McKees Rocks Foodland

National Labor Relations Board - Board Decisions

Mar 12, 1975

216 N.L.R.B. 968 (N.L.R.B. 1975)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kay Jay Corporation d/b/a McKees Rocks Foodland
and Retail Clerks Store Employees Union, Local
1407, as chartered by Retail Clerks International
Association , AFL-CIO
Amalgamated Meat Cutters and Butcher Workmen of
North America, Amalgamated Food Employees,
Local 590, AFL-CIO and Retail Clerks Store
Employees Union, Local 1407, as chartered by
Retail Clerks International Association, AFL-
CIO. Cases 6-CA-7171 and 6-CB-2896
March 12, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 31, 1974, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief and Respondent
Union filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and for the reasons hereinafter set forth has
decided to reverse the Decision of the Administrative
Law Judge, affirming his rulings, findings, and
conclusions only to the extent consistent herewith.
The record reveals the following sequence of
events.
Respondent Employer operates a retail grocery
store . Representatives of Retail Clerks Local 1407 or
Clerks, Charging Party herein, began organizing the
employees of the store in April 1973. On April 13, the
Clerks demanded recognition. On April 16, a card
check was conducted by an attorney who certified
that 14 of Respondent Employer's 22 employees had
executed authorization cards for the Clerks. Potts,
the owner of the store, signed a document which
acknowledged the Clerks majority status and recog-
nized it as the bargaining agent . In a letter dated
April 21, the Clerks claimed to represent the new
employees in the store. On April 25, a second card
check was held at the same law office by an attorney
who certified that 27 of Respondent Employer's 29
employees had executed authorization cards for the
Clerks. Employer Potts signed another recognition
agreement, and on April 27 the Clerks and Potts
executed a collective-bargaining agreement.
1 Sorbara, a representative of the Clerks, denied that he had ever told
is the the Clerks was withdrawing . Sorbara's testimony to this effect was
216 NLRB No. 166
Nestler, an organizer for Respondent Amalgamat-
ed Meat Cutters Local 590, went to work in the store
on April 30. He began signing up employees for the
Meat Cutters. On May 9, Conte, a business repre-
sentative for the Meat Cutters, went to the store and
demanded recognition. Potts told Conte that he
already had a contract with the Clerks. Conte asked
for the contract and Potts refused to show it to him.
Respondent Employer fired two employees on
Saturday, May 12. Nestler testified that the firings
were a result of a "witch-hunt" against the Meat
Cutters. On the evening of May 15, at a meeting
chaired by Nestler, the employees voted to strike in
protest of the discharges. The strike began on the
morning of May 16 and lasted until June 25. Only
two employees worked during the strike.
At a meeting held June 22, all three parties in this
proceeding decided that a private election would be
held on June 25 to determine which union would
represent the employees. On June 25, Segal, the
Clerks attorney, went to the store for the election.
The election was not held because the representatives
of the Meat Cutters did not attend. That same day
Potts told Meat Cutters Representative Conte that
the Clerks was withdrawing from its contract.' Then
Meat Cutters Representative Nestler went with Potts
and others to the office of the city mayor where the
mayor conducted a card check which showed 34 of
37 employees had signed authorization cards for the
Meat Cutters. That same evening the Meat Cutters
and Potts negotiated a collective-bargaining agree-
ment which was ratified the same day by the
employees. The next morning, June 26, the strikers
returned to work.
On the basis of testimony by a few employees, by
Potts, and by the Clerks organizer, the Administra-
tive Law Judge found that the Clerks was unlawfully
assisted by Respondent Employer in signing up
employees and that the General Counsel had failed
to prove that any of the authorization cards obtained
by the Clerks were not tainted by that assistance. The
Administrative Law Judge concluded that the Clerks
had based its representation claims on tainted cards
and an illegal contract, and therefore the Clerks did
not meet the test that a rival union's claim "must not
be clearly unsupportable and lacking in substance."
In addition, the Administrative Law Judge found
that the fact that the overwhelming majority of the
employees supported the Meat Cutters strike from
beginning to end showed that the Clerks had no
substantial claim to the allegiance of the employees,
especially in view of the fact that the strike was
ended when Respondent Employer recognized the
Meat Cutters. The Administrative Law Judge found
credited by the Administrative Law Judge.
MCKEES ROCKS FOODLAND
that the 8(a)(1), (2), and (3) allegations against
Respondent Employer and the 8(b)(1)(A) and (2)
allegations against Respondent Union had not been
sustained and recommended that the complaint be
dismissed in its entirety.
The General Counsel argued that the Administra-
tive Law Judge erred in concluding that the Retail
Clerks Union was unlawfully supported and assisted
by the Employer; that the cards signed for the Clerks
raised a genuine question concerning representation
based on a substantial claim of interest ; and that the
General Counsel need not introduce every Clerks
card nor prove that the claimed majority was an
actual majority in order to support the substantiality
of the claim . The General Counsel asserted that, even
assuming that some of the Clerks cards were tainted,
such taint would not vitiate the cards of the other
employees. The General Counsel argued that the
claim of the Clerks meets the test that such claim
must not be clearly unsupportable and lacking in
substance because the Clerks: (1) conducted an
organizational campaign ; (2) submitted to two
independent card checks which resulted in recogni-
tion of the Clerks; (3) agreed to go to a private
election ; and (4) protested when the private election
was not held and the Employer recognized the Meat
Cutters.
I. RESPONDENT EMPLOYER 'S FAILURE TO FILE
AN ANSWER
A threshhold issue is whether the Administrative
Law Judge erred in denying General Counsel's
motion under Section 102.20 of the Board's Rules
and Regulations , Series 8, as amended . Respondent
Employer failed to file an answer or enter an
appearance on the record. The General Counsel
requested that the allegations of the complaint with
respect to Respondent Employer be deemed to be
admitted as true, but the Administrative Law Judge
denied the motion since "all issues were fully
litigated and a complete record was made of
Respondent Company's and Potts' role in these
events."
During the hearing, the Administrative Law Judge
advised Potts, Respondent's owner,
that you can enter an appearance here to
represent yourself in a technical sense . Otherwise,
this case is going to be in the posture of you being
here only as a witness, and technically there will
have been no appearance on behalf of you, or to
2 In Liquid Carbonic Corporation, 116 NLRB 795, 797 (1956), the Board
stated:
Section 6 of the Act provides that the Board "shall have authority
... to make ... in the manner prescribed by the Adnumstrahve
969
be more technical about it, the company which
you apparently own. What's your pleasure? Do
you want to enter an appearance here, and
have-
THE WITNESS: No. I feel that I am really in the
middle and really should take no part in it.
