Michael's Markets Of Canterbury, Inc., And Michael's Markets Of Jewett City, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1985

274 N.L.R.B. 826 (N.L.R.B. 1985)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael's Markets of Canterbury, Inc., and Mi-
chael 's Markets of Jewett City, Inc. and United
Food and Commercial Workers Union, Local
371, AFL-CIO. Cases 39-CA-1095 and 39-
RC-293
12 March 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 March 1983 Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed cross-exceptions and
a brief in support thereof.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order, and to adopt the recommend-
ed Order as modified.
The judge found that, by distributing a "Dear
Sam letter,"' the Respondent violated Section
8(a)(1) of the Act by threatening its employees
with (a) less flexibility in scheduling hours of em-
ployment, (b) loss of the right to speak directly
with management regarding their terms and condi-
tions of employment, and (c) loss of employment if
they were represented by a labor organization for
purposes of collective bargaining. The judge found
that sections of the "Dear Sam letter" failed to
meet the standards set forth in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), governing the
permissibility of employer predictions as to "the
precise effect" of unionization. In Gissel, the Court
ruled that such
. . . prediction[s] must be carefully phrased on
the basis of objective fact to convey an em-
ployer's belief as to demonstrably probable
consequences beyond his control. [Id. at 618.]
Contrary to the judge, we find that the Respond-
ent's distribution of the "Dear Sam letter" was not
a violation of the Act.
The essential facts of this case, as found by the
judge, are as follows. The Respondent distributed
the "Dear Sam letter" to all its Canterbury, Con-
necticut employees with an attached note from its
owner and general manager, Michael Pappas. The
note explained that the "Dear Sam letter" was
written by an ex-A & P employee to his fellow em-
ployees at a small independent grocery. Also in-
i This letter , written by an ex-A & P employee, was generally referred
to at the hearing as the "Dear Sam letter "
cluded in the note was the following paragraph:
"Is this what you want to happen here? Any merit
in learning from his experience? Would this big
international, militant union help or hurt our
future?"
This letter itself stated in relevant part:
Dear Sam,
I have had the unfortunate experience of
watching a once great productive and profita-
ble division of the A & P Tea Company pain-
fully destroyed, employee morale totally
crushed, and excellent employees laid off be-
cause of "lack of work" (by this I mean that
production quotas had to be met in order that
outrageous wages could be paid).
. . . Once the union is voted in there is no
longer any flexibility for employees as far as
scheduling a special day off, or time off, such
as the Summer without some kind of penalty
for the Union's holding your card until you
return. A hardline approach is taken toward
vacation schedules. No two people in the same
department can take their vacation at the same
time, because of lack of personnel.
Contrary to the conclusions made by the judge,
we do not believe the Employer here made any
predictions which could be construed as threats.
The Respondent Employer merely distributed a
letter in which an employee of another company
recounted his personal past experience in a union-
ized environment. Of course the employees are free
to draw their own conclusions therefrom, but em-
ployee conclusions are certainly not to be viewed
as employer predictions. The exercise of free
speech in these campaigns should not be unduly re-
stricted by narrow construction. It is highly desira-
ble that the employees involved in a union cam-
paign hear all sides of the question in order that
they may exercise the informed and reasoned
choice that is their right to make. NLRB v. Lenkurt
Electric Co., 438 F.2d 1102 (9th Cir. 1971). Merely
apprising employees of the opinions and experi-
ences of others is in no way a prediction or threat
of retaliatory conduct by an employer.
The judge also found the following paragraph
from the "Dear Sam letter" to be a violation of
Section 8(a)(1) of the Act because it allegedly
threatened the employees with loss of their right to
speak directly with management about their terms
and conditions of employment if a union came in:
A union is an irreversible marriage; there is
no returning to what once was. I foresee only
unfulfilled promises. There is no room for dis-
274 NLRB No. 105
MICHAEL'S MARKETS
cussion because once it is voted in, the union
does the talking and the employees do the lis-
tening. At least right now if an employee has a
difference of opinion with you, he can discuss
it with you on a one-to-one basis. With the
union, this opportunity is totally eliminated.
Unlike the judge, we do not believe this para-
graph violates Section 8(a)(1) of the Act. The em-
ployee's statement, giving his opinion of changes
that take place when a statutory representative is
selected, merely explains that things may not be
what they used to be. There is no threat, either ex-
plicit or implicit, in this statement. As the Board
recently observed in Tri-Cast, Inc., 274 NLRB 377
(1985), Section 9(a) `contemplates a change in the
manner in which employer and employee deal with
each other. For an employer to tell its employees
about this change during the course of an election
campaign cannot be characterized as an objection-
able retaliatory threat to deprive employees of
their rights, but rather is nothing more or less than
permissible campaign conduct." Id.
Further, the judge considered the totality of cir-
cumstances surrounding the Respondent's approach
to the union campaign and concluded that the Re-
spondent, through the literature it distributed and
posted, together with management consultant
Edwin Ricker's speech to the employees, threat-
ened its employees with loss of their jobs if they
selected the Union as their bargaining representa-
tive. Again, we disagree with this conclusion. On
closer scrutiny, each of the ingredients relied on by
the judge appears to be completely innocuous
taken individually and when viewed cumulatively.
As stated previously, the "Dear Sam letter" is
merely one person's experience and expression of
opinion. A newspaper article appearing in the
Boston Herald referred to an unsuccessful strike
and resulting hardships faced by employees who
participated therein. Posting this article was not in
itself found to be a violation by the judge and can
hardly be used to support a finding of a broader
violation. The Respondent also posted another arti-
cle from a trade journal which discussed A & P
store closings in Kansas . Another ingredient used
to find a violation was a letter written by two
Kroger employees to Ricker asking for his assist-
ance in keeping their jobs in light of the fact that
21 stores in the State had already closed. These
latter two communications were merely stating
economic reality in the industry. Employees have a
right to know conditions in the industry and em-
ployers have a right to give them this information.
Another ingredient was "A message from Swift
Employee" which expressed a union member's dis-
pleasure with the International Union's method of
827
conducting membership meetings. The focus of this
notice and of the Respondent's notations was on
the Union's relationship to its members and not on
plant closings. The judge's strained interpretation
and application of this notice will not support a
finding of an 8(a)(1) violation. Finally, the judge
uses Ricker's speech as still another ingredient
comprising this violation. In his speech to employ-
ees, Ricker referred to store closings across the
country, the Kroger closings, and his view of the
International as "one of the nation's leading strik-
ing unions." Again, he was merely outlining eco-
nomic realities of the industry and verbally explain-
ing or putting in context the written material
which was distributed or posted. These employees
were not barraged with articles or letters threaten-
ing to close the store or intimating that a strike was
inevitable. On close scrutiny it becomes obvious
that the ingredients relied on by the judge are
without substance. Accordingly, we find that, even
considering the totality of circumstances, the Re-
spondent did not threaten its employees with job
loss.
Objections 1, 3, and 4 are coextensive with the
judge's 8(a)(1) findings. As we have reversed these
findings, we accordingly overrule these objections
as well.
