K & K Gourmet Meats

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1331 (N.L.R.B. 1979)

K & K GOURMET MEATS
K & K Gourmet Meats, Inc. and United Food and
Commercial Workers International Union, AFL-
CIO, Food Employees Union Local 590.' Case 6-
CA- 11774
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On May 29, 1979, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs, and
Respondent also filed a brief in opposition to the
General Counsel's exceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by in-
terrogating an employee concerning employee inter-
est in, and activity on behalf of, the Union, promising
employees a wage increase and health insurance and
profit-sharing benefits to discourage their interest in
or activity on behalf of the Union, and threatening an
employee that the employees' activity on behalf of the
Union would be futile.3
The Administrative Law Judge recommended dis-
missal of the complaint allegation that Respondent
violated Section 8(a)(l) of the Act when President
Katz, in a meeting with the employees the week fol-
lowing the Union's demand for recognition, solicited
and impliedly promised to remedy employee griev-
I The name of the Charging Party, formerly Amalgamated Meat Cutters
and Butcher Workmen of North America, Amalgamated Food Employees
Union Local 590, AFL-CIO, is amended to reflect the change resulting from
the merging of Retail Clerks International Union and Amalgamated Meat-
cutters and Butcher Workmen of North America on June 7, 1979.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
3The Adrmnistrative Law Judge further found that Respondent did not
violate Sec. 8(aX I) of the Act by changing its method of calculating gross
pay for income and social security tax purposes or by assignments of alleg-
edly more arduous work. No exceptions were taken to these findings.
ances. We find merit to the General Counsel's excep-
tion to this recommendation.
In concluding that there was no solicitation of
grievances, the Administrative Law Judge apparently
ignored the uncontroverted testimony of three em-
ployees, Ann Anderson, Nancy Green. and Evelyn
Wirhgt, that Katz stated at the meeting that he
wanted the employees to bring their problems to him.
Thus, Anderson testified that "Katz said he hoped to
settle our disputes among ourselves" and "to try to
resolve our problems with him, to come to him and
get this settled that way." Similarly, Green testified
that "Katz said he didn't realize all our problems we
had, or were having, and he felt we could handle this
problem between us," and Wright testified that "Katz
said he hoped he could work with us better in the
future, and he told us that he hoped he could settle
things, without an outside organization." Indeed,
Katz testified himself, on direct examination, that he
said that he wanted the employees to deal directly
with him and "I also told them that in the past, I
probably haven't heard them out.... I mean just
haven't been around enough to hear what's hap-
pened, or what should be happening." On cross-ex-
amination, he admitted that he told the employees
that they could work out their problems better with-
out a third party and that they should bring their
problems to him so that they could try to do so.
The Administrative Law Judge did not make any
factual findings based on the testimony of these wit-
nesses as to this issue, but the testimony of all four is
consistent and mutually corroborative. In addition,
Katz' concession that he told the employees to bring
their problems to him is clearly an admission against
interest. Based on this testimony, 4 we find that Katz
solicited employee grievances and in so doing im-
pliedly promised to remedy them. Reliance Electric
Company, Madison Plant Mechanical Drives Division,
191 NLRB 44, 46 (1971).
In making this finding, and in adopting the Admin-
istrative Law Judge's findings that Katz and Supervi-
sor Barbara Weiler unlawfully promised employees
improved benefits to dissuade them from their union
activity, we find no merit to Respondent's contention
that Weiler and Katz rebutted any inference of prom-
ises by stating in their conversations with employees
that they could not make such promises. The Admin-
istrative Law Judge made no finding regarding Wei-
ler's testimony that she stated in her telephone calls to
two employees, in which she was found to have made
promises of increased wages and improved benefits.
4 It is well settled that the Boad has the power to make findings of fact
based on the uncontradicted testimony of witnesses whose testimony has
been neither credited nor discredited b an administrative law judge. See
Retail Clerks International Association, .4 Fl. CIO, lxocal 21v (,National Food
Stores, Inc j, 134 NLRB 1680, 1683 l191).
