Jack & Jill Stores

National Labor Relations Board - Board Decisions

Sep 17, 1969

178 N.L.R.B. 458 (N.L.R.B. 1969)

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nash-Finch Company d/b/a Jack & Jill Stores and
Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL- CIO, District
Union 271 . Case 17-CA-3697
September 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCUL1oCH AND MEMBERS
FANNING AND JENKINS
On April 28. 1969, Trial Examiner William J.
Brown issued his Decision in the above-entitled case,
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 attached Trial Examiner's Decision. lie further
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint. Thereafter. the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.'
Pursuant to the provisions of Section 3(h) 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 ['he Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
'I he complaint alleges (1) that the Respondent
violated Section 8(a)(5) of the Act by its August 31,
1968, refusal to bargain with the Amalgamated
Meat Cutters as representative of the employees in
the meat departments of Respondent's three Grand
Island, Nebraska stores, and (2) that the
Respondent violated Section 8(a)(1) by various acts
of coercion and interference directed against the
union activities of its employees. The Trial
Examiner found that the Respondent had, as
charged, violated Section 8(a)(5), and had also
committed violations of Section 8(a)(1) in most of
the respects alleged. The Respondent has filed
exceptions to the violations so found. After careful
consideration of the record and the arguments based
thereon, we conclude that the Section 8(a)(1)
findings made by the Trial Examiner are proper, but
'Subsequently , the Charging Party filed a motion to remand this case to
the trial Examiner for lurther consideration of his Findings in the light of
N L R B v Gttcel Packing Co, 395 U S 575 The Respondent filed an
opposition to the motion in view of our disposition of the cast, there is no
occasion for consideration of this case under the principles enunciated in
Gicsel Packing Co , and the motion is denied
that his finding of an 8(a)(5) violation is not. We
shall discuss below only those facts relevant to our
disposition of the 8(a)(5) allegation.
The Union has represented the meat departments
in Respondent's four stores in Hastings. Nebraska.
for a number of years. In August 1968, the Union
began organizing the meat department employees at
Respondent's three stores in Grand Island,
Nebraska, about 25 miles from Hastings.
At a meeting at the Labor Temple on August 20,
the Union obtained signatures from seven
nonsupervisory Grand Island meat department
employees. Also present at the meeting were two
Grand Island meat department supervisors, who
worked at different stores. While the two supervisors
also signed cards that evening, there is no showing
that the,, solicited or coerced the other seven to sign.
The Union made its demand for recognition the
next day, August 21, and the Respondent declined
by letter of August 31, saying that it believed that
the question of representation should he determined
by an election. Between these two dates, the
Respondent had a complement of 16 employees in
the appropriate three-store meat department unit.
The Union, accordingly, needed nine cards in order
to establish a valid claim of majority representation
during this period. The seven cards signed at the
meeting by nonsupervisory employees were properly
counted by the Trial Examiner toward this majority.
The two cards signed by the admitted supervisors
are, of course, excluded from the count. The
General Counsel, however, contends, and the Trial
Examiner found, that two other cards obtained on
the night of August 20 are valid cards which may be
used in establishing a majority. In our view, the
Trial Examiner erred in counting these two cards,
and it follows that the Union's claim of
representative status on the critical dates must fail
for want of majority representation.
These two disputed cards were solicited on August
20 by the two supervisors who had attended the
meeting earlier that evening. Alter the meeting,
Meat Department Manager Dawkins went to the
home of employee Bishop, vvhoni he had never
previously visited. Bishop did not work in the same
store as Dawkins, but she knew that he was a
supervisor, and she had worked at his store as a
demonstrator at one time. The evidence shows that
Dawkins solicited Bishop to sign a card, and that
she compiled. Her testimony indicates that she had
previously decided to sign a card if a majority of her
tellovv employees did so. and. upon being told by
Dawkins that a majority had signed. she agreed to
sign also.
The Trial Examiner found that the [act that
Bishop's card was solicited by a supervisor did not
affect the validity of the card. lie reasoned that
since Bishop had said that she would sign it a
majority did, this factor was the only critical
condition to her signing, and the fact of supervisory
solicitation became irrelevant.
