would preclude her from signing a valid authorization
card. At age 17 Hennesey had completed her junior year
in high school when she was hired as a cashier , a job on
which she has worked continuously since early in June
1968. Those factors, plus Hennesey 's appearance and her
testimony as a witness , gave every indication that she
possessed sufficient mental capacity to express her desires
to be represented in matters of bargaining with her
employer.
Hennesey 's testimony also established that she was a
regular employee. When she was employed at the end of
her school term she was not hired only for vacation time.
Her hours during the summer months were from 5 to 1,
but when school started in the fall Fran Rothkin, who
,hired Hennessey , rearranged her work schedule so that she
she continued to work 4 days a week, 5 to 8, while she
was going to school . Hennesey 's status was significantly
different from that of the students embraced in the
stipulation, who were employed solely as summer
part-time students working for the summer only. I
therefore conclude and find that Hennesey is properly
includable in the unit.
On cross-examination of Karen Sands Respondent
developed that Sands was informed when she was hired
there was to be a probationary period of 2 weeks and that
Sands signed her union card during that period. There was
no indication, however, that anything was done thereafter
to affect her status and Respondent stipulated that Sands
was among those who were employed on July 12 and/or
13 as regular full-time or part-time employees. I therefore
conclude and find that Sands was properly includable in
the unit.
To summarize, I conclude and find that as of July 12
the appropriate unit was composed of Nancy Ross,
Patricia Taylor, James McDuffee, Cynthia Hennesey, and
Karen Sands.
2. The Union' s majority
Authorization cards signed by all 5 employees in the
unit were received in evidence after testimony by each of
the signatories. The cards contained the simple statement
that the signatories, desiring to enjoy the rights and
benefits of collective bargaining , authorized Retail Clerks
International Association, AFL-CIO, or its chartered
local union, to represent him for the purposes of collective
bargaining respecting rates of pay, wages, hours of
employment, or other conditions of employment in
accordance with applicable law. Each employee either
read the card or understood it to be a union authorization
card.
Cross-examination of the signatories developed nothing
of consequence which reflected on the validity of the
authorizations under the principles recently restated and
reaffirmed by the Board in Levi Strauss & Co., 127
NLRB No. 57, and McEwen Mfg. Co., et a!., 172 NLRB
No. 99. See LRR Analysis, Vol. 68, No. 21, July 15,
1968. I therefore conclude and find that as of July 12,
1968, Respondent represented a majority of the employees
in the appropriate unit found above.'
'As three of the part -time employees also signed authorization cards it is
apparent that the Union was the representative of a majority even if the
unit were found properly to include the part-time students . Cf. Post
3. The refusal to bargain; the issue of good-faith
doubt
James W. Fuchs, an organizing representative of the
Union, testified that in company with Bill Rhodes and
Howard Finlay , other union representatives , he made a
demand for recognition and a request to bargain of
Respondent personally on July 12. Fuchs informed
Rothkin that the Union represented a majority of the
employees and offered in proof 8 authorization cards
(signed by the five employees in the unit and by three of
the part-time employees ). Rothkin took the cards and
went through them 3 times altogether before handing
them back. Fuchs inquired if it were not true that the
Union represented a majority of the employees and
Rothkin agreed that it did. Fuchs thereupon informed
Rothkin that the Union would allow him 2 or 3 days to
check his schedule and seek legal advice but would then
expect Rothkin to come to the bargaining table prepared
to negotiate a contract . Fuchs asked Rothkin to call him
in 2 or 3 days after thinking the situation over.
Though Rothkin admitted that he looked through the
cards and noted the names of some 6 signatories (Nancy
Ross, Jim McDuffee, Pat Taylor, Karen Sands, Cindy
Hennesey, and Nancy McDuffee), he denied that he
agreed to recognize the Union as bargaining agent . Indeed
under Rothkin 's testimony the union representatives made
no reference to the purpose of their visit and ended it
simply by saying they would be back in a day or so to
talk with him. The implausibility of the latter testimony
plus Rothkin's inability to recognize Fuchs as the union
spokesman persuade me to credit Fuch's version of the
interview.
I therefore conclude and find that Respondent received
a valid claim for recognition and a request to bargain and
that he expressed no doubt of the Union's majority status.'
Rothkin left the store immediately after the visit after
informing his son Richard that the callers were
representatives of the Retail Clerks Union. During the
next 2 days Richard Rothkin engaged in the extensive
8(a)(1) conduct as found in section B, supra , which was
designed to and did in fact dissipate the Union's majority.
Though Richard informed his father that he had talked to
the employees and they all had signed letters that they did
not want to belong to the Union, Respondent said nothing
to disapprove of his son's conduct nor did he say anything
to the employees in disavowal of it.
Matters stood thus until about Monday, July 15, when
George Hennigin , organization director of the Union,
called on Respondent in company with three other union
representatives and handed Respondent copies of unfair
labor practice charges which the Union proposed to file
based on the conduct of Rothkin's son in connection with
the withdrawal letters . During the conversation Hennigin
renewed the Union 's request to bargain and pressed for a
date for a meeting . When Hennigin called Rothkin the
following Monday, Rothkin said he would not recognize
the Union and would not meet with it. Thereafter the
Union filed the charge in this case. Hennigin testified that
in the first conversation Rothkin denied that his son had
engaged in the conduct charged to him but later admitted
Houses, Inc , 161 NLRB No. 102, fn. 1, and pps. 17 and 18 of the Trial
Examiner's Decision.
'Even if Rothkin had entertained any unexpressed doubts, he could
obviously have resolved them in a few minutes by checking the signatures
on the few cards against his office employment records.