245 NLRB No. 173
1331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Katz could make no promises. Nor did the Ad-
ministrative Law Judge make any finding either on
Katz' testimony on direct examination that during his
October 30 speech to the employees he had told the
employees he could make no promises, or on Katz'
concession on cross-examination that he did not ex-
plain to the employees his instructions from his attor-
ney not to make promises. We find it irrelevant in the
circumstances of this case whether Weiler or Katz
denied the ability to make promises, for as stated in
Michigan Products, Inc., 236 NLRB 1143, 1194
(1978): "It is immaterial that an employer professes
that he cannot make any promises, if in fact he ex-
pressly or impliedly indicates that specific benefits
will be granted." See also Montgomery Ward & Co.,
Incorporated, 228 NLRB 750, 757 (1977).
Thus, we have found that Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating employees
concerning union activities; threatening employees
that the Union's organizational campaign would be
futile; promising to increase wages and benefits; and
soliciting employee grievances. However, contrary to
the Administrative Law Judge, we find that Respon-
dent's unlawful conduct precludes the holding of a
fair election and warrants the issuance of a bargain-
ing order.
The Union demanded recognition on October 24,
1978. That afternoon, Respondent interrogated a
union proponent and threatened that the organiza-
tional campaign would be blocked. True to its word,
Respondent announced several days later that it
would grant the employees a substantial wage in-
crease. Then, on October 30, Respondent announced
that it had been considering a medical insurance plan
and a profit-sharing plan. Furthermore, during the
October 30 meeting, Respondent's president told the
employees that he hoped to settle the problems "with-
out an outside organization." As previously set forth,
we find that, by this latter conduct, Respondent vio-
lated Section 8(a)(l) by soliciting and impliedly
promising to remedy employee grievances.
Respondent's unfair labor practices are serious in
nature and began on the day the Union demanded
recognition. Its entire course of conduct, which in-
cluded a promise of a wage increase, promises of bet-
ter benefits, and solicitation of and a promise to rem-
edy grievances, was designed to impress on the
employees the fact that they did not need a union to
obtain satisfaction of their demands.5
Under the principles set forth in N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969), a bargaining
order is appropriate where a union's majority is es-
tablished by cards and the nature and extent of the
employer's unfair labor practices render unlikely a
5 Teledyne Dental Products Corp., 210 NLRB 435 (1974).
free choice by the employees in our election. As previ-
ously set forth, Respondent's unfair labor practices
were clearly designed to undermine the Union's ma-
jority status. Here, the promises of a wage increase,
increased benefits, and new approaches to resolve em-
ployee grievances, coupled with the threat that the
organizational campaign would be futile, result in
giving the employees much if not all of what they
were seeking through union representation.
In Honolulu Sporting Goods Co., Ltd., a subsidiary
of Zale Corporation, 239 NLRB 1277 (1979), the
Board quoted with approval the following statement
from Tower Enterprises, Inc., d/b/la Tower Records,
182 NLRB 382, 387 (1970), which is directly appli-
cable:
It is difficult to conceive of conduct more likely
to convince employees that with an important
part of what they were seeking in hand union
representation might no longer be needed. An
employer may have the right to persuade the em-
ployees that representation is not in their best
interests, but it does not have the right to
threaten them or confer benefits on them which
are designed to influence the employees against
choosing a representative. When, as here, an em-
ployer does so, free choice in a subsequent elec-
tion becomes a matter of speculation, so long as
the effects of the interference remain unrem-
edied.
Accordingly, we find that a bargaining order is nec-
essary and appropriate to protect the majority senti-
ment expressed through authorization cards and oth-
erwise to remedy the violations committed.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, K & K
Gourmet Meats, Inc., Leetsdale, Pennsylvania, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Food and Commercial Workers International Union,
AFL-CIO, Amalgamated Food Employees Union
Local 590, as the exclusive collective-bargaining rep-
resentative of all its employees in the following ap-
propriate unit:
Honolulu Sporting Goods Co., Lid, supra, See also Crago Gear & Machine
Works, 236 NLRB 539 (1978); National Care & Convalescent Industries, Inc.
d/b/a/ Elmwood Nursing Home, 238 NLRB 346 (1978).