178 NLRB No 77
JACK & JILL STORES
The other supervisor who had attended the
meeting of August 20 was Roberts. head meatcutter
in employee Moeller's store. After the meeting,
Roberts and Hansen (a rank-and-file employee in
the same store) %isited Moeller, and they both
solicited her to sign a card. As in Bishop's case,
Moeller testified that she had previously determined
to sign for the Union if a majority of her fellow
employees did. When Roberts told her that they
had, she signed up.
The Trial Examiner again reasoned that Moeller's
focus on signing once a majority was attained
nullified any influence that Roberts' solicitation
might have had by x irtue of his supers isory position.
Ile therefore validated her card.
The Board has held that the solicitation of
authorization cards by supervisors raises a
substantial question about the reliability of such
cards and renders them invalid Heck's Inc., 156
NLRB 760, 767; ;i.T.1 Warehouse, Inc., 169
NLRB No. 75. Testimony of the two employees as
to their state of mind in signing the cards is
immaterial, N.L.R B. v. Sunshine Mining Corp ,
I10 F.2d 780, 790 (C.A. 9), NLR B. v. Gissel
Packing Co., 395 U.S. 575, and may not he relied
upon for the purpose of curing the defect inherent in
cards procured directly by supervisors.
Accordingly, since the Union did not represent a
majority of the employees in the appropriate unit,
we shall dismiss the Section 8(a)(5) allegation of the
complaint. In accordance with our findings, we do
not adopt paragraphs 4 and 5 of the Trial
Examiner's Conclusions of Law and that part of his
recommended remedy relating to recognition and
bargaining
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent. Nash-Finch Company d/b/a Jack &
Jill Stores, Grand Island, Nebraska, its officers,
agents. successors. and assigns. shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified-
I. Delete subparagraph 2(a) of the Recommended
Order and redesignate the succeeding subparagraphs
accordingly.
2. Delete from the notice attached to the Trial
Examiner's Decision the first two full paragraphs.
beginning respectively "WE WILL NOT refuse to
bargain collectively" and "WE WILL sign a written
contract."
TRIAL EXAMINER'S DECISION
Wii LIAM J. BROW,,, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, hereinafter referred to its the "Act," came on
459
to he heard at Grand Island, Nebraska, on February 11
and 12, 1969. The original charge of unfair labor practices
had been filed October 9. 1968,' by the above-indicated
Charging Party, hereinafter sometimes referred to as the
"Union," and the complaint herein was issued January 7.
1969. by the General Counsel of the National Labor
Relations Board acting through the Board's Regional
Director for Region 17. It alleged, and the duly filed
answer of the above indicated Respondent, hereinafter
sometimes relerred to as the "Company," denied the
commission of unfair labor practices defined in Section
8(a)(1) and (5) of the Act.
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues Subsequent to the close of the
hearing briefs were received from all parties and have
been fully considered. On the entire record herein and on
the basis of my observation of the witnesses, 1 make the
following
FINDINGS of FACT
I. Tilt! BLSINI•SS OF 1HF COMPANY
The pleadings and evidence indicate and I find that the
Company is a corporation organled and existing under
and by virtue of the laws of the State of Minnesota and
engaged in the business of retail selling of grocery and
related products at locations in several midwestern states
including locations in Grand Island and Hastings.
Nebraska. In the course of its business operations in
Nebraska the Company annually receives products valued
in excess of S50,000 and shipped to its Nebraska locations
directly from points outside the State of Nebraska. The
annual volume of retail sales at the Nebraska locations
exceeds S500,000. I find, as the Company concedes, that it
is an employer engaged in commerce within the purview
of Section 2(6) and (7) of the Act
iI. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish that the Union is
a labor organization within the purview of Section 2(5) of
the Act
iii. THE UNi' AIR LABOR PRACTICrS
This case concerns events occurring at the Company's
retail stores in Hastings and Grand Island, Nebraska, in
late summer and fall of 1968. The Union has had
collective-bargaining relations with the Company covering
the four Hastings stores= for a substantial number of' years
prior to 1968 and in August commenced an organizational
campaign directed at the Company's three Grand Island
locations The union campaign was directed by Union
Representatives Robert Parker and Vernon Allen, the
latter being also Union first vice president. The pleadings
establish the appropriateness of the unit involved in the
Grand Island locations, vi all full-time and regular
part-time meat market employees employed in the meat
department of the Company's Grand Island stores,
including meat cutters, meat wrappers and cleanup boys.
but excluding office clerical employees, food clerks,
guards and supervisors as defined in the Act, and all other
employees.
