Payless

National Labor Relations Board - Board Decisions

Mar 28, 1966

157 N.L.R.B. 1143 (N.L.R.B. 1966)

PAYLESS 1143
Counsel for the Respondent argues that since General Counsel's witness , Ireland,
was permitted to testify to the same conversation , Cincotta should have been similarly
allowed. The argument is without merit, however, since counsel for the Respondent
raised no objection to the testimony of Ireland but counsel for the General Counsel
did raise timely objection to the testimony of Cincotta. Moreover, it is obvious that
Ireland's testimony concerned a conversation different from the one mentioned by
Cincotta. Ireland's testimony concerned "a conversation that took place on March 9
between Coughlin and Lienster . Cincotta's conversation was with Coughlin several
days later and involved Dilger.
Priced -Less Discount Foods , Inc., d/b/a Payless and Retail Clerks
Union , Local 1552 , Retail Clerks International Association,
AFL-CIO. Cases Nos. 9-CA-3359 and 9-CA-3453. March 28,
1966
DECISION AND ORDER
On August 19, 1965, Trial Examiner Lowell Goerlich 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 Deci-
sion. The Trial Examiner also found that Respondent had not
engaged in certain other alleged unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
limited exceptions thereto and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Fanning 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, the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. The Trial Examiner found, and «e agree, that Respondent vio-
lated Section 8(a) (1) by its coercive interrogation of employees
Tobias and Jones, and by its promise ' of a benefit to Jones if he
refrained from further union activities.'
2. The Trial Examiner found, and we agree, that Respondent vio-
lated Section 8(a) (1) by its widespread solicitation of the withdrawal
of union authorization cards, and assistance to various employees in
withdrawing their union authorization cards. We,also agree with the
'The Respondent excepts to these findings, but offers no argument in support thereof.
157 NLRB No. 95. .
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner's further finding that such misconduct, initiated after
the Union's bargaining request, was designed to undermine the Union
by unlawful means, and, therefore, that the Respondent had no good-
faith doubt as to the majority status of the Union when it refused
the Union's request for recognition.2 As stated by the Trial Examiner,
"it is idle to speak of good faith in an atmosphere of unlawfulness."
3. We agree with the Trial Examiner's finding, for the reasons
fully set forth by him, that on January 20, 1965, the date on which
the Union requested recognition, the Union had 24 valid authorization
cards for the purpose of determining the Union's majority status. We
disagree, however, with the Trial Examiner's finding that the unit
requested by the Union was inappropriate, and, therefore, that the
Union's request for collective bargaining did not give rise to any
obligation to bargain on the part of Respondent.
On January 20,1965. the Union requested recognition for all employ-
ees- at Respondent's Springfield, Ohio, store excluding meat depart-
ment and delicatessen employees; and it offered to prove its majority
status by a card check through an impartial third party. On Janu-
ary 25, 1965, Respondent refused such request on the asserted grounds
that it had a good-faith doubt as to the Union's majority, and that it
questioned the appropriateness of the unit, and requested a Board
election.
The unit requested is composed of all employees in the grocery, dairy,
and produce departments, excluding meat department and delicatessen
employees. The Trial Examiner found that this unit is inappropriate
on the basis of Schaeffer's,Prospect IGA Store ,3 where the Board held
that a storewide unit is the only appropriate unit in a retail food-
store where no union seeks to represent the meat department employees
separately? The Board has since held, however, that a separate unit
of grocery employees, excluding meat department employees, may be
an appropriate unit, and to the extent inconsistent with that holding,
overruled Schaeffer's.5 The Board held in Mock Road that, as in
other industries, the determination of the appropriate unit in the
retail food industry must rest upon analysis of all relevant factors,
rather than upon the limited criteria set forth in Schae ff er's.
Upon such analysis of all relevant factors, we find that a separate
unit of grocery employees, excluding meat department employees, is
appropriate here. There is no issue with respect to the appropriate-
ness of grouping together the employees of the grocery, dairy, and
a The Respondent 's prior unfair labor practices , set forth in paragraph 1, supra, also
lend support to this finding.
124 NLRB 1433, 1434.
The Trial Examiner also found that the delicatessen, as well as the meat department,
employees must be included in the overall store unit , and that such inclusion represented
a "substantial" variation between the proposed and the appropriate unit which vitiated the
bargaining demand.
e Mock Road Super Duper, Inc., 156 NLRB 983.
PAYLESS 1145
produce departments as an overall "grocery" unit. The only issues
are whether the meat department employees and the delicatessen
department employees may be excluded from Such overall unit. The
meat department is under separate supervision ; employs nine employ-
ees whose job classifications are journeymen meatcutters, apprentice
meatcutter, and meat wrapper;6 has a wage scale of $1.50 to $2.75
per hour, which is higher than that of employees in other depart-
ments; 7 and has no functional integration with any other depart-
ment. Moreover, there is neither a prior bargaining history nor a
labor organization seeking to represent the employees in the broader
storewide unit.8 Also, we take judicial notice of the fact that Respond-
ent's store in Springfield, Ohio, is in the same area as the store involved
in Mock Road, in Columbus, Ohio; and that the record in Mock Road
contains 12 area contracts between the Union and various employers,
10 of which excluded meat department employees. Upon the basis of
the foregoing factors, the additional factors relied upon in Mock
Road ,9 and upon the entire record herein, we find that the meat depart-
ment employees may appropriately be excluded from the overall
grocery unit. We reach a different conclusion, however, with respect
to the delicatessen employees. The delicatessen department employees
are under the supervision of the store manager as are the grocery
departments; perform similar work and have like working conditions;
and have a functional integration with the grocery departments.
Accordingly, the delicatessen employees are appropriately included in
the overall grocery unit.10 We find, therefore, that all employees at
Respondent's Springfield, Ohio, store, including delicatessen depart-
ment employees, but excluding meat department employees, constitute
an appropriate unit. `
As found above, on January 20, 1965, the date on which the Union
requested recognition, the Union had 24 valid authorization cards for
the purpose of determining the Union's majority status. With the
inclusion of the 4 delicatessen employees, there were 45 employees in
the appropriate unit on that date. We find, therefore, that on the date
the Union requested recognition, it represented a majority of employ-
ees in an appropriate unit, and such request was valid."
8.\ journeyman meatcutter serves an apprenticeship of 3 to 4 years.
a By comparison , all employees in the delicatessen department are paid $1 50 per hour.
8 As noted in Mock Road , the extent of organization may not be controlling under the
statute , but it may be considered as a factor in unit determination.
9In particular , we note here , as we did in Mock Road, that separate grocery units ap-
parently have become the general bargaining pattern of the retail foodstore industry, and
that recent Board cases have made it clear that a unit of less than all employees in a retail
store may be appropriate.
1° See Food Fair Stores , Inc, 138 NLRB 1, 7, where the Board included delicatessen
employees in a unit excluding meat department employees.
11 The union 's requested unit excluded the four delicatessen employees . However, this
variance between the unit requested and the appropriate unit is not so substantial as to
vitiate the bargaining demand or to excuse the duty to bargain See The Grand Food
Market, 139 NLRB 73, 89.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that Respondent engaged in widespread unfair labor
practices violative of Section 8(a) (1) at the sane time it was request-
ing that an election be conducted to determine the Union's majority
status. Such misconduct could only have the effect of destroying the
very' conditions needed in order for a fair election to be held. There-
fore, we are persuaded that Respondent had completely rejected the
collective-bargaining principle and had merely sought an election in
order to gain time within which to undermine the Union and dissipate
its majority. As the Union did represent a majority of employees in
the appropriate unit, under these circumstances only a bargaining
order can adequately restore as nearly as possible the situation which
would have existed but for the Respondent's unfair labor practices.
Accordingly, we shall order Respondent, upon request, to bargain with
the Union in the unit herein found appropriate.12
In view of our findings above, we shall modify the Trial Examiner's
Conclusions of Law and Recommended Order to accord with such
findings.
The Trial Examiner's Conclusions of Law are modified as follows :
1. Conclusion of Law No. 3 is modified to read as follows :
"3. All employees of the Respondent at its Springfield, Ohio, store,
including delicatessen employees, but excluding meat department
employees, guards, and supervisors as defined in the Act, constitute a
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act."
2. Conclusion of Law No. 5 is deleted.
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications :
[1. Renumber paragraph 1(b) as 1(c), and add the following new
paragraph 1(b) :
["(b) Promising employees benefits in order to discourage their
activity in the Union, or in any other labor organization." 13
[2. Renumber paragraph 1(c) as 1(d), and substitute the word
"other" for "like or related" in the first line of said paragraph.14
[3. Delete paragraphs 2 (a), (b), and (c), and substitute therefor the
following new paragraph 2 (a) :
P (a) Upon request, bargain collectively with the Union as the
exclusive representative of the employees in the above-described appro-
12 See N.L.R .B. V. Delight Bakery, Inc, 353 F. 2d 344, 346-347 ( C.A. 6) ; Hock Road
Super Duper, Inc., supra, and cases cited In the circumstances of this case , as in Mock
Road, we find it unnecessary to determine whether Re'pondent 's refusal to bargain in this
unit violated Section 8 ( a) (5) of the Act, and we shall dismiss that allegation of the
complaint.
1s Add a counterpart paragraph as the second paragraph of the notice.
14 In view of our finding that Respondent has completely rejected the collective -bargaining
principle , we deem it necessary to enter a broad order herein. Make the same substitution
in the counterpart fourth paragraph of the notice.
PAYLESS 1147
priate unit, with respect to rates of pay, wages, hours of work, and
other terms and conditions of employment, and embody in a signed
agreement any understanding reached." 15
[4. Renumber paragraphs 2(d) and (e) as 2(b) and (c), respec-
tively.
[The Board dismissed the complaint insofar as it alleges unfair labor
practices not found herein by the Board.]
15 Make similar deletion and substitution changes in the counterpart fifth, sixth, and
eighth paragraphs of the notice, and modify the appropriate unit description in the notice
to conform to the modified appropriate unit in Conclusion of Law No. 3
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Charges were filed in Cases Nos. 9-CA-3359 and 9-CA-3453 by Retail Clerks
Union, Local 1552, Retail Clerks International Association, AFL-CIO, herein
called the Union, on October 26, 1964, and January 25, 1965, respectively. The
General Counsel of the National Labor Relations Board, by its Regional Director for
Region 9, on March 15, 1965, issued an order consolidating cases, complaint, and
notice of hearing. The complaint alleged that Priced-Less Discount Stores, Inc.,
d/b/a Payless, the Respondent, had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, herein called the Act.
The Respondent filed its answer to the complaint on March 26, 1965, denying that
it had engaged in any of the unfair labor practices alleged but admitting that the
Union did request bargaining on or about January 20, 1965, and that on or about
January 25 it declined to recognize the Union.
Pursuant to due notice the case came on to be heard before Trial Examiner Lowell
Goerlich on May 10 and 11, 1965, in Springfield, Ohio. At the hearing each party
was represented by counsel, and was afforded a full opportunity to be heard, to call,
examine and cross-examine witness, to argue orally upon the record, to submit pro-
posed findings of fact and conclusions of law, and to file briefs. All briefs have been
reviewed and considered by me.
Upon the whole record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation engaged in the operation of a retail food-
store in Springfield, Ohio, which was opened for business in June 1964. Since com-
mencing business , the Respondent 's gross retail sales have exceeded $ 500,000. Dur-
ing the same period the Respondent had an indirect inflow of goods and materials, in
interstate commerce, valued in excess of $50,000 which were purchased and trans-
ported directly to its store in Springfield , Ohio , and received from other enterprises
located in the State of Ohio, which, in turn, had purchased and received the said
products directly from points outside the State of Ohio. The Respondent is now
and has been at all times material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes
of the Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION
Retail Clerks Union , Local 1552, 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. Background
On or about April 17, 1964, the Union commenced organizational efforts at the
Respondent's Springfield retail store which came to the Respondent's attention some-
time in the latter part of September or the first part of October 1964. The earliest
1148 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
union authorization card bears the date of September 14, 1964. Sometime in Octo-
ber pickets appeared at the Respondent's premises carrying a sign reading: "Payless
unfair labor practices charged against Payless. Please do not patronize this store." 1
The picketing has continued, but at the present time appears only on weekends.
On October 24, 1964, the Union first demanded recognition for a unit of all
employees of the Respondent's Springfield store "excluding meat department employ-
ees and supervisors as defined in the Act." Thereafter an unfair labor practice
charge alleging a refusal to bargain was filed on October 26, 1964, in Case No. 9-
CA-3359, which was dismissed in part on December 29, 1964, in that the Regional
Director found that the Union on October 24, 1964, did not represent a majority
of the Respondent's employees. An appeal to the General Counsel was denied on
February 4, 1964.
The Union served a second demand for recognition upon the Respondent on
January 20, 1965. The unit described in this demand differed from that contained
in its first demand in that it specifically requested the exclusion of all "delicatessen
employees." 2
By letter dated January 25, the Respondent declined recognition reciting that the
Employer had a good-faith doubt as to the majority status of the Union and that the
demand for recognition raised certain substantial questions regarding the appro-
priateness of the bargaining unit which could only be resolved through the processes
of the Board. Thereupon, the Union filed the charge in Case No. 9-CA-3453 on
the same date.
At the hearing the Union presented 21 signed union authorization cards 3 bearing
1964 dates as follows: one card, September 14; two cards, September 17; one
card, September 18; one card, September 19; one card, September 26; one card, Octo-
ber 1; four cards, October 7; two cards, October 12; three cards, October 14; two
cards, October 15; one card, October 22; two cards, October 23; and three cards
bearing the date of January 8, 1965. The validity of these 24 cards as of the date
of their execution was not contested; however, the Respondent contended 2' of the
authorizations were revoked prior to the second demand.
B. Interference, restraint, and coercion
The following is the material evidence which was submitted to prove that the
Respondent at its Springfield, Ohio, store interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Section 7 of the Act. This
evidence which I credit stands uncontradicted in the record.
1. The conduct of Gerald Kantor, coowner: On January 29, 1965, Gerald Kantor,
coowner of the Respondent, asked employee Barbara Hogan, to come to his office.
Coowner Kantor talked to employee Hogan about the good job that she was doing
and about the "people that had come up stairs and asked to vindicate their cards."
Kantor inquired of the employee whether she had heard of such circumstance. The
employee responded that she had heard about it, after which Kantor asked her if she
"had anything to tell him." He further said that the door was always open if she
wanted to talk to him .4
2. The conduct of Area Produce Supervisor Winfred Oney: In the latter part of
October 1964 Area Produce Manager Winfred Oney asked cashier Alice Tobias if
she was for the Union, whether she had signed a card, and if anyone had talked
to'her about the Union. Her response was negative and false.5 Thereupon Oney
asked her whether Ronnie Boblet, another employee, had talked to her. Upon
receiving a negative answer Oney,said that Boblet probably would. Oney volun-
1 The first unfair labor practice charge was filed on October 26, 1964, in Case No 9-CA-
3359. Apparently a settlement of this unfair labor practice was effected since the
Regional Director for Region 9 on March 15, 1965, entered an order withdrawing appro\ al
of settlement agreement in Case No 9-CA-3359.
Delicatessen employees are sometimes referred to in the record as "Speciality
employees "
3 The union authorization card contained -language which authorized the Union to act
as the employees' collective-bargaining agent.
4In view of the Respondent's active and widespread solicitations of withdrawals from
the Union among its employees between January 20 and 28 and in view of the situs chosen
by Kantor for his conversation with Barbara Hogan Kantor's remarks to her carried
with them a clear solicitation of withdrawal from the Union and under the circumstances
was coercive and amounted to unlawful solicitation. I so find
5 Alice Tobias had signed her union authorization card on October 12, 1964.
PAYLESS 1149
teered that he had signed a union card and knew all about the Union. He said that
he had worked under one before and that it was not any good. He further said
that the boys who worked for him and a stockman were "not for the Union."
Earlier in October around October 6, 1964, Oney had approached employee George
Jones and asked him if he had "signed for the Union?" Jones responded in the
affirmative whereupon Oney said it was "just between the two" of them and he was
telling Jones how "Kantors were nice to people and how he worked for them" and
that Jones probably would have "a chance of work" if he stayed with them. Jones
reminded Oney that several employees had been fired to which Oney responded,
"They propably got rid of all those they didn't want," and that Jones would "prob-
ably have a chance" if he stayed with them.
Oney spoke again to Jones on January 23, 1965, in the produce department at
which time Oney asked Jones whether he was still with the Union. Jones responded
that he was undecided. Oney suggested that Jones shake his hand as a token of his
saying that he was "going along with the company." During the conversation Oney
asked Jones whether he wanted to "go up and talk to Mr. Long." Jones agreed. At
Manager Long's office Jones told Long that he had decided to go along with the
Company, at which time Jones signed a letter withdrawing his union authorization
which was copied from a typed copy furnished to him by Long. He gave the finished
letter to Long. The envelope in which Jones' withdrawal was mailed was neither
furnished by Jones nor was the envelope mailed by Jones.
Oney's interrogations of Alice Tobias and George Jones were coercive and unlaw-
ful and served no legitimate employer purpose. Oney's remarks to Jones to the
effect that if he "stayed with them" he would "probably have a chance of work" in
connection with his other remarks denoted a promise of a benefit if Jones refrained
from further union activities. Oney's solicitation of Jones' withdrawal from the
Union was likewise a violation of Section 8(a)(1) of the Act. Winn-Dixie Stores,
Inc. and Winn-Dixie Louisville, Inc., 128 NLRB 574, 580.
3. The solicitation of union authorization card withdrawals: Twelve employees
of the Respondent executed letters withdrawing their designations of the Union as
their bargaining representative. Each letter included language which conveyed the
meaning that the employee no longer wished to be represented by the Union and that
such request was made of the employees' own free will and with no outside pressure.
The letters were dated between January 20 and 28, 1965. Only two were dated
after January 25, 1965, the date on which the Respondent declined to recognize the
Union. All letters were transmitted to the Union either by certified or registered
mail. Eight letters dated January 23 were mailed under certified mail numbers
244228 to 244235, inclusive. These letters were not mailed by the employees who
prepared them, nor did they furnish the postage or envelopes for their mailing.
Respondent's bookkeeper Carolyn Milton's handwriting appears on the envelopes.
The Respondent furnished the paper on which these letters were written; a carbon
copy was retained by the Respondent. Almost all of the letters were prepared in
Manager Long's office located in the upstairs of the Employer's premises and from
copies furnished by the Respondent. Testimony is 'uncontradicted that the Respond-
ent asked employees'to sign withdrawal cards.° Manager Long, Assistant Manager
Foote, and Area Produce Manager Oney engaged-in such solicitation.
In soliciting the withdrawal of union authorization cards and 'by assisting various
employees in withdrawing their union authorization cards as above detailed, the
Respondent violated Section 8(a) (1) of the Act. The Respondent's participation in
this episode constituted more than a mere ministerial act. Winn-Dixie Store, Inc.,
supra; Southwestern of Dallas Optical Company and Tru-Optics, Inc., 153 NLRB 33.
It was for the deliberate purpose of, dissipating the Union's strength and was designed
to frustrate the rights of self-organization and to render it unlikely that its employees
would ever have bargaining representation. Such misconduct initiated after the
Union's bargaining request and before the Respondent's denial of the request fortifies
the patent conclusion that the solicitation of the withdrawal-of union authorizations
was for the purpose of bolstering up an alleged good-faith doubt -as to the unit
composition and the majority status of the Union. The Respondent made certain
that the Union would not represent a majority in any appropriate unit. The cloak
of good-faith doubt was never fashioned to shelter a respondent whose efforts-have
been exerted for the purpose of unlawfully frustrating the uncoerced choice of its
employees for a bargaining representative. Indeed, the Respondent's defense of
good-faith doubt must fail since it must have been raised free of efforts designed to
6Among the employees' asked to sign union 'authorization card withdrawals were James
Norton, Pat McEnaney, Richard Riley", George Jones, and James Fraley.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undermine the Union by illegal antiunion activity. Here the Respondent committed
unfair labor practices to retain its unorganized store. Thus it is idle to speak of
good faith in an atmosphere of unlawfulness.
C. The refusal to bargain
1. The union status of the employees as of January 20, 1965: On January 20, 1965,
a written demand for recognition was addressed to the Respondent which was to
serve as a confirmation of a demand transmitted by telephone on January 20 at
2:40 p.m. in which the Union claimed it represented a "substantial majority" of the
Respondent's Springfield store employees At the hearing the Union supported its
majority by 24 concededly valid union authorization cards. The Respondent main-
tained that two of these cards, signed by Pat Miller and Ronald Ralph Boblet, were
revoked prior to January 20, 2:40 p.m.
Pat Miller "a couple of days" after she had signed and returned an authorization
card to Barbara Hogan, asked employee Hogan to notify the union representative to
call her so that she could get her card back. She indicated that she had changed her
mind in that the same Union had,been unable to help her cousin who was fired
because she was "off ill." Employee Miller did not hear from the union repre-
sentative. There is no evidence that employee Hogan delivered the message.
Employee Miller testified, "I knew she couldn't give me the card. I had to get it
from him [the union 'representative]." Thereafter she signed a withdrawal on Jan-
uary 23, 1965. Employee Miller, prior' to January 23, did not communicate her
intentions to withdraw her union affiliation to any person who represented the
Respondent.
Employee Ronald Boblet signed his union authorization card on October 7, 1964,
and was for some time an active union participant. He became disenchanted with
the Union and some time prior to November 24 he contacted Manager Long. He
related to Long that he no longer wanted to support the Union and that he.had
changed his opinion. Thereafter Boblet received a telegram from the National Labor
Relations Board dated November 23 in which Boblet was advised by a field examiner
of the Board that he would be in Springfield on Tuesday, November 24, to take
statements regarding Case No. 9-CA-3359. The telegram related that Boblet's
name had been presented to the field examiner as a witness by Local 1552. Boblet,
after he had talked to Long in his office, decided that he did not wish to make any
further contact with any of the union representatives. However, on November 24,
as he was leaving school he was greeted by Union Representative Wallis and an
agent of the Board. Boblet was asked whether he wanted to make a statement, to
which he responded that he had changed his mind "about testifying"; however, Boblet
did not advise the union representative that he wished to withdraw his authorization.
On January 20, 1965, Boblet with the assistance of employee Chatman composed a
withdrawal which in language and content differed little from the withdrawals which
were sent to the Union by other employees. The withdrawal was prepared sometime
after 2 o'clock. The envelope in which it was mailed bears a post office mark as
of January 22, 1965, and indicates that it was received at Retail Clerks Union Local
1552 office on January 25 about 12:30 p.m
Neither employee Miller 7 nor employee Boblet 8 took unequivocal action leading
to resignation from the Union until January 23 and 20, respectively, when they pre-
pared letters withdrawing their union authorization cards which were not received
by the Union until after it had made its demand for recognition. Thus I find that
these two employees, as well as the other employees who executed withdrawals, did
not revoke their designations of the Union as their bargaining agent prior to the date
and time on which the Union served its bargaining demand. Hence their withdrawals
did not cause the invalidity of their authorizations for the purpose of establishing the
Union's majority as of January 20, 1965, when the Union served its demand for
bargaining on the Respondent. Moore's Seafood Products, Inc., 152 NLRB 683.
See also Tinley Park Dairy Co., d/bla Country Lane Food Store, 142 NLRB 683,
685-686. Thus on January 20, the Union had in its possession 24 authorization
cards which were valid for the purpose of determining the Union's majority status.
7 TMT Trailer Ferry, Inc., 152 NLRB 1495, cited by the Respondent, is not in point
since employee Miller did not seek to retrieve her card from the employee who solicited
it. On the other hand, she knew that employee Hogan could not return the card to her
but that she "had to get it" from the union representative. Moreover, there is no evidence
that employee Hogan solicited the authorization card of employee Miller.
8 See Moore's Seafood Products, Inc, 152 NLRB 683.
PAYLESS 1151
2. The appropriate unit: The complaint alleges that the appropriate unit is "all
employees of Respondent at its said store in Springfield, Ohio, excluding meat depart-
ment employees, delicatessen employees, and all supervisors as defined in the Act."
This is the same unit which is referred to in the Union's bargaining demand. The
proposed unit is composed of the grocery, dairy, and produce departments. On
January 20 Manager Long directly supervised the delicatessen, grocery, and dairy
departments. Winfred Oney headed the produce department and Lawrence Lock-
wood supervised the meat department. Long was aided by an assistant manager.
Prior to November 20, 1964, Lockwood supervised both the meat department and
the delicatessen. At the same time he performed other supervisory duties in connec-
tion with the meat departments of a Toledo, Ohio, store and a Pick and Pack store
in Springfield, Ohio, in which the owneis of the Respondent held some interest.
Sometime prior to the latter part of November 1964 the meat department of the
Respondent was under the supervision of employee Brown who worked under the
direction of Lockwood. Brown was dismissed for unsatisfactory service at which
time Lockwood assumed the duties of Brown and relinquished all of his other assigned
duties including the supervision of the delicatessen. At the same time Store Manager
Long assumed the direct supervision over the delicatessen department. Separate
payrolls and inventory were maintained for the several departments and timecards
were grouped separately. The meat department employs nine employees whose job
classifications are that of meat wrapper, journeymen meatcutters, and apprentice
meatcutter; a journeyman meatcutter serves an apprenticeship of 3 to 4 years.
The delicatessen department employs four employees. These employees prepare
and sell cooked chickens, barbecued beef and pork, salads, jello, and hot soups. Forty
to fifty percent of the items sold by the delicatessen are prepared in the department.
In preparing these items for sale ingredients, such as celery, lettuce, and fruits are
procured from the grocery department; dairy products are obtained from the dairy
department and meat products are received from the meat department. Cold meat
cuts are also sliced for customer sale.
The meat and delicatessen departments are not contiguous and do not use adjoin-
ing work areas. Wage rates range from $1.50 to $2.75 in the meat department;
all employees in delicatessen are paid $1.50 an hour. Occasionally delicatessen
employees perform tasks in the grocery department but there is little exchange of
employees between the delicatessen and meat department. Employees in the deli-
catessen department wear pink uniforms; the employees in the meat department
wear white. The delicatessen employee deals directly with the customer whereas
the meat department employee has little customer contact since over 90 percent of
the meat products are packaged for self-service sale.
The Board has held that in establishments such as the Respondent's store the
"meat department employees may be excluded from a unit of all other store employ-
ees only when a union seeks to represent them in a separate unit." Schaeffers Pros-
pect IGA Store, 124 NLRB 1433, 1434. [Emphasis supplied.] In the instant case,
at the time the request for bargaining was served no other union was seeking to repre-
sent the meat department employees nor was there any bargaining history affecting
any of the employees involved.9 Thus the only appropriate unit was the unit of all
store employees and the unit described in the Union' s request for bargaining and in
the complaint is an inappropriate unit. The Union's request, therefore, must be
deemed to have been invalid. In the absence of a valid request for bargaining the
Respondent cannot violate Section 8(a)(5) of the Act. Page Aircraft Maintenance,
Inc., 123 NLRB 159, 164; Joslin Dry Goods Company, 118 NLRB 555, 557. More-
over, the General Counsel is not aided by the claim that the unit described in the
request and the complaint is an appropriate unit since it excludes the delicatessen
employees who by reason of common supervision, community of interest, and like
working conditions are appropriately within a unit of other store employees. More-
over the delicatessen employees may not constitute a separate appropriate unit since
they possess no degree of functional difference and autonomy demonstrating that
they have a community of interest different from that of the other store employees.
They are neither geographically separated from other store employees nor are they
separately supervised. There is a functional integration of the work of these employ-
ees with other store employees with the exception of the meat department employees.
6 I am not unmindful of the fact that some time previously the Amalgamated Meatcutters
& Butcher Workmen of North America, AFL-CIO Local Union No. 430 on August 26, 1964,
filed a petition for an election for employees in the Respondent's meat department which
was later withdrawn "because of lack of interest " In that there is no evidence that such
union was seeking representation rights from the Respondent on January 20, or there-
after, I deem such fact immaterial.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand the delicatessen employees may not be included in the unit of
meat department employees. Meat department employees are under separate super-
vision and have no functional integration with the delicatessen employees. All the
employees in the meat department are either journeymen meatcutters or are engaged
in allied tasks. Their wage scales are different. There is no mutuality of interests
between the delicatessen employees and the meat department employees. Had a
request been made by another union the meat department would have been severed
as a separate appropriate unit. Weis Markets, Inc., 116 NLRB 1993. In Food Fair
Stores, Inc., 130 NLRB 1, 7, the Board included delicatessen employees in a unit
excluding meat department employees. Indeed had the Charging Party insisted
upon the direction of an election in the unit described in the complaint in an election
proceeding, its petition must have been dismissed. Cf. The Wm. H. Block Company,
152 NLRB 594.
Moreover, if it is assumed that the unit described in the demand including the
delicatessen employees is an appropriate unit, the 8 (a) (5) allegation must be dis-
missed in that there are more than "minor variations" between the unit proposed and
the appropriate unit. See Joslin Dry Goods Co., supra. In the instant matter nine
employees worked in the meat department, four in the delicatessen, three in the
dairy department, three in the produce department, and one in the frozen food sec-
tion . In addition there were 13 boxboys, 12 cashiers, 2 day crewmen, and 6 night
crewmen. The number of employees in the delicatessen exceeded the number of
employees in the frozen food section, the produce department, and the dairy depart-
ment , and if added to the meat department would have increased such department by
one-third. Under these circumstances it may not be said that there was not a
"substantial" variation between the proposed unit and the appropriate unit. Indeed
it appears that the inclusion of the delicatessen employees in the unit proposed in
the Union's first demand caused it to lack a sufficient showing of union designations
to sustain its first 8(a)(5) charge. Thus there is a strong suspicion that the second
unit proposed was tailored to accommodate the Union's extent of organization.
I find that on January 20, 1965, the Employer did not violate Section 8(a)(5) of
the Act, since the Union's request for collective bargaining did not give rise to the
obligation to bargain on the part of Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, 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
It has been found that the Respondent has engaged in and is-.engaging-in unfair
labor practices. Thus it will be recommended that the Respondent be'required to
cease and desist therefrom and take certain affirmative action set out below designed
to effectuate the purposes of the Act.
Section 7 of the Act guarantees to the employee a riglit'to self-organization and
to engage in concerted activities for the purposes of collective- bargaining. The pur-
pose of the National Labor Relations Act and its underlying objective is to promote
collective-bargaining agreements. James B. `Carey v. Westinghouse Electric Corpora-
tion, 375 U.S. 261, 265. In Division 1287 of the Amalgamated Association of Street,
Electric, Railway and Motor Coach Employees of America v. State of Missouri, 374
U.S. 74, the Court said that collective bargaining is the "essence" of the Federal
scheme. The Act by its very language commits itself to the encouragement of the
"practice and procedure of collective bargaining." See* also Phelps Dodge Corp. V.
