Safeway Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1955

111 N.L.R.B. 968 (N.L.R.B. 1955)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional, departmental group such as the Board has granted a self-
determination election despite a history of bargaining on a broader
basis, and are sought by a union which historically and traditionally
represents such toolroom and machine shop departments. Therefore
we find that these machine shop employees may appropriately remain
a part of the overall unit or be separately represented.'
We shall therefore direct an election at this time among the em-
ployees in the Employer's Elizabethton, Tennessee, plants, in the fol-
lowing voting group :
All tool- and die-makers, machinists and their helpers, including
the blacksmith and his helper, but excluding the research department
machinists, professional employees, clerical employees, all other em-
ployees, guards, and supervisors as defined in the Act.
If a majority vote for the Petitioner they will be taken to have indi-
cated their desire to constitute a separate appropriate unit, and the
Regional Director conducting the election directed herein is instructed
to issue a certification of representatives to the Petitioner for the unit
in which the election was held, which the Board, in the circumstances,
finds to be appropriate for the purposes of collective bargaining. In
the event a majority vote for the Intervenor, the Board finds the exist-
ing unit to be appropriate and the Regional Director will issue a cer-
tificate of results of election to such effect.
[The Board dismissed the petitions in Cases Nos. 10-RC-2477 and
2484.]
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision, Order, and Direction of Election.
7 See American Potash & Chemical Corporation , 107 NLRB 1418; American Tobacco
Company, Incot porated, 108 NLRB 1211; St Louts Car Company, 108 NLRB 1388
SAFEWAY STORES, INC. and LOCAL 1371 , RETAIL CLERKS INTERNA-
TIONAL ASSOCIATION , AFL and AMALGAMATED FOOD EMPLOYEES
UNION, LOCAL 196, AFFILIATED WITH AMALGAMATED MEAT CUTTERS
AND BUTCHER WORKMEN Or NORTH AMERICA , AFL, PARTY TO THE
CONTRACT . Case No. 4-CA-1084. March 1 7,1955
Decision and Order
On November 17, 1954, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
111 NLRB No. 163.
SAFEWAY STORES, INC. 969
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
Party to the Contract filed exceptions to the Intermediate Report to-
gether with briefs, and the Charging Party filed a brief in support of
the Intermediate Report.'
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 briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Safeway Stores, Inc., Fair-
less Hills, Pennsylvania, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Encouraging membership in Amalgamated Food Employees
Union, Local 196, affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL, or any other labor organi-
zation of its employees, by compelling them to become or remain mem-
bers in such labor organization under threat of discharge, by involun-
tary checkoff of union dues from their wages, or by discriminating in
any other manner in regard to their hire or tenure of employment, or
any term or condition of employment, except to the extent authorized
by Section 8 (a) (3) of the Act.
(b) Assisting or supporting the above-named labor organization
by encouraging or coercing its employees to become or remain members
thereof or to designate that labor organization as their exclusive repre-
sentative for purposes of collective bargaining, or by involuntary
checkoff of union dues from their wages and payment of same to said
organization ; or by permitting said organization to solicit membership
among its employees on company time and premises in such manner as
to indicate that it favors such solicitation.
(c) Recognizing the above-named labor organization as the exclu-
sive representative of its employees in the Fairless Hills, Pennsylvania,
store, for purposes of collective bargaining, unless and until said or-
ganization shall have been certified by the National Labor Relations
Board as such representative.
i The Respondent also requested oral argument . In our opinion , the record and the
exceptions and briefs fully present the issues and the positions of the parties Accordingly,
the request is denied.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Giving any effect to its contract of April 14, 1954, with modifi-
cations of the same date, with the above-named labor organization, or
to any extension, renewal, modification, or supplement thereof, or to
any superseding agreement with said labor organization, unless and
until such organization shall have been certified by the National Labor
Relations Board as the representative of Respondent's employees
aforesaid; provided that Respondent, in complying herewith, shall not
be required to vary or abandon the wages, hours of employment, rates
of pay, seniority, or other substantive features of its relations with its
employees established in performance of said contract as extended,
renewed, modified, supplemented, or superseded, or to prejudice the
assertion by its employees of any rights they may have under such
contract.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
join or assist Local 1371, Retail Clerks International Association,
AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and 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 a condi-
tion of employment, as authorized by 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) Withdraw and withhold all recognition from Amalgamated
Food Employees Union, Local 196, affiliated with Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL, as the exclu-
sive representative of the employees in its Fairless Hills, Pennsyl-
vania, store, for the purpose of collective bargaining, unless and until
said organization shall have been certified by the National Labor Rela-
tions Board as the exclusive representative of such employees in an
appropriate unit.
(b) Refund forthwith to all employees and former employees in
the Fairless Hills, Pennsylvania, store, from whose wages Respondent
has deducted and withheld funds since May 1, 1954, all such deductions
and withholdings representing union membership dues charged by and
payable to the above-named labor organization under the terms of
the authorization of checkoff of union dues contained in any applica-
tions for membership in said labor organization heretofore signed by
said employees and former employees, or pursuant to the terms of
the contract of April 14, 1954, or any extension, renewal, modification,
or supplement thereof, or any agreement superseding it, or otherwise,
to the end that such employees and former employees, and each of
SAFEWAY STORES, INC. 971
them, shall be promptly, fully, and completely reimbursed for all
monies so deducted and-withheld.