'Dates heremaft ,;r relate to the year 1968 unless otherwise indicated
'The Hastings stores are located at West Heights, Hillcrest, West Mall
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pleadings also establish the supervisory status of
the following Company representatives.
Charles Engh, Superintendent of Retail Operations
Alvin Gross, Nebraska Division Manager
Clayton Kent, Zone Store Manager
Don Petersen, Head Meat Cutter, West Heights Store
Jimmie Hansen. Head Meat Cutter, Hillcrest Store
Wes Kensinger, Head Meat Cutter, West Second Store
Robert Dawkins, Head Meat Cutter, South Locust
Store
Johnny Roberts, Head Meat Cutter. North Broadwell
Store y
A. The Refusal To Bargain
It appears from a stipulation of the parties (General
Counsel's Exhibit 2) that at all material times, i.e.,
throughout the period August 20 to October 10, the total
number of employees in the above-mentioned unit varied
between 14 and 16. General Counsel's Exhibits 3 through
9, inclusive, are union authorization cards signed by seven
employees' who remained members of the bargaining unit
at all material times. These seven cards were obtained by
Union Representative Parker at a meeting in the Labor
Temple in Grand island on August 20, and constitute an
unequivocal authorization of the Union as the signers'
bargaining agent. There appears to be no question as to
their validity as designations of the Lnion as the
collective-bargaining representative of the signers.
The August 20 meeting at the Labor Temple was
attended by Robert Dawkins and Johnny Roberts, meat
department managers of the Company's South Locust and
North Broadwell stores. Their supervisory status is
established by the pleadings Following the meeting
Dawkins visited Ellen Bishop, an employee of the North
Broadwell store who knew of Dawkins supervisory status
at the South Locust store Bishop had previously let it be
known that if a majority of employees signed for the
Union she would also sign, she understood Dawkins to say
on the night of August 20 either that the Union had a
majority or that they were pretty sure that they had a
majority She thereupon signed an authorization card
(Charging Party's Exh. 2). her signature being witnessed
by Dawkins. In the circumstances of this case it cannot be
said that Dawkins, in any realistic sense, solicited her
signature nor that his status as a supervisor at a store
other than the one in which she worked affected the
validity of her card. See I T.T Sem r- Conductors, Inc.,
165 NLRB No. 98, and Ozark '%'Iotor Lines, 164 NLRB
No. 41 1 conclude that Bishop's card constituted a valid
designation of the Union as her collective-bargaining
representative. With respect to the card executed by
Marlene Moeller it appears that she was solicited to sign
by her fellow-employee Hansen and by her supervisor
Roberts. Her testimony is, however, that she had
previously determined to sign a card if the majority of her
fellow-employees did and when she was informed that they
had, that was all the information she needed to sign the
card. Her testimony also indicates that she had
determined to sign sometime before August 20 on the
and South Elm, the Grand Island locations are at North Broadwell, West
Second and South Locust The distance between Hastings and Grand
Island is about 25 miles
'The employee-signers are Arthur Hansen. Emma Kammervell, Stephen
Wheeler, Eileen York, Richard Batt, Robert Krebsbach, and Barbara
Longsinc
basis of the arguments put forth to her by Hansen. In the
circumstances I can only conclude that her decision to
sign was completely unaffected by any supervisory
influence on the part of Roberts and I conclude that her
card was a valid designation of the Union as her
bargaining agent
Helen Green, an employee of the West Second store
testified that she signed a union card early in September
and gave it to Krebsbach for transmittal to Allen. This
card apparently was lost or mislaid and she signed a
second card on December 17 (G.C. Exh 29). It is clear
that General Counsel's Exhibit 29 is a replacement for the
card she originally signed and I conclude that she must be
regarded as one of the card signers for the Union as of
early September. In this regard the conclusion reached is
buttressed by the fact there appears to be no contest of
her signature on General Counsel's Exhibit 28(d) in which
she purports to resign from the Union thereby indicating
her prior authorization of the Lnion as her representative
Thomas Oshlo commenced work as a regular part-time
employee sometime about 2 or 3 months prior to August
29 when he signed a union card (Charging Party's Exh. I).
