Nitro Super Market, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1966

161 N.L.R.B. 505 (N.L.R.B. 1966)

NITRO SUPER MARKET, INC. 505
WE WILL NOT in any like or related manner restrain or coerce employees
of Ryder Truck Lines, Inc., or of any other employer, in the exercise of their
rights guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment in accordance with Section 8(a)(3)
of the Act.
WE WILL notify Ryder Truck Lines, Inc., that we have no objection to its
employment of Joseph D. Albin at its Baton Rouge terminal.
WE WILL make Joseph D. Albin whole for any loss of pay he may have
suffered by reason of our discrimination against him.
GENERAL TRUCKDRIVERS, WAREHOUSEMEN AND HELPERS OF
AMERICA, LOCAL No. 5, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA ( IND.),
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office,
T6024 Federal Office Building, 701 Loyola Avenue, New Orleans , Louisiana.
Telephone 527-6361.
Nitro Super Market, Inc. and Food Store Employees Union, Local
#347, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO
Nitro Super Market , Inc. and Food Store E mployees Union, Local
#347, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO and Retail Clerks Union Local 1059,
Retail Clerks International Association , Party to the Contract.
Cases 9-CA-3468 and 3652. October 26, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner Alvin Lieberman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner 's Decision. Thereafter, the Respondent and Retail Clerks Union
filed exceptions to the Trial Examiner's Decision and supporting
briefs; and the General Counsel 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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
161 NLRB No. 46.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions, briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was beard by Trial Examiner Alvin
Lieberman in Charleston, West Virginia, on March 8, 9, and 10, 1966, on a
consolidated complaint' alleging violations of Section 8(a)(1), (2), and (3) of
the National Labor Relations Act, as amended (herein called the Act), and
separate answers of Respondent and Retail Clerks Union, Local 1059, Retail
Clerks International Association (herein called Retail Clerks Union)?
Upon the entire record, upon my observation of the witnesses and their
demeanor while testifying, and upon careful consideration of the briefs filed by
all parties, I make the following:
FINDINGS OF FACT 3
1. RESPONDENT'S BUSINESS
Respondent, a West Virginia corporation, operates a retail food store at Nitro,
West Virginia. During the past 12 months, a representative period, Respondent's
gross volume of business exceeded $500,000. In the same period Respondent
purchased merchandise valued in excess of $50,000 from suppliers located out-
side the State of West Virginia. Accordingly, I find that Respondent is engaged in
commerce within the meaning of the Act and that assertion of jurisdiction herein
by the National Labor Relations Board (herein called the Board) is warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
Meat Cutters Union and Retail Clerks Union are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and issues
Following conflicting requests for recognition during January 1965,4 by Retail
Clerks Union and Meat Cutters Union Respondent, on February 8, filed a represen-
tation petition with the Board (Case 9-RM-379). The next day Meat Cutters
Union filed a charge (Case 9-CA-3468) alleging, inter alia, violations of Section
8(a)(1) of the Act by Respondent thereby precluding action on Respondent's
petition.
On July 8, the Regional Director of the Board's Region 9 (herein called the
Regional Director), in whose office the foregoing petition and charge were on
file, approved a settlement agreement theretofore entered into by Respondent and
Meat Cutters Union whereby Respondent generally undertook not to violate
Section 8(a) (1) of the Act in any manner. In the meanwhile, on April 24,
Respondent recognized Retail Clerks Union as the exclusive bargaining represent-
3 The complaint was issued upon charges filed by Food Store Employees Union, Local
#347, Amalgamated Meat Cutters and Butcher Workmen of Noith America, AFL-CIO
(herein called Meat Cutters Union). At the trial paragraphs 6(c) and 6(d) of the com-
plaint were amended by substituting the words "paragraph 6(b)" for "paragraph 5(b)."
Paragraph 6(c) was further amended by substituting the word "after" for "within."
'Retail Clerks Union was made a party because of its current collective-bargaining
agreement with Respondent.
'The motions to dismiss the complaint made by Respondent and Retail Clerks Union
at the close of the trial are disposed of in accordance with the findings and conclusions set
forth in this Decision.
' Unless otherwise indicated all dates are in 1965.
NITRO SUPER MARKET, INC. 507
ative of its employees, and, on July 10, entered into a collective-bargaining agree-
ment containing a union-security provision with Retail Clerks Union.
On July 30, Meat Cutters Union filed another charge (Case 9-CA-3652) which
it thereafter twice amended alleging, inter alia, violations by Respondent of Section
8(a)(1), (2), and (3) of the Act. Following his investigation of this charge and
its amendments the Regional Director concluded that Respondent had continued,
since the approval of the settlement agreement and in breach thereof, to violate
Section 8(a)(1) of the Act and had also violated Section 8(a)(2) and (3).
Accordingly, the Regional Director withdrew his prior approval of the settlement
agreement and, acting for the General Counsel, issued the instant consolidated
complaint.
Within this framework the following issues were raised by the pleadings and
contentions of the parties:
1. Did Respondent violate Section 8(a)(1) of the Act by coercively interrogating
employees as to their desires with respect to unionization, by threatening employees
with reprisals should a union become their collective-bargaining representative or
if certain statements of its general manager were reported to agents of the Board,
by asking employees to inform it of the names of other employees who attended
union meetings, and by keeping under surveillance a union meeting attended by its
employees?
2. Did Respondent violate Section 8(a)(2) and (1) of the Act by recognizing
Retail Clerks Union as the representative of its employees and thereafter entering
into a collective-bargaining agreement with that labor organization in the face of
a conflicting claim for recognition by Meat Cutters Union? 5
3. Did Respondent separately violate Section 8(a)(2) and (1) of the Act by
recognizing, and entering into a collective-bargaining agreement containing a union-
security provision with Retail Clerks Union, although that labor organization did
not, at any material time, represent a majority of Respondent's employees?
4. Did Respondent support Retail Clerks Union and thereby further violate
Section 8(a)(2) and (1) by permitting a representative of that labor organization
to enter its store for the purpose of soliciting its employees to become members of
Retail Clerks Union,6 and by urging employees to become members of, or assist,
Retail Clerks Union?
5. Did Respondent violate Section 8(a)(3) and (1) of the Act by discharging
an employee? 7
6. Were the managers of Respondent' s meat and produce departments and its
head grocery clerk, at the times material herein, supervisors within the meaning of
the Act?
7. Did the Regional Director properly withdraw his approval of the settlement
agreement entered into by Respondent and Meat Cutters Union?
B. Facts concerning the supervisory status of Respondent 's meat and
produce managers and head grocery clerk8
Respondent's store is divided into three departments, grocery, meat, and produce.
In each department is an individual whose title, respectively, is head grocery clerk,
8 This will sometimes be referred to herein as the Midwest Piping Issue. See Midwest
Piping & Supply Co, Inc, 63 NLRB 1060
9 On motion of Respondent made at the conclusion of the General Counsel's case-in-chief
paragraph 6(d) of the complaint, which alleged that Respondent permitted a Retail Clerks
Union shop steward "to solicit for members of [Retail Clerks Union] among Respondent's
employees," was dismissed for the reason that the General Counsel had offered no evidence
to establish that allegation.
IIn his opening statement and on at least two other occasions during the trial the
General Counsel stated that he was not contending that Respondent also violated Section
8(a) (3) by entering into a collective-bargaining agreement containing a union-security
provision with Retail Clerks Union, a claimed "minority union." These statements, in my
opinion, effectively removed this issue from the case Accordingly, in the interest of fair-
ness to Respondent, no findings will be made in this respect despite the fact that in his
brief the General Counsel states that "he replied, in error, that he was not contending at
the hearing herein, that the inclusion of the union security provision in the collective-
bargaining agreement . . . with a minority union was, in and of itself, violative of Sec-
tion 8( a) (3)."
s As will be seen the resolution of this issue has a substantial bearing on almost all the
other questions for decision in this case.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meat manager, and produce manager. At all material times James W. Blancet was
Respondent's meat manager and Robert W. Higginbotham was Respondent's produce
manager . Since about July 1, Jerry-Carpenter has been head grocery clerk. Car-
penter's immediate predecessor was Robert Kirk .9 The duties and responsibilities
of Kirk were the same as Carpenter's.10 The remainder of Respondent's hierarchy
is, in ascending order, James M. Chapman, Jr., assistant store manager ; Joseph
Marvin Sipple, general manager; and Lonnie R. Norvell, president, all of whom
are admitted by Respondent to be supervisors within the meaning of the Act.
