Normandy Square Food Basket, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1967

163 N.L.R.B. 369 (N.L.R.B. 1967)

NORMANDY SQUARE FOOD BASKET
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Teamsters , Chauffeurs , Warehousemen and Helpers
Local Union No. 631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America , as the exclusive representative of all our
employees in the appropriate bargaining unit at our
Las Vegas and Henderson, Nevada, stores, or
unilaterally change the wages , hours, rates of pay, or
other terms or conditions of employment of such
employees without prior consulation with the above-
named Union, or any other union which they may
select as their bargaining representative. The
bargaining unit is:
All long-haul and short-haul drivers employed by
us in the Las Vegas area, excluding all
supervisors as defined in the Act.
WE WILL reestablish our prior system of
transporting dry groceries purchased in Los Angeles
from Certified Grocers to our stores in the Las Vegas
area by use of our own employees ; we will offer
immediate and full reinstatement to Elmer Conn,
Jack Shaffer , and Joseph Burleson to their former or
substantially equivalent position ; we will make each
of these drivers whole for any loss of pay they may
have suffered as the result of their discharge on
March 5, 1966, in the manner described in the Trial
Examiner's Decision.
WE WILL bargain , upon request , with Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union
No. 631, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
as the exclusive bargaining representative of our
employees in the appropriate bargaining unit with
respect to wages , hours , and other terms and
conditions of employment.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above - named Union or any other labor organization.
ADELSON, INC., D/B/A FOOD
FAIR STORES, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United States
of their 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.
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, 10th Floor,
Bartlett Building 215 West Seventh Street , Los Angeles,
California 90012, Telephone 688-5850.
369
Normandy Square Food Basket , Inc. and
Retail Clerks and Mangers Union Local
1357, affiliated with Retail Clerks Inter-
national Association , AFL-CIO. Case 4-
CA-3988
March 14,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 17, 1966, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief. The General Counsel filed a brief
in general support of the Trial Examiner's Decision,
but also filed cross-exceptions to portions of the
Decision and a supporting brief in which the
Charging Party joined. The Respondent also filed an
answering brief to the General Counsel's cross-
exceptions.
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.
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 the case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner.
I Chairman McCulloch does not find it necessary to decide
whether the lessor and lessees herein are joint employers. He
would assert jurisdiction on the theory expressed in Trade Winds
Motor Hotel & Restaurant , 140 NLRB 567. Here, as in Trade
Winds, the enterprises , although separately owned and operated,
are held out to the public as a single , integrated enterprise,
occupy a common situs, serve essentially the same class of
customers , and supplement each other. Due to the great amount
of business done by the Mart, the impact exerted upon commerce
by a labor dispute at one of th6 lessees in the Mart would be much
greater than that exerted upon commerce by a labor dispute at a
separately located retail business . Grand Central Liquors, 155
NLRB 295, 298.
2 The General Counsel excepted to the Trial Examiner's failure
to find that Al Lipkin was an agent of the Respondent. Inasmuch
as the record shows that at the time of the formation of
Respondent Corporation Al Lipkin was designated as its
president , and as Lipkin' s own testimony at the Pennsylvania
Labor Relations Board hearing on March 28, 1966, disclosed that
he still occupies that position , we find that at all material times Al
Lipkin was an agent of the Respondent , and that the unfair labor
practices committed by him are attributable to the Respondent.
We also hereby correct the Trial Examiner' s inadvertent failure
to grant the "Joint Motion To Amend Stipulation Of The Parties
Known As General Counsel's Exhibit No. 4."
163 NLRB No. 45
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Normandy Square
Food Basket, Inc., Philadelphia, Pennsylvania, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, with the following
modifications.
1. Substitute for the fourth indented paragraph in
the notice, the following:
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, loin, or assist Retail Clerks and Managers
Union Local 1357, affiliated with Retail Clerks
International Association, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any
or all such activities, except to the extent that
such rights may be affected by an agreement
requiring membership in a labor organization as
a condition of employment, as authorized in
Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959.
