Roger's I.G.A., Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1977

232 N.L.R.B. 1053 (N.L.R.B. 1977)

ROGER'S I.G.A., INC.
Roger's I.G.A., Inc. and Retail Clerks Union Local
No. 73, affiliated with Retail Clerks International
Association, AFL-CIO. Cases 16-CA-6204 and
16-CA-6337
October 11, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 3, 1977, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,. and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Roger's I.G.A.,
Inc., Henryetta, Oklahoma, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the
attached notice is substituted for that of the
Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We shall modify the Administrative Law Judge's notice to conform to
his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
with the Union as the exclusive bargaining
representative of the employees in the appropriate
bargaining unit described below with regard to
wages, hours, working conditions, and other
terms and conditions of employment.
WE WILL NOT fail or refuse to supply the Union
with information necessary for collective bargain-
ing.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL recognize and, upon request, bargain
with Retail Clerks Union Local No. 73, affiliated
with Retail Clerks International Association,
AFL-CIO, as the exclusive bargaining represen-
tative of the employees in the appropriate unit
described below, with regard to wages, hours,
working conditions, and other terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding is a signed
agreement. The appropriate unit is:
All employees who are engaged in handling
or selling merchandise or performing other
services incidental thereto in the Employer's
establishment located within Henryetta,
Oklahoma, and vicinity whether owned,
leased, licensed, or operated directly or
indirectly by the Employer, excluding super-
visors, guards and watchmen as defined in
the Act.
WE WILL, upon request, provide the above-
named Union with information necessary for
collective bargaining.
ROGER'S I.G.A., INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: Pursuant
to charges filed by the Retail Clerks Union Local No. 73,
affiliated with Retail Clerks International Association,
AFL-CIO, herein called the Charging Party, on September
3, 1975, and November 28, 1975, a consolidated complaint
was issued on January 28, 1976, alleging that Roger's
I.G.A., Inc.,' herein called Respondent, has engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (I) of the National Labor Relations Act, as amended.
Respondent filed an answer denying the commission of the
alleged unfair labor practices.
I Corporate name as represented by its counsel.
232 NLRB No. 169
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was held before Administrative Law Judge
David W. Davis in Henryetta, Oklahoma, on March 29
and 30, 1976. Thereafter the parties were informed that
Administrative Law Judge Davis would be unable to
render a decision in the case because of illness. Subse-
quently, the parties requested that the case be transferred
to the National Labor Relations Board in Washington,
D.C., for issuance of a proposed Decision and Order based
upon the record as made. On August 27, 1976, the Chief
Administrative Law Judge transferred the case to the
Board for the purpose of issuance of a proposed Decision
and Order. The briefs previously filed by the General
Counsel, Respondent, and the Charging Party with
Administrative Law Judge Davis were forwarded to the
Board. Administrative Law Judge Davis succumbed.
The Board having considered the record and briefs
ordered, on November 10, 1976, a hearing de novo "for the
purposes of receiving evidence on the issues raised by the
allegations of the complaint," inasmuch as it found that a
disposition of the issues rest on credibility resolutions
which in turn hinge upon demeanor evaluations which can
only effectively be made by an Administrative Law Judge.
Pursuant to the Board's order, a hearing was held before
me in Henryetta, Oklahoma, on February 2 and 3, 1977.
The parties were represented by counsel, and were afforded
opportunity to adduce evidence as to the issues alleged in
the complaint, to examine, and cross-examine witnesses,
and to submit briefs. All parties submitted briefs after the
close of the hearing. The record in the prior proceeding was
incorporated into this proceeding for the limited purpose of
evaluating testimony adduced at the second hearing which
is argued to be inconsistent with prior testimony.
Based upon the entire record in this proceeding, an
evaluation of prior alleged inconsistent testimony in the
first proceeding, and my observations of the witnesses as
they testified, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, an Oklahoma corporation, is engaged in the
business of operating a retail grocery store at 419 West
Trudgeon, Henryetta, Oklahoma. During the 12-month
period preceding the issuance of the complaint, which is
representative of all times material herein, Respondent
purchased and received goods valued in excess of $50,000
from enterprises within the State of Oklahoma which in
turn purchased said goods directly from outside the State
of Oklahoma. During the same period of time, Respondent
in the course and conduct of its business operations
received gross revenues in excess of $500,000.
Respondent admits and I find that it has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOt VED
Respondent admits and I find that the Charging Party is
and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
This case involves the issue of whether Respondent,
engaged in conduct violative of the Act by refusing to
continue the collective-bargaining relationship with the
Charging Party. The General Counsel relies upon the
presumption of a majority status of the Charging Party and
argues that Respondent withdrew its recognition while
neither demonstrating an actual loss of majority status nor
circumstances giving rise to a reasonable doubt of
continued majority status. In any event, the General
Counsel argues that Respondent withdraw recognition
within the context of unfair labor practices which were
calculated to dissipate the presumed majority status of the
Charging Party.
Respondent argues that it did indeed refuse to continue
recognition of and bargaining with the Charging Party, but
that it did so only after receiving the unsolicited repudia-
tion of union representation from 8 of 13 unit employees.
Respondent denies that it had engaged in any acts of
coercion and that the expressions of repudiation were
spontaneous and unequivocal.
B. Background
Respondent is a small supermarket owned by Roger
Wilson and Hazel Wilson, his wife, and does business in
Henryetta, Oklahoma, a small town populated with several
thousand souls. Many years prior to the assumption of
ownership by the Wilsons, and, indeed prior to the birth of
most of the witnesses in this proceeding, the store had
commenced operations. The bargaining history dates back
to 1935 when the Merchant's Association of Henryetta was
formed and engaged in collective bargaining for the next 40
years with the Charging Party. Respondent became a
member of the association subsequent to 1935, and was
bound by successive collective-bargaining agreements
covering a multiemployer unit, the most recent of which
was effective from December 10, 1972, until January 4,
1976. The General Counsel and the Charging Party
concede that no election was ever conducted among
employees of Respondent as to whether they desired
representation by the Charging Party.
On October 20, 1975, the Charging Party, in writing,
advised Respondent as well as other members of the
multiemployer bargaining group then in existence that the
Charging Party, also referred to herein as the Union,
desired to withdraw from the collective-bargaining rela-
tionship with the aforedescribed association, reserving
however its right to continue to engage in collective-
bargaining negotiations for the employees in an individual
Employer basis. By letter dated October 27, 1975, from
counsel representing the association the Union was advised
that various employees, including Respondent, were
withdrawing from the association. The mutual withdrawals
were timely.
On October 29, 1975, Respondent, by its attorney, filed a
petition with the Regional Director in Case 16-RM-521
covering the unit employees, i.e., all its employees. In
support thereof were attached the affidavits of Roger
1054
ROGER'S I.G.A., INC.
Wilson and John Holman, meat manager and stipulated
supervisor. These affidavits set forth that 8 of 13 employees
expressed desire that they did not wish continued represen-
tation by the Union. That petition was dismissed by the
Regional Director in light of his intention to issue
complaint in the instant unfair labor practice proceeding.
