Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1718 (N.L.R.B. 1954)

1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent, advised Mr. Fernandez , by letter dated December 18, 1952 , that "the comp in y
is without knowledge as to whether or not your union represents a majority of its
production and maintenance employees and therefore must decline to recognize y )t r
union as the collective bargaining agent at this time." The Union thereupon filet its
petition with the board seeking a representation election . Respondent participf to i
in the hearing . An election was ordered by the Board, and on the very day set fcr
the holding of the election , the Union withdrew its petition and the Board cance lei
the election . The record contains no other evidence of a request to bargain.
The Act requires an employer to bargain in good faith with the representative so -
lected by a majority of employees in a unit appropriate for collective bargain n1;,
and Section 8 (a) (5) makes it an unfair labor practice for an employer to refus,: t J
do so . However , here an appropriate unit had not been established nor did the Ur io n
offer to prove to the Employer that it was in fact the duly authorized bargair in g
agent for the employees which it purported to represent.
While the Board and the courts have held that a refusal to bargain made in con -
plete good faith by an employer under circumstances of this character may be c of -
verted into a refusal to bargain through the employer subsequently committing of h( r
violations of the Act, as I have already found , the General Counsel has failec I o
establish by credible evidence that any other violation charged in the compl iii,t
was in fact committed by the Respondent. The burden of establishing that the
Respondent failed or refused to bargain in good faith with the Union rests upon the
General Counsel . I find and conclude that he has failed to prove that the Responc ei,t
violated Section 8 (a) (5) of the Act.
During the course of the trial the Respondent moved the Trial Examiner to strike
from the record the portions of the testimony of the General Counsel's witnesses
Essig, Tyskiewicz, Rimbocchi, Swift, Campbell, Yarochoviez, and Johnson , wl.ich
related to alleged conversations with Salusberry, the Respondent 's acting plant n ai L-
ager . The basis of the motion, which was renewed in Respondent 's brief, being h:Lt
the statements attributed to Salusberry by these witnesses were permissible as "'rc e
speech" under Section 8 (c) of the Act. I overruled the motion at the hear-n,;,
but since counsel have seen fit to renew it in the brief the matter perhaps dese vcs
at least passing comment . Since this testimony is not properly subject to a mo icn
to strike I, therefore , adhere to my former action in overruling Respondent's no-
tion . In this connection , it seems not improper to state that had Respond( nt's
counsel , instead of this motion , at the close of the General Counsel's proof-in-cl ie f,
moved to dismiss the complaint in its entirety because the General Counsel's fai uie
to make out a case, I would have felt constrained to grant same.
In consideration of all of the foregoing , I find that the Respondent did not viola e
Section 8 (a) (1), (3), or (5) of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, is a
labor organization within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent Pyne Moulding Corporation is engaged in commerce within tLe
meaning of Section 2 (6) and (7) of the Act.
3. Respondent Pyne Moulding Corporation has not engaged in any unfair h bor
practice within the meaning of the Act.
[Recommendations omitted from publication.]
SAFEWAY STORES , INCORPORATED and RETAIL CLERKS INTERNATIO71 L
ASSOCIATION, AFL. Cases Nos. 33-CA-f335 and 33-CA-238. 0 ;-
cember 16,1954
Decision and Order
On December 10, 1953, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding t heat
the Respondent had engaged in and was engaging in certain un- 'air
labor practices and recommending that it cease and desist therefi'o n
110 NLRB No. 242.
SAFEWAY STORES, INCORPORATED 1719
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed'
exceptions to the Intermediate Report and a supporting brief.
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 Inter
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations, with the additions and modifications noted below.
1. We agree with the Trial Examiner that the Respondent, in vio-
lation of Section 8 (a) (1) of the Act, interfered with, restrained, and
coerced its employees in the exercise of their self-organizational rights.
We also agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) and (1) of the Act by discriminatorily discharg-
ing Betty Null because of her union activities.'
2. Like the Trial Examiner, we find that the Respondent, in viola-
tion of Section 8 (a) (5) and (1) of the Act, failed to perform its
statutory obligation to bargain with the Union as the majority repre-
sentative of the Respondent's employees in an appropriate unit.
As discussed in the Intermediate Report, after the Union secured
membership application cards from a majority of the Respondent's
employees at the store involved herein, designating the Union as
their representative, it requested recognition from Pottinger, the
Respondent's agent, who was in charge of labor relations in the area
in which this store is located. Although Pottinger did not question
the Union's majority-nor does the Respondent do so now-Pottin-
ger declined to grant recognition without a Board certification and
disagreed with the Union's proposed inclusion of the meatcutter in
the unit .2 Thereupon, the Union filed a representation petition with
the Board. In the meantime, the Respondent's store manager, Henry,
resumed with greater intensity his earlier course of coercive conduct
designed to prevent the unionization of the employees. This conduct,
fully described in the Intermediate Report, consisted of numerous
threats of economic reprisals if the store became unionized, such as
loss of employment and benefits and reduced wages; interrogation of
'Inasmuch as no exception has been taken to the Trial Examiner 's finding that the Re-
spondent did not discharge Doyle Collins because of union activity , we shall adopt his
finding pro forma.
2 In addition to the meatcutter , the Respondent requested at the representation hearing
the exclusion of part -time employees, whom the Union desired to include, and the tem-
porary replacement manager As the Trial Examiner found, the meatcutter and the part-
time employees , who were regularly employed , are properly includible in the unit With
respect to the temporary replacement manager, he would have been excluded from the
Union's proposed unit at least as a supervisor.
We do not agree with the Trial Examiner that Pottinger , who denied any knowledge
that Sapion , the meatcutter , worked part-time in the grocery section of the store at the
time of the Union's request for recognition, is chargeable with such knowledge. How-
ever, this lack of knowledge does not affect the inclusion of the meatcutter in the unit.
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees on many of these occasions concerning their union mem-
bership and the identity of the instigator of the union movement; and
instructions to employees to remove their union buttons. This cam-
paign against the Union culminated in the discriminatory discharge
of Null because of her union activity. As a result of the foregoing
conduct, the Union, with the Board's consent, withdrew its represen-
tation petition after hearing.
The Respondent contends that it was under no obligation to bargain
with the Union unless the Union was first certified after a Board elec-
tion inasmuch as it had questioned the Union's proposed bargaining
unit in good faith. We do not agree. A certification is not an indis-
pensable condition precedent to an employer's obligation to bargain 3
An employer motivated by a good-faith doubt as to the appropriate-
ness of the unit of employees for which it is requested to extend recog-
nition may lawfully refuse to grant such recognition without a certifi-
cation. However, if the employer in insisting upon a Board election
and a Board certificate is motivated not by a good-faith doubt, but by
a "desire to gain time and to take action to dissipate the union's ma-
jority, the refusal is no longer justifiable and constitutes a violation
of the duty to bargain set forth in Section 8 (a) (5) of the Act." 4
In the present case, while one agent of the Respondent was insist-
ing upon an election, another was engaging in an extensive series of
unfair labor practices calculated to undermine the Union's majority.
We agree with the Trial Examiner that in determining the Respond-
ent's good or bad faith we must consider not only the conduct of the
particular agent who demanded an election, but also that of its other
agents who engaged in conduct for which the Respondent is responsi-
ble. We find therefore that the Respondent's apparent initial good-
faith request for an election was dissipated by Store Manager Henry's
illegal conduct, plainly having the effect of destroying the Union's
majority, and that viewing the Respondent's conduct as a whole its
action was in bad faith.5 Accordingly, as the Union represented a
majority of employees in the appropriate unit at the time of the Re-
spondent's refusal to recognize and bargain with the Union, we find,
as did the Trial Examiner, that the Respondent thereby violated Sec-
tion 8 (a) (5) and (1) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National La-
bor Relations Board hereby orders that the Respondent, Safeway
3 N. L. R. B. v. Kobritz, d/b/a Star Beef Company, 193 F. 2d 8, 14 (C. A. 1).
4Joy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732, 741 (C. A., D. C.), cert. denied 341
U. S. 914.
5 Pyne Moulding Corporation, 110 NLRB 1700.
SAFEWAY STORES, INCORPORATED 1721
Stores, Incorporated, Deming, New Mexico, its officers , agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Retail Clerks Interna-
tional Association, AFL, as the exclusive representative of all em-
ployees at its Deming, New Mexico, store, excluding supervisors.
(b) Discouraging membership in Retail Clerks International As-
sociation, AFL, or in any other labor organization of its employees, by
discharging employees or discriminating in any other manner against
them with respect to their hire or tenure of employment, or any term
or condition of employment, except to the extent permitted by Section
8 (a) (3) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Retail Clerks Interna-
tional Association, AFL, as the exclusive representative of all em-
ployees at the Respondent's Deming, New Mexico, store, excluding
supervisors, with respect to wages, rates of pay, hours of employment,
and other terms and conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Make whole Betty Null for any loss of pay suffered by her by
reason of the discrimination against her, in the manner set forth in
the Intermediate Report, attached hereto, in the section entitled "The
Remedy."
(c) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to determine the amount of back pay due under the
terms of this Order.
(d) Post at its store at Deming, New Mexico, copies of the notice
attached to the Intermediate Report marked "Appendix A." 6 Copies
of such notice, to be furnished by the Regional Director for the Six-
6 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof the words "A Decision and Order ." In the event
that this Order is enforced by decree of a United States Court of Appeals , there shall be
substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to
a Decree of the United States Court of Appeals , Enforcing an Order."
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon re-
ceipt thereof and maintained by it for a period of sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, as to what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
Doyle Collins was discriminatorily discharged for union activity in
violation of Section 8 (a) (3) and (1) 'of the Act, be, and it hereby
is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, is based upon charges duly filed by Retail Clerks International
Association , AFL, herein called the Union, against Safeway Stores, Incorporated,
herein called Respondent . Pursuant to said charges, the General Counsel of the
National Labor Relations Board issued separate complaints against Respondent and
consolidated the cases on September 25, 1953; the complaints alleged that Respondent
had engaged in unfair labor practices within the meaning of Section 8 ( a) (1), (3),
and (5 ) of the Act. Copies, of the charges, complaints , order consolidating cases,
and notice of hearing thereon were duly served upon Respondent.
Specifically , the complaints alleged that Respondent had: (1) Discharged Doyle
Collins and Betty Null on May 16 and July 22, 1953, respectively , because of their
union and concerted activities ; (2) since May 16, 1953, engaged in various specified
acts of interference , restraint, and coercion directed against the Union and con-
certed activities of its employees; and ( 3) since July 13, 1953, refused to bargain
collectively with the Union as the representative of a majority of its employees in
an appropriate unit . The answers of Respondent denied that Null had been dis-
charged ; alleged that Collins had quit ; and alleged that a good-faith dispute existed
as to the appropriateness of the bargaining unit sought by the Union.
Pursuant to notice , a hearing was held at Deming , New Mexico, on October 12,
1953, before Trial Examiner Martin S . Bennett, duly designated by the Associate
Chief Trial Examiner . The General Counsel and Respondent were represented by
counsel and the Union by its representative , all of whom participated in the hearing
and were afforded full opportunity to be heard , to examine and cross-examine wit-
nesses, and to introduce relevant evidence . At the close of the hearing , all parties
were afforded an opportunity to argue orally and to file briefs and/or proposed find-
ings and conclusions . The General Counsel argued orally and Respondent has sub-
sequently submitted a brief together with proposed findings of fact and conclusions of
law. Proposed findings 2 and 5 are accepted and the remainder are rejected. Pro-
posed conclusions 1 and 2 are not accepted.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Maryland corporation which has its principal office at Baltimore,
Maryland , and is engaged in the retail distribution and sale of food at locations in 23
States and the District of Columbia, including a store at Deming, New Mexico, which
is the site of the present dispute. It also maintains warehouses in various States of
the United States, including one at El Paso , Texas. During the 12 -month period end-
ing August 30, 1953 , Respondent sold food products at its Deming store valued in
excess of $250 ,000, of which approximately 90 percent was shipped to said store
from the warehouse at El Paso , Texas. I find that Respondent is engaged in com-
SAFEWAY STORES, INCORPORATED 1723
merce within the meaning of the Act. See Safeway Stores, Inc., 103 NLRB 758, and
Amalgamated Meat Cutters, et al. (Safeway Stores, Inc.), 101 NLRB 181.
H. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, AFL, is a labor organization admitting
to membership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
In July 1953, the Union commenced an organizational campaign among the
employees of Respondent at its only store in Deming , New Mexico. Insofar as the
record indicates, the employees of this store had not been previously represented by
a collective-bargaining representative. Presented for decision is whether Respondent
thereafter discharged Betty Null for her union activities and refused to bargain col-
lectively with the Union. Also to be decided is the issue of the discharge of Doyle
Collins at an earlier date, on or about May 16, 1953, as well as an alleged campaign
of unlawful interference, restraint, and coercion both preceding and following the
advent of the Union.
On July 11, 1953, Elia Mosesso, a general organizer for the Union, appeared at
the Deming store and introduced himself to Joe Rodriquez, Jr., a clerk in the store
to whom he had been referred. Manager Floyd Henry was on vacation at the time
and his place was filled by a temporary transfer from another store. Mosesso also
introduced himself to this replacement, one Davenport, explaining the purpose of his
visit. An initial meeting was arranged for that evening at the home of Rodriquez;
it was attended by approximately seven employees of the store including Betty Null
whose discharge is hereinafter discussed. All of those present signed membership
application cards which also designated the Union as their collective-bargaining repre-
sentative. Respondent then had a total of approximately nine full-time and part-
time employees.
On or about July 13 two other employees, Quarrell and Trejo, signed cards. It
appears that from July 11 on there was no question but that the Union represented
all or substantially all of the employees of the store. Respondent does not challenge
the majority representation of the Union but, as will appear hereinafter, bottoms
its defense to the refusal to bargain charge primarily upon the composition of the
unit sought by the Union, specifically, its opposition to the inclusion therein of the
meatcutter, one Carlos Sapien.
On July 15 the Union filed a representation petition in Case 33-RC-459 for an
election at the Deming store in a unit covering "all food clerks excluding guards and
supervisory employees." The petition was amended on July 21 so as to reflect a
unit of "all employees" at the store excluding supervisors. A hearing was held on
the petition, as amended, on August 4. The Union later concluded that Respondent's
position in the entire matter had been one of bad faith and requested withdrawal
of the petition. The Board granted this motion on September 9, 1953.
B. Interference, restraint, and coercion
Actually, the unlawful conduct by Respondent, set forth below, antedated the
organizational campaign which commenced in July 1953. For, as Store Manager
Floyd Henry testified, he was informed in May that his employees were organizing
in a union. Erroneous as the information was, Henry accepted it as factual and
proceeded accordingly. His motivation therefore is to be considered on the same
basis as though a union organizational campaign actually were being conducted.
And, in any event, Henry admitted that employee Doyle Collins was advocating
union organization for the employees of the store, which appears to have been
the fact.
The statements set forth below are, with one exception, attributed to Henry, and
save as indicated, are undenied. One statement attributed to Head Meatcutter
Maure is not relied on herein, in the absence of definitive evidence as to his super-
visory status; moreover, it would only be cumulative and would call for no remedy
beyond that applicable to the other conduct. I deem it significant to an evaluation
of Henry's conduct that it went beyond mere interrogation in the business interests
of his Employer, was not based upon idle curiosity, and that it culminated in a
discharge, that of Null, hereinafter found to be violative of the Act.
Thus, on or about May 12, Henry, according to the uncontroverted testimony
of Doyle Collins, spoke to Collins as well as employees Quarrell and Joe Rodriquez.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He asked Collins if he had been discussing union organization when Henry entered
the store some minutes earlier; Collins admitted that he had. Between then and
May 16 Henry spoke further to Collins. He stated that he had been advised that
Collins was advocating union organization , that Collins should stop discussing the
matter; and that the entire complement of employees including Collins would lose
their jobs if they persisted in such discussion.
On May 16, Collins' employment with Respondent terminated under circum-
stances to be set forth hereinafter . At the close of business , Henry convened the
employees and addressed them. The uncontroverted testimony of employees Joe
Rodriquez , Betty Null, and Dolores Sainz is in substantial agreement as to the tenor
of his remarks on this occasion . Henry stated that there had been considerable
unrest in the store and that , as a result , he had discharged Collins that day because
Collins had introduced the subject of union organization in the store . He added that
if a union did come into the picture , the employees would be deprived of time off
for coffee and haircuts as had been the practice . He concluded by stating that he
had discussed the matter with his superior , G. B. Miller, who is district manager
over the Deming and 19 other stores , and that Miller had authorized him to discharge
all connected with any union organizational campaign . Henry's supervisory status
is undisputed and I deem it immaterial whether or not he actually conferred with
Miller on this occasion . The fact is that Henry spoke as an agent of Respondent
acting within the scope and in the area of his apparent authority and his remarks
are accordingly binding upon Respondent . See N. L. R. B. v. G. W. Thomas Drayage
cC Rigging Co., Inc., 206 F. 2d 857 (C. A. 9).
As stated , the Union commenced its organizational campaign among the em-
ployees of Respondent and held an initial meeting on the evening of July 11; on
that occasion , employee Dolores Sainz was among those who signed an application
for membership . Several days later Henry summoned her to the back room of the
store and asked whether she had joined the Union and had signed an application
card. Sainz evaded a reply and Henry then stated that wages would be cut instead
of raised "if we would get the Union in." On several other occasions during this
period , Henry questioned Sainz concerning the identity of the instigator of the union
movement. He went on to state that he believed Betty Null to have been behind
the campaign and that at the first opportunity "he would get rid of her."
Fred Rodriquez and Manuel Armandarez were regular part-time employees of
the store who had signed union cards at the meeting of July 11. Shortly thereafter,
according to the uncontroverted testimony of Rodriquez , Store Manager Henry
approached the two employees in the store and asked them if they had "gone union."
Rodriquez admitted that he had attended the union meeting. Henry, after stating
that he could not pay them higher wages than they were receiving , announced that
District Manager Miller had advised him that "he could fire any of us that belonged
to the union."
Carlos Sapien, the meatcutter of the store , also signed a union card at the July 11
meeting. On one occasion shortly thereafter , Henry , after informing Sapien that
the Union would be of no help to the employees , stated that if Sapien signed up for
the Union , he, Henry, would reduce his working hours to 8 hours daily and thus
eliminate his overtime work and pay-it appears that Sapien had worked overtime
at least on some occasions prior thereto. Henry testified that he had not discussed
the Union "much" with Sapien and I credit Sapien 's testimony herein.
About 1 week after July 11, Henry spoke to employee Joe Rodriquez who also
had signed a union card on July 11 . On that occasion , according to the uncontro-
verted testimony of Rodriquez , Henry explained that Respondent was contemplating
the establishment of a profit -sharing plan for employees , but that if they joined
the Union , they "would not get part."
Vasilizo Trejo , an employee of the store , signed a union card on July 13. On or
about July 21, according to the uncontroverted testimony of Trejo , Henry explained
to him in a talk at the rear of the store that he would gain nothing by joining the
Union and asked Trejo if he was in favor of the Union . Trejo evaded a direct reply
to the query. Henry then stated that Trejo , if he joined the Union , would "be paid
less money."
On July 21 or 22, probably the latter, Henry's superior , District Manager Miller,
visited the store and spoke to the employees . He informed them that they were
free to join the Union or not , as they saw fit, and that Respondent would not dis-
charge or discriminate against anyone who did join . It is clear and I find that the
remarks of Miller contained no threat of reprisal or force, are not unlawful, and I
do not rely upon them in the findings that follow hereinafter.
Later the same day , however, Henry circulated among the employees who had
been wearing union buttons since the advent of the Union in the store. He in-
SAFEWAY STORES, INCORPORATED 1725
structed at least 5 individuals to remove the buttons, stating to at least 2 of them that
the store was not "union yet." The employees complied with his instruction.
After the close of business that day, Henry held a meeting of all the store em-
ployees. He commented that the store appeared to be "going union" and advised
the employees, according to the uncontroverted testimony of Joe Rodriquez, Fred
Rodriquez, Trejo, and Null which is in substantial agreement, that Miller had given
him full authority to discharge any and all of the employees, closing the store if
necessary, and that Miller would send him a new crew from El Paso in 2 hours.
Here too I deem it immaterial whether or not Miller actually gave Henry these
instructions. N. L. R. B. v. G. W. Thomas Drayage & Rigging Co., Inc., supra.'
From the foregoing it is clear, and I find, that Henry strongly resented the ad-
vent of the Union in the store. He engaged in considerable talking in an effort to
restrain and coerce the employees of Respondent in their organizational activities.
His comments went beyond expressions of opinion and contained threats of economic
reprisal, some of them of a drastic nature. And his interrogation concerning their
union activities, viewed realistically in this context, was not predicated upon mere
curiosity or the seeking of information but represented a more basic motive to elim-
inate these activities; as will appear more fully in the case of Null, it resulted in a
discharge for discriminatory reasons.
