Serv-U-Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1978

234 N.L.R.B. 1143 (N.L.R.B. 1978)

SERV-U-STORES, INC.
Serv-U-Stores, Inc. and Local 1459, Retail Clerks
International Association, AFL-CIO. Cases 1-
CA-9815 and 1-CA-9974
March 3, 1978
SUPPLEMENTAL DECISION AND
ORDER
On June 24, 1976, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding' finding the Respondent had
violated Section 8(a)(1), (3), and (5) of the Act and,
inter alia, requiring Respondent to bargain with the
Union because of its extensive and pervasive unfair
labor practices. In connection therewith, the Board
adopted the Administrative Law Judge's holding that
Respondent's store managers, whose status was
litigated at the hearing in the instant proceeding,
were supervisors as defined in the Act and were
therefore not part of the appropriate multistore unit
that was found by the Board to consist of 48
employees. The Board also concluded that the Union
was the majority representative of the employees in
the unit as 25 of the union authorization cards,
including that signed by employee Frank Rueli, were
valid.
Thereafter, the Board decided sua sponte to recon-
sider its Decision and Order with respect to two
issues: (1) the question whether the supervisory
status of the store managers was properly relitigated
at the instant hearing following the Board's action in
granting the General Counsel's interlocutory appeal
from the Administrative Law Judge's refusal to take
evidence on the matter and (2) the validity of Rueli's
card. On April 27, 1977, the Board so notified the
parties and invited them to file statements of position
on said issues. On May 12, Respondent filed its
statement.
Upon reconsideration of the issues herein and the
entire record in this proceeding, including Respon-
dent's statement of position, we make the following
findings:
On June 4, 1974, the Regional Director issued a
Decision and Direction of Election 2 in which he
found, inter alia, that Store Managers Charles La-
marche, Michael Prendergast, and Raymond May-
nard were not supervisors as defined in the Act and
therefore belonged in the unit of employees at the
Company's retail and warehouse locations in Spring-
field, Massachusetts.
1 225 NLRB 37.
2 Case I-RC-13276.
3 His name appears incorrectly as Menard in the amendment.
4 On August 12, the Regional Director issued an erratum amending the
Decision "in that Maynard. found to be an employee . is hereby
permitted to vote subject to challenge."
s In this connection, the Regional Director cited Cascade Coach Co., Inc.,
234 NLRB No. 191
On July 3, the Regional Director amended his
decision as follows: "Maynard, 3 found to be a
supervisor, is hereby permitted to vote subject to
challenge." 4
On July 3, the Regional Director also issued a
complaint in Case I-CA-9815, alleging, inter alia,
that Respondent Company, by its agent Maynard, a
supervisor within the meaning of the Act, engaged in
a number of violations of Section 8(aXl) of the Act.
On July 8, Respondent moved to strike the July 3
amendment to the decision in the representation case
and sought a hearing to determine if the amendment
was based on facts in the record in that case. The
Regional Director denied the motion on August 12
on the following grounds:
The action taken by the Regional Director in
amending his decision was a proper exercise of the
powers designated to him by the Board, even if the
information leading thereto was based upon facts
uncovered during an unfair labor practice investiga-
tion in Case l-CA-9815. 5 Respondent asserted that a
substantive change has been made to be favorable to
the Union, notwithstanding the fact that the Union
failed to file a request for review, and that Respon-
dent has consequently been denied due process.
These contentions failed as the supervisory status of
Maynard has not been substantively changed. 6 The
amendment merely left to the Board challenge
procedure a final determination of Maynard's status
if that became necessary.
On August 12, Respondent filed an answer to the
complaint of July 3 in which it moved to strike for
the following reason all allegations that Maynard
was a supervisor and agent of Respondent or acted
on its behalf:
Section 102.67(f) of the Board's Rules and Regula-
tions provides that "failure to request review [of a
Regional Director's Decision in a representation
case] shall preclude [the] parties from relitigating, in
any related subsequent unfair labor practice proceed-
ing, any issue which was, or could have been, raised
in the representation proceeding." As the issue of
Maynard's status was completely litigated in the
representation proceeding, any allegation concerning
Maynard should be stricken from the proceeding.