C. The Allegations of Restraint and Coercion
Paragraph 7(a) of the complaint as amended at the
hearing alleges that on or about June 25 and 27, 1975, and
August 11, 1975, Roger Wilson coercively interrogated
Respondent's employees concerning their own and other
employees' union membership activities, and desires.
Paragraph 7(b) alleges that on or about June 27, 1975,
Roger Wilson threatened an employee with discharge or
other reprisals in retaliation for its employees' union
membership, activities, or support.
At the second hearing the General Counsel moved to
amend the complaint by adding paragraph 7(c) which
alleged that on or about May 24, 1975, Roger Wilson
interrogated an applicant for employment concerning his
union desires and on the same date threatened an applicant
for employment by telling him that he would not be
employed by Respondent if he were in favor of union
representation. The motion was granted over objection of
Respondent inasmuch as the incident was litigated at the
prior hearing and Respondent was in no way surprised by
the amendment.
D. Incidents Involving Charlene Eairhearl
Gregory Eairheart (hereinafter Gregory) was hired in
August 1973 as store manager, a stipulated supervisor, and
was employed in such position until his termination on
August 9, 1975. Charlene Eairheart, was hired on Septem-
ber 19, 1973. and employed variously as a meat wrapper
and checker on a full-time basis until September 4, 1974.
During this period of time there is no evidence that she
exercised any supervisory function nor that she enjoyed
any special status because of her conjugal relationship to
Gregory. Indeed, there is no contention herein that she was
not an employee within the meaning of the Act. Charlene
Eairheart testified that after September 4, 1974, she
continued to work 10 hours a week on a regular part-time
basis until she quit in August 1975. She testified that she
substituted for checkers who were on vacation or who were
ill, for Hazel Wilson, wife of Roger Wilson and bookkeep-
er, when the Wilson's took their vacation. She specifically
recalled substituting for Fanny Robinson so that Robinson
could take time off for a divorce and a vacation. Her status
after September 4, 1974, is disputed by Respondent who
contends that she was not regularly employed thereafter.
With respect to her first stage of employment, Charlene
testified that when first hired in September 1973, when she
first commenced paying union dues that she had a
conversation with Roger Wilson alone at the front office in
the store wherein Roger Wilson told her "not to worry
about paying the union dues because when the union
contract expired in 1976, that they were going to vote the
2 A strike of five or six members of the association occurred in the
summer of 1972.
union out," and that he needed a majority "to vote the
union out." No context was given for this conversation.
She testified further in a generalized manner without
context that Wilson repeated that the same remark to her,
i.e., that he was going to vote the union out and that he
needed a majority to do so, "at least once a week," until
she terminated her employment. Her tendency to general-
ize was narrowed somewhat when counsel for the General
Counsel questioned her as to "during that conversation,
whether or not there was any mention of strike or of getting
rid of any employees, and if so, what he said to you?" In
response to this question she testified that Wilson told her
additionally, "that he would like to weed out all the
employees in the store that were for the Union and he
would like to get rid of the checkers in front that had
striked him in 1972, or walked on the strike in 1972." 2
In an attempt to obtain some specificity I was impelled
to attempt to obtain some time frame and context. In
response to questions from the bench the witness clarified
that the "weeding out" statements occurred in June 1975.
When questioned as to what led to such a conversation, she
first testified that Wilson liked to talk to her "about
everything in the store," and that it would "just be casual
talking ... " When pressed further she testified, "well,
you see, Mr. Wilson did not like me talking for the Union
because me and my husband had been in the Union in the
State of California and he did not like me telling about
that. He came to me and asked me at different times if I
would find out who was for or against the Union, and we
talked I would say, on the average of two or three times a
week about this union bit." She was however unable to
testify with any certainty as to the context or events leading
up to any particular conversation, who was present or
where it was held. Upon completion of examination by the
parties, in response to my further questions, she testified,
after some modification, that her first conversation with
Wilson occurred when she asked him if she had to pay dues
in 1973. He then made the remark about an election. She
therefore explained in her testimony that the union had
been so beneficial to her in the past employment that she
felt constrained to "uphold the Union," by telling other
employees of its advantages. On those occasions Wilson
told her that since she was the manager's wife to keep her
"mouth shut" and not to converse with employees about
the union and that he knew she was "prounion." Yet
according to her, Roger Wilson continued almost weekly to
assure her not to worry about dues, continued to confide in
her his hopes of union expulsion and thereafter in June
1975 told her of his weeding out plans and sought her
assistance, despite her continual refusals of cooperation.
Thus Charlene Eairheart testified on direct-examination
that in May 1975 Roger Wilson approached her in the store
while she was "scrubbing potatoes" and stated: "You know
Charlene you're in here so much of the time anymore [sic ],
I would like to put you back on the payroll because when
that union contract comes due I need the majority of the
employees in the store to vote it out," she testified that she
declined this offer of a full-time job, having been
preoccupied with the job of raising several children.
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charlene testified that on June 25, when she had
returned from a 2-week vacation, Roger Wilson ap-
proached her in the store, and as they were alone stated:
"Hey Charlene, what do you think about our new girl,
Gayle Wright?" Wright had been recently hired as a
checker. When Charlene disclaimed knowledge, Wilson
then purportedly stated: "Well, do you think that she's
Union minded or not?" Again she declined to speculate
and walked away. Charlene testified that on June 27
Wilson again persisted and asked her to discover Wright's
sympathies and that if she were prounion "I want to get rid
of her because I need the majority of the employees to vote
the union out when the union contract expires in 1976. 1
don't need her here."
Roger Wilson in his testimony admitted that at sometime
prior to September 1974 he did express to Charlene
Eairheart his hope that the union would be voted out, but
he denied having made statements to her at her hiring not
to worry about dues because the union was going to be
voted out; or that he required a majority to vote out the
union, or that he requested her to return to full-time
employment. He denied any conversations with her in May
or June 1975, and denied questioning her as to Gayle
Wright's union feelings or even discussing Wright with
Charlene Eairheart.
Hazel Wilson testified that Charlene Eairheart was
employed after September 1974, only on a sporadic basis.
Her knowledge for such conclusion was derived from her
function of bookkeeper and payroll preparation. However,
her testimony is inconclusive as she conceded, after much
evasion, that Gregory Eairheart might have paid his wife
out of cash, and that she, Hazel Wilson, was not employed
in the store during every hour of its operation. In sum she
conceded that it was her assumption that Charlene did not
work regularly. However, Fannie Robinson testified
credibly that she took no time off when she obtained a
divorce and upon her departure for a vacation one of
Wilson's daughters was scheduled to substitute for her. She
was not, of course, in the store during her vacation. In any
event, Charlene Eairheart, regardless of unit placement,
would appear to have been an employee entitled to
statutory protection.
If I were constrained to make a credibility evaluation of
Charlene Eairheart based upon her demeanor above, I
would find her to be most untrustworthy and unreliable.
Her manner was variously uncertain, vague, hesitant, and,
when pressed for details, stridently hostile and aggressive.