IRV'S MARKET
that his son-might have-solicited the letter and might have
made the remarks abo}tt closing the store.
Rothkin's testimony was not in substantial conflict with
the foregoing. He admitted that when he talked to
Hennigin he knew of his son's actions and that he said
and did nothing in disapproval or disavowal.
` Concluding Findings
In the absence of a brief from Respondent's counsel it
is difficult to determine the precise contours of his
contentions concerning Rothkin's alleged good-faith
doubt. Judging from positions taken at the hearing his
contentions are presumed to be those which were disposed
of in sections 1 and 2, supra, and those now to be
considered.
The Union's demand for recognition obviously included
a unit which embraced the temporary summer employees.
Notwithstanding that inclusion, the unit was nevertheless
an appropriate one and there was sufficient identity
between it and the unit found to be appropriate to justify
the conclusion that Respondent's refusal to bargain
applied to both units. Post House, _Inc., 161 NLRB No.
102, fn. 1. Furthermore, at the time the Union made its
bargaining request, -,'Respondent raised no questions
concerning the appropriateness of the unit or the inclusion
therein of the` temporary employees. N.L.R.B. v. Sinclair
Co., 397 F.2d 156, 161 (C.A. 1). Cf. J.C. Penney Co., 172
NLRB No. 82. Aside from the foregoing it is now well
established that a good-faith but erroneous doubt as to the
appropriateness of the unit is not a defense to otherwise
meritorious charge of refusal to bargain. Southland Paint
Co., Inc., 156 NLRB 22, and cases there cited.
Nor does the record support any claimed doubt of
majority. Rothkin examined the signed authorizations,
was apparently satisfied of their validity and authenticity,
and acknowledged the Union's majority, a fact which was
confirmed by Richard Rothkin's interrogations and by his
procuring of withdrawal letters from all but one of the
employees in the unit. Furthermore, Respondent cannot
rely on those withdrawals to justify his refusal to
recognize the Union, for they were induced and obtained
by his unfair labor practices. Thus Respondent's conduct
demonstrated a rejection of the collective-bargaining
principle and a 'desire to gain time within which to
dissipate the Union's; majority status. Joy Silk Mills, 185
F.2d 732, cert. denied 341 U.S. 914; Thrift Drug
Company v. N.L.R.B. 401 F.2d 1097 (C.A. 6); cf.
N.L.R.B. v. Priced-Less Discount Foods Inc., 405 F.2d 67
(C.A. 6).
I therefore conclude and find that by refusing to
bargain with the Union on and after July 12, 1968,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(5).and(1) of the Act.
Upon the basis of theforegoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing his
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1).
2. All regular full-time and regular part-time
employees, but excluding professional employees, guards
and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
749
3. At all times on and after July 12, 1968, the Union
has been the exclusive representative of all the employees
in said unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment and
other conditions of employment.
4. By refusing to bargain with the Union on and after
July 12, 1968, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
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 as
outlined below which I find to be necessary to remedy and
remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
Irving N. Rothkin d/b/a Irv's Market, his agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
membership activities and sympathies.
(b) Threatening employees with closing of the store if it
were organized by the Union.
(c) Soliciting his employees to refrain from adhering to
or supporting the Union or to withdraw from the Union.
(d) Refusing to bargain collectively with the Union as
the exclusive representative of his employees in the unit
herein found to be appropriate.
(e) In any like or similar manner interfering with,
restraining , or coercing his employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request bargain with Retail Clerks
International Association, Local No. 698, AFL-CIO, as
the exclusive representative of his employees in the unit
herein found appropriate and embody any understanding
reached in a signed agreement.
(b) Post in his store and offices at Akron, Ohio, copies
of the attached notice marked "Appendix."6 Copies of
said notice on forms provided by the Regional Director
for Region 8, shall, after being duly signed by Respondent
be posted by him immediately upon receipt thereof, and
be maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced or covered by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
`In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals enforcing an Order" shall be substituted for the words "a Decision
and Order "
'In the event that this Recommended Order is adopted by the Board,
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this provision shall be modified to read "Notify the Regional Director for
Region 8 , in writing , within 10 days from the date of this Order, as to
what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
I WILL NOT interrogate coercively my employees
concerning their union membership, activities or
sympathies.
I WILL NOT threaten employees with closing my store
if it is organized by the Union.
I WILL NOT solicit my employees to refrain from
adhering to or supporting the Union or to withdraw
from the Union.
I WILL NOT refuse to bargain with Retail Clerks
International Association, Local 698, AFL-CIO, as the
exclusive representative of my employees in the
bargaining unit.
I WILL NOT in any like or similar manner, interfere
with, restrain or coerce my employees in the exercise of
their rights guaranteed in Section 7 of the Act.
I WILL bargain collectively upon request with Retail
Clerks International Association, Local 698, AFL-CIO,
as the exclusive representative of my employees in the
bargaining unit described below with respect to rates of
pay, wages, hours of employment and other conditions
of employment and if an understanding is reached
embody such understanding in a signed contract. The
bargaining unit is:
All my regular full time and part-time employees, but
excluding professional employees, guards and
supervisors as defined in the Act.
All my employees are free to become or remain or
refrain from becoming or remaining members of Retail
Clerks International Association, Local 698, AFL-CIO, or
any other labor organization, except to the extent
provided by Section 8(a)(3) of the Act.
IRVING N. ROTHKIN
D/B/A IRV'S MARKET
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 1695 Federal
Office Building , 1240 East Ninth Street, Cleveland, Ohio,
Telephone 522-3715.