Respondent's meat and produce managers, head grocery clerk, assistant store
manager, general manager, and president comprise, as testified by Norvell, Respond-
ent's president, its "management team." 11 The department managers and head
grocery clerk under the supervision of Respondent's president and general manager
are responsible for and conduct the operations of their particular department. They
direct the work of the rank-and-file employees, using, as Sipple, Respondent's gen-
eral manager, testified in this regard, "their own judgment in part." They also set
the work schedules of employees in their departments. Although the authority of
the ' department managers and head grocery clerk in regard to scheduling is not
now absolute inasmuch as the schedules prepared by them are currently subject
to approval by Respondent's president or general manager, there was no such
requirement, as Norvell, Respondent's president, testified, prior to July 18, on which
date Respondent and' Retail Clerks Union executed their collective- bargaining
agreement. Norvell's testimony as to scheduling procedures prior to July 18, related
specifically -to the meat and produce departments and the record contains no evi-
dence as to the pre-July 18 practice in the grocery department. Norvell testified,
however, that the duties and responsibility of Respondent's department managers
and head grocery clerk are "parallel." Accordingly, 1 find that before July 18, the
head grocery clerk's authority to prepare work schedules was the same as that of the
department managers. Norvell further testified, and I find, that, in addition to pre-
paring general work schedules in the manner set forth above, Respondent's depart-
ment managers and'head grocery clerk "can authorize people in their departments
to work overtime, if necessary, without prior clearance."
Before Respondent's recognition of Retail Clerks Union the three individuals
presently under discussion had authority to recommend wage increases for employ-
ees working in their respective departments. If the recommendation was warranted
it would be adopted. The final decision in this respect, however, rested with
Respondent's president and general manager.12
Neither the department managers nor the grocery clerk has authority to suspend,
discharge, or otherwise discipline employees. This power resides only in Respond-
ent's president and general manager. With respect to this, however, Sipple, Respond-
ent's general manager, testified that because of the large number of employees
working for Respondent whom he could not "personally watch all the time" he had
to "have some means, of knowing through other channels their performance ...
to know whether they're actually doing a job as I expect it to be done or not . . . . ;
These "other channels" included Respondent's department managers and head
grocery clerk who made reports to Sipple as to the performance of employees in
their respective departments and recommendations as to their suspension, discharge,
,.or the imposition of other forms of discipline. These recommendations are con-
sidered by either Respondent's president or general manager, or both, and, if well
taken, followed.
As noted above, Respondent's department managers and head grocery clerk con-
duct the operations of their departments. Norvell, Respondent's president, testified,
in this regard, that they are "held responsible for the profit [of their] depart-
9 All findings in this Decision with respect to the head grocery clerk apply with equal
force to Kirk and Carpenter insofar as they are appropriate.
10 The General Counsel contends that Blancet, Higginbotham, Carpenter, and Kirk were,
and are, supervisors within the meaning of the Act. Respondent and, Retail,Clerks Union
take a contrary position.
11 In a pretrial affidavit Norvell stated that he did "not consider [Carpenter, Blancet and
Higginbotham] to be members of the store management." In view of Respondent's position
on the issue under discussion , I consider this statement to be self -serving and overweighed
by Norvell's trial testimony on this point.
12 The record is unclear as to Respondent 's practice in regard to wage increases since
recognizing Retail Clerks Union. Accordingly , I make no findings in that respect.
NITRO SUPER MARKET, INC. 509
ment." 13 Among their duties is the maintenance of merchandise inventories at
proper levels. To this end they are authorized, without obtaining prior approval
from Respondent's president or general manager, to, and do, purchase goods in
sufficient quantities to satisfy current customer demands. This authority is not
limited merely to reordering goods already on hand, but extends to the purchase
of new items.
In line with their responsibility for the profitable operation of their departments,
the department managers and head grocery clerk on their own initiative, fix the
selling prices of the products sold in their departments within the upper and lower
ranges of an established formula.14 To prevent loss of perishable commodities by
spoilage department managers and the head grocery clerk are authorized, also
without obtaining prior approval from Respondent's president or general manager,
either to reduce the selling price of the item in question or change its form.15
Respondent's department managers and head grocery clerk together with its
president, general manager, and assistant store manager attended so-called Monday
meetings which were held regularly, at least through August. At these meetings,
which were not attended by rank-and-file employees, storewide merchandising and
departmental advertising programs, business trends, wholesale prices, and general
store conditions were discussed, plans were laid for special sales, and decisions made
as to special purchases of merchandise whose wholesale price happened to be par-
ticularly low at the time and with respect to discontinuing certain items. Also, at
these Monday meetings, the meat and produce manager and the head grocery
clerk, who actively participated in all discussions and decisions, would report on,
and make recommendations concerning , the performance of the employees in their
departments.
From sometime in 1964 until about July 1965, Respondent maintained two sav-
ings plans pursuant to which individuals in Respondent's employ who desired to
participate would contribute a certain amount of money weekly which would be,
as Norvell, Respondent's president, testified "matched if the store showed a proper
profit." One plan provided for a contribution of $5 a week and the other required
a $3 payment. Norvell further testified with respect to the savings plans that "all
general employees participated in the $3.00 plan; [those] classified as . heads
of each department and other supervisory personnel [including the head grocery
clerk] participated in the $5.00 plan."
In addition to the foregoing factors, common to Respondent's department man-
agers and head grocery clerk, others, also having a bearing on the status of the
persons concerned, which relate individually to them are disclosed by the record.
These will now be discussed.
James W. Blancet: Blancet , as noted above, is Respondent's meat department
manager. Prior to the execution of the contract between Respondent and Retail
Clerks Union on July 18, Blancet was salaried and received $25 to $30 more per
week than any other individual who worked in the meat department. He is now,
and has been since the execution of the contract, hourly rated. His specified rate,
as set forth in the contract, was, as of the time of its signing, $3.08 per hour. The
hourly rate of pay for journeymen meat cutters provided for in the contract was,
as of the same time, $2.35.
Applicants for employment in the meat department are interviewed by Blancet
as well as by Norvell, the last such joint interview having occurred as recently as
March 22. Following these interviews Blancet and Norvell conferred with respect
to hiring the applicants, and they were personally notified of Respondent's decision
to employ them by Blancet. In addition to participation in the hiring of employees,
Blancet has, on his own initiative, granted meat department employees' requests for
time off and vacations.
is This testimony was given while Norvell was being examined with respect to the
operation of the meat department. Norvell also testified, however, as noted above, that the
responsibilities of Respondent's department managers and head grocery clerk are parallel
is There was some vacillating testimony given on this point but the findings as to the
manner of fixing selling prices is based upon a preponderance of the evidence
15 Sipple gave as examples of how the form of merchandise about to spoil could be
changed and still sold at a figure comparable to the regular price, the barbecuing of pork
chops darkening because of age and selling them as cooked meat and the conversion of
deteriorating chuck roast into hamburger
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent maintains group insurance coverage for all people in its employ. Two
classes of insurance are set forth in the policy . Class 1 includes Respondent 's presi-
dent, general manager, manager of the meat department (Brancet ), and manager
or assistant manager of the grocery department.16 Class 2 includes "any other
employee." The amount of life, accident , and health insurance for those in class 1
is $5,000 and for those in class 2 is $2,000.
Jerry Ca,pentei • It will be remembered that Carpenter became Respondent's head
grocery clerk on about July 1, and that his immediate predecessor was Robert Kirk.
Before entering into its contract with Retail Clerks Union on July 18, Carpenter
received $40 more per week than rank-and-file clerks in the grocery department.
His hourly contract rate at the time of its signing was $2.25, or $90 for a 40-hour
week. The highest hourly rate for general clerks set forth in the contract at the
time it was executed was $1 80, or $72 for a 40-hour week.
Respondent's store is open for business every day of the week, including Sunday.
On Sundays, as opposed to other days, only one person in Respondent's hierarchy
is present and that person, alone, is in charge of the store and of the employees
working on that day. Sipple, Respondent's general manager, Chapman, its assistant
store manager, both admitted supervisors, and Carpenter take turns in performing
this Sunday duty.
