Market Basket

National Labor Relations Board - Board Decisions

Nov 12, 1963

144 N.L.R.B. 1462 (N.L.R.B. 1963)

1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peninsula's wage structure, including benefits, bonuses, and incentives,
was close to Union contracts' wages, Starling did not exhibit the slight-
est curiosity as to what disparities might or might not exist.
Our conclusion is that the Union has acted inconsistently with its
disclaimers and that its picketing, now as when it began, is tantamount
to a demand for recognition. Accordingly, we find that a question af-
fecting commerce exists concerning the representation of certain em-
ployees of the Employer within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act.'
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section 9 (b)
of the Act :
All tire mounters and driver-salesmen employed at the Em-
ployer's Burlingame, California, place of business, excluding all
mechanics, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN MCCuLLocH and MEMBER BROWN took no part in the con-
sideration of the 'above Decision and Direction of Election.
e Cf. Miratti'a, Inc , 132 NLRB 699.
Market Basket and Food , Drug & Beverage Warehousemen &
Clerical Employees , Local 595, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case No. 21-CA-5163. November 12, 1963
DECISION AND ORDER
On July 18, 1963, Trial Examiner E. Don Wilson issued his Inter-
mediate Report herein, finding that the Respondent engaged in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings made at, the
hearing and folds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in this case.
144 NLRB No. 145.
MARKET BASKET 1463
Accordingly, it hereby adopts the findings,, conclusions, and recom-
mendations of the Trial Examiner with the clarification noted herein.
The Trial Examiner found that the Respondent, at a meeting held
with the Union's shop steward, Edward J. Dempsey, on December 6,
1962, and again in a warning letter dated December 14, 1962, forbade
him from conducting so-called "witch hunts," in connection with the
contractual grievance procedure, on the company premises at any time.
In addition, he found that Respondent forbade Dempsey from holding
"meetings" in the parking lot during free time. In its brief, the
Respondent concedes that these prohibitions and the warning were
intended to insure that Dempsey did not solicit grievances. We agree
with and adopt the Trial Examiner's findings, for the reasons stated
in the Intermediate Report, that the Respondent thereby violated Sec-
tion 8(a) (1) of the Act. It is clear that such conduct constituted an
instruction to Dempsey concerning the manner in which he performed
his duties as shop steward. The Respondent thus interfered with and
restrained the exercise by Dempsey and his fellow employees of the
right "to engage in self-organization, to form, join, or assist labor
organizations" guaranteed in Section 7 of the Act. However, in ac-
cordance with Board policy, we find that Respondent was justified in
prohibiting Dempsey from soliciting and/or discussing grievances on
working time,2 and we shall modify the Trial Examiner's Recom-
mended Order accordingly.
ORDER
Upon the entire record in this case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Market Basket, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Directing the Union's shop steward in the manner in which he
shall perform his duties as shop steward; prohibiting the said steward
from soliciting or discussing possible grievances during nonwork time
on company property, including the parking lot; and threatening to
discharge the said steward for any repetition of such behavior.
(b) In any like or related manner interfering with, restraining or
coercing their employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the aforenamed
Union or any other labor organization, tobargain collectively through
representatives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the
1 The Trial Examiner dismissed certain allegations of the complaint . As no exceptions
to these findings were filed , we adopt the Trial Examiner's findings thereon pro forma.
2 Such a prohibition is presumptively valid unless an unlawful motive is shown. See
James Hotel Company d/b/a Skirvin Hotel, 142 NLRB 761.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
effectuate the policies of the Act :
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Advise Edward J. Dempsey, by letter, that he is not subject
to discharge if he should "solicit and/or discuss grievances" among
his fellow employees during nonwork time on company property.