Present at the time he signed the card were employees
Bishop, Moeller, and Hansen and Supervisor Roberts. His
testimony is that Roberts, who witnessed his signature on
the card, did not solicit his signature but merely said that
the card was there for him to sign if he wanted to It
appears plain that there was no supervisory influence
conditioning or causing his signature and I conclude that
his card should be regarded as a valid designation of the
Union as of August 29. It appears, however, that he was
transferred to the grocery department on August 31 and
his card cannot be regarded as an effective designation
with respect to the unit here involved subsequent to that
date.
It appears that at the time of its original demand on for
recognition, which was made by letter from Parker to
Engh on August 21 the Union had secured valid
authorizations from nine unit employees and shortly
thereafter secured additional authorization cards (Green's
and Oshlo's) I conclude that on August 21 and thereafter
the Union was the majority representative of employees in
the unit at least until October 5 when employees resigned
from membership in the Union under circumstances
hereinafter set forth.
Parker's August 21 letter requested negotiations for
both the Hastings and Grand Island meat market
employees and, with respect to the claim therein of
majority status at Grand Island. asserted a willingness to
submit the authorization cards for a check of the
signatures against signatures in the keeping of the
Company by a neutral third party. Gross replied by letter
of August 31 asserting, in elfect, that there was a
representation question involved which should be
submitted to the Board. On September 3, Parker by letter
persisted in meeting with respect to the Hastings
employees and on September 6 Gross explained that the
representation question related only to Grand Island and
that the Company was prepared to meet concerning
Hastings. By letter of September 10. Parker proposed a
date of September 18 for negotiations, tacitly accepting
the limitation contained in Gross' September 6 letter, viz
that bargaining would relate only to the Hastings
locations The September 18 date was shifted by mutual
agreement to September 23 and on that date Parker.
Allen, and Tate. the Company's attorney, met in the
latter's office. At the September 23 meeting and at
another meeting on September 25, there is a conflict in
JACK & JILL STORES
the accounts of Parker and Tate as to whether the
discussions related only to Hastings or also embraced
other conditions of employment at Grand Island. Allen
did not testify on the matter. I credit Tate' s testimony
that these discussions related only to Hastings and that
recognition was not demanded for Grand island at these
meetings . This conclusion also finds support in Tate's
letters of September 24 requesting an election and by the
filing of the RM petition covering Grand Island on
September 25. With respect to the RM petition
concerning Grand Island the record indicates that the
petition was dismissed by the Regional Director but the
reason for dismissal does not appear in the evidence.
At a union meeting on September 4 in Grand Island. a
vote was taken on whether or not to strike to obtain the
Omaha-Lincoln rates for meat department employees of
the Grand Island and Hastings stores. The vote was
unanimous in favor of striking. Gross and Engh were
informed of the vote by Head Meat Cutters Dawkins and
Hansen. Gross communicated with Engh and sometime
towards the end of September consulted the Company
attorney respecting the Company's rights in view of
reports that employees were dissatisfied with the Union.
On September 25 and October 2. RM petitions were filed
by the Company covering, respectively, the Grand Island
and Hastings Stores. and Gross was advised that it would
be permissible for company officials to provide employees
with union membership revocation forms.
Sometime after the September 4 strike vote, Dawkins
overheard employees of his South Locust store expressing
their dissatisfaction with the imminent possibility of a
strike and their desire to get out of the Union This desire
was stirred by employee awareness of the possibility of
union fines being imposed for failure to support the Union
by honoring picket lines. Gross secured the legal advice
that it would be permissible to provide employees with
union membership withdrawal forms and he caused to be
reproduced (G C. Exh 28A-J) withdrawal notices
addressed to the Union and signed on October 5 by all the
employees of the Grand island (and some Hastings
employees) listed above as having signed union
authorization cards. The signers also sent telegrams to the
Union expressing their desire to withdraw from
membership. The evidence is clear that Dawkins, head
meat cutter at the South Locust Store and a supervisor,
was the first signer of the withdrawal petition and that
Dawkins and Gross visited all three Grand Island stores
and advised employees that a strike appeared imminent
and that many employees desired to be free to cross
picket lines without incurring liability for union fines and
that their desires could be attained by signing the forms
provided by the Company. The evidence clearly
preponderates in favor of the conclusion that the
employees were advised that in view of reports of the
forthcoming strike and the desires of some employees to
continue work despite a strike the Company was providing
membership withdrawal forms as a means of enabling
employees to decide among themselves whether they
wished to utilize the forms as a means of avoiding liability
for union fines.