Her husband was involuntarily terminated by Roger
Wilson on August 9, 1975, and could not find employment
until January 1976. She testified that she had no resent-
ment toward Wilson despite the fact that the Eairhearts
suffered such a long period of unemployment. She
explained that no attempt was made by them to seek
employment in Henryetta, despite the fact that they
vacationed there when employed in California, and
continued to vacation there presently, and despite the long
period of unemployment. She gave every impression of
fencing with counsel with regard to her attitude toward
Respondent. Despite her disavowal of resentment she
3 This ambiguity was never explained. There is no evidence that former
employees who had engaged in a strike were not rehired.
admitted having been "shook" by the termination and loss
of family income. However, it was her demeanor which
clearly belied her claim of nonresentment. She gave every
impression of a seething animosity whenever the name of
Roger Wilson was raised in her examination. When
questioned as to her attitude toward Respondent and the
impact of loss of employment, she became emotionally
overwhelmed and it was necessary for me to allow her a
recess in order for her to regain her composure. This was
necessary even though she was in no way badgered nor
subjected to intense examination. I therefore conclude that
upon demeanor above her bias was so palpable as to
preclude any serious consideration of her testimony.
In addition to demeanor, I found her testimony to be too
implausible to be worthy of belief. Having declared herself
as a staunch prounion employee it is utterly inexplicable
that Wilson, who gave every appearance of being a normal,
rational person, would have constantly reassured her not to
worry about paying dues, to have confided in her his
antiunion plans, and to have sought her return as an
antiunion vote, and to have sought out her assistance in the
interrogation of Gayle Wright. This later incident is
particularly implausible in light of Gregory Eairheart's
testimony that Wilson himself systematically interrogated
all applicants and did not hire anyone when they were
antiunion. As we shall see Gregory Eairheart testified
specifically that Wilson himself interrogated Wright in his
presence. Furthermore, it is Gregory Eairheart's testimony
that Roger Wilson was under the impression that part-time
students were eligible to vote. If indeed, Charlene was so
regularly employed, there was no need for Roger Wilson to
have sought her full-time employment to vote in the
election.
In sum I find Charlene Eairheart so unreliable that I
discredit her testimony entirely.
E. Incidents Involving Gregory Eairheart
Gregory Eairheart testified in a conclusionary general-
ized fashion that he, as store manager for a 2-year period,
jointly interviewed job applicants with Roger Wilson, and
that Wilson systematically and repetitively interrogated job
applicants as to whether they were "for or against the
union" and that Wilson expressed to these job applicants
his desire to vote out the union. Upon receiving a favorable
answer i.e., that the applicant was antiunion, Wilson then
would inquire into the applicant's experience. If no
favorable response was given the applicant would not be
hired. Also, if the applicant's parents were "for the union,"
of if they had engaged in the 1972 strike, they would not be
hired. 3 Gregory Eairheart testified that 15 employees were
hired in the 2-year period, and almost all were so
interrogated (90 percent in his testimony at the first
hearing).
Counsel for the General Counsel inquired whether Ricky
Tarkington was one of those employees so interviewed and
interrogated. Eairheart responded affirmatively. Tarking-
ton, a personal friend of Eairheart, was hired by Wilson in
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ROGER'S I.G.A., INC.
September 1974, as a package boy, and soon became relied
upon by Gregory Eairheart as a "secondary manager." 4
He quit shortly after Eairheart's termination. Wilson
testified that he interviewed Tarkington alone and not in
Eairheart's presence; that it was infrequent that both he
and Eairheart would interview job applicants: and that he
did not interrogate Tarkington about his union feelings.
Tarkington testified that he was interviewed by Roger
Wilson who asked him if he were for or against the union
and that he responded that he did not know because he
never had worked in a union store, and that Wilson
thereupon told him that he would have to start paying
dues.5 Tarkington indicates neither in his prior testimony,
nor in his pretrial affidavit, nor in his recent testimony that
Gregory Eairheart was present. Also, significantly, he
testified to no reference to an election by Wilson, nor to
any attempt by Wilson to obtain a negative commitment as
a precondition to his hiring. Thus, Tarkington's testimony
is inconsistent with that of Gregory Eairheart.
Gregory Eairheart testified further that Roger Wilson
engaged in weekly conversations wherein Wilson expressed
his intent to hire persons who are against the union so that
the union could be voted out "at the end of the year," and
that in the spring and summer of 1975 these identical
comments were repeated several times a week starting in
April or May. Wilson denied engaging Eairheart in any
conversation calculated to encourage the hiring of anti-
union personnel.
According to Eairheart, Wilson told him that he was
going to question the "girls up front," and that he had
already spoken to Lureatha Stephens, a checker. Stephens
testified for Respondent and denied any such interroga-
tion.
When questioned by counsel for the General Counsel as
to whether any additional help was hired in the spring and
summer of 1975, Eairheart replied with great uncertainty,
at first negatively, and then that Will Ingram "was put on"
and "Phil Carter" was put on, and that he, Eairheart, hired
students for the summer who had given notice when hired
that they intended to quit upon the fall school term in
order to engage in athletics. He further testified that
Wilson urged him to try and encourage the students to stay
on a part-time basis to help vote out the union. Eairheart
testified that he agreed but did not expressly testify that he
complied. Wilson denied giving such instructions to
Eairheart.
Phil Carter, a witness for the Charging Party, was hired
in June 1975 while on summer vacation from high school.
He referred to no such effort by Gregory Eairheart, nor by
Roger Wilson.
Eairheart testified that with respect to further hiring that
an opening arose for a produce manager in March 1974,
and that Tarkington recommended his father-in-law, Bill
Layman, whereupon Eairheart suggested Layman to
Wilson who in turn rejected him because of Layman's age
and because he was "for the Union." Tarkington testified
4 Wilson testified that there is no such position The parties stipulated
that Tarkington was a nonsupervisory employee.
I In his pretrial affidavit given to the Board agent. Tarkington stated that
Wilson "asked me if I was for or against the union, that it was a union store.
I told him at the time that I did not know if I was for it. It seemed clear he
was against it." At the first hearing Tarkington testified when asked what
that in February he suggested Layman directly to Wilson
and that Wilson asked: "Doesn't he work in a union
place?," which Tarkington affirmed. At the first hearing,
Tarkington testified that Wilson at first asked "He's Union
isn't he?" and that Tarkington responded: "yes. he is. He
works at a union place right now, but if he was to come and
work for us he would be against the union." He further
testified at the hearing that Layman was actually inter-
viewed at the store. Eairheart testified at the last hearing
that Layman was not interviewed and never entered the
store. Tarkington testified that shortly thereafter Eairheart
informed him that Wilson did not hire Layman because he
was too old and because he had worked in a "union place."
Wilson testified that he did not hire Layman because he
knew Layman for many years and knew that Layman was
lacking in experience and not suitable for the job. He
testified that he preferred a produce man with some
experience "if possible." Thus, he did not even bother to
interview him.
Eairheart testified that he recommended an individual by
the name of Jerry Hughes for the job of produce manager
and that Wilson told him that Hughes was unacceptable
because his "folks" were prounion. Wilson denied this and
testified that he did not know any such person. In
September 1975, Wilson hired Tim Meadows as produce
manager. Meadows possessed prior experience and had a
letter of recommendation from his prior employer.
On cross-examination Gregory Eairheart was pressed for
specific names of individuals whom he and Wilson jointly
interviewed who were interrogated by Wilson concerning
their union feelings. Various names were suggested in an
attempt to particularize his preceeding generalized testimo-
ny regarding systematic and repetitive interrogation.