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll and
other records necessary for a computation of the sums to be refunded
under the terms of this Order.
(d) Post at its store in Fairless Hills, Pennsylvania, copies of the
notice attached to the Intermediate Report and marked "Appendix
A." 2 Copies of such notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by Respondent's
representative, be posted by Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees 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.
(e) Notify the Regional Director for the Fourth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
' This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order " In the event that this Order is
enforced by deciee 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, Enfoicing an Order "
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Local 1371, Retail Clerks International Association,
AFL, herein called the Union, against Safeway Stores, Inc., herein called the Re-
spondent, the General Counsel of the National Labor Relations Board, herein called
General Counsel and the Board, issued a complaint on July 30, 1954, which, as
amended at the hearing, alleged that Respondent since January 1954, has recognized
and bargained with Amalgamated Food Employees Union, Local 196, affiliated
with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,'
herein called the Meat Cutters, as exclusive representative of employees at its Fair-
less Hills, Pennsylvania, store, when the Meat Cutters was not the bargaining agent
selected by a majority of such employees in an appropriate unit, that Respondent has
required its employees to apply for membership in, and authorized deduction of
dues from their pay in behalf of, the Meat Cutters as a condition of their employ-
ment, and has deducted sums from their pay and remitted same to the Meat Cutters;
that Respondent executed an exclusive bargaining contract with the Meat Cutters
covering said employees which required membership in the Meat Cutters as a con-
dition of employment, at a time when the Meat Cutters had been and is illegally
assisted by Respondent; and that Respondent had permitted the Meat Cutters to
solicit its employees during working hours to join the Meat Cutters and authorized
deduction of dues from their pay on its behalf, and that Respondent had thereby
engaged in unfair labor practices affecting commerce in violation of Sections 8 (a)
(1), (2), and (3) and 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. Copies of the complaint and notice
of hearing, thereon, were duly served on Respondent, the Union, and the Meat Cut-
ters.2 Respondent's answer admitted the jurisdictional allegations of the complaint
and denied the commission of any unfair labor practices.
The name appears as amended at the hearing
' The oiigiual charge was duly served upon Respondent only
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice , a hearing was held on August 17 and September 1 and 2, 1954,
at Trenton , New Jersey , before the duly designated Trial Examiner , at which all
parties were represented by counsel , and were afforded full opportunity to be heard,
to examine and cross -examine witnesses , to introduce evidence bearing on the issues,
to make oral argument , and to file briefs and proposed findings of fact or conclusions
of law, or both .3 At the outset of the hearing, the Trial Examiner granted over ob-
jection General Counsel's motion to amend the complaint to allege that the facts
therein involved a violation of Section 8 (a) (3) of the Act, after an amended charge
stating such violation had been served on counsel for Respondent . General Counsel's
motion to amend the caption of the case to include the Meat Cutters as party to
the contract was granted without objection . At the close of the General Counsel's
proof, Respondent and the Meat Cutters rested without adducing any testimony, but
moved to dismiss the amended complaint for lack of proof and on other grounds.
Those motions are hereby denied for reasons which appear in the findings and con-
clusions in this report . General Counsel 's motion for summary judgment at the
hearing was denied. At the close of the case, General Counsel presented oral argu-
ment, but all other parties waived it. Respondent and the Meat Cutters have filed
briefs with the Trial Examiner.
Upon the entire record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Maryland corporation engaged in the business of processing, sell-
ing, and distributing of food, food products , and allied items . It owns and operates
over 2,000 retail stores located in more than 20 States of the United States. In the
operation of its Fairless Hills, Pennsylvania, store, which is the only one involved
in this proceeding , Respondent annually purchases for sale and distribution therein
products valued in excess of I million dollars, which products are shipped directly
to said store from points outside the Commonwealth of Pennsylvania . Throughout
its whole chain of retail stores Respondent annually sells products valued in excess
of 10 millions of dollars. Respondent admits, and I find on the above facts, that
it is engaged in commerce within the meaning of the Act. Hogue and Knott Super-
markets, 110 NLRB 543.
II. THE LABOR ORGANIZATIONS INVOLVED
The Union and the Meat Cutters are labor organizations within the meaning of
Section 2 (5) of the Act , each of which admits to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES 4
A. Recognition of and bargaining with the Meat Cutters
In January , February , March, and April , 1954, Respondent recognized and bar-
gained with the Meat Cutters as the exclusive representative of its employees at its
Fairless Hills, Pennsylvania , retail store. In April 1954 , Respondent executed a
bargaining agreement with the Meat Cutters covering all employees in that store.
i On the first day of the hearing , the Meat Cutters were represented by an International
representative who joined with other parties in a motion for a continuance . At the con-
tinued hearings, the Meat Cutters appeared by counsel who announced that by his par-
ticipation in the hearing the Meat Cutters was not subjecting itself to the jurisdiction of
the Board , arguing that that organization had not been served with any charges nor had
any relief been sought in the case against it I consider this position untenable. The
record shows that the original complaint and notice of hearing theieon was duly served on
the Meat Cutters Its request foi continuance , on the first day, and its counsel's cross-
examination of witnesses , submission of motions to dismiss the complaint on the merits,
and filing of a brief with the Trial Examiner , amounted to a general appearance, even
though it was not served with the original or amended charges and refrained from filing
an answer I conclude that the Meat Cutters is subject to the jurisdiction of the Board
herein to the extent of its interest in the bargaining contract mentioned in the complaint
and in evidence herein , and that the Board has jurisdiction to order any appropriate
remedy with respect to that contract See National Licorice Co v. N L R B , 309 U. S
350, 361-366; Consolidated Edison Company of New York , Inc. v. N. L R. B, 305 U. S
197, 233
4 The findings in this section are based on facts stipulated by counsel , documentary evi-
dence, and uncontradicted and credited testimony of witnesses of General Counsel.
SAFEWAY STORES, INC. 973
The agreement recites that it was executed by the parties April 14, 1954, and pro-
vides that it shall be effective "April 1, 1953, until and including the 30th day of
November, 1954, and shall continue from year to year thereafter unless or until
either party serves notice in writing at least sixty (60) days prior to the expiration
of the original or any subsequent period of a desire for termination of or for changes
in the Agreement." In paragraph numbered 2 of the agreement, Respondent recog-
nizes the Meat Cutters as the sole representative of all its store employees coming
within the jurisdiction of the Meat Cutters in stores and markets located in terri-
tories served as set forth in schedule A of the agreement; the space provided in that
schedule for listing of territories is blank. The agreement contained a union-shop
or maintenance-of-membership clause, and provided that the "check-off will be car-
ried on in accordance with past practices." At the same time the parties executed
two supplemental agreements, each dated April 14, 1954, which purport to interpret
or clarify certain provisions of the basic agreements. One supplement provides that
the original agreement shall expire on December 1, 1955, except for the right of
the parties to open it on December 1, 1954, on due notice for discussion of wages
and vacations only. None of these documents specifically mention the Fairless Hills,
Pennsylvania, store.
On April 19, 1954, the Union sent Respondent a letter, which the latter received
April 20, requesting recognition as bargaining representative of employees at the
above store. On April 20, 1954, the Union filed a petition with the Board in Case
No. 4-RC-2371, requesting certification as such bargaining representative. At the
close of the testimony herein, no hearing had been held in that case.
B. The first solicitation of membership for the Meat Cutters
The Fairless Hills store opened for business on March 11, 1954, under the super-
vision of Leonard Henzke, location manager, and Enoch Brown, relief location man-
ager, both of whom are supervisors within the meaning of the Act. Prior to its
opening, Respondent began hiring employees on Monday, February 15, 1954, when
9 or 10 male applicants reported for work and went on the payroll. Four more
men were hired on the 16th, and 9 more on the 17th. Another group of 20 appli-
cants, all women but 1, reported for work on February 23, 1954.5 Prior to Feb-
ruary 15, Respondent had no rank-and-file employees in the store; by February
20, it had hired 24; thereafter the number on the payroll rose each week to a peak
of 70 on March 13, after which it declined weekly to a total of 27 employees on
May 1, 1954.6
In the weeks before the store opened for business, the employees already hired
received classroom instruction daily in the store regarding company policies, general
store procedures, etc., from Don Strowbridge, a personnel training employee of
Respondent. On February 15, 1954, the first group of male employees hired were
called individually to the office of Henzke in the store where his assistant, Brown,
told each one to fill out and sign an employee's withholding exemption certificate for
Federal income tax purposes (Form W-4, erroneously called "W-2" by some wit-
nesses ). At the same time he placed before the employee and told him to fill out
and sign a yellow card which contained an application for membership in the Meat
Cutters, a designation of that organization as the signer's sole bargaining agent with
respect to wages, hours, and working conditions, and also had a detachable stub which,
when signed, authorized the Employer to check off union membership dues from his
wages and pay the same to the Meat Cutters. When employee Bernard J. Kroll
was handed the union card, he asked Brown if it was necessary to fill it out. Brown
replied that it was, and that anyone who did not fill out and sign it would not work
for Respondent. Kroll then filled it out and signed it, except for the stub author-
izing checkoff dues, left it with Brown, and returned to class. Later that day Brown
brought the card to Kroll and had him fill out and sign the stub. Shortly after sign-
ing the card, Kroll asked Strowbridge in the training class "What about this union
that's in here?," and Strowbridge replied that "we are working out of New York
on a blanket agreement, we are abiding by their regulations," that "they" had looked
around for a union and "this Amalgamated was about the best they had," and that
that was how the Company got into negotiations with it. When employee John L.
5In nearly all cases, applicants for jobs filled out application blanks at the store a week
or two before they were hired, and reported for work on specified dates in response to
postcards sent them by Brown.
U Employees on the payroll at the end of each week after February 20, were as follows :
February 27, 41 ; March 6, 48, March 13, 70; March 20, 60; March 27, 53; April 3, 42;
April 10, 35 ; April 17, 32, April 24, 29 ; May 1, 27.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ryba was sent to Henzke's office after Kroll, Henzke gave him the same two forms
to fill out. When Ryba asked if he had to fill out the union card, Henzke told him
"you [had] better, or you don't work for Safeway." Ryba said that if he had to
sign, he was going to read the card, and proceeded to do so. Henzke then told him
to hurry up, as other employees were waiting . Ryba then signed the card, left it
there. Employee John D. Prelle reported for work February 17, 1954, with eight
other employees, and when the group entered the training class that morning, Strow-
bridge distributed the W-4 forms and union cards to them, said they had to fill them
out, and that the Meat Cutters was a good union from what he knew, but that Brown
would talk to them further about it. Brown then came in and told them to fill out
both cards, explaining in deail how it should be done, saying employees who had
filled them out before had made some mistakes. He also said that the "first group"
had voted on the Union All employees in the group then filled out and signed both
forms. During a recess that morning, Prelle heard Brown tell another employee in
the men's room that anyone who did not sign a union card would not work for
Safeway.
When the group of employees who reported for work on February 23, 1954, started
their classroom training that day, Instructor Strowbridge handed out the same in-
come tax and union forms and told them to fill out and sign both. One employee,
Rose Groves, asked Strowbridge in the presence of the others if the store was union-
ized and if the employees had any choice as to the union they wished to join Strow-
bridge replied that they had no choice, that the "fellows had already voted it in,"
"they were the majority," that there was a contract already signed by the Company,
that the employees "had to go along with it," that it was part of their job, that be-
longing to the Union was "part of working at Safeway," and if the employees did not
sign the union cards, they would not work there All employees in the group signed
both forms, which were then collected by Strowbridge.
C. The Meat Cutters' solicitation of employees in May; the checkoff of dues
On a date in the early part of May 1954, Roy Straub, business agent of the Meat
Cutters, visited the Fairless Hills store and spent about a half day openly soliciting
all the employees during working hours to sign new applications for membership
in the Meat Cutters, with checkoff authorizations, similar to those signed in Feb-
ruary. When asked by various employees why signature of another card was nec-
essary, he told one the first cards were filled out incorrectly, with wrong addresses,
and he wanted to get the "records straightened out," that Respondent wanted to
verify signatures on both cards before checking off any dues; he told several women
employees that there was a "fuss" over the first card, a controversy about another
union wanting to get into the store, and that they should sign the second card to
"acknowledge the first one"; he told another girl that the second card would "legal-
ize it." Many employees signed the second cards, but the exact number does not
appear in the record. During Straub's activity, managers Henzke and Brown were
in the store, but there is no proof that Straub spoke to either of them.
At the next payday in May following Straub's solicitation aforesaid, Respondent
checked off union dues from the pay of all employees at the store who had signed
the second Meat Cutters' card, remitted such dues to the Meat Cutters, and has
continued such checkoff since that time.
D. Contentions of the parties, and concluding findings
Respondent admits that it recognized and bargained with the Meat Cutters in
January, February, March, and April, 1954, as the exclusive representative of em-
ployees at its Fairless Hills store When it recognized the Meat Cutters in January
and February, before the store opened and it had hired any employees, Respondent
was clearly affording that labor organization illegal assistance and support at a
time when it knew it did not represent a majority of employees in an appropriate
bargaining unit . I conclude that such recognition was a violation of Section 8 (a)
(2) and (1) of the Act,7 for the record shows, as Strowbridge told employee Kroll
in February, that Respondent had looked around for a union and settled on the
Meat Cutters as being "about the best they had," and chose it beforehand as the
bargaining representative which it wanted its prospective employees to have. It thus
prepared to present such employees, as and when hired, with a ready-made bargain-
ing agent, regardless of their own desires in the matter, and thus preempted the right
7 Cf John B Shiver Company, 103 NLRB 23, 38, 39, and Consoisdated Builders, Inc.,
99 NLRB 972, 975
SAFEWAY STORES, INC. 975
reserved to employees by the Act to choose their own bargaining representative.
Respondent proceeded to implement this unlawful conduct in no uncertain fashion
when it began to hire and build its work force at the Fairless Hills store.
When Respondent's store managers , on February 15, 17, and 23, 1954, directed
newly hired employees to sign cards designating the Meat Cutters as their sole col-
lective-bargaining representative , and authorizing Respondent to check off dues
from their wages for payment to that organization, and at the same time advised
them that those who did not sign cards would not work for Respondent, that they
had no choice as to a union, that they "had to go along with it," and that belonging
to that union was "part of working at Safeway," the managers were clearly forcing
employees to designate the Meat Cutters as their bargaining representative as a
condition of continued employment. In addition, Manager Brown and Personnel
Director Strowbridge resorted to falsehoods to persuade most of the employees to
sign, when they told them that the "first group," "the fellows," had already "voted
it in," that "we are working out of New York on a blanket agreement," and that
there was a contract already signed by the Company. There is no proof that the
male employees hired on February 15, or any later group, ever voted, or were given
any chance by Respondent, to vote, on affiliation with the Meat Cutters, before they
signed their cards. There is no proof of any "blanket agreement," unless the con-
tract of April 14, 1954, which is indefinite as to territory covered, can be called
such, and that was obviously not signed or effective until much later. As a result
of all these remarks, all the new employees signed the cards. I conclude and find
that by such conduct of its supervisors,8 Respondent actively assisted and con-
tributed support to the Meat Cutters in violation of Section 8 (a) (2) of the Act,
and thereby interfered with, restrained, and coerced employees in the exercise of
their fundamental and guaranteed rights to bargain collectively through represent-
atives of their own choosing, in violation of Section 8 (a) (1) of the Act. Knick-
erbocker Plastic Co., Inc., 96 NLRB 586, 587; Sioux City Brewing Company, 82
NLRB 1061, 1062, Bayly Mfg. Co., 103 NLRB 1337; 1338; Whyte Manufacturing
Company, Inc., 109 NLRB 1125. I further conclude and find that Respondent
thereby also violated Section 8 (a) (3) of the Act, for it seems clear that Respond-
ent's requirement that employees sign the authorization cards, which also directed
the employer to check off union dues from their wages for payment to the Meat
Cutters, as a condition of continued employment constitute a clear discrimination
with respect to their tenure of employment to encourage membership in that or-
ganization and discourage membership in any other labor organization. Cf. Con-
solidated Builders, Inc., 99 NLRB 972, 975-977; Bayly Mfg. Co., supra.
In defense of this conduct, Respondent and the Meat Cutters contend that the first
cards were signed long before the Union advised Respondent of its claim of rep-
resentation of the employees, and that Respondent was not required to maintain
strict neutrality in its dealings with the Meat Cutters in the absence of a claim of
interest by a rival union. They also emphasize the fact that Respondent never
recognized or acted upon the authority of the first cards, since it did not check off
dues until after the second set of cards was procured by the Meat Cutters and pre-
sented to it I consider these arguments without merit for several reasons. Under
the above decisions, the managers' presentation of cards to employees with expla-
nations which left them no choice but to sign them if they desired to continue in
Respondent's employ was inherently coercive. That the coercion was effective is
patent from the fact that all employees signed the cards as soon as presented to
them, and none refused, not even those few who at first rebelled and questioned
the necessity for signing them. The fact that the Union had not yet presented its
claim of interest to Respondent is beside the point, for Respondent here was not
recognizing and dealing with a union freely and voluntarily chosen by its employees
prior to the advent of a rival organization, as was the case in Anaconda Copper
Mining Company, 104 NLRB 1064, cited by the Meat Cutters; it was compelling
unorganized employees to join the Meat Cutters by use of a potent and illegal threat,
before they had made any attempt either at self-organization or joining an existing
labor organization. The vice in Respondent's conduct, so far as its employees were
concerned, was its deprivation of their right of free choice of a bargaining rep-
resentative, and at the same time it was recruiting members for the Meat Cutters
by unlawful threats, which was a most potent form of assistance to that organ-
ization. In the Anaconda case, the employees had a chance beforehand freely to
8 Strowbridge was not a supervisor, but as training instructor he was in a strategic posi-
tion to translate management policies to employees, and as his remarks followed the same
pattern as those of the managers, I consider Respondent responsible for his remarks as
well Sioux City Breiaing Co., 82 NLRB 1061, 1063.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organize their own union , with which the employer thereafter dealt legally; there
was no proof of assistance to or interference with their independent union. Here
the situation is far more serious, for Respondent forced its own choice of a bar-
gaining representative upon newly -hired employees before they had made any at-
tempt, or even had any chance as employees , to organize themselves or choose a
union . Having engaged in coercion of its employees , Respondent could avoid re-
sponsibility therefor only by prompt and unmistakable disavowal of the acts of its
supervisors which would bring home to the employees the fact that the first cards
were null and void, were not being honored or used by Respondent , and that the
employees were free to choose any union (or none at all) as their bargaining
representative , or form their own for that purpose . Respondent 's conduct does not
meet this test. There is no proof that the cards were returned to the employees,
which would have been one of the best ways of telling the employees they were
repudiated . Nor is there proof of the exact disposition of the cards otherwise.
It is true that Respondent never checked off dues on the basis thereof, but the nega-
tive fact that the employees did not see any reduction in their wages until after they
signed the second cards was far from a conclusive announcement to them that the
entire cards had been repudiated ; at best , it could only raise the inference that for
some reason the checkoff stubs were not being honored by Respondent ; the reason
was never explained to them by Respondent. At any rate, a repudiation of the
checkoff authorization , even if clear and unequivocal , does not amount to a clear
and specific disavowal of the designation of bargaining representative contained in
the main portion of the cards. In the absence of a timely disavowal of all portions
of the cards in specific and unambiguous terms, or proof that they were ever de-
stroyed or returned to the employees , Respondent has not dissipated the coercion
inherent in the circumstances of their signing , and must bear the responsibility
therefor. Playwood Plastics Co., Inc., 110 NLRB 306; Goode Motor Company,
101 NLRB 43, 53; and compare Whyte Manufacturing Company, Inc., supra .9
Having rendered unlawful assistance and support to the Meat Cutters in February
1954, by its unlawful recruitment of members for that organization among its em-
ployees, and having taken no steps to dissipate the coercion practiced on its em-
ployees, Respondent continued to render unlawful assistance to the Meat Cutters by
its recognition of and bargaining with that organization in March and April, which
culminated in the execution of a collective -bargaining agreement including union-
security and dues checkoff provisions on April 14 , 1954,10 as exclusive bargaining
representative of employees at the store . There is no proof that the Meat Cutters
at any time in this period represented an uncoerced majority of employees in an
appropriate unit in the store ." Under these circumstances , it is apparent that the
union-security contract itself was invalid, because it was made with a union which
had been unlawfully assisted by unfair labor practices within the meaning of Section
8 (a) (2) of the Act, and the contracting union did not legally represent a majority
of employees in the appropriate unit. See proviso to Section 8 (a) (3) of the Act
and Julius Resnick, Inc., 74 NLRB 184, 187; Virginia Electric d Power Company v.
N. L. R. B., 319 U. S. 513, 536, 537, affirming 44 NLRB 404; N. L. R. B. v. Premo
Pharmaceutical Laboratories, Inc., 136 F. 2d 85, 86 (C. A. 2); Eighteenth Annual
Report of the National Labor Relations Board, pp. -38 and 39.12 In consequence,
Olt is also significant that when the Meat Cutters ' agent, Straub , procured the second
set of cards from the employees in May, as discussed hereafter, he told some of them that
there was a "fuss" over the first cards due to the fact that another union desired to or-
ganize the store, and that the second card would " legalize it," which is a clear indication
that in May even the Meat Cutters had its doubts about the legality of the first cards
10 Paragraph 80 of the agreement recites that the parties executed it April 14, 1954, and,
in the absence of proof to the contrary , I find that this was the date of execution and the
effective date of the contract, as well as its two supplements.
It The record shows that by February 24, 1954, 43 employees had been compelled
illegally to sign up with the Meat Cutters, and that of this number only 1, Ryba, had left
Respondent 's employ before April 14, 1954 . The Fairless Hills store reached its peak
payroll of 70 employees on March 13 , 1954, and the store complement declined weekly
thereafter to a low of 27 on May 1 , 1954; there were 35 on the payroll on April 10, and
32 on April 17, 1954 . It is clear from these figures that throughout this period the num-
ber of coerced employees was in the majority, especially in the period April 10-17 during
which the contract was signed. For purposes of this finding , I am assuming the storewide
unit mentioned in the contract is the appropriate unit.
12 In view of this conclusion , I deem it unnecessary to analyse or pass upon the validity
of the union -security or other specific provisions of the contract or its contemporaneous,
supplements.
SAFEWAY STORES, INC. 977
when Respondent recognized and enforced that invalid agreement by checking off
union dues from employees' wages and remitting same to the Meat Cutters starting
in May 1954, it rendered further unlawful assistance to that union in violation of
Section 8 (a) (2) of the Act. In addition, the reduction of employees' wages by
deduction of union dues pursuant to an illegal contract was a discrimination in
regard to an important condition of their employment, i. e., the amount of their
wages, which had the effect of compelling membership in a union which neither
had a valid union-security contract nor had been freely chosen by the employees
as their bargaining representative, and amounted to a violation of Section 8 (a) (3)
of the Act, and also further coerced and restrained employees in violation of Section
8 (a) (1) of the Act.13
Respondent and the Meat Cutters attempt to support the checkoff of dues by
the second set of union cards procured by the Meat Cutters' agent, Straub, from
the employees in May. They contend this procurement was legitimate because
Respondent had no part in it, and that it was effected solely by the Meat Cutters
and without coercion of employees. The record shows that Straub solicited em-
ployees to sign these cards in the store during working hours, that some employees
signed them immediately in the store and others outside. There is no proof that
Respondent initiated this solicitation, or that Straub spoke to the store managers
about it while he was in the store or at any other time, or that the managers spoke
to the employees about it. Although Straub apparently initiated the solicitation
himself, he carried it on openly in the store while the managers were present there
in the course of their duties, and it is inconceivable to me that they were utterly
ignorant of his presence or his activities. Respondent admits in its brief, and the
entire circumstances of the solicitation warrant the inference, that Respondent know-
ingly permitted the Meat Cutters to solicit and procure the new cards from employees
on company time and premises. General Counsel argues that by this conduct Re-
spondent continued to violate Section 8 (a) (1), (2), and (3) of the Act, because
it had never advised the employees that the first cards they signed were null and
void, and the second procurement of cards occurred at a time when the employees
were still under the impression created by Respondent's prior coercive conduct
that they had to remain members of the Meat Cutters in order to retain their jobs;
and when Respondent allowed the Meat Cutters to use company time and premises
for the second solicitation, that served to continue, rather than dispel, that impression.
If the second solicitation were considered alone, I would have some doubt whether
a violation of the Act was involved, for there is no proof of the existence of a no-
solicitation rule in the store, or that Respondent discriminatorily waived the rule
for the benefit of the Meat Cutters while enforcing it against the Union, or that
Respondent initiated, controlled, or participated directly in the second solicitation.
However, that solicitation cannot be considered as a single, isolated incident, such
as the Board found insufficient in Syracuse Color Press, Inc., 103 NLRB 377, 390,
to support a finding of violation of the Act; it must be viewed in its relation to
Respondent's prior unfair labor practices. When so considered, I am constrained to
conclude that Respondent cannot rely on it either to avoid responsibility for these
unfair labor practices or to support its subsequent checkoff of dues. In the first place,
Respondent has never properly repudiated the first cards nor taken steps to disavow
the coercion inherent in their procurement or dispel the coercive effects thereof in
the minds of its employees. Secondly, it never disavowed its illegal recognition of
and execution of a contract with the Meat Cutters. The employees learned about
the contract and its terms from the Meat Cutters. It is fair to say that the coercive
effects of these unfair labor practices on the employees continued and were certainly
prevalent among them at the time of the second card solicitation. If Respondent
was under a duty to dispel the effects of these unfair labor practices prior to the
Union's claim of interest on April 19, 1954, it had the same duty a fortiori there-
after, when the conflicting claims of rival unions required a policy of strict employer
neutrality. Respondent did nothing, however, to proclaim its neutrality to the em-
ployees. On the contrary, it knowingly permitted the Meat Cutters, an unlawfully
assisted union, to solicit and procure new membership cards from its employees
is See cases supra, and Delores, Inc, 98 NLRB 550, 551. I do not agree with Respond-
ent's contention that the prohibitions contained in Section 8 (a) (3) are limited to "puni-
tive" actions against employees such as outright discharge, disparate treatment, demo-
tions, transfers, etc That section, in my opinion, is bioad enough to encompass any type
of discriminatory treatment which adversely affects employees. An involuntary checkoff
of union dues from their wages under an unlawful contract, which affects them economi-
cally as much as the other types of discrimination listed above, clearly falls within its
purview. Cf. Precast Slab and Tile Oompany, 88 NLRB 1237, 1238
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
openly in the store, under circumstances which could only have led the employees
to believe that the Meat Cutters' procurement of the cards was sanctioned, if not
inspired, by Respondent. Straub's remarks to some employees during that solicita-
tion clearly indicated that the first cards were still considered in effect by Respondent,
though deficient in some respects, for he told them they had to sign the second
cards to "straighten out the records," to enable Respondent to verify signatures on
both cards before a checkoff of dues, and to "acknowledge the first one." Although
there is no proof that Respondent's managers heard or knew of the explanations and
inducements Straub used to procure these cards , I am of the opinion that Re-
spondent's very silence on this occasion, after its prior coercive conduct which
forced its employees to join Straub's union, was calculated to give them the impres-
sion that Respondent still favored that union and at least acquiesced in his remarks
and conduct, and that Respondent is chargeable therewith. Under all of these
circumstances, I conclude and find that Respondent rendered further unlawful
assistance to the Meat Cutters in May 1954, in violation of Section 8 (a) (2) and
(1) of the Act, by permitting that organization to solicit and procure new member-
ship cards with checkoff authorizations from its employees in its store during work-
ing hours. As the second cards are thus tainted with illegality, it follows that they
cannot serve ex post facto to legalize the contract of April 14, 1954, nor as a basis
for the checkoff of union dues or further recognition and bargaining with the Meat
Cutters.i4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act
I have found that the Respondent unlawfully recognized and rendered support
and assistance to the Meat Cutters and unlawfully entered into a bargaining con-
tract with that organization. I shall therefore recommend that Respondent with-
draw and withhold all recognition from the Meat Cutters as the collective-bargain-
ing representative of any of its employees at the Fairless Hills, Pennsylvania, store,
and cease giving effect to its contract of April 14, 1954, with that organization, or to
any extension, renewal, modification, or supplement thereof, or to any superseding
contract with that organization, unless and until it is certified by the Board as such
representative However, nothing herein shall be construed as requiring Respondent
to vary or abandon the wages, hours of employment, rates of pay, seniority, or other
substantive features of its relations with the employees themselves which it may have
established in performance of said contract as extended, renewed, modified, supple-
mented, or superseded, or to prejudice the assertion by the employees of any rights
they may have under such contract.
Having found that Respondent violated Section 8 (a) (3) and (1) of the Act
by coercing its employees to become and remain members of the Meat Cutters and
to authorize deduction of membership dues from their wages for payment to that
organization, and by actual checkoff of such dues from their wages, I shall recom-
mend that Respondent make whole to such employees the amounts deducted from
their wages for that purpose from the exact date in May 1954 when such deductions
were first made, as shown by Respondent's records, to the date of compliance with
the Board's Order herein.
Respondent's illegal coercion of employees to join the Meat Cutters, its potent
and unlawful support and assistance rendered to that organization, including its
141 make no finding that the procurement of the second cards was a violation of Section
8 (a) (3) of the Act I have not considered, and make no findings on, the question raised
by the Meat Cutters as to the propriety of postponement of the representation proceedings
pending the determination of the issues in this case, as the Board's administrative proceed-
ings in the representation case are not at issue here I note, however, that the Board in
The Cufman Lumber Company, Inc, 82 NLRB 296, 299, held that although a union has
filed a petition for certification with the Board and then orally agreed to an election, it is
not thereby precluded from seeking relief in a complaint proceeding when it appears that
a free election is impossible because of an employer 's unfair labor practices.
SAFEWAY STORES, INC. 979
unlawful recognition and bargaining with it as the exclusive representative of its
employees , culminating in the contract of April 14, 1954, which Respondent enforced
by checkoff of union dues, are convincing evidence of Respondent 's fundamental
purpose to thwart self-organization of its employees and deprive them of rights guar-
anteed by the Act, and demonstrate the likelihood that it may commit other unfair
labor practices in the future . The remedy should be coextensive with the threat. I
shall therefore recommend that Respondent be ordered to cease and desist from
infringing in any manner on its employees ' exercise of rights guaranteed to them by
the Act.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is and has been engaged in commerce within the meaning of Sec-
tion 2 ( 6) and ( 7) of the Act.
2. The Meat Cutters and the Union are labor organizations within the meaning
of Section 2 (5) of the Act.
3. By coercing its employees to become and remain members of the Meat Cutters
and by the involuntary checkoffs of union dues from their wages for payment to that
organization , thereby encouraging membership in that organization , Respondent has
discriminated in regard to their tenure of employment and terms and conditions of
employment , and has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (3) of the Act.
4. By the above conduct , and by its recognition and bargaining with the Meat
Cutters, execution of a collective -bargaining agreement with it, enforcement of that
agreement , and permitting that organization to procure new membership cards from
employees on company time and property under the circumstances set forth above,
thereby rendering assistance and support to that organization , Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (2) of the Act.
5. By the above conduct, thereby interfering with , restraining , and coercing em-
ployees in the exercise of 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.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
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 Re-
lations Act , as amended , we hereby notify our employees that:
WE WILL NOT encourage membership in Amalgamated Food Employees
Union , Local 196, affiliated with Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL , or any other labor organization of our employees,
by compelling them to become or remain members in such organization under
threat of discharge , by involuntary checkoff of union dues from their wages,
or by discriminating in any other manner in regard to their hire or tenure of
employment , or any term or condition of employment , except to the extent
authorized by Section 8 (a) (3) of the Act.
WE WILL NOT assist or support the above -named labor organization by en-
couraging or coercing our employees to become or remain members thereof
or to designate that labor organization as their exclusive representative for pur-
pose of collective bargaining, or by involuntary checkoff of union dues from
their wages and payment of same to said organization , or by permitting said
organization to solicit membership among our employees on company time and
premises in such manner as to indicate that we favor such solicitation.
WE HEREBY withdraw recognition , and will withhold all recognition, from
the above-named labor organization as the exclusive representative of our
employees in our Fairless Hill, Pennsylvania , store for purpose of collective
bargaining , unless and until said organization shall have been certified by the Na-
tional Labor Relations Board as such representative.
344056-55-vol. 111-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give any effect to our contract of April 14, 1954, with modi-
fications of the same date, with the above-named labors organization, or to
any extension, renewal, modification, or supplement thereof, or to any super-
seding agreement with said labor organization, unless and until said organiza-
tion shall have been certified by the National Labor Relations Board as the
bargaining representative of our employees in the aforesaid store.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist Local 1371, Retail Clerks International Association,
AFL, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and to re-
frain 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 organiza-
tion as a condition of employment, as authorized by Section 8 (a) (3) of the
Act.
WE WILL forthwith reimburse to all our employees and former employees in
our Fairless Hills, Pennsylvania, store, from whose wages we have deducted
and withheld funds since May 1, 1954, all such deductions and withholdings
representing union membership dues charged by and payable to Amalgamated
Food Employees Union, Local 196, affiliated with Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL, under the terms of the au-
thorization of checkoff of union dues contained in any applications for mem-
bership in said labor organization heretofore signed by said employees and
former employees or pursuant to the terms of the contract of April 14, 1954,
or any extension, renewal, modification, or supplement thereof, or any agree-
ment superseding it, or otherwise.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any labor organization, except to the extent that such right
may be affected by an agreement as authorized in Section 8 (a) (3) of the Act, as
amended.
SAFEWAY STORES, INC.,
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.
ELM CITY BROADCASTING CORPORATION and AMERICAN FEDERATION
OF TELEVISION AND RADIO ARTISTS, AFL. Case No. 1-CA-1748.
March 17',1955
Decision and Order
On November 1, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief; i and the
General Counsel filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 The Respondent's request for oral argument is denied because, in our opinion, the
record and exceptions and briefs adequately present the issues and positions of the parties.
111 NLRB No. 165.