JUDGE BLACKBURN: That's a good answer, go
ahead.
General Counsel thereafter moved that all unan-
swered allegations as to Respondent Employer be
deemed to be true pursuant to Section 102.20 of the
Board's Rules and Regulations. The Administrative
Law Judge denied General Counsel's motion on the
theory that Potts had testified as a witness for the
General Counsel, that all issues were fully litigated,
and that a complete record was made of Respondent
Employer's and Potts' role in the events of the case.
We disagree.
Section 102.20 states in its pertinent part "the
respondent shall, within 10 days from the service of
the complaint, file an answer thereto. . . . All
allegations in the complaint, if no answer is filed .. .
shall be deemed to be admitted to be true and shall
so be found by the Board, unless good cause to the
contrary is shown."
We believe that in denying the General Counsel's
motion the Administrative Law Judge erred. Al-
though he does not explicitly so state, apparently the
reasons which he gives for denying General Coun-
sel's motion were deemed by the Administrative Law
Judge to constitute good cause. In our view this is
not so, especially since the Administrative Law Judge
himself, at the trial, attempted to facilitate Respon-
dent Employer's entrance of appearance. Not only
did the Administrative Law Judge advise Potts as to
his right to enter an appearance, but the testimony
also shows that Potts previously had the benefit of
counsel. Under these circumstances, where a respon-
dent was fully apprised of his rights, it would not be
a mere technicality to apply to Respondent Employ-
er the strictures of Section 102.20.
Respondent Employer is not pleading ignorance or
surprise. Potts just flatly refused to answer the
complaint or enter an appearance on the record at
the time of the trial because he felt that he "should
take no part in it." If the Board allowed a respondent
to disregard the Board's Rules, to fail to answer a
complaint, and then to argue its case on the merits,
issues would not be properly framed2 and needless
litigation would ensue for all parties.
The Board's Rules properly provide that if no
Procedure Act, such rules and regulations as may be necessary to carry
out the provisions of [the l Act " Pursuant to this provision , the Board
promulgated its rules regarding the filing of an answer to a complaint,
including the requirement that such answer be filed within a definite
period . The reasons therefor are as manifest here as in other judicial
(Continued)
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer is filed to a complaint, the allegations of the
complaint "shall be deemed to be admitted to be true
and shall be so found by the Board, unless good
cause to the contrary is shown." In our view,
Respondent Employer has shown no valid cause or
reason why the Board's Rules should not be applied
in this case . Respondent Employer had ample notice
and opportunity to file an answer to the complaint,
but voluntarily refused to do so. We cannot accept a
statement that a respondent wants to take no part in
the litigation of a case as a valid basis or "good
cause" for failing to file an answer. Accordingly, we
shall grant the General Counsel's motion as to
Respondent Employer.
wide open, and I just walked in like a salesman, I
talked to people on the floor, who were stocking
at that time.
Thus, all the record shows is an organizer for the
Retail Clerks walking into the store just as any
salesman would have walked in and talking to the
employees as they were moving things about in the
disorganized 'first few days of the operation. The
record, therefore, does not show that the Retail
Clerks organizer had any sort of special permission
to be on the premises. In fact, Potts testified that at
one point he ordered the representatives from the
Retail Clerks to leave the store because
II. UNLAWFUL ASSISTANCE OF THE CLERKS
LOCAL BY RESPONDENT EMPLOYER
The Administrative Law Judge found, although it
had not been alleged in the complaint, that the
Clerks Local was unlawfully assisted by Respondent
Employer in signing up employees. The Administra-
tive Law Judge relied on three main areas of
evidence: (1) the permission allegedly given by Potts
to the organizer for the Clerks, (2) the testimony of
several of the employees who signed cards, and (3)
Potts' stated intention that he was going to operate a
union store.
Since this finding is at the heart of the Administra-
tive Law Judge's reasoning, we discuss it at some
length.
There is no evidence whatsoever in the record that
Potts gave any special permission to the organizers
for the Retail Clerks to enter the store. The pertinent
part of the record is as follows:
Q. (By Mr. Maurizi) When did you first learn
that Mr. Potts was going to operate that McKees
Rocks store?
A. I didn't know who was going to operate it
by name, I saw a sign in the window, opening
soon, and one day, I was down in the McKees
Rocks area, and I was passing it coming out of
that area.
Q. So you just happened to be driving by, is
that it?
A. I was working down around that area, on
another case, when I passed that area , as far as
the ownership, I didn't know who it was at that
time.
Q. And could anybody walk in and out of
that store, at will, when you were there?
A. Yes, at that time, salesmen were coming in
and out, taking merchandise in, the door was
we were having so much to do, and I thought that
they were interfering with operations at the time.
Q. You kicked them out?
A. Yes, that is correct.
So not only did the Retail Clerks have no special
permission to be in the store, but at one point they
were actually ejected from the store. This evidence
hardly tends to prove unlawful assistance.
The testimony on which the Administrative Law
Judge relies in order to find that certain cards were
tainted is similarly inconclusive.
With respect to a Mr. Berendowski, the testimony
was as follows:
Q.
card?
Who, if anyone, asked you to sign the
A. We were informed to get cards off of Jim
Fox.
Q. Was anyone else present when Fox gave
you the card?
A. I think someone from the Union, it was an
old guy.
Q. Before you filled out the card did Mr.
Potts or Mr. Grossi say anything to you about
any Union?
A. No, he just said fill it out . . . we were just
informed to get a card off of him, nobody said
anything about a union card or anything . . . as I
remember, there was a grayhaired guy there, he
said make sure you get a card off of Jim . . . Mr.
Potts said make sure you fill out all the forms or
something like that.
and administrative proceedings : viz, to facilitate the Joining of issues and
reduce the area of litigation, in order that nghts may be more quickly
estabbshed and wrongs sooner rectified [Emphasis supplied]
MCKEES ROCKS FOODLAND 971
Q. Did you know what you were signing when
you signed the General Counsel's Exhibit No. 2?
Did anybody explain it to you?
A. No, they just said fill out the forms.
Berendowski 's testimony was confused . However,
it is clear that at no point were there any instructions
on the part of Respondent Employer's agents which
would coerce or suggest to Berendowski that he
should sign the union authorization card.