After Carpenter became head grocery clerk, Sipple introduced him to an employee
and told the employee to follow Carpenter's orders. Another employee, upon his
return to work after an extended illness, was assigned to the grocery department
and told by either Sipple or Chapman that he "would be working under Jerry
Carpenter" who "would be directing [him] in what to do." Another employee was
similarly informed by Sipple to follow Carpenter's orders.
David Harrison, a grocery department employee, was discharged on August 7.17
Sipple testified that, in connection with Harrison's discharge, he took into account
Carpenter 's opinion as to the manner in which Harrison performed his work, as well
as his own evaluation and the evaluations of Norvell and Chapman, respectively
Respondent's president and assistant store manager. Following his discharge, notice
of which was given him by Chapman, Sipple told Harrison that Carpenter, among
others, had recommended his discharge.18
Robert G Higginbotham. At all material times Higginbotham was Respondent's
produce manager. His rate of pay, as set forth in the contract between Respondent
and Retail Clerks Union, was at the time of its execution, $2 25 an hour.19 As
noted above, at that time the hourly rate for general clerks was $1.80.
An employee, upon his assignment to the produce department, was told by Sipple
that Higginbotham would tell him what to do. On his own initiative Higginbotham
granted this employee's request for an unscheduled day off and prior to the contract
between Respondent and Retail Clerks Union he was told by Higginbotham when
to go to lunch. This latter practice was discontinued upon the execution of the
contract in view of its provision that work schedules must be posted on the Saturday
before the week to which they pertain.
C. Concluding findings concerning the supervisory status of Respondent's meat
and produce managers and head grocery clerk
In determining whether a person is a supervisory 20 account must be taken of
definition appearing in Section 2(11) of the Act as well as the gloss put on that
definition by the Board and courts. Section 2(11) provides in pertinent part, that
an individual is a supervisor if he has authority "to hire . . . discharge . . . or
discipline other employees, or responsibily direct them . . . or effectively to rec-
16 The record does not disclose whether Respondent employed , at any material time, a
manager or assistant manager of its grocery department.
11 Harrison 's discharge , which will be discussed below in detail , is alleged by the Gen-
eral Counsel to have been violative of Section 8( a) (3).
18 This finding is based on Harrison's testimony , which was not contradicted by Sipple.
16 Wage schedule "A" of the contract, upon which this finding is based, refers to a "Head
Produce Clerk." Sipple testified, however, that this provision of the contract was intended
to cover Higginbotham . The record does not disclose what Higginbotham 's precontract rate
was.
20 Respondent and Retail Clerks Union argue , in support of their position that Blancet,
Carpenter , and Higginbotham are not supervisors , that the authority of the individuals in
question is limited to functioning within routine and repetitive guide lines. Retail Clerks
Union argues, in addition, that they had no power to hire, discharge, or otherwise dis-
cipline employees.
NITRO SUPER MARKET, INC. 511
ommend such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine . . . nature, but requires the use of inde-
pendent judgment." In connection with this definition, two principles are well settled.
The first is that it "is to be interpreted in the disjunctive and the possession
of any one of the authorities listed in Section 2(11) places the employee invested
with this authority in the supervisory class" Ohio Power Co. v. N.L.R.B., 176 F.2d
385, 387 (C.A. 6), cert. denied 338 U.S. 899. The second is that Section 2(11)
"does not require the exercise of the power described for all or any definite part
of the employee's time. It is the existence of the power which determines the classi-
fication." Ohio Power Co. v. N.L.R.B., supra at 388.21
Based on the definition appearing in Section 2(11) of the Act as interpreted by
the Board and courts, I conclude that Blancet, Carpenter, and Higginbotham are
supervisors, because, as I have found, they participate in the hiring of employees,22
make recommendations as to their discipline, including discharge which, I find, are
effective, and, as I further find, responsibly direct the work of the rank-and-file
employees in their respective departments.23 The record does not show that all of
these faculties were frequently exercised, however, Ohio Power teaches that it is
not the frequency of their use but "the existence of the power which determines
the classification."
My conclusion that the individuals in question are supervisors is buttressed by
further facts appearing in the record. Thus, in addition to their functions in con-
nection with the hiring, discharging, and disciplining of employees and their author-
ity responsibly to direct their work, the record shows, and I have found, that the
individuals in question are part of Respondent's "management team," are respon-
sible for the operations of their departments,24 prepare work schedules, authorize
overtime, recommend wage increases, are responsible for profits, maintain inven-
tories, buy merchandise, fix selling prices of goods, attend management meetings,
are in the same savings and insurance plan as admitted supervisors, receive higher
salaries than rank-and-file employees, and grant time off and vacations.25 These
factors, too, the Board has held are indicative of supervisory status. See, e.g., The
Eavey Company, supra; Porto Mills, Inc., 149 NLRB 1454, 1469-70; Katz Drug
Company, 123 NLRB 1615, 1616; Bruno's Food Store, Incorporated, 131 NLRB
1023, 1025; The Great Atlantic & Pacific Tea Company, Inc., 119 NLRB 603,
606-607; Heck's, Inc., 156 NLRB 760; Squaie Binding & Ruling Co., Inc., 146
NLRB 206, 209-210; Winn-Dixie Stoics, Inc., 124 NLRB 908, 911-912; Heck's, Inc.,
150 NLRB 1565, 1569; Worth Food Market Stores, Inc., 105 NLRB 682, 683;
Ideal Glove Manufacturing Company, 151 NLRB 368; Swan Super Cleaners, Inc.,
152 NLRB 163.
Upon the factors last mentioned as well as the more conventional indicia of
supervisory status first discussed I conclude that Blancet, Higginbotham, and
Carpenter,26 respectively, Respondent's meat manager, produce manager, and head
grocery clerk, were at material times supervisors within the meaning of the Act.
D. Facts concerning the alleged violations of Section 8(a) (2) of the Act 27
Retail Clerks Union's majority claim and demand for a card check: As briefly
indicated in the introductory portion of this Decision, during January, Retail Clerks
n See also The Eavey Company, 115 NLRB 1779, 1781.
rr The evidence in this regard was specific only as to Blancet.
23 It will be remembered that Sipple , Respondent ' s general manager, testified in this
regard, that this required Blancet, Carpenter, and Higginbotham to "use their own judg-
ment in part."
211 have also found that on certain Sundays, Carpenter is in complete charge of the entire
store.
23 The findings with respect to Respondent's insurance plan and vacations relate specifi-
cally to Blancet.
26 My conclusion with respect to Carpenter relates also to Kirk, Carpenter's predecessor
as head grocery clerk during some of the material period.
n The General Counsel contends that Respondent violated Section 8(a) (2) of the Act,
in the main, by recognizing Retail Clerks Union and entering into a contract with it dur-
ing the pendency of a question concerning representation and separately violated Section
8(a)(2) because at the time of its recognition of, and contract with, Retail Clerks Union,
that Union did not represent a majority of Respondent 's employees . Retail Clerks Union
argues, on the other hand, that at all material times it represented a majority of Re-
spondent 's employees and, therefore , Respondent did not violate Section 8(a)(2) in any
respect.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and Meat Cutters Union made separate demands for recognition upon
Respondent. It does not appear that any labor organization had before this ever
represented Respondent's employees.
On February 8, Respondent filed a representation petition (Case 9-RM-379)
alleging the foregoing conflicting claims. No action was ever taken on this petition,
however, because on the day following its filing Meat Cutters Union lodged a
charge against Respondent claiming that it had violated, inter alia, Section 8(a) (1)
of the Act 28 and the petition, at the time of the trial in this case, was still pending
in Board's Region 9 office. Although the conflicting recognition claims by Retail
Clerks Union and Meat Cutters Union were never withdrawn, Respondent heard
nothing further from either Union in this regard until April 24 On that day, a
representative of Retail Clerks Union informed Sipple, Respondent's general mana-
ger, that a majority of Respondent's employees had signed cards authorizing Retail
Clerks Union to act as their collective-bargaining agent, requested an opportunity
to prove this before a disinterested party, and threatened, unless given such an
opportunity, to picket Respondent's store the next day.
The appropriate unit and the number of employees involved: At the trial the
parties stipulated, and I find, that on April 24, the date on which Retail Clerks
Union made its majority claim, there were 32 persons in Respondent 's employ,
including Blancet, Higginbotham, and Kirk,29 respectively, Respondent's meat man-
ager, produce manager, and head grocery clerk, and Emma Chapman , Respondent's
bookkeeper.