2. Insert after the fifth indented paragraph in the
notice, the following:
The appropriate unit is: All selling and
nonselling employees at Respondent's
store in the Normandy Square Mart,
including regular part-time employees, but
excluding professional employees, guards,
and supervisors as defined in the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR M . GOLDBERG , Trial Examiner : Upon an
amended charge filed on June 15, 1966, by Retail Clerks
and Managers Union Local 1357, affiliated with Retail
Clerks International Association , AFL-CIO (herein called
RCIA or the Union), the complaint herein issued on
July 28 , 1966 , alleging that Normandy Square Food
Basket , Inc. (herein called Food Basket or Respondent),
violated Section 8( a)(1) and (5) of the National Labor
Relations Act, as amended (herein called the Act). The
alleged 8(a)(1) violations included interrogation of
employees as to their protected activities , threatened loss
of employment if they supported the Union, and
' Prior to institution of the instant proceedings , the Union had
taken its complaint against Respondent to the Pennsylvania
Labor Relations Board of the Commonwealth of Pennsylvania A
hearing was held before a Trial Examiner of the state agency
However , before a decision issued in that proceeding the Director
solicitation of the assistance to the employees in revoking
their union designations . Respondent was alleged to have
violated its duty to bargain by its refusal to recognize the
Union on and after February 24, 1966, despite the Union's
designation as bargaining representative by a majority of
the employees in a unit appropriate for bargaining.
Respondent denied all the unlawful acts alleged.
Additionally , Food Basket denied that its operations lie
within the jurisdiction of the National Labor Relations
Board (herein called the Board).
All parties participated in the hearing at Philadelphia,
Pennsylvania, on September 1, 1966, and were afforded
full opportunity to be heard, to introduce evidence, to
examine and cross-examine witnesses , to present oral
argument , and to file briefs.' Oral argument was waived
and briefs were filed by General Counsel and the Charging
Party.
Based upon the entire record in the case , my reading of
the briefs , and from my observation of the witnesses and
their demeanor , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, Normandy Square Food Basket, Inc., a
Pennsylvania corporation, operates the grocery de-
partment in the Normandy Square Mart, Philadelphia,
Pennsylvania (herein called Mart ), which is the trade name
of Bristol Associates , Inc. (herein called Bristol).
Some years ago merchants doing business as tenants of
the Bristol Farmers Market were forced out of those
premises and at that time banded together with others who
had not been in the farmers market to form Bristol . Bristol
erected the present Mart and leased space therein to over
65 merchants , including Respondent ' s predecessor,
Nazareth Meat Company. Nazareth in time changed its
name to Falk's Food Basket of Philadelphia, Inc. When
Falk gave up the grocery operation in the Mart in 1963,
four individuals then associated with the Mart or with
other merchants doing business in the Mart , formed the
Respondent corporation and took over the grocery
department . Each of the four acquired a 25 percent
interest in Respondent and became its officers as well. Of
the four, only Martin (Marty) Lipkin, who had worked
theretofore for his brother Albert at Aled Farms, the
Mart's meat department , devoted his efforts entirely to the
Food Basket . Albert (Al) Lipkin remained as owner and
operator of Aled , Milton Olin ran the Mart 's luncheonette,
Dee Jay, and Ronald Raiton continued as executive
officers of Bristol and the Mart. Each of these four persons
owns a small number of shares in Bristol and Raiton, Olin
and Al Lipkin are officers of Bristol.
The Mart itself is a large structure in which individual
merchants lease space for various retail enterprises. The
Mart is identified by large signs on the roof and a parking
lot. Many of the merchants whose rented space abuts an
exterior wall have signs outside their leased area
advertising their own business name. Food Basket has a
large sign on the Mart roof and several merchants have
their business name on the building wall. Each of the
stores or departments is numbered . The store number
appears on many of the exterior as well as the interior
for Region 4 issued the instant complaint and the state case
ended By stipulation of the parties the transcript of proceedings
before the Pennsylvania Labor Relations Board, together with
exhibits thereto, were introduced as evidence in the instant
proceeding
NORMANDY SQUARE FOOD BASKET 371
signs in the Mart and is the sole means of identification
used in the newspaper advertisements placed by the Mart.
