Shaw'S Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1988

289 N.L.R.B. 844 (N.L.R.B. 1988)

844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shaw's Supermarkets, Inc. and Teamsters Union
Local 340 a/w International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Help-
ers of America, AFL-CIO.' Cases 1-CA-24543
and 1-RC-18882
July 14, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On November 23, 1987, Administrative Law
Judge Michael O. Miller issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief. The General Counsel also filed ex-
ceptions and a supporting brief, to which the Re-
spondent filed a reply.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,2 findings,3
and conclusions4 and to adopt the recommended
Order.
1 On November 2, 1987, the Teamsters International Union was read-
nutted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
8 We agree with the judge's finding that Vice President of Distribution
Wyatt's statement at the January 15, 1987 employee meetings that "em-
ployees would be guaranteed minimum wages and workmen's
comp[ensation] and that 's where our collective-bargaining process would
begin," amounted to an unlawful threat of regressive bargaining with a
resulting loss of benefits. In so doing, we conclude that Wyatt's several
references to collective bargaining as a "give -and-take" process, his ex-
ample of how a union in another warehouse bargained away a profit-
sharing plan in exchange for a pension plan, and his statement that the
Respondent would start with minimum wages and workmen 's compensa-
tion and "build from that point," do not constitute assurances that the
Respondent would not require the Union to give up existing benefits or
dispel the impression that what employees ultimately receive through col-
lective bargaining is dependent on what the Union can induce the Re-
spondent to restore Thus, in contrast to the Employer's statement in La-
Z-Boy, 281 NLRB 338, 340 (1986), that it was "ridiculous" to think the
company would pay minimum wages regardless of the outcome of nego-
tiations, Wyatt's statements do not give employees the unambiguous mes-
sage that they will not initially be stripped of all existing benefits through
collective bargaining Indeed , Wyatt's statement that the employees
would be "guaranteed" minimum wages and workmen 's compensation
and that the parties would have to "build" from that point conveys the
opposite message, i.e, that collective bargaining begins with the loss of
existing benefits and proceeds with a struggle by the Union to get those
benefits restored.
4 We correct two misstatements made by the judge . Objections and an
unfair labor practice charge had been filed concerning an election con-
ducted October 23, 1982, but were later withdrawn No reliance was
placed on these events Further, the evidence shows the second letter
from the Respondent about the election that mentioned the Respondent's
expansion plans was sent to the employees at some point before the elec-
tion, but not that it was sent 1 week before the election as the judge
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Shaw's Su-
permarket, Inc., Portland, Maine, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
IT IS FURTHER ORDERED that the election con-
ducted on January 20, 1987, in Case 1-RC-18882 is
set aside and this case is severed and remanded to
the Regional Director for Region 1 for the purpose
of scheduling and conducting a second election at
such time as he deems the circumstances permit a
free choice on the issue of representation.
[Direction of Second Election omitted from pub-
lication.]
stated The judge 's error does not affect the decision inasmuch as the evi-
dence shows that in any event the employees had access to the content of
both letters before the election
Finally, in the absence of exceptions we adopt pro forma the judge's
recommendation that Objection 3, parts 2, 4, 5, and 6, be overruled
Kathleen F. McCarthy, Esq. and Beryl Rothman , Esq., for
the General Counsel.
Murray S. Freeman, Esq. (Nutter McClennen & Fish), of
Boston , Massachusetts, for the Respondent.
James E. Carson of Portland , Maine , for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard in Portland, Maine , on 30 June 1987
based on an unfair labor practice charge filed on 23 Feb-
ruary 1987 by Teamsters Union Local 340, a/ w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (the Union or Local
340), and a complaint issued by the Acting Regional Di-
rector for Region 1 of the National Labor Relations
Board (the Board) on 9 April 1987. The complaint al-
leges that Shaw's Supermarkets, Inc. (Respondent or the
Company), violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by threatening employees
with various reprisals in the event that they selected a
collective-bargaining representative. Respondent's timely
filed answer denies the commission of any unfair labor
practices. The allegations of the complaint were consoli-
dated for hearing with the Union's objections to conduct
affecting the results of an election in Case 1-RC-18882,
which had been conducted on 20 January 1987, as set
forth in a Report on Objections and Challenges, which
issued on 4 April 1987.'