Finally, the judge found that Ricker unlawfully
interrogated the assembled employees. Ricker
asked, "Does this union provide job security? Ask
the many former members of this union that are
now out of work because of their stores being
closed. How many former union people do we
have in the store here? Can I have a show of
hands?" The Board test in these situations is wheth-
er the Respondent has engaged in conduct which
reasonably tends to interfere with the free exercise
of employee rights guaranteed under the Act. Blue
Flash Express, 109 NLRB 591, 593 (1954). The
judge interpreted this question as "an inquiry into
an employee's views toward a union" and therefore
found that the Respondent, through Ricker, violat-
ed Section 8(a)(1) of the Act as he did not satisfy
the safeguards set forth in Struksnes Construction
Co., 165 NLRB 1062 (1967). Ricker also asked the
assembled employees if they had received the
UFCW constitution and bylaws. According to the
judge, this also constituted coercion because Ricker
was actually asking employees if they had been in
contact with the Union. We do not agree with
either of these findings.
In the first instance, by getting a show of hands,
Ricker was merely trying to show that having
union representation would provide no guarantee
of job security as evidenced by the number of
former union members who had lost their union
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs. This show of hands was not aimed at deter-
mining how many employees supported the Union
and would not have had a coercive effect on the
employees. In the second instance concerning the
bylaws, this was merely a rhetorical question to
point out that the employees may not have been
getting the complete picture and all the facts from
the Union which are necessary to make an in-
formed decision. In neither instance is the question-
ing such as to reasonably interfere with the free ex-
ercise of employee rights guaranteed under the
Act. Accordingly, we do not find that Ricker vio-
lated Section 8(a)(1) of the Act by his questions
and we therefore dismiss this allegation and Objec-
tion 5.
Finally, the judge found, and the Board agrees,
that the Respondent, through its president and gen-
eral manager Michael Pappas, violated Section
8(a)(1) of the Act by interrogating its employees
regarding their union membership, sympathies, and
activities and those of their fellow employees.
More specifically, the judge found that Pappas
called employee Barbara Gray into his office and
asked her how she thought the other employees
felt about the Union; if Linda Reilly had anything
to do with the organizing campaign; and if he had
her support. On another occasion he called em-
ployee Virginia Lewis into his office and asked her
essentially the same type of questions. On a second
occasion he called Lewis into his office and asked
her if union representatives had been to her house
and why she had not refused to speak to them. On
yet another occasion Pappas asked Dal Smith if he
knew who was "starting it" and he mentioned Reil-
ly's name.
A'VF Co., 210 NLRB 663 (1974), outlines certain
factors to be considered in deciding whether facts
of a particular case warrant setting an election
aside . These are: the small size of the groups inter-
viewed ; the focus of the interview; the position of
the interviewer in the employer 's hierarchy; and
the tenor of the speaker 's remarks . Applying such
an evaluation here, Member Hunter finds that the
interrogations reasonably tended to interfere with
the employees ' free choice in the election , Here, in-
dividual employees were called into the president's
own office, thereby giving each employee reason
to believe that he was being singled out for special
pressure, and the Employer 's remarks were coer-
2 In view of the pattern of unlawful interrogations, and because
Member Hunter presumes-absent evidence to the contrary-dissemina-
tion of such conduct among employees, Member Hunter finds that the
interrogations were not isolated or otherwise unlikely to have interfered
with the election Although the judge found that "Gray told Pappas that
she would rather their conversation stay between them," Member Hunter
cive in tone - 2 Under all the circumstances, the
Board would not be justified in assuming that the
election results represented the employees' true
wishes and we therefore direct a second election.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3
of the administrative law judge.
"3. The Respondent violated Section 8(a)(1) of
the Act by interrogating its employees regarding
their union membership , sympathies , and activities
and those of their fellow employees."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Michael's Markets of Canterbury, Inc.,
and Michael's Markets of Jewett City, Inc., Canter-
bury, Connecticut, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified
1. Delete paragraphs 1(a), (b), and (c), and relet-
ter paragraphs 1(d) and (e).
2. Substitute the attached notice for that of the
administrative law judge.
[Direction of Second Election omitted from pub-
lication.]
MEMBER DENNIS, concurring in part and dissent-
ing in part.
Contrary to the majority, I agree with the judge
that the Respondent's management consultant
Edwin Ricker unlawfully interrogated employees
at a preelection meeting by requesting former
union members to identify themselves. On the basis
of this conduct, and the judge's findings of other
incidents of unlawful interrogations which the ma-
jority adopt, I join Member Hunter in setting aside
the election.I
finds no evidence to negate the presumption of dissemination with regard
to the other employees interrogated by Pappas
Member Dennis joins Member Hunter in setting aside the election for
the reasons stated in her separate opinion
Although Chairman Dotson agrees with his colleagues that these inter-
rogations violated Sec 8(a)(1) of the Act, he views these interrogations
as isolated and not likely to have interfered with the holding of a free
and fair election in view of the small number of employees who were the
targets of the statements, only 3 employees out of a unit of 78 Under
these circumstances, he finds it difficult to conceive how these isolated
remarks could have a substantial effect on the results of the election Ac-
cordingly, he would certify the results of the election.
' I do not, however, rely on the Board's policy of presuming dissemi-
nation of campaign remarks See Metz Metallurgical Corp, 270 NLRB 889
(1984), cf General Stencils, 195 NLRB 1109, 1114 (1972) (Chairman
Miller dissenting) It is unnecessary to pass on the legality of Ricker's
questions concerning the union constitution and bylaws, as the finding of
an additional interrogation violation would not affect the Order
MICHAEL'S MARKETS
At a meeting attended by the Respondent's presi-
dent and almost all employees, Ricker questioned
whether the Union provided job security. He then
asked, "How many former union people do we
have in the store here? Can I have a show of
hands?"
Although my colleagues correctly recognize that
the test is whether the Respondent's conduct rea-
sonably tends to restrain, coerce, or interfere with
rights guaranteed by the Act, Rossmore House, 269
NLRB 1176 (1984), they err in focusing on the
purpose of the questioning rather than the likely
effect on employees. In my view, the circum-
stances suggest that Ricker's conduct was coercive.
This case does not involve questioning of open
and active union supporters about their union senti-
ments. Compare Rossmore House, supra. Rather, it
concerns a request directed to former union mem-
bers to identify themselves in the presence of the
Respondent's president. Ricker was quite emphatic
in this request, as he literally asked for a show of
hands. No assurances against reprisals were given,
and Ricker's communications occurred in the con-
text of other employer unfair labor practices, i.e.,
unlawful interrogations that the Respondent's presi-
dent committed. Accordingly, I conclude that the
questioning was coercive and in violation of Sec-
tion 8(a)(1).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees regard-
ing their membership in, or support and activities
on behalf of, United Food and Commercial Work-
ers Union , Local 371, AFL-CIO or that of their
fellow employees.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
MICHAEL'S MARKETS OF CANTER-
BURY, INC. AND MICHAEL'S MARKETS
OF JEWETT CITY, INC.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was tried before me on December 13, 1982,1 in
829
Hartford , Connecticut . Pursuant to a petition filed by
United Food and Commercial Workers Union, Local
371, AFL-CIO (the Union ) and a Decision and Direc-
tion of Election issued on February 26 by the Regional
Director for Region 1, an election was conducted on
March 25 in the following unit of employees employed
by Michael ' s Markets of Canterbury , Inc., and Michael's
Markets of Jewett City, Inc. (Respondent):
All full-time and regular part -time employees, in-
cluding department heads, employed by [Respond-
ent] at its Jewett City, Connecticut and Canterbury,
Connecticut facilities ; but excluding guards, profes-
sional employees and supervisors as defined in the
Act.