The form lease entered into by all tenants of the Mart
provides , inter alia , that all of the lessees' employees shall
at all times be clean , orderly, and of attractive appearance.
Subject to being considered in default under the lease,
lessees must remove any employee found objectionable by
the Mart because of conduct , appearance , or behavior.
The Mart must , under the lease, be open to the public a
minimum of 27 hours per week, hours to be determined by
the Mart , and the merchants are required to have their
"stalls" ready for business during those hours. The Mart
must approve all alterations and fixtures supplied by the
tenants. Settlement of customer complaints by the Mart
are binding upon the lessees and the Mart is given the sole
right to determine whether customer cash refunds or
exchanges are to be made. The lease requires that
merchandise which is not of first quality shall be so
identified and that the merchants ' sales efforts and
methods for attracting customers shall meet requirements
set by the Mart . Each merchant "acknowledges that the
reputation of the Mart is dependent on proper business
practices of the highest standards by" the lessee. Should a
merchant , after notice from the Mart, continue sale of
prohibited merchandise or merchandise which has been
misrepresented as to quality , weight , or size, the lessee
shall be considered in default under the lease. The Mart
undertakes to furnish light , heat , rubbish removal from
and broom cleaning of the aisles , and toilet and washroom
facilities . The lease reserves to the Mart the right to
formulate special promotions in which the merchants are
required to participate . In addition , the lessees are obliged
to cooperate in a weekly advertised sale and furnish for the
sale five promotional items at or below cost.
Bristol employs a General Manager2 Paul Shuster, who
determines which items of merchandise are to be featured
in the weekly newspaper advertisements placed in the
name of the Mart. The lease provides that the merchant
shall pay to the Mart a percentage of his sales to cover the
cost of such advertising . In the event a store runs out of
sales merchandise the customer is given a "raincheck"
for the goods at the sale price which is issued in the name
of the Mart.3 A number of merchant tenants place their
own newspaper advertisements.
A number of stores in the Mart display signs reading,
"satisfaction guaranteed-Normandy Square Mart."
As a promotional device, all merchants give "auction
money" with each transaction in a fixed proportion to the
sale. Each Saturday an auction sale is held at the Mart
during which standard merchandise paid for by Bristol
from rental income is bid upon and may be purchased with
auction money only. The Mart stresses the use of auction
money in signs posted in the Mart and in its newspaper
advertising . Respondent 's witnesses compared the
issuance of auction money to the widespread use of
trading stamps.
There are five or six entrances into the Mart rather than
to individual leased areas. These general entrances are
those generally used by the public. While many of the
tenants whose space abuts on exterior walls have their
own doors opening to the outside , many of these are
blocked by merchandise or are otherwise barred.
' In addition , Bristol employs 15 people as bookkeepers,
porters, maintenance men and for security purposes Bristol's
accountant helps merchant tenants who have problems
concerning payroll deductions or employee tax forms Each
merchant has his own payroll
' Employee James Bowen testified to the use of rainchecks and
The Mart maintains a loudspeaker system which is used
by Mart Manager Shuster to announce sales and store
hours, to page parents of lost children , and for other public
service announcements.
Food Basket owns shopping carts which are advertised
by Normandy Square Mart as being for customer
convenience throughout the Mart . However, Food Basket
alone provides and pays the labor necessary to retrieve the
carts from the parking lots and surrounding neighborhood.
Albert Lipkin is the sole owner of Aled Farms, Inc.,
purveyor of fresh meats in the Mart . Prior to formation of
Respondent, Marty Lipkin worked for Al and on occasion
still works at Aled. Respondent Food Basket purchases
bacon and hot dogs from Aled. Employee James Bowen
testified that he had seen Al Lipkin at the Food Basket
give instructions to Marty who would "snap." As noted Al
Lipkin is an officer of both Food Basket and Bristol.