' By stipulation, the challenges were withdrawn and a revised tally of
ballots issued The revised tally showed that there were 46 ballots cast
for representation by the Union, I ballot cast for the Independent Food-
handlers and Warehouse Employees, an intervenor , and 71 ballots, a ma-
jority of the valid votes cast, for neither Union
289 NLRB No. 119
SHAW'S SUPERMARKETS 845
All parties were afforded full opportunity to examine
and cross-examine witnesses, argue orally, and submit
briefs. Briefs, which have been carefully considered,
were submitted by the General Counsel and the Re-
spondent.
Based on the entire record, including my observations
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS- PRELIMINARY
CONCLUSIONS OF LAW
The Respondent is a corporation engaged in the retail
sale and distribution of groceries, frozen food, and relat-
ed items with a warehouse facility in Wells , Maine. Juris-
diction is not in issue . The complaint alleges, Respondent
admits , and I fmd and conclude that Respondent is, and
has been at all times material , an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges , Respondent admits, and I fmd
and conclude that Teamsters Union Local 340, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is, and has been
at all times material , a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a chain of 48 retail grocery
stores in Maine, New Hampshire, and Massachusetts,
with warehouse facilities in East Bridgewater, Massachu-
setts (where its corporate headquarters are located), and
Wells, Maine. The Wells warehouse, the only one in-
volved in these proceedings, was opened in about 1985,
replacing a warehouse in Portland, Maine. It consists of
approximately 250,000 square feet of space, predominant-
ly devoted to frozen foods. Respondent has approximate-
ly 2000 employees, about 130 of whom work in the
Wells unit. Of these, about 90 are full-time employees;
the remainder work part time. The Wells warehouse op-
erates on a three-shift basis with the hours staggered be-
tween the frozen food and dry grocery sides. The ware-
house manager is Stephen Kumka; Charles Wyatt is the
vice president of distribution. Respondent admits the su-
pervising status of Wyatt and Kumka. Wyatt is based in
East Bridgewater and visits the Wells warehouse about
once a week.
The Wells employees are not currently represented by
any labor organization. The election involved here was
the third conducted among the employees since this
warehouse, and its predecessor in Portland, opened in
1982. No unfair labor practice charges or objections
were filed concerning the prior campaigns or elections,
both of which resulted in votes against union representa-
tion. The employees at East Bridgewater have been rep-
resented for about 35 years by the Independent Food
Handlers and Warehouse Employees Union, (IFWE).
IFWE intervened in Local 340's most recent petition.
B. The 23 December 1986 Letter-Alleged Threat to
Cancel Expansion Plans
The Respondent has plans to expand the Wells ware-
house by about 230,000 square feet and its employees
have been aware of those plans since at least late summer
or early fall of 1986. By December 1986, some prelimi-
nary planning had been done with an engineering group
and a consulting firm.
Sometime around early December 1986, Local 340
filed a representation petition; IFWE intervened. On 23
December 1986, Respondent posted a letter addressed to
all of its Wells employees pointing out that, "for the
third time in four years, [we are] going to be subjected
to another organization drive by both Teamsters Local
340 and . . . IFWE." It went on to state:
We want to get this election behind us as soon as is
reasonably possible. As you are aware, we have
plans for expansion here at Wells. In part, those
plans are based upon our confidence in our employ-
ees here at Wells; we are similarly confident that
our employees will reject the sales pitch of both
these Unions and that we can then turn our mutual
efforts to make this the best of its kind of operation
from the point of view of both our employees and
the company.
The letter concluded with information about when the
election would be held.
In a second letter, undated but identified by Wyatt as
having been sent to the employees about a week before
the election, Wyatt stated:
In the relatively short time we have been here at
Wells, we've accomplished a lot together. The
Company is growing and we all hope to grow
along with it. We are firmly committed to expan-
sion here at Wells and working together we are
going to be able to provide more jobs and more
promotional opportunity. We do not want to be dis-
tracted from that goal by endless negotiations and
possible strikes, etc.