The Company relies on Clark Control Division of A.O
Smith Corp., 166 NLRB No. 55, and Martin Theatres of
Georgia, 126 NLRB 1054, as requiring the conclusion that
the conduct of its supervisors in preparing and presenting
to employees the union withdrawal forms constituted no
unfair labor practice. But in Clark Control Division there
was a complete absence of any contemporaneous
anti-union campaign and in Martin Theatres the Board
461
adopted the Examiner's statements that
It is well established that an employer may not prepare,
circulate or solicit employees' signatures to revocations
of union designations . . .Thc basic question . . . is
whether the employees decide of their own free will,
independently of employer solicitation to withdraw their
union designations.
In the instant case, while there may have been rumblings
of employee concern about the possibility of strike action,
it appears clear to me that the Company over-reacted and
grasped the opportunity to take affirmative steps to
encourage and assist the employees in revocation of their
Union designations. Furthermore, as appears hereinafter,
there were contemporaneous unfair labor practices in the
nature of interference with employee self organizational
rights which can only be regarded not only as having
influenced the climate in which employees were presented
with the union revocation forms, but as a rejection of the
collective-bargaining principle within the doctrine
enunciated in Joy Silk Mills, 85 NLRB 1263 enfd. 185
F.2d 732, cert. denied 341 U.S. 914 Since the Company
admits that it has at all times since August 31, refused to
bargain with the Union respecting the Grand Island unit,
I find and conclude that it has by such refusal engaged in
an unfair labor practice defined within the scope of
Section 8(a)(5) of the Act.4
B. Interference, Restraint , and Coercion
1. Don Petersen
Don Petersen was at all material times the head
meatcutter of the West Heights store in Hastings and
admittedly a supervisor. The complaint alleges and the
Answer denies that Petersen (1) on or about September 28
informed an employee that the Company desired to
organize a meeting to rid itself of the Union; (2) on or
about October 7 instructed an employee that he should
never speak of the Union, and (3) on or about October 3
at the West Heights store and October 5 at the West Mall
and South Elm stores solicited or assisted employees to
resign from the Union.
Fern Bonds, a meat market clerk in the West Heights
store and a union supporter, testified that Petersen spoke
to her in the back room of the store at about 5 o'clock on
September 28 and said that Gross and Engh had spoken
to him about calling a meeting of employees to sound out
their feelings respecting the Union and about the
possibility of some form of nonunion representation in
view of the fact that the Company could not meet the
wages demanded by the Union and might have to close
some stores. Don Petersen testified that the conversation
of September 28 occurred after he had determined to
assemble employees to talk to Gross without the Union
participating in the talk. He denied telling her that Gross
or Engh asked him to arrange such a meeting I credit
Bonds' account of the conversation. Both Bonds and
Petersen were union members at the time of this
discussion. Nevertheless , it seems plain that Petersen acted
on behalf of management in suggesting to Bonds the
possibility of nonunion representation and coupling with
'The Company has denied that the union sought to bargain subsequent
to August 21 The record indicates, however, and I find that Parker, whose
testimony I t,redit in this regard , testified that there was bargaining
respecting Grand Island employees in Tate's office on September 25 and
that Parker again requested bargaining in a discussion with Gross on
October I 1 at the North Broadwell store.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the suggestion the threat of store closing in view of the
wage demands of the Union. I find that this conversation
constituted an intrusion into Bonds' right to be free from
such influence in determining her position respecting the
Union and constituted an unfair labor practice within the
scope of Section 8 (a)(1) of the Act
With respect to the allegation that Petersen on October
7 threatened and instructed an employee never to speak of
the Union, Bonds testified that upon her reporting for
work Petersen called her to the office and told her that
the Union had misled him. When Bonds expressed her
continuing support of the Union, Petersen, according to
Bonds, told her that he did not want to hear her discuss
the Union anymore. Petersen testified that the
conversation became heated, as Bonds conceded, and that
he merely expressed his disinclination to argue further
with her. He denied forbidding Bonds to mention the
Union again. I credit Petersen's account and recommend
dismissal of this count of the complaint
Petersen is also alleged to have solicited and/or assisted
employees to withdraw from the Union on October 3 at
the West Heights store and on October 5 at the West
Mall and South Elm stores. Zetha Dillon, an employee of
the West Mall store, testified that on October 5 Engh,
Peterson. and Hansen came to her store where Hansen
and Petersen told her, in the back room, that they were
not happy with Union Representative Parker and they
thought employees should drop out of the Union; although
her testimony is that Petersen did not ask her to sign the
withdrawal form it is clear that Petersen made the petition
available for her signature after telling her that the
Company disapproved of the Union and thought that
employees should reject it I find that Petersen did in fact
on the occasion in question urge her to sign the
withdrawal petition and that thereby the Company
engaged in unfair labor practices within the purview of
Section 8(a)(1) of the Act.