Following a new charge in Case I-CA-9974, the
Regional Director on May 13, 1975, consolidated it
with Case I-CA-9815 and issued an amended
complaint which reiterated the allegations with re-
gard to Maynard's status as a supervisor and agent of
206 NLRB 874, 876 (1973), for the proposition that "Every tribunal ... has
some power to correct its own errors or otherwise appropriately to modify
its judgment, decree or order. The power to reconsider is inherent in the
power to decide."
s As indicated above, the Regional Director on August 12 amended his
decision to permit Maynard, whom he had found to be an employee, to vote
subject to challenge.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent who engaged in a number of 8(a)(1)
violations. Respondent's answer, dated May 20,
repeated its earlier motion and objections to these
allegations.7
At the hearing in the instant proceeding, the
General Counsel sought to relitigate the status of the
store managers. Respondent argued that the matter
was res judicata and could not be relitigated under
Section 102.67(f) of the Board's Rules. The Adminis-
trative Law Judge sustained Respondent's objection.
The General Counsel thereupon took an interlocu-
tory appeal to the Board on the ground that it was
necessary to introduce evidence to establish that
Maynard was a supervisor in order to prove that he
engaged in numerous instances of 8(a) (1) conduct
which would form a basis for a bargaining order. The
Board granted the appeal and ordered the Adminis-
trative Law Judge to permit the receipt of evidence
with respect to the supervisory status of Maynard.
However, when the Administrative Law Judge
refused to allow the introduction of evidence with
respect to Store Managers Lamarche and Prender-
gast, the General Counsel appealed, arguing again
that he was seeking a bargaining order to remedy the
extensive and pervasive unfair labor practices of
Respondent, thereby necessitating that the unit be
established with precision to determine if the Union
had a majority. The Board ruled that its earlier order
applied to all of the store managers.
Accordingly, the Administrative Law Judge re-
ceived evidence as to the status of all the store
managers and found on the basis of their responsible
direction of employees and their exercise of indepen-
dent judgment that they were supervisors within the
meaning of the Act and as such could not properly
be included in the bargaining unit.
As indicated above, Respondent contends that it
was improper under Section 102.67(f) of the Board's
Rules to relitigate the supervisory status of the store
managers in the instant unfair labor practice pro-
ceeding because that issue had already been resolved
in the representation case and was therefore res
judicata. In support of its position, Respondent relies
on Harold Gorlick and Morris Gorlick, Co-Partners,
d/b/a Thrifty Supply Company, 153 NLRB 370
(1965), affd. 364 F.2d 508 (C.A. 9, 1966), wherein the
General Counsel sought to show that an individual,
who was found in an earlier representation case to be
I Although the Regional Director did not rule on the motion on this or
the earlier occasion, the General Counsel in effect denied it by subsequently
seeking to relitigate the supervisory issue.
s Farm Fans, Inc., 174 NLRB 723, 725 (1969): Abitibi Corporation, 198
NLRB 1249, 1254 (1972); White Sulphur Springs Company, d/b/a Greenbrier
Hotel, 216 NLRB 721, 723 (1975). See also Heights Funeral Home, Inc. v.
N.L.R.B., 385 F.2d 879 (C.A. 5, 1967), wherein the court followed
Amalgamated Clothing Workers, infra, in reversing the Board's Decision in
159 NLRB 723 (1966), which in turn relied on Thrifty Supply Company,
supra, in agreeing with the Trial Examiner's refusal to allow the relitigation
an employee, was a supervisor for the purpose of
establishing a violation of Section 8(a)(1) and (3) of
the Act. The Board found that relitigation of the
supervisory issue was precluded by Section 102.67(f)
of its Rules because of the absence of a change in
circumstances or newly discovered evidence.
However, in Stanley Air Tools, Division of the
Stanley Works, 171 NLRB 388 (1968), enfd. 432 F.2d
358 (C.A. 6, 1970), and in a number of subsequent
cases,8 the Board adopted the rationale of Amalga-
mated Clothing Workers of America [Sagamore Shirt
Co.] v. N.L.R.B., 365 F.2d 898, 902-905 (C.A.D.C.,
1966), wherein the court held that a finding in a
representation case that a person is not a supervisor,
while not subject to relitigation in a "related"
subsequent unfair labor practice proceeding (i.e., an
8(a)(5) case based on certification in a representation
proceeding), does not have binding force where, as
here, independent violations of Section 8(a)(1) of the
Act are involved.9
The court also held that the findings of the
Regional Director may be accorded "persuasive
relevance, a kind of administrative comity" aiding
the Administrative Law Judge and the Board in
reaching a just decision, subject, however, to the
power of the reconsideration both on the record
made and in light of any additional evidence that the
Administrative Law Judge finds material to a proper
resolution of the issue. Thus, we find significant the
action of the Regional Director in amending his
decision in the representation case to provide that
Maynard vote subject to challenge because of the
former's doubts raised by his investigation of the
8(a)(1) charges in the complaint case.'