(b) Post at its warehouse in Los Angeles, California, copies of the
attached notice marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Rea
sonable steps shall be taken by the Respondent to insure that said no-
tices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT direct the shop steward of Food, Drug & Beverage
Warehousemen & Clerical Employees, Local 595, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, in the manner in which he shall per-
form his duties as shop steward by prohibiting the said steward
from soliciting or discussing possible grievances during nonwork
time on company property, including the parking lot; and threat-
ening to discharge the said steward for any repetition of such
behavior.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in exercising their right to self-
organization, to form, join, or assist Food, Drug & Beverage
Warehousemen & Clerical Employees, Local 595, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization,-
MARKET BASKET 1465
to bargain collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
by Section 8(a) (3) of the Act, as amended.
WE WILL advise the above-described shop steward, by letter,
that he is not subject to discharge if he should solicit and/or dis-
cuss grievances among his fellow employees during nonwork
time on company property.
MARKET BASKET,
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.
Employees may communicate directly with the Board's Regional
Office, 849 South Broadway, Los Angeles, California, Telephone No.
Richmond 9-4711, Extension 1031, if they have any questions concern-
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on January 24, 1963, by Food, Drug & Beverage Warehouse-
men & Clerical Employees, Local 595, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Union, the General Counsel of the National Labor Relations Board, herein called
the Board, issued a complaint dated April 12, 1963, alleging that Market Basket,
herein called the Respondent, violated Section 8 (a) (1) of the National Labor Rela-
tions Act, as amended, herein called the Act.
Pursuant to due notice, a hearing in this matter was held before Trial Examiner
E. Don Wilson at Los Angeles, California, on May 13 and 14, 1963. The parties
fully participated . Briefs have been received and have been considered.'
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation with its main office in Los Angeles,
California, and engaged in the retail sale of foods through various food markets
which it operates in California. In conjunction therewith, it operates a warehouse
in Los Angeles for the receipt of products and their distribution to the above food
markets, such warehouse being the only location involved in this proceeding. During
the last 12-month period, which period is representative, Respondent purchased and
received goods valued in excess of $50,000, directly from sources outside the State
of California, and made retail sales in excess of $500,000.
'The transcript contains inaccuracies, some of them attributing to the Trial Examiner
statements obviously which were made by representatives of parties to this proceeding.
No motions to correct the transcript have been received. In my view, such errors as may
appear in the transcript are of such obvious nature that no formal correction is needed.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is now, and at all times material herein has been, an employer engaged
in commerce, and in a business affecting commerce, within the meaning of Section
2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Food, Drug & Beverage Warehousemen & Clerical Employees, Local 595, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
There are four primary issues raised by the pleadings- (1) In the early part of
September 1962,2 did Respondent's superintendent, William Brown, unlawfully forbid
the Union's shop steward, Edward J. Dempsey, to take notes with reference to so-
called "casual" employees; (2) during the early part of October, did Brown unlaw-
fully forbid Dempsey to look at Respondent's timecards when Dempsey was looking
at them for the purpose of obtaining the names of any "casual" employees; (3) on
December 6, did Brown and Respondent's personnel manager, Mathews, unlawfully
forbid Dempsey to "solicit" grievances or "witch hunt" at any time on company
premises, before an employee complained, and unlawfully forbid Dempsey to "hold
meetings" with fellow employees on Respondent's parking lot, after Dempsey's shift
ended; and (4) did Respondent, on December 14, unlawfully reprimand and threaten
Dempsey with discharge if, among other things, he continued to solicit grievances
or engage in "witch hunts"?
B. Background
Respondent has had contractual relationships with the Union in connection with
its warehouse employees for more than several years. Dempsey has been the
Union's shop steward at Respondent's warehouse, here involved, for 4 or 5 years.
He has been employed by Respondent as a tow motor operator for about 11 years.