At the 'Vest Heights store where Richard Peterson
regularly works 4 1/2 hours per week, Engh, according to
Richard Peterson's account, introduced Don Petersen and
James Hansen and then left them to talk with him. Don
Petersen and Hansen had the withdrawal forms available
and expressed their disapproval of the Union. While
Richard Peterson testified that he had already decided to
withdraw and signed before they finished their discussion.
it is also clear from his testimony that Don Petersen and
Hansen urged him to sign and facilitated his resignation. I
find that their conduct constituted interference with
Peterson's statutory right to be free from such employer
conduct respecting his actions toward the Union
2. Charles Engh
Engh is alleged to have, on October 3 at the West
Heights store, interrogated an employee concerning his
union activities Fern Bonds, a clerk in that store, testified
that Engh spoke to her in the hack room on October 3
and asked her why she thought she needed the Union.
When she replied that she felt she needed it for her
protection. Engh, according to Bonds, replied that that
indicated a poor relationship Lngh testified that the
conversation in question took place on the selling floor
and that after he told her of the filing of the RM petition
Bonds stated that she still thought she needed a union to
represent her He denied questioning her in any way I
credit Bonds' account of the matter and find that on the
occasion in question Engh interrogated in a manner and
under circumstances constituting interference, restraint,
and coercion within the scope of Section 8(a)(1) of the
Act.
The complaint also alleges that on October 25, at the
North Broadwell store Engh urged or instructed
employees not to attend union meetings. Ellen Bishop, a
wrapper at the North Broadwell store and, as noted
above, a union card signer, testified that on October 25, in
the course of a discussion about paychecks either Gross or
Engh, both being present, advised her not to attend a
union meeting because a light attendance might
discourage the Union. Engh did not testify on this matter
and Gross' testimony is that he merely advised employees
that other employees had decided not to attend union
meetings. I credit Bishop's testimony that either Gross or
Engh advised her not to attend a forthcoming meeting so
that a light attendance might discourage the Union. By
such advice the Company engaged in interference with
employee rights protected under the Act.
Engh is also alleged to have solicited or assisted
employees to resign from the Union on October 3 and 5
at the South Elm store and on October 5, at the West
Mall store. Mildred Fox testified that on October 3, Engh
talked to her in the West Mall store where she worked
and said that they would have a better relationship
without the Union. On October 5, she testified, Engh,
together with Petersen and Hansen, talked to her and
asked her to sign a paper of resignation from the Union.
Engh did not deny these charges and 1 find that on
October 3 and 5 Engh solicited an employee to resign
from the Union thereby engaging in unfair labor practices
within the scope of Section 8(a)(1) of the Act. The
evidence is lacking with respect to similar activities at the
South Elm store and I recommend dismissal of the
allegations of the complaint in that respect
3 Wes Kensinger
Kensinger. manager of the West Second store in Grand
island, is alleged on or about October 5 to have
threatened employees with reprisals if the Union became
the bargaining representative. I am cited to no evidence of
record to support this allegation and find none I
recommend that it be dismissed.