He named Raymond Hum, Ernest Ingram, Tim Mead-
ows, Ed Musgrove,6 and Gayle Wright. With respect to
Meadows, Eairheart testified that he joined the interview
after Wilson commenced it and that Wilson told him
thereafter that Meadows would probably be hired because
he was against the union. It should be recalled that
Eairheart testified on direct examination that Phillip Carter
was also one of the employees hired and interviewed in the
summer of 1975.
Raymond Hum testified that when he was a student he
was hired in December 1974 on a part-time basis. He later
worked on a full-time basis until he quit in March 1976.
During the summer of 1975 he worked full time. Thereaf-
ter, he had no association with Respondent. Hum testified,
as did Roger Wilson, that he was interviewed by Gregory
Eairheart alone, and that Wilson did not participate and
was not present. Hum testified that Eairheart did not
interrogate him concerning his union feelings, nor did he
refer to the union. The only statement ever made to him by
Roger Wilson about the union was that Wilson told him
subsequent to his hiring that he had to join the union. Hum
never expressed his feelings about a union to Wilson. Hum
testified that employee Tim Meadows told him that "they
Wilson stated to him dunng his hinng interview." "He asked me if I was for
or against the union and I said I didn't know. I had never worked in a union
store before."
r Wilson denied interrogation of Ingram and Ed Musgrove. They were
not called to testify at the second hearing.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was going to try to vote [the union] out or something." This
occurred on the first day Hurn was assigned to assist
Meadows in produce stacking. He also overheard Mead-
ows speaking to employee Ingram about a "rumor" to the
same effect. Hum testified that Meadows did not identify
the "they;" i.e., whether it meant the employer or certain
employees. He did not fix a date for these conversations.
Meadows testified on behalf of Respondent. He termi-
nated his employment with Respondent shortly after the
last hearing. The parties stipulated to his nonsupervisory
status. He and Wilson testified that Gregory Eairheart was
not present during his hiring interview by Roger Wilson in
the fall of 1974. He denied that Wilson interrogated him
concerning his union attitudes. Meadows denied that
Wilson requested or instructed him to discover the
attitudes of fellow employees regarding the union. He had
no recollection of talking to Hurn about the union.
Gayle Wright, a Respondent witness, testified that she
entered on duty in June 1975 as a checker and was
employed until she quit on August 15, 1976. She is no
longer associated with Respondent; and resides now in
Tulsa, Oklahoma. Wright corroborated Wilson's testimony
that she was hired by Roger Wilson and interviewed by
him alone and that Gregory Eairheart was not present, and
that no reference to the union arose during the interview.
Phillip Carter was called as a witness on behalf of the
Charging Party. It is his testimony in the first hearing
which gave rise to the amendment to the complaint in
paragraph 7(c) referred to above. At first he testified that
Eairheart was present during his interview on May 24 or
25, 1975, with Roger Wilson. He testified that Wilson
asked him "If I knew about the situation of a union in the
store," and that Wilson explained that he was having
"trouble with it" and asked whether Carter was for or
against it. Carter testified that he told Wilson that he did
not know much about it but from what he had heard, he
didn't like it much. To this Wilson responded "that's
good," and explained that they "have elections every so
often, you know, whether to vote for or against the union,
and he asked me what my vote would be, and I said that it
would probably be no, but I didn't know much about it."
and that Wilson further said that if he were for the union
Wilson probably could not use him, "because he was
having trouble with the union."
Carter explained that the conversation then turned to his
experience and it was at that point that Gregory Eairheart
joined the interview. Tarkington called him 3 days later to
let him know he was hired.
Carter was between his junior and senior high school
year at the time. He quit on July 14, to attend a summer
camp. Carter was asked on cross-examination if he had
explained to Wilson during the hiring interview that he was
only looking for summer work. Carter at first stated that he
could not remember but then stated with great assurance,
"I told him that I was just looking for a job." When
pointedly examined as to his status at the time as a student,
the witness became flustered and grudgingly and bitterly
conceded that he informed Wilson that he intended to quit
his employment when school resumed to engage in the
athletic program. In fact Carter quit before that date to
attend a summer camp. He testified to no attempt on any
occasion by either Wilson or Eairheart to encourage him to
remain employed on a part-time basis. Carter testified that
he and Tarkington had been associated for some time in
"hustling" produce for Carter's father. Tarkington advised
Carter of the job opportunity at Respondent.
Finally, it is Eairheart's uncontradicted testimony that
on unspecified occasions during his employment Wilson
told him not to volunteer information to the union with
respect to the hiring of new employees and to let the union
find out for itself who was hired. Thus, Eairheart's
testimony which is partially corroborated by Tarkington
and Carter, is also contradicted by witnesses some of
whom are no longer employed by Respondent. An
evaluation of their credibility, however, must be made with
reference to other testimony given on behalf of Respondent
regarding their alleged rejection of the union. As we shall
see such testimony involves certain inconsistencies. These
will be treated infra. However, additional alleged coercive
conduct involving Tarkington is also in issue.
F. Conduct Involving Ricky Tarkington
Tarkington testified that on August 11, 1975, Roger
Wilson engaged him in a conversation in the store at the
front office while they were alone. Wilson purportedly
asked Tarkington to "check out" two new employees and
other employees to see if they were "for or against the
union." He testified that accordingly he talked to three
employees, and asked them if they were for or against the
union saying to them "we wanted it out." He varied this
somewhat by testifying that he told them "it seemed like
Roger wanted the union but .... " He did not testify as to
the dates of these conversations. He could not recall the
names of the employees involved. On cross-examination he
testified that the conversation with Wilson occurred -"right
around August," but when referred to the complaint
allegation he settled on the date of August I1. When
specific names of employees were suggested to him in
cross-examination he still was unable to identify the
employees with whom he spoke. Although he knew them
only by face when he spoke to them, they did identify
themselves by name at that time. He made no attempt to
describe the employees with whom he spoke.
Tarkington admitted signing a pretrial, handwritten,
unsworn statement at an interview on the premises of his
subsequent employer, prior to the first hearing. The
statement was prepared during the interview by Respon-
dent's attorney who interviewed Tarkington in pretrial
preparation. In that statement consisting of two brief
paragraphs the first two sentences set forth:
Roger Wilson never ask [sic] me whether I was for or
against the union, as I recall. I did hear him ask another
employee if some other employee was for the union.
Roger Wilson never threatened to discharge me, lay me
off, suspend me or do anything because of my union
activities.
Tarkington testified that he has difficulty in reading and
that the attorney read the statement to him before he
signed it and that he did not hear the statement recited
above read to him. He also testified that the attorney, in
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ROGER'S I.G.A., INC.
identifying himself, said that he was from California.
Attorney Andrew testified that he identified himself as
Respondent's attorney from Tulsa, Oklahoma, that he
made no reference to California, and that he carefully read
aloud to Tarkington the statement as written and asked
Tarkington if he understood it before Tarkington signed it.
Tarkington did not testify as to what it was that he thought
was read to him. Indeed, his demeanor particularly in this
regard was most hesitant and uncertain. Attorney Andrew
on the other hand impressed me as being far more
trustworthy. The balance of the statement was damaging to
Respondent's case. Andrew did not impress me as being so
utterly consumed with the interests of his client as to
finagle Tarkington into signing a statement which falsely
reflected what had been told to him but the thrust of which
was not favorable to his client. I therefore conclude that
Tarkington did in fact sign the statement having heard the
contents accurately recited to him.