William Brown is Respondent's superintendent, and Robert L. Mathews is Respond-
ent's personnel manager. They are supervisors within the meaning of the Act. Fred
Akkerman is Respondent's "working foreman" and is covered by the contract between
Respondent and the Union. Whether he is a supervisor within the meaning of the
Act is not clear and not important in this proceeding. From time to time, over the
years, Respondent has employed "casuals" for periods of days. The length of
employment of these "casuals," particularly whether they worked 25 or more days,
was a matter of concern to the Union whose business agent directed Dempsey to keep
a record of the names of "casuals" and the duration of their employment. For a
period of time, Dempsey obtained this information from fellow employees. When
this means of obtaining information proved inadequate, Dempsey resorted to looking
at Respondent's timecard rack and obtaining the names and dates of employment of
`casuals" therefrom. Dempsey placed the information re "casuals," so obtained, in
a small notebook. He apparently entered such notes throughout 1962.
C. Early September
According to Dempsey, Brown called Dempsey into Brown's office in early Septem-
ber and told Dempsey he did not want Dempsey to take notes. Dempsey testified
Brown gave no reason why Dempsey should not take notes, and Dempsey made
no reply to Brown's direction. Brown, in his testimony, denied he ever told
Dempsey not to take notes.
The entire record reveals that before and after early September, Dempsey, to the
knowledge of management, took notes in a book on the employment of casuals.
So far as the record reveals, he may still be taking notes, to the knowledge of
management. There is no suggestion that any representative of management at any
time, other than early September, told Dempsey not to take notes. Whether Dempsey
had other important work to do when Brown allegedly directed Demsey not to take
notes or whether he was unduly interfering with the work of other employees or
whether Brown was momentarily perturbed at Dempsey, for some reason, is not
disclosed by the record. In fact, the record is barren as to any circumstances other
than the alleged direction not to take notes. I find it unnecessary to resolve the
credibility issue. On the record as it stands, especially since Dempsey regularly took
notes before and after this alleged incident, without complaint from management, I
2 Hereinafter all dates refer to the year 1962, unless otherwise specified.
MARKET BASKET 1467
would not find the isolated direction of Brown, assuming it to have been given, to be
an unfair labor practice, in the circumstances of this case.
D. Early October
Dempsey testified that early in October he was looking at the timecard rack to
obtain information on employment of casuals, during his lunch period. Brown told
him, at that time, that he didn't want Dempsey to look at the timecards. Dempsey
testified he tried to explain what he was doing but Brown simply told him, "You're
excused." Dempsey denied that he had touched a timecard.
Brown, on the other hand, testified that he had previously observed Dempsey
looking at the timecards and on this occasion, in early October, he saw Dempsey
pull a timecard from the rack. According to Brown, he approached Dempsey who
said he was "checking the casual help" and Brown told him the timecard was
company property and Dempsey was to replace it in the rack. Brown further told
him not to touch the timecards again. Brown denied he told Dempsey not to look
at the timecards.
I find it unnecessary to resolve this credibility issue. The timecards were Respond-
ent's property maintained by it for its purposes. Absent a showing of necessity,3
Section 7 of the Act in no way gave to Dempsey the right either to touch them or
to look at them, excepting to the extent Respondent permitted or directed, e.g., touch
and look at his own timecard. In short, whether Dempsey or Brown be credited in
this instance, General Counsel has not established, by a preponderance of the evi-
dence, a violation of Section 8 (a)( I) of the Act with respect to the timecards.
E. December 6
Early in the morning of December 6, two warehousemen, one of them Joe Esquivel,
were assigned the task of weed pulling under the direction of Working Foreman
Akkerman. They inquired of Dempsey how long they would have to do this work
which they apparently considered unpleasant. Dempsey inquired of Brown and
there was a dispute between them as to whether warehousemen should perform such
work. Dempsey, having received a reply from Brown, advised the warehousemen
they would be through by around 11 a in. Later in the morning the men told Akker-
man that Dempsey had told them they wouldn't have to pull weeds past a certain
hour. In effect, Akkerman told them Brown and not Dempsey was running the ware-
house. He also spoke disparagingly of Dempsey. I consider his exact words in this
regard to be unimportant.4 Shortly thereafter the warehousemen reported their
conversation with Akkerman to Dempsey. Esquivel, accurately or not, may have
reported to Dempsey that Akkerman used an obscenity when referring to Dempsey.