The tally of ballots showed that 27 votes were cast for
the Union, and 51 were cast against the Union. On
March 29, the Union filed timely objections to conduct
affecting the results of the election. Subsequently, with
the approval of the Regional Director, the Union with-
drew some of these objections. In a supplemental deci-
sion dated May 20, the Regional Director ordered that
Objections 1, 2, 3, 4, 5, 6, and 102 be consolidated with
the unfair labor practices herein, all of which would be
heard by an administrative law judge. These objections
allege:
1 On or about March 15, 1982, the Employer
through its duly authorized representatives distrib-
uted a letter which threatened employees with loss
of employment if they should seek to be represented
by a labor organization.
2 On or about March 15, 1982, the Employer
through its duly authorized representatives distrib-
uted a letter which threatened employees with un-
specified reprisals in retaliation for their union ac-
tivities.
3. On or about March 15, 1982, the Employer
through its duly authorized representatives distrib-
uted a letter which threatened employees with less
flexibility in scheduling hours of employment if they
should seek to be represented by a labor organiza-
tion.
4. On or about March 15, 1982, the Employer
through its duly authorized representatives distrib-
uted a letter which threatened its employees with
loss of their right to speak directly with manage-
ment about their wages, hours, and other terms and
conditions of employment if they should seek to be
represented by a labor organization.
5. The Employer through its duly authorized rep-
resentatives threatened and interrogated employees
as to their intentions in voting in the Board election.
Based on an unfair labor practice charge filed on
March 31, and an amended charge filed on April 30, a
complaint and notice of hearing was issued on May 14.
The complaint alleges the following 8(a)(1) violations:
1 Unless indicated otherwise, all dates herein refer to the year 1982 2 At the hearing, the Union withdrew Objections 6 and 10
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Respondent, through Michael Pappas, its owner
and general manager, about February and March, inter-
rogated its employees regarding their union sympathies
and those of their fellow employees
(b) Respondent, through Edwin Ricker, a management
consultant it employed, about March 23, interrogated its
employees regarding their union sympathies and threat-
ened its employees with discharge if they selected the
Union as their collective-bargaining representative (This
is also the Union's Objection 5.)
(c) Respondent, in March, posted a notice that threat-
ened its employees with discharge if they selected the
Union as their collective-bargaining representative.
(d) Respondent, through a letter it distributed to its
employees about March 15, threatened its employees
with loss of employment if they sought to be represented
by a labor organization, threatened its employees with
unspecified reprisals in retaliation for the employees'
union activities, and threatened its employees with less
flexibility in scheduling hours of employment and with
the loss of their right to speak directly with management
about their wages, hours, and other terms and conditions
of employment if they sought to be represented by a
labor organization. (The contents of this letter are the
basis for the Union's Objections 1 through 4.)
On May 25, an order consolidating these two matters
was issued.
Respondent, while denying the substantive allegations
of the consolidated complaint, admits that Michael
Pappas was general manager and president of Respond-
ent, that George Pappas was store manager of the Jewett
City store, and that both are supervisors of Respondent.
Respondent also admits that Edwin D. Ricker was Re-
spondent's management consultant and an agent of Re-
spondent within the meaning of Section 2(13) of the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Michael's Markets of Canterbury, Inc., a Connecticut
corporation, is engaged in the operation of a retail gro-
cery store in Canterbury, Connecticut, while Michael's
Markets of Jewett City, Inc., also a Connecticut corpora-
tion, is engaged in the operation of a retail grocery store
in Jewett City, Connecticut. Both corporations share
common ownership, common directors, and a common
labor policy and constitute a single employer under the
Act. During the calendar year ending December 31,
1981, Respondent, in the course and conduct of its busi-
ness operations, derived gross revenue in excess of
$500,000 and, during the same period, purchased and re-
ceived at its Canterbury and Jewett City facilities goods
and materials valued in excess of $50,000 directly from
points outside the State of Connecticut. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
III. FACTS AND ANALYSIS
A. "Dear Sam Letter" to Employees
This letter was generally referred to at the hearing as
the "Dear Sam Letter" and it will often be referred to in
that manner herein. Ricker testified that at the first pre-
election meeting that Respondent concluded with its em-
ployees, in February, a person named Ray Bergeron
stood up and spoke of negative experiences he had at a
unionized A & P at which he had been employed. Ricker
testified further that after the meeting Bergeron and
other employees were speaking to him and Bergeron
asked:
[H]e said that Mr. Ricker, do you have any specific
information that you can show or give to other em-
ployees, because I know how it was at A & P and I
just think it would be beneficial for those employees
to know what goes on in a union store and the cir-
cumstances.
And I indicated to him that I did have a letter
from an A & P employee, another company, that
was given to employees of another company about
his experiences at A & P.
. . . And he said well, I think that it would be
beneficial for employees to know about that and
said why don't you pass that information out or
give it out to the employees and I said that I would
do that. I did not have the letter with me at that
time, but because he brought it up is why we dis-
tributed it.
Ricker then got the letter3 from his office and sent it
to Pappas, who distributed it to the employees in about
mid-February. Attached to the letter was a note from
Pappas, which stated:
Read this letter from an ex A & P employee who
is now working for another small independent
down the coast about 50 miles West of here.
The UFCW Union tried to get into their compa-
ny and he wrote a letter to all his fellow employees
about his experience.
Is this what you want to happen here? Any merit
in learning from his experience? Would this big
international , militant union help or hurt our future?
It's your decision to make on election day.
Mike
The letter itself stated:
Dear Sam,
3 Ricker testified that he has distributed this letter in other campaigns,
and "might have" done so in this campaign even if Bergeron had not re-
quested it
MICHAEL'S MARKETS
This week marks the first year of my employ-
ment with the company Like all jobs it has its ups
and downs, but over all it has been one of the best
years of my fourteen years of employment.
At the present time the one thing which troubles
me, and in fact downright infuriates me is that a
union is trying to organize within the company.
I have had the unfortunate experience of watch-
ing a once great productive and profitable division
of the A & P Tea Company painfully destroyed,
employee morale totally crushed, and excellent em-
ployees laid off because of "lack of work" (by this I
mean that production quotas had to be met in order
that outrageous wages could be paid).
I wish I could project to all my fellow employees
the hardships which came about with the presence
of the Union. From the very beginning, from the
time the union first shows its desire to represent
you, the atmosphere at the store begins to change.
Every time you turn around "Mr. Union" is trying
to lure you into a corner They wait outside to
speak to you with their painted smiles, and even go
so far as to follow you to your home after work!
The constant calling you at home, sending informa-
tion about the union, the use of so-called propagan-
da campaign, designed to make you unhappy and
uneasy about your job. It makes you wonder what
the other employees, your fellow workers, will
think of you if you take a stand against the union.
The union promise of better working conditions
dust totally falls apart because of the lack of work-
ers. This is a result of management's being forced to
put most of their effort into high production In
turn, this causes an overload on the workers If
someone calls in sick, there is no one to take his
place; that means a fellow checker would have to
work harder to endure the constant complaining of
the customers which really hurts you as a person. It
is very demeaning, takes the pride out of your job
and makes you very defensive. The thought of
having no baggers, no box boys, long store hours
trying to stimulate business, all as a result of having
to make a greater profit in order to pay higher
wages is truly a nightmare. Once the union is voted
in there is no longer any flexibility for employees as
far as scheduling a special day off, or time off, such
as the Summer without some kind of penalty for the
Union's holding your card until you return. A
Hard-line approach is taken toward vacation sched-
ules No two people in the same department can
take their vacation at the same time, because of the
lack of personnel. These are the terrific union bene-
fits.