The parties further stipulated that any unit found appropriate for collective-
bargaining purposes should include, at the minimum , all persons employed by
Respondent, except the four named above. The General Counsel and Meat Cutters
Union contend that the meat manager, produce manager, and head grocery clerk,
as supervisors , and the bookkeeper , as an office clerical employee , should be
excluded from the unit 30 Respondent and Retail Clerks Union, taking the position
that Respondent's two department managers and head grocery clerk were not super-
visors and that no reason existed for the exclusion from the unit of Respondent's
bookkeeper, argued that all four should be included.
Having found that Respondent's department managers and head grocery clerk
are supervisors, they may not, it is well settled, be included in any unit considered
appropriate for collective-bargaining purposes. It is equally well settled that where,
as here, there is no bargaining history and no labor organization seeks to represent
them separately office clerical employees will be included in retail store units of
selling and nonselling employees31
Accordingly, I conclude that the unit appropriate for collective-bargaining pur-
poses in this case consists of all Respondent's employees, including its bookkeeper,
but excluding its two department managers and head grocery clerk. I further con-
clude that on April 24, there were 29 employees in this unit.
The card check: On April 24, following the majority claim and demand for a
card check by Retail Clerks Union, Sipple, Respondent' s general manager, met with
William Philpott and Larry Coleman, representatives of Retail Clerks Union, in
the office of H. Gale Smith, an insurance broker, who was to serve as the impartial
person in checking the cards to be presented by Retail Clerks Union. Sipple brought
to this meeting a roster purporting to contain the names of all persons working
for Respondent. Either at or before the meeting Respondent turned over to Smith
withholding tax forms (herein called W-2 forms ) as well as group insurance enroll-
ment cards signed by Respondent's employees. These were to be used in verifying
the signatures appearing on the authorization cards.
At this meeting Philpott, the Union's representative, handed Sipple 21 or 22
cards. The signatures on these cards were then compared by Sipple and Smith with
the signature on the W-2 form or the insurance enrollment card of the employee
concerned. If they appeared to have been written by the same individual, Sipple
placed a check mark next to that person 's name on the employee roster.
28 On July 8, the Director approved an agreement informally settling this charge
"As set forth above, Kirk was Carpenter 's predecessor as Respondent ' s head grocery
clerk.
90 In his brief the General Counsel withdrew his objection to including Respondent's
bookkeeper in the unit
11 Interstate Supply Company, 117 NLRB 1062, 1064.
NITRO SUPER MARKET, INC. 513
Operating in this manner, Sipple and Smith determined that 19 authorization
cards were "valid." 32 These included cards signed by Blancet and Higginbotham,
who I have concluded were supervisors; the cards signed by two persons, Gerald
Lemon and John Priddy, who were no longer in Respondent's employ on April 24,
the date on which the cards were checked; cards signed by three employees, Leolen
Crago, Randall McLane, and William Samples, who testified, credibly and without
contradiction, that the cards which they signed were solicited by Higginbotham, a
supervisor; and cards purportedly bearing the signatures of five employees, Norma
Blankenship, Roger Cowley, Carl Cobb, Mickey Lemon, and Gary Martin, all of
whom testified, likewise credibly and without contradiction, they had never signed
the cards in question. The remaining seven cards which were accepted as "valid"
appeared to have been signed by rank-and-file employees and no evidence was
offered to establish that they were not properly executed or solicited 33
Before April 24, on which date Retail Clerks Union made the majority claim,
several persons employed by Respondent signed Retail Clerks Union authorization
cards which were not offered for inspection at the meeting in Smith's office. These
cards were executed by Robert Kirk, who I have concluded was a supervisor, and
the following rank-and-file employees: Leon D. Rhodes, Peggy I. Moye, Robert W.
Yoder, Jr., Kenneth O. Pritt, Gary Neal Adkins, and Michael Ross Wisman.34
Respondent's recognition of Retail Clerks Union and its contract with that
Union: As a result of the card check which satisfied Sipple, Respondent's general
manager, that Retail Clerks Union represented a majority of Respondent's employ-
ees, he, on behalf of Respondent, recognized Retail Clerks Union as the collective-
bargaining representative of all its employees, despite the pendency of Respondent's
representation petition. With respect to the latter, Sipple testified that he thought at
the time that Respondent's lawyer had requested permission to withdraw the
petition, but that in view of the picketing threat made by Retail Clerks Union
earlier that day "it wouldn't have made any difference to [him] at that time
whether there had been a petition pending or not, [he] would still have recognized
[Retail Clerks Union] under those circumstances at that time . ."
Thereafter, representatives of Respondent and of Retail Clerks Union met on
several occasions for the purpose of negotiating a contract and on July 18 entered
into a collective-bargaining agreement covering Respondent's employees. This con-
33 This finding is based upon Sipple's testimony. Smith certified that he satisfied him-
self as to the "validity" of 18 cards and Philpott testified that there «ere 20 Sipple how-
ever, retained the roster on which he had made check marks after examining the authoriza-
tion cards in the manner set forth in the text at least until August 12 On that date,
during an interview with an agent of the Board, lie read to the agent the names of the
persons next to which he had placed a check mark The Board agent then incorporated
these names in an affidavit which Sipple signed. At the trial Sipple gave his testimony as
to the number of cards involved and the names of the employees whose cards lie had
accepted as "valid" after having refreshed his recollection by reading the affidavit which
had been prepared by the Board agent. Accordingly, I credit Sipple who testified from
documents, rather than Philpott, who testified from memory as to an event which was
almost a year old at the time of the trial or the certification made by Smith, who did not
appear as a witness.
33 Among these were cards signed by Emma B. Chapman, Mary Lou Chapman, and
Nancy Leach. When these cards were offered in evidence they were excluded on objection
by the General Counsel based mainly on the fact that the cards' solicitor could not testify
as to the actual dates on which they were signed. Following their exclusion they were
placed in the rejected exhibit file. These three cards, however, all bear a date prior to
April 24, and were exhibited at the meeting in Smith's office held on that date. They must,
therefore, have been signed before then. Accordingly, I withdraw my ruling and now re-
ceive the cards in question in evidence as Exhibits P/C3, P/C4, and P/C10, respectively.
34 These cards were excluded from evidence and placed in the rejected exhibit file. Their
exclusion was ordered on objections to the effect that they were not properly authenticated
either as to signature or date of execution. However, on the authority of I. Taitet and Son,
119 NLRB 910, 912, whose criteria for the proper authentication of authorization cards
have been, I conclude, substantially complied with, I withdraw my ruling and now receive
the cards in question in evidence as Exhibits P/C5, P/C9, P/C11, P/C12, P/C13, and
P/C15, respectively.
264-188-67-vol. 161-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract, which is still in effect ,35 contains a union-security provision requiring' all
employees to become and remain members of Retail Clerks Union "after 31 days
of employment, or after 31 days following [ its execution] whichever is later . . . ."
The contract also obligates Respondent to check off union dues and initiation fees
from the wages of employees authorizing it to do so and remit the money so
deducted to Retail Clerks Union.
. The ratification of the contract: On July 17, after the terms of the contract
between Respondent and Retail Clerks Union had been agreed upon Blancet,
Respondent's meat manager who I have determined is a supervisor, and a group
of Respondent's employees met with Philpott, a representative of the Retail Clerks
Union. At this meeting, Philpott read and explained the provisions of the contract.
There was then a discussion of the contract among those in attendance at the
meeting following which Blancet, announcing that it was a "good" contract, moved
its ratification. The motion was carried unanimously.