Dempsey thereupon called Akkerman aside and angrily threatened to knock Akker-
man down. I credit Akkerman's testimony that he was apprehensive that Dempsey
would carry out his threat. Akkerman reported Dempsey's threat to Brown. A little
later that day, Dempsey, Akkerman, and Brown were called into Personnel Manager
Mathews' office. Mathews asked Dempsey to state what had happened between
Dempsey and Akkerman. Dempsey told Mathews to ask Akkerman and did not give
his version of the incident, although so requested.
As to the facts found in the above paragraph there is substantially no dispute.
As to the details of what else was said in Mathews' office, there is some dispute. Each
of the participants in the meeting testified. None of them, in my opinion, was lacking
in bias. I find the testimony of Dempsey to be more reliable than that of either
Brown or Mathews. In addition to the fact that Akkerman was threatened by
Dempsey, Akkerman as a result of an incident between him and Dempsey, later in
the day (findings as to which will be made subsequently herein), had no reason to be
favorably disposed to Dempsey. Nonetheless, the substance of his testimony as to
what occurred in Mathews' office on December 6 tended, in part, to corroborate
Dempsey's testimony as to the events and was not in accord, in substantial part, with
the testimony of Brown and Mathews.5 I was favorably impressed by Dempsey's
I There is no substantial evidence that any request of the Union for information about
the hiring of casuals was ever refused by the Respondent. Dempsey occasionally asked
Akkerman for the names of casuals. Akkerman said he didn't know the names.
4Akkerman admitted saying, "The hell with Dempsey." Esquivel testified that Akker-
man used an obscenity with reference to Dempsey. This testimony is not in accord with
what Esquivel reported to management or the contents of an affidavit he gave to the
Board.
5 Akkerman testified Mathews told Dempsey not to "witch hunt" in the warehouse or
in the parking lot.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demeanor when he testified about the events in Mathews' office and was not so
impressed by the demeanors of Brown or Mathews when they testified about the same
subject.
After Dempsey refused to discuss the Akkerman altercation with Brown and
Mathews, he asked for union representation and was told that since he was
shop steward he needed no union representation. Mathews then accused Dempsey
of "witch hunting" or "looking for trouble." Mathews brought up as an example
the case of an employee named Whitey Hartmen.6 Correctly or not, Brown and
Mathews appeared to believe that on working time, Dempsey had initiated with
Hartmen a discussion as to whether Hartmen wished to be paid for the preceding
Thanksgiving holiday. Mathews told Dempsey not to "witch hunt" or "look for
trouble." Dempsey was directed not to "inform" or "advise" the employees with
respect to possible grievances unless the employees brought the matters to Dempsey's
attention. As various witnesses described it, Dempsey was not to "solicit" grievances.
Dempsey inquired of Mathews whether he could inform fellow employees about
contract violations on coffee time or break time. Mathews told him, "You can go
out of the gate." As to the grievance procedure, Dempsey was told to come into the
office to have meetings. Dempsey was specifically directed not to have any con-
ferences or "meetings," "out in the parking lot." Brown, who attempted to police
these orders, testified credibly that he would consider it a "meeting" if Dempsey met
with "one other employee" in the parking lot. He testified Dempsey was forbidden
to stand and talk to one other employee in the parking lot but was permitted to say
something to another employee, if he didn't stop. As Brown put it, "The whole gist
of this matter as far as [Brown was] concerned" was the solicitation of grievances by
Dempsey. Any possible ambiguity as to the directions given by Mathews to Dempsey
on December 6 is cleared up by subsequent efforts of Brown to implement the direc-
tions. On at least several occasions after December 6, Brown observed Dempsey meet
with two or more employees in the parking lot by parked cars and Brown reprimanded
him, pointing out that Mathews had told him not to do so. Brown told Dempsey he
was defying Brown and Mathews "by holding meetings" and again told Dempsey not
to do so. Brown said that Dempsey would be fired if he continued. On at least
one of these occasions Dempsey was talking to the night steward about a grievance
which had arisen on the night shift.? On other occasions, employees asked Dempsey
questions about contract coverage, etc. I specifically credit Dempsey's denials that
Brown or Mathews told him, on December 6, that Respondent had no objection to
Dempsey soliciting grievances on his break or lunch periods. So, too, do I credit
Dempsey's denial that Brown or Mathews told him he could use other company
facilities to meet with fellow employees about union matters. About 3 weeks before
the hearing, Brown did tell Dempsey, "if you asked we would have furnished a place
for you."