We find that Respondent's bargaining obligation arose on October 24,
1978. the date of the Union's demand and on which it achieved majority
status, inasmuch as Respondent commenced its course of unlawful conduct
on or about that date. Trading Port, Inc., 219 NLRB 298 (1975).
1332
K & K GOURMET MEATS
All production and cleaning employees em-
ployed by Respondent at its Leetsdale, Pennsyl-
vania facility: excluding office clerical employees
and guards, professional employees and supervi-
sors as defined in the Act.
(b) Interrogating employees concerning their inter-
est in or activity on behalf of the Union or any other
labor organization.
(c) Threatening employees that the organizational
campaign would be futile.
(d) Promising employees benefits to discourage
them from engaging in activity on behalf of the
Union of any other labor organization.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its facility in Leetsdale, Pennsylvania,
copies of the attached notice marked "Appendix."7
Copies of said notice, on forms provided by the Re-
gional Director for Region 6, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the
complaint not specifically found be dismissed.
7 In the event that this 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 Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the right to
participate and examine and cross-examine witnesses,
it has been found that we have violated the National
Labor Relations Act in certain respects. We have
been ordered to post this notice and comply with its
terms.
WE wil.l NOr refuse to bargain collectively
with United Food and Commercial Workers In-
ternational Union, AFL-CIO. Amalgamated
Food Employees Union Local 590, as the exclu-
sive collective-bargaining representative of all
our employees in the following appropriate unit:
All production and cleaining employees em-
ployed at our Leetsdale, Pennsylvania, facil-
ity: excluding office clerical employees and
guards, professional employees and supervi-
sors as defined in the Act.
WE WILL NOT interrogate our employees con-
cerning their interest in, or activity on behalf of,
United Food and Commercial Workers Union,
AFL-CIO, Amalgamated Food Employees
Union Local 590, or any other labor organiza-
tion.
WE WILL NOT threaten our employees that
their activity on behalf of the above-named labor
organization would be futile.
WE WILL NOT promise our employees benefits
to discourage their interest in, or activity on be-
half of, the above-named Union or any other la-
bor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed above, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
K & K GOURMET MEATS. IN('.
DECISION
STATEMENT OF ItlE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was tried before me on April I i, 1979, in Pittsburgh, Penn-
sylvania, upon the General Counsel's complaint which al-
leged generally that since on or about October 24, 1978,'
Respondent has refused to bargain with the Charging Party
in violation of Section 8(a)(5) of the National Labor Rela-
tions Act as amended. 29 U.S.C. §151, et seq. The General
I All dates are in 1978, unless otherwise indicated.
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel also alleges that on October 24 and various dates
thereafter Respondent engaged in activity violative of Sec-
tion 8(a)( ) of the Act.
Respondent generally denied that it has engaged in any
unfair labor practices and affirmatively contends that it has
had a good-faith doubt that the Union has been designated
as the bargaining representative by a majority of its em-
ployees in an appropriate bargaining unit.
Upon the record as a whole, including my observation of
the witnesses, briefs. and arguments of counsel. I hereby
make the following:
FIN)INGS OF FA( I AN) (O()N(I ISIONS OF()I LAW
I. JURISDI I ION
Respondent is a closely held family corporation engaged
at Leetsdale, Pennsylvania, in the final processing of meat
which it wholesales to schools, restaurants, and the like. In
the course of its business, Respondent annually receives
products directly from points outside the Commonwealth of
Pennsylvania in excess of $50,000. Respondent also annu-
ally sells directly to customers who are themselves engaged
in interstate commerce products valued in excess of
$50,000. Respondent admits and I find that it is an em-
ployer engaged in interstate commerce within the meaning
of Sections 2(2), (6). (7) of the Act.
II. TllE LABOR OR(iANIZATION INVO)IVIED
It is admitted and I find that Amalgamated Meat Cutters
and Butcher Workmen of North America, Amalgamated
Food Employees Union local 590, AFL-CIO (herein called
the Union), is a labor organization within the meaning of
Section 2(5) of' the Act.
ll. TIlE ALI.E(il) UNFAIR I.ABH(R PRA(rTIICES
A. Background Facts
1. Structure of the work force
Arthur Katz, the president, owns 50 percent of Respon-
dent's stock. The remaining 50 percent is now owned by the
widow and five children of his brother Leo, who died on
August 30.