Accordingly, we find that the issue of the supervi-
sory status of the store managers was properly
relitigated and, for the reasons given by the Adminis-
trative Law Judge, we affirm our adoption of his
conclusion finding them to be supervisors within the
meaning of the Act and excluding them from the
unit. Although only Maynard was alleged and found
to have engaged in 8(a)(l) conduct, it would have
been unrealistic to bar from relitigation the supervi-
sory status of the other store managers, particularly
in light of the assertion at the hearing by Respon-
dent's counsel that the duties of all the store
managers were "essentially the same."
of an individual's supervisory status because such status had already been
determined in the representation proceeding.
:~ See Cascade Coach Co., supra, and The Maxwell Company v. N.L.R.B.,
414 F.2d 447 (C.A. 6, 1969), wherein the court found that the decision of a
Regional Director is not "a final and binding adjudication which cannot be
relitigated."
i° In view of the foregoing, we overrule Thrifty Supply Company, supra,
and cases relying thereon to the extent that they are inconsistent with the
holding herein as well as in other Board Decisions which adopt the rationale
of the court in Amalgamated Clothing Workers v. N.LR B., supra.
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SERV-U-STORES, INC.
We now turn to the second issue of whether the
authorization card of employee Frank Rueli is valid
and can be counted to provide the Union with the
majority showing necessary to support our earlier
8(a)(5) finding and bargaining order." The facts are
not in dispute. Rueli's authorization card states in
clear and unambiguous terms that the signer desig-
nates the Union as his representative "for the
purposes of collective bargaining." At the hearing,
Rueli testified that the card was given to him by
Union President Diflumera, that he read the card
before signing it, and that he kept the card for a day
before returning it to Diflumera. Rueli was then
questioned concerning what Diflumera had said to
him in the course of the solicitation:
Q. [By Respondent's attorney] Did he tell you
he needed the card to get an election?
A. Yes.
Q. Did he tell you he was only going to use
the card to get an election?
A. Yes.
Rueli was not asked again about this statement and
he never retreated from his testimony that he was
told the card would be used solely for an election.
Although Diflumera testified at the hearing, he did
not deny Rueli's specific testimony with respect to
what Rueli was told about the purpose of the card.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 584 (1969), the Supreme Court approved the
Board's Cumberland Shoe rule 12 and described it in
the following terms:
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i.e.., states on its face that
the signer authorizes the Union to represent the
employee for collective bargaining purposes and
not to seek an election), it will be counted unless it
is proved that the employee was told that the card
" As stated above, in our onginal decision, 225 NLRB 37, 40 (1976), we
found that there were 48 employees in the appropriate unit and that 25 of
these employees, including Frank Rueli. had executed valid cards.
iZ Cumberland Shoe Corporation, 144 NLRB 1268 (1963). enfd. 351 F.2d
917 (C.A. 6, 1965).
13 Our dissenting colleagues rely on the last two sentences of fn. 7 in Levi
Strauss & Co., 172 NLRB 732 (1968), to support their position. However,
even a casual reading of the footnote in its entirety reveals that the
quotation was taken totally out of context:
The foregoing does not of course imply that a finding of misrepre-
sentation is confined to situations where employees are expressly told in
haec verba that the "sole" or "only" purpose of the cards is to obtain an
election. The Board has never suggested such a mechanistic application
of the foregoing principles, as some have contended. The Board looks
to substance rather than lo form. It is not the use or nonuse of certain
key or "magic" words that is controlling, hut whether or not the totaliht
of circumstances surrounding the card solicitation is such as to add up
to an assurance to the card signer that his card will be used for no
purpose other than to help get an election.
Our dissenting colleagues correctly note that this footnote was quoted
was to be used solely for the purpose of obtaining an
election. [Emphasis supplied.]
The facts of this case fall squarely within the
underscored portion of the Cumberland Shoe rule.
When Rueli was asked if he had been told that the
card would be used only to obtain an election, he
plainly answered "yes." This testimony was not
contradicted, denied, or discredited.
The dissent nevertheless concludes that the testi-
mony should be disregarded because Rueli read the
card and could not have failed to understand the
clear meaning of the printed words: "As Rueli did
read the card and had a day in which to make his
own independent judgment as to the unambiguous
statement therein, it cannot be reasonably concluded
that he acted in reliance on Diflumera's assertion as
to its purpose."13 This analysis misses the point
entirely.