C. Wyatt-Swanson Conversation
In early January, day-shift employee Dean Swanson
raised some questions concerning the upcoming election
that Kumka could not answer. Kumka referred them to
Wyatt and, when Wyatt came to the warehouse around
9 January 1987,2 he spoke with Swanson, an employee
he had known for 6 years. The conversation took place
in the aisle where Wyatt met Swanson. They spoke for
about 2 hours, covering such topics as overtime, insur-
ance benefits, and the Company's allotment for work
shoes. In the course of discussing collective bargaining,
Wyatt told Swanson that Respondent's employees en-
joyed the best benefits in the industry for that area. He
suggested that the wages and benefits were so good that
the employees would not be able to get anything better
through collective bargaining. According to Swanson,
2 All subsequent dates are 1987 unless otherwise specified
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when Swanson suggested that the two prior union cam-
paigns had a lot to do with the present level of benefits,
Wyatt got upset and stated that he could guarantee that
the employees would get no greater benefits through
union representation because the Union would have to
bargain with him and he was not willing to give any
better benefits than they had at that time.
Wyatt denied telling Swanson that he would guarantee
that a union would get them no greater benefits; he
claimed (and Swanson confirmed) that he asked Swanson
whether Swanson really believed that he could do better
by turning his affairs over to a "third party." Kumka,
who had been present during parts of the conversation,
was not present during this portion.
In his pretrial affidavit, Swanson made no mention of
having upset Wyatt with the contention that Respondent
had granted its present level of benefits because of the
earlier union campaigns. This, however, was a significant
aspect of Swanson's testimony before me. It would tend
to explain why an otherwise careful campaigner (as I
find Wyatt to be) might threaten to be adamant in bar-
gaining to the point of having a closed mind. Noting that
omission, the possibility that Swanson interpolated such a
threat from Wyatt's question, and my impressions as to
the credibility and recollective abilities of the witnesses,
I find that the General Counsel has not sustained her
burden of proving that Wyatt made the threat Swanson
attributed to him. Accordingly, I shall recommend that
the allegation of paragraph 7(c) of the complaint be dis-
missed.
D. The Meetings
On January 15, Wyatt held meetings with the employ-
ees of each shift, as he had done during each of the prior
campaigns . Respondent does not dispute that the purpose
of these meetings was to persuade the employees to vote
against union representation. Each of the meetings was
"on-the-clock" and the employees were instructed to
attend by their supervisors.
The meeting with the first-shift employees took place
between 1 and 3 p.m. with about 35 employees, Wyatt,
Kumka, and about 4 other supervisors present. Wyatt
began this meeting , as he began each of them, by intro-
ducing himself, explaining that he had come to answer
their questions and address their concerns about the elec-
tion, which was scheduled for the following Tuesday,
and stating that he hoped that they had or would decide
to vote for neither Union in the election.
Wyatt then took questions from the employees. An
employee asked what collective bargaining was or what
it meant to the employees at Wells. According to Wyatt,
he told them that collective bargaining was a system of
give and take, that demands would be put on the table
by a "third party,"s and it would be up to the employer
3 Wyatt repeatedly referred to selection of a union as bunging in a
"third party ," a disparaging and less than fully accurate description of the
role of a collective -bargaining representative Wyatt, having served on
the IFWE 's negotiating committee when he was a unit employee in East
Bridgewater , knew that unions act in a representative capacity and are no
more "third parties" than employer's counsel or consultants
to negotiate back and forth concerning the demands and
work restrictions that were being discussed. As he testi-
fied:
I told the group, as I told all groups, that if they
were to turn their affairs over to a third party that
the employees would be guaranteed minimum
wages and workmen's comp[ensation] and that's
where our collective-bargaining process would be.4
At the time he made this statement, Respondent was
paying up to $11.70 per hour plus differentials to the full-
time employees and about $5 per hour to the part-tuners.
Several questions were asked about profit sharing, par-
ticularly whether the profit sharing that they presently
enjoyed would be in jeopardy as a result of collective
bargaining. Wyatt explained that profit sharing could be
a negotiable item and described how IFWE had negoti-
ated away profit sharing in favor of a pension plan at
East Bridgewater , funding that plan from accumulated
profit-sharing funds. He denied threatening the employ-
ees with the loss of profit sharing.5
Someone questioned whether the Teamsters could
guarantee job security; Wyatt answered that neither the
Teamsters nor any other union could guarantee job secu-
rity. He pointed out several Maine firms with Teamsters
contracts that had gone out of business, stating, however,
that he was not claiming that they had done so because
of the Union. He said that it had happened as a possible
result of deregulation or the economy; he only cited
them as examples to show that union representation did
not prevent plant closings.
In response to a question about Respondent's expan-
sion plans, Wyatt stated that those plans were proceed-
ing along, that he expected some sitework to be done in
early spring and that the expansion would be completed,
or at least enclosed, by late fall and operational by the
spring of 1988.6
4 Although some employees described his statement with slightly dif-
ferent terms , I am satisfied that this is essentially what he said
5 Swanson claimed that he asked Wyatt the foregoing questions, Wyatt
named other employees as having done so As Swanson recalled it, he
asked Wyatt if Wyatt meant that "if the employees went into a
union that the employees could lose their profit sharing and all the other
employees in the program would keep it, and all of our money would be
put into the account?" Wyatt allegedly replied, "Yes, we wouldn't, but
we could " Assuming , arguendo , that such a statement would constitute a
threat of loss of the profit-sharing plan, thus necessitating a resolution of
credibility , I find that I cannot credit Swanson. Swanson acknowledged
that he was seated in the back of the room , between two noisy vending
machines , and could not hear everything that was being said. Moreover,
the General Counsel offered no corroboration of Swanson's testimony
from among the 35 employees who were present and Kumka credibly
corroborated Wyatt Similarly, I cannot credit Swanson's assertion that,
in response to a further question about the effects of voting a union in,
Wyatt stated , "[I]f a union came in we could just close the place up"
Such a patent threat is totally out of character with Wyatt 's carefully
phrased answers and no employee corroborated Swanson or contended
that Wyatt made any such remarks in the three other meetings held that
day
6 As of the hearing date, construction had not begun According to
Wyatt, Respondent had not received the necessary approvals from the
Department of Environmental Protection and was awaiting its permits
SHAW'S SUPERMARKETS
The meeting continued with some discussion of the in-
surance benefits enjoyed at Wells as compared to East
Bridgewater and Wyatt's role in IFWE when he had
been a unit employee. He was asked how he could now
urge employees to reject unionization when he had once
been a union officer. He replied that Respondent paid
the best wages and benefits of, or at least paid wage and
benefits comparable to, anyone in the industry and, be-
cause of that, he believed that they had earned the right
to maintain a union-free environment and not be subject-
ed to such work restrictions as they had at East Bridge-
water. He told the employees that the first contract
would be the hardest to negotiate and concluded the
meeting by stating his hope that they would make the
right decision.
According to Wyatt and Kumka, the meeting with the
frozen food department employees of the second shift
was essentially a repetition of the first-shift meeting de-
scribed above. Rather than take as many questions,
Wyatt told the employees what had been asked at the
first meeting and repeated his answers. According to em-
ployee 'Kenneth Sylvester, however, Wyatt answered a
question from Thea Jongerden about the effect of collec-
tive bargaining on their profit sharing by stating that "it
could be lost, a good possibility that it would be lost."
Sylvester recalled no discussion about negotiations at
East Bridgewater with IFWE affecting the profit-sharing
plan there and testified, contrary to his affidavit, that he
recalled no statements about profit sharing being on the
table or subject to collective bargaining. He also recalled
Wyatt stating that there was no movement on the expan-
sion program because of the upcoming election, that the
Teamsters were not ' partial to part-timers, who could
lose their jobs, and that a layoff was not likely because
business was picking up "but there could possibly be
one." He also recalled a part-time employee, Ralph Du-
Chamb, asking about work standards, called reasonable
expectations or REs. Kumka allegedly answered that
REs were a nonnegotiable item in the contract. He re-
called no discussion of management's right to measure
productivity.