N.L.R.B., 313 U.S. 177,182. In Republic Steel Corporation v. N.L.R.B., 311 U.S.
7, 10, Chief Justice Hughes, speaking for the Court, said:
The remedial purposes of the Act are quite clear. It is aimed, as the Act
says (§ 1) at encouraging the practice and procedures of collective bargaining
and at protecting the exercise by workers of full freedom of association, of self
organization and of negotiating the terms and conditions of their employment or
other mutual aid or protection through their freely chosen representative.
When confronted with the probable attainment of these purposes, rather than to
avail itself of the lawful procedures .of the Act, the Employer deliberately chose a
course of conduct which impaired the Union's ability to muster a majority of the
Respondent's employees in any appropriate unit. By such misconduct and by
PAYLESS 1153
utilization of unfair labor practices, the Respondent has been able to insulate itself
against the probability of bargaining collectively with its employees in the immediate
future. Thus, during the period when the Respondent continues to flout the Act,
it profits by its own wrongs, and the evil which the Act seeks to eradicate continues
unabated. - The same evils which were noted by the Supreme Court in Franks Bros.
Company v. N.L.R.B., 321 U.S. 702, are present here. For out of the conduct of
the Respondent in the instant case will come procedural delays which will provide
it with "a chance to profit from a stubborn refusal to abide by the law." The Court
said that the Board was within its statutory authority in adopting a remedy which
would result in the foreclosure of a probability of such frustrations. Id., p. 705.
"Employees join unions in order to secure collective bargaining." Karp Metal
Products Co., Inc., 51 NLRB 621, 624. The Respondent's unlawful solicitation of
union authorization withdrawals caused its employees to desert such purpose and
persuaded them to abandon collective bargaining altogether. The defections which
occurred and the shutoff of subsequent union affection resulted from the Respondent's
unlawful interference with its employees' right to freely choose to avail themselves
of the "practice and procedure of collective bargaining." Had the Employer chosen
to conform to the requirements of the statute, it would be arbitrary to assume that
the union membership would not have ripened into a substantial majority which
would have been sufficient to sustain a majority status not only in the unit proposed
but also in the storewide unit found to be the only appropriate unit.
On January 20, 1965, the Union held 24 valid authorization cards which would
have given it a majority status in the unit sought or the unit sought with the addition
of the delicatessen employees. Between January 20 and 28, the Respondent by its
unlawful conduct caused a withdrawal of 12 valid union authorizations. Thus on
January 28, had a petition been submitted to the Board, the Union could have proved
only 12 valid authorizations. To have established a 30-percent interest in a unit of
41 (the proposed unit), the Union would have had to prove 12.3 valid designations.
It is questionable whether the Board under these circumstances would have enter-
tained a petition for an election in the proposed unit even though it were assumed
to have been an appropriate unit.10 There seems little question that in the larger
unit, including the delicatessen employees, and in the unit which I have found to be
appropriate, a petition for an election would not have been entertained. Thus had
the Union filed a petition for an election on or after January 28, in any of the units
which were proposed by the parties or found to be appropriate herein, the petition
no doubt would have been dismissed for lack of interest. It is clear, therefore, that
by its unfair labor practices the Respondent not only caused a substantial defection
(50 percent) in the Union's ranks but effectively has closed the door to the resolu-
tion of the bargaining status of the Union through the Board's processes. Such frus-
tration of the high purposes of the Act warrants more than a slap on the wrist or
the posting of a notice of future disavowal." The employees left the Union under
compulsion. It seems fair that they be returned through lawful union-security
incentives.
As noted, had not the Respondent engaged in the unfair labor practices described
herein, there is a strong probability that union affection would have increased and
that collective bargaining would.have matured with the choice of the Union as the
collective-bargaining representative.
In International Broadcasting Corporation: (KWKH), 99 NLRB '130, 133, the
Board commented:
It was the :duty of the Respondent to refrain from disturbing the•status'quo by
coercive conduct pending the `resolution -of the representation question, and to
permit the, Union to have a free opportunity to increase and retain its member-
10In Section 101.18(a), Statements of Procedure, National Labor Relations Board, it
is stated: -
The evidence of representation submitted by the petitioning labor' organization . . .
is ordinarily checked to ,determine the number or proportion of employees who have
designated the petitioner, it being the Board's administrative experience that in the
absence of special factors the conduct of an election serves no purpose under the
statute unless the petitioner has been designated by at least 30 percent of the
employees.
""A mere cease and desist order (such as contemplated by the Trial Examiner)
may serve only to represent formal acknowledgement of the law- while the offender main-
tains full possession of the fruits of its violation." Montgomery Ward & Co. v. N.L.R B.,
339 P. 2d 889, 894 (C.A. 6)
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship by legitimate organizational activity and to participate in a free and
uncoerced election, which would determine whether or not it was the statutory
representative...."
Legitimate recourse to the electoral processes of the Board is a powerful impetus to
the growth of union adherence. But here, the Respondent not only destroyed an
environment conducive to a free choice but by its unlawful acts reduced the Union's
membership to a point where it was left with insufficient interest to invoke the Act's
procedures. As was observed by Chief Justice Hughes as early as 1930 in the case
of Texas & New Orleans RR Co. v. Brotherhood of Railway & Steamship Clerks,
etc., 281 U.S. 548, 570:
It has long been recognized that employees ai a entitled to organize for the
purpose of securing the redress of grievances and to promote agreements with
employers relating to rates of pay and conditions of work.
The Chief Justice further opined:
Such collective action would be a mockery if representation were made futile
by interference with freedom of choice.
The Respondent nullified the organizational efforts of the Union and prevented the
holding of a free election. It deprived the Union of any prospects of success in the
election or the opportunity of the employees to register a free choice for or against
collective action: Moreover, as was observed in Virginia Electric and Power Com-
pany v. N.L.R.B., 319 U.S. 533, 544:
It is manifestly impossible to say that greater benefits might not have been
secured if the freedom of choice of a bargaining agent had not been interfered
with.