As indicated, Respondent's business is to receive meat
from suppliers, normally frozen and in 50 pound boxes,
which it then further processes and sells to retail outlets. It
appears that Respondent's principal product now is some-
thing it calls "butter steaks."
According to Katz, his production work force is mostly
women who are not available for full-time employment
elsewhere. In addition, Respondent has three cleanup em-
ployees, a maintenance man, and now two employees who
work occasional Saturdays as loaders. One of the part-time
loaders is Larry Katz, Arthur Katz' son, a high school stu-
dent, and another is Larry's friend, Carl Riggs. A third
driver-loader, an adult, was employed during the material
times herein but no longer works for Respondent.
Barbara Weiler is Respondent's most senior employee,
having being hired in 1968. In connection with a represen-
tation matter in 1974, Respondent took the position that
Weiler is a supervisor. Respondent now contends that she is
not a supervisor, however her testimony is devoid of any
indication that her duties have changed since 1974. In fact.
she testified they had not. The generally undenied and
credible testimony of Nancy Green and Crystal Littell is
that they were interviewed for their respective jobs by Wei-
ler and were hired by her. They were not contacted or inter-
viewed by any member of' the Katz family prior to their
being hired.
Weiler signs United States Department of Agriculture in-
spection forms as the plant manager: posts notices to em-
ployees signing herself as manager or plant manager; effec-
tively recommended the discharge of at least one employee:
directs the work assignment of employees on a day-to-day
basis: and generally is relied on by Katz, who normally
does not work in the processing area, to get the work done.
Although Respondent contends that Weiler is a rank-
and-file employee, the overwhelming credible evidence is
that at all times material she has been a supervisor within
the meaning of Section 2(11) of the Act, and I so find.
2. The organizational campaign
In mid-October George Nestler, an international repre-
sentative for the Union, was contacted by Cheryl Welsh
concerning the employees' desire to have a union. Nestler
suggested a meeting with them which was in fact held on
the evening of October 23. At that time eight employees
were present and signed authorization cards. Thereafter
three additional cards were signed.
On the morning of October 24, in possession of nine au-
thorization cards, Nestler met with Katz and demanded
that Katz recognize the Union as the duly designated repre-
sentative of a majority of his production employees. Katz
declined to recognize the Union and told Nestler "To go see
my attorney." Shortly later Nestler did, with counsel advis-
ing him that Respondent had a good-faith doubt that the
Union in fact represented an uncoerced majority of Re-
spondent's employees in a unit appropriate for collective
bargaining.
On October 24 Weiler posted what is alleged to be new
procedures for the cleaning employees.
At 3:30 p.m. on October 24. the normal quitting time, all
production employees were asked to work overtime for a
short while (apparently about 15 minutes) in order to load a
truck.
After work on October 24 Weiler and employee Ann An-
derson, who are personal friends and who normally ride to
work together, stopped at a local ice cream establishment.
Among other matters, they discussed the organizational
campaign with Weiler saying that this was bad timing in
view of the fact that Arthur Katz' brother had just passed
away, his wife was hospitalized, and that in any event the
Union had been "blocked" before and would be blocked
again.'
2 Weiler admitted stating that the Union had been blocked before. denying
only that she told Anderson it would be blocked again. While I find Weiler
to be a generally credible witness, I tend to believe Anderson's version. In
any event, in the context of this conversation, to say that the Union had been
1334
K & K GOURMENT MEATS
On October 28 Weiler called both Anderson and Nancy
Green to inform them that Katz would meet with all the
employees the next Monday. October 28. and that he would
keep them equal in pay and benefits with another some-
what larger food processing company which would mean a
substantial wage increase.
On October 30 Katz met with all the employees, at which
time he advised them that he had been looking into a health
insurance plan for them and had in fact received some in-
formation from Blue Cross/Blue Shield. He also told them
that he had been considering instituting some kind of profit-
sharing plan, however he would not be able to reveal the
details of that until the close of the company's fiscal year
(October 31 ).
That night the employees met to discuss Katz' speech.
They decided that they could not believe his promises and
determined to go on strike. It is unclear from the record
how long the strike lasted.