Part of Respondent's defense to the allegation that it unlawfully forbade Dempsey
to hold meetings on the parking lot was that large rigs or trucks sometimes drove
through the parking lot and it was a hazardous condition to have meetings in the
parking lot. Some employees talked in the parking lot more than Dempsey did.
Dempsey never blocked the passage of a vehicle in or about the parking lot and there
is no evidence that any employee did. No employee but Dempsey was ever repri-
manded for engaging in a meeting in the parking lot, even those who conversed with
Dempsey. The record contains no evidence of any incident where a meeting among
any employees presented a hazard to safe use of the parking lot. I consider Brown's
testimony as to the number of meetings held by Dempsey to be an exaggeration and
the infrequency with which other employees met to be an understatement of the
truth. Brown admitted that Respondent never had "a rule that people could not
engage in conversations in the parking lot for periods in excess of" 1 minute or an
hour. Nobody but Dempsey was ever told that there could not be conversations among
a group of people in the parking lot after the day shift ended.
I reject as a pretext Respondent's claim that the reason for forbidding Dempsey
to converse with other employees in the parking lot after work was a concern for the
"hazardous conditions" which might be created by such conversations. If such
concern were genuine, surely other employees, who in fact engaged in similar
conversations, similarly would have been restricted. Prohibiting Dempsey to stop
and speak to fellow employees in the parking lot after work was but a further
6 Perhaps spelled Fl-a-r-t-m-a-n.
7 There is no evidence that Brown or Mathews knew the subject matter of Dempsey's
discussions . He was forbidden to stop and talk to fellow employees in the parking lot
about "anything."
MARKET BASKET 1469,
implementation of Respondent's direction not to "solicit grievances" excepting outside
of Respondent's gates.
Dempsey, as an employee and as shop steward, had the right, under Section 7
of the Act, particularly on nonwork time, to inquire of fellow employees if they
knew of any violations of the union contract or had any grievances, even if such
conduct by Dempsey be described as "soliciting grievances," or a "witch hunt."
Dempsey's seeking to implement the contract was but an extension of the concerted
activities giving rise to the contract. See Merlyn Bunney et al., d/bla Bunney Bros.
Construction Company, 139 NLRB 1516.
I conclude that on December 6, Respondent violated Section 8(a) (1) of the Act
when its personnel manager, Mathews, forbade Dempsey to "solicit" grievances or
"witch hunt" on company premises or anyplace or anytime excepting "outside the
gates." So, too, and more particularly, did Respondent violate Section 8(a)(1)
of the Act on December 6, by forbidding Dempsey to hold any meetings in the
parking lot, it being evident that such prohibition was but a device to insure that
Dempsey did not "solicit grievances" at any time on company property. Where, as
here, it is shown that the enforcement of restrictive rules flows not from an em-
ployer's legitimate right to protect his own interests but rather from its desire to
obstruct employees' rights to self-organization, the employer is not immune from a
finding of violation. See N.L.R.B. v. Stowe Spinning Company, 336 U.S. 226,
230-233.
F. December 14
After the December 6 conference in Mathews' office, Akkerman, with or without
good cause, believed Dempsey deliberately so operated his car as to place Akkerman
in physical danger while Akkerman was headed home in Akkerman's car. The next
morning, Akkerman reported the incident to Brown.