The World Wide Delicatessen is located in the Mart
next to Aled Farms. Al Lipkin's 21-year old son Edward, a
full-time college student , is World Wide's sole
stockholder. However, Al Lipkin pays the employees at
World Wide and directs employees while on World Wide's
payroll to perform services at Aled. It was Al Lipkin who
promised World Wide ' s manager a bonus for increased
sales. Edward , who was 18 when World Wide commenced
business , spends his working time at Aled rather than at
the delicatessen.
As hereinafter found, Al Lipkin, on the premises of both
Food Basket and World Wide, interrogated employees
concerning their union activities and threatened an
employee with loss of his jobs at Food Basket and World
Wide because of his union adherence. It was Al Lipkin
who prepared a form letter for employees to use in
revoking their RCIA authorizations and Al instructed
Raiton in his dealings with union representatives.
During its fiscal year ending April 30 , 1966, Food Basket
had gross sales of $394 ,000. Bristol 's income from all
sources during that period was $330 ,000 and it was
stipulated that Aled 's sales came to $125,000 . No figure for
World Wide 's sales appears in the record. However, based
on employee testimony , the delicatessen 's sales were'
between $800 and $1 ,000 per week.
With respect to legal jurisdiction , during its past fiscal
year, Food Basket purchased groceries and other goods
valued at $40,000 from Thriftway Foods, Inc., King of
Prussia, Pennsylvania, which goods were received by
Thriftway Foods, Inc., from States other than
Pennsylvania. Such an amount of interstate operation,
being more than de minimis , is sufficient to establish legal
jurisdiction in the Board.
Food Basket ' s sales do not meet the Board's
jurisdictional standard of annual sales of $500 ,000 for the
assertion of jurisdiction over retail enterprises. Carolina
Supplies and Cement Co., 122 NLRB 88. General Counsel
argues that the combined operations of Bristol, Food
Basket, and the other merchant tenants should be
considered in determining whether the Board's
discretionary jurisdictional standards are met.
While there is no effort at concealment of the multiple
ownership of the various merchantile units, I find that the
operation of the Mart , as a whole, is held out to the public
as an integrated enterprise . I base this conclusion on the
one was introduced into evidence Respondent denied that the
device was in current use Shuster testified that rainchecks had
not been used for a number of years However, in a Mart
advertisement appearing in the March 10, 1966 , issue of the
Bucks County Courier and Bucks County Times rainchecks are
prominently mentioned
295 -269 0-69-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joint advertising under the Normandy Square Mart name;
the Mart's guarantee posted throughout the building of
customer satisfaction as to all merchandise and the Mart's
authority to adjust customer complaints; the use of auction
money issued by all merchants and redeemable only at a
Mart conducted auction; the advertised use of rainchecks
by all merchants which are issued in the Mart's name;
and the general use by customers of common entrances to
reach the selling area. Further, the shopping carts owned
and serviced by Food Basket are advertised by the Mart as
being for customer convenience throughout the Mart.