On October 24, excluding Weiler. there were 10 proces-
sors, 3 cleaning employees. I maintenance man and the 2
part-time loaders and I part-time driver-loader mentioned
above. On October 24 the Union had authorization cards
from nine of these employees, and by October 28 had two
additional authorization cards. Thus, even if the part-time
loaders are included in the bargaining unit, on October 24
the Union had been designated as the bargaining represent-
ative by a majority of Respondent's production and mainte-
nance employees.3
B. 4nalvsis and Concluding Findings
It is alleged that Respondent reduced employees' benefits
on October 24 by changing the method of calculating gross
pay for income and social security tax purposes. The prac-
tice had been that when employees purchased meat from
Respondent, the amount of this purchase would be sub-
tracted from their gross wages and then taxes would be
calculated using that figure. Sometime shortly after October
24 Respondent changed this practice and began calculating
income and social security taxes based on the employees'
gross earnings, after which the amount of meat purchases
would be deducted. This resulted in a net decrease in take
home pay to employees, but is correct. The method used by
Respondent previously was clearly unlawful.4 I do not be-
lieve that changing from an unlawful procedure is an unfair
labor practice. But if it is, as a matter of public policy a
respondent ought not be ordered to return to the status quo
to reinstitute that unlawful practice. Further, the change
resulted from Nestler's statement that he was going to in-
form the Internal Revenue Service of Respondent's prac-
tice. There is no evidence that change was instituted in or-
der to punish employees because of their interest in the
Union.
blocked before by the Company implies that it would be again, or in Weiler's
words, "1 ways it just seems like a lot of aggravation for nothing."
'The unit described in the complaint is admitted b Respondent to he.
and I find that it is. appropnate for purposes of collective bargaining ithin
the meaning of Sec. 9(b) of the Act.
'See Internal Revenue Code, 26 U.S.C. §§61 and 3402; Federal Insurance
Continbutions Act. 26 US.C § 3101. e seq.
It is also alleged that on and after October 24 employees
were required to do more arduous work. This allegation is
based on three incidents. First. at 3:30 p.m. on October 24
all employees were told to unload the freezer and load a
truck. Katz testified that the reason he had the employees
do this was he feared that they might go on strike the next
day a not unreasonable concern it turned out. He had an
order that was to go out the next day and wanted the truck
loaded that night. No employees were advised they would
be disciplined if they did not load the truck, the task took
only about 15 minutes and presumably they were paid at
least there is no evidence to the contrary. While some em-
ployees testified they had never been involved in loading
before. others testified that they had. I cannot find in this a
change in work duties of employees. No one testified that
this was arduoud work as alleged in the complaint,
I do not believe that by requiring production employees
to do production work. even on overtime, that Respondent
violated the Act.
Second, an employee was required to tear down a grind-
ing machine, a process which takes about 7 minutes. Tear-
ing down a grinding machine is production work, and even
though normally performed by Weiler, to require an em-
ployee to do it amounts to interference with employees'
Section 7 rights.
The third incident involves the cleaning employees and
the contention that more onerous working conditions had
been instituted against them. The totality of the evidence on
this issue is from the testimony of Crystal Littell:
When we went to work on October 24th, it was a
Tuesday, there was a note on the door, me and Debbie,
went in together, 'cause we rode the bus that day, and
when we went in there, I was reading the note to her,
and they had a bunch of new rules and regulations,
and Barb was in the inspector's office, and she says, oh,
I see you can read, and I said. yes, I can read, she says,
well, she said. you had better start obeying them, and
there's going to be some changes made around here, if
not, you can go out the door, prior to that, you know,
but that's what she meant.
What the notice is supposed to have said is not in the
record. From this conclusionars sketch one simply cannot
tell if in fact new, onerous procedures were adopted by
Respondent. I conclude that the (eneral Counsel has failed
to prove this allegation by a preponderance of the evidence.
('f.. Jack Lalalnne Managenten Corp.. 218 NL.RB 900.. 905
(1975).
Htowever, I do conclude that Weiler's statements to An-
derson after work on October 24 to the effect that the or-
gani/ational campaign would be blocked, in the context of
trying to dissuade her from engaging in the organizational
campaign, amounted to a threat by the supervisor to an
employee, even though they were friends and even though
the conversation took place off the employer's premises.
I'his was a small bargaining unit, and Anderson was clearly
one of the leaders in the organizational campaign. The
statement by Weiler to Anderson along with her asking An-
derson whether, in effect, she had signed an authorization
card was violative of Section 8(a) 1 ) of the Act.
Similarly. I conclude that Weiler's phone calls to Ander-
son and Green on October 28. wherein she stated in effect
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Katz would increase their wages and benefits,
amounted to promises in violation of Section 8(a)(l). Also,
Katz' statement at a meeting with all employees on October
30 that he had been looking into health insurance plans and
had been considering a profit sharing plan is clearly a
promise to employees in violation of Section 8(a)(1), not-
withstanding that he may have been considering these mat-
ters prior to the advent of the union campaign. His an-
nouncement came after the advent of the union campaign
and in connection with trying to dissuade employees from
their determination to have the Union represent them. Such
a promise of benefits is violative of Section 8(a)(1).
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964).
The General Counsel contends that during the October
30 meeting of employees Katz solicited grievances from em-
ployees and promised to remedy them. There is nothing in
the testimony of the General Counsel's witness that Katz
solicited grievances or even that employees had any. He
told them he hoped they could resolve their problems to-
gether. But such does not amount to unlawful solicitation of
grievances. Cf., Tom Wood Pontiac, Inc., 179 NLRB 581
(1969).
I therefore conclude that through Weiler and Katz be-
tween October 24 and October 30 Respondent did interfere
with employees' Section 7 rights by interrogation, threat of
futility, and promises of benefits.
C. The Remedy
The General Counsel contends that since the Union was
designated by a majority of Respondent's employees and
demanded recognition which was denied, the unfair labor
practices of Respondent on and after October 24 should be
remedied by issuance of a bargaining order, citing N.L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
The fact that a labor organization may have been desig-
nated by a majority of employees in an appropriate unit
followed by an employer's unfair labor practices does not
ipso facto mean that the employer in denying the union's
demand for recognition has violated Section 8(a)(5) of the
Act or that a bargaining order should be entered to remedy
those unfair labor practices. Walgreen Company, 221 NLRB
1096 (1975).
The import of Gissel, as far as material to this factual
situation, is that where a union has been designated by a
majority of employees through authorization cards, a bar-
gaining order is appropriate to remedy the employer's un-
fair labor practices which "have the tendency to undermine
majority strength and impede the election processes." 395
U.S. at 614.
Thus, where a union has been designated as the bargain-
ing representative by a majority of employees through au-
thorization cards, the inquiry concerns the nature and ex-
tent of respondent's subsequent unfair labor practices to
determine whether they were of sufficient severity to rea-
sonably conclude that a fair election among those employ-
ees could not be held.
While Respondent did in fact engage in some activity
violative of Section 8(a)(1) following the Union's demand
for recognition, I conclude that such is not of the type and
character contemplated by the Supreme Court in Gissel.
Respondent's acts could not reasonably tend to make a fair
election unlikely.
One incidence of interrogation by a supervisor of her
friend is proved here, along with a statement that the or-
ganizational campaign would be futile; two incidents of im-
plied promises of benefits by that supervisor and promises
of benefits by the company president during one meeting of
employees. There were no attempts to solicit and resolve
grievances, threats relating to job tenure, discipline, or dis-
charge of employees, as were the principal events in the
cases relied on by the General Counsel. This matter, in
short, is factually more similar to Walgreen Company, supra,
where the Board denied a bargaining order as a remedy for
interrogation by a low level supervisor, grants of benefits,
and an unlawful written reprimand.
Thus, I conclude that the minimal unfair labor practices
engaged in by Respondent were not sufficient to require
entering a bargaining order to remedy them.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The above are unfair labor practices affecting commerce
and the free flow of commerce and tend to lead to labor
disputes burdening and obstructing commerce within the
meaning of Seciton 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in certain
activity violative of Section 8(a)(1) of the Act, I will recom-
mend that it cease and desist therefrom and post an appro-
priate notice.
[Recommended Order omitted from publication.]
1336