Between December 6 and 14, Dempsey probably had one or more meetings in
the parking lot.
On December 14, Mathews wrote and had delivered to Dempsey a "warning letter."
In general terms the letter stated that Dempsey had been engaging in a variety of mis-
conduct. In particular, it cited two examples of such misconduct, as follows:
1. Threatening Fred Akkerman with physical violence while on company
premises and company time .8
2. Conducting witch hunts. You are well aware of the grievance procedure as
set forth in Article XVIII of the agreement .9
The December 14 letter concluded by stating that any further repetition of the
behavior mentioned in the "warning letter" would be considered willful defiance
and would result in "immediate discharge" of Dempsey.
General Counsel does not suggest that Respondent violated the Act by warning
Dempsey of discharge should Dempsey again threaten Akkerman with violence. He
does urge that Respondent violated the Act by threatening to discharge Dempsey if
Dempsey again conducted "witch hunts." I agree. The entire record makes plain
that Respondent by its warning letter was threatening Dempsey with immediate dis-
charge should he exercise, at any time, on company property, his statutory right to
inquire of fellow employees if they knew of contract violations or had any grievances.
Such threat of discharge was clearly violative of Section 8(a) (1) of the Act, and I so
find.
G. Concluding findings
I conclude that there is insufficient substantial evidence to establish that Respondent
violated the Act either by telling Dempsey not to take notes or by telling him
either not to touch or not to look at the timecards of other employees.
I further conclude that General Counsel has established by a preponderance of
the credible and substantial evidence that Respondent violated Section 8(a)(1) of
the Act (1) by Mathews' directions to Dempsey, on December 6, not to "witch hunt"
8 Counsel for Respondent Indicated Akkerman's report of Dempsey's alleged misconduct
with his automobile was one of the reasons for writing the December 14 "warning letter."
Of course, this incident, if it happened, did not occur on company time or property.
91 find nothing in this article which provides that a union steward may not "solicit"
grievances. Assuming, arguendo, that Dempsey's statutory right to inquire of fellow
employees if they knew of contract violations or had a grievance, could be waived by
contract, the Board will not give any effect to a purported waiver of such right unless
expressed in clear and unequivocal language. See California Portland Cement Company,
101 NLRB 1436, 1439.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or "solicit grievances" on company property and not to have "meetings" in the Re-
spondent 's parking lot, and (2 ) by the December 14 "warning letter" to Dempsey
threatening Dempsey with immediate discharge should he again conduct a "witch
hunt."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above, occurring in connection
with the operations of Respondent , described 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 commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8 (a) (1) of the Act , I shall recommend that Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of the
Act.
The evidence in the record discloses no firm disposition by Respondent to oppose
the purposes or policies of the Act in its dealings with its warehouse employees. No
need or occasion for a so -called broad order is seen . The Recommended Order, in
addition to providing that Respondent withdraw , by letter , the threat to discharge
Dempsey if he again engages in "witch hunts ," or "solicitation" of grievances, at any
time on company property , will also provide that Respondent cease and desist from
engaging in further unlawful conduct of the types herein found and from any like
or related conduct.
On the basis of the foregoing findings of fact , and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Market Basket is, and has been at all material times, an employer within the
meaning of Section 2(2) of the Act.
2. Food , Drug & Beverage Warehousemen & Clerical Employees, Local 595,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America is, and has been at all material times, a labor organization
within the meaning of Section 2 (5) of the Act.
3. By Mathews ' directions to Dempsey on December 6 not to "witch hunt" or
"solicit grievances" on company property and not to have "meetings" in the Respond-
ent's parking lot, and by Respondent 's "warning letter" of December 14 to Dempsey,
threatening Dempsey with immediate discharge should he again conduct a "witch
hunt," Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Newton Falls Paper Mill, Inc. and Gene T. Hickey and David J.
Belinier. Cases Nos. 3-CA-1970-1 and 3-CA-19712-2. November
12, 1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
144 NLRB No. 144.