These factors, coupled with the Mart's authority under the
lease to veto the sale of unacceptable merchandise, to
control the marking of merchandise, and, to regulate the
merchant tenants' sales methods, demonstrate that the
Mart exercises substantial control over the operational
policies of the lessees. Moreover, by setting the days and
hours the merchants must operate and by policing the
dress, appearance, and conduct of their employees, the
Mart also exercises control over the labor policies of the
tenants. Accordingly, I find that Bristol and its tenants are
associated as joint employers in a common enterprise,4
and that it is appropriate to combine the gross revenue of
the Mart and the merchants therein for jurisdictional
purposes. David Gold and Harvey Tesler d/b/a Grand
Central Liquors, 155 NLRB 295; Trade Winds Motor Hotel
& Restaurant, 140 NLRB 567.5
I therefore conclude and find that the combined
operations of the Mart, Food Basket and the other tenants
affect commerce within the meaning of Section 2(7) of the
Act, that their gross volume of business meets the Board's
jurisdictional standards, and that it will effectuate the
policies of the Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks and Managers Union Local 1357, affiliated
with Retail Clerks International Association , AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union Organizes a Majority of the Employees and
Demands Recognition in an Appropriate Unit
1. The unit
The complaint alleges, the answer did not controvert,
and I find that at all times material herein, all selling and
nonselling employees at Respondent's store in the
Normandy Square Mart, including regular part-time
employees, excluding guards, professional employees and
supervisors as defined in the Act, have constituted a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
Though, I have found that for purposes of meeting the
Board's jurisdictional standards the operations of the
Mart, Food Basket, and the other merchant tenants should
' Mart General Manager Shuster testified that merchant
tenants comprised 65 percent of the Mart's stockholders
' As noted, Al Lipkin exercised substantial control over and
participated in the labor policies of Food Basket Al Lipkin
threatened an employee with loss of employment uith World
Wide Delicatessen because of that employee' s union activities at
Food Basket Al Lipkin is the sole proprietor of Aled Farms and
owns a 25-percent interest in Respondent Under all the
circumstances, I find that Food Basket and Aled constitute a
single employer for jurisdictional purposes Overton Markets, Inc ,
142 NLRB 615
be treated as a single enterprise, it does not follow that the
employees of all must be included in a single unit. John
Hammonds and Roy Winegardner, Partners, d/b/a 77
Operating Company, d/b/a Holiday Inn Restaurant, 160
NLRB 927.
2. The Union's majority
Between February 15 and 24, 1966,6 seven of the eight
employees in the bargaining unit authorized the RCIA to
act as their collective-bargaining agent. At the proceedings
before the Pennsylvania Labor Relations Board, Union
Representatives Joseph Kelly and Peter Marks identified
the signed authorizations as those which they obtained
during the organizing campaign. In addition, five of the
seven card signers' identified and acknowledged their
signatures on the authorization cards. Moreover, Ronald
Raiton, Respondent's vice president and its representative
at the proceedings before me, stated on the record,
.. there was no problem about if the employees signed
the cards or not." Accordingly, I find that at all times
material herein, the Union was designated as the
collective-bargaining representative by a majority of
Respondent's employees in an appropriate unit.
On February 24 the Union sent a telegram to
Respondent demanding recognition in the appropriate unit
and requesting that arrangements be made by March 2 for
the Union to prove its majority status.
B. Interference, Restraint , and Coercion
1. Interrogation and threats
When James Bowen, an employee of both Food Basket
and World Wide Delicatessen arrived for work on
February 24, Al Lipkin announced that the Union's
telegram had been received and asked if James had signed
a union authorization card. James acknowledged that he
had done so and A] then asked if James knew which other
employees had signed. When James denied such
knowledge, Al said it didn' t matter as he already knew
their identity from the Union's telegram. This was not true
as the telegram contained no names.
Al Lipkin further warned James that if the Union were
successful, he would shut down the Food Basket and fire
all the employees. Later that day Marty Lipkin also asked
James if he had signed for the Union.
The following day, February 25, Marty Lipkin advised
James Bowen that he was preparing forms for the
employees to use to revoke their union authorizations.
That evening, while James was working at World Wide,
Al Lipkin on several occasions said if James did not sign
such a revocation he would be looking for two jobs. James
testified that while he thought Al might have been joking
the first time this was said, he had no doubt that Al was
serious when the threat was repeated. Al said also that
Sandra Granrath would be looking for a new job if she did
not sign the revocation form.8
" Unless otherwise noted, all dates hereafter are in 1966
' Michael Bowen, James Bowen, John Quinlan, Edith H
Walter, and Sandra M Granrath
" The foregoing is based on testimony of James Bowen in the
record made at 'the State Labor Board However, James testified
as well before me and I found him a credible witness Al Lipkin
did not appear at the hearing before me Before the State Trial
Examiner, Al testified to having possibly said to the World Wide
manager in James' presence that James may be looking for two
new jobs Al as well testified that he might have told James the
work force would be reduced if the Union came in
NORMANDY SQUARE FOOD BASKET 373
John Quinlan first denied having signed a card when
asked by Al Lipkin. At that time Al told Quinlan that if he
joined the Union, Respondent did not want him. Later,
Quinlan admitted to both Al and Marty Lipkin that he had
in fact signed a union authorization.