I find therefore that by interrogating employees concerning their union activities;
by threatening them with the loss of their jobs if they persisted in union activities
and discussions; by stating that he had discharged an employee because of his union
activities; by threatening employees with the loss of economic and other benefits if
the Union succeeded in organizing the store; and by threatening to discharge an
employee whom he alleged to be behind the union campaign, Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the rights guar-
anteed by Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.
N. L R. B. v. West Coast Casket Co, 205 F. 2d 902 (C. A. 9); N. L. R. B. v.
Pacific Moulded Products, 206 F. 2d 409 (C. A. 9); N. L. R. B. v. Cold Spring
Granite Co., 208 F. 2d 163 (C. A. 8); and N. L. R. B. v. Calcasieu Paper Co., 203
F. 2d 12 (C. A. 5).
I further find, on the basis of established precedent, that Henry's instructions to
the employees to remove their union buttons, which were complied with, consti-
tuted further interference, restraint, and coercion of the employees in the exercise
of the rights guaranteed them by Section 7 of the Act. N. L. R. B. v. Republic
Aviation Corp., 324 U. S. 793; Boeing Airplane Company, 103 NLRB 1025; Grand
Central Aircraft Co., 103 NLRB 1114; and The DeVilbiss Company, 102 NLRB 942.
C. The discharges
1. Betty Null
Betty Null entered the employ of Respondent in December 1950 as a food clerk
and resigned 18 months later when she left the Deming area. She returned to Dem-
ing in May 1953 and asked Store Manager Henry for employment. Null was rehired
on May 15, effective May 16, and was assigned to 1 of the 4 check stands in the
market. On May 15, Store Manager Henry informed her that it would not be full-
time work but that he could use her 3 to 4 days each week. Null accepted the
offer, stating that she needed the job, provided that Henry would promise her full-
time employment when it was available. Henry agreed to this.
Null was an experienced food checker, a category which Henry admitted in his
testimony was "scarce." Her work record during both terms of employment was,
so far as the record indicates, exemplary. In fact, Respondent raises no conten-
tion herein with respect to her ability. Null was terminated on July 22, effective
July 23. The General Counsel claims that the reason for her termination was her
union activities and Respondent contends in its answer that she was laid off for lack
of work due to the return of another employee. On September 14, 1953, Null was
offered full-time employment by Henry; she accepted and was duly reinstated. Thus,
the sole issue herein relates to her loss of earnings during the period from July 23
through September 14, 1953.
As will appear below, Null was active in the Union and was regarded by Henry
as the leader of the union movement in the store. Null was among the group that
signed union cards on July 11 and she also attended the original organizational meet-
1 Henry denied that he had threatened to discharge any employees on this occasion, but
admitted, in substance, the remainder of the statement attributed to him. I do not credit
his denial
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing held that night . According to the credited and uncontroverted testimony of
Dolores Sainz, Henry asked her on several occasions who was behind the union cam-
paign . He then proceeded to state that he believed Null had started the campaign;
that he disliked her; and that at the first opportunity he would get rid of her. This is
in striking contrast to Henry 's view of Null on an earlier occasion . Thus, several
weeks after Null started work in May , and prior to the union organizational cam-
paign, some animosity toward Null developed among her female coworkers. As a
result, Henry convened the employees and stated, according to the testimony of
Sainz, Null, and Joe Rodriquez , which is in substantial agreement , that he had re-
hired Null; that he intended to keep her; that she was to get a full-time job; and
that if the other girls, Sainz and Kinnebrew, did not approve of his action he could
replace them.
Henry's belief that Null was behind the union campaign was manifested on other
occasions. During July, and shortly before the termination of Null, Carlos Sapien
overheard Henry state to Head Meatcutter Maure that Null was behind the union
organizational campaign because she was attempting to get a steady job out of the
campaign. Henry admittedly made a similar statement to Joe Rodriquez on or
about July 21, stating that he believed Null to be "agitating" for the Union in an
effort to replace someone on a steady job. Henry denied making the statement
attributed to him by Sapien. The latter was a straightforward witness whose testi-
mony I credit, particularly in view of the fact that Henry admittedly made an almost
identical statement during the same period to another employee, Rodriquez. These
comments by Henry, just prior to the termination of Null, logically flowed from his
remarks, shortly before, which were directed at Null herself. Thus, shortly after
July 11, Henry returned to the store during his vacation and, it appears, learned
promptly of the union campaign which had started on July 11 during his absence.
He commented to Null that it appeared "as though the store had gone union."
He then asked Null if she had gone "union." She admitted that she had signed a
union card.
On the following day, Henry summoned the employees to the rear room singly.
He asked Null what she hoped to gain from union organization and she replied that
with a union in the picture her rate of pay would be higher because she, as an ex-
perienced checker, would draw top rate in her grade. Henry replied, "If you
don't like it I can replace you right now." Null expressed the hope that he would not
take this step. Henry then urged her to vote against the Union in any election that
might be held. However, as set forth above, Henry retained his view of Null's
leadership in the union campaign as late as the evening before her discharge.
Respondent adduced testimony to the effect that Null was released when another
female employee, Kinnebrew, returned from a brief vacation. The record does not
support this as an operative factor in the decision to terminate Null which was
announced on July 22 effective July 25, but was actually made effective July 23
when Kinnebrew resumed her job. Null when hired on May 15, was told that her
job would be part-time for 3 or 4 days weekly, and that she would work full time
when the full-time employees were on vacation. On the following day, May 16,
while at work, Null was informed by Henry that her job would be full time inasmuch
as Doyle Collins had been terminated that day.
On May 18 Henry changed his mind; he informed Null that she would not work
full time in the place of Collins, a produce clerk who had no check stand duties,
because he, Henry, desired a man for that position. However, he announced that
she would continue on the same basis as he had originally explained at the time of
her hiring, namely part-time work for 3 or 4 days weekly. I find therefore that
this was the basis on which she was hired and employed. I further find that Henry
informed her she would work full time while employees were on vacation and
specifically stated, either at the time of her hiring or at a later date, that she would
work full time while Edna Kinnebrew, a full-time worker, was on vacation.
Null continued regularly on her part-time employment of 3 or 4 days weekly
through May and June. Sometime in July, Kinnebrew found it necessary to take
several weeks off for personal reasons. During her absence, Null was assigned to
full-time work. Kinnebrew returned to Deming on or about Tuesday, July 21.
She contacted Henry and expressed a desire to return to work on Thursday, July 23.
On July 22, Henry proceeded to address the employees. As found, he informed
the employees that the store appeared to be "going union"; that District Manager
Miller had authorized him to discharge any employees, closing the store if necessary;
and that Miller could send him a new crew from El Paso in 2 hours. He then
turned to Null and stated she would be terminated on Saturday evening, July 25.
Null asked the reason and Henry replied "because I hired a man." Actually, how-
ever, it appears that the termination was made effective on July 23.
SAFEWAY STORES , INCORPORATED 1727
It is apparent , and I find , that Null's employment as such was in no way related
to that of Kinnebrew . Both worked there together , Null on the basis of 3 or 4
days weekly and Kinnebrew on a full -time basis. Although the work of Null was
increased to full-time work during the absence of Kinnebrew this resulted from the
fact that no replacement was hired for Kinnebrew . It would follow then that,
absent other considerations , the return of Kinnebrew would have signified only that
Null would then return to her regular part-time employment.
Significantly , Henry did not claim to Null at the time of her discharge that her
termination was in any way related to the return of Kinnebrew . He placed his
reliance solely on the hiring of a male employee , a contention which I shall take up
below . In addition , it is significant that District Manager Miller stated to General
Organizer Mosesso , when the latter protested Null's discharge , that Null was not
needed and that a man was; Miller as well was silent as to the return of Kinnebrew
playing any part in the case . I therefore find no merit in the claim that Null's ter-
mination resulted in any way from the return of Kinnebrew.
As for the claim that Null was released because a male employee was hired, this
too will not withstand close inspection . The fact of the matter is, as Henry ad-
mitted, that a male employee , Alvares, was hired. The date of his hiring is not
entirely clear , although Henry placed it as July 21, stating that Alvares had applied
for work a short time before. Other evidence indicates that Alvares might have
entered Respondent 's employ some days earlier , apparently in anticipation of the
departure of Quarrell who had given 1 week's notice . However, it is undisputed
that Mike Quarrell resigned and left the employ of Respondent on July 17, and,
as Null credibly and uncontrovertedly testified , Alvares took the place of Quarrell.
It is significant herein that Quarrell 's employment with Respondent antedated that
of Null . It thus follows that the termination of Null , absent other considerations,
would not have resulted from the hiring of Alvares as a replacement for Quarrell.
In addition , the record discloses that Alvares was a full -time employee, as was
Quarrell the man he replaced.
Nor does the contention of Henry that Null was replaced because he wanted a
man in her job stand up when note is taken of the fact that when Null was rehired
in September it was to take the place of a male employee. If Null was physically
unsuited to her position in July, as Henry indicated in his testimony , the same dis-
ability would have also existed in September.
Further evidence that other considerations motivated Henry herein is disclosed
by another incident . Dolores Sainz was scheduled to take leave for one or more
days during the week after the termination of Null . Null who was aware that the
absence was imminent asked Henry if she might work during the absence of Sainz.
Henry refused , stating that he had already utilized too many man-hours that month,
despite the fact that Kinnebrew 's. absent hours had been but partly replaced and
that this decision left Henry with two vacant positions during the absence of Sainz,
namely, those of Sainz and Null.
While Henry informed Null on May 18 that she would not be a full -time em-
ployee, as he needed a man , the simple fact is that she was not replaced by a man
in July and Henry would not even permit her to replace Sainz during the week after
Null's termination . And while there is some evidence that business in the store had
slumped due to road construction in front of the store , Henry admitted that the
construction had been underway since May 4, a date prior to the hiring of Null.
In view of the foregoing , including the fact that Null was an exemplary employee
who became an early supporter of the Union ; Henry's favorable disposition toward
retaining Null as an employee which changed markedly to open hostility when he
concluded that she was the leader of the union organizational campaign , with Henry
openly equating her union support with disloyalty ; and the lack of substance to Re-
spondent 's contentions herein, I conclude , on a preponderance of the evidence, that
Null would not have been terminated on July 23 by Respondent but for unlawful
considerations . I find that Null was discriminatorily discharged on July 23 because
of her union and concerted activities , this constituting conduct violative of Section
8 (a) (3) of the Act and further interfering with, restraining, and coercing the em-
ployees of Respondent in the exercise of the rights guaranteed by Section 7 of the
Act.
I also find that the interrogation of Null by Henry shortly after July 11 concern-
ing her union activities , as well as his threat on the following day to replace her,
after she stated why she was a union adherent , constitute further independent inter-
ference, restraint , and coercion of the employees of Respondent , and is therefore
violative of Section 8 (a) (1) of the Act.
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Doyle Collins
Doyle Collins entered the employ of Respondent on May 7, 1953, and was ter-
minated on May 16, 1953; his position was that of produce man which entailed the
stocking and arranging of produce on the shelves of the store. The General Coun-
sel contends that Collins was discharged because of his union and concerted activi-
ties and Respondent contends that Collins quit his employment on May 16, after
receiving a reprimand. As will appear, I find merit in Respondent's position, despite
the existence of considerable antiunion animus on the part of Collins' superior, Store
Manager Henry, as hereinabove set forth.
The Collins episode antedated the actual organizational campaign of the Union by
2 months. However, there is evidence that Collins, who once belonged to another
labor organization, had advocated to his fellow workers that they organize and he,
together with several other employees, had conversed in front of the store several
days prior to May 16, 1953, with a man identified only as "some kind of union man"
by employee Mike Quarrell who testified herein for Respondent. Be that as it may,
Store Manager Henry was under the impression, during Collins' brief tenure with
Respondent, that the employees of the store were interested in union organization,
admittedly having been so advised on at least two occasions by undisclosed per-
sons not in the employ of Respondent.
The record discloses that Collins was actively advocating union organization to
the employees of the store and that Henry knew it. The record a'so discloses that
Collins, as he admitted, was engaging in these union discussions during his working
hours as well as recess periods. Store Manager Henry claimed that Collins was ne-
glecting his work as produce man; that he, Henry, had showed him several times what
to do; that invariably, when he entered the store after a brief absence, he would find
Collins sitting down and "talking union", and that he found it necessary to instruct
him to replenish the depleted produce shelves, a task which Collins should have
handled on his own initiative.
Matters came to a head on the morning of May 16, at approximately 11 a. in.
when employee Quarrell was working on stock in the back room; also present was
Joe Rodriquez.2 Collins entered the rear room and informed Quarrell that Store
Manager Henry intended to discharge Quarrell and Rodriquez because Collins had
been advocating union organization to them. Henry entered the room at this time
and Quarrell asked him if it were true that he, Quarrell, was to be discharged. Henry
denied that he intended to discharge Quarrell or anyone else. Quarrel replied that
Collins had just informed them to that effect, whereupon Henry again denied that he
intended to discharge anyone. At this point Collins spoke up and accused Henry of
informing him, shortly before, that he would have to leave the store by noon. Henry
disputed this, stating to Collins in front of the group from which Rodriquez in the
interim had departed to his position at the check stand at the front of the store, that
he, Henry, had informed Collins rather that if his work did not improve by noon, he,
Collins, would have to leave the store at that time.
Collins became incensed and stated, according to Quarrell, "If you are not satis-
fied with my work I will quit." To this Henry replied "Go ahead." Collins forth-
with removed his apron and left the store. Quarrell concluded on the basis of this
exchange that Henry intended to discharge him as well, either then or on the fol-
lowing workday, and accompanied Collins from the store; it was then 11:15 a. in.
Henry, in some anger, went to the front of the store, approached Rodriquez who had
seen his two colleagues leave the store, and asked if Rodriquez wished to leave with
them. Rodriquez replied that he did not because he did not know why they had left
and remained at work. At approximately noon Henry telephoned Quarrell and in-
vited him to return to work. Quarrell accepted the invitation and did return. He
remained in the employ of Respondent until his resignation in July when he left
the area.
I am not unaware that Henry displayed extreme animus toward the union activi-
ties of the employees of the Respondent, both during the actual union campaign in
July as well as during this period in May. Moreover, at a meeting of employees held
2
Findings as to the events on May 16 are based primarily upon the testimony of Quarrell
who is no longer in Respondent's employ. He impressed me as a disinterested witness who
endeavored to tell the events of that day in a straightforward manner Collins, in my
belief, attempted to embellish his testimony and I have previously found Henry's testi-
mony not entirely reliable Accordingly, I have credited the testimony of Quarrell con-
cerning this episode , moreover, it is corroborated by the pattern of the events that took
place as well as, in part , by the testimony of Rodriquez
SAFEWAY STORES, INCORPORATED 1729
after work on May 16, he stated that he had released Collins that day because
he was not doing his work and because he had started union discussions in the store.
And, as Quarrell testified, several days before May 16, he heard Henry reprimand
Collins, stating that he "better learn his job before he started talking union."
Nevertheless, the simple fact is that Collins, who to some extent had been ne-
glecting his work in order to advocate union organization, actually quit his job on
May 16. He did this in the face of Henry's statement that he had not discharged
Collins but had rather informed him to improve his work by noon on penalty of
discharge. At that moment, Collins took the initiative and quit the employ of
Respondent.
I have considered the possibility that Collins' quit might be considered a construc-
tive discharge, particularly so in view of Henry's antiunion animus and his utiliza-
tion of Collins' termination to state on the evening of May 16 to the other employees
that he, Henry, had discharged Collins, in part at least, for his union activities. The
fact is, however, despite this additional display of animus, that Henry did not dis-
charge Collins on May 16. It would be speculative to conclude that Collins would
have been discharged at noon had he not taken the initiative by leaving the store.
Nor, in the face of the evidence that Collins had not been an exemplary employee,
can I conclude that Collins, had he improved his work performance for the re-
mainder of the morning, would have been discharged at noon.
In so finding, I am impressed by the fact that Collins, in his remarks to his co-
workers at 11 a. in. that day, attributed to Henry the expressed intent to discharge
Quarrell and Rodriquez, but that Henry expressly denied any such intent and in
fact took no action against these other employees, indeed, he immediately took
steps to procure the return of Quarrell after the latter left the store with Collins.
Nor did Henry terminate Rodriquez on this occasion, the most that can be said is
that Henry lost his temper, invited Rodriquez to leave, was willing to accept Rodri-
quez' decision to stay, and Rodriquez is still in Respondent's employ. Significant
too is the fact that no disciplinary action was directed at Quarrel who, to Henry's
observation, had openly participated in these union conversations with Collins.
In sum, despite the dramatic and highly suspicious circumstances surrounding the
incident, I find that Respondent did not discharge Collins on May 16. I find that
Collins had been reprimanded both on May 16 as well as previously for neglecting
his work, as both Quarrell and Rodriquez testified, and that he quit the employ of
Respondent on May 16 when he received another reprimand. Accordingly, I shall
recommend that this allegation of the complaint be dismissed. See Brown Ship-
building Company, 66 NLRB 1047.
D. The refusal to bargain
1. Introduction; sequence of events
The basic issue herein is the appropriateness of the unit sought by the Union,
particularly the inclusion therein of the one meatcutter in the store as proposed by
the Union and opposed by Respondent. Respondent does not challenge the majority
representation by the Union in a unit either including or excluding this meatcutter
and Respondent does not dispute that it withheld recognition from the Union on
this issue. The ultimate finding herein turns, as I view it, on the existence of bad
faith, actual or constructive, on the part of Respondent in raising this claim.
As found, General Organizer Mosesso of the Union commenced an organizational
campaign on July 11 and signed up 6 of the approximately 9 employees on the
same date; 2 others signed cards on July 13. It is clear and I find that from July 11
on a majority of the employees had signed union cards; in addition, two others
signed cards on or about July 22. Despite a small turnover in the store, substan-
tially all nonsupervisory employees, both full and part time, had signed cards by
July 22, with a majority, as stated, from July 11 on.
On July 13, Mosesso telephoned S. D. Pottinger who is branch manager for
Dexter Services, a division of Respondent which handles, in part at least, its labor
relations. Pottinger, whose office is in Dallas, handles these matters in the States
of Texas, Oklahoma, Arkansas, and New Mexico. Mosesso and Pottinger were
acquainted as a result of prior organizational activity by Mosesso in other stores of
Respondent.
On this occasion, Mosesso informed Pottinger that he possessed cards for all
nonsupervisory personnel in the Deming store, including the only meatcutter, one
Sapien. This grouping excluded the store manager and the head meatcutter, Maure.
Mosesso stated that he desired recognition for the Union as bargaining representative
338207-55-vol 110-110
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,of these employees and that he was prepared to show his evidence, the cards, in sup-
port thereof. Pottinger did not dispute Mosesso's claim that he represented a ma-
jority of the employees, he stated that he would agree to a consent election with a
Board certification, if they could agree on the unit, but demurred to the inclusion
,of the one meatcutter in the unit. Each tried to persuade the other as to the merits
of inclusion or exclusion of the one meatcutter, all to no avail. Pottinger suggested
that the matter be left to the Board for decision. They explored the possibility of
not including the meatcutter in the unit and of making some other arrangement for
him but came to no decision.3
On July 15, the Union filed a representation petition in Case 33-RC-459 for an
election covering "all food clerks excluding guards and supervisory employees" at
the Deming store. The petition was amended on July 21 so as to reflect a unit of
"all employees" excluding supervisors. A hearing was duly held on this petition on
August 4. At the hearing, Respondent raised three contentions. The first related
to the meatcutter, and was identical with the position taken with Mosesso by Pot-
tinger on July 13. The second was that several regular part-time employees should
be excluded from the unit. The third called for the exclusion from the unit of
the replacement manager. The latter, according to Pottinger, was a temporary
replacement for the store manager while the latter was on vacation. Mosesso
claimed that no such category existed. This boils down, however, to an exercise in
semantics. The fact is that the replacement manager was a supervisor imported
from another store once a year when the regular manager went on vacation and
that the unit proposed by the Union did exclude all supervisory employees. The
issue reduces itself solely as to whether or not the replacement manager should
have been specifically excluded by his title.
After the close of the representation hearing, Mosesso again spoke to Pottinger,
stating that he represented the employees and had the cards to prove it, he claimed
that in the Yuma, Arizona, store, outside of Pottinger's territory, the unit repre-
sented by the Union did include the meatcutter. Pottinger stated that he was un-
willing to start this precedent in his territory and that he preferred to have the
Board determine the unit. It may be noted that Pottinger did not dispute the union
majority on this occasion, declining Mosesso's offer to display the cards.
I have heretofore found that, commencing almost immediately after the advent of
the Union on July 11, Store Manager Henry engaged in an extensive campaign of
interference, restraint, and coercion to counteract the union campaign and that he
discriminatorily discharged Betty Null on July 22. Sometime after the August 4
hearing the Union concluded that Respondent's position on the issue of recognition
had not been taken in good faith and requested the withdrawal of the representa-
tion petition. This motion was granted by the Board on September 9, 1953.
2. The appropriate unit and majority representation therein
The complaint alleges that all employees of the Deming store, excluding super-
visors, constitute a unit appropriate for the purposes of collective bargaining. This
is the identical unit described in the representation petition filed by the Union, as
amended. Respondent's answer denies the appropriateness of the described unit and
calls for the exclusion of meat department employees. It also seeks the exclusion of
the relief location manager, as already indicated, this is purely a question of seman-
tics, for the unit claimed by the General Counsel to be appropriate excludes all
supervisory employees and the relief location manager falls into that category.
It is not entirely clear from Respondent's answer whether or not it disputes, as it
did at the representation hearing, the inclusion of regular part-time employees of
whom there were several at the store. On the assumption that the answer so claims,
the record discloses that several clerks work only on Saturday and occasionally,
3 The findings herein are based upon a synthesis of the testimony of Mosesso and Pot-
tinger which is in substantial agreement I deem it unnecessary to resolve whether
Mosesso, as he testified, pointed out that the meatcutter was then working in the grocery
department of the store for two afternoons a week, or whether to accept the testimony of
Pottinger that he had no recollection of Mosesso so stating; Pottinger testified also that
he was unaware of this situation at that time. The answer is that this condition did
.exist
Although Pottinger at one place in his testimony stated that Mosesso had never de-
manded that Respondent recognize the Union, his other testimony concerning this con-
versation supports Mosesso in the latter's testimony, which I credit, that he asked for rec-
ognition on this occasion. In any event it is clear from Pottinger's testimony that he con-
strued and treated Mosesso's call as a request for recognition.
SAFEWAY STORES, INCORPORATED 1731
either before holidays or during summer vacations , on other days as well. The de-
-cisive factor , as Board decisions indicate , is whether these employees are regular
part-time employees and the record in this case discloses that they are. I find there-
fore that they are properly included within the scope of the unit and that the unit
claimed herein by the General Counsel is appropriate on that score. Crosley Broad-
casting of Atlanta, Inc. (Second Supplemental Decision ) 107 NLRB 13 ( including
regular part-time employees who worked 4 hours weekly); Giant Markets, Inc., 107
NLRB 10; Jefferson Grocery Co. et al., 101 NLRB 586; and Great Atlantic and
Pacific Tea Co., 99 NLRB 1500. See Atlantic Refining Co., 106 NLRB 1268.
This presents the basic issue raised by Respondent, namely the proposed inclusion
of the one rank-and-file meatcutter in the unit. The problem whether, in a large food
market, the meat and grocery departments should constitute separate units or be
included in one storewide unit has been before the Board in the past . In a number
,of cases it has been evident that there has been rivalry and in fact a jurisdictional dis-
pute between the Union and various locals of Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL, herein called Amalgamated. See Amal-
gamated Meat Cutters, et al. (Safeway Stores, Inc.), 101 NLRB 181. Some of these
decisions are described below.
Thus, in Danahy-Faxon Stores, Inc., 79 NLRB 1239, the union sought a unit of
all retail clerks in 55 out of 120 retail stores operated by the employer, excluding
meat department employees ; in the alternative , the union was willing to include
counter employees in the meat department but not meatcutters. The Board noted
(1) that the employer and Amalgamated had in the past bargained for all employees
and (2) "No union is seeking to represent the journeymen meatcutters and their
apprentices in a separate unit." The Board concluded that the last-named group
should be included in a unit with the remainder of the employees and dismissed the
representation petition on the basis that the units sought by the union were inappro-
priate. See Jefferson Grocery Co., supra.
In American Stores, Inc., 80 NLRB 126, a local of Amalgamated sought a unit
of all employees in six stores. A local of the union intervened, urging that two sepa-
rate units were appropriate, one of meat department and the other of grocery de-
partment employees . The Board noted that ( 1) there had been no bargaining his-
tory for the stores involved and (2) in the area separate contracts for separate units
were prevalent. It concluded that the employees could appropriately function either
in one broad unit or in separate meat and grocery department units. See Kroger Co.,
77 NLRB 370.
Another decision involves this same Respondent in a different area. Safeway
Stores, Inc., 103 NLRB 758. In that case, on a petition by Amalgamated which
involved a group of stores in Nebraska, storewide units in individual stores were
found to be appropriate. It is interesting to note that head meatcutters, found to be
supervisors in some of these stores and accordingly excluded, were included in the
,storewide unit in instances where the head meatcutter was the sole employee of the
meat section. And, in a recent decision, Giant Markets, Inc., supra, on a petition
filed by the union for a unit including store and warehouse employees of a food
market chain, it appears that meat department employees were not excluded from
,the requested broad unit found to be appropriate.
In sum, I believe and find that either the unit sought herein by the Union or the
unit urged by Respondent may be appropriate. The Act requires only that the majority
representative be one for an appropriate unit. It follows, as the Board decisions
have recognized, that there may be more than one appropriate unit. I find accord-
ingly that the unit set forth in the complaint constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
The complaint alleges that the Union represented a majority of the employees in
the above-described appropriate unit on and after July 13, 1953. It may initially be
noted that Respondent has raised the contention that a bargaining representative,
in order to achieve status under Section 9 (a) and (b) of the Act, must be certified
or else there must be agreement as to the unit involved . However Section 9 (a) and
(b) does not require a certification of a bargaining representative. The Act "re-
-quires no specific form of authority to bargain collectively . . . it is only necessary
that ( the union authorization ) be manifested in some manner capable of proof
whether by behavior or language ." Lebanon Steel Foundry v. N. L. R. B., 130 F. 2d
404 (C. A., D. C.) cert. denied 317 U. S. 659. See N. L. R. B. V. Star Beef Co., 193
F. 2d 8 (C. A. 1).
The General Counsel introduced in evidence cards signed by 6 of the 9 employees
in the unit on July 11 as well as 2 others signed on July 13. In fact , Respondent
does not challenge herein the majority representation of the employees by the Union
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether the unit includes or excludes the sole meatcutter. Moreover, the cards ap-
peared to be in order, were identified by the signers thereof, and the authenticity
thereof was unchallenged. I find therefore, that on July 13, 1953, and at all times
material thereafter, the Union was and is the representative of the employees in the
above-described appropriate unit for the purpose of collective bargaining within the
meaning of Section 9 (a) of the Act.
3. The refusal to bargain
Initially, it should be noted that Pottinger who handled the representation issue
with the Union played no part in the unfair labor practices previously found to have
been committed by Store Manager Henry. I believe and find that Pottinger acted
entirely in personal good faith when he resisted union recognition on July 13 and
thereafter, predicating his position primarily upon the proposed inclusion of the one
meatcutter in the unit.