A Mr. Coddington testified:
Q. Did you sign this form along with other
forms?
A. Yes, sir, I did.
Q. At about the same time?
A. I don't know whether it was the same time
or not, but I signed the union card, I could not
tell you for sure whether it was the same time or
not.
In the case of Coddington, the witness himself
acknowledged that he was not sure whether the
Clerks card was commingled with the other forms
that he had to fill out in order to obtain his job.
A Mr. Spisak testified:
JUDGE BLACKBURN: Who gave you the card?
THE WITNESS : I can't remember, it was a man,
he was around 40 years old, that's all I can
remember. . . . I was in the aisle in the super-
market cleaning shelves, when he came up to me
... he asked me if my name was Dave, and I
said yes; and he said fill one of these cards out,
and give it to one of the men up in the front.
In Spisak's testimony the solicitor of the card and
the recipient of the signed card were not even
identified; therefore there is absolutely no basis on
which to find that Respondent Employer was in any
way involved with this card.
A Mr. Preininger testified:
Q. Do you remember who asked you to sign
the card?
A. Jim Fox. [Jim Fox was a fellow employee.]
* * * * *
Q. Did Mr. Potts or Mr. Grossi or any other
supervisor tell you that you should sign a card?
A. No, the only thing that Mr. Grossi told me
is that it was going to be a Union shop, and that
was it, that's the only thing he told me.
In Preininger's testimony there is , first, an isolated
incident of a card given to him by Jim Fox, a fellow
employee, and then another isolated incident in
which Grossi, admittedly Respondent Employer's
agent, told him that "it was going to be a union
shop." As argued by the General Counsel the
statement by Grossi that "it was going to be a union
shop" could be interpreted to mean that Respondent
had fatalistically accepted that his store was going to
be a union shop since 99 percent of the other stores
in the area had unions. The statement, however, does
not establish assistance by the Employer for the
Retail Clerks.
Finally, Potts testified as follows:
Q. . . . what did you tell or say to Mr.
Sorbara on April 16, 1973, on Monday?
A. I think the general conversation was that
he had received sufficient support, or words to
that effect, there again I am not familiar with just
how this thing worked at that time, and that there
were sufficient employees to warrant his involve-
ment of Local 1407 [Retail Clerks].
Q. Well, I-
A. And I had no intention of operating a
nonunion store.
Q. You had no intention of operating a
nonunion store? Is that correct?
A. Yes.
As we have observed before, this testimony could
easily be interpreted as acceptance by Potts that he
would have a union in his store. On the other hand, it
could also mean that Potts thought that operating
with a union would be better for his overall business
than operating without a union. What cannot be
inferred from this testimony, alone, is that Potts
unlawfully assisted the Retail Clerks.
In view of our analysis of the testimony on which
the Administrative Law Judge relied, we find that the
evidence does not establish unlawful assistance to the
Retail Clerks.
III. THE MIDWEST PIPING ISSUE
The Administrative Law Judge found that Respon-
dent Employer did not violate Section 8(a)(1), (2),
and (3) of the Act by recognizing and entering into a
contract with Respondent Union and that Respon-
dent Union did not violate Section 8(b)(1)(A) and (2)
by accepting recognition and entering into a contract
with Respondent Employer. He found that the
Clerks Local had staked its claim on tainted cards
and an illegal contract, and that therefore this did
not even rise to the level of a naked claim to a
continuing interest found insufficient by the Board in
Robert Hall Gentilly Road Corporation d/b/a Robert
Hall Clothes, 207 NLRB 692 (1973). In addition, the
Administrative Law Judge found that the fact that
the overwhelming majority of Respondent Employ-
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er's employees supported the Meat Cutters strike
from opening to end showed that the Retail Clerks
had no substantial claim to their allegiance when
Respondent Employer ended the strike by recogniz-
ing the Meat Cutters.
The rationale for the Administrative Law Judge's
Decision, however, falls since we have found that the
Retail Clerks was not unlawfully assisted.3
Because of the particular facts of this case, it is well
that we review the Midwest Piping doctrine,4 espe-
cially in light of the Robert Hall case. At the heart of
the Midwest Piping doctrine is the fact that "Congress
has clothed the Board with the exclusive power to
investigate and determine representatives for the
purposes of collective bargaining. In the exercise of
this power, the Board usually makes such determina-
tion, after a proper hearing and at a proper time, by
permitting employees freely to select their bargaining
representatives by secret ballot."5 The core of the
Midwest Piping doctrine is therefore the essence of
simplicity. When rival unions attempt to obtain
recognition from an employer, a question concerning
representation is thereby raised. Since the employees
have a right under the Act to a free and untrammeled
choice, the employer is barred from making the
choice for his employees by recognizing one of the
competing unions.6
Another aspect of the Midwest Piping doctrine is
that it is strictly construed. Thus, in Playskool, Inc., a
Division of Milton Bradley Company, 195 NLRB 560
(1972), the Board stated that "contrary to the Trial
Examiner, this Board has never established any
numerical percentage as a condition precedent to
establishing the existence of a question concerning
representation. In fact, the sole-requirement necessary
to raise a question concerning representation within the
meaning of the Midwest Piping doctrine, as modified by
the Board, is that the claim of the rival union must not
be clearly unsupportable and lacking in substance. "
(Emphasis, supplied.)
The thrust of the doctrine, therefore, is that a
supportable claim by a rival union will trigger the
applicability of the doctrine, so that, from that point
on, the employer is prohibited from preferring one
union to another . It is clear that the intent of the
Board is to preserve the Section 7 rights of employees
to determine freely their agents for collective
bargaining. Congress has invested the Board with the
responsibility for determining the collective-bargain-
ing agent of employees by free elections. Unless the
3 In this decision we do not resolve the question concerning representa-
tion. A petition for an election is the proper vehicle for such resolution.
4 Midwest Piping and Supply Co., Inc, 63 NLRB 1060 (1945).
S Id at 1070
6 Cf Linden Lumber Div , Summer & Co v. NLRB, 419 US. 301
Midwest Piping doctnne is construed strictly, the
intent of Congress is frustrated.