Respondent's other conduct in support of Retail Clerks Union: In August, after
Respondent had entered into the contract with Retail Clerks Union, Sipple told an
employee that he would have to join that union and sign that union's "card" within
30 days. On August 16, Sipple asked another employee if he intended to join
Retail Clerks Union and suggested that "it would be best if [he] did." On the same
day James Chapman, -Respondent' s assistant manager and an admitted supervisor,
Blancet , and Higginbotham, both of whom I have found, to be supervisors, also
urged this employee 'to join Retail Clerks Union. Chapman added in this con-
versation, as the employee in question testified, that "he'd like to see [the employee]
sign because he'd like to see [the employee] stay around . . . and you know tomor-
row is the last day to sign:" 36
At about the same time Philpott, a Retail Clerks Union representative, entered
Respondent's store and was permitted, without objection by Sipple, who was present,
to hand a Retail Clerks Union card to an employee who had not theretofore signed
one.37
E. Concluding findings concerning the alleged
violations of Section 8(a) (2) of -the Act
It is alleged in the complaint that Respondent violated Section 8 (a) (2) and (1)
of the Act in the following respects: (1) By recognizing, and entering into a collective-
bargaining, agreement containing a union-security provision with, Retail Clerks Union
although that Union at the times in question did not represent a majority of Respond-
ent's employees; (2) By recognizing, and entering into a collective-bargaining agree-
ment with, Retail Clerks Union in the face of a conflicting claim for recognition by
Meat Cutters Union; (3) By the attendance and participation of a supervisor at a
Retail Clerks Union meeting; (4) By permitting a representative of Retail Clerks
Union to enter its store for the purpose of soliciting Respondent's employees to be-
come members of Retail Clerks Union; (5) By urging employees to become members
of Retail Clerks Union.
I have found that the appropriate unit for collective bargaining in this case con-
sists of all Respondent's employees and that on April 24, the date on which
Respondent recognized Retail Clerks Union, there were 29 people in this unit. If
Retail Clerks Union did not represent a majority of these employees at that time,
then on well-settled principles , Respondent by recognizing Retail Clerks Union
engaged in an unfair labor practice within the meaning of Section 8(a)(2) and
(1) of the Act. International Ladies' Garment Workers' Union, AFL-CIO v.
N.L.R.B. [Bernhard-Altmann Texas Corp.], 366 U.S. 731, 737-739. It is equally well
settled that if Retail Clerks Union was in fact a minority union Respondent also
violated Section 8 (a) (2) and (1) by entering into a contract with that Union con-
taining a union-security provision. Dura Corporation, 153 NLRB 592; Carlson
Furniture Industries, Inc., 153 NLRB 162.,
ss The contract's expiration , date is July 1, 1968.
" These findings are based on the uncontradicted and undenied testimony of Carl David
Cobb, who was an employee of Respondent at the time in question and Jerry Lee. Duke,
who was still employed by Respondent at the, time of the trial.
87 This finding is based on the testimony of Kenneth Turley, who -was employed by
Respondent at the time of his solicitation by Philpott. Sipple testified that he did not at
any time grant permission to Philpott to solicit on behalf of Retail Clerks Union on Re-
spondent 's premises and that he had no recollection of such solicitation by Philpott in his
presence. However , as Sipple , himself, engaged in similar conduct , I do not credit his
testimony in this regard.
NITRO SUPER MARKET, INC. 515
On the record made in this case the only evidence upon which a conclusion as
to the representative status of Retail Clerks Union can be based consists of the 19
authorization cards presented at the meeting in Smith's office on April 24, and the
7 cards which were signed prior to that date, but which were not exhibited when
the others were checked. Of the first group of cards the five which were not signed
by the employees whose names appeared thereon and the two signed by persons
who were not employed by Respondent on that day obviously cannot be counted
in determining Retail Clerks Union's majority. Nor can the cards signed by Blancet
and Higginbotham, respectively Respondent's meat and produce managers, be con-
sidered in this respect, for, having been found to be supervisors, they were not in
the unit. Finally, the three cards which were solicited by Higginbotham, a super-
visor, likewise cannot be taken into account. Insular Chemical Corporation, 128
NLRB 93, 98-99. This leaves a total of seven cards in this group which may be
counted in ascertaining the majority status of Retail Clerks Union.
Among the seven cards which were signed prior to April 24, but which were
not displayed at the meeting on that day, was one which was executed by Kirk,
who was then Respondent's head grocery clerk. As he was found to have been a
supervisor, he, like Blancet and Higginbotham, cannot be considered as having
been in the unit deemed appropriate for collective-bargaining purposes. Of these
cards, therefore, only six may be counted in determining the majority status of
Retail Clerks Union.
Adding the six valid cards in the latter group to the seven in the former there
is a grand total of 13. There having been 29 employees in the unit on April 24, of
whom only 13 weie represented by Retail Clerks Union, I conclude that that Union
did not represent a majority of Respondent's employees and that, therefore,
Respondent's recognition of that Union on the day in question constituted a viola-
tion of Section 8(a)(2) and (1) of the Act.
Respondent's collective-bargaining agreement with Retail Clerks Union was
entered into on July 18. No evidence was offered by the General Counsel to estab-
lish his allegation that Retail Clerks Union did not represent a majority of the
employees concerned on that day. However, in view of Respondent's improper
recognition of Retail Clerks Union on April 26, when it did not, as I have found,
represent a majority of Respondent's employees, even if it had attained majority
status on July 18, on which date the contract was executed, such a majority would
have an "assisted majority" and would have availed Respondent nothing insofar as
Section 8(a) (2) is concerned. Majestic Weaving Co., Inc., 147 NLRB 859, 860-861;
Masters-Lake Success, Inc., 124 NLRB 580, 593; of: International Ladies' Garment
Workers' Union, AFL-CIO v. N.L.R.B., 366 U.S. 731, 736. Accordingly, I con-
clude that Retail Clerks Union did not represent a majority of Respondent's
employees on July 18, and that by entering into a contract containing a union-
security provision with that Union on that day, Respondent separately violated
Section 8(a)(2) and (1) of the Act.
The General Counsel further contends that Respondent contravened Section
8(a)(2) and (1) in another respect; namely, by committing a Midwest Piping vio-
lation.38 In brief, the facts, in this connection, as I have found them, are that in
January, Retail Clerks Union and Meat Cutters Union each separately made claims
for recognition upon Respondent following which Respondent on February 8, filed
a representation petition alleging the rival claims. Notwithstanding the pendency of
this petition and Meat Cutters Union's outstanding demand for recognition
Respondent recognized, and entered into a contract containing a union-security
provision with Retail Clerks Union.
s8 Midwest Piping and Supply Co ., Inc., 63 NLRB 1060. In considering this phase of
the case, whether or not Retail Clerks Union had authorization cards from a majority of
the employees concerned , as it claims , is immaterial . For, as the Board stated in Midwest
Piping, supra at 1070, footnote 13:
[W]e do not regard [signed membership cards as proof of majority status] as con-
clusive. Among other things , it is well known that membership cards obtained during
the heat of rival organizing campaigns . . . do not necessarily reflect the ultimate
choice of a bargaining representative ; indeed, the extent of dual membership among
the employees during periods of intense organizing activity is an important unknown
factor affecting a determination of majority status, which can best be resolved by a
secret ballot among the employees.
In the instant case employees who had signed Retail Clerks Union authorization cards
testified that they also signed such cards for its rival , Meat Cutters Union.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's rationale in finding a violation of Section 8(2) and ( 1) 39 in Mid-
west Piping fits the foregoing facts like the proverbial glove. To be sure, as the
Board has held, the basis for a finding that a Midwest Piping violation has been
committed is the existence of "a real question concerning the representation of the
employees" concerned . Such a question was presented in the instant case when
Respondent recognized Retail Clerks Union. It was raised by the outstanding, con-
flicting claims for recognition by Meat Cutters Union and evidenced by the filing,
and pendency at the time, of Respondent' s representation petition . Pittsburgh Valve
Company, 114 NLRB 193, 194-196; National Aniline Division, 111 NLRB 550,
551. I conclude, therefore, that Respondent also violated Section 8 (a)(2) and (1)
by recognizing and entering into a contract with, Retail Clerks Union in the face
of a rival claim for recognition by Meat Cutters Union.
Finally, I conclude that Respondent further violated Section 8(a)(2) and (1)
in the following additional respects:
1. By the presence and active participation of its supervisor , Blancet, at the Retail
Clerks meeting at which Respondent's collective-bargaining contract with that Union
was ratified. Coca-Cola Bottling Company, of Sacramento, 146 NLRB 1045, modi-
fied on evidentiary grounds 346 F.2d 625 (C.A. 9).
2. By urging its employees to sign Retail Clerks Union cards. Continental Dis-
tilling Sales Company, 145 NLRB 820, 831-832, modified on evidentiary grounds
348 F.2d 246 (C.A. 7).
3. By permitting a representative of Retail Clerks Union to enter its store for the
purpose of soliciting Respondent 's employees to become members of Retail Clerks
Union . Continental Distilling Sales Company, supra.