Thus it is the Respondent who should bear the brunt of the disentanglement of the
consequences of its unfair labor practices since it has* caused the chain of events
which resulted in the deprivation of rights flowing to the Union and its employees.
The Supreme Court of the United States has used language which seems comparable
to the circumstances here. Although the proof is not definite, the probabilities are
great that had the Employer abided by the law, the Union would have evolved as
the bargaining agent for the appropriate unit which may have been established
through the Board's procedures. In Story Parchment Company v. Paterson Parch-
ment Paper Company, 282 U.S. 555, 563, the Court said:
Where the tort itself is of such a nature as to preclude the ascertainment of
the amount of damages with certainty, it would be a perversion of fundamental
principles of justice to deny all relief to the injured person, and thereby relieve
the wrongdoer from making any amend for his acts. . . . The wrongdoer is not
entitled to complain that they [damages] cannot be measured with the exactness
and precision that would be possible if the case, which he alone is responsible
for making, were otherwise.
An appropriate remedy which will effectuate the policies of the Act is deemed to
require the restoration of the status quo which the Union would have enjoyed except
for the Employer's misconduct, for a failure to restore the status quo "allows the
employer to retain the fruits of its unfair labor practices." Beacon Piece Dyeing and
Finishing Co., Inc., 121 NLRB 953, 963. See also N.L.R.B. v. Armco Drainage &
Metal Products, Inc., Fabricating Division, 220 F. 2d 573 (C.A. 6); Piasecki Aircraft
Corporation v. N.L.R.B., 280 F. 2d 575, 591 (C.A. 4), cert. denied 364 U.S. 933.
As stated by Judge Harlan in a concurring opinion in Local 60, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO (Mechanical Handling Systems)
v. N.L.R.B., 365 U.S. 651, 657:
The primary purpose of the provision for other affirmative relief has been held
to be to enable the Board to take measures designed to recreate the conditions
and relationships that would have been had there been no unfair labor practice.
The recreation of the existence of the conditions and relationships as they existed
had the unfair labor practices not been committed in the instant case is illusory, if
not impossible of achievement, but there is left the probability of depriving the
Respondent in part of the advantages it has unlawfully gained. As noted, had the
Employer complied with the law, the question of representation would have long past
been submitted through the Board's procedures with the likelihood that the Union
would now be enjoying the status as bargaining agent for the Respondent's employees.
PAYLESS 1155
Thus the employees were frustrated in their attempt to choose a device by which
they could equate their bargaining power with that of their employer. "Union was
essential to give laborers opportunity to deal on equality with their employer."
American Steel Foundries v. Tri-City Central Trades Council, et at., 257 U.S.
184, 209.
To effectuate the purposes of the Act, I recommend that:
1. For a period of 60 days after the Respondent has posted the notice marked
"Appendix" the Respondent shall permit the Union and its representatives upon
reasonable request freely to solicit union authorizations and conduct union organiza-
tional meetings of the Respondent's employees on the Respondent's Springfield, Ohio,
premises during the employees' non-working time, if such activity is confined to
nonselling areas and does not interfere with the normal operation of the Respondent's
business.12
2. If within the 60-day period the Union presents convincing evidence that it has
in its possession valid authorization cards designating it as the bargaining repre-
sentative for a majority of the employees in the unit found appropriate by me and
the Union does in fact represent an uncoerced majority of the Respondent's employ-
ees in the appropriate unit, the Respondent upon the request of the Union shall
recognize and bargain with the Union in conformity with the requirements of the
Act.13
3. If the Union is selected as the bargaining agent pursuant to paragraph 2, above,
any contract reached as a result of collective bargaining upon the request of the
Union shall include a lawful union-security clause requiring maintenance of mem-
bership in the Union during the period of the contract's term for all those employees
in the employment of the Respondent for whom the Union held authorizations on
January 20, and for any other employees who at the time of the execution of the
contract have authorized the Union to act as their bargaining representative 14
4 The Respondent shall post the notice marked "Appendix" for a period of
60 days.
The foregoing recommended remedy will afford a means whereby the effects of
the Respondent's unfair labor practices may be neutralized and the Union's bargaining
power which would have resulted from a certification through the Board's election
proceedings may be obtainable.15
CONCLUSIONS OF LAW
1. Priced-Less Discount Foods, Inc., d/b/a Payless, is an employer engaged in
commerce within the meaning of Section 2(6) of the Act.
11 The Respondent ' s unlawful solicitation of withdrawal of union authorization cards
upon its premises "created a glaring imbalance in organizational communication" which
warrants correction by affording the Union a like opportunity for solicitation on Re-
spondents premises. Cf. Montgomery Ward ,t Co, Inc., 145 NLRB 846; Montgomery
Ward & Co., Inc. v. N.L.R.B., 339 F. 2d 889 (C A. 6) ; The May Department Stores Com-
pany d/b/a The May Company, 136 NLRB 797.
13 "An employer is under a duty to bargain as soon as the union representative presents
convincing evidence of majority support" N.L.R.B. v Dahlstrom Metallic Door Co•in-
pany, 112 F. 2d 756 , 757 (C.A. 2). "There is no absolute right vested in an employer
to demand an election ." N.L.R.B. V. Trimfit of California, Inc, 211 F. 2d 206, 209
(C.A. 9) ; Accord N.L.R.B. v. Nelson Manufacturing Company, 326 F. 2d 397, 399 (C A. 6).
"The Act is clear in intent, . . . that election and certification proceedings are not the
only method of determining majority representation . . . Matter of L. B. Hartz, et al.. 11
d/b/a L. B. Hartz Stores, et al., 71 NLRB 1848, 871; Fred lob v. Los Angeles Brewing Co.,
183 F . 2d 398, 405 (C.A. 9).
14 In Hillbro Newspaper Printing Company, Division of Hearst Publishing Company,
Inc., 127 NLRB 591, 592, 594, a case which was concerned with a union-security arrange-
ment, the respondent union and the respondent employer were required by order to:
Specify, in its current contract with the Respondent Union, [respondent Hillbro]
either the specific lawful provisions of the General Laws of the International Typo-
graphical Union which are incorporated therein, or the specific provisions which are
not incorporated because they are in conflict with the Act.
In Cosmopolitan Studios, Inc., 127 NLRB 788, the respondent was required to accept an
agreement negotiated and executed by an association after the Respondent had withdrawn
from the association.