The last union contract the A & P had left em-
ployees out of work for five weeks. The stores
never regained all the business they had lost and the
inevitable prevailed-lay-offs and more lay-offs.
The company lost some of its best workers. The re-
action was that business dropped even farther and
the working conditions became so bad one went to
work only out of necessity, not because the job was
fulfiling. There was no longer any sense of accom-
831
plishment and pride, the sense of togetherness, the
esprit de corps, was lost. Holidays became a thing
of the past-the stores were always open. The
stores started to lose their cleanliness, shelf stock
was totally depleted, all because of lack of help.
Management refused to reinvest in the stores be-
cause of sagging sales and the uncertainty of making
a profit. Everyone was paid according to the same
scale, regardless of whether he put effort into his
work or not. The Cool, "big brother" atmosphere
made it impossible to speak directly to top manage-
ment.
I have watched people, who believe in having a
union, laid off after ten or twelve years of dedicated
service, and the union did nothing for them. The as-
tonishing fact is that the union leaders ride around
in their gas guzzling cars, reaping their salaries from
the wages of hard-working family people. Employ-
ees pay the union ten to fifteen dollars a month, per
person. Just recently I watched a man , with thirty-
two years service with the A & P, Shop Steward
and Produce Manager, be suspended for two weeks
and almost fired because upper management did not
approve of the conditions in his department. He was
maintaining the department completely by himself-
an impossible task, and even so he was suspended
while a union representative stood by Another
person, with eleven years of service, is fighting for
her pension, which, I might add, the union holds in
trust for her. She is having a difficult time trying to
get what rightfully belongs to her.
Another point of interest is that a part-time vote
is equal to a full-time vote. This means that should
the question of striking arise, the destiny of the full-
timers is in the hands of the people who will be
with the company for perhaps only one or two
years; although I do not mean to discredit these em-
ployees who are vital to our company.
Finally, there is the question of "skilled, union
leadership." I find it hard to understand why
anyone would want a third party, someone with his
own aims and ambitions, to act as a go between
with the management for him. Each person has his
own insight into his job and his problems, and is ca-
pable of expressing this to management directly. Do
I need someone else to represent me??? I believe in
standing up for myself, and I do not want and will
not accept a third party representing me
A union is an irreversible marriage; there is no
returning to what once was. I foresee only unful-
filled promises. There is no room for discussion be-
cause once it is voted in, the union does the talking
and the employees do the listening . At least right
now if an employee has a difference of opinion with
you, he can discuss it with you on a one-to-one
basis. With the union , this opportunity is totally
eliminated.
My personal opinion is that I have never seen a
company try as hard as this one to understand its
employees' feelings. I only hope that if anyone has a
problem or an opinion, he would like to discuss,
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he will realize he should speak out and not let
ill-feeling build up, perhaps seeking some alternative
solution, such as the union.
The fact that you have given me fair wages, ex
cellent working conditions and the opportunity to
express my feelings has prompted me to write this
letter I hope that you will show this letter to other
employees in order that I may share my experiences
with the union.
Very truly yours,'
B The Boston Herald Article
Sometime in March (prior to the election) Respondent
posted the following newspaper article with accompany-
ing comment on the bulletin board at both stores
POST BULLETIN BOARD
WE THOUGHT YOU MIGHT BE
INTERESTED TO READ THIS ITEM
THAT APPEARED IN THE
BOSTON HERALD
3/2/82
UNION DID NOTHING FOR THEM
The days of the powerful all-important union are
over! Take the case of the United Food & Commer-
cial Workers Union. They convinced a group of
meat room workers to go out on strike against
Trucchi's Markets (a small family owned supermar-
ket with stores in Taunton, W. Bridgewater, and
Abington). This was a mistake in these times of
high unemployment.
After being on strike for approximately six
months, the UFCW admitted defeat and urged the
workers to go back to their jobs. Lo and behold,
their jobs were filled by new employees.
What has the union done for these workers?
Some are near retirement age. Nothing] With their
unemployment benefits exhausted, and age discrimi-
nation by employers, what does the UFCW say to
these loyal strikers? "Sorry, we have to draw the
line somewhere."
So, if you are approached to join a union, think
twice about what happened to UFCW and
PATCO. All they want are your union dues.
Alfred Costa
Taunton
4 The letter contained no signature or name
THIS WAS THE MEAT CUTTERS
SIDE OF THE UFCW TOO!!
CAN WE LEARN BY OTHERS
MISTAKES??
C The March 23 Speech by Ricker
On March 23, about 7 p.m , a meeting took place at
Respondent's Canterbury store, the meeting was called
by Respondent and was attended by almost all of its em-
ployees, who were paid for the time spent at the meet-
ing. The meeting lasted for about an hour and a half.
There was little record testimony regarding the contents
of this meeting; however, the first half of this meeting
was clandestinely tape-recorded by employee Linda
Reilly,' and this tape was received into evidence and
transcribed by the official reporting service. Pappas
made a few opening remarks and introduced Ricker.
During this meeting Ricker did most of the talking, al-
though some employees asked questions or made state-
ments, some of which were unintelligible on the tape.
Some of the statements made by Ricker are as follows.6
The future of your company probably, as a deci-
sion you make on Thursday, is one of the greatest
decisions that will be made in a long time as to
what happens to your stores and your company.
You have a big decision to make this Thursday
on election day . . . It will probably be the most
important decision you will ever make while work-
ing here, and I can't stress that enough. It is ex-
tremely important
The decision you make on election day will be
the most important decision you will ever make. It
will most definitely affect the future success of the
company, so we hope you cast a wise ballot
What is the record of the United Food and Com-
mercial Workers Union. Some of you may not
know this. 7,0000 stores have already closed. They
predict another 7,000 to close And they are closing
every week throughout the country. All union
stores. Now, that's a lot of stores
Let's take this area. A & P, Stop & Shop, Big
G-who else? First National. In fact, it's rumored
that Stop & Shop will be out of the supermarket
business in three years. You've noticed they're di-
viding up their operations between general mer-
chandise and food, and the food is continuing to
dwindle down.
Does this union provide job security? Ask the
many former members of this union that are now
out of work because of their stores being closed
How many former union people do we have in the
store here? Can I have a show of hands? Okay, I'm
just kind of curious. Steady, secure employment
occurs when the employees and management work
5 Reilly used a tape recorder and tape supplied to her by the Union
The tape was a two-sided tape of 45 minutes on each side Apparently,
only 45 minutes of the meeting was recorded because Reilly was fearful
of exposing the machine in order to reverse the tape
6 The alleged threats and interrogation that took place apart from
Ricker's speech will be discussed separately herein
MICHAEL'S MARKETS 833
closely together to provide the quality service or
products for customers on time at fair prices. It de-
pends upon what type of business you're in That's
what creates job security. And this is a rough time.
I think you realize that sales are kind of soft-and I
think your company is really hanging in there. A
lot of companies are having a lot of problems, espe-
cially if they're union companies
Now, why are so many union stores closing?
Could it be that this union encourages employees to
fight against the boss and no cooperation? Those
who have been in union stores know what I'm talk-
ing about. Too many contract restrictions to oper-
ate efficiently. For example, in many contracts the
high school students can't work past-or behind the
checkouts. They can only work in front of the
checkouts. They cannot go back and stock as a
carry-out or as a box boy.
A lot of other restrictions. Poor customer treat-
ment due to fighting and militant atmosphere that
prevails in the company. Is this why? Is this job se-
curity?