The Supreme Court in Gissel stated explicity that
under Cumberland Shoe a card is invalid if its
"language is deliberately and clearly canceled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature." 395 U.S. at 606. That is what happened
here. Therefore, the fact that Rueli did read the card
is immaterial because what he read was "deliberately
and clearly canceled" by Diflumera's statement
which in effect directed Rueli to "disregard and
forget" the language of the card. Our dissenting
colleagues would apparently find that Rueli's reading
the card somehow countermanded the assurance that
the card would only be used to get an election and
eliminated that assurance from his consideration.
There is no basis for such an inference.
This additional quotation from Gissel further dem-
onstrates that under Cumberland Shoe the critical
inquiry must concern what the employee was told
about the purpose of the card. The effect of the
with approval by the Supreme Court in Gissel. but they omit to state that the
Court did so in the course of admonishing the Board not to apply
C(umberland Shoe so rigidly and mechanically as to find cards to be valid just
because the circumstances are less clear than those presented here. 395 U .S
at 607-609, fn. 27. The Court's intent was made plain when it stated that
"the trial examiner's findings in General Steel [that the cards in question
were valid I represent the limits of the Cumberland rule's application. We
emphasize that the Board should be careful to guard against an approach
any more rigid than that in General Steel." 395 U.S. at 608-609 Thus
contrary to our dissenting colleagues' interpretation, the Supreme Court in
Gissel was not instructing the Board to ignore undisputed evidence of an
improper card solicitation on the ground that reliance on such evidence
would be unduly "rigid" or "mechanical." In actuality, the Supreme Court's
warning was to precisely the opposite effect. i.e.. that the Board should
recognize that cards can he invalid even where employees were not expressli
told. but were othervwise led to believe, that the cards would he used onl, to
obtain an election. It is therefore ironic that our dissenting colleagues accuse
us of falling into a "procrustean error" when it is the' who have stretched
and distorted the meaning of Cumberland Shoe, Lewi Strauss. and (Gissel
Member Truesdale believes that the majorit, opinion speaks for itself
and, therefore, thinks it is unnecessary to respond further to the dissent.
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dissent's approach is to change the key test from
"Was the employee told that the card would be used
only to obtain an election?" to "Did the employee
read the card?" Thus, for our dissenting colleagues,
all that need be shown is that the employee read the
card and it will be valid, regardless of the nature of
any prior representations by the card solicitor. Not
only does the dissent's test take the heart and "sole"
out of Cumberland Shoe, but also it just cannot be
reconciled with the above-quoted portions of the
Supreme Court's Gissel opinion.
In view of the foregoing, we find Rueli's authoriza-
tion card to be invalid. Since the loss of Rueli's card
destroys the Union's majority, we hereby reverse our
prior 8(a)(5) finding and we shall vacate the bargain-
ing order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby affirms as its Order the
Order heretofore entered in this proceeding on June
24, 1976 (225 NLRB 37), as modified below:
1. Delete paragraphs l(a) and 2(a), and reletter
the remaining paragraphs accordingly.
2. Substitute the attached notice for that append-
ed to the original Decision and Order.
CHAIRMAN FANNING and MEMBER JENKINS concur-
ring in part and dissenting in part:
We agree with our colleagues that it was proper to
relitigate the supervisory status of the store managers
in the unfair labor practice proceeding. However, for
the reasons set forth below, we disagree with their
finding as to the invalidity of Rueli's card and the
failure of the Union to achieve majority status.
Rueli testified on direct examination that he read
the card before signing it. In addition, the following
exchange took place upon cross-examination of
Rueli by Respondent counsel:
Q. .... Who gave you this card?
A. That was given to me by Mr. Joe Diflum-
era [president of the Union].
Q. And where were you when it was given to
you?
A. I was at the warehouse ....
Q. Did he say anthing to you when he gave
you the card?
A. He said "I represent the Retail Sales and
Clerks Union. Here's the card. Read it. If you
want to sign it, sign it."
Q. Did you give the card back to him immedi-
ately?
A. No, I did not.
Q. What did you do with it?
A. I kept it for a time.
Q. You kept it for how long?
A. A day.
Q And then you gave it back to him?
A. Yes, I did.
* * * * *
Q. This card is dated April 19,
the date on which you signed it?
A. Yes.
1974. Is that
Q. Did he say anything to you about an
election?
A. He asked me to sign the card.
Q. What did he say to you about the card?
A. He didn't say anything.
Q. Did he tell you he needed the card to get
an election?
A. Yes.
Q. Did he tell you he was only going to use
the card to get an election?