G. Expressions of Employee Repudiation of the
Union
Roger Wilson's affidavit submitted in support of the RM
petition was dated October 28, 1975. In that affidavit he
recited:
During the past month several employees have told me
that they were unhappy with the Retail Clerks Union
since the only time they hear from the Union is when
they are delinquent in remitting their dues. In addition,
the following employees have told me that they have
always had problems with the Retail Clerks Union and
that they do not want the Retail Clerks Union to
represent them: Ed Musgrove, Gayle Wright, Tim
Meadows, Mae Musgrove, Will Ingram and Lu
Stephens.
Wilson testified that about 30 days after his hiring,
"possibly around September," Tim Meadows approached
Wilson at the front office in the store and told Wilson that
he "did not want to belong to the union, and what could I
do to keep him from belonging, and I told him that there
was nothing, he had to belong," and that he did not want
to pay dues. That was the totality of the conversation as
recited by Wilson. Meadows, who was hired on September
1975, testified that on some date after his hire he spoke to
Wilson and stated: "Well, I just stated to him that I didn't
particularly want to pay the dues. You know, I had to
.... " After being asked a leading question by counsel for
Respondent, Meadows fleshed out this testimony by
testifying that he explained to Wilson that he did not wish
to pay dues because he had not seen a union representative
and therefore felt that the union was of no benefit to him.
However, on cross-examination, he readily retracted this
embellishment by conceding that the correct version of his
conversation was as set forth in his pretrial affidavit i.e., "at
the time that I first learned that I had to join the union was
after he told me that I had to join, and I said, 'I'll send my
dues, but I don't want to.' That is all that was said about
it." He further admitted that at no time during his
employment did he discuss with Roger Wilson whether or
not he "liked the Union," and never told Wilson that he
had any problem with the union. From my observation of
the witness who at first affected a studied disinterest
bordering on flippancy it was clear from his demeanor that
he was far more certain and assured when giving the
abbreviated form of the conversation to which he first
testified and as essentially reflected in his pretrial affidavit.
When responding to attempts by Respondent's counsel to
lead him into specifics he was anxiety prone and far less
assured but when affirming his pretrial affidavit, he
displayed an obvious relief. I conclude that he did not
verbalize to Roger Wilson dissatisfaction with union
representation, per se, and that his expressed objection was,
as he put it in his first response, that he did not want to pay
union dues but that he would do so in order to keep his job.
This also is more in accord with Wilson's testimony at the
hearing.
Mae Musgrove had been hired by Roger Wilson in early
September 1975 and worked until June 1976, as a checker.
Wilson testified that no reference was made in her hiring
interview to the subject of the "union matter" and that the
first occasion to discuss the union arose "two or three
weeks" after her employment commenced when she
approached him and initiated the conversation by stating
that she did not wish to belong to the union; that she felt
that the union did not represent her; that she never met a
union representative; that she did not wish to pay dues but
rather needed the money for her children and that she
received no benefit from the union. Wilson testified that he
merely responded that he was sorry but she had to belong
to the union as a precondition to her employment.
Mae Musgrove testified that the subject of the union
arose for the first time when she received a letter from the
union requesting dues sometime in September or October
1975 and thereupon approached Wilson asking him if she
had to belong and "if there wasn't something that I could
do to keep from it and he said 'no.' " She further testified
that she also told him at that occasion that "I didn't like the
union and I hated to join something that I didn't like at all,
but to keep my job, I would do it." In her pretrial affidavit
executed on January 12, 1976, she stated:
When I came to work at Roger's he told me that if I
worked here I would be required to join the Retail
Clerks Union. At the time I told him I did not want to,
but that I would if I had to. Since that time I have never
discussed with Roger anything about the union. The
only time the subject was ever mentioned was on those
occasions when he got letters from the union telling him
I had not paid my dues. Then the only thing said was
just that he had received the letter. We did not discuss
whether he or I like the union.
Upon cross-examination in reference to her affidavit the
witness attempted to fence with counsel as to the accuracy
of the affidavit; i.e., "yep, more or less it is [accurate]."
Upon examination she admitted that not only did the
affidavit accurately reflect what she told the Board agent
but that it is accurate with respect to its substance. Again
the demeanor of the witness convinces me that the truth of
the matter is revealed by her affidavit and that her direct
testimony was embellished with the antiunion attitudes
which she possesses now but did not express to Wilson at
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time. She gave every impression of a person engaged in
a halfhearted attempt to testify to what she realized was
inconsistent with prior affidavit testimony. I therefore
conclude that she had no conversation with Wilson in
October 1975 wherein she expressed a dislike for union
representation per se and that the only objection she ever
expressed was upon her hiring interview, and that consisted
of a statement that though she did not want to join the
union, she would do so only in order to keep her job.
Gayle Wright entered on duty as a checker in June 1975
and was employed until she quit on August 15, 1976. Roger
Wilson testified that I or 2 months after her hiring she
approached him in the store and requested his assistance
with respect to correspondence from the union concerning
union membership and that in that conversation she
complained of never seeing any union representatives
servicing the store. Furthermore, she asked him if she had
to attend union meetings, and after receiving a negative
reply she stated to him that she was "unhappy" with the
union. He testified that a month later she approached him
again asking if there were any way she could get out of her
union membership. Wilson claimed that he stated "no
way," and that she complained that she needed the dues
money to help finance her husband's college education.
Wright's testimony essentially corroborates Wilson.
Although she tended to become confused by persistent
cross-examination over whether she said in haec verba, I
don't want union representation, I am convinced by her
demeanor which I found spontaneous, cooperative, and
convincing, that she honestly did not recall her exact words
but her message to Wilson was that she received no benefit
from the union, did not want to attend meetings, did not
want to pay dues and did not desire membership. She gave
every appearance of a witness trying to give an honest,
straightforward answer to fine questions, pregnant with
legal distinction somewhat beyond her grasp. However, it is
clear to me that she had little appreciation of the
distinction between not wanting union representation and
not wanting to assume the burden of union membership;
i.e., while retaining its benefits. It is apparent that to her
when one does not support a union, one concomitantly
waives representation. Her cryptic pretrial affidavit, al-
though not as expansive as her testimony does not
contradict her testimony as it does not preclude the
possibility that a more expansive discussion took place. In
any event her affidavit, as far as it goes, corroborates
Wilson's testimony on several points: that she asked him
for assistance with respect to union correspondence, that
she was told by him that she had to be a union member,
that she needed dues money for other purposes, that she
wanted to avoid attending union meetings. Based upon the
entire testimony of Wilson and Wright and the demeanor
of Wright, I credit Wilson's testimony as to his conversa-
tion with Wright.
Wilson testified that Lureatha Stephens, a checker of 12
years' tenure, approached him in the store in August or
September 1975 and told him that she did not wish to
continue her union membership, that though she had
supported the union by going on strike in 1972 she had
received no representation nor any communication from
the union, and that she "wanted out."