Does the union help your company grow to
where you are today? How much money have they
contributed to make your company successful? How
much money do they have invested?
Is this union a striking union? It most certainly is.
It's one of the nation' s leading striking unions.
Almost every week you will find throughout the
country that this union strikes someplace. When
you have a strike, you chase customers to competi-
tion . The employees lose wages, the company loses
sales and customers. The employees could lose jobs
because they can be replaced if they go out on
strike And who ends up losing? The company and
the employees. The union officials, what do they
lose'? Nothing because their job and their salary
continues on regardless of the circumstances.
By the way, how many of you received the con-
stitution and bylaws of the UFCW Union? Did they
distribute that to you? Isn't that interesting? Isn't
that interesting?
Now, remember, everything that I pass out to
you must be truthful and accurate and which I can
document Here is the case Nine hundred employ-
ees in fourteen Kroger stores. I don't know how
many of you have heard of Kroger's, but Kroger's
is number three in the nation as far as size both with
employees and sales volume That's a lot of stores,
isn't it?
But, anyway, in Michigan the company, the
Kroger Company, went to employees on one side
of the state and said "Look, we can no longer oper-
ate on a profitable basis. We want to have a meet-
ing with your employees and let them vote about
taking a reduction in wages and benefits and remov-
ing some of the contract restrictions so we can stay
in business ." The union refused. All twenty-three
stores were either closed or sold and those employ-
ees lost their jobs.
Now, on the other side of the state there are
fourteen stores, and that's this group 'here. They
went to Washington, met with the international
president, Mr. Wynn, and said, "Look, we want a
vote Let us decide our own future as to whether or
not we want to give up anything. Now, if the ma-
jority of us vote that we don't want to give up any-
thing, fine, but let us vote." Mr Wynn in Washing-
ton, D.C. said, "Forget it." He didn't say, "Forget
it," but you read what he said.
One of those fourteen stores, eight have now
closed. Those employees were not able to vote on
their own destiny, so to speak, because Mr. Wynn
says, "It's more important for me to try to maintain
a standard as far as wages and benefits than it is
saving people's jobs." Those two ladies there-one
has eighteen years of seniority and one has twenty--
five and they paid dues to that union for all that
time. That I think that's a damn shame.
Ricker testified that his reference to the Union as a
striking union was based on information contained in
publications he receives (including the Union's publica-
tions) which indicated to him that it is a striking union-
"just about every issue there's a strike that has been re-
ported or one is going on." Reilly testified that at this
meeting either Ricker or Pappas said that they could not
threaten employees or make promises to employees until
the election was over. Employee Barbara Gray testified
that during this meeting Ricker said that if the Union
and Respondent could not reach agreement on a contract
Pappas "didn't have to hold our jobs for us."
Also received in evidence were three other items
either distributed or posted by Respondent prior to the
election; none of these are alleged by the General Coun-
sel as violations on the Act by themselves, "but as back-
ground evidence that the Respondent emphasized plant
closure as one of the main themes of its antiunion cam-
paign "
One, apparently from a trade paper, is entitled "A&P
Quits Kansas City Area" and states that A&P has closed
stores in the area, and has sold, or is attempting to sell,
others. Above and below this article is written:
"WANTED!!! DUES PAYING MEMBERS How many
dues paying members have the UFCW Union Lost Just
in These Closings? 27 Stores Closed-Kansas City, 46 Mid
Atlantic Plus Others. No Wonder the UFCW Union is
Interested in Our Employees."
In addition, there was a June 1981 letter written to
Ricker by two women who were employed by Kroger
in Michigan; after receiving this letter Ricker met with
these women. The subject of this letter was discussed by
Ricker at the March 23 meeting referred to above. This
letter states, in part:
On behalf of the 900 Kroger employees, members
of Local 40, located in the Flint and Tri-City areas
of Michigan, we would like to hire you and your
associates to save our jobs, which are in jeopardy
due to the actions and decisions made by the
UFCW Union International in Washington, D.C.
You are one of our last hopes, and we ask that you
seriously consider accepting this request.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As you may or may not know, 21 Kroger stores
in the Western part of Michigan were sold We do
not want to end up the same as the employees of
those stores, which, unless there are some changes
made or some action taken, will probably happen to
us very shortly.
The Kroger company has indicated to both the
union and the employees, that if the next scheduled
across the board and cost of living allowance in-
creases go into effect, it will be uneconomical for
Kroger to continue to operate the stores We, the
employees, want to have a vote to decide whether
or not we want to agree to forego these increases,
so we can keep our jobs. Now, this is where we
have our problem.
The UFCW Union said that they will not permit
us to vote on this issue. We went to Washington,
D.C., two weeks ago and met with the President of
the United Food and Commercial Workers Interna-
tional Union, Mr. William Wynn, and he said "no."
This was quite a surprise to us, as we thought the
union represented the wishes of the employees, but
this is not the case. Once they have us locked in
under their Constitution and By-Laws, we are at
their mercy and must follow the decisions that the
officers of the union make.
As you can easily determine, this has upset the
900 members because we are just about to be forced
into losing our jobs. We have paid union dues for
up to twenty years and this is what we get for it.
We can't even make our own decisions. Mr. Wynn
and other union officials have repeatedly indicated
they could care less what happens to us, and this
has been quite a slap in the face It has been a
rather costly lesson for all to learn. We understand,
and have been told by many other employees in the
industry, that you work in many situations to pro-
tect the rights of employees and this is why we
have come you.
May we hear from you.
Also received in evidence was "A Message from Swift
Employees-An Open Letter," which expresses the em-
ployee-member's displeasure with the UFCW method of
conducting membership meetings, and states, in part:
On March 27, 1980, Swift and Co, announced
the closing of the Clovis plant, effective September
28, 1980 This announcement came as the result of a
vote on March 23 that, because of the coercive tac-
tics used by some local union members and officials,
cannot possibly reflect the feelings of the majority
of the employees at our plant.'
This "Message From Swift Employees" was posted
with Respondent's notation: "Does this sound like the
UFCW Union is really interested in its members? Is this
the way you want to be treated? Is this job security?"
This paragraph is fully underlined with stars drawn next to it, al-
though Respondent did not know whether this was so while the docu-
ment was posted
It is axiomatic to state that an employer generally has
full freedom to inform his employees why he feels they
should vote against a union in an upcoming election,
absent threats or promises of benefit. However, the
Board and the courts have found that employers have
violated the Act by predicting the events that would
follow the union 's victory or by reciting the poor experi-
ences other employers suffered after a union election. In
NLRB v. Gissel Packing Co., 395 U.S. 575 at 617-618
(1969), the Court articulated the standards to be used:
Thus, an employer's rights cannot outweigh the
equal rights of the employees to associate freely, as
those rights are embodied in § 7 and protected by §
8(a)(1) and the proviso to § 8(c). And any balancing
of those rights must take into account the economic
dependence of the employees on their employers,
and the necessary tendency of the former, because
of that relationship, to pick up intended implications
of the latter that might be more readily dismissed
by a more disinterested ear .. . .
. .. an employer is free to communicate to his
employees any of his general views about unionism
or any of his specific views about a particular
union, so long as the communications do not con-
tain a "threat of reprisal or force or promise of ben-
efit." He may even make a prediction as to the pre-
cise effects he believes unionization will have on his
company. In such a case, however, the prediction
must be carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstra-
bly probable consequences beyond his control
. . . If there is any implication that an employer
may or may not take action solely on his own initia-
tive for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and
coercion, and as such without protection of the
First Amendment.