A. Yes.
Diflumera testified as follows: He advised the
employees that the card could be used for three
purposes, namely: (I) an election, (2) a cross-check
with Respondent, and (3) as proof of majority status.
When he approached the employees in the course of
the Union's organizing campaign, some signed cards
and others did not want to do so. "Some employees
took cards and said that they wanted to think about
it." Other employees said that they would take a card
and mail it in.
In singling out and depending exclusively on
Rueli's testimony that he was told by the Union's
solicitor that the only purpose of the card was to
obtain an election, our colleagues err in not taking
cognizance of or heeding (1) the warning of the
Supreme Court in Gissel Packing Co., supra, against
"a too easy mechanical application of the Cumber-
land rule" and (2) the Supreme Court's approval of
the following cautionary language of the Board in
Levi Strauss & Co., supra at 733: "The Board looks to
substance rather than to form. It is not the use or
nonuse of certain key or 'magic' words that is
controlling, but whether or not the totality of
circumstances surrounding the card solicitation is
such as to add up to an assurance to the card signer
that his card will be used for no purpose other than
to help get an election."
As Rueli's testimony clearly shows, he did not
immediately respond to or rely on Diflumera's
statement regarding the purpose of the card by
signing it on the spot. In view of Diflumera's request
that Rueli read the card before signing it, it is
1146
SERV-U-STORES, INC.
obvious that the latter was not expected unquestion-
ingly to accept his word as to its purpose. It is also
significant that Rueli brought the card home and
read it before signing and returning it the next day.
That certain employees insisted on time to ponder
the meaning of the card and the desirability of
signing it is convincingly demonstrated by Diflum-
era's uncontradicted testimony that "some employ-
ees took cards and said that they wanted to think
about it."
As Rueli did read the card and had a day in which
to make his own independent judgment as to the
unambiguous statement therein, it cannot be reason-
ably concluded that he acted in reliance on Diflum-
era's assertion as to its purpose.14 Contrary to our
colleagues who fall into the procrustean error of "a
too easy mechanical application of the Cumberland
rule" by riveting their attention solely on "magic"
words and failing to give appropriate attention to
"the totality of circumstances surrounding the card
solicitation," we would find Rueli's card valid on the
basis of all of the circumstances set forth above.
Accordingly, we would affirm the earlier finding that
the Union achieved majority status among the 48
unit employees by virtue of the valid cards signed by
Rueli and 24 other employees and would adhere to
the original finding that a bargaining order is
warranted because of Respondent's extensive and
pervasive unfair labor practices.
" Cf. Booklan4 Inc., 221 NLRB 35, 36 (1975), wherein the Board
deemed it significant that the employee did not read the card before signing
it in reliance upon the solicitor's misrepresentation as to its purpose.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
1459, Retail Clerks International Association,
AFL-CIO, by discharging or constructively dis-
charging any of our employees or in any other
manner discriminating against them in regard to
their tenure of employment or any term or
condition of employment.
WE WILL NOT close our furniture store for the
purpose of discouraging employee interest in said
Local 1459.
WE WILL NOT engage in the following conduct
which is forbidden by the National Labor Rela-
tions Act: interrogating employees about their
union activities or membership; threatening em-
ployees with discharge because of their union
activities or membership; threatening employees
with layoffs if the Union becomes their bargain-
ing representative; making changes in working
conditions of employees because of their union
activities or membership; telling employees to
stop talking about the Union while on the
premises; making statements to employees or in
their presence that the Union is responsible for
putting other companies out of business.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of said
Act.
WE WILL offer to Mary Ireland, if we have not
already done so, immediate and full reinstatement
to her former job or, if it no longer exists, to a
substantially equivalent one, without prejudice to
the seniority and other rights and privileges
previously enjoyed by her and WE WILL compen-
sate her for any loss of pay she may have suffered
by reason of the Company's discrimination
against her, with interest thereon at the rate of 6
percent.
WE WILL reopen our furniture store, reserving
the right to close it for any reason which is not
prohibited by the National Labor Relations Act.
WE WILL offer to Helen Meunier, Margaret
Wilkinson, and Frank Rueli immediate and full
reinstatement to their former jobs in the reopened
furniture store without prejudice to the seniority
and other rights and privileges enjoyed by each,
and WE WILL compensate Helen Meunier and
Margaret Wilkinson for any loss of pay they may
have suffered by reason of the Company's dis-
crimination against them, with interest thereon at
the rate of 6 percent.
All our employees are free to become or remain, or
refuse to become or remain, members of Local 1459,
or any other labor organization.
SERV-U-STORES, INC.
1147