4. Alvin Gross
Gross is alleged to have urged employees not to attend
union meetings on October 7 at the West Mall store and
on October 25 at the North Broadwell store He is also
alleged to have promised employees at the West Second
store on or about August 22, benefits as an inducement
not to support the Union, to have instructed employees of
the West Mall store on October 7 and employees of the
North Broadwell store on October 25 not to attend union
meetings and to have solicited or assisted employee
resignations from the Union on October 5 at the North
Broadwell and West Second stores.
With respect to the August 22 promise of benefits at
the West Second store, employee Richard Batt, a
somewhat reluctant witness. testified that shortly after he
signed a union card on August 20, Gross and Engh were
talking to him in the store basement about the union
campaign and in the course of the discussion, Gross said,
after Batt complained that Safeway and Hinky Dinky
paid higher wages, that the Company employees would be
satisfied with what the Company would do after the union
campaign was over General Counsel cites cases said to he
in support of the conclusion that such an utterance
JACK & JILL STORES
constituted interference. restraint and coercion. I do not
read the cited cases as supporting this view and I find that
Gross' totally ambiguous statement cannot realistically be
regarded as an unfair labor practice
With respect to the solicitation of or assistance in union
membership withdrawals on October 5 at the North
Broadwell and West Second stores, Bishop and Hansen,
North Broadwell emplovices, testified that on or about
October 5, Gross stated that they did not need a third
party to handle their problems and presented them and
other employees with the union withdrawal lorm with the
explanation that if the employees sinned they could cross
a union picket line without fear of being fined. Later that
day Bishop signed but Hansen did not. The presentation
of such a petition coupled with argumentation in favor of
employee signing appears to he an unwarranted
interference into employee rights to he free of employer
influence in the matter of joining and assisting the Union
and constituted an unfair labor practice within the scope
of Section 8(a)(I) of the Act With respect to the West
Second store. Helen Green and George Batt testified that
Gross presented them with the union withdrawal form and
said that their signatures thereon would protect them
against union fines in the event it became necessary to
cross a picket line Although Batt conceded that Gross did
not say that employees had to sign, it is clear that Gross
presented the petition with arguments in favor of signing
and I find that his words and actions constituted
interference with employee rights and violated Section
8(a)(l) of the Act.
5. James Hansen
Hansen. head meatcutter at the Hillcrest store in
Hastings, is alleged to have solicited or assisted employees
to resign union membership on October 5 at the South
Elm and West Mall stores. Mildred Fox. a West Mall
meatwrapper, testified that on October 5 Hansen and
Engh asked her to sign the union withdrawal form because
they felt that the) did not need the Union. Richard
Peterson, a part-time employee at West Mall, testified to
the same effect. Hansen, who appears to have spearheaded
the union withdrawal program, did not contradict the
accounts of 1-ox and Peterson. I find that Hansen solicited
their signatures on the union withdrawal forms and
thereby engaged in interference within the scope of
Section 8(a)(1) of the Act.
With respect to Hansen's activities at the South Elm
store on October 5, Hansen himself testified that he
circulated the union withdrawal form but denied telling
employees that they had to sign the petition I find that
Hansen's circulation of the petition in connection with
Engh's exhortation to employees to sign constituted
interference within the scope of Section 8(a)(l)
6. Robert Dawkins
Dawkins, head mcatcutter at the South Locust store
and a supervisor, is alleged to have solicited or assisted
employees to resign union membership on October 5 at
the North Broadwell and West Second stores Helen
Green testified that Dawkins was among the supervisory
group who visited her store at West Second on October 5.
and presented her and others with the union withdrawal
form. She testified that Dawkins urged her to sign as a
means of avoiding big fines. Dawkins conceded that he
signed the petition and helped circulate it. I find that
Dawkins assisted in the procuring of signatures on the
463
withdrawal petition and thereby engaged in acts of
interference within the scope of Section 8 (a)(1) of the
Act
As to the North Broadwell store, Ellen Bishop testified
that Dawkins was among the group who spoke to her and
others in the hackroom of the store and presented her and
the others with the membership withdrawal form to sign
as a means of avoiding liability for fines in the event of
picketing By this action Dawkins intruded into matters
reserved under the Act for decision of employees without
management interference and I find that on this occasion
the Company, through Dawkins, engaged in an act of
interference within the scope of Section 8(a)(1) of the Act
1y. TFIF EFFECT Ol THE L1l•AIR LABOR PRACTiCI S UPON
COMMMLRCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor
practices, occurring in connection with the business
operations of the Company as set forth 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 obstructing
such commerce and the free flow thereof.