It should initially be noted that I do not credit
Ricker's testimony that it was an employee, Bergeron,
who asked him if he had any information to give to the
employees regarding the detrimental effects of a union
on the employees, and this is what inspired him to dis-
tribute the "Dear Sam Letter." To refer to this testimony
as unlikely is to be kind.
I find that this letter violates Section 8(a)(1) of the Act
under the standards set forth in Gissel, supra. Although
this letter is allegedly from an employee to his new em-
ployer (Sam), Respondent distributed it to its employees
with the note. "Read this letter . . . . Is this what you
want to happen here? Any merit in learning from his ex-
perience? . . . It's your decision to make on election
day " By distributing this letter with the attached note
from Pappas, Respondent "created a situation whereby
employees would reasonably'-believe that the views ex-
pressed .. . reflected those of Respondent." Marathon
LeTourneau Co., 208 NLRB 213, 221 (1974). This letter
refers to "excellent employees laid off because of `lack of
MICHAEL'S MARKETS
work' (by this I mean that production quotas had to be
met in order that outrageous wages could be paid)."
There could be no objective basis for this statement as
the Union had not yet indicated to Respondent what its
demands were-maybe the Union's demands would not
be outrageous. The letter also states:
Once the union is voted in there is no longer any
flexibility for employees as far as scheduling a spe-
cial day off, or time off, such as the Summer with-
out some kind of penalty for the Union's holding
your card until you return. A hard line approach is
taken toward vacation schedules. No two people in
the same department can take their vacation at the
same time, because of the lack of personnel
This was also a prediction that was not "carefully
phrased on the basis of objective fact to convey an em-
ployer's belief as to demonstrably probable consequences
beyond his control." Gissel, supra. At that time, Re-
spondent had no basis for informing its employees that
the Union would take a "hard line approach" to schedul-
ing.
The General Counsel also alleges that the following
paragraph from the "Dear Sam Letter" is a violation of
Section 8(a)(1) of the Act because it threatened Respond-
ent's employees with loss of their right to speak directly
with management about their terms and conditions of
employment if they were represented by a union-
A union is an irreversible marriage ; there is no
returning to what once was. I foresee only unful-
filled promises . There is no room for discussion be-
cause once it is voted in, the union does the talking
and the employees do the listening . At least right
now if an employee has a difference of opinion with
you, he can discuss it with you on a one-to-one
basis. With the union, this opportunity is totally
eliminated.
This is a misstatement of the law. The provisos to Sec-
tion 9(a) of the Act state:
Provided, That any individual employee or a group
of employees shall have the right at any time to
present grievances to their employer and to have
such grievances adjusted, without the intervention
of the bargaining representative , as long as the ad-
justment is not inconsistent with the terms of a col-
lective-bargaining contract or agreement then in
effect: Provided further, That the bargaining repre-
sentative has been given opportunity to be present
at such adjustment.
As stated in Block-Southland Sportswear, 170 NLRB
936 at 949-950 (1968):
This statutorily protected right of employees thus
to present their own grievances and speak for them-
selves is undoubtedly a right cherished by many
employees and Block's statement that after the
Union came in, employees would not be able to go
to him with their problems was, by its nature, the
835
threat of a loss of benefit in reprisal for the selection
of a union.8
I therefore find that Respondent, by its "Dear Sam
Letter," violated Section 8(a)(1) of the Act in that it:
(1) Threatened employees with loss of employment if
they sought to be represented by a labor organization.
(2) Threatened employees with less flexibility in sched-
uling hours of employment if they sought to be repre-
sented by a labor organization
(3) Threatened employees with loss of their right to
speak directly with management about their terms and
conditions of employment if they sought to be represent-
ed by a labor organization.
As the Union's Objections 1 through 4 are coextensive,
with paragraphs 10(a) through (d) of the complaint, I
would likewise sustain Objections 1, 3, and 4, and over-
rule Objection 2.
The General Counsel also alleges that Respondent, by
posting the Boston Herald article, threatened its employ-
ees with discharge if they selected the Union as their col-
lective-bargaining representative, in violation of Section
8(a)(1) of the Act. I find that this article, by itself, does
not violate the Act. It tells of a situation (presumably
truthful) where the Union's International union engaged
in an unsuccessful strike, causing the striking employees
to lose their jobs to replacements. However, when this
article is combined with the entire tenor of Respondent's
election campaign, I find that Respondent threatened its
employees with the loss of their jobs if they selected the
Union in the upcoming election, in violation of Section
8(a)(1) of the Act. As stated supra, the "Dear Sam
Letter" refers to employees being laid off by production
quotas caused by a union and more rigid scheduling due
to a union, while the Boston Herald article referred to an
unsuccessful strike and the hardships it caused the em-
ployees who supported the union. In addition, the article
about the A&P store closings infers that the unions were
responsible for the loss of jobs, and the letter to Ricker
alleged that future additional closings would' be due to
the union (the International of the Union). The Swift
notice inferred that the "coercive tactics" of the Union's
International caused the closing of the Swift plant.
The last ingredient is Ricker's speech on March 23. He
refers to the election as "the most important decision you
will ever make" and said: "It will most definitely affect
the future success of the company " He then refers to the
International Union's record: "7,000 stores have already
closed. They predict another 7,000 to close. And they
are closing every week throughout the country. All
union stores. Now, that's lot of stores." Ricker then dis-
cussed why he felt so many union stores were closing
and he referred to the International as
. . one of the nation's leading striking unions.
Almost every week you will find throughout the
country that this union strikes someplace. When
you have a strike you chase customers to competi-
tion. The employees lose wages, the company loses
8 In this regard , see also Tipton Electric Co, 242 NLRB 202 (1979), and
Colony Printing & Labeling, 249 NLRB 223 (1980)
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sales and customers. The employees could lose jobs
because they can be replaced if they go out on
strike.
Ricker then discussed the Kroger closings that was the
subject of the letter he received that Respondent later
posted.
In NLRB v. Four Winds Industries, 530 F.2d 75 at 78
(9th Cir. 1976), the court stated (citing Gissel): "The
choice of proper words is not an exercise in 'brinkman-
ship.' . . . . We look not for certain words that are al-
lowed and others that are forbidden. Rather, we are to
view the statements in their entirety, and consider their
total effect on the receiver." As stated in Marathon Le-
Tourneau Co. at 222:
1
By constantly referring to the unionized shipyards
that had closed, the Respondent was capitalizing on
the fears of the employees of plant closure and had
only one purpose-to convey to the employees that
these closures were effected because the plants were
organized. There is nothing in the record showing
any causal relationship between the closings of the
yard and the fact that they were unionized. . . .
The Respondent here established a straw man and
manufactured links in a chain leading ultimately to a
closing of the operation. It referred constantly to
the unionized yards that were closed with the impli-
cation the unions were responsible.
Similarly, the Board, in General Dynamics Corp., 250
NLRB 719 at 722 (1980), stated:
Considering the total content of the speeches
given by officials of the Employer, Coons, Lee, and
Perez, buttressed by the posters and handbill dis-
cussed above, we find that the Employer went
beyond the bounds of permissible campaign speech.
The Employer's numerous references to strikes, vio-
lence, loss of business, loss of jobs, and loss of bene-
fits amounted to veiled threats and created an at-
mosphere of fear. In the context of these specific
threats, the Employer's repeated statements associ-
ating the Petitioner with strikes, plant closures, and
job loss had a coercive impact on the employees.