In the Robert Hall case, after withdrawing its
petition for lack of an adequate showing of interest,
the rival union did not "engage in any activity
consistent with its claim that it was currently
conducting an organizing campaign." For example,
.,no evidence was adduced showing that any cards
were solicited or signed on behalf of Local 548 [rival
union] after it requested that its petitions for
elections be withdrawn." The Board held that this
constituted no more than a naked claim and that
such a claim was insufficient to compel application
of the Midwest Piping doctrine.
In the instant case, there is more than a naked
claim by each union. Thus the Retail Clerks at some
point in its organizing campaign had 27 cards out of
29 employees, its representatives agreed to go to a
private election to determine which union would
represent the employees, and finally the representa-
tives of the Retail Clerks protested strongly when the
election was not held as scheduled. Similarly the
Meat Cutters had more than a naked claim since it
held 34 cards out of 37 employees.
Thus, because of the supportable claims for
recognition by two rival unions, the Midwest Piping
principle is applicable here.
Respondent Employer chose to resolve the rival
claims by recognizing one of these unions, the Meat
Cutters, and to disregard the other union, the Retail
Clerks. This is precisely the type of situation that the
Midwest Piping doctrine sets out to avoid. In this case
the Respondent Employer and the Respondent Meat
Cutters have attempted to bypass the election
processes of the Board even in the face of a
supportable claim by another union.
Under Midwest Piping, the Respondent Employer
herein violated Section 8(a)(1) and (2) by its
assistance to and recognition of Respondent Union.
Respondent Employer further violated Section
8(a)(1) and (3) by entering into a collective-bargain-
ing agreement with the assisted union, which
agreement contained union-security and dues-check-
off provisions. In a similar manner, Respondent
Union violated Section 8(b)(1)(A) and (2) of the Act
by accepting such assistance and recognition from
Respondent Employer and by entering into a
contract containing union-security and union dues-
checkoff provisions.
(1974) The Supreme Court has recently reaffirmed the principle that a
Board-conducted election is the preferred method for choosing a bargauung
representative . This principle is itself the heart of the Midwest Piping
doctrine
MCKEES ROCKS FOODLAND 973
CONCLUSIONS OF LAW
1. Kay Jay Corporation d/b/a McKees Rocks
Foodland is an Employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Amalgamated Meat Cutters and
Charging Party Retail Clerks are labor organizations
within the meaning of Section 2(5) of the Act.
3. By recognizing Respondent Amalgamated
Meat Cutters, by executing a collective-bargaining
agreement with Amalgamated Meat Cutters, and by
maintaining in effect and enforcing the provisions of
said contract, which contained union-security and
union dues-checkoff provisions, at a time when a
question concerning the representation of its employ-
ees existed, Respondent Employer has rendered and
is rendering unlawful assistance and support to the
Amalgamated Meat Cutters and has interfered with,
restrained, and coerced and is interfering with,
restraining , and coercing its employees in the
exercise of Section 7 rights in violation of Section
8(a)(1), (2), and (3) of the Act.
4. By accepting recognition from Respondent
Employer and by entering into a collective-bargain-
ing agreement containing union-security and union
dues-checkoff provisions with the Respondent Em-
ployer at a time when a question concerning
representation of Respondent Employer's employees
existed, Respondent Amalgamated Meat Cutters
restrained and coerced and is restraining and
coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act in violation of Section
8(b)(1)(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
We have found that the Respondent Employer
recognized the Respondent Union and thereafter
entered into an agreement with it on June 25, 1973,
all during the pendency of a question concerning the
representation of the employees covered thereby. By
such conduct , Respondent Employer has interfered
with , restrained, and coerced its employees in the
exercise of their right freely to select their own
bargaining representative and it has accorded unlaw-
ful assistance and support to the Respondent Union
in violation of Section 8(a)(2) and (1) of the Act. In
order to dissipate the effect of Respondent Employ-
er's unfair labor practices , we shall order Respondent
Employer to withdraw and withhold all recognition
from the Respondent Union and to cease giving
effect to the aforementioned agreement , or to any
renewal , modification , or extension thereof, until
such time as Respondent Union shall have been
certified by the Board as the exclusive representative
of the employees in question.
Having found the recognition of the Amalgamated
Meat Cutters by Respondent Employer to have been
invalid and the collective-bargaining agreement
containing union-security and union dues-checkoff
provisions to be in violation of Section 8(a)(1) and (3)
of the Act, we shall order Respondent Employer
jointly and severally with Respondent Union to
reimburse all present and former employees for all
initiation fees, dues, or other moneys paid.
We have also found that Respondent Union
accepted recognition and thereafter on June 25, 1973,
entered into a collective-bargaining agreement con-
taining union-security and union dues-checkoff
provisions with Respondent Employer at a time
when there existed a question concerning representa-
tion of the employees covered thereby. By such
conduct, Respondent Union has restrained and
coerced Respondent Employer's employees in the
exercise of their right freely to select their own
bargaining representative in violation of Section
8(b)(1)(A) and (2) of the Act. In order to dissipate the
effect of Respondent Union's unfair labor practices,
we shall order Respondent Union to cease maintain-
ing or giving effect to its current recognition and
collective-bargaining agreement with Respondent
Employer or any renewal or extension thereof, until
such time as the Respondent Union shall have been
certified by the Board as the exclusive representative
of the employees in question. In addition, we shall
order that Respondent Union jointly and severally
with Respondent Employer reimburse all present and
former employees in the manner and to the extent set
forth above.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Employer, Kay Jay Corporation
d/b/a McKees Rocks Foodland, McKees Rocks,
Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to the Amal-
gamated Meat Cutters, or to any other labor
organization , by recognizing such labor organization
as the exclusive representative of any of their
employees for the purpose of collective bargaining at
a time when a question concerning representation
exists.
(b) Giving effect to or enforcing the collective-
bargaining agreement executed with Respondent
Union on June 25, 1973, or to any modification,
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extension, renewal, or supplement thereto, unless and
until Respondent Union has been certified by the
National Labor Relations Board as the exclusive
bargaining representative of such employees; provid-
ed, however, that nothing herein shall require
Respondent Employer to vary or abandon any
existing term or condition of employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
Amalgamated Meat Cutters as a representative of its
employees for the purpose of collective bargaining
unless and until said labor organization has been
duly certified by the National Labor Relations Board
as the exclusive representative of such employees.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, timecards, personnel records and
reports, and all other records necessary to analyze
the amount due under the terms of this Order.
(c) Jointly and severally with Respondent Union
reimburse all present and former employees for all
initiation fees, dues, and other moneys, if any, paid
by or withheld from them in the manner provided in
"The Remedy" section of this Decision.