In sum , I conclude that by its acts and conduct set forth above Respondent
rendered unlawful assistance and support to Retail Clerks Union and thereby
engaged in unfair labor practices within the meaning of Section 8 (a)(2) and (1)
of the Act.
F. Facts concerning the alleged violation of Section 8(a)(3) of the Act
The complaint alleges that by discharging an employee , David Harrison, on
August 7, Respondent violated Section 8(a)(3) of the Act. In defense , Respondent
contends that Harrison was an unsatisfactory employee and was discharged for
cause.
Harrison was hired by Respondent on July 14 and assigned to work as a stock
clerk in the grocery department . Harrison 's duties consisted, in the main , of stamp-
ing prices on merchandise and placing stock on shelves . Sipple , Respondent's gen-
eral manager, testified that on the second day of Harrison 's employment he con-
cluded that Harrison could not perform his duties in the manner expected of him.
Harrison's faults which , as stated , came to Sipple's attention as early as the
second day of his employment, consisted of among other things, as Sipple further
testified, his inability properly to shelve merchandise; his transposition of the figures
on the price stamper thereby mispricing goods which resulted in losses to Respond-
ent; his breaking of glass containers in which merchandise was packed; and, on
occasions, his improper dress. Sipple also testified that although Harrison's work
improved to a minor degree "there were enough blunders and mistakes to offset
any improvements" and that he "never progressed to the point [where] he was
worth [his] cost . as an employee."
Although some of Harrison's failings as an employee were called to his attention
by Sipple he was also complimented on his work. In this connection, Chapman,
Respondent's assistant store manager, told Harrison, about a week and a half after
he had been hired, that he was "doing pretty good."
On July 24, Harrison signed a Meat Cutters authorization card. On Friday,
August 6, Harrison together with other employees of Respondent attended a meet-
ing of the Meat Cutters Union. Carpenter, Respondent's head grocery clerk, who
I have found to be a supervisor, was also present at this meeting. Sherwood M.
Spencer, an officer of Meat Cutters Union, asked Carpenter to sign an authoriza-
tion card. Upon Carpenter's refusal to do so, he was asked to leave the meeting
and he did.
The next day, Saturday, August 7, Carpenter informed Norvell, Respondent's
president, that he had attended the Meat Cutters meeting the previous day. Also
on that day, August 7, which was not a regular payday for Respondent's employ-
89 Now Section 8(a) (2) and (1).
NITRO SUPER MARKET, INC. 517
ees.40 Harrison, without any previous warning,41 was discharged by Chapman.
At the time of his discharge, which was about a week and a half after Chapman
had complimented Harrison on his good work, Chapman said to Harrison that his
"work hasn't proved satisfactory. I'm going to let you go. Here's your check."
Harrison, after leaving Respondent's store, called Sipple on the telephone and
asked Sipple why he had been discharged. The only reply made by Sipple was that
Harrison's discharge was based on recommendations by him (Sipple), Norvell,
Respondent's president, and Carpenter, Respondent's head grocery clerk.
G. Concluding findings as to the alleged violation of
Section 8(a) (3) of the Act
Respondent argues that it discharged Harrison because he was an unsatisfactory
employee. I do not agree. Assuming, without deciding, that Harrison was a poor
employee, I cannot find on this record that he was discharged for this reason.
Harrison's faults as an employee came to Respondent's attention on the second
day of his employment. Harrison was, nevertheless, permitted to continue in
Respondent's employ for an additional period of more than 3 weeks. However, on
the day following his presence at a meeting of Meat Cutters Union, which was also
attended by Carpenter who reported his own attendance to Norvell, Respondent's
president, Harrison was, on the recommendations of Norvell, Sipple, and Carpenter,
summarily and without prior warning discharged, ostensibly for unsatisfactory work.
The timing of Harrison's abrupt discharge coming without warning, hard on the
heels of his attendance at a Meat Cutters meeting and the relatively long period
during which Respondent suffered Harrison's deficiencies as an employee lead me
to believe that the reason assigned for his dismissal was a pretext and that the real
reason for the Respondent's termination of Harrison's employment was his activity
on behalf of Meat Cutters Union as evidenced by his being present at its meeting.
In connection with the foregoing, it has been held that the "abruptness of a dis-
charge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Mont-
gomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829.
It likewise has been held that "an employer's tolerance of an employee's short-
comings until he engages in union activity is an indicium of discriminatory motiva-
tion" Virginia Metalcrafters, Incorporated, 158 NLRB 958, footnote 3.
Accordingly, I conclude that by discharging Harrison on August 7 Respondent
violated Section 8(a)(3) and (1) of the Act.
H. Facts concerning Respondent's alleged independent violations of
Section 8(a) (1) of the Act
The settlement agreement: On February 9, Meat Cutters Union filed a charge
(9-CA-3468) alleging that by interiogating "employees concerning their sympathies
for and on behalf of the Union" and by "other acts" Respondent violated Sec-
tion 8(a)(1) of the Act.42 On March 16, Respondent executed an informal settle-
ment agreement in Case 9-CA-3468 whereby it undertook to refrain from violating
Section 8(a)(1) of the Act. On July 8, this settlement agreement was approved
by the Regional Director. On July 30, Meat Cutters Union filed another charge
(Case 9-CA-3652) against Respondent. This charge, as finally amended alleged
violations of Section 8(a)(1), (2), (3), and (5) of the Act.43
Following his investigation of the second charge filed by Meat Cutters Union,
the Regional Director, on September 17, entered an order withdrawing his approval
of the agreement settling the prior charge. On September 30, the instant complaint
issued which alleged as violations of the Act not only Respondent's conduct since
the settlement agreement, but also its prior conduct.
In Larrance Tank Corporation, 94 NLRB 352, 353, the Board stated that it was
its "established practice not to consider as evidence of unfair labor practices conduct
'° Respondent paid its employees on Wednesdays.
41 Although I have found that Sipple, Respondent's general manager, spoke to Harrison
about his faults as an employee , it does not appear from the record that Sipple, or any
other member of Respondent's supervisory hierarchy, ever cautioned Harrison that his
deficiencies would , or might, result in his discharge.
42 This charge also alleged violations of Section 8(a) (3) and ( 5) by Respondent. These
allegations were, however , dismissed.
43 That part of the charge in Case 9-CA-3652 alleging violations of Section 8(a) (5) of
the Act was withdrawn on September 10.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a respondent antedating a settlement agreement, unless the Respondent . . . has
engaged in independent unfair labor practices since the settlement." 44 I have found
that "since the settlement"; i.e., July 8,45 Respondent violated 8(a)(2) and (1)
of the Act by entering into a collective-bargaining agreement containing a union-
security provision with Retail Clerks Union, a minority union, and by supporting
that labor organization in other respects, and violated 8(a)(3) and (1) by dis-
charging David Harrison, all of which are "independent unfair laboi practices"
insofar as the settlement agreement is concerned. Accordingly, I conclude that there
was sufficient basis for the Regional Director's withdrawal of his approval of settle-
ment agreement. Respondent's presettlement conduct alleged in the complaint to be
violative of Section 8(a)(1) of the Act may, therefore, with propriety be considered.
Following that , I will consider the allegations of the complaint relating to Respond-
ent's posisettlement violations of that section.
Respondent's alleged presettlement violations of Section 8(a) (1): The complaint
alleges in this regard that between January and July 8, which I have found to be the
effective date of the settlement agreement, Respondent by several of its supervisors
and officers interrogated employees concerning their union activities, membership,
attitudes, attendance at union meetings, and signing of union cards. The complaint
also alleges that within this period Respondent, also by several of its supervisors
and officers, threatened employees with the closing of its store, should a union be-
come their collective-bargaining representative.
Respondent has admitted all the presettlement allegations of interrogation 46
Although Respondent denied the threats, I find that the allegations of the complaint
in this respect were established to a substantial degree.
Thus, on about March 1, Norvell, Respondent's president, stated to Roger
Cowley, an employee in Respondent's meat department, that he, Norvell, could
not put up with a union 47 and that he just did not "have to run a store." I find
that this statement by Noivell, in the context of his conversation with Cowley, was
a threat.
In January, Sipple, Respondent's general manager, stated to Stephen Lee White,
a carry-out boy employed by Respondent, that Respondent could not afford to pay
union wages and that if a "union got in [Respondent] would have to close down."