In Thomas Products Co., 167 NLRB 732 at 733 (1967),9
the Board stated:
In outlining the advantages and disadvantages of
unionization, an employer is not prohibited from
pointing out that the strike is a union's chief eco-
nomic lever, and that strike action might entail cer-
tain consequences. But the more the employer per-
sists in referring to strikes and what they entail-re-
placement, violence, unemployment, walking picket
lines, unpaid bills-the more the employee is likely
to believe that the employer has already determined
to adopt an intransigent bargaining stance which
9 Thomas Products, like General Dynamics, was solely an objections
case
will force employees to strike in order to gain any
benefits.
Also applicable herein is the Board's language in
Amerace Corp, 217 NLRB 850 at 852 (1975), "Employ-
ees should not be led to believe, before voting that their
choice is simply between no union or striking," and in
Russell Stover Candies, 221 NLRB 441, 443 (1975), "Re-
spondent's statements were not predictions carefully
phrased on the basis of objective fact but rather were not
so-subtle threats that unionization would lead to plant
closure."
In the situation herein, Respondent's preelection cam-
paign stressed store closings and strikes. The totality of
this literature and Ricker's speech was that a union pre-
sented Respondent with two alternatives: agree to a
union's excessive • demands rather than risking a strike
and beome uncompetitive; or refuse to agree to a union's
excessive demands, and experience a strike (during
which time employees would be replaced) while losing
customers because of it. The employees lose under either
of these scenarios. This message was further emphasized
by Respondent with the notation "Is this what you want
to happen here?" on the "Dear Sam Letter" and the no-
tation "Can we learn by others mistakes?" on the Boston
Herald article, together with Ricker's reminding the em-
ployees on three occasions within the first few minutes
of his speech of the importance of their decision and
how it could affect Respondent's success. The implica-
tion of this message was clear-if they voted to be repre-
sented by the Union they would soon be out of a job. As
was found in Gissel, these were not predictions based on
objective facts, but were implicit threats of job loss. I
therefore find that Respondent, through the literature it
distributed to and posted for its employees prior to the
election, together with Ricker's March 23 speech to the
employees, threatened its employees with the loss of
their jobs if they selected the Union as their collective-
bargaining representative, in violation of Section 8(a)(1)
of the Act. I likewise sustain Objection 5 as it relates to
threats. Louis Gallet, Inc., 247 NLRB 63 (1980), Turner
Shoe Co., 249 NLRB 144 (1980); Southern Moldings, 255
NLRB 839 (1981); Great Scot of Florida, Inc., 256 NLRB
885 (1981), and Grove Valve & Regulator Co., 262 NLRB
285 (1982).
The General Counsel also alleges that two questions
that Ricker asked the assembled employees constitute in-
terrogation in violation of Section 8(a)(1) of the Act. In
the first, after asking whether the Union provides job se-
curity, he asked. "How many former union people do we
have in the store here) Can I have a show of hands?"
Shortly thereafter, while discussing employees' rights to
ratify contracts, Ricker asked, "By the way, how many
of you received the constitution and bylaws of the
UFCW union? Did they distribute that to you? Isn't that
interesting? Isn't that interesting?" The General Counsel
cites a number of cases in her brief in support of her
proposition that these questions constitute a violation of
Section 8(a)(1) of the Act. However, these cases involve
situations where employees were asked if they belonged
to a union during a job interview. I find these cases inap-
posite to the situation herein where a group of 80 to 90
MICHAEL'S MARKETS
employees were addressed by Respondent ' s management
consultant with the boss , Pappas, present . The Board test
in these situations is whether Respondent has engaged in
conduct which reasonably tends to interfere with the
free exercise of employee rights under the Act Hanes
Hosiery, 219 NLRB 338 (1975) "[I]t is immaterial that
the employer was not motivated by antiunion bias or ill
intentions " Fabric Services, 190 NLRB 540, 543 (1971)
In Paceco , 237 NLRB 399, 400 ( 1978), the Board stated
"An inquiry into an employee ' s views toward a union or
unionization in general , even ostensibly questioned `out
of curiosity ' and in the context of assurances against re-
prisals, reasonably tends to interfere with the free exer-
cise of an employee's Section 7 rights, regardless of the
employee's subjective state of mind ." I therefore find
that Respondent violated Section 8(a)(1) of the Act by
Ricker's question to the assembled employees of how
many were former union members He satisfied none of
the safeguards set forth in Struksnes Construction Co., 165
NLRB 1062 ( 1967): the purpose was not to determine
the truth of the Union 's majority claim, no assurances
against reprisals were given , the poll was not by secret
ballot, and Respondent had engaged in other unfair labor
practices In addition , as Pappas was present at the meet-
ing some employees , out of fear, may have failed to raise
their hand, indicating to the others present that the union
movement was not as strong as they felt This, also,
tends to coerce the employees in their freedom of
choice.
Respondent might argue that the above discussion is
inapposite because Ricker only asked the employees if
they had ever been a member of a union, not were they
members of the Union , and it was asked to a large
number of employees , and only to make a point, not to
make the employees reveal their union sympathies In
Stouffer Restaurant & Inn, 210 NLRB 336 (1974), a su-
pervisor asked an employee who had been wearing a
union button , and was known to be active in the union's
organizing efforts, whether she had previously belonged
to a union . She answered that she had , he asked her
where, and she gave him the name of her previous em-
ployer where she had been a union member . A general
discussion of unionism followed The Board, reversing
the administrative law judge, found no violation because
the employees involved "made no attempt to conceal
their support for the Union and in fact openly wore
union buttons In this context we conclude that Welty's
question was no more than an introductory one to the
discussion of unionism in general." It appears that the
above " [i]n this context" may have been overruled by
PPG Industries , 251 NLRB 1146, 1147 ( 1980), which
overruled two other cases "to the extent they hold that
an employer may lawfully initiate questioning about em-
ployees' union sentiments where the employees are open
and known union supporters and the inquiries are unac-
companied by threats or promises ." Stouffer, supra,
therefore does not assist Respondent herein, and the
above interrogation violates Section 8(a)(1) of the Act.
Likewise, Respondent violated Section 8(a)(1) of the
Act when Ricker asked the assembled employees if they
had received the UFCW constitution and bylaws. By
asking this question , Ricker was asking the employees to
837
inform him if they had been in contact with the Union.
This clearly coerces employees within the meaning of
the Act as alleged in paragraph 11(a) of the complaint.
Fabric Services , supra . I would likewise sustain Objection
5.
D Pappas and Gray Conversation
Barbara Gray was employed by Respondent in March
as the deli manager or deli department head at , the Can-
terbury store 10 Gray testified that on March 20, Pappas
called her into his office (not an unusual occurrence, ac-
cording to her testimony ) and asked her how she
thought the employees felt toward the Union, and she
said that she did not think he had anything to worry
about Pappas then asked if she felt Linda Reilly had
anything to do with the Union, and Gray said that she
did not think she did. He then asked if he had her sup-
port, and she said that he did. Pappas said that was good
because Roy Greskowski (the meat department head)
told him the same thing . Gray told Pappas that she
would rather their conversation stay between them as
she "wanted to stay out of it." She and Pappas used to
meet, on an irregular basis, in his office to discuss the
deli department.
Pappas testified regarding this conversation as well.