11 See in this connection 112 U. of Pennsylvania Law Revue 69 (1964), and 56 LRRM
125, 136, 137.
221-374-66-vol. 15 7-7 4
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Retail Clerks Union, Local 1552, Retail Clerks International Association,
AFL-CIO, is a labor organization, within the meaning of Section 2(5) of the Act.
3. All employees of the Employer at its Springfield, Ohio, store, including meat
department and delicatessen employees but excluding guards and supervisors as
defined in the Act, as amended, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4. By interfering with , restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 ( a)(1) and Section 2(6)
and (7) of the Act.
5. The Respondent did not by its refusal on January 25 to recognize and bargain
with the Union, violate Section 8(a) (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, upon the
entire record in the case , and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , it is recommended that the Respondent , Priced-Less Discount
Foods, Inc., d/b/a Payless , Springfield , Ohio, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to their union membership , activities,
or desires.
(b) Soliciting ' and assisting employees to withdraw membership or adherence to
the Union.
(c) In any like or related manner interfering with , restraining , or coercing
employees in the exercise of their rights to join, form, or assist Retail Clerks Union
Local 1552, 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.
2. Take the following affirmative action in order to effectuate the policies of the
Act:
(a) Permit the Retail Clerks Union Local 1552, Retail Clerks International Asso-
ciation, AFL-CIO, and it representatives, upon reasonable request, for a period of
60 days after the posting of the notice marked "Appendix," free access to the Respond-
ent's store premises in Springfield , Ohio, for the purpose of soliciting union author-
izations and conducting union organizational meetings of the Respondent 's Spring-
field, Ohio, store employees during the employees ' nonworking time, if such activity
is confined to nonselling areas and does not interfere with the normal operation of
the Respondent 's business.
(b) Upon request bargain collectively with Retail Clerks Union Local 1552,
Retail Clerks International Association , AFL-CIO, as the exclusive representative
of all the employees in the appropriate unit described above, with respect ,,to rates of
pay, wages , hours of employment , and other conditions of employment, ;if within 60
days after the posting of the notice marked "Appendix," said Union presents con-
vincing evidence that it has in its possession valid authorization cards designating it
as the bargaining representative for a majority of the Respondent 's employees in the
above-described unit and the Union does in fact represent an uncoerced majority
of the Respondent 's employees in the appropriate unit.
(c) If an agreement , is•reached with said Union pursuant to paragraph •( b) above,
embody such agreement in a signed contract which, upon the request of the Union,
shall include a lawful union-security clause requiring maintenance of membership
in said Union during the period of the contract's term for all those; employees for
whom the Union held authorizations on January 20, 1965, in the employment of
Respondent and for any other employees who at the time of the execution of the
contract have authorized the Union to act as their bargaining representative.
(d) Post at its Springfield , Ohio, store copies of the attached notice marked
"Appendix." 16 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall , after being duly signed by Respondent 's representatives , be posted by
it immediately upon receipt thereof, and maintained by it for 60 consecutive days
161n the event that this Recommended Order be 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."
PAYLESS 1157
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing, what steps the Respond-
ent has taken to comply herewith.17 -
It is recommended that the complaint be dismissed insofar as it alleges violations
of the Act other than those found in this Decision.
17 In the event that this Recommended Order be 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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate employees concerning their union mem-
bership, activities, or desires.
WE WILL NOT solicit or assist employees to withdraw or adhere to the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of their rights to join, form, or assist Retail Clerks
Union Local 1552, 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
and all such activities.
Upon reasonable request we will permit the Retail Clerks Union Local' 1552,
Retail Clerks International Association, AFL-CIO, and its representatives, for a
period of 60 days after the date upon which the notice' is posted, free access to
our Springfield, Ohio, store premises for the purpose of soliciting union author-
izations and conducting union organizational meetings of our Springfield, Ohio,
store employees during our employees' nonworking time, if such activity is
confined to nonselling areas and does not interfere with the normal operation
of our business.
WE WILL, upon request, bargain with the above-named Union as the exclusive
bargaining representative of all the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment, and other
conditions of employment, if within the 60-day period referred to above the
Union presents convincing evidence that it has in its possession valid authoriza-
tion cards designating it as the bargaining representative for a majority of our
employees in the unit described below and the Union does in fact represent an
uncoerced majority of our employees in the appropriate unit.
The appropriate unit is:
All employees of the Employer at its Springfield, Ohio, store including
meat department and delicatessen employees but excluding guards and
supervisors as defined in the Act, as amended.: -
If an agreement is reached with the Union pursuant to the foregoing paragraph
we shall embody such agreement in a signed contract which upon the request
of the Union shall include a lawful union-'security clause requiring maintenance
of membership in the Union during the period of the contract's term for all
those employees in our employment for whom the Union held authorizations on
January 20, 1965, and for any other employees who at the time of the
execution of the contract have authorized the Union to act as their bargaining
representative.
All our employees are free to join, form, or assist any labor organization, or to
refrain from doing so.
PRICED-LESS DISCOUNT FOODS, INC., D/B/A PAYLESS,
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. -
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200.
T & T Packing Company and International Union of District 50,
United Mine Workers of America. Cases Nos. 10-CA-6054 and
10-RC-6209. March 28,1966
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On December 7, 1965, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action. In addition, the Trial Examiner found
that the Respondent had engaged in objectionable conduct prior to
the election held in Case No. 10-RC-6209, and recommended that the
said election be set aside, all as set forth in the attached Trial Exam-
iner's Decision. The Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
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 these cases 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 brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications :
[1. Add the following as paragraph 2(b), the present paragraph
2 (b) and those subsequent thereto being consecutively relettered :
[" (b) Notify the above-named employee 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
i These findings and conclusions are largely based upon credibility determinations of the
Trial Examiner , to which the Respondent has excepted , alleging that the Trial Examiner
was biased and prejudiced . We find this contention without merit . Our review of the
record in these cases leads us to the conclusion that the Trial Examiner's credibility find-
ings are not contrary to the clear preponderance of all the relevant evidence . Accord-
ingly, we find no basis for disturbing the Trial Examiner's credibility findings in these
cases. Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
Member Zagorla would rely solely on objection 2 in setting aside the election.
157 NLRB No. 100.