In the same month, and in February, Sipple uttered similar threats to other
employees48
In like vein, Robert Higginbotham, Respondent's produce manager, who I have
found to have been a supervisor, in February, told William Harold Samples, also
employed as a carry-out boy by Respondent, that Respondent "could not pay what
[Meat Cutters Union] would ask, and remain in business." 49
Respondent's alleged postsettlement violations of Section 8 (a) (1) • On August 4,
Sipple asked Samples to attend a meeting of the Meat Cutters Union which was
scheduled for that night and then report to him what transpired at that meeting.
During the same conversation Sipple warned Samples, on pain of being discharged,
not to sign a Meat Cutters card or mention to Board agents that part of their
conversation relating to Meat Cutters Union.
On August 6, a meeting of Meat Cutters Union was held in its office at the
Nelson Building, Charleston, West Virginia. Several of Respondent's employees as
well as Carpenter, its head grocery clerk who I have found to be a supervisor,
"The Board 's modification of its Larrance Tank doctrine appearing in Joseph's Land-
scaping Service , 154 NLRB 1384 , has no applicability here
45 The General Counsel contends that the settlement agreement became effective on
March 16, the day it was executed by Respondent . I do not agree In view of the provisions
of Section 101.7 of the Board ' s Statements of Procedure and its decision in Campbell Soup
Company, 152 NLRB 1645 , I conclude that the settlement agreement did not acquire vital-
ity until July 8, when it was expressly approved in writing by the Regional Director.
40 These admissions are contained in the oral amendments of its answer , as reflected in
the record.
41 The union under discussion was Meat Cutters Union , which at the time was seeking
adherents among Respondent 's employees.
4s William Harold Samples , Randall Lee McLane , Joseph Wayne Pullin.
4e Although Samples, who testified as to this conversation , used the words "Retail Clerks"
rather than "Meat Cutters Union," it is obvious, from the balance of his testimony on this
point that Higginbotham , who was then soliciting an authorization card for Retail Clerks
Union , had threatened that the store would close because Respondent could not afford to
pay the wage rate which would be demanded by Meat Cutters Union.
NITRO SUPER MARKET, INC. 519
attended this meeting. While the meeting was in progress an automobile driven by
Blancet, Respondent's meat manager, who I have also found to be a supervisor,
stopped at the Nelson Building parking lot. James Chapman, Respondent' s assistant
store manager, and an admitted supervisor, got out of the car, walked to the back
of the building where the entrance to the meeting room was located , and stayed
there for about 10 minutes. He then reentered the car, which, before leaving the
vicinity of the building, was driven through the parking lot.
Chapman, Blancet, and Carpenter were still in Respondent's employ at the time
of the trial. Respondent did not call Carpenter as a witness to explain his attend-
ance at the August 6 meeting of Meat Cutters Union, nor did it call Blancet or
Chapman to testify as to the reason for their presence outside the building in which
this meeting was in progress.
1. Concluding findings as to Respondent's alleged violations of
Section 8(a) (1) of the Act
I find that Respondent's presettlement interrogation was, in the context of this
case, coercive and that its threats before the settlement, as detailed above, were
intrinsically so. Accordingly, I conclude that prior to the settlement Respondent
by its foregoing conduct engaged in unfair labor practices within the meaning of
Section 8 (a)( 1 ) of the Act.
I also conclude that since the settlement Respondent engaged in conduct pro-
scribed by Section 8(a)(1) of the Act in the following respects.
1. By requesting an employee to attend a meeting of Meat Cutters Union and
report the events of that meeting to Sipple, Respondent's general manager. The
Lau Blower Company, 146 NLRB 1226, 1227, 1233.
2. By the warning given by Sipple to the same employee, under threat of dis-
charge, not to sign a Meat Cutters card or report Sipple's conversation with him
to Board agents. With respect to the latter, it has been held that this type of con-
duct "amounts to a violation of 8(a)(1) as an illegal effort to prevent .
employees from having a fair and honest appraisal of the Union's charges against
Respondent," Bannon Mills, Inc., 146 NLRB 611, 630.
3. By its surveillance of a meeting held by Meat Cutters Union which was
attended by its employees. I have commented on the fact that Respondent did not
call Carpenter, its head grocery clerk, as a witness to explain his attendance at the
meeting in question and that it likewise failed to call either Blancet, its meat man-
ager, or Chapman, its assistant store manager, to testify as to the reason for their
presence outside the building in which this meeting was in session. In considering
a similar situation in The Standard Oil Company, 155 NLRB 302, the Board, in
finding a violation of Section 8(a)(1), stated:
It is possible, of course, that the presence of [supervisors] in the immediate
area of the Union meeting could have been for a purpose other than surveil-
lance, but such an explanation, if available, is peculiarly in the Respondent's
possession, and Respondent gave no explanation. [Its supervisors were not
called to testify concerning this incident.] In view of the circumstances shown,
and the Respondent's failure to rebut the prima facie case thus established, we
conclude that the purpose of their presence was union surveillance.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities as set forth in section III, above, occurring in connection
with its operations as set forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent engaged in the unfair labor practices set forth
above, the Recommended Order will direct Respondent to cease and desist there-
from and to take certain affirmative action to effectuate the policies of the Act.
Insofar as Respondent's violations of Section 8(a) (2) are concerned and in
view of the substantial assistance given by Respondent to Retail Clerks Union, I
will recommend that Respondent withdraw and withhold recognition from that
Union and refrain from dealing with it unless and until it shall have been certified
by the Board as the bargaining representative of Respondent's employees. I will
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also recommend that Respondent cease giving effect to the collective- bargaining
agreement with Retail Clerks Union, including its checkoff and union-security pro-
visions, which was executed on July 18, as well as to any superseding agreements,
renewals, extensions, or modifications thereof until Retail Clerks Union shall have
been certified by the Board as the collective-bargaining representative of the
employees concerned.50 I will further recommend, in view of the checkoff provision
of Respondent's contract with Retail Clerks Union, that Respondent refund to
employees all union dues and initiation fees deducted from their wages with interest
computed in the manner set forth in Seafarers International Union, 138 NLRB
1142, and that Respondent cease giving effect to any checkoff authorizations
executed by its employees in favor of Retail Clerks Union.
Any backpay found to be due to Harrison, whose discharge I have concluded
was violative of Section 8(a)(3) of the Act, shall be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall
include interest in the amount and manner provided for in Isis Plumbing & Heating
Co., 138 NLRB 716.
In view of the nature of the unfair labor practices engaged in by Respondent my
Recommended Order will contain broad cease-and-desist provisions.
Upon the basis of the findings of fact and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act
and is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Clerks Union and Meat Cutters Union are labor organizations within
the meaning of Section 2(5) of the Act.
3. In view of Respondent's postsettlement independent unfair labor practices the
Regional Director's order withdrawing his approval of the settlement agreement
executed by Respondent was proper.
4. By the conduct set forth in section III, H and I, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. By the conduct set foith in section III, D and E, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act.
6. By discharging David Harrison because of his activities on behalf of Meat
Cutters Union, Respondent engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and upon the entire
record in this case, I hereby issue the following:
RECOMMENDED ORDER
Nitro Super Market, Inc., its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Coercively interrogating employees concerning their, or other employees',
membership in, activities on behalf of, attitudes toward, attendance at meetings of,
or signing of cards for, Food Store Employees Union Local #347, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other
labor organization.
(b) Requesting employees to attend meetings of Food Store Employees Union,
Local #347, Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, or any other labor organization and report to it or its agents
what transpired at such meetings.
(c) Threatening employees with discharge or any other form of discipline if
they become members of Food Store Employees Union, Local #347, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other
labor organization, or sign cards authorizing Food Store Employees Union, Local
50 Nothing In the Recommended Order shall be construed as requiring Respondent to vary
the wage, hour, and other substantive features of its relationship with Its employees which
may have been established by Respondent in the performance of its collective-bargaining
agreement with Retail Clerks Union.
NITRO SUPER MARKET, INC. 521
#347, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, or any other labor organization to act as their collective -bargaining
representative.
(d) Threatening employees with discharge or any other form of discipline if
they disclose to agents of the National Labor Relations Board acts, conduct, or
conversations engaged in by it or any of its agents.
(e) Threatening employees with the closing of its store or the loss of any
economic benefits in the event that Food Store Employees Union, Local #347,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
or any other labor organization becomes their collective -bargaining representative.