Wyatt and Kumka denied making the statements at-
tributed to them by Sylvester and, as noted above, assert
that Wyatt only repeated the remarks he made in the
first meeting. Kumka could recall no discussion of REs
in any meeting other than the last.
No testimony was offered concerning Wyatt's meeting
with the dry grocery employees of the second shift.
Wyatt met with all the third-shift employees about 11
p.m. He and Kumka testified that it followed essentially
the same pattern as the second-shift frozen food depart-
ment meeting. In this meeting, however, a question was
raised about the work standards; Kumka answered, tell-
ing employees that the REs were negotiable but that he
believed that management had a right to have a perform-
ance measurement system in place in order to fairly
measure the performance of its employees. He credibly
denied ever telling employees that the work standards
were not negotiable. An employee asked whether part-
time employees would lose their jobs if either the Team-
sters or IFWE got in. In reply, Wyatt told the employ-
ees of his experience with one of Respondent's subcon-
847
tractors whose employees were represented by the
Teamsters. Under that contract, there were no part-
timers; employees not called in to work were treated as
if they were casuals , on layoff when not working.'
Analysis and Conclusions
As set forth above, I have found insufficient credible
evidence to support the General Counsel's contentions
that Wyatt or Kumka threatened employees with plant
closure (complaint pars. 7(a)(i), loss of profit sharing par.
7(a)(iii); the taking of bad-faith bargaining positions pars.
7(a)(v), (vii), and 7(c); or layoffs of either full or part-
time employees pars. 7(a)(vi) and (viii)). Accordingly, I
shall recommend that these allegations be dismissed.
The General Counsel asserts that Respondent's 23 De-
cember letter, by creating a nexus between the Employ-
er's expansion plans and the employees' rejection of the
unions, constituted a subtle threat to cancel or reconsider
those plans if the employees selected a collective-bar-
gaining representative.8 In agreement with Respondent, I
cannot find the message of this letter to be coercive. The
letter expresses confidence in, or satisfaction with, the
employees in the Wells work force. It states that because
of that confidence, the Employer is planning to expand
the facility and goes on to state, "we are similarly confi-
dent that our employees will reject the sales pitches of
both these unions and that we can turn our mutual ef-
forts to make this the best of its kind of operation from
the point of view of both our employees and the compa-
ny.,,
The General Counsel argues that there would be no
reason for Respondent to connect a discussion of the ex-
pansion plans with a statement about voting against
unionization unless those plans were contingent on the
employees' negative vote. This, I believe, is a strained in-
terpretation of the letter, one which might be warranted
in a context heavy with animus and other coercive con-
duct, but not in this case. A lawful interpretation, at least
as plausible as that offered by the General Counsel, is
that Respondent, in its effort to persuade employees that
they did not need union representation, was merely en-
deavoring to show that they were appreciated and that
7 Mark Dubois, an employee who had been discharged in February
(unfairly to his way of thinking ), testified that Wyatt said that "there
probably could not be any [profit sharing] or it could be less ... that
[the expansion] definitely would come to a halt," that the Company
would just have to "wait and see" what would become of part -timers if a
union got in, and that Kumka said that he would set the work standards
and they would not be "privy to negotiations ." Noting the demeanor of
the witnesses, the contradictions between the testimony and the affidavits
of Sylvester and Dubois, the contradiction of Dubois ' contention con-
cerning the halting of the expansion plans (which is contained in Re-
spondents' second letter), asserting a firm commitment to expansion, evi-
dence establishing a basis for bias by Dubois against Respondent arising
from the circumstances of his termination , the lack of corroboration of
their testimony by anyone else present at the same meetings, and the
probability that both employees read more into Wyatt and Kumka's
words than they really contained , I credit Wyatt and Kumka's versions
of the second - and third -shift meetings.
6 I have found the evidence that Wyatt threatened employees with
delay or cessation of the expansion plans in the course of the January 15
meetings insufficiently probative or credible to sustain the General Coun-
sel's burden of proof. Accordingly, I shall recommend dismissal of com-
plaint par . 7(a)(iv).