And I am not unaware of the line of Board decisions which recognize that an em-
ployer may entertain a good-faith doubt as to the appropriateness of a unit and that
this may constitute a defense to a refusal to bargain allegation. See, e. g., The
Walmac Company (Radio Station KMAC ct FM Station KISS), 106 NLRB 1355,
Little Champ Manufacturers, Inc, 104 NLRB 985, and B. F. Goodrich Company,
106 NLRB 757. And, if the case consisted solely of the foregoing position expressed
by Pottinger, I might well find merit in Respondent's position herein. However,
despite Pottinger's personal good faith in the matter I am of the belief that Re-
spondent herein was, in a manner of speaking, guilty of constructive bad faith herein
due to the conduct of Store Manager Henry at the very moment that another agent
of Respondent resisted union recognition. My reasons are as follows:
(1) Respondent is deemed to be cognizant of the Board policy that the Board
will not certify a one-man unit. National Container Corporation of Wisconsin,
99 NLRB 1492, and Warren Paper Products Co., 93 NLRB 1187. Pottinger was
aware that the dispute involved just one person, the sole meatcutter in the store.
He was also aware that neither Amalgamated nor any other labor organization,
insofar as the record indicates, was interested in representation of the meatcutter,
a consideration militating in favor of his inclusion in the unit. It follows therefore,
that Pottinger's position on union recognition served perforce to deprive the one
employee of union representation in the absence of his inclusion in the appropriate
unit sought by the Union. See Paisley Steamship Company, 55 NLRB 945.
(2) There is the additional factor that at the time Pottinger stated his opposition
to the inclusion of the 1 meatcutter in the unit, the latter was regularly assigned to
work, as of July 13, for 2 afternoons each week in the grocery section of the store,
although it appears that this practice was abandoned early in August or soon there-
after. Respondent and particularly Pottinger is chargeable with knowledge of this
state of affairs on July 13, although he claimed ignorance thereof at the time, all of
which serves to further demonstrate the appropriateness of the unit sought by the
Union.
(3) What I deem controlling is the anomalous situation which would result were
the unfair labor practices of Respondent, committed by Store Manager Henry, to
be disregarded herein. An acceptance of Respondent's position concerning the re-
fusal to bargain allegation would require the Union to proceed to an election in the
face of unfair labor practices clearly directed to the dissipation of the union majority
and in fact to the very elimination of the Union from the Deming store. In evaluat-
ing the merits of the refusal-to-bargain allegation, I believe that Respondent is
assessable with these contemporaneous unfair labor practices, although committed
by another official. This is what I deem an instance of constructive bad faith for
it would manifestly be impossible for the Union to obtain a free uncoerced election
under these circumstances, a fact long recognized by the Board.
Equity requires that the onus of wrongdoing fall upon the perpetrator thereof
rather than on the innocent victim. Although Pottinger, as I am convinced, played
no part in the other unfair labor practices committed at the Deming store, the fact
still remains that he handled the bargaining negotiations for the store and that Re-
spondent is assessable with the conduct of its two agents, Store Manager Henry and
Pottinger. Significant herein is the fact that these unfair labor practices demon-
strated hostility to the principles of collective bargaining, were designed to under-
mine the union majority, and were contemporaneous with the withholding of
recognition from the Union; as a result, the refusal to recognize the Union is,
constructively at least, a refusal to bargain in good faith. Accordingly, I find, in
this context, that Respondent, in denying recognition to the Union on July 13, 1953,
and thereafter in an appropriate unit, has refused to bargain with the Union within
SAFEWAY STORES, INCORPORATED 1733
the meaning of Section 8 (a) (5) of the Act. See Williams Lumber Co., 93 NLRB
1672, enforced 195 F. 2d 669 (C. A. 4), cert. denied 344 U. S. 834, and A. S. Beck
Shoe Corp., 92 NLRB 1457.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connection
with its business operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Betty Null. Accordingly, I shall recommend that Re-
spondent make Null whole for any loss of pay suffered by reason of the discrimina-
tion against her. Said loss of pay, based upon earnings which she would normally
have earned from the date of the discrimination against her to the date of her
reinstatement, less net earnings, shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. See
N L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
Having found that Respondent has unlawfully refused to bargain with the Union
as the representative of its employees in an appropriate unit it will be recommended
that Respondent upon request bargain with the Union and, if an understanding is
reached, embody such understanding in a written and signed agreement.
Because of Respondent's demonstration of its willingness to resort to unlawful
methods to counteract an attempt by employees of the Deming store to achieve
self-organization through a labor organization of their own choosing, the inference
is warranted that the commission of other unfair labor practices may be anticipated.
It will therefore be recommended that Respondent be ordered to cease and desist
from in any manner interfering with, restraining, or coercing its employees at the
Deming store in the exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
I Retail Clerks International Association, AFL, is a labor organization within
the meaning of Section (2) (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of Betty
Null, thereby discouraging membership in a labor organization, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. All employees of Respondent's store at Deming, New Mexico, excluding super-
visory employees, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
5. Retail Clerks International Association, AFL, was on July 11, 1953, and at
all times thereafter has been and now is, the exclusive representative of all em-
ployees in the aforesaid appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
6. By refusing on July 13, 1953, and at all times thereafter, to bargain collec-
tively with the Union as the exclusive representative of the employees in the afore-
said appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
8. Respondent has not engaged in unfair labor practices by terminating the em-
ployment of Doyle Collins.
[Recommendations omitted from publication.]
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Retail Clerks International Associa-
tion, AFL, or in any other labor organization of our employees, by discrimi-
nating in any manner in regard to hire, tenure, or any other term or condition
of employment, except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL make whole Betty Null for any loss of pay suffered as a result of
the discrimination against her.
WE WILL bargain collectively, upon request, with Retail Clerks International'
Association, AFL, as the exclusive representative of all employees at our Dem-
ing, New Mexico, store, excluding supervisors, with respect to wages, rates of
pay, hours of employment, or other terms or conditions of employment, and,.
if an understanding is reached, embody such understanding in a signed.
agreement.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities,,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment in con-
formity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent above stated.
SAFEWAY STORES, INCORPORATED,
Employer.
Dated---------------- By---------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be'
altered, defaced, or covered by any other material.
LONGVIEW FURNITURE COMPANY and UNITED FURNITURE WORKERS OF'
AMERICA, CIO. Case No. 11-CA-246. December 16, 1954
Supplemental Decision and Determination
On July 22, 1952, the Board issued a Decision and Order in this
case,' in which it found that Longview Furniture Company, herein
called the Respondent, had violated Section.8 (a) (1) and (3) of the
National Labor Relations Act, as amended, and ordered the Respond-
ent to cease and desist and to take certain affirmative remedial action.
Thereafter, the case was considered by the United States Court of
Appeals for the Fourth Circuit upon the Board's petition for en-
forcement of its Order. The Respondent did not contest the validity
of the Order, except insofar as it required reinstatement with back
pay of certain strikers who had engaged in name calling and certain
other strikers who were present when yet another striker assaulted
1 100 NLRB 301.
110 NLRB No. 246.