(d) Post at its store in McKees Rocks, Pennsylvani-
a, copies of the attached notice marked "Appendix
A." 7 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
signed by Respondent Employer's representative,
shall be posted by Respondent Employer immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to its
employees are customarily posted. Reasonable steps
shall be taken by Respondent Employer to insure
that said notices are not altered , defaced, or covered
by any other material.
(e) Post at the same places and under the same
conditions as set forth in (d), above, as they are
forwarded by the Regional Director, copies of the
Amalgamated Meat Cutters notice marked "Appen-
dix B."
(f) Mail signed copies of the attached notice
marked "Appendix A" to the Regional Director for
posting at Amalgamated Meat Cutters offices and
meeting halls.
(g) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herewith.
B. Respondent Amalgamated Meat Cutters and
Butcher Workmen of North America, Amalgamated
Food Employees , Local 590 , AFL-CIO, its officers,
agents, and representatives , shall:
1. Cease and desist from:
(a) Accepting exclusive recognition as representa-
tive of Respondent Employer's employees at McKees
Rocks, Pennsylvania , at a time when a question
concerning representation exists.
(b) Maintaining or giving effect to its contract of
June 25 , 1973, with the Respondent Employer or to
any modification , extension , renewal, or supplement
thereto, unless or until it has been duly certified by
the National Labor Relations Board as exclusive
representative of such employees.
(c) In any like or related manner restraining or
coercing Respondent Employer's employees at
McKees Rocks , Pennsylvania , in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Employ-
er reimburse all present and former employees for all
dues and other moneys, if any, paid by or withheld
from them.
(b) Post at its offices and meeting halls copies of
the attached notice marked "Appendix B.118 Copies
of said notice , on forms provided by the Regional
Director for Region 6, after being duly signed by an
Amalgamated Meat Cutters representative , shall be
posted by the Amalgamated Meat Cutters immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter in conspicuous
places, including all places where notices to members
are customarily posted . Reasonable steps shall be
taken by Amalgamated Meat Cutters to insure that
said notices are not altered, defaced , or covered by
any other material.
(c) Post at the same places and under the same
conditions as set forth in (b), above , as they are
forwarded by the Regional Director , copies of
Respondent Employer 's notice marked "Appendix
A."
(d) Mail signed copies of the attached notice
marked "Appendix B" to the Regional Director for
posting at Respondent Employer's store.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent Amalgamated Meat Cutters
has taken to comply herewith.
I 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."
8 See In . 7, supra.
MCKEES ROCKS FOODLAND
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing , that we violated Federal law by
granting recognition to Amalgamated Meat Cutters
and Butcher Workmen of North America, Amalga-
mated Food Employees, Local 590, AFL-CIO, at a
time when a question concerning representation
existed , we hereby notify you that:
WE WILL NOT assist or contribute support to the
Amalgamated Meat Cutters and Butcher Work-
men of North America, Amalgamated Food
Employees, Local 590, AFL-CIO, or any other
labor organization, by recognizing, or contracting
with, such labor organization as the exclusive
representative of our employees for the purpose
of collective bargaining at a time when there
exists a question concerning representation.
WE WILL NOT give effect to our June 25, 1973,
agreement with Amalgamated Meat Cutters and
Butcher Workmen of North America, Amalga-
mated Food Employees, Local 590, AFL-CIO, or
to any renewal, extension , modification, or
supplement thereof, unless and until said labor
organization has been duly certified by the
National Labor Relations Board as the exclusive
representative of our employees, but nothing
herein shall be construed to require that we vary
or abandon any existing term or condition of
employment.
WE WILL withdraw and withhold all recogni-
tion from the Amalgamated Meat Cutters and
Butcher Workmen of North America, Amalga-
mated Food Employees, Local 590, AFL-CIO, as
the collective-bargaining representative of our
employees unless and until said labor organiza-
tion has been certified as such by the National
Labor Relations Board.
WE WILL jointly and severally with the Union
reimburse all present and former employees for
any initiation fees, dues, or other moneys paid or
checked off pursuant to our agreement with
Amalgamated Meat Cutters and Butcher Work-
men of North America, Amalgamated Food
Employees, Local 590, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of
the Act.
975
KAY JAY CORPORATION
D/B/A MCKEES ROCKS
FOODLAND
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated Federal law by
accepting recognition from Kay Jay Corporation
d/b/a McKees Rocks Foodland at a time when a
question concerning representation existed we here-
by notify you that:
WE WILL NOT accept recognition as the repre-
sentative of that Employer's employees or enter
into a contract with the Employer as the exclusive
representative of its employees at a time when
there exists a question concerning representation.
WE WILL NOT give effect to our contract of
June 25, 1973, with the Employer, or to any
renewal, extension, or supplement thereof, unless
or until we have been duly certified by the
National Labor Relations Board as the exclusive
representative of such employees.
WE WILL, with the Employer, reimburse all
present and former employees for any initiation
fees, dues, or other moneys paid or checked off
pursuant to our June 25, 1973, contract with the
Employer, or any renewal, extension, modifica-
tion, or supplement thereof.
WE WILL NOT in any like or related manner
restrain or coerce employees of the above-named
Company in the exercise of rights guaranteed in
Section 7 of the Act.
AMALGAMATED MEAT
CUTTERS AND BUTCHER
WORKMEN OF NORTH
AMERICA, AMALGAMATED
FOOD EMPLOYEES,
LOCAL 590, AFL-CIO
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charges were filed on December 21, 1973.1 The cases
were consolidated for hearing and a consolidated com-
plaint was issued on July 29, 1974. Respondent Company
filed no answer. Respondent Union filed an answer on
August 2, 1974. The hearing was held in Pittsburgh,
Pennsylvania, on September 10, 1974.
1 Dates are 1973 unless otherwise indicated.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue litigated was whether, under the Midwest
Piping doctrine,2 Respondent Company violated Section
8(a)(1), (2), and (3) of the National Labor Relations Act, as
amended, and Respondent Union violated Section
8(bx1XA) and (2) when, on June 25, 1973, Respondent
Company recognized and entered into a collective-bargain-
ing agreement with Respondent Union at a time when
Respondent Company had recognized and signed a
contract with the Charging Party as the representative of
the same unit of employees. For the reasons set forth
below, I find they did not.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
a brief filed by the General Counsel, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Company, a Pennsylvania corporation,
operates a retail grocery store in McKees Rocks, Pennsyl-
vania. During the year prior to issuance of the complaint in
this proceeding, it grossed more than $500,000. During the
same period, it received goods and products valued in
excess of $50,000 which were shipped to it, either directly
or indirectly, from points outside the Commonwealth of
Pennsylvania.