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the future was already bright. This becomes the more
logical interpretation of the letter when it is read in con-
junction with the subsequent letter , issued about a week
before the election . In that letter , Respondent stated that
it was "firmly committed to expansion," words hardly
suggestive of threatening contingencies .9 Further, this
second letter pointed out what expansion meant to the
employees, more jobs and greater promotional opportu-
nity , emphasizing Respondent's position that the employ-
ees did not need a union.
Accordingly, because I find no threat to be implicit in
the 23 December letter, I shall recommend dismissal of
complaint paragraph 7(d).
Finally, the General Counsel asserts that Wyatt's pur-
ported explanation of the collective -bargaining process,
as a system of give-and-take where the Employer would
begin bargaining at minimum wage and workmen's com-
pensation (the bare legal requirements) and that would
be all that the employees would be assured of receiving,
threatened the employees with regressive bargaining, and
the likely loss of benefits and violated Section 8(a)(1). I
agree.
Wyatt's statement, viewed in its most favorable light,
is a variation on the "bargaining from scratch" state-
ments with which the Board has been dealing for at least
two decades. Of such statements, the Board has held:
As the Board and the courts have recognized in
other cases, in the course of organizational cam-
paigns , statements are sometimes made of a kind
that may or may not be coercive, depending on the
context in which they are uttered [fn. omitted.]
"Bargaining from scratch" is such a statement. In
order to derive the true import of these remarks, it
is necessary to view the context in which they are
made.
Wagner Industrial Products Co., 170 NLRB 1413 (1968).
See also Campbell Soup Co., 225 NLRB 222, 229 (1976),
and cases cited therein . Statements that "accurately re-
flect the obligations and possibilities of the bargaining
process . . . which do not contain any threats that Re-
spondent will not bargain in good faith or that only re-
gressive proposals will result" will not be found viola-
tive. Clark Equipment Co., 278 NLRB 498 (1986). State-
ments that "effectively threaten employees with the loss
of existing benefits and leave them with the impression
that what they may ultimately receive depends in large
measure upon what the Union can induce the Employer
to restore" are objectionable (and violative of Sec.
8(a)(1)). Plastronics, 233 NLRB 155, 156 (1977), and cases
cited therein; Belcher Towing Co., 265 NLRB 1258, 1268
(1982).
Two recent cases, almost squarely on point, establish
that Wyatt's admitted statements to all the employees
were coercive and not merely descriptive of the collec-
9 The following sentence of that letter, "We do not want to be dis-
tracted from that goal by endless negotiations and possible strikes," does
not necessarily negate Respondent 's commitment to expansion or threaten
cessation of the plans in the event of unionization Arguably , it merely
offers management 's view that negotiations and strikes divert energies
from other management functions
tive-bargaining process. In Mississippi Chemical Corp.,
280 NLRB 413 , 417 (1986), a supervisor told employees
"that he could not possibly see where a union would
benefit employees or see how they could get anything
out of it." He "added that all 'they' would do is knock
employees down to the minimum wage , take all their
benefits and then they would have to bargain from
scratch." The Board stated:
It is clear that Jackson 's remark carried with it the
express threat that the bargaining from "scratch"
would start only after employees had been reduced
to "minimum wage" and all their benefits taken
away . In this context , Jackson's remark was coer-
cive for it threatened the loss of existing benefits
not necessarily the result of good faith bargaining.10
Similarly, in Fountainview Place, 281 NLRB 26, 29
(1986), the personnel director stated that if the union was
voted in, bargaining "starts out fresh"-"you don't start
out with what's in the handbook." As he did this, he
held up and waved a copy of the employer's handbook,
which set forth all the existing benefits. The Board held
that the employer 's statement, made in the context of
emphasizing the existing benefits by waving the hand-
book (and in the context of other coercive conduct),
conveyed the reasonable impression that the employer
would require the union to give up existing employee
benefits. That employer's conduct was thus found to
constitute an unlawful implied threat . Although the in-
stant case lacks the context of other coercive conduct,
Wyatt's statement is similar to that of Fountainview's
personnel director; he did not wave a handbook but he
told employees how good their present benefits were and
stated that if Respondent had to negotiate with the
Union , it would begin its negotiations at the bare mini-
mum required by law, minimum wage and workmen's
compensation.
