Poca Super Market

National Labor Relations Board - Board Decisions

May 26, 1967

164 N.L.R.B. 1080 (N.L.R.B. 1967)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M.C. Inc., d/b/a Poca Super Market and Food
Store Employees Union , Local #347,
Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO. Case
9-CA-4043.
May 26, 1967
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On March 7, 1967, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged 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,
the Respondent filed limited 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 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 the case, and hereby adopts the,
findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein.
We agree with the Trial Examiner's finding that at
no time did the Union represent an uncoerced
majority of the Respondent's employees and,
consequently, Respondent's refusal to recognize and
bargain with the Union was not a violation of Section
8(a)(5) of the Act.
While we agree with the Trial Examiner that the
solicitations by Supervisor Jividen were violative of
Section 8(a)(1) of the Act, we do not believe that,
under the circumstances of this case, effectuation of
the policies of the Act requires the issuance of a
remedial order. As noted by the Trial Examiner,
Jividen, a minor supervisor, solicited employee
signatures to union authorization cards, and
subsequently drafted a petition revoking the Union's
authority which he circulated to the employees for
signatures. But, Respondent was not aware of
Jividen's solicitation for the Union, and, upon
learning of it, manifested a completely neutral
attitude towards the employees' union organization.
Further, it is clear that Respondent had no part in
Jividen's circulation of the revocation petition.
Accordingly, we shall dismiss the complaint in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: Upon a charge filed
September 13, 1966, by Food Store Employees Union,
Local #347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, hereinafter called
the Union, against M.C. Inc., d/b/a Poca Super Market,
hereinafter called Respondent, the General Counsel, by
the Regional Director for Region 9 (Cincinnati), issued his
complaint alleging that Respondent violated Section 8(a)(1)
and (5) of the Act, specifically by refusing to recognize and
bargain with the Union and by circulating a petition in an
effort to induce card signers to withdraw from the Union.
Respondent's answer denied the commission of any
unfair labor practices.
The proceeding, with all parties represented, was heard
at Charleston, West Virginia, on December 20, 1966. At
the conclusion of the hearing the parties were given an
opportunity to file briefs, which were duly received from
the General Counsel and Respondent.
Upon the entire record in the case, including the briefs,
and from my observation of the witnesses I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent , a West Virginia corporation , is engaged in
the retail sale of grocery and related products at a
supermarket located in Poca, West Virginia . Respondent
annually sells at retail products valued in excess of
$500,000 and annually receives in interstate commerce
goods and products valued in excess of $50,000 purchased
from firms within the State of West Virginia , which goods
were in turn purchased and received directly from points
outside the State of West Virginia . At all times material
herein the Respondent has been an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
The Union is and at all times relevant hereto has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
On August 22,1 Jack L. Brooks, business representative
for the Union, accompanied by Ronald Skaggs, another
business representative, met with Sam Tope and John
Jividen, both of whom were employed at Respondent's
Poca, West Virginia, store, with a view to organizing the
' All dates herein are in the year 1966 unless otherwise
specified.
164 NLRB No. 149
POCA SUPER MARKET 1081
employees therein. On this occasion Jividen identified
himself as a stockboy who made out some orders and said
that he thought he would be the head grocery clerk.
The participants in the discussion arranged for a
meeting of employees to be held on August 28. Tope and
Jividen urged their fellow employees to attend the meeting
and a substantial number of employees did so.
At the August 28 meeting Business Agent Brooks
informed the employees that it was possible that Jividen,
who was there, was a supervisor and if so would not be in
the unit. Jividen was the first to sign a card. Thereafter he
went to the side of the room at the request of Brooks while
nine other employees signed authorization cards. After the
meeting Jividen accompanied Business Respresentative
Skaggs to the home of Jean Casto where Casto signed a
card.2
The following day, a Monday, when Colene McVay, who
had signed a card, came to work she discussed the
situation with Casto and with Sam Tope and possibly with
other employees. The three, McVay, Casto, and Tope,
decided to call the Union and tell them that the employees
had decided not to go ahead with the union organization.
Tope attempted to call the Union but could not reach the
business agent . Later in the day McVay called the Union's
offices and asked to talk to Business Representative
Brooks. Brooks was not in and McVay told the person who
answered the phone that the employees of Poca Super
Market had decided not to go ahead with the Union. The
person answered, "When he comes in, I'll be sure to give
him the message."
On August 31, Business Representative Brooks
returned to his office from an out-of-town trip and found a
message taken by his secretary from Tope to the effect
that "some of the employees at Poca Super Market were
scared and we were not to show the authorization cards to
Mr. Corey" (the owner of the store).
The following day Brooks, together with Business
Representative Skaggs, went to Poca and found Colene
McVay in a dairy store having a cup of coffee. While the
three were talking Tope came into the dairy store and
Brooks asked him what was going on. Tope answered that
there had been rumors that a bunch of the employees were
scared and wanted to back out. Tope ended up stating that
as long as he could get shorter hours he was still for the
Union. Tope also told the union representatives that he
had talked to a majority of the employees and that they
wanted to back out of the Union. McVay told the union
agents that a majority of the employees had decided to
back out of the Union but apparently left her own position
somewhat ambiguous.3
The two business representatives left the meeting and
returned to their office in Charleston from which Brooks
telephoned Michael Corey, the-owner of the supermarket.
Brooks told Corey that he represented a majority of the
employees and requested that they meet and bargain.
Corey indicated that he had no knowledge of the subject
and said, "Why can't we have an election ." Brooks
suggested that he would show him the cards and after
checking the cards, if Corey had a good-faith doubt that
the Union represented a majority, the Union would agree
to an election . Corey answered that that was a good trade
and that he considered it fair and agreed to meet on the
following Tuesday, September 6, for the purpose of
checking the cards.
Corey received the telephone call on a telephone in the
meat department of the supermarket. Sam Tope and Jean
Casto were in the vicinity and heard the conversation.
Casto asked whether that was the union man and Corey
said "Yes, we have a union here ," whereupon Casto told
him that the employees had changed their minds and that
McVay had called the union office and told them to call the
thing off. Jividen heard of the telephone call and came
back to Corey and also told him that the employees had
called the union office and told them to call off the
organization . Corey said, "It's up to you people. Do you
want a union ? Go ahead, go union . You don't want a union,
nobody can force you. I can't force you and they can't
force you, that's up to you."
At this juncture Jividen handwrote a petition for the
employees to sign to withdraw from the Union and took it
to his lawyer.' The lawyer substantially redrafted the
petition and Jividen returned to the store, stopping to ask a
notary public to accompany him. On his return to the store
Jividen went to the high school, which is located across the
street from the store, and asked the principal to send three
boys who were part-time employees over to the store. The
principal complied. All 11 persons, including Jividen, who
had signed authorization cards signed the petition.5
Sometime after the petition was signed it was mailed to the
Union's office in Charleston.
The following day Business Representative Brooks
addressed a letter to Corey confirming the telephone
conversation of the prior day, setting forth the unit in
particular language and confirming the agreement that
they would meet on September 6, and if Corey had a good-
faith doubt after checking the signatures that the Union
would agree to an election.
On September 6 Brooks met with Corey. Corey declined
to look at the proffered cards and said something about
somebody having sent a letter to the Union's office. Brooks
said that he had not received a letter and Corey answered
that Johnny (Jividen) had told him that one had been sent.
Jividen was called for and came to the office and
acknowledged that he had indeed sent the letter but with
no explanation of its contents. Brooks again proffered the
cards and Corey declined to look at them, saying that he
2 Before signing the card Casto asked whether Clinton Wise, a
butcher, had signed a card Jividen told her that Wise had not
come to the meeting but that he had said he would go along with
the rest of the employees.
3 There is a credibility issue, more apparent than real, between
the testimony of McVay and Business Agent Brooks concerning
the conversation. In view of my disposition of the matter it is
unnecessary to determine the matter
• Jividen's lawyer had also done legal work for Corey in the
past He had represented Jividen in a divorce only a few days
before this occurrence
S The petition was in the form of a letter which stated as
follows.
The undersigned came to your office on an earlier occasion
and spoke with you in reference to organizing our store, Poca
Super Market The undersigned signed certain cards which
you asked us to so do. It is our desire that you do not organize
this store. Each of the undersigned has studied the matter
over and are of the opinion that you do not proceed as we do
not want your union to organize this store This letter is
notice to you that we, by signing this letter, do revoke your
authority to act on our behalf.
If you will recall some of us called you on an earlier
occasion on the telephone We explained that we did not
want you to proceed with the organization of our store. We
again request that you do not proceed to organize this store.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not doubt that they had a majority of the cards but
there was no need to check them, and again asked Jividen
whether he had sent the letter and was told that he had put
it in the mail on Saturday, September 3. Corey insisted
that he was not big enough for a union and stated that he
knew he would have to have a union as he got bigger, but
he was then too small, and that he would call the Union
when he got bigger. The meeting broke up on this note and
the Union filed its charge.
Discussion
The General Counsel contends that Jividen is a
supervisor and that because Jividen, in his supervisory
capacity, circulated the petition of withdrawal and
solicited the employees to sign it , a classic Joy Silk Mills
situation arose's with Respondent insisting on an election
while engaging in coercive conduct designed to undermine
the strength and support of its employees for the Union,
thus demonstrating a lack of good-faith doubt in the first
instance . Obviously the key to the issues raised by the
complaint is the determination of Jividen's supervisory
status.
The record reveals that Jividen is the oldest present
employee of the Employer, having worked at the market
for about 4-1/2 years prior to the hearing. Jividen worked
as a stock clerk prior to the fall of 1965 when the business
moved to a new store building. He had been informed by
owner Corey that when the store was moved he would be
named grocery manager, but in a newspaper
advertisement announcing the move he was named as
head cashier.
Respondent's payroll at the time of the Union's demand
showed 20 names, including that of Michael Corey and
John Jividen. Three of the persons named are females
listed as cashiers, three are cutters, wrappers, or helpers
in the meat department, five are listed as stockboys or
carryout,? and two are college students employed during
the summer as stockboys. Jividen and Clinton Wise are
listed as stock clerk and stockman, respectively, and an
additional employee is listed as a produce man.
The record reveals that Jividen's duties include
checking out and running cash registers daily, putting up
stock, checking the shelves for needed merchandise, and
filling out an order blank for such merchandise as the
check revealed to be needed. With respect to the part-time
stockboys who worked only on Saturdays, except during
vacation time when they also might work on Thursday or
Friday, Jividen had the authority on his own or pursuant to
suggestion from owner Corey to tell excess stockboys to go
home and if necessary to select those who would leave the
store if sufficient volunteers were not forthcoming. In
addition he directed the work of the stockboys and in
general tried to keep them working. There is no evidence
that he had authority to hire or fire any employees." Corey
usually did not come to the store before 11 o'clock
in the morning. Charles Gunnoe, the head meatcutter, had
keys to the store and normally opened it in the morning.
Gunnoe, however, broke his leg and has not worked for the
last 10 months.9 Since Gunnoe's accident Jividen has
normally opened the store each day and has on occasion
determined that there were too many stockboys working
and sent them home.
Respondent contends that Jividen is no more than a
stock clerk and has no supervisory responsibility, that he
is at most a senior employee, a sort of leadman, with
respect to the stockboys, and acts as no more than a
conduit for orders from Corey who is the only supervisory
person in the store.
I cannot accept this position. It is clear that, at least
with respect to the stockboys, Jividen has supervisory
authority. He can determine, and occasionally does, that
there are too many stockboys' and require some of them to
cease working; he directs them in their work, and
apparently a goodly portion of his job when they are
working is to keep them at work and to see that they are
productive and do the right job. Since Corey is not even in
the store for several hours each day it thus becomes
apparent that Jividen exercises his task with some degree
of responsibility.
With the exception of meatcutter Gunnoe, who, while he
was employed, drew a salary of $125 a week,10 Jividen is
the highest paid of the employees. He is paid at the rate of
$95 a week for approximately 40 hours' work. The next
highest paid employee is Wise who is paid $80 a week for a
week of the same length. All other employees, except the
summer college students who were paid $50 a week, are
paid on an hourly basis and the highest hourly wage is
$1.30 an hour, paid to McVay, the cashier, who worked
from 30 to 40 hours a week.
I find that Jividen is a supervisor within the meaning of
the Act and that he was well understood so to be,
particularly by the stockboys. The extent of his authority is
apparent when on September 1 he called upon the
principal of the high school to send the boys from their
classes to the store in order to have them sign the
withdrawal petition. The principal did so without question.
The Respondent contends that if Jividen were held to be
a supervisor it is clear that his participation in the entire
case was so involved as to taint the majority with coercion.
The record reveals clearly that from the inception of
organization on August 22, Jividen was one of the main
actors. He testified without contradiction that before
August 28 when the union authorization cards were signed
by 10 employees, he spoke to each of the employees,
inviting them to the meeting of the 28th and giving them
his opinion that a union was desirable. In addition he
attended the union meeting of the 28th and was the first to
sign an authorization card at this meeting. While it is true
that his potential status as a supervisor was pointed out to
the employees present by the union business
representative, he was not asked to leave the meeting and
remained where he could see each of the employees sign
the authorization cards, just as each of them had seen him
sign his. In addition after the meeting he accompanied
Business Representative Skaggs to employee Casto's
home where Skaggs gave Casto a card. On this occasion
he took part in the solicitation of the signature of Casto
6 Joy Silk Mills, Inc , 85 NLRB 1263
A sixth boy, Tommy Neal , is listed as a stock -carryout boy
The evidence reveals that Neal became a full-time stockboy after
the demand of the Union for recognition
9 On one occasion more than 2 years before the trial he fired a
stockboy after an altercation with him The stockboy appealed to
Corey and was reinstated This however took place before the
designation of Jividen as either grocery manager or head cashier
9 It does not appear that there is an expectation that he will
resume his employment with the Employer at any certain time
t' Gunnoe's salary was continued for 3 weeks after he broke his
leg It has not been paid since that time Presumably if and when
he returns to work he will resume employment at the same salary
POCA SUPER MARKET 1083
telling her that a majority of the employees had signed
cards and that employee Wise was prepared to go along
with them.
On September 1, it is apparent that once again Jividen
pulled the laboring oar in the preparation and solicitation
of signatures upon the petition revoking the union
designation and it may be inferred from the record that it
was solely as a result of his actions with regard to the three
stockboys whom he had called over from the high school
that they signed the petition revoking their union cards.1 i
Conclusions
Having found that Jividen was a supervisor and having
found that he was a main influence both in getting the
Union' s authorization cards signed and in getting the
revocation petition signed , I am constrained to find that
the Union has at no time encompassed by the record
herein represented a clearly uncoerced majority of the
employees.12 Accordingly the Employer's refusal to
recognize the Union without an election cannot be found to
be a violation of Section 8(a)(5) of the Act.
There is no evidence that storeowner Corey was aware
of Jividen's participation in the union campaign , or that he
had any knowledge that the Union was organizing his
employees until the September 1 telephone call from
Business Representative Jack Brooks. Immediately upon
the completion of his phone conversation he was informed
by employees Tope and Casto that the employees had
withdrawn their authorization to the Union to represent
them, wherefore even if the authorizations were in fact
valid I could not find that Corey's refusal to recognize the
Union at that time or subsequently thereto was predicated
on anything but his good-faith belief that the Union no
longer represented the employees.
General Counsel contends that Respondent violated
Section 8(a)(1) of the Act by interrogating employee Tope.
Tope testified that within a short time after Brooks'
telephone call requesting recognition, during a
conversation with Corey, Corey asked Tope why he
wanted the Union. Tope answered that he wanted shorter
hours and the rest of the conversation concerned other
matters. I have trouble ascribing any coercive motive or
effect to this inquiry by Corey. It seems clear from the
record that the inquiry was made after Corey had been
informed by the Union that a majority of his employees
had signed up with the Union and then had been informed
by the employees that they had withdrawn from the Union.
I infer that at this point Corey considered that the union
organization was a dead issue in the store. This conclusion
is reinforced by what appears to me to have been a
reaction of suprise and puzzlement that the Union on
September 6 continued to demand bargaining , causing
Corey to call for Jividen to confirm that the employees had
in fact withdrawn their support from the Union. I did not
believe it reasonably could be anticipated that in this
context Corey's question to Tope could have had any
coercive impact. I find that it does not violate Section
8(a)(1) of the Act.
General Counsel contends that Respondent by Jividen's
solicitation of withdrawals from the Union violated Section
8(a)(1) of the Act. Two things are clear: (1) that Jividen was
in fact a supervisor and (2) that Jividen in fact organized
and subsequently disorganized the employees of the store.
There can be no question that Corey was aware of
Jividen's activities with regard to the employee petition to
withdraw the Union. This was done on company time.
Corey's car was supplied to Jividen to have the "letter"
written out by Lawyer Watts. The solicitation of the
employees to withdraw from the Union took place in the
store during working hours and the part-time employees
were called over from the school on company time and
property to sign it . The record however does not support
an inference that Corey knew anything about the initial
organization of the Union or about Jividen's participation
therein. However, the knowledge of the Employer that his
supervisor is deeply involved in the union organization or
the lack thereof does not affect the coercive impact of
such involvement by the supervisor. The employees had
no way of knowing whether or not Jividen was speaking for
Corey, both in the organization and in the withdrawal from
the Union. From the employees' standpoint the coercion
was present.
The Board has long held that it is a violation of Section
8(a)(1) of the Act for an employer or his supervisor to solicit
employees either to join or to withdraw from a union.
Accordingly, I find that Respondent has violated Section
8(a)(1) of the Act by Jividen's solicitation of the employees
in both regards. While the record displays no bad faith on
the part of owner Corey, I believe that the employees
should be assured of their rights by the issuance of an
order directed to this violation.
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 Respondent's
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 has engaged in
certain unfair labor practices, it will be recommended that
it cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed them
in Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The Respondent has not violated Section 8(a)(5) and
(1) of the Act by refusing to bargain with the Union.
[Recommended Order omitted from publication.]
11 Employee James Cunningham testified that he signed his
union card because he was for the Union and that when the
employees were called together to sign the revocation petition he
signed it only because everyone else had signed it Nobody signed
it as soon as they read it.
12 J C . Penney Co , Inc., 160 NLRB 279.