Al Lipkin asked Edith Walter on Friday, February 25,
why she had signed for the RCIA after first ascertaining
that she had done so. Lipkin admitted this interrogation
and further that he asked Walter if she would be willing
to go out on the picket line, for, "because even if we do
recognize the union, I don't know if we would sign a con-
tract with the union."
That same day, Sandra Granrath was asked by Marty
Lipkin whether she had designated the Union. Later Al
Lipkin also spoke to Granrath and while he told her to
make up her own mind, he also said that if the Union got in
the employees would probably go out.
Michael Bowen, James' brother, was also spoken to by
Marty Lipkin on the day following the Union's demand for
recognition.
I find that by the foregoing acts of interrogation , threat
of discharge, and implied refusal to bargain, Respondent
violated Section 8(a)(1) of the Act. Griffith Ladder
Corporation, _159 NLRB 175; Johnnie's Poultry Co., 146
NLRB 770, 775. enforcement denied 344 F.2d 617 (C.A. 8).
2. The retraction letters
Though not requested to do so by any employees, Al
Lipkin prepared and had duplicated a letter addressed to
the Union's secretary-treasurer, reading:
After due re-consideration, I have changed my mind
and do not want you or your union to bargain in my
behalf. I will do my own barganing with Normandy
Square Food Basket, Inc., Philadelphia,
Pennsylvania.
Below was a line for signature.
Al Lipkin testified in the State hearing that he had
asked one or two of the employees how they felt about his
preparing a letter for them to sign rescinding their union
authorization and had gotten the impression they would
be willing to sign such a letter.
The letters were given to Marty Lipkin by Al and during
the day on Saturday, February 26, Marty gave copies to
James Bowen and John Quinlan, advising that they did not
have to sign if they did not wish to do so. Both signed.
Michael Bowen first asked an RCIA representative what
the effect of his signing would be. After being told it would
not matter, Michael obtained a letter from Marty Lipkin,
which he signed because as he testified, " ... I didn't
want to lose my job."
Edith Walter noticed the blank letters on Marty's desk
when she went to his office to obtain change for the cash
register. Marty told her to read the letter and determine for
herself whether she wished to sign. Mrs. Walter signed the
letter and gave it to Marty.
Sandra Granrath was upset after her conversation with
Al Lipkin on Friday and later asked RCIA Representative
Marks how she could withdraw her authorization to the
Union. Marks told her to send a letter to the Union stating
the request. The following morning when Mrs. Granrath
reported for work, still in an emotionally upset condition,
she noticed the letters in Marty's office, and determining
that they were just the thing she would have written
herself, signed after Marty asked her to do so.
I find that by soliciting employees to withdraw their
union authorizations and by its preparation of the
revocation letters, Respondent violated Section 8(a)(1) of
the Act. N.L.R.B. v. Yale Manufacturing Company, Inc.,
356 F.2d 69, 72-73 (C.A. 1); Heights Funeral Homes, Inc.,
159 NLRB 723. The assistance afforded Granrath violated
the Act, notwithstanding her prior intent to withdraw from
the Union, for it interferred with her right not to complete
the withdrawal process if she chose not to do so.
Cumberland Shoe Company, 160 NLRB 1256.
C. The Unlawful Refusal to Bargain
1. The Union again demands recognition and is rebuffed
After Marty Lipkin successfully solicited employee
signatures to the revocation letters, he returned the letters
to Al Lipkin who in turn passed them on to Ronald Raiton.
Al, who was leaving for a vacation, instructed Raiton to
mail the letters to the Union. The following Monday,
Raiton was to telephone Young, the Union's secretary-
treasurer, ask if the letters had been received, and to tell
Young there was "no further need for [Food Basket] to do
anything as these employees are not represented by his
union."