Stephens testified that she approached Wilson because
she realized that it was about time for the union contract to
expire and therefore she told him that she did not want to
be "affiliated with" the union anymore. On cross-examina-
tion by counsel for the General Counsel she conceded that
she also told Wilson that she did not wish to engage in
another strike "for anyone," and that she "wouldn't go
through that again." She engaged in the 1972 strike and
performed picket duty. However, Counsel for the General
Counsel again upon assiduous cross-examination obtained
her concession that she did not say in haec verba: "I do not
wish to be represented by the Retail Clerks Union," but she
was certain that in some form or another she told Wilson
that she did not wish to "be in " or "affiliated with" the
union. When confronted with her affidavit and demanded
to point out such verbage, therein, the witness sincerely
and calmly explained that the thrust of what was stated in
the affidavit amounts to the same thing i.e., that she
wanted no further union membership. I readily agree. Her
affidavit recites that she told Wilson that she did not see
any benefit to her from the union, that her dues were
wasted because she received nothing in return and that she
would never "walk the streets again (strike) for no more
than we get out of it." To see within the four corners of
such approbium any hint that the speaker might not
necessarily wish to withdraw from union membership or
that the speaker desired to retain such representation is an
exercise in pure fantasy. The witness impressed me as
honest, straightforward, spontaneous, dispassionate, and
fully credible.
Roger Wilson testified that employee Ed Musgrove, who
was hired in August 1975, engaged him in a conversation in
September 1975, wherein Ed Musgrove stated that he did
not wish to retain union membership nor to continue
paying union dues. Wilson testified that he told Musgrove
that he was obliged to continue his membership. Ed
Musgrove was not called as a witness by Respondent, nor
as a rebuttal witness by the General Counsel. At the first
hearing Ed Musgrove testified that such a conversation
occurred but he placed the date "around December," and
that it was occasioned by the receipt by him of several
delinquent dues notices from the union. On cross-examina-
tion Wilson conceded that he was not sure of the date but
he "thought" it was earlier than December.
Wilson finally testified that he interviewed Will Ingram
in the presence of Gregory Eairheart and no reference was
made to the union but that a month after his hiring in late
summer of 1975, Ingram told him that he did not wish to
continue union membership. Ingram testified at the first
hearing in corroboration of Wilson but not at the second
hearing. On cross-examination Wilson conceded that
Ingram may not have expressly stated that he did not
desire union representation, but that Ingram did say that
he felt no need to belong to the union, inasmuch as "an
individual, he could handle his own job." Ingram also did
not testify at the second hearing. At the first hearing his
testimony essentially was that he told Wilson that he saw
no reason why he should have to pay union dues to keep
his job.
The affidavit of Meat Manager John Holman, dated
October 28, 1975, attached to the RM petition set forth
1060
ROGER'S I.G.A., INC.
that employees Eddie Taylor and Pat Barry, "over the past
3 months on a daily basis," stated to him that they do not
like representation by the union, do not receive any
benefits from union representation and have no contact
with the union except in the dues collection process.
In his testimony at the second hearing, Holman testified
that he hired Eddie Taylor in August 1975 for employment
in the meat department, and that in October 1975, during
several conversations, Taylor asked him if there were any
way to avoid joining the union and stated that he did not
want union representation. Holman also testified that
employee Pat Barry, who was hired in January 1975,
engaged him in a conversation in October 1975, wherein
she stated that the union took her dues money but did
nothing for her in return and that her only contact with the
union was in the dues collection process. On cross-
examination he retracted his affidavit testimony given to a
Board agent as to the number of occasions during which
these conversations arose i.e., 10 times not 90 times. He
also conceded that at one occasion he did tell Taylor that
"we could petition" for an election but he was extremely
vague and evasive as to when such conversation took place,
and how it arose.
Taylor testified that he approached Holman shortly after
receiving written notice from the union regarding the
contractual proviso requiring union membership after 30
days of employment, and that on several occasions asked
whether there was any way out of such obligation
inasmuch as he did not feel the need for union representa-
tion because he could represent himself. On cross-examina-
tion he testified that he "may have" said "something" to
Roger Wilson about his feelings but Wilson never said
anything to him about it. He was reminded of his
testimony at the first hearing to the effect that he had no
"conversation" with Wilson about the union. He attempted
to distinguish a "conversation" from a unilateral statement
by himself and then agreed with the General Counsel's
definition of a conversation which would encompass a
unilateral statement and finally conceded that perhaps he
did not say anything to Wilson. Taylor, who has had two
other successive jobs since leaving the employ of Wilson in
February 1976, did not impress me as a witness attempting
to embellish or contrive testimony to the advantage of his
former employer. He was most uncertain in his testimony
in the first place regarding whether he said anything to
Wilson at all. I therefore would not discredit him over this
inconsistency if indeed it is an inconsistency. Nor would I
discredit him for other minor inconsistencies. He impressed
me as quiet, dispassionate, disinterested witness who did
his best to recall events long past involving an employment
situation twice removed. I found him most credible.
Patricia Barry testified that in September and October
1975, she and Taylor engaged in several conversations with
Holman as they worked together in the small, closed-off
meat department, cutting and preparing the meat; and that
in these conversations Taylor and she told Holman several
times that they did not wish to join the union, nor to pay
dues. She also testified that she told Holman in one
conversation in September that she did not like paying
dues because she received no benefits in consequence, and
that Holman merely responded "well, that's just the way it
is." In cross-examination Barry assented to counsel for the
General Counsel's question that all she ever told Holman
was that she did not "like to have to pay the union dues."
Upon further questioning it was clear to me that the
witness was not restricting her earlier testimony but merely
telescoping her testimony in an effort to give a prompt and
cooperative answer. Although somewhat tense, she im-
pressed me as an objective, sincere, and straightforward
witness.
In view of the credible testimony of Barry and Taylor, I
credit the substance of Holman's testimony. Thus, al-
though Holman tended to embellish his affidavit testimony
by exaggerating the number of conversations with Barry
and Taylor, I conclude that Taylor told Holman that he
did not desire union representation; that Barry told
Holman she did not want to pay dues, saw no benefit from
union representation, and did not desire to maintain
membership.
H. Analysis - 8(a)(l)
Roger Wilson, as early as 1974, looked forward to the
day when his employees would vote out the union. Gregory
Eairheart's uncontradicted testimony reveals that Wilson
took a cavalier attitude toward the union inasmuch as he
failed to notify the union that new employees had been
retained.
Against this background the General Counsel has
adduced the testimony of Charlene and Gregory Eairheart,
and former employee Tarkington, a former employee and
friend of Gregory Eairheart, and Tarkington's friend
Carter, in support of his 8(aX)) allegations. As noted
earlier I discredit the testimony of Charlene Eairheart.
I also discredit the testimony of Gregory Eairheart,
Tarkington, and Carter, which I find inconsistent with one
another as to form and substance of conversations, as well
as to such details as who was present during alleged
interrogations. I am more impressed by the testimony of
Respondent's employee or former employee witnesses who
denied any interrogations. I found them more spontaneous.
straightforward, and sincere, despite some inconsistencies
in some testimony with pretrial affidavits in reference to
what was stated regarding the repudiation of the union. I
conclude that no systematic interrogation of job applicants
took place as testified to by Gregory Eairheart.