Accordingly, I fmd that by threatening employees that
it would bargain regressively, resulting in lost benefits, if
they selected a bargaining representative , Respondent
has violated Section 8(a)(1).
The Objections
As noted, the Local 340 filed objections to the con-
duct of the 20 January election. Its Objection 3, subparts
1 through 6, which were identical with the allegations of
the complaint, were consolidated for hearing with the
complaint . I have rejected the contentions contained in
Objection 3, parts 2 through 6, and recommend that they
be overruled.
11 Compare La-Z-Boy, 281 NLRB 338 (1986), in which an employer's
statement that "everything was up for negotiations and that minimum
wage was the bottom line" was found not to be a coercive threat to bar-
gain regressively inasmuch as the employer told the employees that "it
was 'ridiculous ' to think the company would pay minimum wage regard-
less of the outcome of negotiations " No such assurances were given in
Mississippi Chemical and none were given here Even assuming that the
employees might, on their own, conclude that it would be ridiculous to
think that the employer would reduce full-time wages of $ 11.70 per hour
to $3 35, it would not have seemed ridiculous for them to believe that the
Employer might reduce the $5 per hour wage of the part-torte employees
to that level
SHAW'S SUPERMARKETS
I have found that- Respondent threatened employees
with a loss of wages and benefits through regressive bar-
gaining in violation of Section 8(a)(1). Pursuant 'to the
Board's usual policy, a new election is to be directed
"whenever an unfair labor practice occurs during the
critical period since `[c]onduct violative of Section
8(a)(1) is , a fortiori, conduct which interferes with the ex-
ercise of a free and untrammeled choice in an election."'
Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962),
quoted with approval in Clark Equipment, supra. It
cannot be contended that the conduct here was de mini-
mus and should not result in the election being set aside.
These threats, violative of Section 8(a)(1), reached all of
the unit employees and were uttered only 5 days before
the election. Accordingly, I recommend that the election
conducted on 20 January be set aside on the basis of
Local 340's Objection 3(1) and a rerun election be con-
ducted.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act,
I shall recommend that it be ordered to cease and desist
and take certain affirmative action designed to effectuate
the policies of the Act.
The General Counsel seeks the inclusion of a visitator-
ial clause in the recommended Order, authorizing the
Board, for compliance purposes, to obtain discovery
from the Respondent under the Federal Rules of Civil
Procedure under the supervision of the United States
court of appeals enforcing the Order. The circumstances
of this case do not warrant inclusion of such a clause.
Fountain view Place, supra.
FURTHER CONCLUSIONS OF LAW
1. By threatening employees that it would bargain
from scratch starting from a substantially reduced level
of benefits, Respondent has threatened its employees
with regressive bargaining and a loss of benefits and has
interfered with, restrained, and coerced its employees in
the exercise of their Section 7 rights and has violated
Section 8(a)(1) of the Act.
2. The unfair labor practice enumerated in paragraph
1, above, is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The Respondent's conduct described in paragraph 1,
above, interfered with the employees' rights to a free and
untrammeled choice in the election conducted on 20 Jan-
uary 1987 in Case 1-RC-18882 and warrants that that
election be set aside and a rerun election conducted.
4. The Respondent has not engaged in any unfair labor
practices or objectionable conduct not specifically found.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edtt
11 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
849
The Respondent, Shaw's Supermarkets, Inc., Portland,
Maine, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that it would "bargain from
scratch" starting from substantially reduced levels of
wages and benefits if they selected a union to represent
them.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Post at its Wells, Maine warehouse facility copies
of the attached notice marked "Appendix."" Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects, and,
IT IS FURTHER RECOMMENDED that Case I-RC-18882
be severed from Case 1-CA-24543 and be remanded to
the Regional Director who shall conduct a rerun elec-
tion at such time as he deems the circumstances permit a
free choice on the issue of representation.
12 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees that we would WE WILL NOT in any like or related manner interfere
"bargain from scratch" starting from a level of substan- with, restrain, or coerce our employees in the exercise of
tially reduced wages and benefits if they select a union to the rights guaranteed them under Section 7 of the Act.
represent them.
SHAW'S SUPERMARKETS, INC.