Raiton did as Al Lipkin instructed him to do but Young
was able to convince Raiton to meet with several RCIA
representatives at the Mart on March 2. After the Union's
demand for recognition was restated Raiton said he did not
know whether RCIA represented the employees and was
handed the authorization cards which he examined. Raiton
told the union representatives he would file a petition in
bankruptcy before recognizing their organization.
Thereafter, Raiton asked the RCIA spokesman if he would
accompany Raiton to the Food Basket where they would
ask each employee if he wished union representation.
Kelly of the Union agreed to do so if Raiton would
guarantee recognition in the event a majority of the
employees opted for the Union. Raiton then withdraw his
offer of an informal poll and requested an election.
Thereafter, the Union initiated these proceedings.
2. Conclusions concerning Respondent's refusal to
recognize and bargain with the Union
I have heretofore found that on February 24 the Union
demanded recognition in a unit appropriate for the
purposes of collective bargaining. I have further found that
on that day the Union represented a clear majority of the
employees in the unit who had signed authorization cards
to it to act as their bargaining agent . Thereafter,
Respondent coercively interrogated employees about their
own and the union activities of other employees;
threatened employees with loss of employment if the
Union was successful or the employees did not revoke
their union authorization cards; and prepared and
solicited employee signature of a form letter revoking their
designation of the Union as bargaining representative.
Under all the circumstances, in view of Respondent's
unlawful course of conduct, I "find that the Respondent's
failure to accord recognition to the Union was not in good
faith, but rather was born of a desire to gain time to
subvert the Union's majority and to thwart unionization
and therefore violated Section 8(a)(5)." Quality Markets,
Inc., 160 NLRB 44; River Togs, Inc., 160 NLRB 58.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations described in section I, above, have a close,
intimate, 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 of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the purposes of the Act.
To remedy Respondent's violation of Section 8(a)(5) my
recommended order shall require it to bargain upon
request with the Union and to incorporate any agreement
reached in a writing to be signed by the parties.
Respondent's unfair labor practices indicate an attitude
of opposition to the purposes of the Act generally.
Accordingly, a broad cease-and-desist order is necessary
and appropriate to effectuate the policies of the Act.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Normandy Square Food Basket, Inc., Respondent
herein, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in certain described conduct referred to
hereinabove, in section III hereof, Respondent interfered
with, restrained, and coerced its employees in the exercise
of rights guaranteed to them by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. All selling and nonselling employees at Respondent's
store in the Normandy Square Mart, including regular
part-time employees, excluding guards, professional
employees and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. On and at all times since February 24, 1966, the
Union has been the exclusive bargaining representative of
the employees in the aforesaid collective-bargaining unit.
6. By refusing on and after February 24, 1966, to
recognize and bargain collectively with the Union as the
exclusive bargaining representative of the employees in an
appropriate bargaining unit , Respondent engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) 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.
RECOMMENDED ORDER
The Respondent, Normandy Square Food Basket, Inc.,
Philadelphia, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees concerning their
union membership, activities, and desires and that of
others; threatening employees with loss of employment if
the Union is successful or the employees do not revoke
their union authorizations; preparing and soliciting
employee signature to revocations of their designation of
the Union as their bargaining representative; or in any
other manner interfering with, restraining, or coercing
employees in the exercise of rights guaranteed by the Act.
(b) Refusing to recognize and bargain collectively with
Retail Clerks and Managers Union Local 1357, affiliated
with Retail Clerks International Association, AFL-CIO, as
the exclusive bargaining representative of the employees
in the appropriate unit set forth in the conclusions of law
above.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Retail Clerks and Managers Union Local 1357,
affiliated with Retail Clerks International Association,
AFL-CIO, as the exclusive bargaining representative of
the employees in the appropriate unit set forth in the
conclusions of law above.
(b) Post at its Philadelphia, Pennsylvania, store copies
of the attached notice marked "Appendix A."9 Copies of
said notice, to be furnished by the Regional Director for
Region 4, after being duly signed by an authorized
representative of the Respondent, shall, be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps to be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 4, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply therewith.10
" In the event that 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 decree 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 Respondent has taken to comply herewith "
APPENDIX A
NOTICE
Pursuant to a 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 all employees that:
WE WILL NOT ask our employees about their union
membership , activities , or desires in order to force
them to give up the Union.