Despite Eairheart's much more calm appearance in
demeanor than that of his wife, I found that his blithe
disclaimer of any resentment toward Roger Wilson for his
termination totally unconvincing. His own testimony
reveals that he was discharged under circumstances where
he thought he was being blamed directly or indirectly for
missing funds. Merely because Roger Wilson offered to
characterize the termination as a reduction in managerial
staff and did not oppose an unemployment compensation
claim, could not have taken the sting out of such a
termination which led to unemployment from August 1975
to January 1976.
More importantly I found him to be vague and
conclusionary in his testimony. His demeanor gave me the
impression that he was most at ease in giving generalized
testimony but that when compelled to get into specifics and
name names and fix dates he responded with answers for
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sake of giving some answers, even though they were
speculative. Thus his testimony was not even consistent
with Tarkington and Carter.
With respect to Tarkington, I found him most unimpres-
sive. I conclude that he in fact freely gave a statement to
Respondent's counsel knowingly inconsistent with his
affidavit given to a Board agent, but he attempted to
explain it away by testifying that he did not "hear" it read
that way to him by Respondent's counsel. His version of
his alleged prehire interrogation varied from his affidavit
and from his testimony at the first hearing. One version
would seem to suggest that Wilson was merely informing
him that the store was a union store and he was being
asked whether he was for or against it because he would
have to join the union. Further inconsistencies with
Eairheart's version are noted above.
Tarkington's testimony regarding the alleged August 11,
1975, conversation with Wilson concerning the interroga-
tion of fellow employees is most unconvincing. Despite
pretrial investigation and two hearings he could not
identify the employees with whom he spoke. No attempt
was made in any way to describe in any form these
persons. His account of what he said to them was given in a
hesitant, strained, and uncertain manner. In sum, I totally
discredit his testimony.
The General Counsel places great emphasis on the
testimony of a witness called by the Charging Party, and
whose testimony at the first hearing prompted a motion to
amend the complaint at the second hearing; i.e., Phillip
Carter.
Carter's testimony of interrogation and threat of nonhir-
ing was more stark and explicit than anything else offered
by Eairheart or Tarkington. In no other testimony does
anyone picture Roger Wilson expostulating on current
"troubles" with the union. In fact there is not the slightest
hint of any union conduct that might have exacerbated
Wilson. Other employee testimony which I have credited
reveals that some employees complained of the lack of the
presence of union representatives at or about this time.
Carter also testified that Wilson referred to "elections every
so often." There had not been an election at the store in
Wilson's memory. Either Carter was grossly exaggerating
his testimony or it was pure fabrication. Perhaps such
intensive interrogation might have been prompted by
Wilson's expectancy of a key employment role to be played
by Carter. This explanation, however, is untenable in light
of Carter's testimony on cross-examination.
During his direct-examination Carter was unruffled. On
cross-examination a nerve was struck, however, when
Carter was forced to concede that he was not truthful when
he testified that he told Wilson that he was "just looking
for a job," but that he told Wilson rather that he only
wanted a summer job because he could not work upon the
fall school term because of his commitment to engage in
athletics. Carter's retraction of his previously confident,
cool, and certain response was of course necessary,
otherwise he would have conceded engaging in a deception
to obtain a job. However, his concession raises a question
serious enough to cast a doubt upon his entire testimony;
i.e., why would Wilson go through such an exercise with a
high school student who would not be employed at the
election. Eairheart's testimony that Wilson wanted him to
try and persuade summer employees to stay on is totally
undercut by the lack of any corroborating testimony of
such attempt by Carter himself. Furthermore, Carter
testified to no such attempt by Wilson.
In addition to the lack of inherent probability in Carter's
testimony, I also found his overall demeanor unconvincing,
slick, and artificial, especially in light of his sudden change
in attitude and tone in cross-examination. Accordingly, I
discredit him entirely.
In view of the foregoing, I conclude that the General
Counsel has failed to sustain his burden of proof with
respect to the 8(a)(1) allegations in the complaint with
sufficient credible testimony.
1. Analysis - 8(a)(5)
Respondent recognizes that under Board precedent an
incumbent union enjoys a rebuttable presumption of
majority status. Respondent, however, argues that such
"legal fiction" should not be viable under the circum-
stances of this case; i.e., where Respondent employer has
timely withdrawn from a multiemployer unit, and where
there is no evidence that any election has ever been held in
the multiemployer unit or in the individual unit. Respon-
dent quotes at length the observations of Board Member
Walther in his dessent to Tahoe Nugget, Inc. d/b/a Jim
Kelley's Tahoe Nugget, 227 NLRB 357 (1976), wherein the
majority opinion held that the union's presumption of
majority status based on its recognition as the bargaining
representative for Respondent's employees as part of a
multiemployer unit survives a timely withdrawal from such
unit. The Board has subsequently reaffirmed that holding.
Finally, Inc. d/b/a Palace Club, 229 NLRB 1128 (1977);
Nevada Club, Inc., 229 NLRB 1186 (1977); Sparks Nugget,
Inc., d/b/a John Ascuaga's Nugget, 230 NLRB 275 (1977). I
find nothing in this case that would obviate the logical
force of the Board's pronouncements, and its application
herein. With respect to the contention that no election has
ever been held, it must be presumed that when recognition
was granted, Respondent acted lawfully and that the
Union was indeed the majority representative of the unit
employees, Finally, Inc. d/b/a Palace Club, supra; Sparks
Nugget, Inc., supra; While Castle System, Inc., 224 NLRB
1089, 1090(1976).
Accordingly, an evaluation must be made as to whether
at the time of the withdrawal of recognition, the union
actually did not possess a majority statue or that Respon-
dent entertained a reasonable doubt as to that continued
majority status based upon objective considerations.
Finally, Inc. d/b/a Palace Club, supra; Guerdon Industries,
Inc., Armor Mobile Homes Division, 218 NLRB 658 (1975);
Automated Business Systems, a Division of Litton Business
Systems, Inc., etc., 205 NLRB 532 (1973); Terrell Machine
Company, 173 NLRB 1480 (1969); Celanese Corporation of
America, 173 NLRB 1480, enfd. 427 F.2d 1088 (C.A. 4,
1970).
With respect to the objective criteria, employee turnover,
of itself, is insufficient upon which to premise or base
reasonable doubt. Dalewood Rehabilitation Hospital, Inc.
d/b/a Golden State Habilitation Convalescent Center, 224
NLRB 1618 (1976). Furthermore, as the General Counsel
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ROGER'S I.G.A., INC.
and Charging Party point out the Board has in many cases
held that evidence of employee disinclination to pay dues
or maintain membership is also not determinative of
employees desires to retain union representation per se; i.e.,
an employee may not desire to assume his individual share
of the financial burdens of representation, or the burden of
membership, but it does not necessarily follow that he
desires to become unrepresented by the union or to be
employed in an unrepresented unit. Finally. Inc. d/b/a
Palace Club, supra; Washington Manor, Inc., doing business
as Washington Manor Nursing Center (North), 211 NLRB
324 (1974); Orion Corporation, 210 NLRB 633 (1974);
United Supermarkets, Inc., 214 NLRB 958 (1974); Wald
Transfer & Storage Co. and Westheimer Transfer & Storage
Co., Inc., 218 NLRB 592 (1975); Dalewood Rehabilitation
Hospital Inc., supra; Guerdon Industries, Inc., supra; Terrell
Machine Co., supra.