He never specifically denied that he asked her how she
thought the employees in her department felt about the
Union or if he had her support He did dispute her ver-
sion of the discussion regarding Linda Reilly. He testi-
fied that he did discuss Reilly with Gray, as he did with
a number of other employees, but it was not whether she
was involved with the Union. He testified : "I thought
[Reilly] didn't like me and I wanted to know what is her
biggest gripe . . . . I don 't know, that's the feeling she
gave That's the feeling she threw at me . . the way
she looked at me and different things. That's about it I
guess just the way she looked at me at different times."
Reilly had been employed by Respondent for 5 years,
and Pappas testified that during the 2-year period prior
to the election he asked Gray, as well as other employ-
ees, why Reilly was mad at him.
This is an easy credibility determination . I found Gray
to be an extremely credible witness who appeared to be
testifying in a truthful manner Her honesty and openness
were easily recognizable . In fact, in January she had sup-
ported Pappas in a dispute with another employee ivho
left Respondent's employ and later filed an unfair labor
practice charge against Respondent . On the other hand, I
did not find Pappas to be a credible witness. He often
appeared hesitant during his testimony and his testimony
regarding Linda Reilly struck me as a fabrication: In ad-
dition , Gray's testimony is reasonable in light of the
events occurring at Respondent 's stores- Gray, although
not a supervisor , was a department head . In that posi-
tion , Pappas apparently felt secure asking her about
Reilly and the Union. As this was impermissible interro-
gation , I find that it violated Section 8(a)(1) of the Act.
10 The Decision and Direction of Election determined that none of the
department heads was a supervisor within the meaning elf the At, and
Gray and , presumably , the others voted at the election
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Pappas and Lewis Conversations
Virginia Lewis, who has been employed at the Canter-
bury store for 18 years, testified about two conversations
she had with Pappas. The best she could approximate the
time was that they occurred prior to the election. In the
first of these two conversations, Pappas approached her
in the store and told her that he wanted to speak to her
in in his office The two of them went into his office and
Pappas asked Lewis if she knew that the Union was so-
liciting employees to sign cards and whether she had
signed one, and Lewis answered no (truthfully). He then
asked her if she thought Reilly "had started this about
the union," and she said that she did not think so. Pappas
then asked about Erleen Armstrong (her ex-sister-in-law)
and Gray, and Lewis answered that she did not believe
they were involved with the Union. Pappas then asked if
other employees had been discussing the Union, and
Lewis said that they had not, that it had been very quiet.
As regards the second conversation with Pappas,
Lewis testified that on this occasion she saw him calling
her to his office by the movement of his finger. Once in
the office (with nobody else present) Pappas asked her if
any of the union representatives had been to her house.
She said that a union representative had been to her
house, but she had not signed a union card, and it was
left with her. Pappas asked her why she did not refuse to
talk to the union representative. She told him that she
had the right to speak to whomever she wished and she
was not going to be impolite and slam the door in the
face of somebody who came to her house Lewis also
testified that during this period she was receiving mail
from the Union and there were occasions when she went
into Pappas' office and told him of it.
Pappas testified that Lewis regularly came into his
office to talk, both before and after the Union first ap-
peared As regarding the first conversation, he testified
that: "She volunteered to tell me there were cards going
out . . . that's when I didn't know it I says, `Anybody
signing them?T 'No, I got one, I didn' t sign it .' She says,
`I'll prove it to you and I'll bring it and show you that I
didn' t sign it."' As to whether he asked her about Reilly,
Gray, and Armstrong, Pappas testified "Once she was in
my office she volunteered a lot of information, yes, I
probably asked some questions." Pappas also testified
that Lewis initiated the second meeting and informed
him that union representatives were soliciting employees
at their homes.
I would credit the testimony of Lewis over Pappas.
Although Lewis appeared nervous throughout her ap-
pearance on the witness stand, she appeared to be testify-
ing in a frank and truthful manner. Her nervousness
could well have been caused by the fact that she was tes-
tifying against the man who has employed her for 18
years. I therefore find that Pappas's interrogation of
Gray is in violation of Section 8(a)(1) of the Act.
F. Pappas and Smith Conversations
Smith testified to two conversations with Pappas re-
garding the Union. The first occurred about the end of
February. Pappas asked him if he knew who was "start-
ing it" because he was not sure who was with him and
who was against him. Smith testified that Reilly's name
was mentioned by Pappas in this conversation, but he
could not remember in what context. The other conver-
sation took place on March 23 prior to the meeting at-
tended by Pappas, Ricker, and the store's employees.
Smith testified that he had previously been a union meat-
cutter. On that day he met Pappas in the back of the
store and "I offered my services . . . that I could stand
up and say anything in his behalf." Pappas thanked him
and said that if there were a spot where he could say
something, he would be obliged if he did so. Pappas tes-
tified that he agreed with Smith's testimony regarding
this March 23 conversation. With regard to the earlier
conversation, Pappas testified that Smith initiated this
conversation and "opened the door about the union."
Pappas asked him, "Is Linda Reilly after me or some-
thing? For what reason?" He did not ask Gray about
Reilly's connection with the Union. For reasons stated
supra, I do not credit Pappas and would credit the testi-
mony of Smith. I find that Pappas' interrogation of him
at the end of February violates Section 8(a)(1) of the
Act. The discussion between Pappas and Smith on
March 23 clearly does not violate the Act.
IV. THE EFFECT OF SUCH CONDUCT ON THE
ELECTION
As I have sustained Objections 1, 3, 4, and 5, which
involve actions involving almost all of Respondent's em-
ployees, I therefore recommend that the election con-
ducted on March 25 be set aside, and a new election be
conducted at a time and place to be later determined by
the Regional Director. Dal-Tex Optical Co, 137 NLRB
1782 (1962).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above in section
III, occurring in connection with the operations of Re-
spondent described above in section I, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating its employees regarding their union
membership, sympathies, and activities and those of their
fellow employees.
(b) Threatening its employees with loss of employment
if they were represented by a labor organization for pur-
poses of collective bargaining.
(c) Threatening its employees with less flexibility in
scheduling hours of employment if they were represent-
ed by a labor organization for purposes of collective bar-
gaining.
MICHAEL'S MARKETS
(d) Threatened its employees with loss of the right to
speak directly with management regarding their terms
and conditions of employment, if they were represented
by a labor organization for purposes of collective bar-
gaining.
4. Respondent's unlawful conduct interfered with the
representation election conducted on March 25, 1982
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed1'
ORDER
The Respondent, Michael's Markets of Canterbury,
Inc., and Michael's Markets of Jewett City, Inc., Canter-
bury, Connecticut, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from engaging in the following
conduct in order to discourage its employees from sup-
porting or otherwise assisting United Food and Commer-
cial Workers Union, Local 371, AFL-CIO:
(a) Threatening its employees with loss of employment
if they were represented by a labor organization for pur-
poses of collective bargaining
(b) Threatening its employees with less flexibility in
scheduling hours of employment if they were represent-
ed by a labor organization for purposes of collective bar-
gaining.
(c) Threatening its employees with loss of the right to
speak directly with management regarding their terms
and conditions of employment if they were represented
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
839
by a labor organization for purposes of collective bar-
gaining
(d) Interrogating its employees regarding their union
membership, sympathies, or activities and those of their
fellow employees.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Canterbury and Jewett City stores
copies of the attached notice marked "Appendix."12
Copies of the notice, on forms provided by the officer in
charge for Subregion 39, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the officer in charge in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the election conducted
on March 25, 1982, in Case 39-RC-293 is set aside. A
new election shall be held at such time as the Regional
Director decides that the circumstances permit the free
choice of a bargaining representative.
' 2 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "