Scotto's I.G.A.

National Labor Relations Board - Board Decisions

May 29, 1980

249 N.L.R.B. 909 (N.L.R.B. 1980)

SCOTTO'S I.G.A. 909
Ely's Foods Inc., d/b/a Scotto's I.G.A. and Retail
Store Employees Union, Local No. 782, char-
tered by United Food and Commercial Workers
International Union, AFL-CIOl and United
Food and Commercial Workers International
Union, Local Union 576, AFL-CIO. 2 Cases 17-
CA-8787, 17-RC-8697, and 17-CA-8831
May 29, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 18, 1980, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,3
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Ely's Foods Inc., d/b/a Scotto's I.G.A., Brook-
field, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
Insert the following as paragraph l(d) and relet-
ter the following paragraph accordingly:
I The name of the Charging Party, formerly Retail Store Employees
Union, Local No. 782, chartered by Retail Clerks International Union,
AFL--CIO, is amended to reflect the change resulting from the merging
of Retail Clerks International Union and Amalgamated Meatcutters and
Butcher Workmen of North America on June 7, 1979.
2 The name of the Charging Party, formerly Amalgamated Meat Cut-
ters & Butcher Workmen of North America, Local Union 576, AFL-
CIO, is amended in accordance with fn. 1.
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
4 The Administrative Law Judge inadvertently failed to include in his
recommended Order a provision requiring Respondent to cease and desist
from coercively interrogating its employees. We shall modify the recom-
mended Order accordingly.
249 NLRB No. 132
"(d) Coercively interrogating employees con-
cerning their activity on behalf of any labor organi-
zation."
IT IS FURTHER ORDERED that the election con-
ducted on February 28, 1979, be, and it hereby is,
set aside and that the petition in Case 17-RC-8697
be, and it hereby is, dismissed.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with regard to this matter
was held before me in Brookfield, Missouri, on July 10
and 11, 1979. The charge in Case 17-CA-8787 was filed
on February 16, by Retail Store Employees Union,
Local No. 782, chartered by Retail Clerks International
Union, AFL-CIO (herein called the Retail Clerks). The
charge in Case 17-CA-8831 was filed on March 9, by
Amalgamated Meat Cutters & Butcher Workmen of
North America, Local Union 576, AFL-CIO (herein
called Meat Cutters). Thereafter, on April 6, the Acting
Regional Director for Region 17 of the Board issued an
order consolidating cases, complaint, and notice of hear-
ing, alleging that Ely's Foods Inc., d/b/a Scotto's I.G.A.
(herein called Respondent or the Employer), has violated
Section 8(a)(1), (3), and (5) of the National Labaor Rela-
tions Act, as amended. 2
The Retail Clerks filed a representation petition in
Case 17-RC-8697 on February 6, and pursuant to a Stip-
ulation for Certification Upon Consent Election, an elec-
tion by secret ballot was conducted on February 28,
among the employees in the agreed-upon unit. 3 The tally
of ballots, issued to the parties following the election,
shows that there were approximately 28 eligible voters,
10 of whom cast ballots for, and 16 against, the Retail
Clerks. There were no void ballots and the two chal-
lenged ballots were not determinative of the outcome of
the election.
On March 6, the Retail Clerks filed timely objections
to the election, serving copies thereon upon the Employ-
er. Thereafter, on April 11, the Regional Director for
Region 17 of the Board issued an order consolidating
cases and directing a hearing on objections to the elec-
tion, which order directs that certain objections which
raise substantial and material issues of both fact and law
should be resolved after a hearing before an administra-
tive law judge of the Board.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
All dates or time periods herein are within 1979 unless otherwise
stated.
2 The complaint was amended at the hearing to include additional
8(a)(1) allegations.
a The unit is described as follows
All full-time and regular part-time employees employed by the Em-
ployer at its Brookfield, Missouri store, but EXCLUDING all meat
department employees, office clerical employes, professional emplos-
ees, guards and supervisors as defined in the Act
SCOTTO'S IGA. 09
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel, counsel for the Retail Clerks, and counsel for
Respondent.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Missouri corporation engaged in the
retail sale of groceries and related products at a facility
located in Brookfield, Missouri. In the course and con-
duct of its business operations, Respondent annually pur-
chases goods and services valued in excess of $50,000 di-
rectly from sources located outside the State of Missouri,
and has an annual gross volume of business in excess of
$500,000.
It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that the Retail Clerks and
the Meat Cutters are now, and at all times material
herein have been, labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er Respondent violated Section 8(a)(1) of the Act in var-
ious respects, and whether, as a result of such unfair
labor practices, remedial bargaining orders should be im-
posed in the two separate units involved herein.
B. The Facts
In or about January 1979, the Retail Clerks and the
Meat Cutters commenced a joint organizing effort
among Respondent's employees in two separate units. On
February 2, Otto Ely, owner and president of Respond-
ent, was personally advised of the organizational cam-
paign by Robert Reeds, then organizing director for the
Retail Clerks, who handed Ely a letter containing a list
of employees who had signed authorization cards. On
February 3, Reeds again personally delivered another
letter to Ely requesting recognition in an appropriate
Retail Clerks unit, together with additional names of em-
ployees who signed union cards. A similar letter was
sent on February 5. Reeds advised Ely, during the
course of the various conversations, that the Retail
Clerks and Meat Cutters, respectively, represented a ma-
jority of employees in the separate units. 4
4 There are approximately 28 employees in the above-described Retail
Clerks unit, and four employees in the Meat Cutters unit, described in the
complaint as:
All full-time and regular part-time meat department employees em-
ployed by the Resplxndent at its Brookfield. Missouri store but ex-
cluding office clerical employees. professional employes, guards and
supervisors as defined in the Act
Lillian Ann Buckman, who currently works for Re-
spondent in the grocery department, testified that, on
February 2, she was summoned to the office by Otto
Ely. Anticipating that she would be questioned about her
participation in the union activity, she asked Rober
Shaul, a meat department employee, to accompany her
to the meeting. Ely asked Buckman how long the union
activity had been going on, and Buckman said she had
heard of it only the preceding night. He asked if she
knew who had started it, and Buckman replied that she
did not know. Observing that Shaul was present, Ely
asked what Shaul was doing there. Shaul replied that his
name was also on the list of card signers submitted to
Ely by Reeds, and he had come to back Buckman up, as
the employees had been advised to do by union repre-
sentatives. Ely then asked Buckman if there were addi-
tional union adherents who were not on the list,5 and
Buckman replied that she supposed so. He asked if it
would be presumptuous to ask where the union meeting
had been held. She said she could not tell him as she did
not know. 6 Buckman related the substance of this con-
versation with Ely to other employees in the store.
On the next day, February 3, Ely held a meeting with
Buckman and several other employees. Ely said he hated
to see the store go union because, unlike Ely's store,
union stores had hard working conditions. He stated that
if the store went union he would have to get rough on
employees, for example, by prohibiting employees from
smoking cigarettes in the back room, and by no longer
permitting employees to charge groceries or borrow
money. He further stated that a union would cause him
to cut back on the number of employees and their hours,
in order to be able to afford the wages which the Union
would demand.
Employee Roger Shaul corroborated Buckman's afore-
mentioned testimony regarding the February 2 conversa-
tion with Ely. Shaul also testified that on February 8, in
the presence of Bee Lewis, another meat department em-
ployee, Otto Ely remarked that Shaul was one of the
best meatcutters he had ever seen, that Lewis was also
an excellent employee, and that the other meat depart-
ment employee, Dwight Daller, had excellent potential.
He asked what happened to the lines of communication
and inquired why the employees did not come to him
rather than to the Union, adding that sometimes a pri-
vate employer could do more for an employee than a
union could. Ely went on to say that an employee could
be permanently replaced while on strike, and said he
hoped a strike would be unnecessary, commenting that
the law said that he had to negotiate in good faith, but
that there was no law requiring him to sign a contract.
On February 9, head meatcutter Pat Burstert, in the
presence of employee Shaul and Daller, stated that Otto
Ely was not concerned about the clerks, but would like
to reach an agreement with the meat department, adding
that it would be a lot easier to get Ely to sign an agree-
ment with the meat department than it would be to ne-
gotiate a union contract. He further stated to Shaul and
I The letter of February 2 states that additional unnamed employees
had signed cards, and that their names would be supplied to Respondent
in the near future.
R In fact, Buckman had attended the meeting the previous evening
SCOTO'S .G.A. 911
Daller that Ely could not offer anything at that time be-
cause the union petition was pending.
On February 22, Burstert said to Shaul, "Well, the pie
is getting sweeter," adding that "Otto would like to
reach an agreement with the meat department." He said
that Shaul, personally, could probably work a "helluva
deal," but again stated that Ely could not offer anything
because of the union petition. The election in the Retail
Clerks unit was held on February 28. On March 1, the
day following the election, Burstert said to Shaul that he
thought the chance to negotiate without a union had
been lessened quite a bit as a result of the outcome of the
election which the Retail Clerks had lost. On March 9,
Burstert said to Shaul that he (Burstert) had been in-
formed that three replacement butchers had been hired,
that he did not want anyone taking his job, and that the
company position was that Respondent would not sign a
contract.
Buckman was called to Otto Ely's office on February
27, the day before the election in the Retail Clerks unit.
No other employees were present. Ely said he could not
make any promises at that time, but that, if given a
chance, he would make things better for the employees
"when the mess was over with."He said he had not
known that the employees were receiving such low
wages, and added that he knew Buckman was not
making enough money. He said he would bargain in
good faith if the store did go union, but that he was not
obligated to sign a contract.
On March 7, Leo Roland, a stocker, had been talking
to employee Scott Henderson in the aisle for 5 or 10
minutes prior to Roland coming on duty. Scott Ely, Otto
Ely's son and also a store manager, had walked by on
several occasions observing the conversation, and about
the third time he walked by he instructed Roland not to
bother Henderson while he was working as this could in-
terfere with his work. Roland, who was not working at
the time, said, "Whatever you say, Scott." Shortly there-
after, when Roland began working at I p.m. that after-
noon, he was summoned by Ted Davis, assistant store
manager, and in the presence of Scott Ely was given a
verbal reprimand, reduced to writing, for being insubor-
dinate. Roland stated that he had not been insubordinate
but rather discontinued the conversation with Henderson
when so instructed, and that the written reprimand
should be changed. Roland testified that, on prior occa-
sions when he had been observed by Scott Ely talking to
fellow employees in the aisles, he had never been written
up or reprimanded. 7
On February 9, Bob Hollon, who had not worked Sat-
urdays for some 4 months, noticed that the weekly
schedule prepared by Assistant Manager Ted Davis had
Hollon listed for a Saturday shift. Hollon inquired about
the matter, and was told by Davis that it would be nec-
essary to start rotating several employees for Saturday
work. Later, Hollon again asked Davis why this was
being done, and Davis replied, "Because I need you."
Shortly thereafter, Davis approached Hollon, who was
working with another employee, and said, "What's the
I It was stipulated that the written record of the oral warning to
Roland was revoked the next day, but Roland was not informed of this
fact until the hearing.
matter, Bob, does it bother you? How would you like to
work them all?"8 Hollon worked only that one Saturday,
however, and his schedule was thereafter revised so that
he had no further Saturday work.
Kevin Henry testified that, on February 3, he and
about five other employees were having a discussion
with Otto Ely in the office, at which time the discharge
of the prior store manager, Charlie King, was discussed.
During the conversation, Lorie Ledbetter said she was
not working enough hours to be able to afford insurance
and payments on her car, whereupon Otto Ely turned to
Scott Ely and instructed him to see that she received
more hours. Otto Ely told Sandra Soloman that she was
real important to him and that he knew she had not been
getting enough hours, but as soon as the deli was opened
this would give her the opportunity to work more hours.
He said he always tried to run a family store, and if the
employees had any problems they could always talk to
him, but that if the Union came in things would be dif-
ferent.
Danny knowles, who no longer works for Respondent,
testified that during the aforementioned conversation on
February 3, in the presence of about five other employ-
ees, Otto Ely explained why he fired Charlie King, the
prior store manager, and further stated that Respondent's
reduced expenses as a result of King's discharge would
enable him to better everyone's hours because more
money would be available. At one point, Lorie Ledbet-
ter stated that she was unable to earn enough money to
drive her car because her work schedule had been re-
duced. Ely said that he would try to remedy this, and
asked Scott Ely if he could take care of it. Scott nodded
affirmatively. He looked at Sandra Soloman and said she
was special to him and had great plans for her when the
deli came in.
As a result of the foregoing conversation and sugges-
tions by other employees, Knowles became convinced
that he should no longer support the Union, and thereaf-
ter advised Otto Ely, in the presence of employee Kevin
Henry, of this decision. Ely expressed his appreciation,
and asked Knowles how he liked his part-time job in the
produce department. Knowles said he liked it, and Ely
asked how he would like to "get a handle on it," appar-
ently meaning that it was possible for Knowles to be
given a full-time job in produce should he so decide.
On February 22, Scott Ely asked Knowles if he heard
that Bob Hollon was leaving, and said, "Isn't that real
nice of him to get this Union started and then walk out
on you all." Scott Ely further commented that it would
be bad on everybody if the Union did get in, and added
that if the Union came in Knowles would probably be
one of the first people to be laid off, because Respondent
could not afford it.
On February 28, the day of the election in the Retail
Clerks unit, Knowles was 1 hour late to work. Otto Ely
stopped him, and in the presence of Assistant Manager
Davis said, " want this man written up for being late
this morning." Knowles explained that he had been con-
fused about his starting time as his schedule had recently
" According to employee Raymond Hamilton. Davis' question was
prompted by Hollon who again asked why he had to work on alternate
Saturdays.
SCOFTO'S IGA. 11
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been changed. Knowles was told that his excuse was in-
adequate and was directed to sign the warning. Upon
signing the warning Knowles stated that other employees
had been late and had not been written up, and Ely re-
plied that from then on it was going to be this way.
Dwight Daller is a meatcutter. On February 9, Bur-
stert told Daller, in the presence of Shaul, that Ely was
not nearly as worried about the clerks getting a contract
as he was about the meatcutters. He said, "You guys
could probably talk to him now and work a pretty good
deal." Later that day Burstert told Daller, "I know what
I would like to see. I'd like to see you guys work out a
deal with Otto." Daller expressed his opinion that it
would merely be a verbal agreement which could be
easily rescinded, and Burstert said that it would be in
writing, and that Ely had been advised that he had better
honor any commitment he made the employees.
On February 21, Burstert told Daller that, "Boy, this
pie is getting a lot sweeter." Daller replied that it would
be getting "a hell of a lot sweeter before it's over." Bur-
stert said, "Don't expect too damned much."
On March 1, the day after the Retail Clerks election,
Burstert said to meat department employees Daller,
Shaul, and Lewis that the loss of the election by the
Retail Clerks made it "kind of bad on you," adding, "I
don't think you stand much of a chance getting a con-
tract." However, he further stated, "Who knows, I think
you guys could work a pretty good deal right now."
Barry Gardner was a stocker prior to May 20 when he
became an assistant manager. Gardner testified that, on
March 15, Otto Ely approached him, said he heard the
National Labor Relations Board was in town, and asked
Gardner if representatives of the NLRB had been asking
a lot of questions. Gardner said he did not know. Ely
asked if they had talked to him, and when Gardner re-
plied that they had, Ely asked if there was any damaging
evidence, adding that employee Pauline Allen had
"shown them," as she would not talk to them very long.
Scott Henderson is a stocker. On February 3, Otto Ely
spoke to employees Henderson, Jim Cashatt, and Tracy
Briggs. Assistant Manager Davis was also present. Ely
said he had always tried to do everything he could for
the employees, that he thought of them as a family, and
did not understand what he had done wrong. He said he
did not like the way some people had been pressured
into signing authorization cards. At one point in the con-
versation, he said that if the Union came in he would
have to lay people off because he could not afford to pay
the higher wages which the Union would demand. Ca-
shatt, apparently testifying about the same conversation,
recollected that Ely stated he was going to keep all the
employees he then had whether or not the Union came
in. During the same conversation, according to Cashatt,
Ely said that if the Union came in he would have to lay
off some people because of his inability to afford the
higher wages.
Stuart Hughes is a sacker. On February 3, Otto Ely
summoned Hughes and three other employees to the
office and engaged them in a general discussion about
the store's operations. During the conversation he said
he might have to lay off some people if the Union got in
because of the higher wages he would have to pay.
Karen Linebaugh is a checker. On March 9, Line-
baugh asked Ely why she was the only checker closing
at night. Ely said that he could not do anything about
this and "if you think those union people can help you,
you just tell them for me they can take a flying leap."
Pat Burstert has been the head meatcutter since Octo-
ber 1978. He is salaried and, unlike the other meat de-
partment employees, does not punch a timeclock. Bur-
stert is "in charge" of the meat department, and assigns
work to the employees and insures that the work is com-
pleted. He also cuts meat, orders products, and schedules
working hours, but does not hire or fire. He attends
some management or supervisory meetings which are not
attended by meat department employees. Unlike other
meat department employees, he is furnished with a life
insurance poicy by Respondent.
Roger Shaul testified that, when Otto Ely became
owner of the store, he told Shaul that Burstert was meat
market manager, and that if the employees had any prob-
lems concerning wages, scheduling of work, or working
conditions, such matters would be taken to Ely through
Burstert. Likewise, Burstert gave similar instructions to
Shaul. Burstert tells employees when to come in early or
leave late, makes out the work schedule, and grants time
off. He performs meatcutting work about 75 percent of
the time, and spends the remainder of the time preparing
records and assigning work or giving instructions to em-
ployees. He has reprimanded employees, and recom-
mended a substantial raise of 80 cents per hour for at
least one employee, which raise was granted by Otto Ely
the same day. Burstert is the only individual who direct-
ly oversees the operation of the meat department on a
daily basis and instructs the employees regarding their
work.
Otto Ely testified that as a result of unfavorable finan-
cial circumstances he found it necessary to reduce the
hours of quite a few employees during the month of Jan-
uary. Thereafter, partly because of excessive expenses, he
also discharged the then store manager, Charlie King,
with the intention that the resultant savings could be
used, in part, to return employees to their prior work
schedules. Otto Ely readily admitted that on February 2,
upon being surprised by the visit of Union Representa-
tive Reeds, he thereupon interrogated Lillian Buckman
regarding the matter. Further, Ely essentially admitted
that the substance of this conversation was as described
by Buckman during the course of her testimony.
However, Ely further testified that, after contacting
counsel that very day, and upon being advised of an em-
ployer's permissible and impermissible conduct during
the course of an organizing campaign, he thereafter
made no promises or threats of any kind, and did not
even specifically discuss the Union with any employees.
However, he did discuss the store's financial condition
and the possibility of increasing the hours of work of
some employees, particularly those of Lorie edbetter,
which matter had been contemplated prior to the union
activity. Similarly, Ely explained that he had told Sandra
Soloman, upon her being hired, that when the store put
in a deli she would hopefully become a full-time employ-
ee, and that the reiteration of this during the union cam-
SCOTTO'S I.G.A. 913
paign was not intended to influence her vote in the elec-
tion.
Ely also acknowledged that the day before the elec-
tion he did present Respondent's position regarding the
election to various employees, but made no threats or
promises.
Sometime in March, Ely was engaged by Shaul in a
conversation regarding the possibility of Ely signing a
meatcutters' contract. Ely testified that the possibility of
a strike was mentioned due to Ely's inability to afford
union scale and benefits, but Ely stated he would negoti-
ate and try to come up with an agreement. Shaul asked
what would happen in the event of a strike, and Ely re-
plied that he would do the best he could.
Ely did admit casually asking employee Barry Gard-
ner whether he talked to an agent of the NLRB during
the investigation of the instant charges, as he was simply
curious and had received a report from another employ-
ee that the matter was being investigated. Gardner re-
plied to Ely's query that he had spoken to an NLRB
agent and added, "I don't think there is anything damag-
ing."
Ely admitted that Burstert did have considerable
autonomy in running the meat department, but had been
instructed to go to Ely for the resolution of any nonrou-
tine matters including the granting of wage increases.
Burstert did not testify in this proceeding.
C. Analysis and Conclusions
1. The 8(a)(l) violation
I find, despite certain categorical denials of Otto Ely,
that he made the various statements attributed to him by
numerous employees who appeared to be credible wit-
nesses, and in large part presented mutually corrobora-
tive testimony. Nor has Respondent preferred any evi-
dence or, during the course of cross-examination of Gen-
eral Counsel's witnesses, elicited any testimony which
would tend to cast doubt on the witnesses' credibility.
Upon being first advised of the organizational cam-
paign on February 2, Otto Ely summoned Buckman to
the office and interrogated her regarding her union par-
ticipation and the union activity of others. Ely admits
such conduct which I find constitutes coercive interroga-
tion violative of the Act. 0 & H Rest, Inc., trading as
The Backstage Restaurant, 232 NLRB 1082 (1977);
Franklin Property Company, Inc., d/b/a The Hilton Inn,
232 NLRB 873 (1977). Likewise I find that the interroga-
tion of Gardner, whom I credit, regarding the investiga-
tion by an agent of the NLRB, also constitutes a viola-
tion of the Act.
I credit Buckman g and find that on the next day, Feb-
ruary 3, Ely advised Buckman and several other employ-
ees that a unionized store would result in more restric-
tive terms and conditions of employment, and stated that
I do not credit employee Pauline Allen's testimiony which did not
corroborate the testimony of Buckman. Allen appeared to have only a
very abbreviated recollection of this 35-minute conversation with Otto
Ely on February 3, which Buckman, I find, credibly recalled.
he would have to get rough on employees ° and lay
them off in order to be able to afford the wages which
the Union would demand. Ely repeated this latter threat
to many employees and thereby, I find, stressed the idea,
in no uncertain terms, that unionization would result in
layoffs. Although Ely phrased the threat in terms of his
inability to afford union wages, he nevertheless made it
clear that unionization was incompatible with job reten-
tion, and advanced no objective facts to show that such
an adverse consequence of unionization was inevitable or
beyond his control, or that the process of collective bar-
gaining could not result in a reasonable accommodation
satisfactory to all parties. I therefore find that Otto Ely's
repeated threats of layoff are violative of the Act."
Meehan Truck Sales, Inc., supra: Components, Inc., 197
NLRB 163 (1972).
The day before the election, Ely advised Buckman
that conditions would improve and she would be given a
wage increase "when the mess was over with." Similar-
ly, on February 3, Ely stated he would assign more
hours of work to Ledbetter, and implied that he would
give employee Knowles added work in the produce de-
partment. I find that such promises of benefit were de-
signed to influence the employees' vote in the election,
and are likewise violative of the Act. Lammert Industries,
a Division of Componetral, Inc., a Subsidiary of I-T-E Im-
perial Corporation, 229 NLRB 895, 901 (1977); Richard
Tischler, etc., d/b/a Devon Gables Nursing Home, etc., 237
NLRB 775 (1978). However, I do not view the statement
by Ely to Soloman as an unlawful promise of full-time
employment, as the record indicates that Soloman was
given such assurances prior to the advent of the Union.
On the morning of the day of the election employee
Knowles was reprimanded for being late to work. It ap-
pears that Respondent had in the past tolerated such tar-
diness, and it is significant that Otto Ely advised
Knowles that such reprimands would thereafter be
given. I find, in agreement with the contention of the
General Counsel, that such a statement constitutes a
threat of more arduous working conditions, and was de-
signed to impress upon employees, immediately prior to
the election, that Respondent would discontinue such le-
nient treatment of employees should the Union prevail in
the election.
I find no violation regarding Assistant Manager Davis'
aforementioned query to Hollon regarding Saturday
work. It is not alleged that the scheduling of Saturday
work was motivated by union activity and it appears that
the rescheduling was based on valid business considera-
tion. Under the circumstances, Davis' brusque statement
appears to be no more than a spontaneous expression of
annoyance as a result of Hollon's stated dissatisfaction
with the temporary change in his work schedule, rather
than a threat occasioned by Hollon's union activity.
Contrary to the contention of the General Counsel, I
do not find that Otto Ely stated he would not sign a
union contract. It appears that Ely's statements to Buck-
'O Threats of more stringent working conditions as a result of union-
ization are violative of the Act. Meehan Truck Sales, Inc., 201 NLRB 780.
783-784 (1973); Civic Center Sports, Inc., 206 NLRB 428, 430 (1973).
" Similarly, I find that Scott Ely made such a threat of layoff to em-
ployee Knowles, which threat I also find to be violative of the Act.
SCOT1TO'S IGA.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man and Shaul, in the context of Ely's concurrent state-
ment that he would be obligated to bargain in good faith,
could be reasonably understood to mean that the law did
not require Ely to sign a contract absent agreement of
the parties. Such a statement is not unlawful, and I shall
dismiss this allegation of the complaint.
Nor do I believe that the record evidence is sufficient
to warrant the finding that Scott Ely reprimanded em-
ployee Roland on March 7 because of Roland's union ac-
tivity. There is no showing that Scott Ely would have
any reason to single out Roland as the object of discrimi-
natory conduct, particularly after the election, and Ro-
land's testimony shows that he engaged a coworker in an
extended conversation which was observed by Scott Ely
over a not insubstantial period of time. Given these cir-
cumstances, it is reasonable to assume that a warning to
Roland may have been justified.
I do not find that, as contended by the General Coun-
sel, Otto Ely's statement to Linebaugh that she should
tell the union people to take a "flying leap" constitutes
the threat of a loss of benefit. Linebaugh had apparently
been the only checker who was required to work until
the store closed at night. Ely did not threaten to with-
draw any benefit or working condition from Linebaugh,
but merely implied that her working hours would remain
the same and that he and not the Union would determine
the nature of Linebaugh's duties.
It is clear that Burstert is in charge of the meat depart-
ment, that he responsibly directs the work of the three
meat department employees, and that he possesses a
broad range of authority in determining the working
hours and other working conditions of their employment.
Moreover, he has exhibited supervisory authority by ef-
fectively recommending wage increases and issuing rep-
rimands for deficient work. Individuals who possess simi-
lar authority and responsibility are customarily deemed
to be supervisors, and I find that Burstert is a supervisor
within the meaning of Section 2(11) of the Act, as al-
leged. Shop-Rite Supermarket, Inc., 231 NLRB 500, 502
(1977), and cases cited therein.
Burstert's statements to the meat department employ-
ees are undenied, and I find that he actively and repeat-
edly encouraged the meat department employees to ne-
gotiate directly, either individually or collectively, with
Otto Ely, stating that Ely would like to enter into such
an agreement, and indicating that the employees could
expect to receive substantially increased benefits. 12 Such
promises of benefits and offers to negotiate directly with
the employees in order to cause them to withdraw their
support from the Union are clearly violative of the Act.
Raley's Inc., 236 NLRB 971 (1978); Nashua Pre-Cast Cor-
poration, 198 NLRB 39, 48 (1972), enfd. 475 F.2d 765
(Ist Cir. 1973); Daniel A. Donovan, etc., d/b/a New Fair-
view Hall Convalescent Home, 206 NLRB 688, 745 (1973),
enfd. 520 F.2d 1316 (2d Cir. 1975); Quintree Distributors,
Inc., 198 NLRB 390, 395 (1972).
On March 9, Burstert told Shaul that three replace-
ment butchers had been hired and that the company po-
' Also, as alleged, I find that Otto Ely's similar statements to employ-
ees advising them, in effect, that he would be receptive to their problems
and that the intervention of the Union would therefore be unnecessary,
are violative of the Act.
sition was that Respondent would not sign a contract.1
Respondent has offered no explanation for this remark
and, under the circumstances, such a statement does not
appear susceptible of any lawful interpretation. I there-
fore find that the statement constituted a direct threat to
Shaul and the other meat department employees that
they were to be discharged as a result of their continued
union activity. Such a threat of discharge is clearly viola-
tive of the Act. Awrey Bakeries, Inc., 197 NLRB 705, 707
(1972).
2. The majority status of the Unions
It has been admitted in Respondent's brief that both
the Retail Clerks and the Meat Cutters enjoyed majority
status in the respective appropriate units they claim to
represent, and that demands for recognition were made
on behalf of each Union. The record shows that, by
about February 4, the Retail Clerks had obtained 22
valid authorization cards from the approximately 28 unit
employees, and on or about the same date the Meat Cut-
ters had obtained valid authorization cards from each of
the 3 meat department employees.
3. Bargaining orders
I am convinced that under applicable Board precedent
the election in the Retail Clerks unit should be set aside,
and I further find that a full and proper remedy requires
the issuance of bargaining orders in both units as con-
tended by the General Counsel. The numerous unfair
labor practices, found above, particularly those unfair
labor practices wherein Respondent, both through Otto
Ely and Burstert, promised benefits to employees and
threatened employees with layoff and discharge as a con-
sequence of their selecting either Union as their collec-
tive-bargaining representative, mandate the conclusion
that the possibility of erasing the effects of the aforemen-
tioned unfair labor practices by other traditional reme-
dies, and of insuring fair elections, is slight. Under the
circumstances it is clear that the desire of the employees,
overwhelmingly expressed by their signatures on authori-
zation cards, warrants the imposition of bargaining
orders in each respective unit. See N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969); Civic Center
Sports, Inc., supra; Soil Mechanics Corporation, 200 NLRB
544 (1972); Meehan Truck Sales, Inc., supra.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees em-
ployed by Respondent at its Brookfield, Missouri, store,
but excluding all meat department employees, office
clerical employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
13 Burstert's statement that the Employer would not sign a contract is
not alleged herein as a violation of the Act.
-- ----
SCOTTO'S .G.A. 915
4. All full-time and regular part-time meat department
employees employed by Respondent at its Brookfield,
Missouri, store but excluding office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. At all times since February 4, 1979, the Retail
Clerks has been the exclusive bargaining representative
of Respondent's employees in the appropriate unit set
forth above in paragraph 3 within the meaning of Sec-
tion 9(a) of the Act.
6. At all times since February 4, 1979, the Meat Cut-
ters has been the exclusive bargaining representative of
Respondent's employees in the appropriate unit set forth
above in paragraph 4 within the meaning of Section 9(a)
of the Act.
7. By threatening reprisals, including layoff and dis-
charge, promising benefits, and interrogating employees
to cause them to refrain from joining, assisting, or desig-
nating either Union as their bargaining representative,
Respondent engaged and is engaging in unfair labor
practices in violation of Section 8(a)(1) of the Act.
8. By refusing to recognize and bargain collectively
with the Unions as the exclusive bargaining representa-
tives of its employees in the appropriate units as set forth
above, Respondent engaged and is engaging in unfair
labor practices in violation of Section 8(aX)(5) and (1) of
the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 14
The Respondent, Ely's Foods, Inc., d/b/a Scotto's
I.G.A., Brookfield, MIssouri, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Store
Employees Union, Local No. 782, chartered by Retail
Clerks International Union, AFL-CIO, and with Amal-
gamated Meat Cutters & Butcher Workmen of North
America, Local Union 576, AFL-CIO, in the respective
appropriate units specified above.
(b) Threatening employees with loss of employment,
loss of benefits, more stringent working conditions, or
'4 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
other reprisals if they join or assist a labor organization,
or select a representative for collective bargaining.
(c) Promising benefits to induce the employees not to
join or assist a labor organization or not to select a rep-
resentative for collective bargaining.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Retail Store Employees Union, Local No. 782,
chartered by Retail Clerks International Union, AFL-
CIO, and Amalgamated Meat Cutters & Butcher Work-
men of North America, Local Union 576, AFL-CIO, as
the exclusive bargaining representatives of its employees
in the aforesaid units, with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment, and, if understandings are reached,
embody such understandings in signed contracts.
(b) Post at its facility at Brookfield, Missouri, copies of
the attached notice marked "Appendix." 1 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to any alleged violations of the
Act not found herein.
I5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
SCOYrO'S IGA.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with
the right of our employees to engage in organiza-
tional activity or collective bargaining, or to refrain
from such activities.
WE WILL NOT coercively interrogate employees
concerning their activity on behalf of Retail Store
Employees Union, Local No. 782, chartered by
Retail Clerks International Union, AFL-CIO, or
concerning their activity on behalf of Amalgamated
Meat Cutters & Butcher Workmen of North Amer-
ica, Local Union 576, AFL-CIO, or any other labor
organizations.
WE WILL NOT grant or promise wage increases
or other benefits to employees to discourage their
union activity, or solicit them to negotiate directly
with the management of this company without the
intervention of a union.
WE WILL NOT threaten employees with discharge
or layoff, loss of existing benefits, or imposition of
more onerous working conditions, if they select or
retain either above-named Union, or any other labor
organization, as their bargaining representative.
WE WILL bargain collectively and in good faith
with the above-named Unions as the exclusive rep-
resentatives of our employees in the units described
below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment and, if an understanding or understand-
ings are reached, WE WILL sign a contract or con-
tracts embodying the terms thereof. The bargaining
units are:
(1) All full-time and regular part-time employ-
ees employed by the Employer at its Brookfield,
Missouri store, but excluding all meat department
employees, office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
(2) All full-time and regular part-time meat de-
partment employees employed by the Employer
at its Brookfield, Missouri store but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
ELY'S FOODS, INC. D/B/A SCOTTO'S I.G.A.