WE WILL NOT threaten our employees that if the
Union is successful in its organizing campaign the
employees will lose their jobs.
WE WILL NOT assist our employees in revoking
their union authorizations and threaten them with
discharge for failure to do so.
WE WILL NOT in any other manner interfere with
the rights of our employees under the law, or force
them to give up any of their rights under the law.
WE WILL bargain with Retail Clerks and Managers
Union Local 1357, affiliated with the Retail Clerks
International Association , AFL-CIO, whenever the
Union asks us to, to work out a written union contract.
TUCK SPRING & STEEL, INC.
All of our employees are free to become, remain, or
refrain from becoming or remaining , members of Retail
Clerks and Managers Union Local 1357, affiliated with
Retail Clerks International Association , AFL-CIO, or
any other labor union.
NORMANDY SQUARE FOOD
BASKET, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1700 Bankers
Security Building, Walnut & Juniper Streets,
Philadelphia, Pennsylvania 19107, Telephone 597-7617.
Tuck Spring & Steel , Inc. and Lodge
No. 1434 , International Association of
Machinists and Aerospace Workers,
AFL-CIO . Case 19-CA-3277.
MARCH 14,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 4, 1966, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging 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. The
Trial Examiner also found that Respondent had not
committed certain other alleged unfair labor
practices, and recommended that these allegations
be dismissed. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting 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.
The Board has reviewed the rulings of the Trial
Examiner 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 the brief, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
' In the absence of exceptions, we adopt pro forma the Trial
Examiner's recommendations that the complaint be dismissed
insofar as it alleges that Respondent violated Section 8(a)(5), and
violated Section 8(a)(3) in terminating Daniel Guff, we also adopt
pro forma his Conclusions of Law 3, 4, and 5
ORDER
375
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Tuck Spring & Steel,
Inc., Missoula, Montana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint,
insofar as it alleges unfair labor practices other than
as found herein, be, and it hereby is, dismissed.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: On
December 13, 1965, Lodge No. 1434, International
Association of Machinists and Aerospace Workers,
AFL-CIO, herein called the Union, filed a charge against
Tuck Spring & Steel, Inc., herein called the Respondent,
alleging violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq., herein called the Act. The complaint, issued on
January 26, 1966, based on said charge, alleged that the
Respondent had discharged employees, one on
December 3 and one on December 6, 1965, and had since
refused to reinstate said employees to their former or
equivalent positions because of their membership in, or
activities on behalf of, the Union and because they
engaged in concerted activities for mutual aid and
protection. The Respondent's answer, filed on March 22,
1966, admitted the discharge of one employee on
December 3, 1965, alleged that the other employee was
laid off on December 6, 1965, and denied the remaining
allegations regarding the cause of discharge.
Pursuant to notice, a hearing was held at Missoula,
Montana, before me, on May 26, 1966. At the opening of
the hearing, the parties stipulated on the facts of
commerce. After all the evidence was in, the General
Counsel made a motion to add an allegation of violation of
Section 8(a)(5) of the Act. The motion was granted.'
No request was made for time in which to argue orally or
to file briefs. The hearing was closed with the
understanding that the Respondent might move to reopen
for the purpose of taking the disposition of a witness who
at the time was out of State.
On August 5, 1966, upon motion of the Respondent to
reopen and take the deposition of one Harold Lake, I
issued an order reopening the hearing and ordered the said
deposition to be taken. The deposition was taken on
August 16, 1966, and a copy thereof was filed with the
Trial Examiner on September 1, 1966. It is now ordered
that the hearing in the above entitled case be, and the
same is, hereby closed.
From my observations of the witnesses and upon the
entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find as
follows: Respondent is, and at all times material herein
' N L R B v Pecheur Lozenge Co , Inc, 209 F.2d 393 (C A. 2)
163 NLRB No. 50