On October 29, 1975, there were 13 employees in the
unit. Of these I conclude that four employees. Wright,
Stephens, Taylor, and Barry, indicated to Respondent a
desire for nonrepresentation by the union. Clearly, a
statement that the employees no longer wishes to pay dues
and retain membership in a union for the stated reason that
the union is of no benefit negates any inference that the
employee desires representation albeit gratis representa-
tion.
However, with respect to four other employees who
spoke to the Employer in reference to the union, they did
not disavow a desire for continued union representation.
Meadows and the Musgroves' expressed a dislike for
paying dues and joining the union. With respect to Ed
Musgrove, I find Wilson's testimony so evasive and
uncertain as to the date of the conversation that I cannot
conclude that it preceded October 29, 1975. 7
With respect to the Ingram conversation, Wilson's
account is inconsistent with that of Ingram. Ingram merely
testified that he told Wilson that he could not understand
why he had to pay dues to retain employment. Wilson's
testimony as to what Ingram actually said was uncertain
and confused. As he conceded on cross-examination when
an employee indicated an aversion to union membership
and paying union dues, he assumed that the employee was,
in effect, saying that he did not desire union representation.
To him, there was apparently no distinction. I conclude
that Wilson tended to blur in his recollection the various
conversations with employees, and thus attributed to
Ingram the added embellishment that Ingram could
"handle his own job," which is in essence what Taylor
stated to Holman.
I therefore conclude that prior to October 29, 1975, three
employees, Meadows, Mae Musgrove, and Ingram merely
voiced an objection to paying dues and to compulsory
membership required by the union-security clause in the
contract, and that the remaining six employees had made
no explicit disavowal of union representation.
Respondent argues that a realistic interpretation of the
statements of all employees justify Respondent's conclu-
sion that a majority of the employees no longer desired
union representation; i.e., within the context of four
7 E.G., Wilson, after being referred to Musgrove's earlier testimony,
conceded that he had no reason to disbelieve Musgrove's dating the
conversation in December 1975.
employee's explicitly disavowing union representation, the
reasonable interpretation to be given to the balance of
statements is that they also were not merely objecting to
dues and compulsory union membership but to union
representation as well. In support of its argument, Respon-
dent cites Faye Nursing Home, Inc., d/b/a Green Oak
Manor, 215 NLRB 658 (1974), wherein the Board held that
an Employer reasonably concluded that the union no
longer retained majority status despite the fact that only
one employee of 24 employees testified at the hearing that
she told the director of nursing that she did not desire
continued union representation. However, in that case the
credited testimony of the director of nursing reflected that
all of the employees expressed to her dissatisfaction with
the union "and either said they did not want the union, or
they did not want any part of the union." In the instant
case, there is no evidence of such clear exposition of
attitudes of the majority of the employees. There is, herein,
no evidence that the employer was directly or indirectly
advised that except for four employees who spoke only for
themselves that the remaining employees did not want
representation or were dissatisfied with union representa-
tion as such.
To Wilson, who had long harbored a desire and hope
that employees would some day renounce the union, the
repudiations by four employees provided a long awaited
opportunity and colored his perception of what other
employees said in reference to the union. Some employees,
like Gayle Wright, may not conceive of accepting the fruits
of union representation without also accepting the burden
of membership. However, the Board has stated many times
that is is not reasonable to draw a correlation between
financial support-membership and a desire for union
representation.
In the instant case, despite efforts by Respondent to
frustrate the Union's attempts to enforce the union-security
proviso by withholding the names of newly hired employ-
ees, that proviso was enforced and each employee ultimate-
ly paid dues until up to October 1975. Moreover, there is
insufficient evidence to indicate that the Union had
generally failed to police and enforce the entire contract.
Although some employees complained of the lack of
individual rapport and contact with their representative,
there is no evidence upon which to conclude that the
Union was dormant. Indeed, one of the complaining
employees, Wright, was concerned as to whether she was
obliged to attend meetings held by the Union. Accordingly,
I find nothing in the circumstances of this case that would
provide Respondent with a justification for concluding in
October 1975, that the four employees who objected to
paying dues and/or maintaining union membership as
required by the union security clause had objected to
anything more than that. I conclude that it was not
reasonable for Respondent to transpose the explicit
objections to union representation of four employees to
four additional employees who had expressed a much more
limited objection. Therefore, I find that Respondent,
having been confronted with objective evidence of dissatis-
faction with continued representation of 30 percent of the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit, did not have reasonable grounds to doubt that the
majority of his employees continued to desire union
representation; and I conclude that Respondent has failed
to rebut the presumption of majority status and thereby
violated Section 8(a)(l) and (5) of the Act by, on October
29, 1975, withdrawing recognition of the Union, refusing to
bargain with the Union, and thereafter, refusing to furnish
the Union with information necessary for collective
bargaining. The fact that Respondent concurrently filed an
RM petition with the act of withdrawing recognition is in
no way mitigating. Faye Nursing Home, Inc., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, 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.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
I. Roger's I.G.A., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Clerks Union Local No. 73, affiliated with
Retail Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees who are engaged in handling or selling
merchandise or performing other services incidental
thereto in the Employer's establishment located within
Henryetta, Oklahoma and vicinity whether owned,
leased, licensed or operated directly or indirectly by the
Employer, excluding supervisors, guards and watchmen
as defined in the Act.
4. At all times material herein, the Union has been, and
is, the exclusive representative of all employees in the
above-described appropriate unit for the purposes of
collective bargaining.
5. By withdrawing recognition from the Union and by
refusing to bargain with the Union as the exclusive
bargaining representative of the employees in the unit
described above, concerning the wages, hours, working
conditions and other terms and conditions of employment
of the employees in the unit, and by refusing thereafter to
provide the Union with information necessary for collec-
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
tive bargaining, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(aX1) and (5) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER8
The Respondent, Roger's I.G.A., Inc., Henryetta, Okla-
homa, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Retail Clerks
Union Local No. 73, affiliated with Retail Clerks Interna-
tional Association, AFL-CIO, as the exclusive bargaining
representative of the employees in the appropriate bargain-
ing unit describe above, with the regard to the wages,
hours, working conditions, and other terms and conditions
of employment of the unit employees.
(b) Failing or refusing to supply Retail Clerks Union
Local No. 73, affiliated with Retail Clerks International
Association, AFL-CIO, with information necessary for
collective bargaining.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Retail Clerks Union Local No. 73, affiliated with
Retail Clerks International Association, AFL-CIO, as the
exclusive bargaining representative of the employees in the
appropriate unit described above, with regard to the wages,
hours, working conditions, and other terms and conditions
of employment of the unit employees, and if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Upon request provide the above-named Union with
information necessary for collective bargaining.
(c) Post at its Henryetta, Oklahoma, place of business
copies of the attached notice marked "Appendix." 9 Copies
of the notice on forms provided by the Regional Director
for Region 16, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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ROGER'S I.G.A., INC.
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that as to all allegations of the
complaint not specifically found to have been violations of
the Act, those allegations be dismissed.
1065