V. IHE Rr M1 •Dy
In view of the findings set forth above to the effect that
the Company has engaged in unfair labor practices
affecting commerce it will be recommended that it be
required to cease and desist therefrom and from like or
related unfair labor practices and take such affirmative
action including recognition of and bargaining with the
Union respecting its Grand Island stores, as appears
necessary and appropriate to effectuate the purposes and
policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following
CONCLUSIONS of LAW
I The Company is an employer engaged in commerce
within the meaning' of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 All full-time and regular part-time meat market
employees employed in the meat department of the
Company's Grand Island stores. including meat cutters,
meat wrappers and cleanup boys, but excluding office
clerical employees, food clerks, guards and supervisors as
defined in the Act constitute a unit appropriate for
purposes of collective bargaining under the Act.
4. At all material times the Union has been and is the
exclusive representative of all employees in the aforesaid
appropriate unit for purposes of collective bargaining
within the meaning of Section 9 of the Act.
5. By refusing from and after August 31, 1968 to
bargain collectively with the Union as exclusive
representative of employees in the aforesaid appropriate
unit the Company has engaged and is engaging in unfair
labor practices defined in Section 8(a)(5) and (1) of the
Act.
6. By suggestion the substitution of non-Union in place
of union representation, by soliciting employee revocation
of prior union authorizations as bargaining agent. by
advising employees not to attend union meetings and by
coercively interrogating employees concerning union
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation the Company has engaged in unfair labor
practices defined in Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect 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
conclusions of law and upon the entire record in this case,
it is recommended that the Company, its officers, agents,
successors, and assigns, shall.
I Cease and desist from.
(a) Soliciting employee revocation of union designation
cards, suggesting the substitution of nonunion for union
representation, advising employees not to attend union
meetings, coercively interrogating employees concerning
union representation
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under the Act.
2 Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act
(a) Upon request bargain collectively with the Union as
exclusive representative of employees in the unit found
appropriate as above and embody any understanding
reached in a signed memorandum of agreement;
(b) Post at the Company's Grand Island and Hastings
stores copies of the attached notice marked "Appendix "`
Copies of said notice. on forms provided by the Board's
Regional Director for Region 17, shall, after being duly
signed by an authorized representative of the Company,
be posted immediately upon receipt thereof and
maintained thereafter for 60 consecutive days in
conspicuous places. including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Company to insure that said notices are
not altered, defaced, or covered by other material:
'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
Recommendations of a Trial Examiner" in the notice If the Board 's Order
is enforced by a decree of a United States Court of Appeals, the notice
will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order -
'in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 17, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
(c) Notify the Regional Director for Region 17, in
writing, within 20 days' from receipt of this Decision,
what steps have been taken to comply herewith.
IT IS RE-COMMENDED that the complaint herein be
dismissed as to allegations therein of unfair labor
practices not herein specifically found to have been
engaged in.
APPENDIX
NOTICE TO ALL EMPI OYELS
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:
WE WILL NOT refuse to bargain collectively with
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, District Union 271 and we
will on request bargain collectively with the aforesaid
union as exclusive representative of our employees in
the following appropriate unit:
All full-time and regular part-time meat market
employees employed in the meat department of our
Grand Island stores, including meat cutters, meat
wrappers and clean-up boys but excluding office
clericals. food clerks, guards and supervisors.
WE WILL sign a written contract embodying any
agreement resulting from such collective bargaining.
We WILT NOl interfere with employee rights under the
Act by coercively questioning employees about their
union activities, by suggesting forms of nonunion
iepresentation, by soliciting employees to revoke their
union membership or by advising employees not to
attend union meetings
NASH-FINCII COMPANY,
D/B/A JACK & JILT . STORES
(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, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri
64106. Telephone 816-374-5282.