(f) Engaging in, or attempting to engage in, or giving the impression that it
is engaging in, surveillance of the union activities of its employees.
(g) Giving assistance or support to any labor organization, by according it
exclusive recognition as the collective-bargaining representative of its employees
when said labor organization has not been designated as their collective -bargaining
representative by a majority of its employees in an appropriate unit or by executing
a collective-bargaining agreement containing a union-security provision with said
labor organization or by any other conduct proscribed by the Act.
(h) Giving assistance or support to any labor organization by recognizing it as
the exclusive bargaining representative of its employees during the pendency of a
question concerning the representation of its employees.
(i) Recognizing Retail Clerks Union Local 1059, Retail Clerks International
Association as the exclusive collective-bargaining representative of its employees
for the purpose of dealing with said labor organization concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or any other term or condition
of employment unless and until said labor organization shall have been certified
by the National Labor Relations Board as the exclusive collective-bargaining repre-
sentative of its employees in an appropriate unit.
(1) Giving any force or effect to its agreement with Retail Clerks Union Local
1059, Retail Clerks International Association entered into on July 18, 1965, or to
any extension, renewal, or modification thereof or supplement thereto, or to any
superseding agreement unless and until said labor organization shall have been
certified as aforesaid by the National Labor Relations Board.
(k) Continuing to give effect to checkoff authorizations executed by employees
in favor of Retail Clerks Union Local 1059, Retail Clerks International Association
and continuing to deduct from the wages of its employees union dues and initiation
fees pursuant to said checkoff authorizations.
(1) Discouraging membership in Food Store Employees Union, Local #347,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
or any other labor organization by discriminating against employees in regard to
hire and tenure of employment or any other term or condition of employment.
(m) In any other manner interfering with, restraining, or coercing employees
in the exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively Through representatives of their own choosing,
or to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the Act or to
refrain from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a con-
dition of employment in conformity with Section 8(a)(3) of the Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act.
(a) Withdraw and withhold all recognition from Retail Clerks Union Local
1059, Retail Clerks International Association as the collective-bargaining repre-
sentative of its employees for the purpose of dealing with said labor organization
concerning grievances, labor dispute, wages, rates of pay, hours of employment, or
other terms or conditions of employment, unless and until said labor organization
shall have been certified by the National Labor Relations Board as the exclusive
collective-bargaining representative of its employees in an appropriate unit.
(b) Refund to each of its present or former employees all money which may
have been exacted from them in the form of initiation fees and/or dues pursuant
to the terms of the checkoff authorizations executed by said employees in favor of
Retail Clerks Union Local 1059, Retail Clerks International Association in the
manner set forth in the section of this Decision entitled "The Remedy."
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Offer to David Harrison immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority, or other rights
or privileges, and make him whole for any loss of earnings he may have suffered
as a result of the discrimination practiced against him, in the manner set forth in
the section of this Decision entitled "The Remedy."
(d) Notify David Harrison if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary to determine the amount of backpay due under the terms of this Recom-
mended Order.
(f) Post at its premises copies of the attached notice marked "Appendix." 61
Copies of said notice, to be furnished by the Regional Director for Region 9 of the
National Labor Relations Board, after being duly signed by an authorized repre-
sentative of Respondent, shall be posted immediately upon receipt thereof and
maintained for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Decision, what steps Respondent has taken to comply herewith.52
61 If this Recommended Order is adopted by the Board, the words, " a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
In the notice In the further event that the Board 's Order Is enforced by a deciee of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order."
','In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate our employees regarding their member-
ship in, activities on behalf of, attitudes toward, attendance at meetings of,
or signing of cards for, any union.
WE WILL NOT request our employees to furnish information to us concern-
ing other employees' membership in, activities on behalf of, attitudes toward,
attendance at meetings of, or signing cards for, any union.
WE WILL NOT request any employee to attend a meeting of any union and
report to us what took place at that meeting.
WE WILL NOT threaten employees with discharge or with any other form of
discipline nor will we discharge or otherwise discipline employees if they
become members of any union or if they sign cards authorizing any union to
act as their collective-bargaining representative.
WE WILL NOT threaten employees with the closing of our store or with the
loss of any other benefit growing out of their employment with us in the event
that any union becomes their collective-bargaining representative.
WE WILL NOT spy upon, or give the impression that we are spying upon, any
union meeting attended by our employees, nor will we spy upon, or give the
impression that we are spying upon any, union activities engaged in by our
employees.
WE WILL NOT recognize any union, including Retail Clerks Union Local
1059, Retail Clerk International Association, as the exclusive collective-
bargaining representative of our employees nor will we enter into a collective-
bargaining contract with any union including Retail Clerks Union Local 1059,
NITRO SUPER MARKET, INC . 523
Retail Clerks International Association containing a provision requiring
employees to become members of that union as a condition of continued
employment unless that union has been freely chosen by a majority of our
employees as their collective-bargaining representative.
WE WILL NOT recognize any union including Retail Clerks Union Local
1059, Retail Clerks International Association as the exclusive collective-
bargaining representative of our employees or enter into a collective-bargaining
contract with any union, including Retail Clerks Union Local 1059, Retail
Clerks International Association when there is in existence a claim for recogni-
tion as the collective-bargaining representative of our employees made by
another union.
WE WILL NOT recognize Retail Clerks Union Local 1059, Retail Clerks Inter-
national Association as the collective-bargaining representative of our
employees until that union shall have been certified by the National Labor
Relations Board as the exclusive collective-bargaining representative of our
employees.
WE WILL NOT enforce or in any way give effect to our collective-bargaining
contract with Retail Clerks Union Local 1059, Retail Clerks International
Association or to any extension, renewal, or modification of that contract or
to any supplement to that contract until that union shall have been certified
by the National Labor Relations Board as the exclusive collective-bargaining
representative of our employees.
WE WILL NOT continue to give effect to checkoff authorizations executed by
our employees in favor of Retail Clerks Union Local 1059, Retail Clerks
International Association, and WE WILL not continue to deduct from the
wages of our employees union dues and initiation fees in accordance with
those checkoff authorizations.
WE WILL NOT discourage membership in, or activities on behalf of, Food
Store Employees Union Local #347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or in any other union by discharging
or laying off or otherwise disciplining any employee or by discriminating
against any employee in any other manner in regard to his hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed them by the National
Labor Relations Act.
WE WILL withdraw and withhold all recognition from Retail Clerks Union
Local 1059, Retail Clerks International Association as the collective-bargaining
representative of our employees until that union has been certified by the
National Labor Relations Board as the exclusive bargaining representative of
our employees.
WE WILL refund to all our present and former employees all money exacted
from them in the form of union initiation fees and dues in accordance with
checkoff authorization executed by our employees in favor of Retail Clerks
Union Local 1059, Retail Clerks International Association.
WE WILL offer to David Harrison immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination practiced against him.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of Food Store Employees Union, Local #347, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other
union except to the extent that this right may be affected by the provision of the
National Labor Relations Act.
NITRO SUPER MARKET, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-Notify David Harrison if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Room
2033 , Federal Office Building, 550 Main Street , Cincinnati , Ohio 45202 Telephone
684-3627.
Dale Irwin , Woody Irwin , and Granville E. Wafford d /b/a Irwin &
Wafford and Food & Drug Clerks Local 1092, affiliated with
Retail Clerks International Association , AFL-CIO. Case 36-
CA-1488. October 926,1966
DECISION AND ORDER
On July 20, 1966, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Decision and a supporting
brief, and the Charging Party filed exceptions and a 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 powers in connection with his case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner 's Recommended Order.]
[The Board further ordered that the complaint be dismissed inso-
far as it alleges violations not specifically found.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner James R. Webster in Portland,
Oregon , on May 12 and 13 , 1966 , on a complaint of the General Counsel and
answer of Dale Irwin , Woody Irwin , and Granville E. Wafford d/b/a Irwin &
Wafford , herein called Respondent . The complaint was issued on March 28, 1966,
upon a charge filed on January 19, 1966 , and amended on March 11 , 1966. The
complaint alleges that the Respondent terminated employee George Volk on or
about February 10, 1966 , and threatened , restrained , and coerced employees , thereby
violating Section 8(a) (1) and (4) of the National Labor Relations Act, as amended,
herein called the Act.
161 NLRB No. 43.