II. THE UNFAIR LABOR PRACTICES
A. Facts
National Tea Company closed a number of stores in the
Pittsburgh area in August 1972, selling inventory and other
rights to Fox Grocery Company. While these stores were
operated by National Tea, the employees were represented
by Meat Cutters Local 590. Respondent Company re-
opened one of these closed stores in McKees Rocks on
May I, 1973, under a Foodland franchise from Fox
Grocery Company. The corporation was formed in early
April for this express purpose. It purchaseq the inventory
still in the store and leased the building from Fox Grocery
Company. It purchased the fixtures from National Tea.
Frank Potts is president of the corporation and principal, if
not sole , owner of the business . He hired Tom Grossi as
store manager.
Grossi began contacting various prospective employees a
few days prior to April 13. Respondent Company also used
the state employment service as a source of employees. It
did not attempt to seek out persons who had formerly
worked for National Tea in McKees Rock. None of the
former National Tea employees worked for Respondent
Company during the period involved in this proceeding.
The first employees reported for work on April 13. From
then until the store opened on May I they were engaged in
various chores preparatory to opening, such as stocking the
shelves . During this period Thomas Best and another,
unnamed organizer for Clerks Local 1407 were in the store
with Potts ' permission . On one occasion , when their
activities interfered with employees' work, he asked them
to leave.
Clerks Local 1407 demanded recognition by letter dated
April 13. By letter dated April 14, Potts stated his
willingness to meet at Local 1407's office on April 16. On
April 16 a card check was conducted by an attorney
named Jay Harris Feldstein at his office. He certified that
14 of Respondent Company's 22 employees had executed
authorization cards for Local 1407. Potts signed a
document which acknowledged Local 1407's majority
status and recognized it as bargaining agent for "employ-
ees employed at our McKees Rocks Foodland store." By
letter dated April 21, Local 1407 claimed to represent "the
new employees employed in your store," demanded
negotiations, and offered to prove "our majority of these
recent employees." On April 25 a second card check was
held at the same law office, this time before an attorney
named Edwin Grinberg. He certified that 27 of Respon-
dent Company's 29 employees had executed authorization
cards for Local 1407. Potts signed another recognition
agreement. On April 27 Potts and Local 1407 executed a
collective-bargaining agreement. Pursuant to this contract,
Respondent Company deducted dues in the amount of $2
per week in each of the first 2 weeks in May from each
employee's wages . It did not, however, remit this money to
Local 1407. The money was ultimately returned to the
employees after the events related below.
George Nestler, an organizer for Meat Cutters Local 590
and a meatcutter by trade, went to work in the store on
April 30. He began signing up employees for Meat Cutters
Local 590. On May 9 Adolf Conte, a business representa-
tive for Local 590, went to the store and demanded
recognition from Potts. Potts told Conte he already had a
contract with Clerks Local 1407. Conte asked to see it.
Potts refused to show it to him. Conte left with Potts a
letter dated May 9 which stated that Meat Cutters Local
590 was engaged in organizing Respondent Company's
employees, urged Respondent Company not to interfere
with its employees' rights, and demanded recognition.
Respondent Company fired two employees on Saturday,
May 12. On May 14 Meat Cutters Local 590 filed an unfair
labor practice charge on their behalf. (The record does not
indicate the ultimate disposition of that proceeding.) On
the evening of May 15, at a meeting chaired by Nestler, the
employees voted to strike in protest of the discharges. The
strike began on the morning of May 16. It lasted until June
25. Only two employees worked during the strike. One did
not walk out with the other employees. One who did
returned to work on the second day. The store remained
open during the strike, manned by supervisors and
members of Potts' family. On May 17 Potts sent the
following telegram to each of the striking employees:
You are being ill advised by Local 590. If you recall
you previously signed cards for Local 1407. We have
not tried to prevent you from organizing and when
Local 1407 gave us proof that you had signed their
cards, we negotiated a contract with that Union. We
cannot legally deal with Local 590 since we already
have a contract with Local 1407. Your contract has a
no strike clause in it and you are violating that clause.
2 Midwest Piping and Supply Co., Inc, 63 NLRB 1060 (1945)
MCKEES ROCKS FOODj.,AND
Should you continue to strike you will face loss of your
jobs and law suits will be filed for damages suffered.
Frank L. Potts
McKees Rocks Foodland
McKees Rocks, Pa.
On Thursday, June 21, Potts spoke to Conte at the store
while Conte was visiting the picket line. Potts told Conte
that he and his wife were going to meet Joseph Sorbara,
business manager of Clerks Local 1407, at a nearby
restaurant and that the two locals' competing claims would
be resolved at that meeting. On Friday, June 22, Potts and
his attorney met with Sorbara and Clerks Local 1407's
attorney, Stanley Segal , at Sorbara's office. Joseph Mauri-
zi, attorney for Meat Cutters Local 590, was also present.
Sorbara had set up the meeting with Maurizi in a phone
conversation Sorbara initiated on June 21 in which he
asked Maurizi to sound out Cliff Caldwell, head of Local
590, on the possibility of going to a Board election to
resolve the situation. At the meeting, Maurizi took the
position that a Board election would take too long. Sorbara
suggested, instead, a private election to be held on Monday
morning, June 25. Potts and Sorbara agreed to this
arrangement. Maurizi said that he would take the idea
back to his client.
Segal went to the store on the morning of June 25 with
the expectation that an election would be held to determine
whether the employees wanted to be represented by Clerks
Local 1407 or by Meat Cutters Local 590. Neither Maurizi
nor any other representative of Local 590 showed up that
morning for that purpose. Sometime after lunch Conte
spoke to Potts at the store about a card check of Meat
Cutters Local 590's majority status. He asked Potts if
Clerks Local 1407 had agreed to resolve the situation by
withdrawing from its contract. Potts said that it had. They,
along with Nestler and Joe Harbaugher, another business
representative of Local 590, went to the office of the mayor
of McKees Rocks for a card check. Mayor John C. Kyle,
Jr., certified that 34 of Respondent Company's 37
employees had signed authorization cards for Meat Cutters
Local 590. Conte, Potts, Nestler, and Harbaugher returned
to the store. They negotiated a collective-bargaining
agreement . Conte and Potts signed it. That evening, the
striking employees ratified it. Next morning, June 26, the
strikers returned to work. (Apparently some returned on
the afternoon or evening of June 25..The record is not clear
on this point.) Respondent Company has deducted dues
from its employees and remitted them to Meat Cutters
Local 590 pursuant to this contract. There is no indication
in the record that dues have been deducted for Local 590's
benefit from the wages of any employee who has not
expressly authorized Respondent Company tq do so.
B. Analysis and Conclusions
The General Counsel seeks to invoke against Respon-
dent Company the provisions of Section 102.20 of the
Board's Rules and Regulations that "[a ]ll allegations in the
complaint, if no answer is filed . . . shall be deemed to be
admitted to be true and shall be so found by the Board"
despite the fact Frank Potts testified as a witness for the
977
General Counsel. Since all issues were fully litigated and a
complete record was made of Respondent Company's and
Potts' role in these events , I deny the General Counsel's
motion.
1. The status of Clerks Local 1407
The General Counsel takes the position that Clerks
Local 1407 was not unlawfully assisted by Respondent
Company . However, he has not staked his case on that
position , for his basic argument is that , even if it was, Local
1407 had in its possession, on June 25 , sufficient uncoerced
cards from Respondent Company's employees to invoke
the Midwest Piping doctrine that an employer , faced by
claims from rival unions which raise a real question
concerning representation , cannot choose between them
without violating Section 8(a)(2) of the Act. To that end he
introduced into evidence five authorization cards, two
signed on April 13 , one signed on April 17 , and two signed
on April 23. Four were identified by the signers . One was
identified by an employee who worked only 5 days and did
not himself sign a card for Clerks Local 1407. He obtained
the card in question from the signer on April 23 . Broadly
stated , the theme of these witnesses is that , while neither
Frank Potts nor Tom Grossi was the person who issued the
order , they were told to sign in the context of filling out the
usual forms required of new employees, such as a Federal
W-4 to authorize income tax withholding . Precisely who
told them is unclear . Some named Jim Fox , a clerk who
worked for Respondent Company just a few days. (I
suspect Fox was planted in the store by Clerks Local 1407
just as Nestler was admittedly planted there by Meat
Cutters Local 590 . However, there is no evidence in the
record to support such a finding .) Others described a gray-
haired nonemployee. (They failed to identify Thomas Best
as the man they dealt with. My finding that Best was
accompanied by another organizer when he was in the
store before it opened is based on this failure . Best was not
asked whether he had a colleague with him . He did testify
that he had cut his gray hair short in the interim. If that
was intended as an admission that he was the man the
General Counsel 's witnesses dealt with, the witnesses and I
are bpth wrong but the important fact-that the witnesses
dealt with an organizer for Clerks Local 1407 when they
were told to sign authorization cards-is unchanged.)
Specifically, Raymond Berendowski (card dated April
13) testified:
Q. Who, if anyone, asked you to sign the card?
A. We were informed to get cards off of Jim Fox.
s s « s s
Q. Was anyone else present when Fox gave you the
card?
A. I think someone from the union, it was an old
guy.
s s s s s
Q. Before you filled out the card did Mr. Potts or
Mr. Grossi say anything to you about any union?
A. No, he [sic] just said to fill it out . . . . We were
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
just informed to get a card off of him , nobody said
anything about a union card or anything .... As I
remember , there was a grey haired guy there, he said
make sure you get a card off of Jim . . . . Mr. Potts
said make sure you fill out all the forms or something
like that.
Q. Did you know what you were signing when you
signed General Counsel's Exhibit No. 2? Did anybody
explain it to you?
A. No, they just said fill out the forms.
John Coddington (card dated April 23) testified:
Q. Did you sign this form along with other forms?
A. Yes, sir, I did.
Q. At about the same time?
A. I don' t know whether it was the same time or
not, that I signed the union card , I couldn't tell you for
sure whether it was the same time or not.
April 23 was the day Coddington started work. David
Spisak (card dated April 13) testified:
JUDGE BLACKBURN: Who gave you the card?
THE WITNESS: I can't remember , it was a man, he
was around forty years old, that' s all I can remem-
ber.... I was in the aisle in the supermarket cleaning
shelves, when he came up to me. . . . He asked me if
my name was Dave , and I said yes, and he said fill one
of these cards out , and give it to one of the men up in
the front.
Richard Preininger (card dated April 17) testified:
Q. Do you remember who asked you to sign the
card?
A. Jim Fox.
Q. Did Mr. Potts or Mr. Grossi or any other
supervisor tell you that you should sign a card?
A. No, the only thing that Mr. Grossi told me is
that it was going to be a union shop, and that was it,
that's the only thing he told me.
Harry Kress testified that he obtained four or five cards for
Clerks Local 1407 during the 5 days he worked at the store.
The General Counsel elected to have him identify only the
card signed by Jeffrey Edward Johnson . Kress testified
that he got blank cards from Best , who informed him that
Respondent Company was hiring . He was not asked what
he said to Johnson or any of the other employees he
solicited . (Berendowski, Coddington , Spisak, Preininger,
and Johnson all signed cards for Meat Cutters Local 590 as
well.)
Potts admitted that it was his intention from the
beginning to operate a union store, thus:
Q. . . . What did you tell or say to Mr. Sorbara on
April 16, 1973, on Monday?
A. I think the general conversation was that he had
received sufficient support, or words to that effect,
there again I'm not familiar with just how this thing
worked at that time , and that there were sufficient
employees to warrant his involvement of Local 1407.
Q. Well, I-
A. And I had no intention of operating a non-
union store.
Q. You had no intention of operating a non-union
store? Is that correct?
A. Yes.
On the basis of these portions of the record, I find that
Clerks Local 1407 was unlawfully assisted by Respondent
Company in signing up employees and that the General
Counsel has failed to prove that any of the authorization
cards obtained by Clerks Local 1407 were not tainted by
that assistance . Cf. Longchamps, Inc., and its wholly owned
subsidiary, S & B Restaurant of Huntington, d/b/a Steak
and Brew of Huntington, 205 NLRB 1025 (1973); Anton
Notey, et ano, a Co-Partnership, d/b/a Doctors Hospital,
Freeport, New York, 185 NLRB 147 (1970); and American
Bread Company, 170 NLRB 85 (1968).
2. Respondent Union's defense
The primary thrust of Respondent Union's defense is
that Clerks Local 1407, in the person of Joseph Sorbara,
told Respondent Company, in the person of Frank Potts,
that it was abandoning its claim to represent Respondent
Company's employees before Respondent Company recog-
nized Respondent Union. For this reason , Respondent
Union argues , there was no claim by a rival union on June
25 and thus no question concerning representation to
invoke the Midwest Piping doctrine. Respondent Union
relies on the testimony of Adolf Conte about statements by
Potts to that effect on June 21 and June 25. I have credited
Conte over Potts in this regard to find that the statements
were made. However, I have not discredited Potts
generally and, more importantly, I have credited Sorbara's
denials that he ever said any such thing to Potts. While the
fact that Clerks Local 1407 waited until only a few days
before the expiration of the 10(b) period to file the charge
in this case strikes me as suspicious , I do not think it will
support an inference that the Charging Party did, in fact,
withdraw from the lists in the June 21-25 period and only
changed its mind when the Act's statute of limitations was
about to run out on it. In any event, it is offset by the
undisputed fact that Stanley Segal, attorney for Clerks
Local 1407, showed up at the store on the morning of June
25 fully expecting to participate in the election Clerks
Local 1407 thought had been arranged on June 22. (There
is nothing in the record to indicate whether Maurizi, in
fact, carried Sorbara's proposal back to his client and, if he
did, why Meat Cutters Local 590 did not accept it.)
Consequently, as set forth in the section entitled "Facts"
above, I find merely that Potts was somewhat less than
candid with Conte when he told him, on June 25, that he
was free to recognize Meat Cutters Local 590 because
Clerks Local 1407 had withdrawn. Given these findings of
fact, there is no merit to this particular facet of Respondent
MCKEES ROCKS FOODLAND
Union's defense , as counsel for Respondent Union readily
conceded during oral argument at the close of the hearing.
As the Board stated in the first two sentences in the
section entitled "Conclusions" of its Decision , Order, and
Direction of Second Election in Inter-Island Resorts, Ltd,
d/b/a Kona Surf Hotel, 201 NLRB 139, 141 (1973), the
Midwest Piping doctrine involves "the obligation of an
employer to maintain a position of strict neutrality when
faced with conflicting claims by rival unions . . . . the sine
qua non of a Midwest Piping violation is the existence of a
real question concerning representation ." Paraphrasing the
Board 's third sentence , the determinative issue in this case,
thus, is whether or not a real question concerning
representation exists where, at the time recognition is
granted , the rival union which is asserting a claim achieved
the status which supports its claim only through the
employer's unlawful assistance . Or put another way, does
Clerks Local 1407's claim meet the "sole requirement
necessary to raise a question concerning representation"
specified by the Board in Kona Surf Motel "that the claim
of a rival union must not be clearly unsupportable and
lacking in substance?" I think that it does not.
I am aware of no case , and none has been brought to my
attention , in which this precise question has been passed on
by the Board. (The question is raised at fn. 23 of the Trial
Examiner's Decision in Doctors Hospital, supra, but there
the Trial Examiner found that some of the rival union's
cards were untainted even if, arguendo, others were tainted
and that the rival union had not been illegally assisted.)
However, in Playskool, Inc., a Division of Milton Bradley
Company, 195 NLRB 560 (1972), enforcement denied 477
F.2d 66 (C.A. 7, 1973), the Board found a real question
concerning representation where , after being defeated in a
Board election, the rival union continued its organizational
efforts . In Robert Hall Gentilly Road Corporation d/b/a
Robert Hall Clothes, et al., 207 NLRB 692 (1973), where the
rival union withdrew its petition for an election when it
was unable to make an adequate showing of interest in an
appropriate unit larger than the inappropriate one it
sought, the Board distinguished Playskool thus:
In (Playskool] . . . the rival union manifested clear
evidence of a continuing organizational effort . In that
case, the rival union continued to send organizers to the
respondent's plant, obtained additional authorization
cards, held occasional meetings , and visited employees
in their homes . By contrast , we find in this case no
more than a naked claim to a continuing interest in the
employees here involved . We find such a claim
insufficient to compel application of our Midwest
Piping doctrine ... .
3 The names of Berendowski , Coddington , Spisak, Preininger, and
Johnson appear on a list of Respondent Company's employees as of June
979
In Robert Hall, the rival union staked its claim on valid
authorization cards it had in its possession and statements
to the employer that it had not abandoned its efforts to
organize its employees. Here, Clerks Local 1407 stakes its
claim on tainted cards and an illegal contract. That, I
think, does not even rise to the level of the naked claim to a
continuing interest found insufficient by the Board in
Robert Hall. In addition, the fact that the overwhelming
majority of Respondent Company's employees, including
all five of the employees whose Clerks Local 1407
authorization cards are relied on by the General Counsel,3
supported Meat Cutters Local 590's strike from beginning
to end shows that Clerks Local 1407 had no substantial
claim to their allegiance when Respondent Company
ended the strike by recognizing Meat Cutters Local 590. I
find, therefore, that Respondent Company did not violate
Section 8(a)(1), (2), and (3) of the Act by recognizing and
entering into a collective-bargaining agreement with
Respondent Union on June 25, 1973, which contained
union-security and dues-checkoff provisions and Respon-
dent Union did not violate Section 8(b)(1)(A) and (2) by
accepting recognition and entering into and accepting the
fruits of that contract.
In view of this finding, I do not reach another facet of
Respondent Union's defense, that any question concerning
representation of employees by Clerks Local 1407 within
the meaning of the statute and the Midwest Piping doctrine
ceased to exist as a matter of law when it entered into a
contract with Respondent Company, and the Charging
Party was thereafter limited to a suit against Respondent
Company for breach of that contract.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Kay Jay Corporation d/b/a McKees Rocks Food-
land is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, Amalgamated Food Employees, Local
590, AFL-CIO, and Retail Clerks Store Employees Union,
Local 1407, as chartered by Retail Clerks International
Association, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent
Company violated Section 8(a)(1), (2), and (3) of the Act
and that Respondent Union violated Section 8(b)(1)(A)
and (2) have not been sustained.
[Recommended Order for dismissal omitted from publi-
cation.]
25. The employee who did not join the strike was Luther Udvarhelyl. The
employee who returned to work on the second day was James Kerr.